Katherine Dryden v Monarch Airlines Limited, 8 September 2006, County Court
Katherine Dryden was employed by Monarch Airlines as a cabin crew member. She had worked for the company for about six years and reached level number two (the second most senior) by the time of the accident. On 13 August 2000, Dryden alleged she sustained injuries to her neck and back when pulling shut the rear door of a Boeing 757, as the door was unusually stiff.
Proceedings were brought against Monarch Airlines pleading allegations under the Manual Handling Operations Regulations 1992, and the Provision and Use of Work Equipment Regulations 1998. The allegations concerned failures to reduce the risk of injury to the lowest possible level, to carry out a sufficient risk assessment of the task, and to provide adequate training and suitable work equipment.
It was also alleged that Monarch Airlines was negligent in exposing a person of the claimant’s physical stature (five foot three inches tall) to a foreseeable risk of injury, and that in asking the claimant to effectively carry out a risk assessment of the door when she came to close it, Monarch Airlines was seeking to delegate its non-delegable duty of care as her employer.
The judge found in favour of the airline. As a result of witness evidence given at the trial, the judge accepted that employees could reasonably expect to be confronted by a stiff door. This therefore begged the question of what the airline advised its employees to do in such circumstances. Had it adequately addressed this risk?
Monarch Airlines confirmed that no instruction was given to cabin crew not to exert more force than normal when closing the door, and admitted that it was left up to individuals to make an assessment of whether or not they could complete the task. However, cabin crew were instructed both verbally in training and in a written manual that they should ‘seek assistance if necessary’. The claimant argued that this was a delegation of the airline’s duty of care as an employer.
The judge then questioned whether a more detailed risk assessment or instruction would have made any material difference to what happened, and concluded that it would not. The judge bore in mind that the claimant was experienced, having closed this door on numerous occasions without incident, and that a risk assessment would merely have stated the obvious – namely that if the door is unusually stiff, this would give rise to a greater risk of strain injury.
The judge concluded that there was nothing wrong in asking Dryden to carry out an on-the-spot risk assessment because, at the end of the day, nobody else could have made such an assessment at the time in question.
The other issue of note was the claimant’s allegation that a person of her physical stature should not have been requested to carry out the task of closing this door. The very low incidence of accidents in this situation, as well as the fact that Monarch Airlines’ height requirement for cabin crew was one inch taller than many other airlines, meant that the claimant failed on this point, too.
The lack of a risk assessment may not be fatal to the defence of a claim, providing that it can be shown that an assessment would have made no difference to the outcome.
Employees, particularly those who are experienced, can be asked to carry out on-the-spot risk assessments in appropriate circumstances. It is often the case that staff work away from their employer and, in such situations, the employer should be able to rely on their employee to a certain extent to use their common sense in carrying out their job safely. This should be taken against a background of excellent training which, in the present case, had been given.
By Fiona Hahlo, solicitor, Reynolds Porter Chamberlain