Aways difficult to comment on a ruleing just from a magazine article. I hate "Dynamic Risk assessments" all two often an excuse for doing nothing. But in this case we dont actualy know what the risk assessment said, so dont know how hazardouse "roleing" one of these pumps was.

Also clearly this was a civil case as about compmesation so i am guessing that they decided - duty of care Yes, Injury Yes , Negligent NO.

But your right it did raise my eyebrow when i read it.

Edited by user 05 March 2021 13:44:53(UTC)  | Reason: spelling mistake (which even dyslexic me spotted!)

From my reading of the case (only by reading the article) it seemed to me that the key point was lack of evidence of risk, due to the lack of an expert witness to talk about this.

So, it would appear that the claimant's case assumed risk, due to the subsequent injury.

If the person had been say lifting the 48kg pump, they could have easily presented evidence that such activities involve risk of manual handling injury.

But, instead, this was a maneouvre seemingly substantially at the same level - a this point there is a need for (probably an ergonomist to provide) evidence as to the forces exerted on the employee's arm and wrist, to demonstrate that the task presented a risk.

No evidence of risk, no prospect of successful claim, if the defence was sound.

In some legislation the risk is built into the legislation. So, for example, it used to be that if you were liable to fall more than 2m, then certain requirements would kick in. No need to provide evidence of RISK, but still a requirement to show that the person was "liable to fall". Subsequent legislation in the UK removed the 2m rule and instead introduced a need to demonstrate risk.

EDIT - there is another bit in the judgment which to some extent muddies the waters. They also made a comparison between the experienced and the young new starter - in effect saying also, that even if there was a risk, that the experienced worker who had done similar tasks before should be better placed to make a decision as to whether the task was dangerous. But this doesn't change the fundamental starting point that to prove the case you have to prove that there was a risk.

Once you have done that, then you go on to assess the scale of the risk which then helps determine what was or was not reasonably practicable to mitigate that risk. 

The article does not tell us what the contractual relationship was between claimant and their lawyers. If going down the route of e.g. No Win, No Fee, the lawyers might have been very reluctant to recommend the appointment of an expert witness. Alternatively, if retained on another basis, the lawyers might have advised that the claimant that if the case were to fail that the claimant might face substantial costs for appointing an expert witness. Depending on the severity of the injury (and thence level of subsequent incapacity) that expert witness fee might account for a substantial proportion of any damages awarded and even if the claimant were successful, it is not 100% certain that they would also be awarded full costs.

So, there might have been a very strong case for NOT appointing an expert witness.

Edited by user 06 March 2021 10:53:37(UTC)  | Reason: Additional comment in different font colour