The claimant and his colleagues moved four large machines from a delivery bay to positions inside the factory. Three of the machines were very heavy: two weighed 3,100kg and one 2,800kg. The machines had to be moved a distance of between 50 and 70 feet and around one 90 degree bend. They were placed on skates and manually pushed through the factory.
One man guided the skates from the front, one looked out from the side and two, including the claimant, pushed from behind the machine. The claimant injured his back doing the task.
The Judge, at first instance, had assessed whether there was a risk of injury. Under Reg 4(1)(b) (i) of the Manual Handling Operations Regulations 1992 (MHOR 92)., the risk factors listed in Schedule 1 of the Regs include the distance involved in any pushing of a load, the weight of a load, the presence or absence of a bend or bends and the length of time for which the physical effort is required.
He also looked at the HSE guidance that accompanies the MHOR 92. For pushing and pulling operations, paragraph 23 of Appendix 1 of the guidance states:
“… the guidance figure for starting or stopping the load is a force of about 25kg for men and about 16kg for women. The guidance figure for keeping the load in motion is a force of about 10kg for men and 7 kg for women.”
There was agreed expert evidence that, for the heaviest machines, about 140kg of force was required to start the machine moving and about 90kg to maintain it in motion. When pushing the heaviest machines, the claimant was applying a force of at or above 45kg for a number of hours. At other times when the lookout was pushing, the claimant would have been applying at least 30kg, which was twice the guideline figure for starting a load in motion and three to four times the guideline figure for keeping the machine in motion.
So there was a risk of injury. There was no recorded risk assessment. The defendant argued that was irrelevant as a risk assessment would have reached the same conclusion, ie that this was a safe system of work that had been used for years and never injured anyone. The job had been done 30-40 times a month without injury.
The judge at first instance ruled that, had a risk assessment been carried out, it would have identified a considerable risk of serious injury to the operatives pushing the machines and it followed under Reg 4(1) (b) (ii) reasonably practicable safer alternatives should have been considered. For example, mechanical means such as towing by a fork lift truck or using specialist contractors or more personnel or rotating positions could have lessened that risk .
He found for the claimant.
The defendant appealed and said it had not been proved any alternative – specialist contractors, more men etc – would lessen the risk of injury. The Court of Appeal upheld the first decision. Lord Justice Waller said that, if they accepted the defendant’s stance:
“… it would mean that nothing further that was reasonably practicable could have been done to avoid that risk and that the employee simply had to accept the risk of serious injury…’
He found, as a matter of sense, that specialist movers or more staff or mechanical means would have lessened the risk of injury.
All three Lords dismissed the Appeal and the claimant succeeded.
The defendant was represented by Dominic Nolan QC and Weightmans.
Gravatom Engineering Systems Limited -v- Raymond Sarr  EWCA Civ 963.