 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McKenzie v Bonar Yarns & Fabrics Ltd [2006] ScotCS CSOH_23 (09 February 2006) URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSOH_23.html Cite as: [2006] ScotCS CSOH_23, [2006] CSOH 23 |
||
[New search] [Help]
|
OUTER HOUSE, COURT OF SESSION [2006] CSOH 23 |
|
|
|
OPINION OF LORD BRACADALE in the case of DAVID DUNCAN McKENZIE Pursuer; against BONAR YARNS & FABRICS LIMITED Defenders: ________________ |
Pursuer:
McBrearty; Allan McDougall & Co
Defenders: L Milligan; HBM Sayers
9 February2006
[2] In the course of the pursuer's proof I heard evidence from the pursuer himself and from the following witnesses who had worked in the factory. Alastair Sidey was an Extrusion Operator and a colleague of the pursuer. David Allan had been a Senior Technician, or Supervisor, for the past 6 months and a Team Leader for the previous two years. Prior to that he had been an Extrusion Operator. He had also been the first aid officer for the past 15 years. Thomas Campbell was presently employed as the Process Manager. He had been working as part of the management team for many years, having been promoted from Operator. In 2001 he had been the Production Manager and had been so for 6 years prior to that. The duties of the Production Manager included man management and production control in the Extrusion Department. He was responsible for overseeing of the Extrusion Department, including the day to day running of the extrusion machines.
[3] For the defenders I heard evidence from Ian Hutcheon who had retired as the Technical Director in March 2005. He had worked in the factory for 35 years and for the past 20 years had been in the management of the Technical and Production Department. Prior to that he had been in the Maintenance Department.
[4] In addition, I heard evidence from two expert witnesses: Mr Lenford Greasly, Consulting Engineer, who gave evidence for the pursuer; and Dr Richard Graveling, who gave evidence for the defenders.
[5] One of the processes in the defenders' factory in
[6] As the yarn came through the system it was caught by an operator, led over three cogs and then on to the spool. A guide ran back and forth along the length of the spool to provide for an even distribution of the yarn along the spool. A light flashed to tell the operator that a particular spool was full. The operator then cut the feed of yarn to the spool and fed that end of yarn on to an empty spool nearby. Next, he pulled back a curved bar above the full spool which had the effect of releasing the tension in the springs and allowing the spool to be pulled off the spindle. The process of removing a spool was known as "doffing". Once the springs were released the operator used both hands to pull the spool off the spindle. There were no hand-holds; the operator held each side of the spool and pulled it off. There was light lubrication on the yarn which meant that it could be slippery.
[7] Once removed the spools were placed on the floor before being transported by conveyer belt to pallets. In order to remove a spool from the top row the hands of the operator would be working above shoulder height. The arms would be stretched out, not fully extended, but almost fully extended. As the spool came off the end of the spindle it came down at an angle.
[8] From time to time the operators experienced a problem of
spools becoming "cobwebbed". The
frequency with which this happened was an issue in the proof and I shall return
to it. Cobwebbing
happened when the yarn came off the guide and instead of winding round the
spool began to wind round the spindle at the back. The evidence suggested that there might be a
number of reasons why this should happen. Mr Campbell explained that the
yarn came in different weights, measured in units of "
[9] The amount of yarn which became bound round the back of the
spindle could vary from a few strands to something thick, perhaps one to one
and a half inches in diameter. The
operator would not know that the spool had become cobwebbed until he went to
remove it. The cobwebbed effect of the
yarn bound round the spindle prevented the spool from being pulled off in the
normal way. At the time of the accident
one practice among a number of operators was to use a
[10] Other operators did not themselves carry out the exercise of
doffing a cobwebbed spool, preferring to summon a member of the maintenance
department staff who could release a screw on the spindle, allowing the spindle
and spool to be removed as a whole. When
carrying out this exercise on the top row the maintenance staff had access to
stepladders.
The accident
[11] The only direct evidence as to the circumstances in which the
accident occurred came from the pursuer himself. On the night of the accident the pursuer came
on the night shift at
[12] The pursuer was questioned as to whether he may have given a
different account about the circumstances of the accident to Mr Johnston,
the Consultant in Accident and Emergency who examined him on
[13] In cross-examination the pursuer said that he had not previously experienced an incident in which the spool fell off when he or any other operator had been cutting the cobweb. He had trained others in the past and shown them how to deal with the cobwebbing. He agreed with Miss Milligan that one way in which the accident could have occurred was by the pursuer himself falling against the spool. He accepted that a spool could hang on the end of the spindle and not fall off. He agreed that in these circumstances there would be no reason for it to fall off unless it was knocked. He agreed that the incident had happened very quickly.
[14] I found the pursuer, who was highly thought of by his employers as an excellent worker and a very responsible employee, to be a credible and reliable witness. I was impressed by the careful and straightforward manner in which he gave his evidence. The pursuer denied giving the account in Mr Johnston's report and no evidence was led from the surgeon. There was thus no evidence that the pursuer had given that account and there was no evidence as to the circumstances in which the doctor came to record that account. In any event the Consultant would not have been concerned with the precise circumstances of the accident. Accordingly, in assessing the credibility and reliability of the pursuer I do not take account of the contents of Mr Johnston's report. In relation to his answers in cross-examination I understood the pursuer to be agreeing that the alternative of his having fallen and knocked the spool was a theoretical way in which such an accident could have happened, not that he was conceding that that was how his accident did happen.
[15] Further, it seems to me that the terms of the entry in the accident book made by Mr Allen on the basis of what the pursuer said immediately after the accident is consistent with the account given by the pursuer in evidence.
[16] I do infer from the evidence of Dr Graveling and his photographs (production 7/4) that before it could come off the spindle the spool would necessarily require to be at a point on the spindle at a point close to that shown in the photographs. While that may have a bearing on the question of contributory negligence, I am not prepared on the evidence to conclude that it was impossible or even very difficult to remove the spool from the spindle without knocking it or falling against it.
[17] Accordingly, I conclude that the accident happened as described by the pursuer in his evidence in chief, as outlined above.
Frequency
of cobwebbing
[18] The pursuer said that the cobweb effect occurred quite often. When the night shift on which he was working came on, there might be cobwebbed spools which had been left by members of the earlier shift who were unwilling to remove the spools themselves. Such operators would prefer to get an engineer to deal with the problem. However, it could be very difficult to get hold of a maintenance engineer. The general practice on the pursuer's shift, which was the most experienced shift, was to cut the cobweb off themselves. In cross-examination the pursuer disagreed with the proposition that cobwebbing was rare at the time of the accident. He said that he would get one or two in a shift, though not necessarily every day.
[19] Alastair Sidey said that cobwebbing happened quite often, by which he meant perhaps three or four cobwebbed spools per shift. Where the guide on a particular spool was damaged it could occur at every doff. Although the Maintenance Department were supposed to replace the guides, there were difficulties with parts. In cross-examination Mr Sidey said that even in the ordinary course where a spool guide was not damaged they would get one or two cobwebbed spools per shift. The frequency could depend on the thickness of the yarn.
[20] David Allan said that cobwebbed spools occurred all the time; it happened every day in every shift.
[21] Thomas Campbell said that it was difficult to say how often
cobwebbing occurred in 2001. It had been a problem
then and continued to be a problem. The
frequency with which it occurred depended on a number of things including wear
and tear on the machine and, in particular, whether the traverse
guide was worn.
[23] There was a dispute between Mr Campbell and Mr Hutcheon as to the weight of the product which was being
produced on line at the time of the accident.
Mr Campbell thought that a lighter tex
grass was being produced, which was more likely to give rise to problems with cobwebbing, while Mr Hutcheon
claimed that at the time line 10 was producing a heavier product as a result of
which cobwebbing occurred infrequently. He found the evidence of Mr Campbell in
this respect strange as he, himself, had been involved in programming and was
not aware of this machine running low
[24] In assessing the evidence as to the frequency with which cobwebbing occurred I found the of the pursuer, Mr Sidey, Mr Allan and Mr Campbell to be generally consistent. I did not form the impression that any of them was exaggerating. It seemed to me that these witnesses were able to speak from more immediate and practical experience on the lines than Mr Hutcheon. To the extent that there were discrepancies between the evidence of these witnesses and that of Mr Hutcheon I am inclined to accept their evidence. While it was clear that each of the witnesses found it difficult to give specific estimates as to frequency, I am satisfied on the evidence that cobwebbed spools were a regular occurrence, certainly a sufficiently regular occurrence to merit noting, for example, in a risk assessment.
[25] It is clear from the evidence that the management of the defenders were aware of the problem of cobwebbing. It is also clear that there were two approaches to the problem in current practice at the time of the accident: operators could attempt to free the spool themselves; or they could summon a member of the maintenance staff. No instructions had been given to the operators as to which approach should be adopted. It was left up to the discretion of the individual operator. It appeared that those who doffed cobwebbed spools themselves were regarded as conscientious. Both Mr Campbell and Mr Allan said that since the accident operators were more inclined to obtain the services of the maintenance department. No instructions had been given as to whether, in a particular case, an operator should assess whether the nature and extent of the problem was one in which it would be appropriate to attempt to remove the spool, or whether it would be appropriate to seek assistance from the maintenance department.
The
Manual Handling Operations Regulations 1992 (SI 1992/2793)
[26] "Manual Handling Operations" are defined in Regulation 2 of the Manual Handling Operations Regulations 1992 (SI 1992/2793) as meaning:
"Any transporting or supporting of a load (including the lifting, putting down, pushing, pulling, carrying or moving thereof) by hand or by bodily force".
I am satisfied that when the operation of doffing a cobwebbed spool is looked at as a whole it forms one operation which falls within the definition of a manual handling operation. It is, in my view, too fine a distinction to try to split the various stages of the exercise into parts and conclude that at the moment when the accident occurred the pursuer was not engaged in a manual handling operation. Indeed, Miss Milligan argued but faintly for that approach.
[27] Regulation 4 provides:
"(1) Each employer shall -
(a) so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured; or
(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 a 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 in 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 and
(iii) take appropriate steps to provide any of those employees who are undertaking any such manual handling operations with general implications and, where it is reasonably practicable to do so precise information on -
(aa) the weight of each load, and
(bb) the heaviest side of any load whose centre of gravity is not positioned centrally."
[28] It was common ground that the process of doffing was one which could not be carried out reasonably practicably without employees undertaking manual handling operations and, accordingly, the case fell within Regulation 4(1)(b). It was also common ground that failure to carry out a risk assessment in terms of Regulation 4(1)(b)(i) does not in itself impart liability (Logan v Strathclyde Fire Board unreported, Lord Eassie, 12 January 1999). It was agreed that the issue was whether there was liability under Regulation 4(1)(b)(ii).
[29] When considering whether particular manual handling operations at work involved a risk of employees being injured, the test to be applied is whether there was a foreseeable possibility of injury. In addition, if the operation falls within the definition of a manual handling operation, it is not necessary for the pursuer to show that the risk of injury was a risk arising from the imposition of a load. An ancillary risk, not directly relating to the imposition of a load will be sufficient (Cullen v North Lanarkshire Council 1998, SC 451).
[30] Provided that the pursuer establishes the factors necessary to make a prima facie case of breach of the defenders' duty under Regulation 4(1)(b)(ii), the onus of proving that appropriate steps have been taken to reduce the risk of injury to employees to the lowest level reasonably practicable lies on the defenders. In Davidson v Lothian & Borders Fire Board 2003 SLT 939. At page 943L to 944A Lord Macfadyen set out the requirements on the pursuer:
"In order to make a case under Regulation 4(1)(b)(ii) all that he [the pursuer] required to prove was (i) that he was engaged in a manual handling operation, (ii) that it gave rise to a risk of injury; (iii) that an event falling within the ambit of that risk occurred and (iv) that actual injury was thereby caused. If these matters were proved the pursuer was entitled to succeed unless the defenders made out the statutory defence that they had taken appropriate steps to reduce the risk of injury to the lowest level reasonably practicable."
Mr McBrearty
submitted that the pursuer had met the four criteria set out there and that the
onus was on the defenders to prove that there were no further appropriate steps
which could have been taken. In any
event, the pursuer had led positive evidence of steps which could have been
taken.
[31] As I have already indicated,
I am satisfied that when the operation of doffing a cobwebbed spool is
looked at as a whole it forms one operation which falls within the definition
of a manual handling operation.
Accordingly, I am satisfied that the first criterion is met. The next question to consider is whether the
operation gave rise to a risk of injury.
This is to be understood in terms of a foreseeable possibility of
injury.
[33] Apart from the views of Mr Hutcheon, the evidence tended to the view that the risk involved in doffing a cobwebbed spool was significantly greater than the risk involved in doffing an ordinary spool. Both experts expressed views as to increased risks. Dr Graveling agreed that cobwebbing complicated the issue of doffing. There was much more pulling force involved. I am satisfied on the evidence as a whole that there were additional risks. There was a risk of strain from pulling and a possibility of the spool falling. The operator was unable to see the back of the spool. He required to reach behind above shoulder height with his view restricted. He required repeatedly to pull and cut. The spool was less easy to control and there was a risk of it falling or dropping.
[34] While the risks involved in removing a cobwebbed spool were not precisely the same, they were analogous to the risks involved in removing a spool with a crushed centre, as described below. In both cases the operator had to pull to see the extent to which the spool was stuck.
[35] The defenders did carry out certain risk assessments which were produced as Productions 6/9 and 6/10. These were carried out respectively in March 1999 and September 2000. Mr Campbell had been involved in the preparation of 6/9 and a Mr Dickson, who was a health and safety consultant, had prepared 6/10. These risk assessments were carried out under Regulation 4(1)(b)(i) of the Manual Handling Operations Regulations 1992 and related to the process of doffing. I accept the evidence of Dr Graveling that, in general terms, the risk assessments had been carried out in a reasonably competent manner. However, they did not take account of the problem of cobwebbing. Dr Graveling thought that cobwebbing should have been referred to in the risk assessment. The result was that there had been a failure to note all significant findings in order that remedial measures could be taken. The evidence as to the reasons why the problem of cobwebbing did not feature in the risk assessments was confusing and contradictory. In evidence in chief Mr Campbell said that when he completed production 6/9 he did have in mind the problem of cobwebbing but had not specifically referred to it. He had made reference to the problem of "crushed centres". When yarn for making the backing for carpets was being produced it was wound on to cardboard cylinders rather than the blue plastic ones used for the yarn for artificial grass. Sometimes these collapsed making them very difficult to remove from the spindle. This problem was known as crushed centres. Mr Campbell explained that the problem which arose from crushed centres had a similar effect to cobwebbing. In his view the risk which was stated applied equally to cobwebbed spools and that he had that in mind when he prepared the risk assessment. However, in cross-examination he said that he had not identified cobwebbing as a risk in the risk assessment and that if he had identified it as a problem he would have noted it down. In re-examination he explained that when he completed the risk assessment 6/9 he did not have in mind cobwebbing because it did not happen on the particular machine which was the subject of the risk assessment. He repeated his view that crushed centres presented similar problems. I conclude that the problem of cobwebbed spools did not feature in the risk assessments.
[36] From the evidence relating to the risk assessments I conclude that the doffing of cobwebbed spools simply did not feature in the risk assessments. I conclude that the doffing of cobwebbed spools ought to have featured in a risk assessment. As I have already noted that in itself would not give rise to liability. It is significant to note that in relation to the analogous problem arising from crushed centres the remedial measure identified in production 6/9 was: "instructions to ensure operators report crushed package to maintenance and specify training on manual handling."
[37] From the evidence as a whole in relation to risks I conclude that doffing a cobwebbed spool was a manual handling exercise which carried a foreseeable possibility of injury. Accordingly, it was an exercise which gave rise to a risk of injury and the second criterion in Davidson is met. The next question is whether the pursuer's accident comprised an event falling within the ambit of that risk. The pursuer was at the time carrying out a procedure which was recognised as a procedure for removing a cobwebbed spool. I have little difficulty in concluding that an event falling within the ambit of the risk occurred. There is no dispute that actual injury was caused.
[38] I conclude, therefore, that the pursuer has met all four of the criteria in Davidson. He is entitled to succeed unless the defenders have made out the statutory defence that they have taken appropriate steps to reduce the risk of injury to the lowest level reasonably practicable.
Reasonably Practicable steps
[39] Mr Greasly suggested that there were two possible reasonably practicable steps which the defenders could have taken with respect to the removal of cobwebbed spools in order to reduce the risk of injury to the lowest level reasonably practicable. The first was to provide a safe access to allow the operator to work above the top spindle. This could have been provided by the provision of a small platform some 570 millimetres square. Mr Greasley envisaged a square platform with two steps and hand rails round three sides. Such a platform would be relatively cheap. It would provide a better height for viewing the cobwebbed spool, allowing the operator to cut through all the yarn and releasing the spool when he could see what he was doing. In addition, from an ergonomic point of view when the spool came off the spindle it would be at a lower point on the body of the operator.
[40] While Dr Graveling conceded that it would be easier for an operator using a platform to see what he was doing, he had two concerns which led him to the view that he would not recommend the use of a platform: first, there was not a lot of space between the machinery and the conveyer belt; and, second, there was the potential for the operator to fall off the platform. Falling was the biggest cause of industrial accidents. He conceded that it was a matter of judgement and a balancing exercise. Mr Hutcheon agreed with the proposition that in dealing with a cobwebbing situation a platform would enable the operator to have a better sight of the cutting exercise.
[41] When considering the reasons advanced by Dr Graveling for
not using a platform it is necessary to bear in mind that the suggestion was
that the platform would be used only when doffing a cobwebbed spool on the top
row. At other times, including normal
doffing on the top row, the platform, which would be on castors, would be
stored. Indeed, it was Mr Hutcheon's evidence that when the maintenance department
staff removed spools on the top row they used stepladders which must have been
stored and brought out as and when required.
The presence of hand rails would minimise the risk of falling.
[42] The alternative step suggested by Mr Greasley that the defenders could have taken to reduce the risk of injury to the lowest level reasonably practicable was to instruct operators not to attempt to remove a cobwebbed spool but to obtain the assistance of a maintenance man who could remove the spindle and spool together. The maintenance man would use a stepladder in order to carry out that exercise. At present the system left the issue to the discretion of the employee. Mr Greasly considered that the employer should lay down safe systems of work.
[43] Dr Graveling recognised that reference to the maintenance man was a possible and reasonable step to take. However, he pointed out that there were varying degrees of cobwebbing. At the extreme a spool would be badly jammed and the equivalent of a crushed carton. In these circumstances it would be appropriate to take the same remedial action as had been recommended in the case of crushed cartons, namely, to get the maintenance man to remove the spool. On the other hand, if only a few strands were involved and the spool could be easily released then the operator could do that.
[44] Under reference to the evidence of Mr Hutcheon and Dr Graveling, Miss Milligan submitted that the defenders had taken all steps required by Regulation 4(1)(b)(ii). She also founded strongly on the evidence that there had never previously been a similar accident. I accept that that is a relevant consideration to take into account though it cannot be determinative. I am not satisfied that the defenders have proved that they did take appropriate steps to reduce the risk of injury to the lowest level reasonably practicable. The pursuer's expert has suggested possible steps which the defenders could have taken. These seem to me to be reasonably practicable steps. I am of the opinion that if either of these steps had been taken it is unlikely that the pursuer's accident would have occurred. In any event, the pursuer having in my view satisfied the tests in Davidson, the onus was on the defenders to prove that there were no further appropriate steps that they could have taken to reduce the risk of injury to the lowest level reasonably practicable. I noted that Dr Graveling himself took the view that it would be appropriate for an operator to consider whether the particular example of cobwebbing was one that could be dealt with by the operator or whether it was something better left to the maintenance man. An instruction to that effect would have alerted an operator such as the pursuer to the risks. I have explained above how I inferred that the cobwebbed spool with which the pursuer had to deal was a significant one. Had the defenders had a system of instructions such as suggested by the defenders own expert it is unlikely that the pursuer would have tackled the job himself but would have summoned a maintenance man.
[45] In these circumstances I am satisfied that the pursuer succeeds
in his case under the Manual Handling Operations Regulations 1992.
[46] The pursuer also relied on his common law case. Mr McBrearty submitted that the common law case did no more than mirror all that had been said with respect to the manual handling case. There was a clear foreseeable risk of injury based on the evidence. There was a failure to provide a safe system of work. The defenders had failed in a duty to instruct the operators to report cobwebbed spools and have the maintenance department deal with the problem. They had failed to provide a safe plant and equipment by failing to provide an appropriate platform. For the reasons already outlined under the statutory case I am of the view that the pursuer also succeeds under his common law case.
[47] Miss Milligan submitted that if I did find in favour of the
pursuer I should find a substantial element of contributory negligence. This applied on any of the three possible
approaches to the accident. If the
pursuer fell against the spool there was contributory negligence. If he had the spool too far along the spindle
there was contributory negligence. If
the strands were not completely cleared he should not have left the spool in a
precarious position and there was contributory negligence. I have already rejected the pursuer falling
against the spool as an explanation for the accident. However, I have regard to the evidence of Dr
Graveling and Mr Campbell in relation to photographs 9 and A1 of
production 7/4. Mr Campbell said that he
would not pull out the spool and leave it as far out as was demonstrated in
these photographs. I have already
concluded that the pursuer must have left the spool in a similar position in
order to put his knife away. He would at
that stage have no means of knowing whether any strands of yarn were still
holding and, if so, how much. I am
satisfied in these circumstances that there was an element of contributory
negligence. Miss Milligan suggested
that I should attribute 50% contributory negligence. She referred me to Nicholson v British Coal
Corporation unreported, Lord Clyde,
Result
It was further agreed that interest
should accrue on the sum of £19,919, a proportion of the agreed damages, at the
rate of 4% a year, from
[49] These figures require to be reduced by 25% in order to reflect the element of contributory negligence which I have found established. Accordingly, I make an award of total damages in the sum of £21,273, apportioned as follows: