B3/01/1831
Neutral Citation Number: [2002] EWCA Civ 791
IN THE SUPREME COURT OF JUDICATURE                                              
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(His Honour Judge Charles Harris QC)
                                    Royal Courts of Justice
                                    Strand
                                    London WC2
 
                               Thursday, 16th May 2002
B e f o r e :

LORD JUSTICE WALLER
LORD JUSTICE CHADWICK
LORD JUSTICE LATHAM

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MICHAEL EDWIN WARNER
Appellant

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HUNTINGDONSHIRE DISTRICT COUNCIL

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(Computer Aided Transcript of the Stenograph Notes
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0207-421 4040
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Official Shorthand Writers to the Court)
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MR. J. DEEGAN (instructed by Messrs Copleys, St Ives) appeared on behalf of the Appellant/Claimant.

MR. W. VANDYCK (instructed by Messrs Eversheds, Ipswich) appeared on behalf of the Respondents/Defendants.

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J U D G M E N T
1.	LORD JUSTICE LATHAM: On 26th July 2001 His Honour Judge Harris QC dismissed the appellant's claim against the respondents, his employers, for damages for personal injuries arising out of his employment as a refuse collector and driver. He had started to suffer lower back pain in August 1996, which deteriorated to the extent that by September 1996 he was no longer able to continue working in that capacity. His case was that his degenerative back condition was the result of strain in circumstances of repetitive lifting which amounted to a breach of the respondents' common law duty of care to him, and a breach of the provisions of the Manual Handling Operations Regulations 1992. At trial, it was agreed by the respondents and the appellant that if the respondents were responsible for his back injury, it was to be treated as an acceleration of a pre-existing condition by three and a half years. The judge, however, held that the respondents were not in breach of either their common law duty of care or their statutory duty.
2.	The appellant was 48 when he ceased working for the respondents. He had commenced working for them in 1987, having previously been a builder's labourer and then working in agriculture. For the first six years or so he worked as a refuse collector and relief driver. For the last two years he worked as a driver, although he also helped with loading the dustcart. In the latter part of his employment he worked in a team of three, collecting rubbish in a small Fenland town, Ramsey. His round served approximately 1140 properties a day, somewhat less than the average of the rounds operated by the defendants at that time, which was 1236.
3.	The system was for the respondents to provide householders with plastic bags which the householders would leave in the street for collection by the refuse collectors. The bags would be collected manually and swung or thrown into the back of the dustcart at a height of approximately three feet. The judge accepted the evidence of a sampling exercise carried out by the respondents which showed that the average weight of the bags was some 5.5kgs, the majority weighing between 2kgs and 5kgs. Three per cent, however, weighed as much as 14kgs. The judge accepted that this exercise provided him with a reasonable common sense guide to the likely weights of the bags handled by the appellant. He also accepted the evidence of the respondents that the Ramsey round would be likely to produce approximately 2,200 bags a day.
4.	It was accepted that the appellant was a very good worker. As a driver, he would give what help he could to the loaders, which meant that he would keep getting up and down from his cab. He would, according to the judge, have handled approximately 500 bags in a round. That is approximately 60-65 bags an hour. The judge accepted that he would often, with lighter bags, lift more than one at a time, and on occasions he would have to lift either a bag or an item which might be as heavy as 20kgs.
5.	As to the appellant's claim in negligence, the judge said as follows:
“Was this system of work negligent?The sack system itself was widespread at the time, although I think it has now, to some extent, been superseded by wheeled bins, but it is not criticised as such. The claimant was given no instructions and there is nothing to suggest that the other 50 odd dustmen employed by the defendant were either. He told me that the sacks came readily to hand and the bend and stooping caused him no difficulties. He was in the best position to know. Most eloquently, there is no evidence of him or any of the other dustmen hurting their backs in doing this work.
If 50 men were being employed in similar work for the 9 years or so the claimant was in his job and coming to no harm, that is pretty strong evidence that injury is unlikely, that the system is reasonably safe.”
6.	The judge concluded that there was no breach of the respondents' common law duty of care to the appellant.
7.	The regulations upon which the appellant relied were the Manual Handling Operations Regulations 1992, which came into force at the beginning of 1993. By regulation 2 a manual handling operation was described as “any transporting or supporting of a load (including the lifting, putting down, pushing, pulling, carrying or moving thereof) by hand or by bodily force.” By regulation 4 it is provided:
“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 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, and
(iii) take appropriate steps to provide any of those employees who are undertaking any such manual handling operations with general indications and, where it is reasonably practicable to do so, precise information on-
(aa) the weight of each load, and
(bb) the heaviest side of any load whose centre of gravity is not positioned centrally.”
8.	The judge, in respect of the allegation of breach of these regulations, said as follows:
“There has to be an element of realism, in my judgment, in the interpretation of regulations such as this, drafted as they are with such theoretically broad ambit. In my judgment a risk in the context of these regulations means a risk which a reasonable person would regard as significant, and in that sense real ... Matters have to be looked at in context. The context here is that, on the evidence, no dustman seems to have hurt his back in the course of his employment handling these refuse sacks. It is no doubt quite hard work and quite tiring and might cause the odd twinge or ache, but on the evidence it was not risky. Accordingly, I find that there was no risk in the sense of real risk here.”
9.	He then went on to consider the consequence if he was wrong. In his view, it would not have been reasonably practicable to weigh each bag; nor was it reasonably practicable to have provided trolleys. He considered that it would have been practicable to have provided some training and accepted that the respondents had, in the documents before him, clearly envisaged doing so, but that no training had in fact been provided, at least for the appellant. But in his view there was no evidence as to what benefits such training could have achieved.
10.	Although he made no express findings as to general causation, he said as follows:
“It may in fact be that he was not injured by reason of any accumulation of insult consequent on the lifting he was doing at all. It may be that this was a consequence of his degenerative back...”
11.	The grounds of appeal are wide ranging. In argument they have been reduced to one major complaint. It is that the judge was wrong to conclude that there was no evidence upon which it could properly be concluded that there was a foreseeable risk of injury for the purpose of the common law duty of care or a risk of injury for the purposes of the regulations.
12.	Mr. Deegan, who has appeared on behalf of the appellant, has directed our attention to passages in the evidence which in his submission make it clear that there was indeed a foreseeable risk of injury and that that had been recognized by the respondents themselves. He refers, firstly, to the Minutes of the respondents' Safety Committee in 1987 which contain the following passage:
“In noting the continued proliferation of back injuries, reference was made to the training courses which recently had been organised on correct lifting and carrying techniques. In that context, the Assistant Director of Technical Services confirmed that the safe lifting course provisionally organised for employees in the Technical Services Department had been cancelled owing to adverse weather conditions but that it was to be rearranged in the near future.”
13.	The same theme can be seen in a letter of the Safety Committee for 26th May 1993 where the following appears:
“In response to a question by a Member regarding training in the lifting of heavy objects, it was reported that previously training had been given to staff who undertook lifting operations on a regular basis. However, as a result of new Regulations, training courses would be offered to all manual workers and relevant staff in conjunction with the Occupational Health Department at Hinchingbrooke Hospital.”
14.	It seems reasonably clear that the regulations to which reference was made in that Minute were the Manual Handling Operations Regulations 1992.
15.	Mr. Deegan then referred us to a document headed “Risk Assessment”, which is dated 6th November 1995, in relation to a work activity described as “Refuse Collection”, in which, under the heading “Significant Hazards” the following appears: “Heavy articles to lift”; under “Adverse Effects”, “back strain”; under the heading “Existing Control Measures” “lifting courses arranged at intervals”. From these documents to which the judge, as I have indicated, referred without detailing, Mr. Deegan submits that it is quite apparent that the risk of back injury or strain was clearly appreciated by the respondents as early as 1987 and certainly in 1995. It is also submitted by Mr. Deegan that it was clear from those documents that the respondents considered that the appropriate response was to provide training. Accordingly, he submits that the required elements to establish negligence on the part of the respondents and the breach of the regulations were all present. He submits that the material there was sufficient to justify the conclusion that there was a foreseeable risk for the purpose of the common law duty of care and undoubtedly a risk for the purposes of the regulations. He therefore submits that the judge was wrong to conclude that the appellant had failed to establish either negligence or a breach of the regulations.
16.	It seems to me, however, that the problem for the appellant in this case is not establishing whether or not there was a breach of the common law duty of care or a breach of the regulations. It is to establish that even if either were proved, there was such negligence or breach of regulations as to cause the condition from which the appellant undoubtedly suffers. The fact is that the appellant had a vulnerable back. That was the agreed medical evidence. The only basis upon which the appellant could argue that there was a breach of the duty of care or of the regulations was in failing to provide appropriate training. There is and was no evidence to show that the way in which the appellant in fact approached his work was a method which training could have affected in any way. As the judge himself said in his judgment, there was no evidence as to what benefits training could have achieved. It follows, in those circumstances, that the appellant was unable, even if he could have persuaded the judge that there was indeed a breach of the common law duty of care or a breach of the regulations in failing to provide training, to show that that training had any effect on his back condition which could justify an award of damages. In those circumstances, it seems to me that the appeal is doomed to fail, whatever view we take of the argument of Mr. Deegan in respect of the judge's conclusion on negligence and breach of statutory duty. It follows, in my view, that the appeal must be dismissed.
17.	LORD JUSTICE WALLER: I agree.
18.	LORD JUSTICE CHADWICK: I also agree.
Order: Appeal dismissed with costs; public funding costs assessment.