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A judge was entitled to conclude that had a general risk assessment been carried out by the employer of a pharmacist who suffered pericapsulitis, a work-related condition that affected his left shoulder, elements of risk may have been established, but that those risks would not have been significant.

Appeal by the claimant ('S') from the decision of HH Judge Barratt at Brighton County Court on 12 March 2002, dismissing S's claim for damages for personal injuries said to have been caused during his employment with the defendant ('Boots'). S was employed as a pharmacist at Boots's Bullwell branch. He suffered pericapsulitis, a work-related condition that affected his left shoulder and required surgery. He alleged a breach of reg.4 Manual Handling (Operations) Regulations 1992 SI 1992/2793 and common law negligence. S's claim was that he developed his condition as a result of the repetitive nature of his duties at the prescription counter, namely checking prescriptions and placing stock bottles repeatedly in a tray above his head by raising his left arm, all of which was undertaken in a cramped and confined environment. At the trial the judge had the benefit of a report from a jointly instructed ergonomist ('R') who concluded that the action of raising the left arm to a height slightly above the shoulder level presented an increased risk of injury. However, it was R's opinion that it did not seem reasonable to have expected an employer to have considered that there was a risk of injury from the activity carried out by S. R noted that Boots had not undertaken general risks assessments pursuant to the Management of Health and Safety at Work Regulations 1999 SI 1999/3242, and that had a suitable and sufficient general risk assessment been conducted, then a number of hazards should have been identified that together would have presented a foreseeable though not significant risk for the worker. The judge accepted R's evidence and dismissed S's claim. On this appeal S argued that the judge was wrong, having cited R's conclusions, to have effectively ignored the fact that R had effectively stated that there were breaches of the 1999 Regulations in failing to carry out a risk assessment.

HELD: (1) The judge took the view that any failure to comply with the 1999 Regulations was irrelevant since nobody would have concluded that it was likely that the sort of shoulder condition complained of was a result of lifting in the circumstances of this case. (2) The judge's conclusions were understood that an assessment might have established elements of risk, but they were not risks that required steps to be taken to counter them. That finding was consistent with R's conclusion that any risks that an assessment might have shown would not have been significant. (3) The judge's conclusion that any foreseeable risks were not significant was a conclusion open to him so to find.

Appeal dismissed.

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