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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 116
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PD985/05
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OPINION OF LADY SMITH
in the cause
PAUL MCKNIGHT
Pursuer;
against
CORUS CONSTRUCTION
Defender:
________________
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Pursuer:
M Stuart, Advocate;
Russell Jones & Walker
Defender: Middleton, Advocate; Simpson & Marwick
1 August 2006
Introduction
[1] The
pursuer claims damages in respect of an injury he alleges he sustained at work on
19 June 2002. Damages were agreed at £6,000.
Background facts
[2] I
am satisfied that the following facts emerged from the evidence. The pursuer has been employed at the
defender's steelworks since January 1984.
He presently works as a steel dresser.
As at June 2002, he was regularly involved in changing the
equipment attached to an overhead crane used in an area of the defenders'
manufacturing process. That equipment
was known as a "dog". The dogs are,
effectively, clamps used for the movement of sheet metal in and out of pits
where the metal is heated up to temperatures of about 1250°C. The dogs are slung to an overhead crane. Two sizes of dogs are used. They have an upper and lower part. It is the lower part of the dog which can
differ in size and requires, according to the size of sheet metal to be moved,
to be changed. The dogs are hinged,
rather like scissors and the legs of the dogs fold in and grip the metal when
required. There are two retaining pins
on each dog, one on each side. Each pin
requires to pass through eyelet-like holes in separate
parts of the equipment.
[3] Changing
the dogs requires the removal of the pins.
It is essential, prior to trying to remove the pins, that the holes
through which they pass be properly aligned and also that both vertical and
horizontal strain is taken off. As the
defenders' Mr Sommerville explained, the pin is held in place by the dog's
diameter resting on it so it is necessary to release both the horizontal and
vertical forces prior to trying to remove the pin. There is clearance built into the holes. The pins are smaller than the holes. If there is proper alignment and proper
release of these forces, the pin can be pushed through.
[4] The
dog changing procedure was filmed on 16 June
2006. That film 7/7 of
process was shown in court and it was evident from it that little effort was
required in removing the pins. The tool
used to achieve removal in the film and the tool used at the time of his
alleged accident, according to the pursuer, was a metal bar. It did not, according to the film, appear to
be a difficult exercise.
[5] The
pursuer first became involved in changing the dogs in about October 2000
and continued to do so thereafter. Prior
thereto, the job had been carried out by fitters. The pursuer and his workmates were trained in
the job of changing the dog in about October 2002. The pursuer was issued with a written
description of the job and shown how to do it.
That written description was contained in document 7/1 of process and
included the following:
"CHANGE OVER
FROM DOGS TO DOGS
REMOVAL;
a) Ensure the dogs & spuds are at a safe
temperature to avoid burns.
b) Lower the dogs onto clear area of floor &
have the craneman put them into the fully open position.
c) Ensure that the ropes remain taut.
d) Lower the dogging chain off & remove the
7/8" Hammerlock coupling.
e) Move the O.H.C. over to the dog changing pit
(dogs will automatically close) and lower the dogs into the spare pit -
note; as the dogs hit the pit bottom
ensure that they fully open to wedges located in the pit bottom
f) Insert the spreader bar between the bottom
yoke bar & adjust to take the strain off the pin, then
raise/lower the crane to release the vertical pin strain.
g) Remove the pin lock bolts (these may require
to be burned out).
h) Locate the trolley at the first pin &
knock through using the bar available.
i) Follow item h)
above to remove the second pin."
It was clear from not only the
pursuer's evidence but from that given by the other witnesses who had had
involvement in dog changing, that initially, they had difficulty with the
job. They found that the pins would
stick but I am readily satisfied, on the evidence, that the reason the pins
were sticking was that they were not doing the job properly in respect that
they needed to give more attention to the adjustment of the crane and spreader
bar to achieve proper alignment of the holes and proper release of the
horizontal and vertical strain. Steven
Kelly, for instance, frankly volunteered that in his case, when he had
difficulty in removing the pins, it was inexperience. He sought further training, got further help
regarding to the line the holes up and had had no problems since then.
[6] It
was plain from the pursuer's evidence, that he was well aware of the need to
achieve proper alignment of the holes before trying to remove the pin. He said, "basically,
alignment is critical".
[7] The
pursuer also described what seemed to be a sensible approach namely that once
it seems that alignment has been achieved "you give it a tap. You don't hit it. You don't give it much more than a tap. Once you know its going to come out, it is
relatively easy".
[8] The
pins are very heavy. Witnesses varied in
their estimates but it seems likely that the heavier of the two weighed in the
order of 40kgs and the lighter in the region of 30kgs. Both they and the dogs are often hot when the
changeover process is carrying on.
However, it does not seem that the pins exceed 26ºC or so and the dogs
35°C or so.
The alleged accident
[9] The
pursuer averred, on Record, that he injured himself in an accident at work when
trying to remove a pin from a dog on 19
June 2002. In evidence, he
could not be precise about the date. He
said that he was involved in changing dogs.
He thought that he had lined up the holes. He gave the pin a trial tap. He then went to hit the pin with "more than a
tap". He said that thought it was lined
up but he, did not explain, why he
proceeded to hit the pin hard despite having previously explained that that was
not the thing to do. Regarding how hard
he had hit the pin, he said that on a scale of 1‑10, it was 9. He got a vibration feeling right up the
length of his arm. He had to stop and
shake his arm for 20 or 30 seconds. He
was working with Craig Nicol at the time, who was
waiting to receive the pin on the other side of the dog. He did not report the incident as an accident
at the time because he just thought he had pulled a muscle. He insisted that he "would have" said to his
team leader, Kenneth Wilson, what happened.
The next day it was niggly. It
steadily got worse. The pain went into
his shoulder. He asked for light
duties. He ended up doing Kenneth
Wilson's job in the office having, he said, come to an agreement with him about
a week or slightly over a week later than the incident itself. He went on holiday during the trades
fortnight in the second half of July, found that his shoulder was very sore and
niggly, experienced "absolute agony" on one occasion when he was getting up
from the beach and when he got back from holiday, made an appointment with his
GP by which time he had started having difficulty using the computer in the
office. He was diagnosed as having
suffered a capsulitis of his right shoulder, he was signed off work and
required extensive physiotherapy and progressive mobilisation over a period of
many months. I am satisfied, on the
evidence, that the pursuer suffered a capsulitis of his right shoulder and that
it was an injury that was consistent with him having forcefully hit a dog pin
in the manner he described.
The pursuer's averments
[10] The pursuer's case against the defenders was said, on record,
to be founded on the common law and on Regulation 4(1) and (2) of the Provision
and Use of Work Equipment Regulations 1998.
The averments in support thereof were as follows:
"To remove the
pins the defenders provided its employees, including the pursuer, with two
steel bars ('the bars'). The bars are
used to hit the pins, knocking them out of the dogs. The bars are made of scrap metal. Gloves must be worn as the dogs and pins are
hot. The bars are smooth and difficult to
grip. In the month prior to the date of
the injury the pins became stiff and difficult to remove. The pursuer reported this to his team leader,
Kenny Wilson. The difficulty associated
with removing the pins required workers, including the pursuer, to strike the
pins with greater force. On occasions
this required the use of maximal or near maximal force. At the time of the injury, one of the
pursuer's work colleagues, Craig Nicol, had tried,
unsuccessfully to remove one of the pins.
Craig Nicol had struck the pin twice with maximal or near maximal force. The pursuer then attempted to remove the
pin. The pursuer struck the pin with
maximal or near maximal force:
Upon striking
the pin the pursuer felt a shudder up his right arm and he sustained the
injury. Work colleagues of the pursuer
have felt a similar shuddering when striking the pins. Some have declined to continue with
undertaking this work practice as a consequence. The bars were unsuitable for the purpose of
removing the pins".
Further, the pursuer avers:
"When the
fitters had responsibility for changeovers, the dogs were immersed in a tank of
water or cold compressed air was applied to the pins. This cooled the pins and made them
significantly easier to remove. Further,
the training took place on dogs that were cold.
Following the change in work responsibilities the dogs were no longer
cooled before changeover. The heat makes
the pins more difficult to remove.
Greater force can be required to remove the pins. The difficulty was reported".
There was, however, no evidence
that the bars were difficult to grip. On
the contrary, the pursuer said he found them relatively easy to hold. The pursuer was the only witness who
suggested that in the month prior to the date of the injury the pins became
stiff and difficult to remove. The
weight of the evidence from the other witnesses was not to that effect. Rather, I was satisfied that the clear
picture presented was, as I have indicated, that there were difficulties with
pin removals in the early period immediately after the teams, including the
pursuer, took over the dog changing task from the fitters. However, those were difficulties that were
attributable to their own lack of experience in aligning the holes properly and
seeing to it that the strain was properly taken off the pins. Kenneth Wilson, who I found to be a credible
and reliable witness, had no recollection of the pursuer making any report such
as that averred and, indeed, rather than positively assert that he had done,
the pursuer said that he "would have" done so.
Regarding any difficulties with removal of the pins, the picture
presented, on the evidence, was not of workers having to strike the pins with
greater force to deal with difficulties of removal. On the contrary, as Craig Nicol put it,
"you don't have to hit the pin 'hard' - that would be a waste of
time - you could hit it all day and it wouldn't move."
[11] That was in the context of an explanation that, as the pursuer
himself accepted, what was critical was to see to it that the preparatory work
of alignment had been properly carried out.
Craig Nicol did have some recollection of harder pin hitting and of men,
on occasion, getting a "shudder" up their arms. He had however, great difficulty in recalling
exactly what happened when and I do not consider that his evidence can be
safely interpreted as indicating that that was something that was happening at
the time of the pursuer's alleged accident or in the months leading up to it. The tenor of his evidence was, rather, to the
effect that this was an early, "teething trouble" problem. There was no evidence at all of work
colleagues declining to continue the work practice described and no witness
spoke of the metal bars that were used for pushing the pins through being
unsuitable.
Heat
[12] I have already indicated, there was
evidence that both the dogs and the pins are often hot at the time of the
changeover process. Also, there was
evidence from the pursuer and others to the effect that the job was easier to
do when dogs and pins were cold. The
pursuer thought it was something to do with expansion. However, Mr Pollock, Consultant
Metallurgist, who gave evidence for the defenders, clearly explained that both
the pins and the holes through which
they passed would expand when subjected to heat. The degree of expansion was so similar that
the clearance between the pin and the hole would not alter. Calculations had been carried out on the
basis of an assumption that the pins and holes would have been subjected to
temperatures up to 240°C. However that
if the dogs were in fact at 35°C and the pins at 24 or 26°C, the clearance
between pin and hole would, in effect, be no different from the clearance at
ambient temperature. I accepted his
evidence in its entirety. It was not
challenged. Further, there was evidence,
which I accepted, that, in practice, heat did not cause the pins to stick. Richard Jackson, a workmate of the
pursuer's said that if everything was properly lined up, the pins should come
out, even if they were hot; indeed, they could be pushed out.
Submissions for the pursuer
[13] Mr Stuart submitted that the defenders should be found
liable because the steel bar was not suitable for the purpose for which it was
provided. It gave rise to a foreseeable
risk of injury because the defenders knew that there had been occasions when the
pins had stuck. Reference was made to
Regulation 4(1) and (2) of the Provision and Use of Work Equipment
Regulations 1998. For interpretation of
the regulations, Mr Stuart relied on the case of Moohan v City of Glasgow Council, unreported, 11 March 2003. He submitted that the steel bar was intrinsically
unsuitable for the purpose for which it was provided. It was reasonably foreseeable that it would
affect the health and safety of the employees using it. That was because the pins had been sticking
at the time of the pursuer's injury and for sometime before that. Employees were, as a consequence, hitting the
pin harder and, in some cases, hard.
There was evidence that were occasions on which they thought the pins
were aligned but they still stuck. The
problem was known about by the team leaders.
The employees had been experiencing shuddering up their arms when
striking the pins. Dr Garrett's
evidence showed that there would be acute deceleration if the pin was struck
hard. That would involve a high degree
of risk of injury to the rotator cuff.
[14] Further, Mr Stuart submitted that if a proper risk
assessment had been carried out then the defenders would have discovered that
the pursuer's working conditions posed a risk.
He submitted that a proper risk assessment had not been carried
out. That submission seemed to rest
wholly on the fact that in the risk assessment which the defenders carried out
in respect of the dog changeover job (7/2 of process) no express reference is
made to the Provisions and Use of Work Equipment Regulations 1998.
[15] Regarding the fact of the alleged accident, Mr Stuart
submitted that the core of the pursuer's story was credible and reliable on the
important facts and ought to be accepted.
They were that, on 19 June
2002, he had sustained injury to his right shoulder by striking a
pin the dogs with a steel bar in an attempt to move it.
Submissions for the defenders
[16] Mr Middleton, for the defenders, submitted that the tenor of
the evidence was overwhelmingly in favour of the defenders. The pursuer had failed to prove his case on
record. He had not proved the averments
in support of his case that his working conditions caused him an injury. He had not proved, on a balance of
probabilities that he was involved in any accident at all. Even if he had, he had not proved precise
circumstances of any injuries. The
pursuer's case proceeded on the basis of there being a difficulty in removing
the pins because they were hot. That difficulty
was said to have manifested itself by the pins becoming stuck. The pursuer said that meant that employees
required to use maximal or near maximal force to
remove the pins. That was clearly the
line that had been adopted in evidence.
The pursuer's case had never, in fact, been about the suitability of the
metal bar (assuming that it was used).
Rather, as presented, it was about the efficiency of the dog/pin
relationship. He referred, in respect of
the interpretation of Regulation 4, to Hurley
v William Muir (Bond 9) Limited an
unreported decision of Lord Macfadyen dated 18 January 2000. Also, he referred to Moohan and Fraser v Fife Council, an unreported decision
dated 7 April 2006. He referred to the lack of evidence of any
employee sustaining injuries from using the metal bar on any previous
occasion. Further, he submitted that the
general tenor of the evidence was that problems with pin removal occurred in
the early period that that had been sorted out.
Further, if employees followed the safe system laid down by the defenders
in 7/1 of process, there was no need to use force and, therefore, no reason for
the defenders to foresee that the use of the metal bar would affect their
health or safety.
[17] Regarding the matter of the defender's risk assessment,
Mr Middleton submitted that it was not a requirement that the defenders
expressly refer to the regulations in their written assessment. What mattered was substance not form. Mr Sommerville had compiled evidence 7/1
of process in conjunction with others who knew about work. He had addressed, in that document, various
safety requirements. The risk assessment
was then also compiled by Mr Sommerville so there was a continuity of
approach. The risk assessment produced a
computer generated hazard rating showing that, ultimately, an objective not
subjective view was taken of the rating of risks. Hand tools had produced a low hazard
rating. It was difficult to see what
else the defenders could have done to fulfil the risk assessment requirements. Further, even if the risk assessment was
deficient in some way, if the defenders were not in breach of
Regulation 4(1), no separate liability arose.
[18] Mr Middleton questioned the pursuer's credibility and
reliability. He referred to his
vagueness about the date of the accident, changes in his evidence as between
the first and second day of the proof, conflict between his and Kenneth
Wilson's evidence regarding the reporting of problems with pin removal, to
disparities between the pursuer's case on record and evidence, and to different descriptions of the
accident having been recorded in his medical records. Particular reliance was placed on the fact
that it had not been established in evidence that, at the time of the alleged
injury Craig Nicol had, initially, unsuccessfully tried to remove one of
the pins.
Discussion
[19] Evidence about the pursuer's alleged accident was far from
satisfactory. I have already referred to
the pursuer's failure to explain why he hit the pin with maximal force at
all. He could not remember whether they
were changing a dog or changing back a dog at the relevant time. I noted that, at first, he confined his evidence
to saying the he had hit the pin with "more than a tap" and that it was only on
the second day of the proof, in answer to a leading question, that he said he
had hit the pin "hard". No incident on
19 June 2002 was recorded in any document.
The pursuer could not, in evidence, remember the date of the
incident. He said that
Kenneth Wilson was lying when he said he had not received an accident
report from the pursuer as he had put one in his box by the weekend after the
accident. However, I am satisfied that
it was not until Friday prior to the trades holiday
(i.e half way through July 2002) that the pursuer filled out a hazard
form. I accepted Mr Wilson's
unchallenged evidence that that day, the pursuer had had to go and see the
defenders' Eddie Callaghan and Jan Wilson (of Human Resources) for
some unspecified purpose the result of which was that he was not at all happy
and reacted by filling out a hazard form at that time. It was not until 6 August 2002 that the pursuer went to see the
doctor. It was not until after that,
that he reported his shoulder condition to the defenders' Occupational Health
Department.
[20] Craig Nicol worked with the pursuer then but he had no recollection
of him having any accident at all. The pursuer
did not suggest, in evidence, that events involved Craig Nicol having first
tried to remove the pins, notwithstanding the very specific averments to that
effect. The only support in the evidence
for the pursuer's account came from his wife's hearsay evidence. She indicated that near to the end of
June 2002, her husband told her that he had pulled a muscle in his arm at work, that he had had to "push" a metal pin out of a hole
and had had to use some force to do so.
She said nothing about him using a metal bar and nothing about him
having struck or hit the pin. Further,
the pursuer gave no evidence as to how the pin was, ultimately, removed at the
time of the alleged accident. He did not
explain, for instance, whether, the pin not having moved, he then reverted to
aligning the holes using the crane and/or spreader bar, as might have been
expected. Another unsatisfactory aspect
of the pursuer's case was that the GP records (6/2 of process) record the
pursuer as having hit one pin with another pin, the physiotherapy notes (7/10
of process) record that he hit the pin with "a hammer" and a report within the
GP records (6/2 P.29) records that he hit a heavy metal object with a "mallet". The pursuer was the only possible source of
information for these records.
[21] In these circumstances, I consider that all I can be satisfied
of is that at some date prior to the trades holidays
in July 2002, the pursuer did something to himself that made him feel that he
had pulled a muscle in his shoulder and it developed into a capsulitis. I am not, though, satisfied that he has
proved that he sustained the accident he alleges.
[22] Further, I did not consider that the pursuer had established
that any difficulties with pin removal had arisen in the month prior to the
incident. Firstly, as I have indicated,
the whole tenor of the evidence was that the difficulties with pin removal were
in the early days, at a time when the men were inexperienced in the job, and in
particular, were inexperienced in the task of aligning the holes properly and
seeing to it that the vertical and horizontal strains had been released. There is no question, on the evidence, of
heat having been responsible for pins sticking.
The pursuer could point to nothing that had changed in the month or so
prior to the alleged incident other than some thoughts amongst the men that
"there could be a twist in the frame of the crane", but as he himself added,
they were not experts and, furthermore the pursuer makes no case in this
litigation that there was any problem with the construction of the crane. Also, I consider it significant that despite
the reference in the evidence to difficulties with pins sticking and to men, on
occasion, having felt shuddering up their arms on
hitting stuck pins, there had been no previous injuries.
The Regulations
[23] Although the Provision and Use of Work Equipment Regulations
1998 are referred to in the pleadings, the suitability of the metal bar was not
raised by the pursuer as an issue in the evidence at all. It was not easy to ascertain the exact focus
of his case but, if anything, it seemed to be the effect of heat on the dogs
and the pins. Regulations 4(1) and
(2) provide:
"(1) Every employer shall ensure that work
equipment is so constructed or adapted as to be suitable for the purpose for
which it is used or provided.
(2) In selecting work equipment, every employer
shall have regard to the working conditions and to the risks to health and
safety of persons which exists in the premises or undertaking in which that
work equipment is to be used and any additional risk posed by the use of that
work equipment.
......
(4) In this Regulation 'suitable' -
(a) ..... means suitable in any respect which it is reasonably
foreseeable will affect the health or safety of any person;
It is generally accepted that the
regulations should not be interpreted narrowly lest the purpose of the
underlying directive (the Work Equipment Directive 89/655) be not fully implemented
(English v North Lanarkshire Council 1999 SLR 310, McGhee v Strathclyde Fire
Brigade 2002 SLT 680 and Moohan v
City of Glasgow Council). There was no doubt that the metal bar used in
the pin removal exercise in this case was work equipment. If it was reasonably foreseeable that it would
affect the health or safety of any person, it required to be constructed or
adapted so as to be suitable, in the sense of Regulation 4(4)(a), for the pin removing job, which failing, should not
have been used for that job at all. But,
was it reasonably foreseeable that the use of the metal bar would affect the
health or safety of employees including the pursuer? The clear answer to that question is, in my
view, on the evidence, no. Putting
aside, for one moment, the problems for the pursuer's case of the lack of
evidence of specific difficulties a month or so prior to the incident, all that
was established in evidence was that on occasions pins stuck and that, on some occasions
when that happened, workers had struck them and felt shudders up their
arms. However, if an employee hit rather
than tapped the pin, he would not have been following the safe system of work
set out in 7/1 of process. He would not
have been following the proper practice of working at proper alignment of the
holes and releases of the horizontal and vertical forces. It was plain, on the evidence, that if that
was done, then the pin would come out easily.
As witness Richard Jackson had said in evidence, once the crane and the
spreader bar were adjusted for proper alignment, you gave the pin a light tap
and if it moved, you could actually push it out. It was self evident, it seemed, that if the
pin did not move in those circumstances, a further attempt at exerting force on
it should not be made. Rather, the
employee required to revert to the alignment exercise. In short, I am not satisfied that the
defenders should have foreseen that the men would be exerting force on the pins
at all. Further, even if they should
have done, on the occasions when it happened, the men were not getting
injured. That being so, I cannot see
that there was any reason for them to foresee any risk that the health and
safety of any employee would be affected by the use of the metal bars for the
purposes of the job. The pursuer's case
came to be that they should have had such foresight because, as Dr Garrett
had explained, a capsulitis could result from a person forcefully striking
metal on metal when using a tool like the metal bar in a forward movement of
the arms. That approach would, however,
involve attributing to the defenders expert medical knowledge which they cannot
reasonably have been expected to have. I
cannot accept that such an approach is well founded. Further, I agree with Mr Middleton that breach
of Regulation 4(2) could be of no assistance to the pursuer's case absent on
breach Regulation 4(1). I should,
however, add that it seems to me that the pursuer's case to the effect that
there was a breach of Regulation 4(2) was wholly misconceived. It is perfectly plain from the risk
assessment 7/2 of process that a detailed analysis of the relevant job was
carried out. The question of risks from
hand tools is specifically covered and it is plain both from the terms of 7/1
of process and from the fact that Mr Sommerville, the author of the risk
assessment, consulted fully with others who knew about the job at the time of
completing it, that one of the features covered was that the job was carried
out using the metal bar referred to. I
am, accordingly, satisfied that there was no breach by the defenders of the
provisions of Regulation 4 (1) or (2) of Provision and Use of Work
Equipment Regulations 1998.
[24] In the event, therefore, the pursuer has not proved the
accident alleged but even if he had done, he would not have proved that it was
attributable to a breach of the regulations founded on by him. I will, accordingly, accede to the defenders'
motion which was for absolvitor and, further, find the pursuer liable to the
defenders in the expenses of the cause.
