Clear guidelines for employers and employees on the application of the principles of negligence and statutory law to the task of manual handling above shoulder level were provided in a recent judgment by Ms Justice Mary Irvine.

The judge was apportioning liability on a ‘two-thirds, one-third’ basis – in a case taken by an injured employee against the supermarket which employed her.

The facts were that when the injured woman and a colleague arrived to work in the supermarket where they were employed, they found a number of trolleys which were stacked with goods to be displayed on shelves in the homeware department.

Summing up the injured woman’s evidence, Ms Justice Irvine said the injured woman went over to one of the trolleys, which was stacked with boxes well above the height of her head. She reached up to one of the boxes, not knowing what was inside it, and pulled it forward to take it down. As the weight of the box came into her arms, which were stretched above her head, she realised it was too heavy for her to manage.

She called out to her colleague to help her, but her colleague was handling another box. As a result she had to take the weight of the box into her arms and put it down quickly on a table that was close by. This required her to perform a twisting movement. A few minutes later she felt pain in her back, which soon started to radiate into her left buttock and down her left leg.

The woman alleged that the injury she suffered was due to the negligence of her employer who failed to provide a safe place of work, a safe system of work, safe equipment and competent assistance.

In particular, the injured woman alleged that she was allowed and required to lift a cumbersome and heavy box from a trolley which was stacked excessively high, causing her to overreach. She alleged that her employer was liable at common law for its failure to take reasonable care for her safety, with the result that she suffered a foreseeable injury to her back. She also alleged her employer failed to comply with its duties to her under the General Application Regulations 1993.

The accident happened in 2004.

THE EMPLOYER’S DEFENCE
The employer denied liability. The employer contended that the worker was not exposed to a trolley laden in the manner alleged, but if it was laden in the manner alleged, the woman’s injuries were caused by her own negligence.

The employer argued that the injured woman was given “extensive safety training which focused significantly on accident prevention and back safety”. During training, the injured woman was warned that she should never lift any load without first ascertaining its weight.

She was also, the employer argued, trained never to engage in a lifting manoeuvre if it involved stretching and taking a load from an overhead position. The employer said any loads which were positioned above an employee’s waist or shoulder were only to be moved if a safe platform, such as a stepladder, was available.

Further, the employer argued, if an employee, having ascertained the weight of a load, thought it was too heavy, the employee should seek assistance from another employee.

ASSESSING THE EVIDENCE
Saying that the injured woman was a “thoughtful and careful witness”, Ms Justice Irvine said she accepted her evidence that the trolleys were stacked to a height of about six foot and that the boxes weighed between nine and ten kilos. She noted that the injured woman was little more than five foot tall.

Noting evidence from the store manager at the time of the accident, that staff were trained not to stack trolleys above eye level for safety reasons, the judge said she was satisfied that on the occasion of the accident “the company’s safety practice was not followed”.

She said her finding in this regard was supported by evidence from an engineer for the injured worker who, when he inspected the store in 2009, found trolleys stacked to heights of up to eight feet. In reaching this finding, Ms Justice Irvine had, she said, taken into account the evidence of the store manager and a person from the human resources department, that workers had been trained not to stock trolleys above shoulder height and are trained to put heavier goods on lower levels and lighter goods above.

Dealing with a comment by the store manager that if the injured woman had asked him for assistance, he would have taken the box down for her, the judge said he would have being putting himself at risk and acting contrary to all safety training.

The evidence, the judge said, suggested to her that the work practices adopted by staff and management at the time of the accident may have been at odds with the training relied on by the employer in its defence.

APPORTIONING LIABILITY
Dealing with liability, Ms Justice Irvine rejected the employer’s argument that the injured worker could have used a step ladder. Firstly, she should never have required a step ladder to unload any trolley of goods.

Secondly, from the evidence, she (the judge) formed the impression that step ladders were not in abundant supply and any worker requiring one would have had to go around the shop floor and stores to find one. There was no designated storage area.

Thirdly the load could not have been moved safely by the injured worker standing on a ladder. She would have had to use two hands to lift the box and she could not easily have transferred it to a colleague without the risk of the ladder becoming unstable.

Using a step ladder, the best the worker could have done was to gauge the weight of the box and then refuse to move it. The question then is, how could it be taken down safely? Perhaps, Ms Justice Irvine suggested, by two tall men of equal height as was demonstrated in the training video. But clearly that manoeuvre would never have arisen, had the trolley not been loaded in an unsafe manner in the first place.

However, notwithstanding these facts, the worker should not have tried to lift down the box. Also, she did this without ascertaining its weight. Had she got a step ladder and ascertained its weight, the accident would not, Ms Justice Irvine thought, have happened. Alternatively, she could have recognised the risk of taking any load from over head height and she should have refused to do so.

Having weighted up these points, Ms Justice Irvine held that the employer had no answer to the negligence claim, but the worker must bear 30% of the liability.

DAMAGES
Following the accident the worker attended her GP and was diagnosed as suffering from a slipped disk. However, investigations over the following years led to the conclusion by medical advisers – both for the employer and the injured worker – that she was asymptomatic prior to her accident but that because of the accident, the degenerative disc disease became symptomatic.

Bearing this evidence in mind, Ms Justice Irvine said she was satisfied that the injured worker’s continuing symptoms could not be ascribed to the accident. Accordingly, she said she would only award a sum for pain and suffering to date. She awarded €45,000.

The judge made no reference to the Injuries Board’s Book of Quantum. Looking at the award of €45,000 suggests the judge considered the injury to be a significant ongoing injury. The Book of Quantum provides for awards of between €18,300 and €69,700 for back injuries with significant ongoing consequences.

However, such a conclusion is at odds with the judge’s finding that the injured woman’s continuing symptoms could not be ascribed to the accident. The maximum award provided for such an injury in the British Judicial Studies Board’s Guidelines for the Assessment of General Damages in Personal Injury Cases is £17,750 (about €20,700).

Dealing the loss of wages, Ms Justice Irvine said she was satisfied that the worker was out of work from the date of the accident to June 2007, solely as a result of her injuries. The parties agreed that the maximum sum which the injured woman would have earned in that period was €33,000. The judge awarded her that sum.

From the total award of €88,000 for injury and loss of earnings, Ms Justice Irvine deducted 30% for contributory negligence, making an award of €59,667. To this she allowed agreed special damages (not specified). (Barry v Dunnes Stores (Clonmel) Limited: High Court, Dublin, June 2013