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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hughes v. Grampian Country Food Group Ltd [2007] ScotCS CSIH_32 (18 May 2007) URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSIH_32.html Cite as: [2007] ScotCS CSIH_32, [2007] CSIH 32 |
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
|
Lord PresidentLord PhilipLord Eassie |
[2007] CSIH 32A887/03 OPINION OF THE LORD PRESIDENT in RECLAIMING MOTION in the cause MARGARET HUGHES Pursuer and Reclaimer; against GRAMPIAN COUNTRY FOOD
GROUP LIMITED Defenders and Respondents _______ |
Act: Campbell, Q.C., Heaney; Thompsons
Alt: A. Smith, Q.C., Duncan; Simpson &
Marwick
18 May 2007
[2] The Lord
Ordinary assoilzied the respondents but expressed a view on the value of the
claim. He found that the aggravation of
symptoms was relatively short lived: it
commenced at about the beginning of December 2000, involved a first visit to
the reclaimer's doctor on
[3] The
reclaimer's case in her pleadings proceeds upon both common law and upon an
alleged breach of statutory duty under Regulation 4 of the Manual Handling
Operations Regulations 1992. Before the
Lord Ordinary her claim, in so far as based at common law, was abandoned. The Lord Ordinary held that her case under
the Regulations was not established.
Against the decree of absolvitor consequentially pronounced this
reclaiming motion has been taken.
[4] As part of
her proof the reclaimer put in evidence a video recording (No. 6/1 of process). Although this recording was made on
"The video initially shows the
employee picking up a carcass from the work bench beside her and placing it on
the work bench in front of her. While
the carcass is on the work bench in front of her, she manipulates the legs and
wings of the carcass, and then applies elasticised string around the carcass before
tossing it onto a moving conveyor belt.
After the first four chicken carcasses, which appear to have been picked
up by the employee from the work bench beside her, she begins to lift carcasses
from shackles on a conveyor belt at approximately head height above the work
bench and take each carcass in turn to manipulate and truss it on the work
bench in front of her. From taking the
carcass from the work bench or from the shackle, through the process of
manipulation and to the point at which the trussed carcass is thrown onto the
lower conveyor belt takes approximately 11 or 12 seconds per carcass. Of this time it appears that less than one
second is taken in lifting the carcass from the shackle to the work bench, and
only a fraction of a second is taken in throwing the trussed carcass onto the
conveyor belt. While the carcass is
being manipulated and trussed, the employee is working on it while the carcass
is on the work bench, or picks it up for a moment to apply the trussing string
around it before placing it back on the work bench".
[5] The Lord
Ordinary found that there was a sufficient causal link between the reclaimer's
work (the manipulation of chicken carcasses) and the exacerbation of her
symptoms. At the proof it was conceded
by counsel for the respondents that there was a reasonably foreseeable risk of
injury. The remaining issue between the
parties was whether the Regulations applied to the work on which the reclaimer
was engaged.
[6] The
Regulations (1992 SI 2793) were made under powers conferred under the Health and
Safety at Work etc. Act 1974. They were devised with a view to
implementation of the
[7] Regulation 2
provides that
"'load'
includes any person and any animal"
and that
"'manual handling operations' means
any transporting or supporting of a load (including the lifting, putting down,
pushing, pulling, carrying or moving thereof) by hand or by bodily force".
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; -
[take
certain steps including the making of an assessment and the taking of steps to
reduce the risk of injury]."
In making an assessment an employer is required to have
regard to the factors specified in column 1 of Schedule 1 to the Regulations
and to consider the questions specified in the corresponding entry in column 2
of that Schedule. Schedule 1 is in the
following terms:
|
"Column 1 Factors |
Column 2 Questions |
|
1. The tasks |
Do they involve: -holding or manipulating
loads at distance from trunk? -unsatisfactory bodily
movement or posture, especially: -twisting the trunk? -stooping? -reaching upwards? -excess movement of loads,
especially: -excessive lifting or
lowering distances? -excessive carrying
distances? -excessive pushing or
pulling of loads? -risk of sudden movement of
loads? -frequent or prolonged
physical effort? -insufficient rest or
recovery periods? -a rate of work imposed by
a process? |
|
2. The loads |
Are they: -heavy? -bulky or unwieldy? -difficult to grasp? -unstable, or with contents
likely to shift? -sharp, hot or otherwise
potentially damaging? |
|
3. The working environment |
Are there: -space constraints
preventing good posture? -uneven, slippery or
unstable floors? -variations in level of
floors or work surfaces? -extremes of temperature or
humidity? -conditions causing
ventilation problems or gusts of wind? -poor lighting conditions? |
|
4. Individual capability 5. Other factors |
Does the job: -require unusual strength,
height, etc? -create a hazard to those
who might reasonably be considered to be pregnant or to have a health
problem? -require special
information or training for its safe performance? Is movement or posture hindered by personal
protective equipment or by clothing?" |
|
|
|
[8] Having
reviewed the statutory provisions and referred to certain decisions in the
Outer House, the Lord Ordinary observed at paragraph [39]:
"In the present case, on the basis of
the video evidence, it appears that the removal of a chicken carcass from the
upper shackle to the work bench might be categorised as a manual handling
operation, involving as it does both elements of transporting and supporting of
a load. It may also be that the action
of throwing the trussed carcass onto the lower conveyor belt can be categorised
as transporting or supporting of a load by hand or by bodily force. However, there is no suggestion that the
pursuer sustained any injury or exacerbation of symptoms as a result of either
of these steps. Her complaint was
focused on the repetitive movements of the wrist, hands and fingers in the
manipulation of the chicken carcass, by tucking in the legs and wings and tying
it with elasticated trussing string.
While this manipulation was being performed, there was no transporting
or supporting of a load".
[9] He then noted
that counsel then appearing for the reclaimer had attempted to characterise the
activity on the trussing line as one single operation, involving the
transporting and supporting of the chicken carcass from its initial position on
the upper shackle via the work bench to the lower conveyor belt. The Lord Ordinary rejected that
characterisation observing that a task cannot be transformed into a manual
handling operation by looking at the surrounding context.
[10] The approach
adopted on the reclaimer's behalf in the Outer House was expressly departed
from before us by Mr. Campbell. He
invited us to hold that throughout the reclaimer's activity with any chicken
carcass there was but one short time (about two seconds - while she stretched
and retrieved an elastic band, the carcass then resting on the work surface)
when her actions did not constitute manual handling as envisaged by the
Regulations. At all other times in the
course of a trussing cycle she was "supporting" the carcass by hand or by
bodily force. Arrangements were made for
us to view the video recording in the course of the reclaiming motion. Mr. Campbell invited us, on the basis of our
observations of it, to conclude that the Lord Ordinary had erred in the factual
conclusions which he had drawn. In
particular, he challenged the Lord Ordinary's conclusion at the end of
paragraph [39] that, while the manipulation (the repetitive movements of the
wrists, hands and fingers in manipulation of the chicken carcass, by tucking in
the legs and wings and tying it with elasticated trussing string) was being
performed, "there was no transporting or supporting of a load". I shall in due course return to consider
whether it is in the circumstances open to this court to review that
finding. First, however, it is
appropriate to address the interpretation of the Regulations.
[11] By Directive
89/391/EEC ("the Framework Directive") the Council of the European Communities
addressed the Member States on the introduction of measures to encourage
improvements in the safety and health of workers at work. Article 1 provided:
"1. The
object of this Directive is to introduce measures to encourage improvements in
the safety and health of workers at work.
2. To
that end it contains general principles concerning the prevention of
occupational risks, the protection of safety and health, the elimination of
risk and accident factors, the informing, consultation, balanced participation
in accordance with national laws and/or practices and training of workers and
their representatives, as well as general guidelines for the implementation of
the said principles.
3. This
Directive shall be without prejudice to existing or future national and
Community provisions which are more favourable to protection of the safety and
health of workers at work".
Article 5.1 imposed a duty on employers to ensure the safety
and health of workers in every aspect related to the work. Article 6 provided:
"1. Within
the context of his responsibilities, the employer shall take the measures
necessary for the safety and health protection of workers, including prevention
of occupational risks and provision of information and training, as well as
provision of the necessary organization and means.
The
employer shall be alert to the need to adjust these measures to take account of
changing circumstances and aim to improve existing situations.
2. The
employer shall implement the measures referred to in the first subparagraph of
paragraph 1 on the basis of the following general principles of prevention:
(a) avoiding risks;
(b) evaluating the risks which cannot be avoided;
(c) combating the risks at source;
... ".
Article 16.1 provided that the Council should adopt
individual Directives, inter alia, in
the areas listed in the Annex. Among the
areas so listed was "Handling of heavy loads involving risk of back
injury". Article 16.3 provided that the
Directive should apply in full to all the areas covered by the individual Directives,
without prejudice to more stringent and/or specific provisions contained in
these individual Directives.
[12] In furtherance
of Article 16(1) of the Framework Directive the Council made Directive
90/269/EEC ("the Manual Handling Directive").
Article 1 provided:
"1. This
Directive, which is the fourth individual Directive within the meaning of
Article 16(1) of Directive 89/391/EEC, lays down minimum health and safety
requirements for the manual handling of loads where there is a risk
particularly of back injury to workers.
2. The provisions of Directive 89/391/EEC shall be fully
applicable to the whole sphere referred to in paragraph 1, without prejudice to
more restrictive and/or specific provisions contained in this Directive."
Article 2 provided:
"For the purposes of this Directive,
'manual handling of loads' means any transporting or supporting of a load by
one or more workers, including lifting, putting down, pushing, pulling,
carrying or moving of a load which, by reason of its characteristics or of
unfavourable ergonomics conditions, involves a risk particularly of back injury
to workers".
Article 3 provided:
"1. The
employer shall take appropriate organizational measures, or shall use the
appropriate means, in particular mechanical equipment, in order to avoid the
need for the manual handling of loads by workers.
2. Where
the need for manual handling of loads by workers cannot be avoided, the
employer shall take the appropriate organizational measures, use the
appropriate means or provide workers with such means in order to reduce the
risk involved in the manual handling of such loads, having regard to Annex 1".
Annex 1 provided the following reference factors:
"1. Characteristics
of the load
The manual handling of a load may
present a risk particularly of back injury if it is:
-too heavy or too large,
-unwieldy or difficult to grasp,
-unstable or has contents likely to
shift,
-positioned in a manner requiring it
to be held or manipulated at a distance from the trunk, or with a bending or
twisting of the trunk,
-likely, because of
its contours and/or consistency, to result in injury to workers, particularly
in the event of a collision.
2. Physical
effort required
A physical effort may present a risk
particularly of back injury if it is:
-too strenuous,
-only achieved by a twisting movement
of the trunk,
-likely to result in a sudden
movement of the load,
-made with the body in an unstable
posture.
3. Characteristics
of the working environment
The characteristics of the work
environment may increase a risk particularly of back injury if:
-there is not enough room, in
particular vertically, to carry out the activity,
-the floor is uneven, thus presenting
tripping hazards, or is slippery in relation to the worker's footwear,
-the place of work or the working
environment prevents the handling of loads at a safe height or with good
posture by the worker,
-there are variations in the level of
the floor or the working surface, requiring the load to be manipulated on
different levels,
-the floor or foot rest is unstable,
-the temperature, humidity or
ventilation is unsuitable.
4. Requirements
of the activity
The activity may present a risk
particularly of back injury if it entails one or more of the following
requirements:
-over-frequent or over-prolonged
physical effort involving in particular the spine,
-an insufficient bodily rest or
recovery period,
-excessive lifting, lowering or
carrying distances,
-a rate of work imposed by a process
which cannot be altered by the worker".
[13] Mr. Campbell
submitted that the Framework Directive set a "goal setting" objective to be
achieved with reference to the health and safety of workers. It was to be given a purposive
construction. The circumstance that that
Directive envisaged work dealing with the handling of heavy loads involving a
risk of back injury did not restrict the scope of the "daughter" Directive or
of national regulations made in furtherance of it to "heavy" loads or to the
risk of "back injury". The Manual
Handling Directive referred to "particularly of back injury", pointing to
injury of that kind not being its exclusive scope. The national Regulations went further. Schedule 1 included questions such as
"Are [the loads] sharp, hot or otherwise potentially damaging", which went
beyond any risk occasioned by the bearing of weight. The Regulations should be given a broad and
purposive construction consistent with the objective of protecting employees
from harm; the
intention was to heighten the obligation on the employer beyond the duty at
common law of reasonable care (Mains v
Uniroyal Englbert Tyres Limited 1995
SC 518, especially per Lord Sutherland at page 531D and Lord Johnston at page
535G). An ergonomic approach was
required (Taylor v City of Glasgow Council 2002 SC 364, per
Lord Reed at page 371D-H; reference was
also made to Lord Marnoch at page 366 and Lord Carloway at pages 372-4 and
378-9). A similar purposive approach to
parallel regulations could be seen in Robb
v
[15] In my opinion
it is necessary for the purpose of deciding this reclaiming motion to form a
view as to the scope of the term "manual handling operations" employed in the
Regulations. The language used, if
considered in isolation, is open to more than one interpretation but an
interpretation of an ambiguous provision which leads to absurd results is to be
avoided. The wide construction urged by
Mr. Campbell does, in my view, lead to absurd results. It would offend against commonsense to
suppose that the framers of the Regulations intended to bring within its scope
the activities of the seamstress lifting and replacing her needle, the
librarian turning the pages of a book or the employee throwing an electrical
switch. Indeed, the retrieving by the
chicken trusser of the trussing string, which according to Mr. Campbell would
not be a manual handling activity, would on his argument also fall within that
class. Accordingly, unless compelled by
the absence of any tenable alternative, I am disposed to reject Mr. Campbell's
construction, which would appear to make virtually every human activity, other
than the purely cerebral, one of manual handling.
[16] It is common
ground that the Regulations were made in furtherance of the obligations
incumbent on the
[17] The Framework
Directive by Article 16 provided that the Council would adopt "daughter" Directives
inter alia in the areas listed in the
Annex to it. Such areas were so listed,
the fifth of which was "Handling of heavy loads involving risk of back
injury". Accordingly the mechanism
adopted for guaranteeing a better level of protection of the safety and health
of workers was, in addition to imposing the general obligations under the
Framework Directive, the prospective adoption of "daughter" Directives in
relation to seven, or possibly more, discrete though conceivably overlapping
areas. The fifth area identified a
readily comprehensible source of risk to the health and safety of workers,
namely, the risk of back injury presented by the handling of heavy loads. In that context it is plain that the loads
which were contemplated were burdens which by their weight (in the ordinary
rather than in any scientific sense) presented a risk to humans handling them.
[18] The relevant "daughter"
Directive provided a definition of "manual handling of loads" namely, as
meaning
"any
transporting or supporting of a load, by one or more workers, including
lifting, putting down, pushing, pulling, carrying or moving of a load, which,
by reason of its characteristics or of unfavourable ergonomic conditions,
involves a risk particularly of back injury to workers".
It dispensed with the concept of "heavy" loads and, while
identifying the risk of back injury as being of particular concern, did not
limit the scope of the protection to operations which gave rise to the risk of
that specific injury. It identified the
type of load which would give rise to a "manual handling of loads" as being that
which "by reason of its characteristics or unfavourable ergonomic conditions"
involved the risk in question. The
reference factors set out in Annex 1 to that Directive elaborated upon the
characteristics of a load, or the unfavourable ergonomic conditions in relation
to its transportation or support, which were regarded as relevant. All of these point to an activity which by
its intrinsic characteristics or its positional or similar circumstances, gives
rise to a risk of injury by reason of the transporting or supporting of a load
as that term would be understood in ordinary parlance.
[19] The framer of
the Regulations adopted a somewhat different approach to the definition of the
relevant operation. The concept of risk
was transferred out of the definition of the operation into the terms of the
obligation imposed on the employer (Regulation 4(1)(a)). The reference to back injury was
omitted. The factors and questions set
forth in Schedule 1 differ to some extent from those in Annex 1 to the Manual
Handling Directive. A definition of
"load" was provided - but only to the extent of making it plain that animate as
well as inanimate objects might be a load.
But these differences are not, in my view, such as to point to the
Regulations having a radically different scope from the Directives in implement
of which they were made.
[20] In none of the
Framework Directive, the Manual Handling Directive or the Regulations (except
in the case of the last to the limited extent indicated) was "load"
defined. But none of the contexts in
which that expression is used supports the concept that it is used in a
scientific as distinct from an ordinary sense - of something which, by its
weight, in the context of how it is being handled, presents a risk of
injury. While the Regulations can and
may give wider protection than either of the Directives, the scope does not
extend in my view as far as Mr. Campbell contended. I am not persuaded that the terms of the
Schedule support Mr. Campbell's argument.
He relied in particular upon the fifth question "[are they] -sharp, hot
or otherwise potentially dangerous?" against the relevant factor "the
loads". But a load which is sharp, hot
or otherwise potentially dangerous may present greater risk than an equivalent
load which does not have those characteristics.
That does not detract from "load" having the intrinsic characteristic of
weight in the ordinary sense.
[21] Accordingly,
although it may be difficult to define with exactness the scope of the
Regulations, in any particular case their applicability or otherwise must be
determined as a practical exercise by the use of commonsense. It may be that in some circumstances the
purpose for which the item in question is being used may be of some assistance
(see Lady Smith's approach in McFarlane v
Ferguson Shipbuilders Limited) -
though I would not regard the purpose of the activity as a conclusive
test. I agree with Lord McEwan in McIntosh v City of Edinburgh Council that a heavy object may be a load,
notwithstanding that at it may also be a tool.
In so far as the Guidance issued by the Health and Safety Executive
suggests the contrary, I have serious doubts as to its soundness; but it is
unnecessary for present purposes to express any concluded view on that
matter. I agree with the conclusions
reached by Lord Cameron of Lochbroom in Mitchell
v Inverclyde District Council and
by Lord Kingarth in King v Carron Phoenix
Limited in the circumstances of these respective cases.
[22] Against that
interpretative background it is necessary to consider the present circumstances. The case for the reclaimer as advanced in the
Outer House did not focus upon any weight-bearing aspect of the trussing part
of the reclaimer's activity. Her own
evidence was restricted to general testimony that what she did was as depicted
in the video recording. That recording
was played several times in the course of the proof and commentary on it was
offered by the experts led on the reclaimer's behalf. These experts also spoke to reports which
they had prepared for the purposes of the litigation. Although in the course of that testimony
expressions such as "supporting", "moving", "lifting" and "turning" are
incidentally used with reference to the operative's manipulation of the
carcasses, the thrust of the testimony is directed to her repetitive flexing
movements (in the wrists, hands and fingers) in the course of that
operation. No attention was given to the
weight of the chicken or to any weight-bearing giving rise to any risk of
injury. Indeed no evidence was led as to
the weight of any typical carcass. The
basis on which counsel for the reclaimer in the Outer House presented the case
for the application of the Regulations was dependent on the trussing being
brought within them by virtue of the manhandling of the carcasses before and
after the trussing was done.
[23] Regard being
had to the way in which the case was presented in the Outer House, the Lord
Ordinary was, in my view, well entitled to describe the operation in the way
that he did in paragraph [35], including describing the employee as "working on
it while the carcass is on the work bench, or picks it up for a moment to apply
the trussing string around it before placing it back on the work bench". He was also well-entitled, having seen and
heard the evidence, to conclude, as he did in paragraph [39], that "[while] this
manipulation was being performed, there was no transporting or supporting of a
load".
[24] Before us, the
video recording was played and much reliance was put upon what, it was claimed,
was evident from a simple viewing of it.
We were not addressed on any authority as to the use which a
fact-finding body may properly make of such material in the absence of focussed
commentary on it by a witness. In the
criminal field there is a line of authority on this matter - Steele v H.M. Advocate 1992 SCCR 30, Gray
v H.M. Advocate 1999 SCCR 24 and Donnelly v H.M. Advocate 2000 SCCR 861.
That line suggests, at least in relation to crucial matters of fact, a
somewhat restrictive approach to what may be taken by the decision-maker from
unassisted observation. I find it
unnecessary and, in the absence of the benefit of argument, inappropriate to
express a view as to the use of video recorded evidence in civil proceedings.
[26] For these
reasons I move your Lordships to refuse this reclaiming motion.
|
FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
|
Lord PresidentLord PhilipLord Eassie |
[2007] CSIH 32A887/03OPINION OF LORD PHILIP in RECLAIMING MOTION in the cause MARGARET HUGHES Pursuer and Reclaimer; against GRAMPIAN COUNTRY FOOD
GROUP LIMITED Defenders and Respondents _______ |
Act: Campbell, Q.C., Heaney; Thompsons
Alt: A. Smith, Q.C.,
18 May 2007
[27] I agree that,
for the reasons set out by your Lordships, the reclaiming motion should be
refused, and there is nothing that I can usefully add. Like Lord Eassie I would reserve my opinion
on the question as to whether the use of an object as a tool can constitute an
activity within the scope of the Manual Handling Regulations 1992.
|
FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
|
Lord PresidentLord PhilipLord Eassie |
[2007] CSIH 32A887/03OPINION OF LORD EASSIE in RECLAIMING MOTION in the cause MARGARET HUGHES Pursuer and Reclaimer; against GRAMPIAN COUNTRY FOOD
GROUP LIMITED Defenders and Respondents _______ |
Act: Campbell, Q.C., Heaney; Thompsons
Alt: A. Smith, Q.C.,
18 May 2007
[28] I have had the
benefit of considering in draft the Opinion which has been delivered by your
Lordship in the chair, which sets out the circumstances of this case, the
relevant legislative texts at European and domestic levels and the submissions
of parties. I agree that the reclaiming
motion should be refused.
[29] As has been
described by your Lordship, in presenting the reclaiming motion counsel for the
reclaimer adopted a very different approach from that which had been adopted by
his predecessor before the Lord Ordinary.
The argument presented to the Lord Ordinary was to the effect that the
process of removing a carcass from the shackle, trussing it, and casting it on
to the conveyor belt should be treated as a single operation - a unum quid - with the actual trussing of
the carcase deriving the character of a manual handling operation from the
steps which immediately preceded and succeeded it. But before us counsel for the pursuer and
reclaimer was content to focus on the trussing alone, since the finger and
wrist movements deployed in the actual trussing are considered to be the cause
of the aggravation of the pursuer's carpel tunnel syndrome. As counsel put it in the course of his
submissions, for the purposes of his argument it would not matter if the two
tasks of obtaining the untrussed carcase from the shackle and of placing the
trussed carcase on the conveyor belt respectively were performed by someone
other than the pursuer. The activity of
"manipulating the chicken" (as the Lord Ordinary termed it) consisted in itself
a manual handling operation with the possible exception of the brief second
when the bird lay still while the operative sought the elasticated string with
which to complete the trussing (though, as your Lordship has pointed out, the
logic of the argument for the reclaimer would treat the obtaining of the
elasticated string as a manual handling operation in itself).
[30] In advancing
that submission counsel for the reclaimer thus argued for a very wide
interpretation of the term "manual handling operation" as defined in the
Regulations. During the actual trussing
stage, he said, the operative was continually giving lateral support to the
chicken carcase in order to hold it in position or lifting it wholly or
partially. In doing so she was
supporting or lifting a load. The action
of folding in the legs of the chicken involved the transport of a load, namely
the resistance of the chicken leg during the movement of its peripheral
extremity into the orifice in the carcase.
Counsel effectively gave to the word "load" and to the words
"supporting, moving, lifting ..." (which appear in parenthesis in the
regulatory definition) what might be described as their technical scientific
meaning.
[31] On that basis,
in discussion counsel was content, as your Lordship has noted, to include
within the Regulations' definition of a manual handling operation a wide
variety of examples such as:- (i) the turning of a
page in a notebook; (ii) the lifting by
a seamstress of a needle - and its subsequent movement in the course of sewing
or (iii) the simple operation of an ordinary electrical switch. All of these activities were, said counsel,
manual handling operations since, having regard to what he described as the
expansionary effect of the words in parenthesis in the definition in the
Regulations, they involved respectively lifting the page, lifting the needle
and pushing or pulling the needle or the moving of the switch and each of those
activities of motion involved the moving of what was technically a load.
[32] It seems to me
to be clear that on the construction of the definition of a manual handling
operation advanced by counsel for the reclaimer the Regulations would embrace
or apply to almost the totality of human activity in the workplace apart from
the most purely mental or cerebral.
[33] In the course
of his submission counsel for the respondents stated that what he termed "the
absurdity principle", as a canon of construction, remained, as he put it,
"alive and well". I agree that an interpretation of a statutory
provision which produces absurd results is obviously to be avoided. It is in my view wholly improbable that the
promulgator of the Regulations intended them to apply to virtually the universality
of human activity in the workplace. Had
that been the intention there would have been no need to employ the adjectival
qualification of "manual handling" to the operations in Regulation 4 and
hence no need for a definition of those words along the lines of that given in
the Regulations. There would have been
no call for a catalogue of factors as contained in Schedule 1 to the
Regulations. In this context it is also
appropriate to bear in mind the wider obligations imposed on employers in the over-arching
Management of Health and Safety at Work Regulations 1999, implementing the
Framework Directive. Further, while I
fully recognise that in implementing the daughter Directive, Member States were
not only free to impose higher standards of worker protection than required by
the Directive, but were also enjoined not to reduce existing standards, it
nonetheless remains the case, in my view, that the European legislative texts,
which the domestic legislative body seeks to implement, are a factor which may
be relevant to the legislative intent of the domestic legislative
instrument. The provisions of those
texts relevant to the present case do not, to my mind, give support for the
submission of counsel for the reclaimer to the effect that virtually everything
done in the workplace constitutes a manual handling operation. They are directed to a particular problem,
namely the risk of injury while handling heavy loads and particularly the risk
of back injury. I find it difficult to
believe that the framer of the Regulations intended dramatically to expand the
field of application of the Manual Handling Directive in its implementation in
the
[34] That said, one is yet left with the problem of endeavouring to
ascertain the proper scope of the term and thus the field of application of the
regulations. I fully agree with your
Lordship in the chair that commonsense should be brought to bear. In my view, one has to be dealing with a "load"
in an ordinary workplace sense, rather than in the technical sense in which the
word might be used in a scientific paper or textbook. Understandably, neither the daughter
Directive nor the Regulations stipulate any minimum weight, but in my view that
does not mean that the concept of "load" should be deprived of anything of the ordinary
notion of a burden of some significance.
Clearly, as the reference factors in the Schedule indicate, the
heaviness of the load is not the sole criterion. Other ergonomic considerations such as, inter alia, size, ease of handling and
the physical working environment obviously come into play in the assessment of
risk, as is required by the legislation in issue, but it respectfully appears
to me that the focus is on an operation which, in ordinary workplace parlance,
has as its function, or at least one of its functions, the transporting or
supporting of a load in that sense, by any of the actions mentioned in the
words in the parentheses.
[35] I would add
that, in agreement with your Lordship, I think that the purpose for which the
load is being transported or supported may sometimes be a further factor to
consider. However, I also entertain
reservations as to the soundness of the proposition advanced in the HSE
Guidance that using an object as a tool, for its intended purpose as a tool,
does not constitute an activity within the scope of the Regulations. However, since the present case does not
involve any contention that the reclaimer was using a tool I would prefer to
reserve my ultimate conclusions on that issue, if only since there may be questions
as to the relationship and interlinking of the Regulations with other
regulations, principally the Provision and Use of Work Equipment Regulations
1998 (S.I. 1998/2306) upon which we were, quite understandably, not fully
addressed.
[36] As regards other
health and safety regulations, in the course of his submissions counsel for the
reclaimer stated that if the actual trussing were not a manual handling
operation within the statutory definition given in the Regulations, there was
no other regulation which would come to her aid. That may be so, and I did not understand
counsel for the respondents to point to any other particular regulation which
would be applicable in the present case.
However, I do not understand the Framework Directive and the daughter
directives to be intended as the code, in the sense in which Portalis
understood a code, namely as a single legislative text, or corpus, providing a self-contained totality of employee protection
in the workplace. There remains the
ordinary law of delict. The reclaimer
sought damages under that law and it is not clear to me the basis upon which
her claim under that aspect of her case was given up. No doubt there may have been good reasons for
it, but they are not immediately apparent.
[37] Reverting more
closely to the circumstances of the present case, I consider that, for the
reasons given by your Lordship in the chair, the Lord Ordinary was entitled to
conclude that the actual trussing of the chicken carcase on the workbench did
not constitute a manual handling operation.
Viewed as a matter of commonsense, and applying ordinary workplace
parlance, one would not say that in steadying the carcase, or turning it over,
or tucking the legs of the chicken in the orifice in the carcase while
performing the operation of trussing it, the employee was engaged in an
operation of "transporting or supporting a load". As already indicated, counsel for the
reclaimer did not submit that the Lord Ordinary was wrong in isolating the
trussing operation from the preceding operation of obtaining the carcase from
the shackle and the succeeding operation of casting the trussed carcase onto
the conveyor belt. The focus was on the
trussing alone. Having viewed the video
(whatever the evidential status of that viewing may be in appellate
proceedings) I am if anything confirmed in the proposition that the Lord
Ordinary did not err in his interpretation of the totality of the evidence,
including the video recording.
[38] In these
circumstances I concur in the motion of your Lordship in the chair that this
reclaiming motion be refused.