Liability for Manual Handling/ Ergonomics Instructors
Back to Basics Conference - Health and Safety Publications Ltd.
13th June, 2014
Pat J. Barrett B.L.[1]
Safety, Health and Welfare at Work (General Application) Regulations 2007 - 2012.
Part 2 Chapter 4: Manual Handling of Loads. Follows the EU Manual Handling of Loads Directive 90/269/EEC.
Regulation 69 outlines the duties of an employer regarding manual handling of loads, including:
- Duty to take appropriate organisational measures or use appropriate means, in particular mechanical equipment, to avoid the need for manual handling of loads by employees;
- Where the need for manual handling of loads by employees cannot be avoided, duty to take appropriate organisational measures, use appropriate means or provide employees with such means in order to reduce the risks involved;
- Where the need for manual handling of loads by employees cannot be avoided, duty to organise workstations in such a way as to make such handling as safe and healthy as possible and:
- to assess health and safety conditions of the type of work involved and to take appropriate measures to avoid or reduce the risk to employees, particularly of back injury, and
- to ensure that particularly sensitive risk groups of employees are protected against any dangers which specifically affect them in relation to the manual handling of loads and the individual risk factors and;
- to ensure that, where tasks are entrusted to an employee, his or her capabilities in relation to safety and health are taken into account and;
- when carrying out health surveillance in relation to the manual handling of loads by employees, to take account of the appropriate risk factors.
- Duty to ensure that those of the employees who are involved in manual handling of loads receive general indications and, where possible precise information on the weight of each load and the centre of gravity of the heaviest side when a package is “eccentrically loaded”.
Among the risk factors specifically referred to are the characteristics of the load; the amount of physical effort required; characteristics of the working environment; requirements of the activity itself and the employee’s own individual risk factors, e.g. their own physical capabilities, clothing, footweat, knowledge and training. Back injury is specifically identified as a potential hazard.
NB: the duty defined under legislation is for the employer to take “all appropriate measures” or “all possible measures”: a far higher burden than merely “reasonable measures”.
Health and Safety Training
If a person with specialist training or experience in the areas of ergonomics or manual handling (“the instructor”) agrees to give a course or any other form of training in relation to these areas, s/he should ensure that the above areas are covered in detail. The following will be implied into the instructor’s contract (be it written or oral) with the contractor, unless the contract specifically states otherwise:
- The instructor has the requisite skill, expertise, qualifications, training and experience to give such a course;
- The instructor is sufficiently acquainted with the legal and technical aspects governing the area;
- The training given by the instructor is accurate;
- The instructor’s information is current (covers all reasonable updates to the area);
- The training given should be sufficiently comprehensive for a reasonable person’s needs: if the staff follow the instructor’s advice fully in the workplace, the risk of injury should thereby be minimised;
- The instructor will also be required to deliver the information in a reasonably coherent, comprehensible and cogent manner, such that a reasonable person attending the course would be able to understand without the need for further specialist training.
The instructor will also be required to take reasonable care to ensure these criteria are fulfilled.
If any of these terms are breached by the instructor, the instructor will be liable to the employer for breach of contract. If this breach causes harm subsequently, e.g. if the instructor’s advice is incorrect or outdated and the staff follow this advice, causing an employee to suffer an injury, the employee will be entitled to sue the instructor for negligence if it was reasonably foreseeable that an employee could suffer injury as a result of following the incorrect advice.
The fact that the instructor had a contractual relationship with the employer will usually mean that the instructor owed a duty of care to third parties who could reasonably be affected by a breach of that contract: Wall v. Hegarty [1980] ILRM 124. This would render the instructor liable in negligence to any third parties, such as employees, who suffer harm as a direct result of the instructor failing to take reasonable care to ensure the information and training supplied is current, accurate and comprehensive. Likewise, as a result of the judgment in Hedley Byrne v. Heller [1964] AC 465, a person (such as an employee) who relies on statements made by a person who possesses special skill (such as an instructor with the requisite qualifications), and who trusts that person to exercise due care, and where the instructor is or should be aware that his skill and judgement are being relied upon will have a cause of action against that person for loss caused as a result of negligent misstatement.
Alternatively, if an employee in such a scenario sues the employer only, the employer willlikely be entitled to an indemnity from the instructor as a result of the breach of contract. Pursuant to the rule in Hadley v. Baxendale (1854) 9 Ex. 341, a person who breaches a contract will be liable to pay damages which can fairly and reasonably be considered as arising naturally from the breach, or which may reasonably be supposed to have been in the parties’ contemplation as the probable result of a breach. It appears that an employer having to compensate an injured employee as a result of poor instruction would be covered under at least one, and possibly both, of these headings.
There appear to be no reported cases to date where an instructor has been held liable for such injuries, but there appears to be no legal reason why this should not happen.
If an instructor is training staff on an inherently dangerous or hazardous activity, the level of “reasonable care” required will rise commensurate to the risk, i.e. the instructor will be required to demonstrate a far higher standard of care taken to ensure the information given is accurate, and is delivered in a reasonably clear manner, if the risks of failing to follow the information precisely involve a high risk to life or health.
Risk assessments/ Safety statements
Ss. 19 and 20 of the Safety, Health and Welfare at Work Act 2005 require employers to engage in hazard identification and to prepare risk assessments and safety statements. Any engineer or other professional who is retained to advise in the preparation of such documents will owe the employer a duty in contract to take reasonable care to ensure the document is accurate, current and comprehensive.
It is less clear whether employees or members of the public (to whom the employer owes a duty of care under s. 12) who are subsequently injured as a result of unidentified hazards would be entitled to pursue the advising professional in negligence if the document were negligently drafted, as there was no direct relationship between them and the adviser. The element of proximity usually required to ground a claim in negligence (in cases such as Glencar Exploration plc v. Mayo County Council (No. 2) [2002] 1 IR 84) may therefore be absent. Under the principle in Hadley v. Baxendale, however, the adviser may nevertheless be liable to the employer for breach of contract in respect of any damages paid out as a result of a poorly-drafted risk assessment or safety statement, though such a claim has not yet come before the courts.
It will often be difficult to demonstrate that injury suffered was suffered as a result of flaws in the risk assessment or safety statement, rather than due to some other factor. In Doyle v. ESB [2008] IEHC 88, the plaintiff was an electrician who engaged in crimping connectors onto the ends of conductors around 100 times a day for up to five minutes at a time. He developed repetitive strain injury and initiated proceedings for damages. Among other grounds of relief, he claimed that the defendant was liable for failure to prepare risk assessments or safety statements in this regard. Quirke J., although finding that no risk assessment or safety statement had been prepared, also held that there was no evidence that the preparation of one would have reduced or eliminated the danger to the plaintiff. In practice, this seems to mean that, in cases where a risk assessment and/or safety statement is defective, and if a plaintiff or defendant is trying to fix the engineering adviser with liability, it will be necessary for them to call evidence showing that the injury would not have occurred if this were not the case. This will be an extremely difficult burden to discharge and it is difficult to see how an adviser could be held liable in such a case. As it stands, most workplace injuries occur despite the contents of the risk assessment and safety statement, not because of them.
New Legislation
The most recent legislation touching on these issues is the Safety, Health and Welfare at Work (Construction) Regulations 2013 (SI 291/2013). Regulation 37 (a) requires contractors to ensure that alll installations, machinery and equipment, including hand tools, whether power-operated or not, used on a construction site, are properly designe and constructed, taking account, as far as possible, of the principles of ergonomics.
Regulation 87 (1) (a) likewise requires a contractor to ensure that, if used for the purposes of construction work, all transport vehicles, earth-moving machinery and materials-handling machinery are of good design and construction taking ergonomic principles into account as far as possible.
[1] BCL (2006), BL (Trinity 2007). Author of Summary Judgment in Ireland: Principles and Defences (Bloomsbury Professional, 2013). Comments and queries welcome at r 021-4251801/ 087-7528406.