Scottish Court of Session Decisions

In this action the pursuer seeks an award of damages in respect of loss, injury and damage which he suffered as a result of an accident which occurred while he was working for the defenders' statutory predecessors, Lothian Regional Council, as a blacksmith at their Highways Depot at McLeod Street, Edinburgh. I shall use the phrase "the defenders" to refer to Lothian Regional Council as well as to their successors.

There was little dispute between the parties about the facts of the accident or its consequences for the pursuer. In his submissions, Mr Geary for the defenders accepted that it had been proved that the accident happened in the way averred by the pursuer, and that as a result he had sustained injury to his back. He also intimated that he did not insist on the defenders' fourth and fifth pleas-in-law, which had sought to lay all or part of the blame for the accident on the pursuer. The parties had entered into a Joint Minute of Admissions in terms of which they had agreed the amount of damages to be awarded to the pursuer in the event of his succeeding on the merits. What remained in issue therefore was whether the pursuer had established that the accident was caused by common law fault on the part of the defenders, or by breach on their part of the obligations incumbent on them under regulation 4(1)(a) of the Manual Handling Operations Regulations 1992 ("the Regulations").

The accident occurred on 9 May 1995. On that day the pursuer and his colleague, Darren Smith, were preparing to leave the depot at McLeod Street to carry out two jobs. For the purpose of one of those jobs they required to take with them a bag of cement. They therefore had to load it onto the back of the pick-up truck in which they were to travel. The bag of cement weighed 50 kg, was made of heavy duty paper, and measured about 555 mm long, 400 mm broad and 103 mm thick. There was in operation a system by which, in order to avoid the administrative inconvenience of drawing a single bag of cement from the main stores at a time of day when the stores were normally busy, a pallet load of bags of cement for the use of the blacksmiths was drawn from the main stores and kept in a separate shed accessible to them. The pursuer and Darren Smith therefore parked their truck close to the door of that shed, and went in to fetch the bag of cement. In order to protect the contents of the bag from the effect of moisture, they placed it inside a heavy duty polythene bag. That was done by manoeuvring the bag of cement so that its shorter side was towards the edge of the pallet, then sliding it off the pallet onto the floor, slipping it into the polythene bag at the same time. Once that was done, the bag of cement was standing on its end on the ground alongside the pallet. Darren Smith then manoeuvred it round, so that he and the pursuer could pick it up together. At that stage it was leaning against Darren Smith's legs, and he was holding on to it at its upper corners. The pursuer was to take hold of its bottom corners, and together they were to lift it, and carry it to the truck, a distance of some ten metres, and place it on the platform of the truck, which was just under a metre off the ground. The pursuer crouched down in front of the bag, facing Darren Smith. He had one foot (his left) forward, and the other bent under him. The bag was in front of his feet, and he therefore had to stretch his arms forward and downwards to take hold of its bottom corners. He endeavoured to keep his back straight and his head up. He had just begun to lift, doing so by straightening his legs, when he felt a sharp pain in his lower back, and was unable to move for some minutes.

The pursuer's common law case, as expressed on Record, was couched in terms of a duty on the defenders to take reasonable care to provide safe and adequate plant and equipment et separatim to devise, institute, maintain and enforce a safe system of working. The more specific averments (at pages 10E-11A) were that it was the defenders' duty:

There then followed averments of a duty to introduce an alternative system involving various ways of lifting the bag with the assistance of more or less sophisticated equipment, but in his submissions Mr Allardyce, for the pursuer, did not seek to rely on these. His submission was simply that there should have been instruction against the particular operation of lifting the bag from floor level. Mr Allardyce did not press the proposition that there was a common law duty to undertake a "risk assessment" - that language came from the Regulations. Nothing ultimately turned on the distinction between the two formulations of the duty which appeared in the pleadings, the first expressed in terms of advice against the method used and the second in terms of prohibition of it. The pursuer's case ultimately came to be that a careful employer ought to have known by May 1995 that a lift of the sort which the pursuer described in evidence was liable to cause injury and should be avoided. The employee ought therefore to have been given training and instruction which would have made him aware of that. In the event, the pursuer's understanding of lifting techniques, while it extended to a general appreciation that he should bend at the knees and keep his back straight when lifting, did not extend to a particular appreciation that lifting one end of a 50 kg bag of cement from a position at ground level some distance out from his body put him at risk of injury. The proposition that a careful employer ought to have appreciated that risk was founded primarily on the evidence of Mr Christopher Hayne, a Chartered Physiotherapist specialising in occupational safety and risk management. He referred to the Guidance on the Manual Handling Operations Regulations 1992 issued by the Health & Safety Executive ("HSE") in 1992 (No. 13/12 of process) and another document from the same source issued in the same context entitled "A Short Guide for Employers" (No. 13/13 of process). Both of these documents contain a sketch which shows guideline weights for lifting operations from different heights and at different distances from the body. The text indicates that the guideline weights will give reasonable protection for nearly all men, and that any operation involving more than twice the guideline weights should be rigorously assessed even for very fit well-trained individuals working under favourable conditions. The charts show a guideline weight of 10 kg for a lift from ground level close to the feet, or 5 kg if the load is further away from the body. Mr Hayne estimated that the share of the weight of the bag which the pursuer lifted was about 30 kg.

Mr Geary submitted that it was clear from the pursuer's own evidence that he understood the proper techniques to be employed in lifting, and acknowledged having seen the defenders' Health and Safety Policy (No. 11/5 of process) which, at pages 18 and 19, gave advice on such techniques. Mr Geary maintained that the line of argument ultimately deployed in support of the common law case was not available in terms of the pursuer's pleadings. He argued that the duties which I have quoted above, because of their reference to lifting "in said fashion", were wholly concerned with training as to lifting techniques, which the pursuer acknowledged he understood and used, and did not admit a case which depended on the proposition that the weight in question was in the circumstances too heavy to lift at all. The defenders had been misled by the terms of the pleadings into thinking that the case which they had to answer was a criticism of the training which they gave the pursuer in lifting techniques. That argument had been foreshadowed in an objection to the line of evidence. At that stage I allowed the line of examination to proceed under reservation of its competency and relevancy. I now hold that the objection, and the argument in which it was reiterated, were ill-founded. It seems to me that on a fair construction of the pursuer's pleadings it is open to him to point, in support of the proposition that he should have been instructed not to lift the bag of cement "in said fashion", to the weight and dimensions of the bag, and the position from which it was to be lifted.

Mr Geary submitted further that when account was taken of all relevant considerations the proper conclusion was that it had not been proved that it was reasonably foreseeable to a careful employer that the lifting operation which the pursuer was carrying out involved a likelihood of injury. He pointed to evidence of four factors in particular, namely (1) that the operation had been carried out for a considerable number of years without incident or injury; (2) that the operation was carried out by blacksmiths, who were reasonably to be expected to be capable of fairly heavy lifting; (3) that it did not occur to anyone in the defenders' organisation that the operation of lifting a 50 kg. bag of cement, when carried out by two men, involved a danger of injury; and (4) that none of the defenders' blacksmiths had ever complained that that operation was too heavy or asked for mechanical assistance. Although it was accepted that a careful employee would be expected to be familiar by May 1995 with the guidelines contained in the documents issued by the HSE in the context of the Regulations, those guidelines could not be incorporated into a common law case as the measure of what was reasonably foreseeable. In all the circumstances it was not reasonably foreseeable that an accident such as befell the pursuer was likely to happen. Reference was made to Forsyth v Lothian Regional Council (Lord Coulsfield, 17 December 1993, affirmed by the First Division, 13 December 1994, unreported). In that case an attempt was made to found on the contents of a consultative document issued by the Health & Safety Commission in 1982 as relevant guidance on the assessment of the dangers involved in manual handling operations. By the time the matter was before Lord Coulsfield, the proposals in the consultation paper had been departed from, and the Regulations had been enacted, although they were not in force at the time of the accident under consideration. Lord Coulsfield declined to hold that there was sufficient weight in the reliance placed by the pursuer's expert witness on the proposals in the consultation paper to justify the conclusion that there was a foreseeable danger in the operation.

I have no hesitation in holding that by May 1995 a reasonably careful employer whose employees required to carry out manual handling operations would have been aware of the contents of the guidance issued by the HSE in the two documents relied upon by the pursuer. It is, however, in my view necessary to bear in mind the context in which and purpose for which that guidance was issued. It was issued in the context of the Regulations and for the purpose of assisting employers in making the assessments which the Regulations required of them. It is in my opinion important to note that regulation 4 requires the employer to take steps if the manual handling operation involves "a risk" of the employee being injured, and that that means merely that injury is foreseeable as a possibility (Cullen v North Lanarkshire Council 1998 S.C. 451 at 455G; Anderson v Lothian Health Board 1996 S.C.L.R. 1068 at 1070B). At common law, on the other hand, the issue is whether injury is reasonably foreseeable as a probable consequence of the operation. In looking at the matter in the context of common law reasonable care an employer will in my view bear in mind any indication which the HSE guidelines give as to the risk of injury, but will also bear in mind other relevant experience in judging whether injury can be said to be reasonably foreseeable as a probable consequence of the operation. My over all impression from the evidence given by the witnesses adduced for the defenders is that very little thought had been given by the defenders to whether injury was reasonably foreseeable as a probable consequence of the operation on which the pursuer was engaged at the time of the accident. But, for the pursuer to succeed at common law, I have to be able to conclude that a reasonably careful employer who did address that question would have concluded that instruction should be given that the operation should not be undertaken. I am not satisfied that I should so conclude. It seems to me that a reasonably careful employer might well have come to the view that, while the guidance issued by the HSE was enough to point to the existence of a "risk" of injury for the purpose of the Regulations, when weighed against the fact that the operation had been carried out virtually daily without complaint, incident or injury for a considerable number of years, that risk was insufficient to lead to the conclusion that it was probable that a blacksmith experienced in relatively heavy work would suffer injury if required to carry out the operation in question. I am therefore not satisfied that in the circumstances reasonable care required the defenders, as part of their system of working, to advise or instruct the pursuer that a 50 kg bag of cement should not be lifted from the ground by two men.

The pursuer's second contention was that the accident was the result of breach on the defenders' part of the duty incumbent on them by virtue of regulation 4(1)(a) of the Regulations. Regulation 4(1) provides inter alia as follows:

There then follow duties, which arise only if avoidance is not reasonably practicable, to make an assessment, to reduce the risk of injury and to provide information about weight, but none of these is founded on by the pursuer in this case. To make a prima facie case under regulation 4(1), a pursuer must show, first, that the operation which he was undertaking when he was injured was a manual handling operation; and secondly, that it involved a risk of his being injured. If he establishes these matters, his employers come under a duty to avoid the need for him to undertake that operation, unless they assume and discharge the onus of proving that it was not reasonably practicable to do so (Nimmo v Alexander Cowan & Sons Ltd 1967 S.C.(H.L.) 78; Mains v Uniroyal Engelbert Tyres Ltd 1995 S.L.T. 1115; Anderson v Lothian Health Board at 1070C-F). I did not understand that analysis of regulation 4(1) to be a matter of dispute.

In this case it was accepted on the defenders' behalf that the operation on which the pursuer was engaged was a manual handling operation within the meaning of regulation 2(1) of the Regulations. The first requirement of a case under regulation 4(1)(a) is therefore satisfied.

I am satisfied on the evidence that the pursuer has proved that the operation on which he was engaged when he was injured involved a risk of his being injured. I approach that matter bearing in mind that risk means foreseeable possibility (Cullen v North Lanarkshire Council). I have already mentioned the evidence given by the pursuer's expert witness, Mr Hayne, with reference to the guidance documents issued by the HSE in relation to the Regulations. Mr Hayne also carried out a biomechanical calculation which is set out on pages 3 and 4 of his report (No. 13/7 of process). That involved calculating the load moment applied to the pursuer's spine when he contributed as he did to the operation of lifting the bag of cement. The load moment was calculated in inch pounds (ins/lbs). It was the sum of two separate elements. The first element was the weight (w) of the load multiplied by the distance (x) of the load from the pursuer's spinal pivot. The second element was the weight (y) of the pursuer's upper trunk multiplied by the distance (z) of the spinal pivot from the centre of gravity of the pursuer's trunk. The load moment (lm) is thus calculated by the equation:

Mr Hayne adopted the following values:

The value for w is an estimate of the proportion of the weight of the bag lifted by the pursuer, based on the relative positions of the pursuer and Darren Smith during the lift. The value for x is an estimate based on the posture adopted by the pursuer. The value of y is based on the pursuer's weight as ascertained by Mr Hayne, to which a conventional proportion has been applied to ascertain the upper trunk weight. The value for z is again simply an estimate. Incorporating those values in the equation yields the following result:

Mr Hayne's evidence was that it was generally accepted that a load moment of 1200 ins/lbs was a reasonable maximum for an adult male. He therefore concluded that there was a risk of injury to the pursuer in the operation on which he was engaged. The margin was such that various modifications in the adopted values, through which Mr Hayne was taken in the course of his evidence, did not bring the calculated load moment close to the acceptable value of 1200 ins/lbs. Taking that biomechanical evidence, which was not seriously challenged and which I accept, along with the evidence about the HSE guidance, I have no difficulty in concluding that the operation on which the pursuer was engaged involved a risk of injury. The evidence of the long accident-free and complaint-free experience of the use of that operation, which I have accepted in the context of the common law case as leaving it open to a reasonably careful employer to conclude that injury was not reasonably foreseeable as a probable result of the operation, is not in my opinion sufficient to lead to the conclusion that by the test posed by the regulations there was no risk, in the sense of foreseeable possibility, of injury. I am therefore of the opinion that the pursuer has established both elements of a prima facie case under regulation 4(1)(a).

The defenders in their pleadings put in issue the proposition that it was not reasonably practicable to avoid the manual handling operation in which the pursuer was involved. They aver (at page 8D-E of the Closed Record) that:

Those averments counter averments made by the pursuer that these methods of avoiding the need for manual handling could have been adopted. The pursuer also makes reference in his pleadings to a mobile belt conveyor previously used for loading and unloading vehicles in the yard.

In his evidence Mr Hayne supported the reasonable practicability of each of these methods of dealing with the lifting of the bag of cement, and added that the list was not intended as exhaustive. Stanley Johnston, a consulting engineer who was led primarily to give evidence that the conveyor belt at the Depot could readily have been restored to working order at modest cost, also affirmed the reasonable practicability of the various methods supported by Mr Hayne. Peter Hanretty, the defenders' yard foreman for seventeen years, was led as a witness for the pursuer and spoke to the former use of the conveyor belt to load bags of cement onto lorries. It was, he said, on occasion used even for single bags, although they were normally loaded manually.

Mr Geary asked a number of witnesses questions which were directed to the comparative practicability of manual handling and other methods of lifting the bag. In some cases the answer favoured manual handling, and in others favoured one or other of the non-manual methods. I did not find any of that evidence of assistance. In the first place, neither counsel nor the witnesses maintained the distinction between practicality and practicability. In the second place, the question to be decided is not whether there is a non-manual method which is more practicable than manual handling. The question is whether it can be affirmed that there is no reasonably practicable means of avoiding manual handling which involves a risk of injury.

The evidence was that the defenders had hoists mounted on their larger lorries, but not on the pick-up trucks such as that being used by the pursuer. The defenders' contracts engineer, Alan Morrison, said that the provision of hoists on the pick-ups had never been considered. The previous contracts manager, George Fraser, who retired in 1996, regarded the use of a hoist as practicable. He indicated, however, that there was no room to fit a hoist on a pick-up. It seems to me that it is questionable whether a truck mounted hoist would wholly avoid the need for manual handling of the bags, unless, as some witnesses appeared to consider a possibility, the truck was driven into the shed where the pallet of bags was kept. The evidence did not touch on the practicability of having some form of mobile hoist.

There was at least one fork lift truck (referred to as a JCB) in the depot. A fork lift truck would not be well-adapted to lifting a single bag, but could lift a pallet load of bags to the level of the pick-up truck's platform, enabling a bag then to be slid (without being lifted) from one to the other. The objection to its use put forward in evidence on the defenders' behalf was that a system of loading single bags by fork lift truck would not be practicable, since a number of trucks would all normally be preparing to leave the depot at the same time, first thing in the morning, and would require assistance in loading a large number of different types of material. David Pringle, the defenders' Roads and Ground Maintenance Manager, in particular spoke to those difficulties.

The suggestion that the bag could have been slid on a polythene sheet up a plank onto the truck platform did not involve avoidance of mechanical handling altogether, but according to Mr Hayne reduced the manual handling to a level which did not involve a risk of injury. He had not, however, made any calculation of the reduction of effort which that method would permit. It would have provided assistance in raising the bag to the level of the truck platform, but would not have avoided the particular stage of the operation on which the pursuer was engaged at the time of the accident, namely transporting the bag from the shed to the truck.

The conveyor which had formerly been used was mobile, and thus at least in theory capable of being moved to any location in which it was required. If repaired, it could have been used. Again, it would not necessarily have avoided the stage of the operation at which the pursuer was hurt, unless the lower end of the conveyor could have been brought alongside the pallet on which the bags were stored.

Mr Geary's examination and cross examination of witnesses on the question of reasonable practicability concentrated on the alternative methods of work mentioned in the pleadings. He did not seek to elicit from any of the witnesses evidence that there was no reasonably practicable method of loading the bag of cement onto the truck other than by manual handling in the way deployed by the pursuer and Darren Smith.

In the result I am not satisfied that the defenders have discharged the onus incumbent on them of showing that it was not reasonably practicable to avoid the need for the pursuer to undertake a manual handling operation which involved a risk of injury. It may well be that there would have been economic or practical objections to equipping every pick-up truck with an on-board hoist. It may well be that in organisational terms there would be very great difficulty in making a fork lift truck available whenever a bag of cement required to be loaded onto a pick-up. There may have been difficulties in manoeuvring the conveyor into the shed where the bags were kept. Some of the methods suggested might not have eliminated manual handling completely. None of the defenders' witnesses, however, appeared to have applied his mind in a comprehensive way to the question of how the manual handling operation on which the pursuer was engaged might have been avoided. In the absence of proper consideration having been given to the matter, and in the absence of any evidence expressed in terms of the absence of any reasonably practicable alternative, I am not prepared to hold that the random objections to individual proposals expressed in the evidence properly support the conclusion that the avoidance of the need for the pursuer to undertake the operation in question was not reasonably practicable. I would be slow to conclude that human ingenuity could not devise a relatively simple and reasonably practicable mechanical aid to lift the bag from the pallet and convey it to the platform of the truck. The evidence led does not lead me to that conclusion.

I am therefore of opinion that, while the pursuer's common law case fails, his case under regulation 4(1)(a) succeeds.

It is a matter of agreement that the appropriate sum to be awarded to the pursuer as solatium for the injury which he suffered is £6,500 inclusive of interest to the date of decree. Past wage loss, again inclusive of interest to the date of decree, is agreed at £1,600. It is also agreed that there should be an award of £1,500 in respect of loss of earning capacity. Total damages are therefore agreed at £9,600.

I shall therefore sustain the pursuer's first plea-in-law so far as founded on breach of statutory duty, sustain the defenders' third plea-in-law so far as founded on common law negligence, quoad ultra repel the defenders' first to fifth pleas-in-law, and grant decree for payment by the defenders to the pursuer of the sum of £9,600.