This is a triumph of knowing the law and reading the defence.

The claim was for a firefighter who injured his back stowing away a triple extension ladder onto a gantry. He pleaded a breach of the Manual Handling Regs.

Shoosmiths did an in-house defence. It did not refer to any assessment as to whether it was reasonably practicable for the defendant to avoid the manual-handling task. Nevertheless, we read their witness evidence and that too did not refer to such an assessment.

Counsel Jinder Boora produced a skeleton argument that, once they had conceded any risk of injury in this task – as they did – then they had the legal burden of proving it was not reasonably practicable to avoid the claimant doing it on his own. Without such a defence they had to concede liability.

To quote from that:

6. In its Defence statement of case (pp 45 & 46) the defendant does not raise the defence of reasonable practicability. If the defendant wished to raise the defence, it is under a duty to plead the same (Larner -v- British Steel PLC [1993] 4 All ER 107; in the context of the Manual Handling Operations Regulations see King -v- RCO Support Services Ltd & Yorkshire Traction Co Ltd [2001] ICR 608).

7. The defence of reasonable practicability involves an employer proving that it could not be reasonably expected to take certain measures to alleviate risk, having regard to the magnitude of a risk against the cost of alleviating against it whether in money, time or trouble (Edwards -v- National Coal Board [1949] 1 KB 704). In the context of the Manual Handling Operations Regulations, the court is referred to the judgment of Aldous LJ in Hawkes -v- London Borough of Southwark 20th February 1998 CA Unreported.

8. The defendant has failed to produce evidence in support of the defence of reasonable practicability. The statements of both Mr Witt (pp 131 to 137) and Mr Greenwood (pp 138 & 139) provide no evidence at all that the evaluation exercise espoused in Edwards was conducted, let alone particulars of the same.

9. If at trial the defendant seeks to amend its defence in order to plead the defence of reasonable practicability and raise fresh evidence in support, the claimant will object.

The Judge did not give them leave to amend so they conceded liability. Had they said they could not have avoided the task, we would have then said two people sharing the lift was the reasonable practicable measure to reduce the risk of injury as then required under Reg 4 (1) (b) (ii).

Jones -v- Northants CC, 22 October 2008.