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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Easson v Dundee Teaching Hospitals National Health Service Trust [1999] ScotCS 289 (3 December 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/289.html Cite as: [1999] ScotCS 289

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This is an action of damages for personal injuries brought under the optional procedure provided for in Part V of Chapter 43 of the Rules of Court (Rules 43.18 to 43.28). On special cause shown the case was appointed to the procedure roll in respect of the defenders' first plea-in-law, which is a plea to the relevancy and specification of the pursuer's averments.

As the pursuer's pleadings now stand, after amendment on more than one occasion, the case is based exclusively on alleged breaches of regulation 4(1)(a) and (b) of the Manual Handling Operations Regulations 1992 ("the Regulations").

The pursuer's averments of fact may be summarised as follows. She was on 11 September 1995 working in the course of her employment with the defenders in the main laundry at Ninewells Hospital. She was working at a calendar machine which pressed sheets. The sheets, once pressed, were stacked in batches of ten. Two such batches were then placed in a cloth bag and the bag was closed with a flap and drawstring. Each bag, when full, weighed 17 or 18 kilograms. The bag had two fabric handles which were about 15 to 20 millimetres wide. The full bag was placed in a barrow, suspended from the top of the barrow. A second bag was placed on top of the first. The filled bags were not rigid. While in the barrow the bag was below waist height. The barrow was then wheeled to a storage area, where the bags had to be unloaded from the barrow and placed in stacks on the floor. The bags had to be lifted by the handles, and raised up from below waist level. As the pursuer was lifting a bag, using both hands to grip its handles, the bag slipped from her left hand, causing its whole weight to be thrown onto her right hand, arm and shoulder. She experienced immediate pain in her right shoulder and neck.

In the course of making brief averments of breach on the part of the defenders of their duties under regulation 4(1) of the Regulations, the pursuer avers that:

Mr E. G. Mackenzie, who appeared for the defenders, moved me to sustain the defenders' first plea-in-law and dismiss the action. By way of preamble to the points of criticism which he proposed to direct against the adequacy of the specification of the pursuer's pleadings, he submitted that the pursuer in order to succeed required to prove, and therefore in order to make a relevant case required to aver, (1) that she sustained injury in the course of carrying out a manual handling operation within the meaning of the Regulations, and (2) that the manual handling operation in question was one which involved a risk of injury, in the sense that injury was a foreseeable possibility. In support of that proposition, which Miss Paterson for the pursuer did not dispute, Mr Mackenzie cited Anderson v Lothian Health Board 1996 SCLR 1068 at 1070A-C, Cullen v North Lanarkshire Council 1998 SC 451 at 455G, and Hall v City of Edinburgh Council 1999 SLT 744 at 747B-D.

Mr Mackenzie's first criticism of the specification of the pursuer's pleadings related to the identification of the manual handling operation in question. In her averments of fact in article 3 of the condescendence she said that she was injured when lifting a bag of sheets from the barrow in the storage area, whereas in article 4 the averment was that the "work of loading and unloading the calendar machine" was a manual handling operation. Counsel submitted that the summons contained specific averments about what was involved in loading and unloading the calendar machine, but that the unloading of the bag from the barrow in the storage room was a separate operation. The pursuer made no averment that that latter operation was a manual handling operation within the meaning of the regulations.

Miss Paterson submitted that the manual handling operation in question involved getting the sheets from the calendar machine to the storage area. It began with the loading and unloading of the machine, and continued through the packing of the sheets into the bags, the loading of the bags onto the barrow, and the wheeling of the barrow to the storage area, to the unloading and stacking of the bags there. It was that operation that was averred in article 4 to be a manual handling operation, as was clear from the reference there to "lifting, carrying and putting down bags", and it was clear from article 3 that the pursuer's averment was of injury sustained in the course of that operation. It was too analytical to examine each element of the job separately as if each were a separate operation.

I have some reservations about whether it is always appropriate to lump together, in the way Miss Paterson sought to do, several successive elements of a job in asking whether what was being undertaken was a manual handling operation. I do not, however, require to reach a concluded view on that for the purposes of the present case. There is, in my view, no substance in Mr Mackenzie's complaint about a discrepancy between the averments about what the pursuer was doing when she was injured, and the averments about what constituted a manual handling operation. It is in my view clear that the pursuer's allegation is that she injured herself while lifting a bag of sheets off the barrow in the storage room. She can only succeed with a case under regulation 4 if that was, or was part of, a manual handling operation. Having regard to the definition of "manual handling operation" in regulation 2(1) of the Regulations, which includes "any transporting or supporting of a load (including the lifting ... carrying or moving thereof) by hand or by bodily force", I should have thought that in many cases nothing more than the description of what was being done would be required to make it clear in averment that it was a manual handling operation. Certainly in the present case I do not see how the defenders can be left in any doubt that the pursuer is proceeding on the basis that lifting the bag off the barrow was a manual handling operation. But in any event, if a formal express averment that what was being done was a manual handling operation is required, I am of opinion that Mr Mackenzie was being too strict in his reading of the averment in article 4 when he construed it as not including reference to the operation of unloading the barrow in the storage area. He concentrated on the reference to the "work of unloading the calendar machine", to the exclusion of the immediately following words "involved the pursuer in lifting, carrying and putting down bags containing sheets". Those latter words make it clear in my view that the pursuer is asserting that lifting bags of sheets is a manual handling operation. There is therefore nothing, in my opinion, in this aspect of Mr Mackenzie's submissions which would justify the conclusion that the defenders have not been given fair notice of the pursuer's case, and that the pursuer's pleadings are on that account lacking in specification.

Mr Mackenzie's second ground of criticism of the specification of the pursuer's pleadings related to the risk of injury. In article 4 of the condescendence, the pursuer avers that "The operation involved a risk of the pursuer being injured", but Mr Mackenzie submitted that such an averment was not by itself enough. What was required were clear averments identifying and giving fair notice of the elements of the circumstances wherein lay the risk of injury. Here the pursuer averred that the handle of the bag slipped from her hand, but she gave no indication of what caused that to happen. The injury which she suffered thus happened for a reason which was unexplained in averment. The factors to which regard might potentially be had in assessing whether there was a risk of injury could be taken to be, or include, those mentioned in Schedule 1 to the Regulations in the context of assessment under Regulation 4(1)(b)(i) (c.f. Annex I to the Manual Handling Directive (90/269/EEC)). But it was for the pursuer to identify the relevant factors in averment. Mr Mackenzie founded on Taylor v City of Glasgow Council (Temporary Judge T. G. Coutts QC, 3 August 1999, unreported) in which the following view was expressed:

In the present case, the pursuer had not given proper notice of the circumstances that gave rise to the risk of injury. She averred merely (i) that the bag weighed 17 or 18 kilos, (ii) that it had two fabric handles 15-20 mm wide, (iii) that a filled bag was not rigid, (iv) that when on the barrow the bag was below waist level, (v) that the bag had to be lifted from below waist level by the handles, and (vi) that the bag slipped from her hand. These circumstances were insufficient to disclose a risk of injury.

Miss Paterson accepted that a bare averment that there was a risk of injury would not be enough, but submitted that the pursuer was entitled to invite the court to consider the factors mentioned in Schedule 1 to the Regulations. The factual averments which she made contained reference to matters that came within the scope of the Schedule, e.g. the weight of the bag, the nature of its handles and its lack of rigidity (which bore on its awkwardness as a load), the position from which (below waist level) and manner in which (by a two-handed lift, holding the handles) it required to be lifted. The pursuer was entitled to lead evidence that in these circumstances there was a foreseeable risk of injury. Taylor was a decision on its own facts, and did not support the conclusion that inadequate specification had been given in the present case. The defenders had been given adequate notice of the factors on which the pursuer relied in maintaining that there was a foreseeable possibility that she would be injured while lifting the full laundry bag. Moreover, they would before the proof took place have further notice in the form of the report of any expert witness for the pursuer, which would have to be made available under Rule 43.27.

I am in broad agreement with the approach to averments of risk of injury outlined by Temporary Judge Coutts in Taylor. It is, in my opinion, for a pursuer seeking to rely on regulation 4(1) to aver and in due course prove that the activity which resulted in injury was not only a manual handling operation, but one which involved a risk of his or her being injured. A bare assertion to that effect may well not afford adequate specification. Whether an operation involves risk of injury is a matter of circumstance, and it is therefore for the pursuer (except, perhaps, where the risk is obvious) to aver the circumstances on which reliance is to be placed in inviting the court to hold that such a risk was present. If, on the face of the pursuer's averments, there is no material which, if established in evidence, could support the conclusion that there was a risk of injury, the pursuer has failed to aver a relevant case. If the pursuer makes averments about certain circumstances, but it is unclear how these support the conclusion that there was a risk of injury, those averments may be held to fail to give the defenders fair notice of the case which they must meet, and may therefore be held to be lacking in specification.

In so far as Miss Paterson appeared at one stage of her submissions to suggest that the pursuer could, in evidence, seek to place reliance on any of the factors mentioned in Schedule 1 to the Regulations, she was in my view going too far. The factors mentioned in the Schedule, although mentioned there as factors to be considered in an assessment under regulation 4(1)(b)(i), are in my view considerations which may well be relevant to a determination of whether the manual handling operation involves a risk of injury. But it is in my view incumbent on the pursuer to identify in averment such factors as are founded upon in the particular case. Miss Paterson, as I understood her, disavowed any intention on the pursuer's part of relying on the pursuer's loss of grip on the handle of the bag as a factor supporting the risk of injury. The averment of loss of grip was presented simply as narrative of how the accident happened. On that basis, it seems to me that the pursuer's case in her pleadings is that because of the combination of the weight of the bag, its awkwardness in its lack of rigidity and the way in which it had to be lifted by the fabric handles, and the position from which it had to be lifted from below waist level by means of a two-handed lift, the operation was one which entailed a foreseeable possibility of injury. I do not consider that I could hold at this stage that the pursuer is bound to fail to establish on the strength of these factors that such a risk was present. I cannot therefore hold that the pursuer has failed relevantly to aver circumstances from which it might be inferred that she was engaged in a manual handling operation which involved a risk of her being injured. Nor, in my view, can I hold that the pursuer's averments do not give the defenders fair notice of the basis on which the pursuer contends that there was such a risk. If the pursuer were to attempt in evidence to rely on factors not properly identified in her pleadings, the defenders' remedy would be to object to the admission of such evidence. I do not consider, however, that it can be said that the averments which the pursuer makes are so lacking in clarity that the proper course is to refuse to allow the case to proceed to proof before answer.

I am therefore of opinion that the proper course is to allow a proof before answer.

I have reached that conclusion without allowing the pursuer any additional latitude on account of the fact that the case is brought under the optional procedure. I should add, however, that Mr Mackenzie made submissions about the proper approach to pleadings in cases brought under that procedure. He submitted under reference to McFarnon v British Coal Corporation 1988 SLT 242 and Dunbar v British Coal Corporation 1988 SLT 437, that the optional procedure did not wholly elide the need for fair notice. I accept that submission. He also felt it proper to refer to two cases which indicated that the proper course for a party to an optional procedure case to take if the other party did not plead his case with sufficient specification was to seek an order for further specification under Rule 43.24(5)(c) when the case called on the diet roll, and that if that opportunity was not taken, that party was to be taken to be content with the degree of specification given, and that arguments about specification would not normally be entertained on the procedure roll in optional procedure cases (Prest v Seaforth Maritime Ltd 1988 SLT 745 per Lord Weir at 747C, and Noble v National Coal Board 1989 SLT 303 per Lord Caplan at 304L). In the present case the defenders did seek and obtain an order under Rule 43.24(5)(c) for further specification, although it did not focus precisely on the matters of specification now raised. The defenders also made certain calls for further specification in their defences (Answers 3 and 5), but these too did not focus on the second of the two points now taken by Mr Mackenzie. In the event, however, Miss Paterson did not seek to argue that the defenders were precluded from arguing the points of specification which they did. In these circumstances, I have considered it appropriate to deal with the defenders' submissions on their merits. I should not, however, be taken to be departing in principle from the view expressed by Lord Weir in Prest and Lord Caplan in Noble that in an optional procedure case the proper way to deal with a lack of specification in the pursuer's pleadings is for the defender to seek an order under Rule 43.24(5)(c).