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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kerr v. North Ayrshire Council [2002] ScotCS 13 (16th January, 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/13.html Cite as: [2002] ScotCS 13

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Kerr v. North Ayrshire Council [2002] ScotCS 13 (16th January, 2002)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LADY SMITH in the cause HELEN MULLEN KERR Pursuer; against NORTH AYRSHIRE COUNCIL Defenders:   ________________

Pursuer : Halley ; Digby Brown S.S.C.

Defenders: Marney ; Biggart Baillie

16 January 2002

1. The pursuer is a caretaker. She is employed by the defenders at the Walker Memorial Hall at Main Street, Kilbirnie. She has been so employed since 4 January 1989. Her duties have always included the setting out of tables and chairs for the various functions that take place in the hall.
2. The pursuer alleges that she suffered a back injury in the course of her employment on 13 December 1997. She has raised an action against the defenders on the grounds of an unsafe system of work and breach of the Manual Handling Operations Regulations 1992 ['the 1992 Regulations'].
3. At a proof before answer, evidence was given by the pursuer [aged 46], her daughter [Sharon Kerr], Professor Gordon Waddell [Consultant Orthopaedic Surgeon], an expert physiotherapist and ergonomist Christopher Hayne, and the pursuer's General Practitioner, Dr Colburn. The defenders led the evidence of their Personnel Manager, Brian Mitchell and a health and safety expert, Selina Woolcott.

The Tables:

4. The tables that the pursuer has been involved in working with have always been folding 'Go-Pak' tables. They are demonstrated at p.10 of the brochure that was referred to in evidence [P7/7]. They are 'Contour 6/24' tables of dimensions 72 inches by 24 inches. Ten of the tables at the hall in December 1997 were newer ones, acquired in 1995. They were slightly lighter in weight. The tables, although all the same dimensions, thus varied in weight with the lightest, newer tables being 25lbs and the older ones being 28 or 30lbs. It was not in dispute that, at the date of the accident alleged by the pursuer, she was moving a table which was about 13 kilos [28-30 lbs].
5. The manufacturer's brochure states, at p.11: "Always store your Contour Tables vertically", and there is a picture of 3 tables stored vertically against a wall. Nowhere in the brochure is there a picture of ' Go-Pak' tables stored horizontally i.e. on their long edges leaning against a wall, nor does the text of the brochure suggest that it would be appropriate to store them in that manner.
6. The tables were stored vertically in a store which is shown in some of the photographs [P6/6 photograph 5 and P7/6 photographs 1 and 2]. The pursuer explained that it was necessary to ensure that a pathway was kept clear through the store as it provided the access to a fire exit for persons entering through double doors from the hall and through a single door opposite. The single door is shown in photographs 1 and 2 of P7/6 with a 'Fire exit' sign above it.

Moving the Tables :

7. The pursuer gave evidence about the method used by her for moving the tables from the store into the hall. She had always used the same method i.e. both between January 1989 and the date of the alleged accident, and since returning to work in May 1998 up to the present time.
8. The pursuer described and, in the witness box, demonstrated, a method which involved her putting her hands at either side of the vertically stored table with her elbows at about waist height, turning the table to the left, whilst it was still upright, through a quarter turn, then pivoting it on its bottom left corner whilst holding it with one hand, lowering it to the floor and then lifting it up with one hand, holding onto it by the long strip running on its underside and carrying it to its destination thereafter. In the course of the quarter turn referred to, the pursuer moved her feet, as she did to carry out the lowering down part of the manoeuvre. At one point in her evidence, the pursuer referred to 'dropping' the table down but it was clear from her evidence as a whole that she meant a lowering movement with her holding onto the table all the time. She also described it as a 'controlled descent'.
9. The pursuer had had no difficulty in moving the tables by using the above method between January 1989 when she started the job and 13 December 1997 nor had she sustained any injuries whilst doing so. No complaints had been made to the defenders about that system of moving the tables nor had any accidents involving that system occurred prior to the accident alleged by the pursuer. The pursuer has not had any difficulties nor injuries in moving the tables using the above method since returning to work in May 1998 although she is more cautious, tries to be very careful and takes her time.

The events of 13 December 1997:

10. On Saturday 13 December 1997, the pursuer went to work as the hall was booked for a coffee morning. Her duties included setting up tables and chairs in the hall. In examination in chief the pursuer explained that she got a pain in her back when, having begun lifting the first table in the usual manner, she was in the process of setting it down on its long side prior to lifting it and carrying it out of the store into the hall. It was quite a sharp pain that took her breath away. She carried on with her duties, including setting out the remainder of the tables and then went home. She told her husband that she had hurt her back. Her back remained painful, she did not go into work on the Monday and she went to visit her General Practitioner on Tuesday 16 December 1997. She was signed off work and remained off work until May 1998, on account of back pain. The pain had only begun to improve in March 1998, when she had started seeing a physiotherapist and then an osteopath.
11. In cross examination the pursuer agreed that she had not written down a formal accident report and gave two reasons for not having done so. One was that the accident book was meant for members of the public, not for staff, and the other was that she 'didn't think of it as an accident on the day.' She agreed that when lifting and manoeuvring the tables she had the space of the double doors available, as is evident from the photographs and also that when manoeuvring a table its weight was always supported by the floor in that there was one corner on the floor all the time. She confirmed that she felt the pain in her back as she was in the process of lowering the table down into a horizontal position prior to lifting it and carrying it. She did not specify how far down she had lowered the table at the time she felt the pain.
12. The pursuer's daughter said that she was not at home during the day on 13 December and when she did get home her mother was in bed. Her father had told her that the pursuer had hurt her back at work. The pursuer's husband did not give evidence.
13. Professor Gordon Waddell examined the pursuer on 13 November 2000 when he took a history from her to the effect that she lifted a table, twisted round and bent over to lay it down when she felt a pain in her back. He said that that mechanism was consistent with the injury described, the clinical progress and what he found on examination. He said that low back strain of the type suffered by the pursuer could be caused by a combination of flexing, bending and twisting whilst under load. However, he also explained that, in his experience, back injury could be caused by lifting a load of only a few pounds. He had seen, in practice, patients with back injuries from lifting where very little weight or bending was involved. The highest risk of injury did, though, arise where there was a combination of bending and twisting whilst supporting a load. Further, back pain of the type suffered by the pursuer could occur spontaneously.

Avoidance of manual handling and training in manual handling

14. No witness suggested that manual handling of the tables could be avoided altogether. Mr Hayne suggested that trolleys of some sort could be used but he accepted that there would still have to be lifting on and off the trolley and also that the dimensions of the cupboard might have meant that no suitable trolley could have been taken into it.
15. As regards training, the pursuer had received no specific training in the method she should adopt when manoeuvring and lifting the Go-Pak tables. The defenders' Personnel Manager, Bernard Mitchell explained that when the 1992 Regulations came into force, he set up courses to train supervisors in risk assessment. He also involved the Management Services Group within the council. They assisted in identifying the jobs which involved significant manual handling risks. Whilst he gave evidence that the table moving task being performed by the pursuer was not considered to involve a significant risk of injury, he was not, it seemed, suggesting that the task had been specifically assessed at any time. The Go-Pak tables had been considered in general and the movement of them was not considered to be a risk. However, the way in which the pursuer was moving the tables not having been reported to him as a task which involved risk, nothing was done regarding it. He seemed to draw further comfort from the fact that, in his experience, hall caretakers in general knew what they were doing in the matter of manual handling tasks. It did seem, from one part of his evidence, that had he known of the precise way in which the pursuer was manoeuvring the tables he would have suggested to her that she do it a slightly different way i.e. avoiding lowering the table completely to the ground before lifting it to carry it away but that method was not one which was recommended by either of the experts who gave evidence. Mr Mitchell had had experience of using Go-Pak tables himself, when running training courses. He had never had any problems in handling them.
16. The pursuer confirmed that she had received no training in how to move the tables nor had anyone at any time told her that she was moving them wrongly.
17. Mr Hayne had prepared a report [P6/3] prior to giving evidence. His report was based partly on information gained from the pursuer over the telephone and partly on information supplied to him by her agents. He did not meet with the pursuer nor did he examine the locus or inspect the tables. In particular, he had not himself tried to lift a Go-Pak table. The limitations of a telephone conversation as a means of explaining something best explained by physical demonstration may be responsible for the fact that Mr Hayne had misunderstood to a significant extent the nature of the manoeuvre being performed by the pursuer when she was moving the tables. As is evident from the drawing in his report, he was under the impression that she had lifted the table off the ground and turned it in the air so as to rotate the top left corner in an arc in such a way that it landed on the ground before the bottom left corner did so, an obviously more strenuous movement than that which was actually performed by the pursuer. In examination in chief, his evidence was to the effect that there was a risk of injury involved because of the dimensions of the table, the location of their storage[including the fact that they were stored vertically rather than horizontally] and the manner in which the pursuer was moving the tables. He said that the pursuer should have had training but at no time did he specify what that training would have included or how it would have been different from the way in which, in fact, the pursuer was moving the tables. Whilst he indicated, in cross examination, that training was about understanding how the body functions as well as being instructed in the right way to do the job, he gave no indication of what, in this case, the pursuer would have been told that would have resulted in her doing the job any differently. He also said that there should have been a second person to assist. He did not, however, indicate what part or parts of the manoeuvring he envisaged that second person being involved in. In particular, he did not specifically suggest that the second person would have assisted in the lowering manoeuvre at all. Indeed, his description of what would have been done by two people seemed to apply only to the job of carrying the table in a horizontal position.
18. In cross examination, Mr Hayne accepted that provided the table was held at elbow height and not at a stretch from the body, then lifting it would be well within the guidelines for the 1992 Regulations issued by the Health and Safety Executive. He also indicated that if one corner of the table was resting on the floor then the load would be reduced by half. On looking at the photographs of the store, he accepted that what he saw was sufficient room to manoeuvre and that if the tables had been laid horizontally, it appeared that there would be a risk of blocking the fire exit.
19. Miss Selina Woolcott, the defenders' expert witness, is Health and Safety Manager for South Ayrshire Council. She was an impressive witness who had given careful consideration to the pursuer's case, developing her opinions on the correct factual basis, unlike Mr Hayne. The pursuer's counsel submitted that I should reject her evidence because she had, on a previous occasion [Hillhouse v South Ayrshire Council - unreported: Lord Philip - 29 September 2000] given evidence in support of a case that the lifting of Go-Pak tables did not involve risk. The submission seemed to be to the effect that the consistency of her evidence in support of two councils who were linked was destructive of her objectivity. On the contrary, I found her to be an objective witness and did not get the impression that the fact that she was employed by a neighbouring council affected the view that she had taken in this case. She was familiar with Go-Pak tables. They are designed to be lightweight , portable and easy to store. She had herself moved Go-Pak tables, had never found them to be unwieldy and she was of similar stature to the pursuer. She had looked at all the relevant factors in terms of the task, the load and the environment in which the pursuer was working and, so far as she was aware, there were no special features to account for in the pursuer's case [such as a medical condition]. She was in no doubt that the circumstances of the pursuer's table moving task were not such as to call for a risk assessment under the 1992 Regulations. She could not see that there was a foreseeable possibility of injury. Whilst some criticism was made of the fact that Miss Woolcott, at part of her evidence, spoke in terms of there being no significant risk of injury, I was satisfied that when asked to address her mind to the specific question of whether there was a foreseeable possibility of injury she did so and was quite clear that that question fell to be answered in the negative.
20. Miss Woolcott was in no doubt that the provision of a second person was not only not called for but could well have been a disadvantage in that lack of
    co-ordination could give rise to risk of injury. As regards the other precautions involved in the pursuer's case, the use of a trolley would not, she said, have eliminated all lifting from the task, horizontal storage would have been contrary to the manufacturer's instructions and would not have obviously altered any risk involved, and training would not have lowered the risk. Indeed, training would, she said, have been superfluous as the risk to the pursuer was already at its lowest level given that she was moving lightweight tables in sufficient space and with no physical condition limiting her.

Pursuer's submissions

21. At the close of evidence, counsel for the pursuer intimated that the only cases of fault relied on were those to the effect that the pursuer should have received training and that the tables should have been stored on their long edges, horizontally. He accepted that if the pursuer's case under reference to the 1992 Regulations did not succeed then the common law case would fail also.
22. As regards the application of the 1992 Regulations, counsel for the pursuer submitted that injury to the pursuer was clearly a foreseeable possibility. The defenders should, accordingly, have made a risk assessment. Relying on the evidence of Mr Hayne counsel for the pursuer submitted that she should then have received training and the tables should have been stored horizontally. Stress was laid by counsel on the part of his case that was based on lack of training rather than that based on horizontal storage of the tables. He accepted that at no point did Mr Hayne say in evidence what training the pursuer should have received but it was obvious, he submitted, that she would have been trained in 'good manual handling practice'. Horizontal storage would, he said, have reduced the risk of injury. It was not clear from the evidence that such storage would have blocked the fire exit and the reason for the manufacturer's recommendation to store the tables vertically was not given in the booklet.
23. Counsel for the pursuer also submitted, under reference to Skinner v Aberdeen City Council - unreported 11 May 2001, Lady Paton, that since there was a breach of Regulation 4[1][b][ i] and [ii], the onus was on the defenders to show that the method actually adopted by them was one which happened in any event to reduce the risk of injury to its lowest possible level and the defenders had not discharged that onus.

Defenders' submissions

24. Counsel for the defenders submitted [a] that there was such doubt, on the evidence, as to the circumstances of the accident that the pursuer's uncorroborated account of what occurred on 13 December 1997, should not be accepted; [b] in any event, she had not proved that the task being performed involved a risk of injury for the purposes of the 1992 Regulations; [c] that even if the task did involve such a risk of injury the defenders had discharged the onus of showing that the risk of injury was in fact at its lowest level; and [d] even if some training should have been given, there was no evidence to show what practical difference it would have made.
25. In support of his submission that the pursuer's uncorroborated account of events should not be accepted counsel for the defenders relied on there being no contemporaneous account from any other witness, no account of an accident having been given to the General Practitioner on Tuesday 16 December 1997, no formal report of an accident having been made, that the pursuer did not think of it as an accident at the time, that Mr Hayne seemed to have been a completely different account that, to an extent, the account given to Mr Waddell was different from that in the witness box and that in the pleadings, the pursuer relies on having carried out a bending and twisting manoeuvre at the time of the accident whereas in evidence, her account and demonstration did not involve twisting at all. Further, whilst, in her pleadings, the pursuer specified that it was as the table neared the ground that she had felt pain in her back , she did not give evidence to that effect. Rather her evidence was simply that she got the pain in her back whilst she was lowering the table. No effort had been made by the pursuer to explain these conflicting accounts. Also, she admitted, in evidence, that her demonstration of the bending required was exaggerated for the purposes of demonstration. In all the circumstances it could, he submitted, be said that she had proved, on a balance of probabilities what actually happened on the morning of 13 December 1997, when she was at work.
26. Regarding Regulation 4[1] [a] and [b] of the 1992 Regulations, counsel for the defenders submitted that the pursuer had failed to prove that the task involved a risk of injury in terms of the relevant provisions. He submitted that little weight should be given to Mr Hayne's evidence given that his report was simply a 'desk-top' exercise, he had not visited the hall, he had not met with the pursuer prior to preparing it, he had never lifted a Go-Pak table himself and he had not watched the pursuer demonstrate the manoeuvre that she had actually carried out. He submitted that Mr Hayne had laboured under a number of material misunderstandings in that he had not appreciated the space that was in the store [he had conceded that there was enough space assuming that the photographs were accurate], he had assumed that the pursuer carried the tables by placing her arm right around the lower edge and was unaware that there was a strip on the table which could be used to grip hold of it, he had thought that in the first part of the table manoeuvring operation the pursuer had her arms at full stretch, he had thought that she moved the table around through 180° and that she then moved it as shown in the diagram in his report, he had thought that she moved the table from vertical to horizontal without it touching the floor, and he had thought that she used a twisting movement which involved both arms on the table with one at either edge. Further, he was patently favourable to the pursuer's case rather than objective, reluctant to make concessions and keen to advance propositions which the pursuer was not now pursuing, namely the cases to the effect that there should have been a trolley provided and a second person to assist. Rather, the evidence of Miss Selina Woolcott should be accepted. She did not see that the circumstances of the task called for a risk assessment. He also relied on Mr Mitchell's opinion to the effect a risk assessment was not called for because the Go-Pak tables were lightweight and portable, designed to be moved by one person by hand and with, so far as the council was concerned, a trouble free history of use, as being a legitimate view to hold.

27. Counsel for the defenders founded on certain observations made by Lord Eassie in the case of Logan v Strathclyde Fire Board January 12 1999 unreported:

" ... I am not satisfied that a breach of the duty to make an assessment in itself gives rise to liability in damages. On can understand the legislative intention that employers should endeavour to formalise their approach to employees' safety by carrying out assessments. A failure to carry out that statutory duty may be of evidential significance in deciding whether the employer has fulfilled the substantive duties in relation to working systems imposed by, for example, sub-paragraph [ii] of the Regulations [reduction of risk]. However, if an employer shows that he has in fact done all that could be required of him by reduction of risk to the lowest level reasonably practicable it seems to me immaterial that he may have achieved that result without having gone through the formal stage of carrying out an assessment. It appears to me that generally it is the failure to fulfil the substantive duty of taking proper precautions to reduce the risk of injury which will give rise to liability rather than the procedural obligation to carry out an assessment.".

These observations were adopted by Lady Paton in the case of Skinner v Aberdeen City Council and I was urged to do the same. I would have no difficulty in doing so.

28. Counsel for the defenders submitted that, in any event, even if a risk assessment was called for, the carrying out of such an assessment would not have resulted in the job being done any differently. So far as the question of training was concerned, it could not, on the evidence, be concluded that training would have resulted in the job being done any differently. So far as horizontal storage was concerned, he relied on Miss Woolcott's evidence which was to the effect that it would have made no difference to the risks involved, to the fact that such storage would have resulted in obstruction of the fire exit, to the fact that the manufacturer's booklet stated that the tables should be stored vertically and to the risk, if stored horizontally, that the tables would be prone to slippage, as referred to Mr Mitchell in his evidence.

Whether an accident occurred and what it involved

29. I accept that the pursuer experienced back pain in the course of moving a Go-Pak table at work on the morning of 13 December 1997. Whilst criticisms were quite properly and fairly made by the defenders' counsel of inconsistencies in the evidence, I did not consider that they went to the extent of suggesting that I should wholly disbelieve the pursuer and I did not consider her account of back pain having occurred in the course of her moving a table to be lacking in credibility. The inconsistencies and gaps in the evidence are of some significance though and the effect of them is that I am left in doubt as to the precise point of the manoeuvre at which the pursuer experienced back pain. I could not, for instance, conclude that it occurred as the table 'neared the ground' [Closed Record p. 6E] as the pursuer's account was as consistent with it having occurred when she was beginning the lowering part of the manoeuvre.
30. I accept that the pursuer was involved in manoeuvring a Go-Pak table of about 13 kilos in weight and of dimensions 6 feet by 2 feet in a manner that involved her grasping a vertically stored table with her arms at about waist height, turning it through a quarter turn whilst moving her feet and then lowering it, pivoting it all the time on its bottom left corner, her feet having moved again. I could not see from her description or from her demonstration that the way in which she manoeuvred the table involved twisting albeit that some bending was required. The bending did not, however, require to be substantial as the pursuer could touch the edge of the table whilst it was on its horizontal side on the ground and used the long strip just below the top edge to lift and carry it. Miss Woolcott confirmed that, in her experience, which was, of course, of a female of similar stature to the pursuer, little bending was involved in lifting and carrying the Go-Pak tables.

Whether any breach of duty

31. The 1992 Regulations came into force on 1 January 1993. They imposed new duties on employers which apply irrespective of the extent of their experience and irrespective of the extent to which their work practices are already settled. That being so, Mr Mitchell's approach, to the extent that it was to the effect that there was nothing that the hall caretakers did not, from experience, already know, has to be regarded as verging on the cavalier.
32. Regulation 4[1][b] of the 1992 Regulations provides:

" Each employer shall -

... [b] where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured -

(i) make suitable and sufficient assessment of all such manual handling operations to be undertaken by them, having regard to the factors which are specified in column 1 of Schedule 1 to these Regulations and considering the questions which are specified in the corresponding entry to column 2 of that Schedule .

(ii) take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operations to the lowest level reasonably practicable ...".

33. Both counsel accepted that, in the circumstances of the task that the pursuer had to perform, it was not reasonably practicable to avoid the need for her to be involved in manual handling of the tables. There was also no dispute that the task was one which was a 'manual handling operation' within the meaning of the 1992 Regulations.
34. Counsel were at issue as to whether the task involved a foreseeable possibility of injury: cf. Anderson v Lothian Health Board 1996 SCLR 1068; Hall v City of Edinburgh 1999 SLT 744. In all the circumstances, I am not satisfied that there was a foreseeable possibility of injury. The tables were designed to be handled manually. They were not heavy. The loading on the pursuer's spine, assuming the tables were lifted off the ground, was within the guidelines set out by the Health and Safety Executive but in fact that load was reduced by half throughout the lifting operation to the point where the pursuer felt pain in her back by reason of the fact that one corner of the table being manoeuvred was on the ground. The operation did not, on the account given by the pursuer, involve twisting and the bending that was involved was not great. She had manoeuvred the tables in the same manner for almost 9 years without incident or injury and the defenders had had no complaints from or concerns expressed by employees regarding the lifting of the Go-Pak tables. Further, the tables were being stored in the manner directed by the manufacturers in their brochure and they were stored in an area where there was adequate room for manoeuvre, close to the hall where they had to be laid out for use. In these circumstances, I have no difficulty in accepting Miss Woolcott's opinion that a risk assessment was not called for in this case. The defenders were not, accordingly, in breach of the duty incumbent upon them in terms of the above Regulation.

The case for training

35. Even if the defenders had been under a duty to carry out a risk assessment in this case, I have reached the view that the pursuer's case that a need for training would have emerged is not established. Since the pursuer did not specify the point at which the pain in her back occurred, it is impossible to identify what part of the manoeuvre, if any, she might, in theory, have been trained to do differently. I cannot accept that it is open to me simply to conclude, as I was invited to do, that she would have received 'training in good manual handling practice' and that that would have reduced the risk of foreseeable possibility of injury to the pursuer. I consider that the defenders' counsel was well founded in his submission to the effect that the pursuer's case based on lack of training failed on causation since she had not established what practical difference training would have made. It is difficult to see how a pursuer could ever establish a case based on lack of training if she does not establish what the training that was absent would in fact have been and how it would have made a difference to the manner in which the manual handling operation would have been carried out at the time of the accident.

The case for horizontal storage

36. This was a difficult case for the pursuer, given the specific directions in the manufacturers' brochure, the fact that so to store the tables would have meant the fire exit was obstructed and the evidence from Mr Mitchell that the tables would in fact have been liable to slippage if stored on their long sides. The brochure is quite explicit on the manner of storage. Although the dimensions of the store were not given in evidence, the pursuer herself explained that the tables had to be stored vertically so as to keep the route to the fire exit clear. Further, I accept the evidence of Mr Mitchell that the tables would have been more liable to slippage if stored on their long sides, as a matter of simple mechanics. Miss Woolcott did not support the idea that horizontal storage would have been better. Mr Hayne favoured horizontal storage but his view that it would have been preferable was clearly influenced by his misunderstanding that the pursuer had had to manoeuvre the table as in his diagram.
37. It would also have to be borne in mind that an employer is only obliged in terms of Regulation 4[1][b] ii, to take 'appropriate' steps to reduce the risk of injury. I cannot see that it would have been appropriate, in this case, to alter the means of storage of the tables in such a way that they subsequently obstructed the access to a fire exit and were stored in a manner that contradicted the manufacturers' instructions. Nor would it have been appropriate to store them in a manner which involved a risk of slippage, thus presenting the pursuer with a different and possibly more difficult task when having to move them.
38. Thus, even if the defenders had, in this case, had a duty to carry out a risk assessment, I am not satisfied that proceeding to store the tables horizontally was a step that they should have taken in an effort to reduce risk.

Quantum of damages

39. The parties were agreed as to quantum in the event that I found in favour of the pursuer, all as set out in the Joint Minute no. 17 of Process in which it is agreed that in the event that the pursuer is found entitled to an award of damages, the whole quantification of loss shall amount to £6,500.

Conclusion

40. In the result, I shall sustain pleas in law 2, 3 and 4 for the defenders and repel pleas in law 1 and 2 for the pursuer and assoilzie the defenders.