Robertson v. Glasgow City Council [2007] ScotCS CSOH

"The pursuer raised the tipper to the three quarter position to allow the boards to slide from the back of the vehicle. As a result, the ends of the boards at the rear of the vehicle appeared to be resting on the ground. The boards were then upright, balanced against the back of the vehicle. The pursuer, along with Thomas Canavan, manually lifted one board at a time from the back of the vehicle to the area where the boards were to be stored. The boards had been used to cover and protect grass areas at Govan Park from heavy digger vehicles. The boards were covered in mud and were soaken with water. The boards were heavy. They had removed approximately 5 boards. Unbeknown to the pursuer a number of boards had stuck together and had not fully slid off the back of the vehicle. As the pursuer and Thomas Canavan removed the 6^th board, one of the remaining boards on the back of the vehicle slid off striking the pursuer on his right ankle."

[9 ] In examination-in-chief, the pursuer said that he was waiting to take his turn to lift one of the boards which were resting against the rear of the vehicle. He proceeded to pick up a board with Mr Canavan. He was situated at the rear driver's side of the vehicle. Mr Canavan was at the rear passenger side. The pursuer and Mr Canavan lifted the board to waist level and began to move with it when one of the remaining boards which had been leaning against the tipped section of the vehicle slipped and hit the top of his right ankle. The pursuer said that he thought the board in question was the last of those remaining resting against the back of the vehicle. The pursuer described Mr Canavan as apparently having lost his balance which resulted in the pursuer moving forward to balance him, just before he was struck on the right ankle.

[10 ] The pursuer said that he had never received any instruction by the defenders as to the appropriate way to remove boards from the lorry. In particular, he had never been told that they must always be removed from its side. He had never been told that if its load was to be removed by tipping it out, the tipper should be tipped up to its maximum height and the vehicle driven away from the tipped load before the load was to be lifted. The pursuer specifically denied that he and his colleagues had lifted five of the boards, by the sides of the vehicle, before tipping and that he had simply walked in the way of boards which were falling off the vehicle. An incident report form, 6/6 of process, apparently completed by the pursuer's supervisor, William Black, was put to the pursuer. Part E of the form is headed "DESCRIBING WHAT HAPPENED" and narrates as follows:

"Unloading 8' 4' Plywood Boards from Back of LDV with Tipper 3/4 raised. Boards stuck together with mud and water. Had to be manually off-loaded. Removed 5 boards and stacked. Sixth board was being taken off back of vehicle when remaining four boards slipped off hitting Graham on right ankle. Graham fell backwards and twisted over. Ambulance called. Employee taken to Western Infirmary."

[11 ] The pursuer said that that description of the accident was in accordance with his recollection of what had happened to him, although he had himself never spoken to Mr Black about it before this form was completed, on 22 January 2004. Another document, 6/7 of process described as "Report of an injury or dangerous occurrence" was put to the pursuer. In it the accident is described in the following terms:

"IP was unloading plywood boards from back of LDV, the boards were stuck together with mud and water and had to be manually off-loaded. They had removed 5 boards, the remaining 4 slipped hitting IP on the ankle causing him to fall backwards and twist over. Preventative measures: Tool box talks will be arranged for all employees."

[12 ] The pursuer considered this also to be a generally correct description of the accident. The pursuer, however, took issue with the description of the accident in another document 6/8 of process in which it is stated as follows:

"Employee unloading 8' 4' boards from back of vehicle with tipper 3/4 raised when boards (4) slid off vehicle hitting employee on right ankle."

The pursuer said that four boards did not hit him. They had, he said, been "holding down the board that hit him".

[13 ] The pursuer was examined and interviewed by Mr Peter Scott, consultant orthopaedic surgeon, on 28 November 2005. Mr Scott's report is dated 2 December 2005 and is 6/1 of process. Mr Scott reported the pursuer telling him that the accident occurred as follows:

"Was working as a seasonal gardener when he was injured in an accident on 22 January 2004. He was involved with other workers in transporting a number of heavy 8 feet x 6 feet plywood boards. A number of them were stacked in the back of a lorry which was capable of tipping and in order to unload the boards from the lorry, the lorry was tipped up at an angle to allow the boards to slide from the back of the vehicle. A number of the boards had done so and he was, with another worker, lifting the boards up to stack them. As he and his partner lifted one of the boards his partner slipped backwards and he stepped forward along with the board, just as a second board, which was stuck on the back of the lorry, slid down and struck the outer aspect of his right ankle."

The pursuer, in evidence, said that he considered that what Mr Scott recorded there was a fair account of what he had told Mr Scott. The pursuer's evidence was that any instruction which he had received from the defenders about how he should carry out his work for them was only in respect of the use of grass mowers and other grass cutters. In particular there was no induction course or instructions in relation to the winter work which the pursuer was engaged upon when the accident occurred.

[14 ] In cross-examination the pursuer said that all the boards were touching the ground at the time of the accident and none was left lying on the lorry. While he accepted that the tipper had not been raised fully at the time of the accident, the pursuer maintained that he had raised it as far as he could. He then said that he thought it was fully extended when he heard the boards slipping down from the vehicle. His description of the accident involved his leg having extended under three of the remaining boards which then slipped allowing the fourth board to hit his ankle. When it was put to the pursuer that this version of events did not square with what was averred on his behalf on record, he maintained that all the boards had reached the ground and only one, which had been supported by other boards, slipped and hit him. He said that had he known that one of the boards was still stuck on the lorry he would not have approached it. He suggested that three quarters of the boards in question, which had hit him, had come off the lorry. The board in question was camouflaged because the lorry was covered in dirt and mud. In cross-examination the pursuer said that the reason that he and his men could not remove the boards from the sides of the lorry was that they were stuck together. That was why they decided to tip them off. In addition there was not enough room to remove them from the left hand side because it was adjacent to a JCB vehicle which was parked at the locus.

[15 ] In re-examination the pursuer said that his right ankle found itself in the path of the remaining boards because he had stepped forward to balance himself.

[16 ] Evidence was led from Ralph Murphy, the pursuer's fellow workman. At the time of the accident this witness had been working as a temporary gardener with the defenders and had done so for four years. The witness confirmed that the boards were sodden with mud and were very difficult to handle. They had been lying on the ground for months in rainy conditions. Mr Murphy said that when he, the pursuer and Mr Canavan arrived at the yard at the Victoria Park depot, the pursuer tipped the vehicle to try to remove all the boards from it. They did not all tip off because some were stuck together. He and Mr Canavan had tried to prise them apart. Three or four of the boards had slipped off. No boards had been removed by the men before the tipper was tipped. This witness said that the accident occurred as a result of four boards, which had not come off the lorry, hitting the pursuer, as the pursuer was holding another board at the rear of the vehicle. The four boards which hit the pursuer had been stuck together.

[17 ] The witness said that he had never received any instruction in loading or unloading the tipper truck. After the accident to the pursuer, employees like himself, were advised by the defenders to off-load from the side of the vehicle.

[18 ] In cross-examination Mr Murphy said that the four boards which hit the pursuer had been lying flat on the tipper. All the men, including the pursuer, knew that there were boards left on the tipper because of being stuck with mud. The pursuer would, he said, have been able to see the four boards in question. The accident occurred when Mr Canavan and the pursuer were facing towards each other, with each holding an end of one of the boards. The witness said that after the boards hit the pursuer Mr Canavan had uplifted the four boards off the pursuer and he himself had dragged the pursuer out from under them.

[19 ] A safety officer had come to the scene of the accident about half an hour after it had occurred and the witness had told him what had happened. He did not think that he had told the safety officer that five boards had been removed from the tipper before it was tipped.

[20 ] In re-examination the witness said that it was only just before the accident that he realised that all the boards had not slipped down from the tipper.

[21 ] Thomas Canavan gave evidence. He, too, confirmed that the boards were wet and muddy. At the time of the accident he had been standing at the rear passenger side of the vehicle and the pursuer was at the rear driver's side. He and his colleagues had already moved three of the boards to the place in the yard where they were to be left. He and the pursuer were in the process of lifting the last boards which had slipped off after the tipper had been tipped. As they were doing so, a board which had not slipped off, struck the pursuer's leg. Originally, the witness said, it looked as if one board had hit the pursuer. He was pinned to the ground. The witness had to lift the board from him. The witness explained that the boards which had slipped off had held the remaining boards back on the tipped up tipper. As the boards which had slipped off were removed, this released the pressure which had been holding the other boards and allowed them to fall forward. Mr Canavan said that if the tipper had been tipped to its maximum height, the accident would not have occurred because the boards would all have slipped off the vehicle, to the ground, before the men set out to lift them. He was aware, before the accident, that some of the boards remained stuck on the tipper. He said that he had told both the pursuer and Mr Murphy that that was the case. The pursuer, however, wanted to take those boards off after they had removed the first four boards which had slipped off. The witness said that he had never done this task before and had had no instruction or training in relation to it. There were, he said, "suggestions" after the accident that the men should unload only from the side of the vehicle.

[22 ] This witness recalled speaking to the defenders' safety officer, Mr McGoogan, about half an hour after the accident, and he thought he had told him essentially what he was now saying in his evidence to the Court. He thought that seeking to lift boards, when others remained stuck on the tipper, which had been tipped up, was dangerous but he was not the chargehand and was not in charge of the vehicle. He, however, was sure that either he or Mr Murphy had said to the pursuer to tip the vehicle to its maximum height because not all of the boards had slid off.

[23 ] In cross-examination Mr Canavan repeated that either he or Mr Murphy had suggested to the pursuer that he should tip the tipper to its full height but that he had said that they should lift the remaining boards off the tipper manually. The witness said he had no idea why the pursuer decided to tip the tipper in the first place. Two broken boards had been lifted off before the tipper was tipped. Mr Canavan insisted that the fact that the four boards remained on the tipper would have been visible to anyone working at the rear of the vehicle. The pursuer knew that four boards had stuck on the tipper because he went to lower the tipper to remove them. Mr Canavan said the pursuer's mistake was to seek to remove the boards which had come off thus releasing the other boards. It was, Mr Canavan said, dangerous to seek to remove the four boards which had been tipped off when a number of boards remained on the vehicle because when the first boards were removed the others would slip, which was exactly what happened. The board which he and the pursuer were moving was the last which had been tipped from the vehicle. He accepted that he may have told Mr McGoogan that five boards had been removed before the tipper was tipped. He did not accept that the accident happened, not when he and the pursuer were seeking to lift the boards, but when the pursuer was simply walking behind the lorry. Mr Canavan repeated that he had told the pursuer to tip the tipper to its full height to get the remaining boards to slip off. The boards remaining on the tipper, he said, were an obvious danger.

[24 ] The pursuer led as an expert witness Dr Ian Randle, who is an ergonomics consultant. He provided a report which is 6/21 of process. In that report, which he spoke to in evidence, Dr Randle said that he considered that the operation in respect of which the pursuer was engaged at the time of the accident was one to which the Manual Handling Operations Regulations 1992 applied. The size and weight of the plywood boards were such that manually uplifting them from the rear of the vehicle should have been subject to a full risk assessment. Mr Randle had considered the document 6/9 of process which is titled

"Glasgow City Council

Health & Safety Risk Assessment - (Risk 111 Doc)."

Section 8 of the document covers "loading and unloading vehicles". The degree of risk therein is stated as low and the preventative measures are stated as manual handling training and provision of PPE. Mr Randle said that while it was clear that the risks involved in unloading vehicles had been considered at the general level in this assessment, it did not represent a detailed assessment of the manual handling risks of the material task as required in the Regulations. It was the witness's view that had the defenders taken account of the factors listed in Schedule 7 of the Regulations in their assessment and had they made reference to HSE guidelines on lifting and lowering, then a singular risk would have been identified. A great deal of his evidence to the Court, was taken up by referring to methods of lifting which he considered should have been instructed, having regard to the risk of back injury to employees. The accident, in question, of course did not result in back injury to the pursuer, because of a lifting manoeuvre, as such, but by virtue of him being struck by an object. The witness did, however, advise the Court that, having regard to the lack of stability in the boards, the defenders should have instructed the pursuer and his fellow employees to remove them from the side of the vehicle only, particularly if the boards were covered with dirt or mud. His opinion also was that even if the boards were removed from the side of the vehicle they should have been stacked up vertically "like panes of glass". This view was given because he thought that it was preferable to have men carrying the boards on the vertical plane.

[25 ] The only witness for the defenders was Mr Bernard McGoogan, who is an assistant Health & Safety Officer with the defenders. He had first heard of the pursuer's accident some 15 minutes after it had occurred, having been contacted by Mr Black, the pursuer's supervisor. He went to the locus, taking a camera with him. The pursuer had been removed to hospital by the time Mr McGoogan arrived at the locus. He met Mr Black, Mr Canavan and Mr Murphy. He asked them what had happened. Mr Canavan and Mr Murphy had told him that they had unloaded five or six boards manually from the tipper before it was tipped up. The tipper was raised in an attempt to remove the remaining four boards. The tipper had been raised to its three-quarter position by the pursuer. The pursuer then went to the rear of the vehicle to give Mr Murphy a hand in lifting the boards. Mr McGoogan had asked why the tipper had not been tipped to its full height but was given no explanation. Production 7/1 are photographs taken by Mr McGoogan of the vehicle at the locus. The top left photograph shows the vehicle, he said, tipped at the position it was in when the boards came off it. Mr McGoogan said that he had asked Mr Murphy and Mr Canavan why all the boards had not been removed by extending the tipper to its full height. They had replied that they were not in charge and were just doing what they were told.

[26 ] In cross examination the witness said most of the recalling of the circumstances of the accident to him was done by Mr Canavan. There was, however, no disagreement between Mr Canavan and Mr Murphy as to what had happened. The witness said that had he been carrying out the task he would have extended the tipper fully to allow all the boards to slip off onto the ground. What the witness had been told was that the accident occurred when the pursuer had passed to the rear passenger side of the vehicle to assist Mr Murphy in manoeuvring a board. The witness said that he had taken some notes of what he was told. Mr Canavan and Mr Murphy could not be specific as to whether one board or all of the four boards had struck the pursuer. Mr McGoogan accepted that what Mr Black had said in the incident form 6/6 of process differed from what he said he was told had happened. What the witnesses, Canavan and Murphy had told him seemed plausible and sensible. Mr McGoogan said that after the accident he made a recommendation that employees should be told to remove boards off the lorry by lowering the sides or mechanically tipping them off. He also recommended that such items should not be manhandled if they were covered with mud or dirt.

Pursuer's Submissions

[27 ] Junior counsel for the pursuer in his submissions invited me to hold, contrary to the evidence of Mr McGoogan, that the pursuer had been lifting a board at the time of the accident. The pursuer, Mr Canavan and Mr Murphy had all given evidence to that effect. Mr McGoogan's evidence was hearsay and contrary to what the pursuer and the two other witnesses had said on oath. Mr McGoogan accepted that his version was contrary to Mr Black's description of the accident contained in 6/6 of process. He had not interviewed the pursuer after the accident and no contemporaneous notes, made by him, had been produced.

[28 ] It was accepted by junior counsel for the pursuer that there was some dispute among the witnesses as to how many boards had struck the pursuer. Junior counsel submitted that ultimately the number of boards did not really bear upon the question of liability though it might be relevant to the question of contributory negligence. The evidence of the pursuer and Mr Murphy was that men did not know that any of the boards had remained on the vehicle and had not descended. Only Mr Canavan was to the contrary effect. Junior counsel posed the question as to why Mr Canavan was quite content to help the pursuer if he was aware of that being so. Junior counsel also submitted that the most likely scenario, in fact, was that only one board had been left on the tipper and the remaining boards had obscured the fact that it had not descended.

[29 ] While the pursuer had attended an induction course regarding his summer work there was no training given when he transferred to winter work. He had never done the particular task in question before and was not given any instruction regarding it. The defenders had not carried out any relevant risk assessment. It was to be noted that after the accident advice was given to employees regarding the appropriate way to remove such boards from the tipper vehicle. There was no instructed system of work. The pursuer and his colleagues were simply left to get on with the task which they had not done before. No advice was given to them as to how to carry out that task.

[30 ] Junior counsel submitted that the accident in question was reasonably foreseeable. It was reasonably foreseeable that an accident would occur when the boards were in the condition they were, sticking together, and remaining on the vehicle when the tipper was only tipped up partially. The pursuer's common law case of negligence had been established.

[31 ] Junior counsel for the pursuer submitted that the pursuer's case based on breach of statutory duty by the defenders had also been made out, in the first place in relation to Regulation 4 of the Manual Handling Operations Regulations 1992 and, in the second place, under Regulation 13 of the Workplace (Health, Safety and Welfare) Regulations 1992. The evidence was that, at the time of the accident, the pursuer was carrying out a lifting operation, that is the removal of approximately ten boards from the back of the lorry to a position at the side of the lorry. Reference was made to Regulation 2 of the Manual Handling Operations Regulations which provides, inter alia

" '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 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 indications 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 ....".

Reference was made by counsel then to Schedule 1 headed "FACTORS TO WHICH THE EMPLOYER MUST HAVE REGARD AND QUESTIONS HE MUST CONSIDER WHEN MAKING AN ASSESSMENT OF MANUAL HANDLING OPERATIONS". Factor 2 in column 1 of the Schedule is "the loads" and poses the question "Are they: 'Unstable or with contents likely to shift'". Junior counsel submitted that for a duty to have been imposed in terms of the Regulations, it was not necessary for the pursuer to show that the risk of injury was a risk arising from the imposition of a load and that for there to be any risk of injury for the purposes of the Regulations the injury need not be more than a foreseeable injury. That proposition was advanced under reference to the decision of the Second Division in the case of Cullen v North Lanark Council 1998 S.C.451, particularly at pages 454-455. When the employer had shown that it was not reasonably practicable to avoid the need for his employees to undertake any manual handling operation at work, which involved a risk of them being injured, the onus was on him to comply with Regulation 4(1)(b) of the Regulations. The defenders had not averred or proved that it was not reasonably practicable to avoid the need for employees to undertake the manual handling operation in question. Nor had they asserted that they had complied with Regulation 4(1)(b). I was referred by junior counsel for the pursuer to the decision of the Extra Division in the case of Davidson v Lothian and Borders Fire Board 2003 S.L.T.939 and the Opinion of Lord Macfadyen, in that case, at page 943C-944A. His Lordship there set out a submission made on behalf of the pursuer in that case which was to the following effect:

"in order to make a case under reg 4(1)(b)(ii), all that he required to prove was (i) that he was engaged in the manual handling operation, (ii) that it gave rise to a risk of injury; (iii) that an event following 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. The defenders accepted that that was so".

Although the construction of Regulation 4(1)(b)(ii) set out in that paragraph was conceded on behalf of the defenders in that case, there was no suggestion that the Court did not agree that it was correct.

[32 ] Against that background junior counsel for the pursuer submitted that the Regulations applied because the operation undertaken at the time of the accident involved manual lifting. There was a foreseeable risk of injury arising during that operation. There was no evidence led by the defenders to establish compliance with Regulation 4(1)(b)(ii). The pursuer had sustained injury from an event falling within the ambit of the Regulations. The pursuer's case of statutory fault under these Regulations was established.

[33 ] Counsel for the pursuer founded also, albeit, I think, somewhat lightly on Regulation 13 of the Workplace (Health, Safety and Welfare) Regulations 1992. Reference was made in the first place to Regulation 3 which provides that the Regulations shall apply to every workplace with certain exceptions. Regulation 3(3) continues ...

"(b) regulation 13 shall apply to any such workplace only when the aircraft, locomotive or rolling stock, trailer or semi-trailer or vehicle is stationary inside a workplace and, in the case of a vehicle for which a licence is in force under the Vehicles (Excise) Act 1971, is not on a public road".

Regulation 13 provides inter alia as follows:

"(1) So far as reasonably practicable, suitable and effective measures shall be taken to prevent any event specified in paragraph (3).

(2) So far as is reasonably practicable, the measures required by paragraph (1) shall be measures other than the provision of personal protective equipment, information, instruction, training or supervision.

(3) The event specified in this paragraph are -

(a) any person falling a distance likely to cause personal injury;

(b) any person being struck by a falling object likely to cause personal injury".

The Regulations, I was informed by counsel, had been revoked in 2005 but were in force at the time of the accident. Counsel had been unable to trace any authority giving guidance on the application of Regulation 13. Nevertheless he contended that the Regulations applied to the present case as the vehicle was a "workplace" for the purpose of the Regulations and the accident had involved "the event" of the pursuer being struck by a falling object. The defenders had failed to aver and prove compliance with the Regulation requirements and for that reason the pursuer's case of statutory fault on this basis should succeed.

[34 ] Counsel for the pursuer then turned to address the issue of contributory negligence. While he accepted that the pursuer was in de facto charge and control of the operation, on the day in question, and while it was accepted that he could have sought to have more men around or could have tipped up the lorry in a different way, it was submitted that he was a chargehand in name only and he had no particular expertise or experience in the work in question, nor had he received any instruction in relation thereto. For these reasons it was submitted that contributory negligence would only arise if the Court were to accept Mr Canavan's evidence of the circumstances of the accident. Even then, any deduction should not exceed 20%. I was invited, however, to accept the pursuer's evidence as to what happened, although junior counsel for the pursuer accepted that all of the witnesses had been doing their best to recall matters and to tell the truth. Elements of difference had arisen in their respective version of events but the material aspects of the pursuer's case had been established.

Defenders' submissions

[35 ] In reply junior counsel for the defenders invited me, in the first place, to accept that the accident occurred in the way described by Mr McGoogan, albeit that his account was hearsay. The position was that the men, including the pursuer, having removed some boards manually, the tipper was raised by the pursuer to three-quarters of its height to enable the remaining boards to slip down. This did not work. The pursuer came from the driver's side of the vehicle to help the other two men remove the boards. As he got to the rear of the vehicle the boards slipped and hit him. The pursuer himself had caused the danger of which he should have been aware. He could probably have averted that danger by raising the tipper to its full height. He did not do so but, in the knowledge that the boards might slip from the partially tipped vehicle, put himself into danger by standing where he might be struck, should the boards slip. It was not reasonably foreseeable that the pursuer should stand in front of a raised tipper in the path of boards which might slip. Counsel for the defenders criticised Mr Randle's evidence to the extent that it criticised lack of instruction on how to lift the boards. There was no foreseeable risk of injury and, if this was so, the Manual Handling Operation Regulations did not apply.

[36 ] Junior counsel for the defenders said that if he was wrong about this, and there was a foreseeable risk, 6/9 of process showed that the defenders had considered the risk. The question was whether the risk of injury had been reduced to the lowest level reasonably practicable. The lorry had sides which could be lowered and its tail could also be lowered. There was therefore good access to the loads and the load itself was quite small. More men could have been asked to assist if necessary. The accident had not been caused by any breach of those Regulations.

[37 ] As regards Regulation 13 of the Workplace (Health, Safety and Welfare) Regulations 1992, junior counsel for the defenders pointed out that the purpose of the tipper was to tip loads. Accordingly, just because a lorry had been tipped it could not be said that the defenders were in breach of the Regulations. Any duty to prevent injury from falling objects in the context of tippers must be met with a requirement not to stand in the way of the load. Requirements of reasonable practicability had been met in the circumstances of this case, or alternatively, the Court should hold that the Regulations were not ever intended to apply to circumstances like those of the present case.

[38 ] Counsel for the defenders invited me to accept Mr Canavan's evidence that he had seen the boards remaining on the tipper and that there had been a discussion among the men as to whether to tip the tipper to its full height. He had not been cross examined about this conversation. At the beginning of his cross examination Mr Murphy had accepted that he, too, could see boards remaining on the tipper. He contradicted this, however, in re-examination. Mr Canavan's version of events taken together with Mr McGoogan's evidence, established that the defenders were not at fault. The accident had been caused by the sole fault of the pursuer. I was invited to assoilzie the defenders. If, however, the Court was not prepared to assoilzie the defenders, at the very worst for the defenders there must be a very significant element of contributory negligence on the part of the pursuer, which counsel suggested would be at least 50% and would be more likely to be in the region of two-thirds.

Decision
[39 ] Whatever is clear about the circumstances of this accident, there is no doubt that the pursuer, on the evidence, received no instruction at all in carrying out the winter work with the defenders which involved removing wet and sodden boards from park greens to the defenders' depot. In particular there was no instruction given to him and his fellow employees as to the way to unload such boards, particularly when they were wet and muddy (as they, no doubt, were on occasions) and likely to stick together as a result.

[40 ] As to the way the accident occurred there were, as has been seen, some significant differences among the pursuer and the other witnesses as to precisely how the pursuer came to be struck on his ankle. I accept that all the witnesses were doing, on the whole, their best to recall events. I found Mr Canavan ultimately to be the most persuasive witness. He gave his evidence in a manner which led me to conclude that his account was probably the most likely and plausible description of how the accident occurred. I, accordingly, accept his evidence to the effect that he and the pursuer were attempting to lift a board which had slipped off the vehicle but by doing so they released the pressure on boards which had remained on the tipper causing them to move and to strike the pursuer on the ankle. I also accept his evidence that if the vehicle had been tipped up to its full height the boards would probably all have slipped off the lorry on to the ground and the accident would not have occurred. The witness, as has been seen, said that he considered that seeking to lift the boards while others remained on the tipper was dangerous, and that either he or Mr Murphy advised the pursuer to tip the truck to its maximum height but that the pursuer declined to do so saying that he did not wish the boards damaged and that they should be removed manually. I also accept that none of the boards, apart from a couple of broken ones, had been removed before the vehicle was tipped and that the tipping had allowed only some of the boards to slip off the vehicle while others remained on it. This view of events was substantially supported by Mr Murphy, who in cross examination agreed that it should have been obvious to the pursuer that four boards remained stuck on the tipper, although in re-examination he said that he himself did not realise that all the boards had come down but he was, at the material time, standing in a different position from the pursuer and Mr Canavan.

[41 ] In the foregoing findings I am satisfied that the pursuer has made out his case of fault on the part of the defenders at common law in their failure to establish a safe system of work. Simply supplying a vehicle which had side flaps, in my judgement, did not satisfy their duty to provide their employees with a safe system of work and they ought to have instructed the pursuer and his fellow employees in the use of the tipper for loading and unloading loads like the boards in question. Those instructions should have been that the boards should have been removed from the side of the vehicle or, alternatively, that the tipper be extended to its full height and the boards deposited on the ground. If the latter method was to be used then their employees should have been instructed to ensure that all the boards had left the tipper before seeking to lift them from the ground. I was not impressed by submissions, made on behalf of the defenders, that the pursuer was an experienced man who should not have required to have been instructed at all about these things. His experience did not extend to this kind of work, involving this kind of vehicle, and the unloading of this kind of load from it.

[42 ] I am satisfied that the pursuer has also made out his case on the basis of breach of the Manual Handling Operations Regulations 1992. It seems to me that the Regulations did apply to the operation in the question for the reasons advanced by counsel for the pursuer, as noted above, and that the defenders have failed to discharge the onus on them to show that they took any reasonable steps to reduce the risk of injury in terms of Regulation 4(1)(b)(i) and (ii).

[43 ] As far as the case made on the basis of Regulation 13 of the Workplace (Health, Safety and Welfare) Regulations 1992, as has been noted, there is apparently no decided authority dealing with the application of these now revoked provisions. In the absence of any such guidance I am not satisfied that the pursuer has made out that its provisions were intended to apply to the use of a tipper truck which is, ex hypothesi, used for tipping out loads. In any event having reached the views I have on the pursuer's common law case and his case on the Manual Handling Operations Regulations, it is not necessary for me to reach a concluded view on that question.

[44 ] On the findings in fact I have made I have no hesitation in reaching the conclusion that the pursuer should be held to be the author of his own misfortune to a very substantial extent. He, in my judgement, should have seen that there were boards remaining on the tipper which were, to some extent, being supported by the board he chose to move and he should have realised that by moving that board the remaining boards on the rear of the tipper might move and hit him. He could have, in that situation, either raised the tipper to its full height (and no satisfactory explanation was ever given by him as to why he did not do so) or returned the tipper to the horizontal and removed the remaining boards from the side of the lorry. In failing to do these things I find him to have been contributory negligent to the extent of 50%. Damages payable to the pursuer by the defenders are, accordingly, £37,500 having regard to the agreed schedule of damages, said sum being inclusive of interest until the date of the commencement of proof, therefore interest is attracted at the rate of eight per cent per year on the sum of £37,500 from 27 February 2007 until payment.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Robertson v. Glasgow City Council [2007] ScotCS CSOH_89 (29 May 2007) URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_89.html Cite as: [2007] ScotCS CSOH_89, [2007] CSOH 89

Scottish Court of Session Decisions