B3/2003/2427 
Neutral Citation Number: [2004] EWCA Civ 486
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM TAUNTON COUNTY COURT
(MRS RECORDER DOWELL)
Royal Courts of Justice 
Strand 
London, WC2 

Tuesday, 16 March 2004
 
B E F O R E:

LORD JUSTICE RIX 
 
LORD JUSTICE CARNWATH 
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HAZEL MAY BENNETTS
Claimant/Appellant
-v-
 
MINISTRY OF DEFENCE 
Defendant/Respondent 
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(Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
 - - - - - - -
MR R HARRIS (instructed by Porter Dodson) appeared on behalf of the Appellant
MR G FARMER (instructed by Morgan Cole) appeared on behalf of the Respondent
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J U D G M E N T 
1.	LORD JUSTICE RIX:  This is the appeal of Mrs Hazel Bennetts against the judgment of Mrs Recorder Dowell given on 29 September 2003 at Taunton in Somerset.  Mrs Bennetts was, in July 2000, an employee of the Ministry of Defence ("MOD").  She was then 64 years old.  She had been working for the MOD from about April 1998.  In about late 1999 she went to work in what is called the technical library in Yeovilton, where she was a civilian worker.  Her job consisted in part a responsibility for receiving post on the ground floor of a building known as AED.  
2.	The post would come in in post bags or mail bags from the central mail room at Yeovilton.  It was her job to decant the bags and pigeon-hole their contents.  Her witness statement described the situation as follows.   The mail would arrive and be placed on the floor in front of a row of pigeon holes.  It was her responsibility to take the items out of the sacks and put them in the pigeon holes.  The mail bags were about four feet long and 20 inches wide, and would contain a variety of material.  Apart from ordinary letters, there would be red bags which would measure 18 inches by 12 inches, and there would be packages and folders and files.  
3.	The normal procedure in the mail room, which she and other workers adopted at this time, would be to keep the mail bags on the floor of the room in front of the pigeon holes and to bend down in order to sort out the items in the bags.  At times the bags would be decanted so as to place their contents upon the floor.  The working space was not very ample.  There was an issue at trial as to whether the relatively confined area in which Mrs Bennetts worked contributed in some way to her injury, but the recorder found that the space, although limited, was sufficient for the handling operation that had to be performed and did not contribute to the accident.  
4.	On 25 July 2000, the day on which the accident occurred, Mrs Bennetts did something unusual -- indeed, so far as the evidence goes, neither she nor anyone else had done anything like this before.  She had removed two of the large red bags from the mouth or, at any rate, the higher part of one of the sacks, and was finding it difficult to remove or decant further material lower down.  There were files or folders or packages and other items still remaining there, perhaps because some item had gone through the raffia of the sack, had caught and was holding materials in place behind it.  
5.	In her witness statement, Mrs Bennetts described this particular bag as, at any rate initially, being "full to the brim.  So I started to sort out the post onto the trolley because it was simply too heavy to lift and empty onto the floor".  There was a trolley along the wall next to the pigeon hole cupboard which Mrs Bennetts seems to have used as a table top in order to sort out material which had been removed from the sacks.  
6.	She went on in her witness statement to say that there were empty folders which had been pushed and were tightly packed into the bottom of the sack, and which she was unable to empty from the floor level as she would normally do.  So what she did was to try and lift the sack up to try and "shake it out onto the trolley".  In her witness statement she said that she had barely started the lifting manoeuvre when she felt a severe pain in her lower back.  That pain is the injury in question.  It led to an accident report being made that same day.  She continued at work for some weeks but in the end ceased to come to work and remained off sick until reaching her 65th birthday, the following year, when her employment ceased.  That injury led to this claim.  
7.	The claim was brought both in negligence under the common law, but also under the Manual Handling Operations Regulations 1992.  Regulation 4 headed "Duties of employers" reads as follows: 
"(1)  Each employer shall—
(a) so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured; or 
 (b) where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured—
    (i) make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them, having regard to the factors which are specified in column 1 of Schedule 1 to these Regulations and considering the questions which are specified in the corresponding entry in column 2 of that Schedule,
    (ii) take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operations to the lowest level reasonably practicable ... "
8.	The findings of fact made by the recorder are not particularly easy to extract from the judgment as a whole, but for purposes of the submissions that have been advanced at this appeal, can I think be expressed as follows.  
9.	At paragraph 3 of her judgment, the recorder sets herself three questions: 
"Thus, the questions for the court are, was there a beach of statutory duty, did that breach, if any, cause the accident, and if it did, did the claimant contribute by her own actions?"
10.	In answering those three questions, the recorder found as follows.  First, so far as Mrs Bennetts' evidence is concerned, she found, in effect, that she was an unsatisfactory witness giving self-serving evidence which had changed over the period from the injury down to the evidence which she gave at trial.  However, the recorder ultimately accepted that the explanation of the injury which Mrs Bennetts had given on the day of the accident in a report form which she had then signed was the likeliest explanation.  Mrs Bennetts there wrote: 
"I removed the individual red bags from the sack and tried to remove some of the heavy packages but they were stuck.  I lifted the sack up onto the trolley to make it easy to unload but it caught on the underside of the trolley top and in trying to free it I wrenched a muscle in my back."
11.	The recorder commented that from that explanation there was little apparent attempt on her part on finding the packages were stuck to do other than lift the sack onto the trolley.  In the course of her evidence at trial, Mrs Bennetts accepted that weight was not her concern, nor was the height at which she was trying to lift the bag important to her (see paragraph 20 of the judgment).  The essential cause of her injury, therefore, was neither the weight of the bag nor the height to which she was lifting it, but rather that the bag had caught on the trolley itself.  Because of the act of the bag catching and Mrs Bennetts tugging at the bag to try to free it, she was effectively trying to lift the weight of the trolley, rather than that of the bag. 
12.	Mrs Bennetts' reasons for lifting the bag onto the trolley were explored at trial.  She appears to have advanced a number of reasons for seeking to lift the bag onto the trolley.  One was that it was not appropriate to tip out the bag onto the floor, but that was rejected by the recorder; it was her normal procedure.  Another explanation was that there was insufficient room to manoeuvre the bag on the floor, but the recorder rejected that as well.  There was no accurate finding as to the weight of the bag at the time of the injury; it had been partly unpacked.  Mrs Bennetts said that she had been told that bags weighed 15 kilograms and the judge was prepared to adopt that figure in her judgment as being a typical weight of a full bag.  But there was no finding as to the weight of this bag at the time of its being lifted.  The recorder did find that there was nothing unusual about the weight of the bag (paragraph 24).  
13.	It was suggested at trial by Mrs Bennetts that the only way in which to deal with the packages, folders or files which were causing an obstruction in the bag was to put it on the trolley, but the judge rejected that.  It was also suggested that her supervisor, a Mr Walsh, could not have helped her if she had sought his assistance, but the recorder rejected that.  It was also suggested by Mrs Bennetts that she had complained about bags in the past, but the recorder did not accept that that had occurred either. 
14.	It was in these circumstances that the recorder had to consider the answers to the three questions which she had posed to herself at the commencement of her judgment.  The first question was whether there was any risk involved in the manual handling operations performed in Mrs Bennetts' work such as to place upon her employers under regulation 4 the duty of making a proper assessment of such manual handling operations and to take appropriate steps to reduce the risk of injury.  
15.	The recorder approached that question first of all by reference to assessments carried out by the MOD in relation to Mrs Bennetts' work, and also by reference to the test which authorities in this court have laid down as to what is involved in the concept of a risk of injury such as to place upon employers the duties set out under regulation 4.  
16.	As for the MOD's assessments, there had been what is called an initial assessment in January 2000 -- that is earlier in the year in which the injury happened.  That initial assessment followed a form which set out a critical path for making assessments for the purposes of these Regulations: the form being that of a flow chart set out in a booklet produced by the Health and Safety Executive to give general guidance on these regulations.  That initial assessment found that the regulations did apply because the work did involve a manual handling operation but found that there was no risk of injury.  In those circumstances, it was appropriate to cease the assessment there and not go on to a detailed assessment -- that is to say it was appropriate if that answer, no, was the correct answer to the question of whether there was a risk of injury.  
17.	Following Mrs Bennetts' injury, on 25 July 2000, however, there was, in the light of that injury, a new and this time detailed assessment carried out.  The assessment was carried out by Mrs Bennetts' in-line manager, Miss Tracey Moss.  The detailed assessment was on a form which, again, reflected advice under the HSE booklet.  It required its compiler to state whether the answer to certain questions was "yes", and if there was a "yes" answer, then a column headed, "level of risk" had to be ticked as appropriate, whether low, medium or high.  For example, in answer to the question: "Does the task involve unsatisfactory bodily movements or posture especially stooping?"  There was a tick next to "yes", and the level of risk was ticked as "medium".  There was a similar tick of "medium" in answer to the question: "Does the task involve excessive movements of the load especially carrying distances?"  There were low level of risk answers to the questions: "Does the task involve excessive movements of the load especially lifting or lowering distances and pushing or pulling respectively?"  and: "Does the task require special information or training for its safe performance?"  In a box headed "Conclusions" it was stated that the overall priority for remedial action was medium, and that the remedial steps to be taken in order of priority were "Adjust procedures for emptying of mail sack.  Adjust work area layout to encompass above".  Finally, under the box headed "Line manager's certification" and "Actions taken" there appeared the following: 
"Manual handling assessment carried out, incumbent [that is a reference to Mrs Bennetts] advised that lifting of the mail sack was unnecessary." 
18.	In relation to these assessments, both prior to and immediately following Mrs Bennetts' accident, the recorder applied the test which she took from page 746 of Redgrave's Health and Safety, 4th Edition, where under the rubric, "Risk of their being injured", reference was made to the leading authorities, of which the most significant and the one which has been presented to the court today and relied upon by both parties is Koonjul v Thameslink [2000] PIQR 123.  There, Hale LJ said as follows at 126: 
"In that case [Hawkes v London Borough of Southwark (unreported transcript 20th February 1998)] Aldous LJ referred to there having to be a 'real' risk for the purpose of the regulations. Mr Weir refers also to the Scottish case of Cullen v North Lanarkshire Council [1998] SC 451 at 455, where the court referred to the risk of injury needing to be 'no more than a foreseeable possibility; it need not be a probability.'
For my part, I am quite prepared to accept those statements as to the level of risk which is required to bring the case within the obligations of regulation 4; that there must be a real risk, a foreseeable possibility of injury; certainly nothing approaching a probability. I am also prepared to accept that, in making an assessment of whether there is such a risk of injury, the employer is not entitled to assume that all his employees will on all occasions behave with full and proper concern for their own safety. I accept that the purpose of regulations such as these is indeed to place upon employers obligations to look after their employees' safety which they might not otherwise have. 
	However, in making such assessments there has to be an element of realism. As the guidance on the regulations points out, in appendix 1 at paragraph 3:
    ' ... a full assessment of every manual handling operation could be a major undertaking and might involve wasted effort'." 
19.	In that case, Hale LJ was prepared to assume that some risk could be envisaged from the operation under consideration in that case, but went on to conclude that there had been no breach of the regulations.  Sir Christopher Staughton, giving the only other judgment in Koonjul, said that he would have been inclined to say that there was no risk within regulation 4(1)(a) -- the point that Hale LJ had left open.  But, in any event, he agreed that the employer had done all that was required to have been done in the situation there and had committed no breach of the regulations.  
20.	In paragraph 33 of her judgment, the recorder, adopting the test of a real risk, or as Hale LJ had gone on to state "a foreseeable possibility not a probability", concluded that the decanting of post from the mail bags that Mrs Bennetts had to handle did not of itself pose a real risk.  The recorder went on to accept that some risk had been assessed in the assessment subsequent to the accident.  But she said at various points in her judgment that that was with the benefit of hindsight and that the risks there assessed went principally to the questions of stooping and carrying a distance, neither of which operations were involved in the facts of this accident.  
21.	It seems to me that, upon analysis, the recorder has asked herself whether, in relation to the normal procedure for carrying out the operations performed by Mrs Bennetts, there was a real risk -- a forseeability of risk in a matter relevant to her injury -- and concluded that there was not.  
22.	On this appeal, Mr Harris, on behalf of Mrs Bennetts, submits that the recorder must have erred in this finding by reference to the detailed assessment carried out after the accident.  I would accept that that assessment indicates that in a matter which was plainly relevant to the normal procedure of emptying or decanting of the bags, there was assessed to be a medium risk because of the bodily movement of stooping.  Stooping was obviously a movement which, as it seems to me, went to the core of Mrs Bennetts' normal handling job.  However, that is not how she received her injury, nor did she receive her injury, as the judge pointed out, from carrying the bag over any distance. 
23.	There has been some discussion today in court between counsel as to whether the test for the purpose of whether there is such an initial risk as to place upon an employer the further obligations under regulation 4 is a risk which needs to be not only foreseeable as a possibility, but also reasonably foreseeable.  This is an interesting question.  On the one hand, I can quite see that unless a possibility of risk -- a real risk -- can be foreseen as a reasonably foreseeable possibility, then it may be hard to place upon an employer, objectively, the further duties that arise under regulation 4.  
24.	On the other hand, Hale LJ was prepared to accept in the passage which I have read from her judgment in Koonjul that the purpose of these regulations is to place upon employers obligations to look after their employees' safety which they might not otherwise have.  If, therefore, the test of whether there is a real risk merely collapses the obligations under these regulations into the common law test of negligence, then it may well be that that would conflict with what Hale LJ accepted in that passage.  
25.	However, in this case I think that, as in Koonjul itself, the initial question of whether there was a real risk within the meaning of regulation 4(1)(a) can be left open as it was, ultimately, in Koonjul.  This is because the areas in which the subsequent assessment -- whether that was an assessment through the lens of hindsight or not -- showed that there was a risk were not relevant to the mechanism or causation of the injury in this case.  This case was concerned with an accident which occurred because of something which had never happened before -- something which was outside the normal procedure, which was to deal with these bags on the floor.  In that respect, Mr Harris submits that, nevertheless, in the absence of any training, and it is common ground that no particular training had been given to Mrs Bennetts, that it was a reasonable foreseeability that someone without training faced with a novel difficulty might injure themselves by adopting some unusual procedure.  
26.	In my judgment, however, whatever be the answer to that question, there simply was, as the recorder herself found, no causal connection between any training or advice, or any other changes to procedures that might have arisen out of the post-injury assessment, which would have affected the mechanism of this injury.  The injury was caused, on the findings of the recorder, not by reference to the weight of the bag, nor by reference to the height to which the bag was lifted, but solely by reference to the fact that the bag snagged upon the trolley.  There is nothing in the assessment itself which suggests that that is a matter which could have been foreseen.  Even if Mrs Bennetts had been trained with a warning that she should not lift bags, there is nothing to indicate that such training would have applied to the particular bag in this case, which was already partly decantered.  
27.	Moreover, the judge found at paragraph 31 of her judgment that, even if Mrs Bennetts had received training, it would have made no difference to her situation, because what had happened in this case was simply a novel one off situation which she had, without further thought, sought to deal with in the way that she did.  
28.	In a situation where the facts of the case are as imprecisely found as they have been in this case -- owing in large part to the difficulty that the judge had in ascribing credibility to the complainant's evidence -- I do not think that this court would be justified in going behind the trial judge's finding of fact on such a question as causation itself.  It is perfectly true, as Mr Harris has put in the forefront of his argument, that in the cross-examination of Miss Moss, she was asked if Mrs Bennetts had had training and had been told not to lift loads, then this sort of accident would almost certainly have been avoided, and she assented to that question.  But, in my judgment, the judge was entitled to form her own view as to that question in the light of all the evidence in the case.  
29.	Her judgment was, in effect, that, even if in the light of the post-injury assessment the employers should have found, even prior to the accident, that there was a real risk involved in certain aspects of the normal handling procedures, nevertheless, those were not aspects which were relevant to what happened in this case.  In effect, therefore, what had happened in this case was not relevant to any risk in the handling operations, and even if there had been any need for further assessments and further training and procedures, they were matters which would not have prevented Mrs Bennetts' injury.  In effect, even if there had been a breach of duty under the regulations, that breach would not have caused this injury.  
30.	In those circumstances, the question raised as to whether the recorder was justified in finding 60 per cent contributory negligence does not arise, but I would express my personal opinion that the recorder was perfectly entitled to form that evaluation.  
31.	Finally, I would deal with an issue which has been raised on this appeal but was not dealt with specifically in the judgment below.  Mr Harris submits that, even putting the regulations aside, there was a breach of common law negligence in packing the bags, which had been packed by other employees of the MOD, in such a way as to cause a risk of injury in their unpacking or decanting.  In my judgment, it cannot be said that there was any breach of the common law duty of care in that respect in this case.  There is no finding of fact in the judgment to indicate one way or the other how it was that the bag came to be delivered in the state that it was to Mrs Bennetts on this occasion.  The matter simply seems never to have been examined at trial, and I cannot see how, in those circumstances, the matter can really arise on appeal.  In effect, Mr Harris can only make good this argument if he can show as a matter of law that for a bag to arrive in the state in which it did arrive on this occasion, there must have been negligence involved in the packing of it.  I do not think that Mr Harris can sustain that submission, and in any event, it would fall foul of the same problem of causation as occurs in this case.  
32.	The obvious way to deal with folders or files which have got stuck further down into a bag which is in the course of being unpacked is simply to remove the offending articles from the sack.  I cannot see how the situation is in any way improved by seeking to lift the sack onto a trolley -- least of all by doing so in order, as Mrs Bennetts suggested in her witness statement, to shake out the sack at the trolley height.  Plainly the way in which to deal with articles stuck in a sack of this kind is to deal with it either by unpacking the items in the bag on the floor or, if one is going to shake out the bag at all, doing so on the floor.  In those circumstances, I just cannot see either that any negligence has occurred in the packing of these bags or how, if any negligence did occur, there was any causation between that negligence and the injury which occurred.  
33.	For all those reasons, I would dismiss this appeal.  
34.	LORD JUSTICE CARNWATH:  I agree.  I add one brief comment on the discussion that we have heard about the meaning of the term "risk" as it appears in the Regulation.  My Lord has quoted the statement of Hale LJ which I would respectively regard as providing the most helpful guidance, although it is no substitute for the statutory language which must provide the primary criterion.  
35.	I would briefly comment, however, on one paragraph of the judgment below.  In paragraph 33, the judge, having referred to the notes in Redgrave to the Regulation, expressed the view, as my Lord has said, that decanting from a post mail bag does not in itself pose a "real risk".  She went on to say this:  
"It does have a slight risk, a minimal risk, which was the risk assessed subsequent to the accident." 
She went on to say that that risk was related principally to matters which were not directly relevant to the accident.  
36.	If she was there intending to draw a distinction between a "real" risk and a "slight" or  "minimal" risk, that would not, with respect, be borne out by the citation she mentioned, which was a reference in the notes to Redgrave to a judgment of Aldous LJ in Hawkes v London Borough of Southwark [1998] EWCA Civ 310.  That case concerned a carpenter who had slipped while carrying a door up a narrow set of stairs.  The issue which was being addressed by Aldous LJ was not whether Regulation 4 applied, but whether, under Regulation 4(b)(2), the employers had shown that they had taken appropriate steps to reduce the risk.  
37.	The relevant passage of the judgment reads as follows: 
"The Regulations placed upon the Defendants the onus of showing that they had taken appropriate steps to reduce the risk to the standard required by Regulation 4(b)(2). To ascertain whether they had done that the Court has, as of the date of the accident, to assess the risk of the Plaintiff falling down the stairs and hurting his foot. If there was a real risk, then the Court must go on and decide whether that risk could have been reduced and if so, how it could have been done with the least sacrifice to the Defendants ... 
The amount of risk to the Plaintiff by doing what he did has to be weighed against the measures involved in reducing the risk. If the risk was insignificant in relation to the sacrifice then the Defendants discharged the onus on them."
38.	Aldous LJ said that the risk of falling down the stairs was "slight".  However, that did not mean that they had complied with the Regulations.  Although the risk to the plaintiff of falling was slight, it could have been reduced by the simple expedient of providing another man to help with the task.  Accordingly, although the risk was slight, so was the "sacrifice" required to reduce it.  Thus they, the defendants, had failed to show compliance. 
39.	That reference shows that even a "slight" risk may be a relevant risk in the sense that it brings Regulation 4 into play.  It also shows, as Hale LJ said in the passage referred to by my Lord, that the threshold may well be lower than it would be for common law negligence.  However, on the unusual facts of this case, as found by the judge, I agree with my Lord, that the necessary causal link was not established. 
Order: appeal dismissed.  Appellant to pay the respondent's costs -- to be subject to detailed assessment if not agreed.