Manual handling in a care home

 

DN v Dorset Council [2019]


We recently represented the Defendant Local Authority in an employers’ liability claim which was virtually identical to another claim, brought by a different employee, which occurred in the same care home. The Court had to consider whether the Defendant had taken all reasonable steps to ensure that the Claimant was safe at work, or whether the first accident had placed the Defendant ‘on notice’, such that the Claimant’s accident could have been avoided.

Background

 

The Claimant, aged 60, suffered an accident on 18 August 2014. She worked for the Defendant as a Care Assistant at a care home in Christchurch, Dorset. The Claimant’s case was that she sustained injury when lifting a resident of the care home using a Joerns Oxford Mini 180 manual host, as the overhead hoist at the care home was broken. The Claimant said that as she attempted to lift the resident with the hoist, one of the wheels became entangled in a cable that was trailing under the bed, causing the hoist to stop suddenly, jarring the Claimant’s back. The claim was brought on the basis that the Defendant failed to ensure that the overhead hoist was working, failed to ensure that there were no cables beneath the bed, had not conducted a risk assessment relating to the cables being entangled by hoist wheels, failed to reduce the risk of injury posed by the cables and did not provide adequate training.


The Defendant admitted that the Claimant suffered an injury and that the overhead hoist was not working on the day of the accident. Breach of duty and causation were in dispute. The Claimant was put to proof that the accident was caused by the hoist wheel becoming entangled in cables. It was the Defendant’s case that the Claimant received sufficient manual handling training in October 2013 (9 months earlier) and was fully trained in the safe use of the hoist, specifically to ensure that the area around the hoist was clear of anything that may cause an obstruction. The mere fact that the overhead hoist was not working was irrelevant because the Defendant had already requested repair of the hoist.


The claim was allocated to the Multi-Track and the parties agreed quantum, subject to liability and any deduction for contributory negligence, in the sum of £32,500, gross of interest and repayable benefits.

The Defendant’s evidence

 

An overhead hoist had been installed for use in the care home. However, the overhead hoist was out of action at the time of the Claimant’s accident, having developed a fault on 13 August 2014 since last being serviced (on 11 January 2014). An engineer was called to fix the overhead hoist, which was still under warranty, but was unable to attend before 20 August 2014. The overheard hoist was put back into service on 21 August 2014, after the engineer initially misdiagnosed the problem. The Claimant’s accident occurred during this period (on 18 August 2014). It was the Defendant’s case that it was perfectly reasonable for the Claimant and her colleague to use the manual hoist having been fully training in its safe operation and the resident in question had been manually hoisted many times before.


The Manager of the care home provided a Witness Statement as to what she was told following the accident: “the Claimant had become frustrated and had forced the hoist (with the resident suspended from it) over the cables”. She said “I could see no justifiable reason why the Claimant chose to do this. This is not a practice which is allowed and, in any event, the Claimant should have checked the area was clear of cables prior to hoisting.” This evidence strongly indicated that the injury occurred when the resident was being hoisted away from the bed, suggesting that the hoist was pushed underneath the bed and over the cables. Accordingly, contrary to the Claimant’s training, she had failed to check that the area under the bed was clear from obstruction prior to hoisting.

The Defendant adduced evidence from another Care Assistant who confirmed that she attended manual handling training on 7 and 8 October 2013 in the company of the Claimant and other colleagues. The training was a mixture of theory and practical training, and included use of the manual hoist. A flowchart, dated May 2012, formed the basis of the hoisting training and stated that before using a hoist, the Care Assistant must consider (amongst other things) whether the area is safe for hoisting, whether there is sufficient space and the area is free from obstacles to avoid slips, trips or falls. The flowchart emphasised that if this was not possible, the hoist must not be used and the Care Assistant must consult a supervisor.


A colleague, whom was working alongside the Claimant, also provided a Witness Statement. She said that the Claimant did not report any injuries to her, but “expressed annoyance and frustration that the cable was in the way”. She reported telling the Claimant that she should have moved the cable out of the way prior to hoisting. The colleague’s evidence was that moving cables to safety hoist a resident was “part and parcel of our training and our job”.


Finally, a Health and Safety Learning and Organisational Development Adviser of the Defendant gave a Witness Statement, in which he confirmed that the Claimant was signed off as competent following a comprehensive course of training when she started working at the care home in September 2006. All carers, which included the Claimant, had been trained to conduct their own risk assessment to ensure that they could hoist in a completely safe manner.

Relevant case law

 

The Defendant relied upon the case of EM v Dorset County Council [2017]. This was an almost identical case, involving the same Defendant (and a former colleague of the Claimant), resulting from the use of a hoist when the wheel became entangled in cables. The claim was dismissed. We obtained a copy of the Judgment and ensured it was included in the Trial Bundle. In particular, we sought to rely upon the following comments made in EM v Dorset County Council [2017] which, in our view, were of direct relevance to the Claimant’s claim:


I have formed the view that it is obvious to any carer that if, carrying out a task, one encounters an obstacle, to simply continue with it without trying to find out what was going on and seeking help would be a very foolish way to proceed. And I don’t form the view that this has amounted to a failure in the training to not actually tell them what common sense very clearly dictates should happen… I find that the Defendant provided good training which is properly recorded. I also find that it discharged its common law duty to provide a reasonable work environment for the Claimant. The Claimant was an experienced and trained carer and knew that she should carry out a visual risk assessment before starting a task. I find that there was no good reason for her to continue pushing against an obstacle when the hoist wouldn’t go under the bed and that that was something which she did contrary to her training. I find that the workplace was reasonably safe for staff who acted in accordance with their training. I don’t find that the employer could have done more to prevent this accident and, in all those circumstances, I find that the claim is dismissed.

The trial

 

The Claimant’s claim was listed for a 2 day Trial in the County Court at Bournemouth & Poole. The Trial concluded in under 1 day. During her evidence, the Claimant admitted that she had received training and she was aware of the flowchart. Accordingly, the evidence of the fellow Care Assistant, as well as the colleague that was working alongside the Claimant at the time of her accident, was not required and both witnesses were stood down. The Claimant also admitted that she was aware of the presence of cables beneath the bed.


Within his Judgment, the Judge said that it would have taken no time at all for the Claimant to have checked for the cables before hoisting the resident. It was held that the manual handling training the Claimant received, in conjunction with the need to carry out a dynamic risk assessment, was suitable and sufficient. The absence of a specific risk assessment for the task of hoisting residents was not causative to the Claimant’s injury and would have made no difference at all. The Judge accepted the Defendant’s submission that the hoist (and cables) was located in someone’s home so it was unreasonable to expect equipment to be moved and each patient had to be hoisted in their own room/home. There had to be slack in the cables to allow beds to be mobile. The Judge held that the hoist was impeded by a cable and although the Claimant suffered an unfortunate injury, the Defendant had ensured the Claimant was reasonably safe at work and the claim was dismissed. Within the Judgment, the Judge made reference to the findings made in EM v Dorset County Council [2017].

Comment

This was an excellent result for the Defendant Local Authority. With damages having been agreed at £32,500 and the Claimant’s costs budgeted at £62,421, the Local Authority made a saving in excess of £90,000. The Claimant’s claim was almost entirely on all fours with a previous case that we handled for the same Local Authority. We believe that having the Judgment available for the Court - which presented its own risk of alerting the Court to the previous incident - went a long way to successfully defending the Claimant’s claim.

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