Scottish Court of Session Decisions

In this action, the pursuer seeks damages from the defenders in respect of personal injuries which he sustained on or about 16 August 1995, when he was engaged in the course of his employment with the Co-operative Wholesale Society Ltd at their warehouse premises at Wardpark Road, Cumbernauld. At the material time, the pursuer was employed as a picker by his employers. The warehouse in which he worked was used to store goods for sale in the retail outlets operated by his employers. The job of the pursuer as a picker was to make up orders of goods, out of those contained in the warehouse, for transportation to the shops in which they were to be sold.

The different varieties of goods stored in the warehouse concerned were stored in a series of racks, which extended from floor to ceiling within the warehouse, and also on pallets which were positioned adjacent to the racks. The pursuer's job in making up orders involved, first of all, the identification of the goods required for the order, which were then labelled by the pursuer as having been appropriated to that order. Thereafter the pursuer required to collect the goods concerned, using a truck. This truck carried a number of pallets, with vertical mesh sides and small wheels. The goods to be collected were placed upon the pallets, which could then be taken to a point where the order was to be dealt with. When the pallets were detached from the truck, they were capable of being moved on their own wheels. A photograph of a truck of the kind described, equipped with such pallets, is No 16/2(1) of process.

In the warehouse concerned, there was also in use at the material time a different kind of truck, known as a "reach-truck". The reach-trucks were of the nature of forklift trucks, having been equipped with a lifting mechanism whereby items could be placed in and removed from the racks, to which I have referred, if necessary at some height about the ground. At the material time, the reach-trucks in use in the warehouse concerned were serviced and maintained by the defenders. A reach-truck of the kind which I have described can be seen in the photographs, Nos 16/2(2), (3), (6), and (9). It can be seen from these photographs that the driver of such a truck sits at right angles to the line of the truck itself at the front. The forks and lifting mechanism are to be found at the rear of such a truck. Reach-trucks in use at the material time were equipped with four wheels. The two front wheels, which were not readily visible, were situated underneath the position in which the driver sat; the two rear wheels were situated adjacent to the forks at the rear of the machine, as appears from photograph No (8). The two front wheels were mounted quite close together, whereas the two rear wheels were some distance apart, as can been seen from the same photograph.

On or about 16 August 1995, the pursuer, in the course of his employment, had been given an order to collect goods for the purposes of making up an order. Among the goods to be collected was a quantity of beer, which was stored on a pallet adjacent to one of the racks in the warehouse. Accordingly, the pursuer drove his truck to a position in the vicinity of this pallet of beer, which a view to transferring cases of beer from it onto the row of pallets at the rear of his truck. Following upon the accident which I shall shortly describe, the pursuer made a sketch of the locus showing its different features, which is No 15/2 of process. This drawing shows the position of the pallet of beer from which cases were to be taken by the pursuer; it also shows the position of the pursuer's truck and the pursuer himself. Having placed his truck in the position shown in the drawing, the pursuer then proceeded to pick up the first case of beer required from the pallet of beer. While he was so doing, the pursuer's left foot was run over by one of the rear wheels of a reach-truck then being driven by David Orr, a service engineer, then acting in the course of his employment with the defenders. In consequence of having his left foot run over in this way, the pursuer sustained certain soft tissue injuries in that foot, the nature of which I do not require to consider.

In the present action the pursuer claims that the accident was caused by the fault of David Orr, for whose actings in the course of his employment with them the defenders are liable. Details of the pursuer's allegations can be seen from the Summons in the action. Liability for the consequences of the accident is denied by the defenders. In addition, they set forth a case of contributory negligence against the pursuer. Details of the defenders' position in relation to these matters can be seen from their Answers to the pursuer's Condescendence. I should record that, at the outset of the Proof before me, it was indicated that agreement had been reached between the parties in relation to damages. That agreement is recorded in a Joint Minute, in which it is narrated that, on full liability, the loss, injury and damage sustained by the pursuer as a result of the accident is £5,500, inclusive of interest to the date of decree. It is also agreed that the pursuer did not receive any listed benefits in terms of section 1 of the Social Security (Recovery of Benefits) Act 1997.

In the course of the Proof before me three witnesses were led in support of the pursuer's case, the pursuer himself, Colin John Thompson, also at the material time a picker employed by the Co-operative Wholesale Society Ltd in the warehouse concerned, and Gerry Stoutjesdyck, who was a reach-truck driver. For the defenders, David Orr alone was led to give evidence.

The pursuer in evidence described the circumstances leading up to the accident. He said that he had been picking up the first case of beer from the pallet, with a view to placing it on one of the roll pallets on his truck, when he felt his left foot being run over by something. He immediately saw that it was a reach-truck. He said that his foot had been run over by one of the rear wheels of this truck. It would have been physically impossible for one of the front wheels to do that, having regard to its position in the truck. He said that the reach-trucks were battery powered, they made some, but not much, noise. The pursuer said that, when the accident occurred, he had no idea that there was a reach-truck moving in his vicinity. Some little time previously he had seen it parked in the position show in the drawing made by him, No 15/2 of process. He explained that the wheel of the truck ran over part of the side of his foot and also the front of it. The first that he knew of what was happening was when he felt pain in the left foot. Following the accident the pursuer said that the reach-truck stopped about 6 feet past the position in which the pursuer had been. The truck driver, David Orr, came up to the pursuer, to see what had happened. The pursuer explained that David Orr had apologised to him for running over his foot; however, he was unable to remember his exact words. Immediately after the accident, Gerry Stoutjesdyck, who was qualified in first aid, came over to assist the pursuer. Also Colin John Thompson, who had been working nearby in the position shown on the pursuer's drawing, came up to see how he was. Following the accident the pursuer was removed for medical treatment. In cross-examination, the pursuer said that Colin Thompson had been working across the passageway from where he himself was, as shown in the drawing. The pursuer insisted that he had not seen the truck driven by David Orr coming through the gap shown on the drawing between the pallet of beer cases and the truck being used by Colin Thompson. The pursuer denied that he had acknowledged to David Orr that he was aware of his presence on the reach-truck and that the reach-truck was in progress of passing the pallet of beer. He also denied that he had suddenly put his foot out into the path of the rear wheels of the reach-truck. He re-emphasised that he had not seen the reach truck in motion prior to the accident. On being questioned further about the apology made by David Orr, the pursuer insisted that it did occur; David Orr had said "I'm sorry", or words to that effect after getting out of his reach-truck. In re-examination, the pursuer explained that, at the moment when his left foot was run over, his feet were splayed, but he was not moving; he had been preparing to lift a case of beer. He denied having moved his left foot out as he was preparing to do that.

Colin John Thompson confirmed in evidence that, at the material time, he had been picking an order across the passageway from the pursuer's position. He could easily see the pursuer from his position. While there were some goods on the roll pallet at the back of Thompson's truck, they were not piled so high as to obstruct his view. This witness said that he considered that he had been more directly opposite the position of the pursuer than was shown as being the position in the drawing No 15/2 of process. Colin John Thompson explained that, prior to the accident, he had seen the reach-truck which became involved in it when he had arrived at the position in which he was to place goods on his own truck. At that stage, that reach-truck was stationary and without a driver. Thereafter he saw David Orr climb onto it and start it up. It moved off slowly past the racks LM and LL. At that stage this witness had been talking to the pursuer. The next thing of which he became aware was a small bang, which was caused by the wheel of the reach-truck coming down off the pursuer's left foot.

This witness was asked in more detail about the movement of the reach-truck involved. He said that he saw it start up and move off slowly; the driver appeared to be looking up and down the passageways between the racks. The truck moved in the direction of the pursuer and the witness said that the wheel went over the pursuer's foot. It had been the back wheel which was involved in the accident. This witness could actually see the wheel which went over the pursuer's foot, although it was on the side of the reach-truck remote from him, since the back of that truck was open. Colin Thompson said that he did not see the reach-truck stopping before it ran over the pursuer's foot; it just kept going after it had started. The pursuer himself, before the accident, had been standing with his back towards the reach-truck. After the accident, David Orr stopped his truck, got off it and went over to the pursuer, where he apologised, saying that he was "really sorry".

In cross-examination this witness said that he thought that David Orr had been looking about for the regular driver of the reach-truck at the material time. After the event, the witness said that Orr seemed very concerned about what had happened. It was as if he could not believe what had happened.

Gerry Stoutjesdyck explained in evidence that he had seen the pursuer and Colin Thompson at work before the accident, however he did not see the accident itself occurring. He saw the situation immediately after the occurrence, when the pursuer was holding his foot. At that stage David Orr was talking to the pursuer, who was sitting down clutching his ankle. The witness heard David Orr apologising. He thought that the apology was in the nature of an expression of concern.

David Orr gave evidence on behalf of the defenders. He explained the circumstances in being prior to the accident. He had had the responsibility of servicing the truck concerned on the day in question, which work was to be done in a workshop outside the warehouse. As he had been taking the truck there, the incident occurred. It had been necessary for him to drive the reach-truck through quite a narrow gap between pallets. As he was doing so, he appreciated that pickers were working in the vicinity. The pursuer had been picking from pallets, one of which was protruding into the passageway where the accident occurred. This protruding pallet had been on the right-hand side of the reach-truck as it went forward. This witness said that he had had to stop the machine he was driving, because the gap was very narrow. Having done this, the witness said that he waited for the pursuer to acknowledge the witness' presence. The witness thought that his machine had been about 1.8 metres wide, whereas the gap had been not much more than 2 metres wide. He had thought that it was feasible to go through this gap, but that it would be quite tight. In any event, the witness said that, having paused to see the pursuer acknowledge his presence, that is what happened. The witness said that the pursuer saw him; there was eye contact and the pursuer smiled at him. David Orr said that the pursuer had stepped back away from the pallet, whereupon he proceeded to go through the gap. This witness said that he had been stationary for 4 or 5 seconds before his presence was acknowledged by the pursuer. As he drove through the gap he was moving very slowly, looking out at both sides of the machine in order to see that it negotiated the gap safely. At the material time he had been using what was described as "creep speed" on the reach-truck. He considered that his speed would be around 2.5 mph. As this witness travelled past the pursuer, he thought that he was about 4 feet away from him when he last saw him. Thereafter, the pursuer went out of his field of view. Following upon that, the rear wheel of the reach-truck made contact with the pursuer. David Orr had not been looking at the pursuer at the moment of the accident, when there was a bump. Thereafter the witness heard a low cry come from the pursuer. That and the bump were the first indications which he had of an accident. Thereafter the witness turned round and saw the pursuer hobbling in the direction of the racking. He stopped his truck and approached him; he appeared to be in pain. The witness said that he did not apologise to the pursuer.

In cross-examination David Orr said that he had stopped his vehicle near rack LL (odd numbers) as shown on the drawing, No 15/2 of process. The purpose of stopping, said the witness, was for the pursuer's acknowledgement of his presence there. Once again, the witness reaffirmed that there was eye contact between the two men and a nod and a smile. David Orr said that he had no doubt that the pursuer knew of his presence when he stopped in the circumstances described. David Orr said that he considered that the pursuer must have moved a significant distance from the position in which he had been when David Orr last saw him, so as to cause his foot to come into contact with the machine. It was not possible that the pursuer was unaware that David Orr and the machine had been close to him. David Orr considered that the pursuer must have put his foot in the path of the rear wheel of the reach-truck. This witness said that he thought it was possible that he might have apologised to the pursuer, but he would not have used words which indicated an acceptance of legal responsibility for the accident.

Turning to the issue of liability, it appears to me that the crucial factual question which has to be resolved is what happened immediately before the rear wheel of the reach-truck ran over the left foot of the pursuer. It will be apparent from my narrative of the evidence that there is a conflict of evidence concerning that matter. David Orr gave evidence to the effect that he stopped the reach-truck just before attempting to drive it through the gap between the pallets and waited until he received some acknowledgement of his presence from the pursuer. He claimed that he received such acknowledgement in the form of eye contact, a nod and a smile. Thereafter he said that he carefully drove his truck through the gap. The rear wheel ran over the pursuer's foot because that foot must have been placed in its path. On the other hand, a different version of event emerged from the evidence of the pursuer and Colin John Thompson. The pursuer indicated that there was no communication between him and David Orr and that he became aware of the presence of the truck only after the accident had occurred. Thompson's position was that he saw the reach-truck driven by David Orr moving in the direction of the pursuer and himself and saw the occurrence of the accident itself. He did not observe the truck stopping before it ran over the pursuer's foot; as he put it, it just kept going.

In the face of the evidence which I have described, I have come to the conclusion that I ought to prefer the version of events spoken to, in different ways, by the pursuer and Colin John Thompson. I do so because both of these witnesses, the second of whom is independent of the pursuer, in different ways, undermine the version of events put before the court by David Orr. I should also say that I found the pursuer and Colin John Thompson satisfactory witnesses, whose evidence I would have no hesitation in accepting. It is because these two witnesses, in different respects, contradict the evidence of David Orr, that I find myself preferring that version of events. I consider that what occurred was that, after having set the truck in motion, while looking around him, Orr proceeded to try to drive through the gap between the two pallets where the pursuer and Colin John Thompson were working. I hold that the pursuer was unaware of the approach of the reach-truck until its rear wheel ran over his foot. I also hold that David Orr did not stop the truck immediately before approaching the gap through which he intended to drive. I also consider that no significant communication of any kind took place between the pursuer and David Orr. In these circumstances my conclusion is that David Orr failed to drive the reach-truck with reasonable care in that he allowed its rear wheel to run over the pursuer's foot. In view of the narrowness of the gap through which he had to go and in view of the presence of the pursuer working normally close to that gap, it appears to me that a reasonable man would have made sure that the pursuer should move out of the way before the truck was taken through the gap. Otherwise, there was bound to be a risk of an accident such as that which occurred happening.

Turning to the issue of contributory negligence, I find myself unable to convict the pursuer of any contributory negligence. So far as the acceptable evidence shows, he was working in the vicinity of the pallet from which he intended to take a case or cases of beer in a perfectly normal way. The evidence which I accept tended to suggest that the movement of a reach-truck would not necessarily be heard or observed by any person in that position. In particular, I prefer the evidence of the pursuer and Thompson that such trucks do not make much noise when in motion. In these circumstances I cannot find that any aspect of the pursuer's own behaviour in the circumstances can be categorised as indicating fault on his part.

In these circumstances I shall sustain plea-in-law 1 for the pursuer, repel pleas-in-law 1-5 inclusive of the defenders and grant decree for the agreed sum of £5,500.