Our client worked at a Secondary School that employs an inclusion policy for children with disabilities. One of those children, Jonathan, attended the school in a manual wheelchair (as opposed to his usual electric wheelchair). He had done so before. The claimant had to push Jonathan to the toilet.
To do so, she had to push the child plus wheelchair up a slope or gradient rising six inches over 82in. The claimant is 5ft 3in weighing 55 kilos. The combined weight of the pupil and chair was 84.2 kilograms. To move the wheelchair up the slope the claimant’s evidence was that she had to give him an “extra push” and in doing this her shoulder popped. The claim was brought under the Manual Handling Operations 1992 Regulations.
The defendant called four witnesses including the child’s mother, client’s manager, the assistant principal of the school and the person with responsibility for carrying out risk assessments. The defendant’s argument was that there was not a foreseeable risk, the slope was minimal, they did not believe pushing Jonathan up the slope presented a manual handling risk to be assessed. It was confirmed under cross-examination that they had not risk assessed the slope.
The court found for the claimant. Jonathan had attended the school in the manual wheelchair before this incident, the difficulties this presented had been noted previously and there had been letters to the mother from the school about this, although not in relation to the specific area of the incident.
The defendant was therefore on notice of a risk and the court found it had not introduced effective measures or systems to protect its staff against a foreseeable danger.
While the court did not consider that they were required to have a spare electric wheelchair or battery chargers at the school, it did consider that the school could have issued specific instruction to staff to use internal corridors when pushing pupils. This would have been an option here although not considered by the claimant at the time.
The court said, if the employer had risk assessed this, then the claimant would not have sustained the injury she did. The court held there was an identifiable risk that was not properly assessed; the court relied on the fact that the client had suffered an injury. The defendant had failed to risk assess and failed to comply with Regulation 4 MHOR 1992 .
Judgment for the claimant