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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McLellan v Dundee City Council [2009] ScotCS CSOH_9 (28 January 2009) URL: http://www.bailii.org/scot/cases/ScotCS/2009/2009CSOH9.html Cite as: 2009 GWD 5-86, 2009 Rep LR 61, [2009] CSOH 9, [2009] ScotCS CSOH_9 |
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OUTER HOUSE, COURT OF
SESSION [2009] CSOH 9 |
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PD2305/07 |
OPINION OF LORD HODGE in the cause RODNEY McLELLAN Pursuer; against Defender: ________________ |
Pursuer: McNaughtan, Advocate; Digby Brown SSC
Defender: Kennedy, Advocate; Gillespie MacAndrew LLP
Factual
background
[2] The pursuer is forty-two years old. He is employed by the defenders as a waste
management worker. In 2004 the
defenders employed him as a gardener. He
then left their employment for a while but returned in January 2005 to
work for the defenders as a gardener. In
April 2005 the defenders decided to employ him as a driver of a triple
mower, which I describe in paragraphs 3 and 4 below, to cut large
areas of grass on their housing estates in
The
[3] The triple mower with which the
defenders provided the pursuer was manufactured by Ransomes Jacobsen Limited
and was called a Highway 2130. It
was a four-wheeled machine and had two cylindrical cutters ("the side
cutters"), which were located in front of the front wheels of the mower and
extended at each side beyond the length of the front axle, and a slightly
smaller central cylindrical cutter ("the central cutter") which was located
beneath the vehicle below the driver's seat and between the front and rear
wheels. Thus the machine had three
cutters, namely the two side cutters and the central cutter, which could be
operated simultaneously and thus enable the operator to cut a wide strip of
grass. The driver operated the machine
from his seat, steering it with a steering wheel and controlling the cutters by
controls located close to his seat. From
there he was able to raise or lower the cutters or reverse the cutters by
operating the controls. It is
significant to this case that the cylindrical cutters were powered by hydraulic
pressure. As a result, when a
cylindrical cutter became blocked by grass or some other obstruction, it was
possible for energy to be retained in the drive and for that energy to cause
the cylindrical cutter to kick or partially rotate when the blockage was
released.
[4] The
side cutters of the triple mower could be raised into a vertical alignment
immediately in front of the front wheels.
This reduced the width of the machine and assisted the driver to drive
the machine on the roads from site to site.
It also made it easier for the driver to clear any blockages in the side
cutters as he could have easy access to them while standing beside the
machine. By contrast, if the central
cutter became blocked, it could be raised by only 4 to 5 inches
underneath the machine and the driver would require to obtain access to the
central cutter from close to the ground, either from behind the machine and
between the rear wheels or from the side between the front and rear
wheels.
[5] Ransomes Jacobsen
Limited provided a safety and operation manual with their triple mowers and the
defenders had copies of the manual.
Paragraph 3.1 of the manual advised that the instructions should be
read and understood and that no person should be allowed to operate the machine
unless he was fully acquainted with all the controls and the safety
procedures. Paragraph 3.8 of the
manual contained the following advice in relation to blocked cutting cylinders:
"Stop the engine
and make sure all moving parts are stationary.
Apply brakes and
disengage all drives.
Release blockages
with care. Keep all parts of the body
away from the cutting edge.
Beware of energy
in the drive which can cause rotation when the blockage is cleared. ..."
The
pursuer's training
[6] When in April 2005 the pursuer was
instructed to work as a driver of a triple mower, he was trained to do so by
another employee of the defenders, Mr Darren Taylor, who was also employed
as a gardener and who had considerable experience in operating triple
mowers. The pursuer's training appears
to have lasted from 12 to
[7] There
were discrepancies between the evidence of the pursuer and that of Mr Taylor
on the extent and content of the training.
Those discrepancies are however not material to the determination of
this case. I found Mr Taylor's
evidence to be more reliable than that of the pursuer in this matter as I
formed the view that the pursuer in his evidence tended to play down the extent
of his training. I also formed the view
that Mr Taylor was an honest witness who did his best to recall what had
occurred in this case and what his usual
practice had been when training drivers of triple mowers. In particular I do not accept the pursuer's
evidence that he was not told to keep his hands away from the cutting blades
nor do I accept his evidence that Mr Taylor did not demonstrate to him how
to clear blockages in the central cutter during the period of familiarisation
training in the days which followed the initial training on 12 April 2005.
[8] The
defenders' time sheets supported the view that Mr Taylor had spent
seventeen hours in training the pursuer in addition to the time he spent
working with him between 12 and
[9] The substance
of the instructions which Mr Taylor gave the pursuer on the clearing of
blocked cutters was as follows. When a
blockage occurred the driver was to switch off the power. If the blockage was in the front cutters he
would first raise the cutters into a vertical alignment to facilitate
clearing. If the blockage was in the
central cutter the driver would first raise the cutter a few inches off the
ground to facilitate access to it. The
driver would then use a crowbar which was kept on the back of each triple mower
to release the blockage. He could use
the crowbar to apply leverage from the central spindle of the cutter to move
the cutter in a reverse direction and thus release the blockage. Mr Taylor also suggested that he could
use the crowbar to scrape grass away from the cutter. He explained that the driver should not in
any circumstance place his hands near the cutting blades. It was Mr Taylor's practice to lie on
his back or on his side beside the mower and reach in under the machine between
the front and rear wheels in order to use the crowbar to apply leverage to the
blades of the central cutter to move them in a reverse direction. I am satisfied that the pursuer observed him
doing so. Mr Taylor's instruction
was that if a driver could not clear the blockage with the crowbar he should
then adjust the height of the cutting blades to lift them away from the sole
plate.
[10] The
defenders' system of in house training by an experienced operator who was
designated to train new drivers by passing on his knowledge had significant
advantages as the new driver was able to obtain a practical training from the
operator. The weakness of that system
however was that if the trainer were unaware of a material risk, the person
whom he trained would also be ignorant of that risk. The defenders had prepared a risk assessment
dated
[11] What Mr Taylor
did not know at the time and what he did not explain to the pursuer was that
when a cutter became blocked it was possible for hydraulic pressure to be
retained in the pipes so that on release of the blockage the cutter could
partially rotate under that pressure. Mr Taylor
explained that he first learned of this fact after the pursuer's accident and
he was not shaken from that stance by the questions of the defenders'
counsel. Mr Taylor also confirmed
the pursuer's evidence that he had not shown the pursuer the safety and
operation manual referred to in paragraph 5 above. In the light of this evidence Mr Kennedy
conceded in his submissions that the defenders had breached
regulations 8(1) and 9(1) of the Provision and Use of Work Equipment
Regulations 1998 and regulation 3(1) of the Management of Health and
Safety at Work Regulations 1999. See paragraph 23 below.
[12] The
pursuer also received instruction from Mr Ian Bridges of Ransomes Jacobsen
Limited on
[13] Accordingly,
although the pursuer denied this, I am satisfied that both Mr Taylor and Mr Bridges
had advised him, before he suffered the accident, to keep his hands away from
the cutting blades in all circumstances.
The circumstances
of the pursuer's accident
[14] On the morning of
[15] The
pursuer called on Mr Taylor to assist him.
Mr Taylor summoned an ambulance.
While waiting for the ambulance to arrive, the pursuer said to Mr Taylor
that he (the pursuer) should not have been so stupid. Mr Taylor was concerned for the
pursuer's welfare. He covered the
pursuer's hand with his hat and raised his right arm in an attempt to stanch
the bleeding. He recorded in his report
that the pursuer had told him that the central cutter had moved round when he
was attempting to clear a blockage and had trapped his finger and thumb. He saw the crowbar on top of the pursuer's
mower.
[16] The
defenders challenged the pursuer's account of the accident, suggesting that he
had not worn gloves and that he had not used the crowbar. Mr Kennedy in cross-examination
suggested to the pursuer that he had used his bare hands in an attempt to
release the blockage but the pursuer denied this. I accept the pursuer's account of the
accident. While the pursuer did not mention to the medical staff in
[17] The
nature of the injuries to the pursuer's thumb and index finger is as consistent
with the pursuer having held the crowbar close to the cutting blades
immediately before the injury as it is with the pursuer having gripped the
grass around the cutter or a cutting blade with his right hand. Again the pursuer informed Mrs Mustard
that he had used the crowbar and she recorded that in her accident report. I accept that the pursuer was not precise in
his evidence as to the mechanism by which the blockage was released and as to
what caused him to drop the crowbar. But
I would not have expected a person who suffered a traumatic accident necessarily
to remember the precise mechanisms which led to his injury. He reported to Mrs Mustard shortly after
the accident that he did not know how it occurred.
[18] Mr Taylor
in his evidence about the accident, apart from stating that he was working
closer to the pursuer than the pursuer had suggested when the accident
occurred, did not contradict the pursuer's account. He did not see the accident occur and was
alerted by the pursuer's shouting.
While, as Mr Alistair Raeburn pointed out, it is not clear how the
pursuer dislodged the blockage by running the crowbar between the cutting
blades and the sole plate and there is no explanation of the mechanism which
caused him to drop the crowbar, those considerations do not persuade me that
the pursuer's account of his accident is materially inaccurate.
[19] The
defenders also attacked the pursuer's credibility on the ground that he had
misled officials when seeking a jobseeker's allowance by suggesting that his
employment by the defenders as a gardener had been temporary and had come to an
end, whereas the truth was that he had quarrelled with Mrs Mustard and had
resigned. The pursuer when questioned on
this issue accepted that he might have said that and that it was untrue. This incident however did not alter my
assessment of the pursuer. While he was
unreliable as to the details of his training and he did not give a clear
account of the precise mechanism by which he lost control of the crowbar and
his hands came into contact with the cutter, I accept that he was attempting to
tell the truth about the accident and that his account of the accident is
generally reliable. There was no factual
evidence which pointed strongly to an alternative explanation of the
accident. The pursuer's account in
evidence was consistent with the account which he gave to Mrs Mustard
shortly after the accident which she recorded in her accident report. Both then and in his evidence the pursuer did
not claim to know precisely how the accident happened.
Expert evidence
[20] The pursuer called Mr Ian Garry, a
chartered mechanical engineer, to give expert evidence both on the mechanism by
which the hydraulic system retained pressure on a cutter in the event of a
blockage and also on the alleged failures of the defenders in their statutory
duties. The defenders did not challenge
his description of the means by which the mower had this stored energy in the
cutters: the hydraulic system had non-return valves which preserved the
pressure in the hydraulic pipes against the cutters. On release of the blockage there would be
some movement of the cutters until the stored energy was dissipated. He opined that where sufficient energy was
stored in the hydraulic system it was foreseeable that amputation injuries
could occur if an operator's hands came into contact with the moving blades. He also expressed certain views on the legal
duties owed by the defenders but recognised that those legal issues were for
the court rather than an expert witness to determine.
[21] The
defenders called Mr Alistair Raeburn, an occupational health and safety
consultant, to give expert evidence. He
gave a description of the hydraulic system of the machine which was similar to Mr Garry's
account. He had been informed by the
defenders that the primary method of clearing blockages of the central cutter
was for the operator while remaining on his seat to use his controls to put the
cutter into reverse. Some operators whom
the defenders employed may have used that method but Mr Taylor disapproved
of this action which he said could damage the machine. Accordingly the pursuer had not been taught
to do so. Mr Raeburn's
understanding of the defenders' fall-back method of clearing blockages in the
central cutter involved the operator lying down at the rear of the machine and
inserting the crowbar into the back of the central cutter in order to apply
downward leverage on the blades to move them in a reverse direction and so
remove a blockage. This method, which
removed the risk of the operator's hand being caught between the blades and the
sole plate, differed from that which Mr Taylor had taught the
pursuer. Accordingly the information
which the defenders' officials gave Mr Raeburn differed from the factual
evidence of the pursuer and Mr Taylor.
Nor was Mr Raeburn aware when he wrote his report of the defenders'
failure to warn the pursuer of the risk of stored energy in the cutters. He also expressed views in his report on
various grounds of liability, which were legal matters for the court, but his
views fall to be considered in the light of the factual findings which are at
variance with what he had been told.
Liability
[22] I have accepted the pursuer's evidence as
to what he had been doing when the accident occurred. As I also accept his evidence that if he had
known of the risk of the cutter blades kicking or partially rotating on the
release of stored energy he would have been more apprehensive, I am satisfied
that there is a causal link between the defenders' admitted breaches of
statutory duty and the pursuer's loss. I
am also persuaded that the defenders were in breach of their common law duty of
care to the pursuer. At the same time, I
am satisfied that the pursuer was guilty of contributory negligence. I deal with each in turn.
Breach of
statutory duty
[23] I consider that Mr Kennedy was
correct in his concession that the defenders were in breach of
regulations 8(1) and 9(1) of the Provision and Use of Work Equipment
Regulations 1998 and regulation 3(1) of the Management of Health and
Safety at Work Regulations 1999. In
relation to regulation 8(1) of the 1998 Regulations I am satisfied
that the defenders did not provide the pursuer with adequate health and safety
information in relation to the triple mower.
I am not convinced that it was necessary for the defenders to give the
pursuer written instructions but their reliance on in house training by an
experienced operator without providing him with a check list left them at risk
of important hazards being overlooked if the trainer were not aware of or had
forgotten about the particular risks.
For the same reasons I am satisfied that the defenders were in breach of
regulation 9(1) of the 1998 Regulations as they did not provide
adequate training for the purposes of health and safety to the pursuer who used
work equipment. I am also persuaded that
the defenders were in breach of regulation 3(1) of the 1999 Regulations
because they did not make a suitable and sufficient assessment of the risks to
the health and safety of their triple mower drivers to which they were exposed
when operating the mowers. While the
inadequacy of the risk assessment may not have mattered if the pursuer had
otherwise been warned of the danger of stored energy in the cutters, the
absence of such warning means that there was a causal connection between the
inadequate risk assessment and the accident.
[24] I am
not persuaded that the defenders were guilty of a breach of statutory duty
under regulation 4 of the 1998 Regulations in providing (a) the
triple mower for the use to which it was put and (b) the crowbar for
clearing blockages in the cutters. I consider that both were suitable for the
purposes for which they were used. In reaching this view I have taken account of not only the suitability of the
mower for cutting grass but also its suitability for the incidental task of
clearing blockages of the cutters: English v North Lanarkshire Council 1999 SCLR 310, Robb v Salamis (M & I) Limited 2007 SC (HL) 71. Mr McNaughtan did not challenge Mr Raeburn's
evidence that the triple mower conformed to the Supply of Machinery (Safety) Regulations 1992
in relation to the essential health and safety requirements in Schedule 3
of those Regulations and had an EC declaration of conformity. He argued that the triple mower was dangerous
when used to cut long grass in wet weather because of the propensity of the
central cutter to become blocked when so used.
I am not persuaded that that is so.
While blockages of the cutters and in particular the central cutter may
occur frequently when the mower is used in such conditions, the proper use of
the crowbar provided or a similar instrument such as a wooden baton or
shortened brush handle would enable an operator to release blockages without
exposing himself to material risk. There
appears to have been no significant danger in using the crowbar on the side
cutters when they were raised and I see no significant problem in the proper
use of the crowbar on the central cutter particularly if the operator gains
access to the cutter from the rear of the machine. While an employer must allow for the careless
or inattentive worker (Robb v Salamis above), I am not persuaded that
the work equipment provided was unsuitable for use in wet weather if the
defenders had complied with regulations 8 and 9 of the 1998 Regulations.
[25] I am
also not persuaded that the defenders have breached regulation 7(2) of the
1998 Regulations. While the
pursuer's counsel submitted that this regulation had been breached on the basis
that the defenders had not given the pursuer adequate information, instruction
and training, I am satisfied that the regulation refers to training in relation
to the repair, modification, maintenance or servicing of work equipment and not
in relation to incidental activity when using the equipment, such as clearing a
blockage. Similarly I am satisfied that
the defenders were not in breach of regulation 22 of those Regulations as
the work which the pursuer was carrying out was not a maintenance operation in
terms of those Regulations. See
regulation 5 of those Regulations.
[26] I am
also not persuaded that the defenders were in breach of regulation 11 of
the 1998 Regulations which requires employers to ensure that measures are
taken which are effective to prevent access to any dangerous part of machinery
or stop the movement of that dangerous part before any part of a person enters
a danger zone. I note, as Mr McNaughtan
pointed out, that one of the methods of avoiding the mischief in
regulation 11(1) is the provision of information and training and the
guidance accompanying the regulation suggests that the risk assessment should
identify the relevant hazards. But,
while the defenders' risk assessment was defective as I have said, the inclusion of a warning about stored
energy would not have resulted in a restriction of access to the central cutter
nor would it have stopped its movement.
The inadequacy of the risk assessment is accordingly not a breach of
regulation 11(1).
[27] Finally
in relation to statutory duties, I record that Mr McNaughtan did not seek
to argue that the defenders had been in breach of regulations 4, 5
or 10(1) of the 1999 Regulations as asserted in the Summons.
(ii) The defenders' breach of their duty of
care
[28] I am satisfied that in their failure to
alert the pursuer to the danger posed by the stored energy in the hydraulic
system and the resulting propensity of the cutter to kick or partially rotate
the defenders failed in their duty of care to the pursuer. I have accepted that the defenders and Mr Bridges
emphasised the importance of keeping hands away from the cutting blades in all
circumstances, but, significantly, the defenders did not alert the pursuer to
the danger of serious injury from the rotation of the cutter when the engine
was switched off. He should have been
told not only that when he used the crowbar he should keep his hands as far away from the blades as
possible but also of the risk which he faced if he did not do so. He was not so advised. As a result the pursuer was exposed to the
risk of a significantly more serious injury than that which he could reasonably
have foreseen. He should have foreseen
that he might suffer serious cuts on his hands if he sought to place his hands
close to or against sharp blades. But on
the information which the defenders had given him, he had no reason to foresee
the possibility of a serious crushing injury resulting in the amputation or
partial amputation of a finger. Had he
known of the risk, I accept his evidence that he would have been more careful. The defenders were or should have been aware
of that risk as they knew or should have known the terms of the manufacturer's
safety and operation manual. Even if it
was rare for a cutter to rotate significantly on the release of a blockage, the
risk of serious injury was significant.
The manufacturer had seen fit to warn of the danger and the defenders
should have alerted the pursuer to it.
Accordingly they failed in their duty of care.
(iii) Contributory negligence
[29] I consider also that the pursuer was
guilty of contributory negligence. He
held the crowbar in such a way that his right hand was in very close proximity
to the cutting blades while he tried to clear the blockage. He ought reasonably to have foreseen that he
might suffer serious cuts on his fingers or other parts of his hand if his hand
were to slip. He had been instructed to
keep his hands well clear of the cutting blades at all times. I infer from his comment after the accident
about his stupidity that he recalled those instructions and recognised that he
had contributed to his injury. But the
primary blame for the accident in my opinion must fall on the defenders as his
employers in their failure to alert him to a significant risk of very serious
injury. While a person may be guilty of contributory
negligence if he fails to take account of the possibility of others being careless
(Jones v Livox Quarries Limited [1952] 2 QB 608, Denning LJ
at 615), an employee is normally entitled to assume that his employer has
complied with his statutory duties: Westwood
v Post Office [1974] AC 1,
Lord Kilbrandon at 16-17. In this case the defenders had not and so exposed the pursuer to a serious
risk of which he was unaware. An employer in carrying out his statutory
duties and in the exercise of his common law duty of care towards his employees
must recognise that an employee may not act with care at all times: Smith v Chesterfield and District Co‑operative Society Limited [1953]
1 WLR 370, General Cleaning
Contractors Limited v Christmas [1953]
AC 180, 189. In the circumstances I
assess the pursuer's share in the responsibility for the injury which he
sustained through contributory negligence at twenty per cent.
Quantification of
loss
[30] The parties agreed the quantification of
the pursuer's claim in their joint minute as follows:
Solatium £11,500 (inclusive of
interest to
Past wage loss £1,430 (inclusive of interest to
Future loss of
employability £2,500
Services
(ss. 8 & 9
of 1982 Act) £1,000 (inclusive of interest
to
Further, they agreed that interest was to run on the
total of £16,430 at the rate of 4 per cent per year from
[31] I have
merely to apply to the agreed figure the deduction of twenty per cent for the
pursuer's contributory negligence.
Disposal
[32] I therefore pronounce decree against the
defenders for payment to the pursuer of £13,144 with interest thereon from