Jason Milne of A&L Goodbody consider three relatively recent cases concerning injuries sustained during the manual handling of loads and how they have served to highlight some key issues relative to training, risk assessments and safe systems of work. All three cases are: Louise Barry v Dunnes Stores Clonmel (Ltd) and Justyna Meus v Dunnes Stores were decisions of the High Court, while Geraldine Martin v Dunnes Stores (Dundalk) was a Court of Appeal decision.
As part time sales assistant, the plaintiff’s duties included putting out stock on the shop floor from trolleys which were loaded by other members of staff in the product store area. On the day of the incident the subject of the proceedings, the plaintiff (who was six weeks pregnant at the time) arrived into work to find a number of trolleys in the homeware department, which were stacked with goods to be displayed. The plaintiff contended that one trolley was stacked with boxes well above head height and when she reached up and began to remove one of the boxes she realised it was too heavy for her to manage. She called for assistance, but her co-worker was busy handling another box. As a result, she had to take the full weight of the box into her arms and put it down quickly. This required a twisting type of manoeuver, after which she felt pain in her back, which radiated down her left leg.
The plaintiff maintained that she suffered a significant injury to her back due to negligence and breach of duty on the part of Dunnes, and that Dunnes had failed to provide her with a safe place and safe system of work, safe equipment or any competent assistance. Dunnes denied all liability and asserted that the plaintiff’s injuries were caused by her own negligence, as she had been provided with extensive training, which had focused on accident prevention and back safety.
In finding for the plaintiff, the judge awarded €45,000 in respect of pain and suffering and a further €33,000 in respect of loss of earnings, but applied a deduction of 30% in respect of the plaintiff’s contributory negligence (the judge accepted that the plaintiff should have checked the weight of the box before trying to remove it from the trolley). The Court held that while the defendant’s staff were trained not to stack trolleys above eye level for safety reasons, this safety practice had not been followed. The Court said that the benefit of any training that is provided at the commencement of employment is significantly negated if compliance with training and safe practice is not enforced by employees and managers.
In Meus, the plaintiff was a shop assistant, working in the men’s department. She was required to fetch a number of large boxes, weighing 13-15kg, from the store room and bring them to the shop floor. As in Barry, the boxes were stacked high above her head height and she suffered an injury to her back while loading the boxes onto a trolley.
One of the key issues in this case concerned the training that was allegedly given to the plaintiff. On the commencement of her employment, the plaintiff (a Polish national) had signed a card, which was apparently a training record of the training she received, which included health and safety and manual handling training. While the plaintiff acknowledged that she had signed the card, she denied receiving any health and safety or manual handling training. She said she was told to sign the card and this is what she did. Dunnes strongly contested this assertion saying that a presentation in manual handling had been shown, along with the screening of two DVDs. The plaintiff denied point blank that she was shown any slideshow or DVDs. Separately, the plaintiff had been furnished with a handbook, which contained two pages on manual handling; however, she stated that she had difficulty reading and understanding the handbook, as her English was poor. Under cross examination the defendant’s Health & Safety Manager, who had provided the training, stated that he did not check whether new recruits understood him and he ultimately accepted that, in the circumstances, the training was not adequate for the plaintiff’s job.
The Court was satisfied with the plaintiff’s evidence that she was not shown any slideshow or DVDs at her induction. The judge accepted that she was given a tour of the shop premises, provided with a uniform and a handbook and was told to sign the record card. In the circumstances, the judge was satisfied that she had not received adequate training in respect of the duties of her employment. Specifically, the judge stated that no attempt had been made to inquire whether the plaintiff actually understood the contents of the instruction allegedly given to her in relation to manual handling. In addition, no risk assessment had been carried out in relation to the lifting duties of the plaintiff in the men’s department and no proper follow-up training had been provided. The plaintiff was awarded €85,255.
In this case, while working as a checkout operator, the plaintiff left her till to replace a 10kg bag of potatoes for a customer, as the bag was torn. In the course of getting a replacement bag she suffered a partial tear to the biceps muscle on her right arm; the bag in question was wedged between two adjacent bags and when she was “yanking it out” she suffered the injury. In the High Court, the claim made on the plaintiff’s behalf was that she had not been provided with a safe system of work on the day in question, in that there was nobody at the checkout that she could call on to carry out the customer’s request, and that she had not received adequate training to allow her to safely carry out the operation in question. The trial judge in the High Court found that while the plaintiff had been well trained in the theory of manual handling and lifting, and while the course provided by Dunnes was adequate, he concluded that from a practical perspective the course was in fact inadequate, as it did not address the practicalities of what employees might be expected to lift on the shop floor. He found the defendant negligent in its failure to incorporate the practicalities of lifting such products into its training programme.
In allowing the appeal, the Court of Appeal stated that as the plaintiff had not followed the system that she had received training in, and which was designed to best protect her interests, she was effectively the author of her own misfortune. The trial judge stated that it was not reasonable or practicable for an employer to include practical training for the ever changing range of products that were stocked by the defendant; from groceries to furniture to household goods. The judge found that there was a reasonable system in place and, as the plaintiff had not sought any assistance, her injuries could not be ascribed to any negligence, breach of duty or breach of statutory duty on the part of Dunnes.
The following five key issues, relative to manual handling and training generally, can be distilled from these cases:
- Training must be adequate for an employee’s job and work practice should be checked, on an ongoing basis, following the provision of any training to ensure correct techniques, work practices and safe systems are being adhered to.
- Following the provision of training, inquiries should be made to ensure that employees fully understand the content.
- Training should be provided not only at the commencement of employment, but also on transfer to a different department, where duties and tasks may differ.
- Task specific risk assessments for all lifting operations should be prepared; however, specific training does not need to be provided for a wide range of different products/objects.
- An employer’s duty to employees is met once they take reasonable and practicable steps to avoid accidental injury.
  IEHC 259
  IEHC 639
  IECA 85