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SECOND DIVISION,
INNER HOUSE, COURT OF SESSION
|
Lord Justice Clerk
Lord Drummond Young
Lord McEwan
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[2013]
CSIH 57
XA132/12
OPINION OF
THE COURT
delivered by
LORD DRUMMOND YOUNG
in
APPEAL
from the
Sheriffdom of North Strathclyde at Dumbarton
by
CAROL
KENNEDY
Pursuer and Appellant;
against
CHIVAS
BROTHERS LIMITED
Defenders
and Respondents:
_______________
|
Act: Fitzpatrick;
Digby Brown LLP
Alt: A Cowan, Solicitor
Advocate; Simpson & Marwick
20 June 2013
[1] The
pursuer and appellant is employed by the defenders and respondents as a line
operator, working in a bottling plant operated by them at Kilmalid, Dumbarton.
On 20 October 2009 she was working in the course of her employment with the
defenders when she sustained an accidental injury to her hand. In the present
action she seeks reparation for the loss sustained by her in consequence of
that accident. The action proceeded to proof in Dumbarton Sheriff Court, and on
28 June 2012 the sheriff granted decree of absolvitor.
The sheriff's
findings in fact
[2] The
sheriff made detailed findings in fact. Counsel for both parties submitted a
number of amendments to these. We have accepted all of the amendments proposed
by counsel, on the basis of the transcript of evidence. The following
narrative is based on the sheriff's findings in fact as so amended. On 20
October 2009 the pursuer was working in the course of her employment with the
defenders as a line operator at their bottling plant at Kilmalid. She was
working on one of eight bottling lines in the part of the plant known as Clyde
Hall, line 4, which is the fastest running of the eight lines. A number of
processes are carried out on each bottling line. These include the placing of
caps on the bottles once they are filled and the fixing of labels to the
bottles. Caps for placing on bottles are stored in a cap store on the floor
beneath the bottling lines. The caps require to be transported from the store
to the head of each of the eight bottling lines in Clyde Hall. At the head of
each line is a hopper into which quantities of caps are loaded from time to
time. The caps are transported from the store to the hopper by way of
trolleys. Employees known as cap men load the trolleys with cardboard boxes
containing caps, and then take the trolleys to the lines by way of a lift. On
line 4, where the pursuer was working, the trolley is filled and taken to the
line between six and eight times on average per shift. A filled trolley holds
25 boxes of bottle caps, arranged in five layers with five boxes on each layer.
[3] Photographs
of the bottling lines and the type of trolley used by the pursuer are available
among the productions. In order to illustrate what happened to the pursuer, we
reproduce three of these photographs. The first shows two of the bottling
lines, line 4, where the pursuer was working, on the left and line 5 towards
the right. The bottom of the line, where trolleys are delivered by the cap
men, is at the back of the photograph. The hoppers in which the caps are
placed are situated at the other end of the line, below the bottom of the
photograph. The gap between the autocol machines, referred to below, can be
seen where a line operator in a safety vest is standing. In front of her are
the autocol machine and associated bin for line 4. Their equivalents on line 5
can be seen immediately behind her, slightly closer to the camera. One of the
trolleys, laden to a fifth layer, can also be seen. The second and third
photographs each show one of the trolleys. The second illustrates the
structure of the trolley, which is basically a steel frame with wire cages
along three of the sides. The third photograph illustrates the trolley as it
passes through the gap between the autocol machines and associated bins; a bin
is on the right.
[4] The hopper
for the caps is at the head of each line. The loaded trolleys are delivered by
a cap man to the hopper at the top of the line. If, however, a cap man is
unable to do that for any reason, an operator on the line such as the pursuer
is expected to push the trolley from the bottom of the line to the hopper at
the top of the line. The distance from the store to the bottom of line 4 is
approximately 150 m, and the distance from the bottom of line 4 to the hopper
is approximately 50 m.
[5] The
trolleys used by the defenders are 81 cm in width, 118 cm in length, and 181 cm
in height. They consist of a cage with one open side, and are mounted on four
wheels. Two of the wheels are fixed and two of them rotate or swivel to assist
steering. The trolleys are designed to carry a maximum load of 500 kg. The
boxes of caps that are loaded on to the trolleys are 27 cm in height. The
weight of the load on the trolley that was being taken up line 4 at the time of
the pursuer's accident was approximately 380 kg. The trolleys are robust, and
are designed in such a way as to prevent the load carried on them from
toppling. The dimensions of the wheels of the trolleys are in accordance with
guidance issued by the Health and Safety Executive.
[6] The
processes carried out on each bottling line include the fixing of labels. This
is carried out by a labelling machine known as an autocol machine. The autocol
machines on line 4 and line 5 protrude from the side of the bottling line into
the passage that runs between them. This is the passage that the trolleys must
negotiate to take the boxes of caps to the hopper at the head of line 4. The
trolleys must be manoeuvred between the autocol machine on line 4 and the
autocol machine on line 5. Photographs of lines 4 and 5 and the passage
between them show the two autocol machines. Next to each machine is a plastic
bin which is required to catch the waste that results when backings are removed
from self-adhesive labels. The sheriff finds that there is adequate room
between these machines through which to manoeuvre the trolleys safely. For
reasons that we will discuss later, we are of opinion that this finding is
misleading.
[7] On
occasion the swivelling wheels of the trolleys become aligned other than in the
direction of intended travel, making it difficult to move the trolley in that
direction. The trolley wheels stick and come to a stop. On those occasions it
is necessary to realign the wheels. The trolleys used by the defenders at
their bottling plant are "industry standard" trolleys for the industry in which
the defenders operate. The sheriff finds that they are "suitable for the use
to which they are put". This finding of suitability was challenged by counsel
for the pursuer. Although it is not wholly clear, the finding appears to
relate to the use of the trolleys at the bottling plant in the manner in which
the trolley was being used at the time of the pursuer's accident. If this is
so, we are of opinion that this finding should not have been made, for reasons
discussed below.
[8] In
relation to the pursuer's accident, the sheriff makes the following findings in
fact. On 20 October 2009, during the course of the shift that she was working
that day, the pursuer required to move a trolley loaded with caps from the
bottom of line 4 to the hopper at the top of the line. When trying to
manoeuvre the trolley between the autocol machines on lines 4 and 5 she
experienced difficulty with the wheels on the trolley, in that they appeared to
be stuck. Until that point she had been pushing the trolley. She then went to
the other end of the trolley to try to pull it through the gap between the
autocol machines. When the pursuer experienced this difficulty, she did not
seek any assistance, or report a problem with the trolley; nor did she do so at
any point thereafter prior to the accident. An operator from the neighbouring
line, Margaret McIntyre, observed the pursuer having difficulty and went to
assist by pushing the trolley from the other end. At about this time the
trolley wheels became free or unstuck, and as the trolley moved between the two
autocol machines the pursuer's hand came into contact with one of the machines
and was injured. Both of her hands were situated on the outside of the cage of
the trolley, which, we note, did not have any handles. The pursuer was wearing
safety gloves at the time, the wearing of such gloves being compulsory. The
accident was reported to the defenders. The pursuer did not work any further
on her shift and received medical treatment. The trolley that she had been
moving remained in circulation, and was moved by another person to the hopper,
unloaded, and taken back to the bottom of line 4 for further use.
[9] The
defenders maintain a computerised record of reported faults and trolleys.
Between 20 March 2007 and 6 November 2009 15 faults in relation to trolleys
were reported, of which four related to wheels. The defenders have a system in
place for taking defective trolleys out of circulation for repair. On the
morning after the pursuer's accident all of the trolleys in circulation in the
Clyde Hall were checked for defects, and were found to be free of defects.
Operators were instructed to report faults with equipment, including faults
with the trolleys. The pursuer had made no complaint about the trolleys prior
to the accident. The defenders did not receive any complaints from any other
person about the condition of the trolleys prior to the pursuer's accident.
The defenders took disciplinary proceedings against the pursuer in respect of
the accident. In the course of those proceedings, they received a handwritten
note, signed by a number of operators on line 4, raising an issue with regard
to the use of the trolleys.
[10] The trolley
being moved by the pursuer when she had her accident did not have any defect in
its wheels. The reason for the wheels' apparently sticking was that one or
both of the swivelling wheels on the trolley had become out of alignment with
the intended direction of travel, causing resistance to the trolley's movement
in that direction.
[11] The
defenders carried out a general risk assessment of manual handling operations
to be undertaken by employees working on their bottling lines, in particular
line 4. These included the delivery of caps to those lines. Nevertheless, no
specific risk assessment had been made of the operation of moving trolleys
loaded with caps from the bottom to the top of the bottling lines such as line
4.
[12] The sheriff
found that the task of moving trolleys loaded with caps from the bottom to the
top of a bottling line such as line 4 is a simple task which does not involve
real and foreseeable risk of injury. He further found that the moving by a
line operator of a trolley loaded with caps from the bottom of the line to the
hopper does not and did not at the time of the pursuer's accident involve a
foreseeable and real risk that the line operator might be injured as the
pursuer was. Counsel for the pursuer submitted that that finding should be
deleted. For reasons that we discuss below, we are of opinion that the finding
was not justified, and we accordingly agree with that submission.
[13] The sheriff
further finds that it is not reasonably practicable to deliver caps to the
hopper at the top of the bottling lines other than by way of the trolleys which
the defenders use for that purpose. Counsel for the pursuer submitted that
that finding should be deleted. We agree, for reasons discussed below. The
Sheriff continues by finding that there is insufficient room between the lines
for this operation to be carried out by a forklift truck. An automated system
which had been in use before the introduction of the trolleys had been
problematic. The installation of an automated system would necessitate
substantial structural alteration to the defenders' premises. No other
measures to reduce the risk of injury to workers in moving trolleys loaded with
caps had been put in place.
[14] On 17 March
2009 the pursuer received manual handling training, which lasted for
approximately 2 hours. During the course of this training the pursuer and
other operators were given information about the safety aspects of pushing and pulling
objects. While a water canister was used for demonstration purposes, the
information given applied to any piece of equipment which required to be
moved. In particular, operators, including the pursuer, were instructed that
before manoeuvring any load they should assess the load, that they should seek
assistance if it were not possible to manoeuvre of the load, that pushing
rather than pulling is the preferable manual handling technique, that they
should not take risks, that the techniques they were shown were to be applied
to all manual handling aids, and that they should reduce the height of any load
if it were too high. Operators including the pursuer were also instructed that
they should not place their hands on any item of equipment in a position which
would expose their hands to the risk of injury. Finally, the defenders have
formal health and safety procedures, including procedures for reporting defects
and raising issues regarding working practices and equipment.
The pursuer's case
[15] On
appeal, the pursuer's case was based first on regulations 4 and 5 of the
Provision and Use of Work Equipment Regulations 1998 and secondly on
regulation 4 of the Manual Handling Operations Regulations 1992. Counsel
for the pursuer submitted that the sheriff was in error in his application of
those statutory provisions. We will deal with these in turn, and will then
consider the question of contributory negligence, which is pled by the
defenders.
Provision and Use of
Work Equipment Regulations 1998, regulation 4
[16] Regulation
4 (suitability of work equipment) of the Provision and Use of Work Equipment
Regulations 1998 is in the following terms:
"(1) Every
employer shall ensure that work equipment is so constructed or adapted as to be
suitable for the purpose for which it is used or provided.
(2) In
selecting work equipment, every employer shall have regard to the working
conditions and to the risks to the health and safety of persons which exist in
the premises or undertaking in which that work equipment is to be used and any
additional risk posed by the use of that work equipment.
(3) Every
employer shall ensure that work equipment is used only for operations for
which, and under conditions for which, it is suitable.
(4) In
this regulation 'suitable'-
(a) subject
to sub-paragraph (b), means suitable in any respect which it is reasonably foreseeable
will affect the health or safety of any person;
...".
The sheriff found in
fact that the trolley was work equipment within the meaning of regulation 4.
[17] It is clear
from the wording of regulation 4 that its application is critically dependent
upon the precise facts of the case under consideration. Thus paragraph (1)
requires that work equipment be suitable "for the purpose for which it is used
or provided". It follows that the fact that work equipment is of a type that
is commonly used in the industry, or conforms to British Standards, is not
conclusive; what matters is suitability for the particular task for which it is
to be used. Likewise, paragraph (2) requires employers to have regard to the
working conditions and risks to health and safety "which exist in the premises
or undertaking in which that work equipment is to be used". Once again, the
particular factual context is of critical importance. Similarly, paragraph (3)
provides that employers should ensure that work equipment is used "only for
operations for which, and under conditions for which, it is suitable".
[18] The word
"suitable" is defined in paragraph (4) by reference to a test of reasonable
foreseeability. That test has recently be considered by the Court of Appeal in
England in Hide v The Steeplechase Company (Cheltenham) Ltd,
[2013] EWCA Civ 545. (We observe that the judgments in Hide were issued
on the first day of the present appeal; Mr Cowan very properly drew the case to
our attention, notwithstanding that, as he acknowledged, it did not assist his
clients' position). The facts of that case, which involved an accident at
Cheltenham Racecourse, are far removed from the present. The court required,
however, to decide a question that had been identified by Lord Clyde in Robb
v Salamis, [2007] ICR 175, [2006] UKHL 56 namely whether regulation
4(4) accurately transposed article 5(4) of the European Framework Directive on
the introduction of measures to encourage improvements in the safety and health
of workers (89/391/EEC). The 1998 Regulations are intended to implement the
obligations of the United Kingdom under the Framework Directive and the Use of
Work Equipment Directive (89/655/EEC), and article 5(4) of the Framework
Directive is the provision that authorises measures such as regulation (4)
which exclude or limit employers' responsibility for accidents caused by work
equipment in certain circumstances. Article 5(4) provides as follows:
"This Directive shall not restrict the
option of Member States to provide for the exclusion or the limitation of
employers' responsibility where occurrences are due to unusual and
unforeseeable circumstances, beyond the employers' control, or to exceptional
events, the consequences of which could not have been avoided despite the
exercise of all due care".
In Hide,
Longmore LJ indicated (at paragraph 22) that, agreeing with Lord Clyde, he
found it difficult to see any origin for regulation 4(4) other than
article 5(4) of the Framework Directive. On that basis, he stated (at
paragraph 25):
"Once, therefore, the claimant shows
that he has suffered injury as a result of contact with a piece of work
equipment which is (or may be) unsuitable, it will be for the defendant to show
that the accident was due to unforeseeable circumstances beyond his control or
to exceptional events the consequences of which could not be avoided in spite
of the exercise of all due care on his part. The fact that an injury occurs in
an unexpected way will not excuse the defendant unless he can show further that
the circumstances were 'unforeseeable' or 'exceptional' in the sense given to
those words by the Directive".
We agree with that
analysis; it seems to follow inevitably from the origin of the 1998 Regulations
in European Directives and in the plainly restrictive wording of article 5(4)
of the Framework Directive.
[19] Similarly,
Davis LJ stated (at paragraph 40) that the fact that an accident occurs in a
most unusual way is not of great moment; what matters is the reasonable
foreseeability of an accident of the general type that occurred. At paragraph
43 he stated:
"I agree, however, with Longmore LJ
that it was not for Mr Hide to prove the availability of effective remedial
options: it was for the racecourse to show (if it could) that the consequences
for Mr Hide from this accident could not have been avoided despite the exercise
of all due care for the purposes of Regulation 4".
At paragraph 45,
Davis LJ summarized the effect of the case:
"The point this case establishes,
therefore, is that it is not enough for a defendant, where Regulations apply,
simply to comply with the requirements of reasonableness imported by the common
law or the Occupiers' Liability Act. Where the Regulations apply, the test for
an employer... is stricter. If, in any particular case arising hereafter, it is
shown that what occurred was due to unusual and unforeseeable circumstances,
beyond the employer's control; or if it is shown that what occurred was due to
exceptional events the consequences of which could not have been avoided
despite the exercise of all due care: then that will mean the employer will
have no liability. That, it can be accepted, may be in some situations onerous
for an employer. But the Regulations are evidently designed to be stringent;
and the test laid down is in general terms workable".
We agree with those
observations. The European Framework Directive and the various health and
safety Directives, including the Use of Work Equipment Directive, are clearly
intended to impose strict standards, going well beyond the common law of
negligence and in some respects beyond the existing United Kingdom health and
safety legislation. The Regulations that implement those Directives within the
domestic law of the United Kingdom should not therefore be read in accordance
with common law concepts. In particular, the concept of reasonable
foreseeability as used in provisions such as regulation 4(4) of the 1998
Regulations should not be read in the same way as reasonable foreseeability in
the law of negligence or occupiers' liability; an event that can cause injury
will be foreseeable unless it is due to unusual and unforeseeable circumstances
beyond the employer's control, or exceptional events whose consequences could
not have been avoided despite the exercise of all due care. Moreover, as
Longmore LJ emphasizes, if an accident of the general nature of that suffered
by a pursuer is foreseeable, that may be sufficient for liability.
[20] On the
facts of the present case, we are of opinion that the pursuer has satisfied the
requirements of regulation 4 of the 1998 Regulations and that the defenders are
accordingly liable for her injury. The trolley that the pursuer was required
to move to the head of the bottling line was heavily loaded; the weight carried
was 380 kg. It is apparent from the photographs of the factory that she
required to move it across a tiled floor along the passage between two rows of
machinery. The pursuer's height is recorded in evidence as 5'3". It is clear
from photographs that she would have had difficulty in seeing over the top of a
fully laden trolley. The photographs further show that the autocol machines
protruded into the passage between the bottling lines to a significant degree,
as did the bins that collected waste from those machines. While the sheriff
finds that there was adequate room between the autocol machines to manoeuvre
the trolleys safely, it is clear from the photographs that the configuration
requires the trolleys to change their direction of travel at least twice in a
relatively cramped space. The difficulties of manoeuvring a trolley in such a
situation appear to us to be clear and obvious.
[21] Furthermore,
the sheriff finds that on occasion the swivelling wheels of the trolleys become
aligned other than in the direction of intended travel, making it difficult to
move the trolley in that direction, and necessitating a realignment of the
wheels. It further appears from the evidence, as counsel for the pursuer
submitted when he proposed amendments to the findings in fact, that on those
occasions the trolley wheels stick and come to a stop. In these circumstances
it seems to us that there is a very obvious hazard when the loaded trolleys are
compelled to negotiate the gap between the autocol machines, especially if as a
result of the wheels' sticking there is a need to realign them. If that
happened, the realignment in a constrained space could obviously result in
sudden movements, with a risk of injury to the persons involved. In these
circumstances, we consider that the trolleys were not "so constructed... as to be
suitable for the purpose" of taking a full load of cap boxes from the bottom to
the top of line 4, especially in the area between the two autocol machines
(regulation 4(1)). Furthermore, the pursuer's trolley was not in the
circumstances "used only for operations for which, and under conditions for
which, it is suitable", in terms of regulation 4(3). We are of opinion that,
even without the gloss provided in Hide on the concept of reasonable
foreseeability, it was reasonably foreseeable that an accident of the general
type suffered by the pursuer might result as a fully laden trolley was
negotiated through the gap in question, especially if the wheels stuck at that
point, requiring realignment. The matter is even clearer if the concept of
reasonable foreseeability is interpreted in line with the guidance given in
Hide, as we think it should be. In these circumstances liability exists
under regulation 4.
[22] The sheriff
accepted evidence from the defenders' bottling manager at Clyde Hall, Caroline
McCafferty, and their safety, health and environmental specialist, James
Reilly, to the effect that the trolleys were industry standard, used widely
throughout the industry in which the defenders are involved, and that the weight
of the boxes of caps which they carry did not exceed the maximum load carrying
capacity of the trolleys, and indeed was well below that capacity. We do not
consider these considerations persuasive. The fact that trolleys are used
throughout the industry suggests that they are used for a range of different
tasks in a range of physical situations. As we have indicated, it is necessary
under regulation 4 to focus on the particular task in question. The fact that
the trolleys can safely be used in other, different, circumstances is
irrelevant to the consideration of that question. Indeed, it seems to us that
the sheriff can be said to have relied too much on the general suitability of
the trolleys for a range of tasks rather than focusing on the particular
circumstances of the task that the pursuer required to perform. As we have
already remarked, the application of regulation 4 depends critically on the
precise facts and circumstances of the particular task that is to be
undertaken. The sheriff also accepted evidence that trolleys with comparable
loads had been used for many years without difficulty and evidence that the
wheels fitted to the trolleys were suitable for the task. On the second of
these points, the wheels may have been suitable for general use of such
trolleys in an industrial context, but it does not follow that they were
suitable for use in the particular circumstances of taking boxes of caps along
the passage between lines 4 and 5. On the first, it was clear on the evidence
that the defenders' reporting system was not completely comprehensive, and that
many cases where wheels caused difficulty or did not function properly would go
unreported. That inevitably reduces the significance of evidence based on lack
of complaints.
[23] The sheriff
further held, and found in fact, that the task of moving trolleys loaded with
caps from the bottom to the top of a bottling line is a simple task which does not
involve real and foreseeable risk of injury, nor of injury in the manner
sustained by the pursuer. We disagree with that conclusion for the reasons
stated at paragraphs [20] and [21] above. The task of pushing a trolley is no
doubt simple in itself, but when the trolley has to negotiate obstructions, and
is loaded to a height that obstructs the operator's visibility, and its wheels
have a tendency to stick from time to time, matters cease to be simple and an
obvious hazard seems to us to arise. Moreover, it is clear that the line
operators on line 4 operated under some pressure; the line was the fastest
running in Clyde Hall, and the evidence discloses that it processes 300 bottles
per minute, or five every second. Even simple tasks can present a hazard if
they are executed under pressure, or indeed repetitively; a trolley had to be
taken to the head of line 4 between 6 and 8 times in every shift.
[24] For the
foregoing reasons we are of opinion that the sheriff was wrong in the
conclusion that he reached that there was no infringement of regulation 4 of
the 1998 Regulations. We recognize that an appeal court must always be slow to
interfere with the findings of the judge at first instance on questions of
fact: Thomas v Thomas, 1947 SC (HL) 45. Nevertheless, in the
present case we are concerned not with the determination of the primary facts
but with inferences drawn from the primary facts, and with the application of
judgment to the significance of those primary facts. We are concerned in
particular with the question of whether the trolley used by the pursuer was
suitable for the purpose of conveying caps along the passage between lines 4
and 5 in the circumstances found by the sheriff. Moreover, in considering that
question, we are greatly assisted by the existence of excellent photographs
both of the locus of the accident and of trolleys of the type in question. In
these circumstances we consider that it is appropriate to interfere with the
sheriff's decision; the photographs make it clear that the operation bore a
foreseeable risk of an accident, and in considering that question the sheriff
does not appear to us to have had any particular advantage through hearing the
witnesses in person. What is involved is an evaluation of the trolley at the
place where it was used based on the physical characteristics of the trolley
and the place; that is something that appears very clearly from the
photographs.
Provision of Work
Equipment Regulations 1998, regulation 5
[25] The
pursuer also has a case based on regulation 5 of the 1998 Regulations. This
provides as follows:
"(1) Every employer shall ensure
that work equipment is maintained in an efficient state, in efficient working
order and in good repair".
We can deal with this
regulation very shortly. The evidence did not disclose that the trolley which
caused the pursuer's injury was in a poor state of repair; what went wrong
rather related to an inherent defect in that the swivelling wheels had a
tendency to become aligned other than in the intended direction of travel, so
that the wheels became stuck and required realignment. In these circumstances
the case based on regulation 5 must fail.
Manual Handling
Operations Regulations 1992, regulation 4
[26] The
pursuer's third ground of action is based on regulation 4 (duties of employers)
of the Manual Handling Operations Regulations 1992. This is in the following
terms:
"(1) Each
employer shall-
(a) so
far as is reasonably practicable, avoid the need for his employees to undertake
any manual handling operations at work which involve a risk of their being
injured; or
(b) where
it is not reasonably practicable to avoid the need for his employees to
undertake any manual handling operations at work which involve a risk of their
being injured-
(i) make
a suitable and sufficient assessment of all such manual handling operations to
be undertaken by them, having regard to the factors which are specified in
column 1 of Schedule 1 to these Regulations and considering the questions which
are specified in the corresponding entry in column 2 of that Schedule,
(ii) take
appropriate steps to reduce the risk of injury to those employees arising out
of their undertaking any such manual handling operations to the lowest level
reasonably practicable, and
(iii) take
appropriate steps to provide any of those employees who are undertaking any
such manual handling operations with general 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.
(2) Any
assessment such as is referred to in paragraph (1)(b)(i) of this regulation
shall be reviewed by the employer who made it if-
(a) there
is reason to suspect that it is no longer valid; or
(b) there
has been a significant change in the manual handling operations to which it
relates;
and
where as a result of any such review changes to an assessment are required, the
relevant employer shall make them.
(3) In
determining for the purposes of this regulation whether manual handling
operations at work involve a risk of injury and in determining the appropriate
steps to reduce that risk regard shall be had in particular to-
(a) the
physical suitability of the employee to carry out the operations;
(b) the
clothing, footwear or other personal effects he is wearing;
(c) his
knowledge and training;
(d) the
results of any relevant risk assessment carried out pursuant to regulation 3 of
the Management of Health and Safety at Work Regulations 1999;
(e) whether
the employee is within a group of employees identified by that assessment as
being especially at risk; and
(f) the
results of any health surveillance provided pursuant to regulation 6 of the
Management of Health and Safety Regulations 1999".
[27] It is not
disputed that the pursuer was engaged in a manual handling operation.
Regulation 4 deals with manual handling operations which involve a risk that an
employee may be injured. In such a case, the employer is obliged to undertake
the sequence of steps set out in paragraph (1) of the regulation. These are
qualified by the requirement of reasonable practicability. Paragraph (1)(a)
requires that operations which involve a risk of injury should be avoided so
far as is reasonably practicable. Paragraph (1)(b) applies where that is not
reasonably practicable, and requires the employer to make a suitable and
sufficient risk assessment and to take appropriate steps to reduce the risk of
injury to the lowest level reasonably practicable.
[28] In the present
case, we are of opinion that the operation that was being undertaken by the
pursuer, taking the trolley along the passage between line 4 and line 5,
involves a risk of injury, for the reasons discussed in relation to
regulation 4 of the 1998 Regulations. Especially at the point where the
trolley had to negotiate the gap between the two autocol machines and their
accompanying bins, the operation presented a clear hazard in view of the
propensity of the swivelling wheels to become misaligned and stick, requiring
realignment. Paragraph (3) of the regulation lists a number of factors that
are to be taken into account in determining whether a manual handling operation
involves a risk of injury and in determining the steps that are appropriate to
reduce that risk. Three of these seem to us to be pertinent. The first is the
physical suitability of the employee to carry out the operation. The pursuer was
5'3" in height, and must clearly have had a limited view when pushing the
trolley. The trolley was, moreover, carrying a weight of 380 kg, and it may be
thought that the pursuer was less well suited to the task of pushing the
trolleys than the cap men. The third factor is the knowledge and training of
the employee. Evidence was given of the general health and safety training
given to the line operators at the plant, including the pursuer. The evidence
indicated that the training was fairly general in nature, however, and it did
not appear to focus on the problems that might arise if the wheels stuck while
negotiating a difficult gap. The fourth factor is the results of any relevant
risk assessment. Evidence was led that the defenders had carried out risk
assessments on the bottling lines in Clyde Hall, and the sheriff finds that
included a general risk assessment of manual handling operations.
Nevertheless, it was clear that these did not deal specifically with the
problem that confronted the pursuer as she negotiated the gap between the
autocol machines.
[29] In these
circumstances we are of opinion that the risk of the type of accident that the
pursuer sustained was clear and obvious. Regulation 4 of the 1992 Regulations
only requires an employer to do what is reasonably practicable. It is clear,
however, that the onus of proving that a particular step is not reasonably
practicable rests on the employer. Moreover, the fact that a step is not
reasonably practicable must be the subject of averment. This is so even though
personal injuries actions are now conducted with abbreviated pleadings. The critical
point is that fair notice must be given, even with simplified pleadings. The
proposition that a particular precaution is not reasonably practicable is one
that might well be challenged by the pursuer, but that requires advance notice.
In the present case, the defenders do not plead that it was not reasonably
practicable to avoid the need for line operators such as the pursuer to move
the trolleys to the head of line 4; indeed, their pleadings say nothing about
reasonable practicability. Had a case based on the absence of reasonable
practicability been pled, a number of possibilities might have been open to the
pursuer. It is possible, for example, that the risk of accidents could have
been reduced if the cap men had invariably taken the trolleys right up to the
hoppers at the head of the bottling lines. Alternatively, it might have been
possible to use a hand operated forklift device (as distinct from a forklift
truck) to move the boxes of caps. Yet a third possibility is that trolleys of
a different size and shape might have been used, in such a way that they could
negotiate the gap between the autocol machines without hazard. Without being
put on notice, the pursuer could not be expected to appreciate the need for
evidence of possible alternatives. We are accordingly of opinion that the
defence of reasonable practicability has no application to the present case.
[30] Moreover,
regulation 4 clearly envisages a sequential approach to the various issues set
out in paragraph (1): avoiding the need for the operation in question, making a
risk assessment, and taking appropriate steps to reduce the risk of injury. As
we have remarked, no evidence was led of any specific risk assessment dealing
with the particular task that the pursuer was performing. There is thus no
indication that the defenders approached the particular task in the manner
required by regulation 4. On this basis, too, any defence must fail.
[31] The
sheriff, in dealing with the 1992 Regulations, referred to the fact that the
task of manoeuvring the trolley was simple, that the pursuer was an experienced
employee who had undergone manual handling training, and that she was wearing
protective gloves and footwear. On that basis he considers that there might
have been "a very small theoretical risk of injury", but it was not in his
opinion "a real risk of injury, which was foreseeable". In this connection he
referred to the decision of the Court of Appeal in Koonjul v
Thameslink Healthcare Services [2000] PIQR 123, where it was indicated (Hale
LJ at 126) that "there must be a real risk, a foreseeable possibility of
injury; certainly nothing approaching a probability". For the reasons we have
already stated, we disagree with the sheriff's conclusion. We consider that
the risk was quite sufficiently substantial to bring regulation 4 of the 1992
Regulations into operation.
[32] The sheriff
gave consideration to the factors listed in paragraph (a)-(d) of regulation
4(3), and indicated that he thought that these supported the view that there was
no real and foreseeable risk. He pointed out that the pursuer had carried out
the task for several years without complaining of difficulty, and that manual
handling training had included training to assess the load of anything that had
to be moved and to ask for assistance if necessary. The pursuer was required
to wear safety gloves and footwear, and the risk assessment had identified that
manual handling would be involved. For the reasons that we have stated, we
consider that certain of these factors point in the opposite direction.
Essentially, however, our view that there was a significant risk in the present
case is based on an evaluation of the task that confronted the pursuer, having
regard to the very clear evidence contained in the photographs and to the
critical finding that the trolley wheels had a tendency to become misaligned
and stick, necessitating realignment.
[33] The sheriff
further indicated that the pursuer had not pled any case that the defenders
ought to have avoided the need for employees to undertake the manual handling
operation involved in moving the trolleys. He stated that no evidence was led
from the pursuer to the effect that the bottle caps should have been
transported in some other way. While the legal burden might be on the
defenders to prove that it was not reasonably practicable to avoid the need for
employees to undertake the manual handling operation, that would arise only if
the issue were raised properly by the pursuer, on the basis that an initial
evidential burden to raise the issue is on the pursuer. In this connection he
referred to Egan v Central Manchester & Manchester Children's
University Hospitals NHS Trust, [2008] EWCA Civ 1424; [2009] ICR 585 (Smith LJ at paragraph 22). In our opinion that case provides no support
for the view that there is any evidential burden on the pursuer. What Smith LJ
states at paragraph 22 is as follows:
"It is true that the judge did not
refer to the burden of proof and it appears to me, from his reference to the
lack of particularity in the claimant's pleading, that the judge may, in his
own mind, have placed the burden on the claimant. If he did, that would have
been wrong. I accept, of course, that, in practice, if a claimant wants to
allege that there were steps which could and should have been taken and the
employer says there were none, there will be an evidential burden on the
claimant to advance those suggestions, even though the legal burden will remain
on the employer. So, although it was not in my view correct, the judge's
approach was capable of leading him to the right conclusion. The question is
whether or not his assessment of the various suggestions was right, bearing in
mind that the claimant had established that the operation in question carried a
risk of injury and it was therefore for the employer to show that it had taken
appropriate steps to reduce that risk to the lowest level reasonably
practicable".
[34] That
passage makes it quite clear that the burden of establishing that a step is not
reasonably practicable rests on the employer, not the employee. The
"evidential burden" that is referred to does not appear to us to be an
evidential burden in the true sense, where evidence is required to bring a
particular issue into play. What is referred to is the situation where the
employer pleads a case and leads evidence to the effect that a particular step
was not reasonably practicable. In that event, if the employee wishes to rebut
that case, he or she will normally wish to lead evidence to that end. That does
not involve placing any burden of proof on the employee, however; the burden of
both averring and proving that a particular step is not reasonably practicable
rests at all times on the employer.
[35] The sheriff
further indicated that, although the defenders had not averred that it was not
reasonably practicable to transport the bottle caps to the hopper by some other
means, evidence was led for the defenders without objection that it would not
be possible to transport the bottle caps to the top of the line by any other
means than trolleys. In these circumstances the sheriff considered that,
notwithstanding the lack of pleading, he was entitled to take account of that
evidence and make a finding to that effect. In our opinion that was not
correct. If evidence is led without objection but there is no basis in the
pleadings, it may be proper to hold that the party failing to object has
acquiesced in the leading of such evidence, but before the evidence can be
taken into account for the purpose of making findings in fact amendment of the
pleadings is necessary: Stair Memorial Encyclopaedia, Civil Procedure
(Reissue), paragraph 135. This is made clear in McGlone v British
Railways Board, 1966 SC (HL) 1, where it is pointed out by Lord Reid (at 12)
that in such a case a motion should be made for an amendment of the pleadings.
If no objection has been taken, the motion to amend will usually be allowed.
In the present case, however, the pleadings were not amended.
[36] For the
foregoing reasons, we are of opinion that the pursuer should succeed on a case
based on regulation 4 of the Manual Handling Operations Regulations 1992.
Contributory
negligence
[37] There
remains the question of contributory negligence. The sheriff took the view
that the pursuer could not be criticized for going to the front of the trolley
to attempt to free the wheels when they stuck, with assistance from her
colleague at the rear. Nor did he consider that the pursuer could be
criticized for not seeking assistance. The basis on which he would have upheld
the plea, if he had found for the pursuer, was that she had placed her hands on
the extremities of the trolley (the vertical poles found in each corner), which
exposed her to the risk of injury when manoeuvring it between machinery. In
this respect, the sheriff found that the pursuer's training included
instruction not to place her hands on equipment where they would be at risk of
injury, and in particular not to place her hands on the extremities of a
trolley when manoeuvring it. He records, however, that this matter was not put
to the pursuer in cross-examination, but he considered that failure to cross
examine did not preclude the defender from leading evidence on the issue,
although it might have a bearing on the weight of such evidence.
[38] In our
opinion there should be no finding of contributory negligence. In general,
courts have been reluctant to hold that contributory negligence exists in cases
where an employee sues for breach by his employer of health and safety legislation.
In Staveley Iron & Chemical Company Ltd v Jones, [1956] AC
627, Lord Tucker stated (at 648) that:
"in Factory Act cases the purpose of
imposing the absolute obligation is to protect the workmen against those very
acts of inattention which are sometimes relied upon as constituting
contributory negligence so that too strict a standard would defeat the object
of the statute".
Exactly the same
point applies to modern European-inspired health and safety legislation such as
the Provision and Use of Work Equipment Regulations 1998 and the Manual
Handling Operations Regulations 1992. The point of the legislation is to
ensure a safe working environment and work practices, and to impose strict
liability on the employer if those standards are not met. Momentary acts of
inattention are to be expected, especially when employees are under pressure or
are performing repetitive tasks. For that reason a finding of contributory
negligence should only be made in a clear case; generally speaking this will be
one where the employee has made a conscious decision to embark upon a risky
course of action: see Tafa v Matsim Properties Ltd, [2011] EWHC 1302 (QB), at paragraphs 164-166; and McLachlan v Early Learning
Centre Ltd, [2011] CSOH 25; 2011 Rep LR 30, per Lord Tyre at paragraphs
[7]-[10].
[39] In the
present case the pursuer was confronted with a problem when the wheels of a
trolley became stuck, in that she required to realign the trolley in order to
move it in the direction of the hopper. She obviously required to take hold of
the trolley to do that. The trolleys themselves do not have handles, and the
only way in which they can be easily manoeuvred is by taking hold of the steel
cage. The sheriff appears to have accepted the proposition that the pursuer
should have taken hold of the smaller wires in the interior of each of the
panels of the cage. It is obvious, however, that that would not have been
comfortable and would not have given the best of control over the trolley. The
best control would be achieved by holding on to the frame of the trolley, which
necessitated holding it at its extremities. It is entirely understandable that
an employee might do that in attempting to deal with the problem that had
arisen. This is certainly not a case where the pursuer consciously embarked on
a risky course of action; it was rather a case of momentary inattention. In
these circumstances we do not think that any significant blame can be attached
to her.
[40] The sheriff
had regard to evidence from the defenders' witnesses that the pursuer, in the
course of her training, had been told not to place her hands on the extremities
of a trolley. That proposition was not put to the pursuer in
cross-examination, however. Nor is it referred to in the pursuer's pleadings.
In these circumstances we are of opinion that the sheriff ought not to have had
regard to this evidence. In the first place, if the defenders were to found on
the pursuer's holding on to the extremities of the trolley, that should have
appeared in their pleadings. (They did refer expressly to the pursuer's
pulling the trolley instead of pushing it and failing to seek assistance from
other operators, and that she had a duty to act in accordance with her
training, to take care in manoeuvring the trolley, and to keep a proper
lookout). This is a simple question of fair notice, because such an issue
might really affect the assessment of the case by the pursuer's advisers. On
that basis, for the reasons discussed at paragraph [35] above, if questions
were asked without an averment, at the very least an attempt should have been
made to amend the pleadings to take account of such evidence. In the event no
motion to amend was made. In the second place, the failure to put this
evidence to the pursuer is of great significance, because it is her conduct
that is directly under challenge. Serious prejudice could result from the
failure to cross-examine. Even if regard is had to evidence about the
pursuer's training, however, we are of opinion that what is involved in this
case is an attempt by the pursuer to deal with a problem that had arisen
because the wheels had stuck. It was natural that the pursuer in such a
situation should take hold of the extremities of the trolley because they gave
her better control. That is especially so because of the lack of any handle on
the trolley. Consequently we do not accept that there was any contributory
negligence.
Conclusion
[41] For
the foregoing reasons we will allow the appeal and pronounce decree for the
agreed damages of £5321.62. That sum includes interest to 28 June 2012. After
that date interest will run at the judicial rate.
