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Cite as: [1999] ScotCS 169

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OUTER HOUSE, COURT OF SESSION

070/5/98

OPINION OF LORD EASSIE

in the cause

RONALD McFAULL GORDON

Pursuer;

against

BRITISH AIRWAYS PLC

Defenders:

________________

Pursuer: Mundy; Aitken Nairn, W.S.

Defenders: Batchelor, Q.C., Simpson & Marwick, W.S.

9 July 1999

Introductory

In this action the pursuer seeks reparation in respect of injuries said to have been suffered by him in an accident occurring on14 February 1995 while he was working as a maintenance worker with the defenders at Glasgow Airport. A proof before answer of the parties' respective averments having been allowed, a diet of proof was fixed for 25 May 1999 and the two ensuing days. On 25 May 1999 a Minute of Amendment was tendered on the pursuer's behalf and discharge of the diet was sought since it was accepted by the pursuer that the defenders would require time to answer the Minute of Amendment. The proposed amendment was however concerned only with the pursuer's averments relating to quantum of damages and following discussion of the motion to discharge the diet parties accepted that the diet could usefully be devoted to dealing with the question of liability, which was disputed. Accordingly, in terms of Rule of Court 36.1 the proof, on joint motion, was confined to the issue of liability.

By way of introductory outline of the matters explored in evidence, it appears that among the various duties of a maintenance worker such as the pursuer employed at the airport was the task of carrying out the "push-out" of aircraft from a departure gate or stance on their departure. In broad terms this involved the attachment of a towbar to the leg supporting the nosewheel of the aircraft and the attachment thereafter of the towbar to the front of a tractor or tug which, at the appropriate time, would push the aircraft out from its stance to a point on the taxiway whence it might proceed forwards under its own power to the start of the runway. The accident averred to have been suffered by the pursuer is said to have occurred at the stage of connecting the towbar to the tractor in preparation for the eventual push-out of the Boeing 757 shuttle flight to London Heathrow.

The Equipment

The towbar for a Boeing 757 aircraft is described in the manufacturer's brochure, No 6/19 of process and is depicted in the photographs in No 6/11 of process and the first photograph in No 6/12 of process. Essentially the towbar consists of an aluminium tube with at one end a towhead suitable for connecting to and locking on the appropriate part of the nosewheel oleo (that is to say, the leg supporting the nosewheel) of the aircraft and, at the other end, a circular eyelet or ring which is intended to be positioned between two horizontally projecting flanges, each containing a circular hole, on the front of the tractor and then secured by a vertical locking pin passed through the holes and the eyelet. The towbar weighs 375kgs. At about midpoint on its long axis the towbar is supported from a cradle to which there are attached two legs at the end of which there are two wheels. This wheel assembly is controlled by an hydraulic pump which adjusts the angle of the legs to the vertical, so as to enable the midpoint of the towbar to raised or lowered relative to the ground. At its lowest setting, with no pressure in the hydraulic system, the legs are at an acute angle to the horizontal and, if the towbar is unattached and free standing, brackets on the underside of each end of the towbar then rest on the ground. If hydraulic pressure is applied the legs approach a more vertical position; the midpoint of the towbar is thus raised further above the ground and may then swivel vertically about its midpoint like a seesaw; and the more the hydraulic pressure brings the wheel assembly to a vertical position the greater the height of the midpoint or fulcrum above the ground.

In order to increase the hydraulic pressure and thus elevate the height of that midpoint the operator moves back and forth in the pumping motion a handle on the hydraulic pump thus effectively jacking up the midpoint of the towbar. Conversely, the hydraulic pressure can be released by means of a release valve, thereby lowering the midpoint of the towbar. The release valve is operated by hand in a simple rotary movement under ordinary finger pressure.

Handles are positioned at each end of the towbar to facilitate wheeling the towbar.

The tractor or tug of the kind involved in the push-out on the material date is depicted in the photograph 6/11(5). The front of the tractor is broadly vertical, there being no significant horizontal projection beyond the windscreen in front of the driver. On the vertical face of the bodywork subjacent to the windscreen are to be found four horizontal projecting flanges positioned a few vertical inches apart so as to create three slots into which a towbar may be inserted. Each flange contains a circular hole. Accordingly the eyelet of the towbar may be positioned in any of the three slots. Once the eyelet of the towbar and the holes in the flanges are aligned the towing pin may be inserted vertically through the holes in the flanges and the eyelet, thus connecting the towbar to the tractor.

The Task

The standard procedure for attaching the Boeing 757 towbar and pushing out the aircraft involves, first, manually wheeling the towbar out to the aircraft. The towbar cannot be moved on its wheels unless the hydraulic system is operated so as to raise the towbar. On arrival at the front of the aircraft the towbar is first connected to the oleo of the nosewheel. In order to obtain the correct height for attachment to the nosewheel oleo the towbar may be pivoted around the wheel assembly cradle like a seesaw. The precise height above ground of the attachment point on the oleo of a Boeing 757 aircraft may vary depending on such things as the amount of fuel or cargo on the aircraft.

After the connexion to the aircraft has been effected it is necessary to connect the tractor to the other end of the towbar. In order to achieve that connexion the eyelet has to be at an appropriate height to engage in one or other of the three slots on the tractor. According to one witness (Robert Wilson) his practice was to raise the towbar to its full height prior to taking it to the aircraft with the consequence that adjusting its height for the tractor connexion involved operating the release valve to lower the towbar appropriately. It would appear however that the practice described by Mr Wilson is not always adopted and adjustment of the height may involve pumping the hydraulic system to raise the towbar. Once the eyelet is in a position judged to be appropriate for insertion into one of the slots, the tractor is then positioned with its slots in line with the long axis of the towbar and it is driven slowly forward until one of the slots engages the eyelet of the towbar. Thereupon the towing pin requires to be inserted.

Once the connection with the tractor, with the pin in place, has been effected, the pressure in the hydraulic system must be released in order that the wheels of the towbar are retracted clear of the ground. At that point the aircraft may then be "pushed off".

Once the aircraft has been pushed out to the appropriate point from which it may taxi forwards under its own power the towbar has, of course, to be disconnected. In order to do that it is necessary to use the hydraulic pump to place the towbar wheels back on the ground so that they may then take the weight of the towbar and allow the towhead to be unlocked and disconnected from the nosewheel oleo.

The procedures normally involve two men, one of whom will drive the tractor at the appropriate moments, the other (known as the "wing-man") guiding the driver when he is connecting his tractor to the eyelet of the towbar and when pushing out the aircraft. Although the witnesses agreed that the operation was usually done by two men, there was some evidence that certain of the stages prior to the actual pushing out might, on occasion, by undertaken by one man.

The Pursuer's Account of his Accident

The pursuer stated in evidence that about an hour or so after beginning work on the late shift - which lasted from 14.30 hours to 22.30 hours - on 14 February 1995 he met an incoming Boeing 757. It was the first aircraft with which he dealt that afternoon. He indicated that, having put chocks under its wheels he went to Gate 19 and selected the 757 towbar. Apparently acting alone, he then wheeled the towbar some 35 feet to the aircraft and, still acting alone, attached it to the aircraft nosewheel oleo in the normal way. He then went to the tractor and drove it up to the towbar so as to position it in the normal way by lining it up with the slots facing the long axis of the towbar. However, the height of the eyelet required to be adjusted upwards. So the pursuer left the driving seat of the tractor and went to the hydraulic pump handle located at the midpoint of the towbar. He operated the handle but on this particular occasion the hydraulic system did not raise the towbar for a sufficient distance. The eyelet was below the level of the middle slot on the tractor, which the pursuer said was the slot which he habitually used for a 757 push out. According to the pursuer, he then took hold of the handle near the end of the towbar nearest to the tractor, lifted the end of the towbar upwards through a distance of about one and a half inches and then pulled the towbar laterally towards the tractor and into the middle slot. In the course of that second, lateral motion to insert the eyelet in the slot, he felt a searing pain in his back. The pursuer described the pain in fairly graphic terms as going up his spine and raising the hairs on his neck.

The pursuer deponed that, having sustained this injury, he then walked to the crew room which was situated near Gate 17 - a distance of perhaps 100 yards - and that he there spoke to his supervisor, Mr David Mavers. He told Mavers that he had had an accident and had hurt his back on a 757 towbar; and that he, Mavers, would require to call someone out to do the rest of the pursuer's duties. According to the pursuer, Mr Mavers told him that he would get Mr Hugh McNeill to come out and the pursuer then volunteered, pending Mr McNeill's arrival, to drive the tractor to push the Boeing out.

The pursuer's own evidence of what occurred following his speaking with Mr Mavers was to some extent contradictory. Having originally indicated that after driving the tractor to push off the 757 he then collected his belongings and went home; in cross-examination the pursuer stated that he did two push outs that afternoon, namely the 757 to which he had attached the towbar and another aircraft while waiting for McNeill to arrive. The injury was sustained with the first aircraft with which he dealt. After the despatch of that aircraft he drove the tractor for another push out but the aircraft was not a shuttle. It was some other type, perhaps an ATP. In re-examination however, he assented to the proposition that the 757 was in fact the second aircraft with which he had dealt and he did not do anything after having driven the tractor to push out the 757 shuttle flight to London Heathrow.

The explanation given by the pursuer for what was described as the partial failure of the hydraulic system was a belief that as a result of a leakage of hydraulic fluid the quantity of fluid in the system was reduced. The pursuer maintained that it was a common occurrence for a leak to develop in the hydraulic system and for the hydraulic system consequently not to function fully. The hydraulic system of the towbar would then usually be attended to by the mechanics in the maintenance department or "MT department" but the MT department was not able to prevent leaks from re-occurring subsequently. The pursuer's belief that a leak of some hydraulic fluid might result in the system being partially impaired in that it would not lift readily to full height was broadly supported by a consulting engineer tendered by the pursuer - Mr Stanley Johnston.

The pursuer accepted that there were two other 757 towbars at Glasgow Airport, one of which might have been in the International section some distance away but the other of which would have been in the vicinity of a nearby gate, Gate 21. He had not thought to seek a replacement towbar because the plane was boarding and if its departure were held up by reason of the defective towbar, the defenders would "put something in his documents" and, said the pursuer, his job would be at risk.

The pursuer also accepted in cross-examination that notwithstanding the partial failure of the hydraulic system of which he spoke, there was sufficient pressure to raise the towbar to a height at which the eyelet could have been located in the lowest of the three slots on the front of the tractor. He did not follow that course because, he said, it was his standard practice to use the middle slot.

The Reporting and Recording of the Incident

It is convenient at this point to discuss the evidence relating to the reporting and recording of the accident which the pursuer claims to have suffered.

The pursuer's account of what he said to Mr Mavers has already been mentioned. Mr Mavers, who was called by the defenders, disputed that account. He deponed that about 1600 to1630 hours on the afternoon of the date in question he entered the corridor leading to the crew room. As he entered the corridor he met the pursuer who was going out with his belongings and the pursuer said that he was going home. The precise language used by the pursuer was simply that he was fucked and was going home. Mavers was clear that the pursuer did not suggest that he had been a victim of an accident. Had the pursuer complained of an accident, Mavers would have made an entry in the accident book which would have been followed up by an accident report. If he had been told that allegedly defective equipment was involved in the accident, he would at least have completed the appropriate documentation for the MT department which included a red label indicating "defect" affixed to the item of plant itself. None of these steps were taken by Mavers.

Within the crew room was kept a "handover book", the primary purpose of which was to enable the supervisor of one shift to record in manuscript information necessary for or useful to the supervisor of the succeeding shift. It appeared from the evidence that the handover book was available for general inspection in the crew room by all the maintenance workers and that employees other than the supervisor might make entries in it if they thought fit. The handover book covering the period of the incident is No 16/18 of process. A number of pages are missing. Those missing pages include the page or pages which would relate to events on 14 February 1995. According to Mr Mavers he recollected the book's having gone missing for about a fortnight and that on its return certain pages were missing. The book then appears to have gone missing yet again until a week before the proof diet when it was handed by the pursuer to his solicitors with the explanation that it had been given to him by a Gerard Hamill just before Mr Hamill had left to take up residence and employment in Canada. Hamill gave evidence on commission on 8 June 1998 very shortly before that departure but after his having given up employment with the defenders on 31 May 1998. Mr Hamill deponed to having seen an entry in the handover book. He was clear (transcript of the commission, p. 80) that the entry did not refer to the occurrence of an accident but simply recorded that the pursuer was "sick" or "sent home sick". In his evidence on commission Mr Hamill made no reference to the handover book being then in his possession or having recently been so but delivered to the pursuer.

According to Robert Wilson, he met the pursuer at about 1700 hours as he was going out of the crew room to the ramp. Mr Wilson initially deponed that the pursuer stated that "he had done his back in on one of those 757 towbars" but shortly thereafter Wilson qualified his position by saying that while he did remember the pursuer saying that he had hurt his back, he had no specific memory of his ever saying that the injury was related to activity with the towbar.

Evidence was given by the pursuer's wife that on the afternoon or early evening of 14 February 1995 her husband came home early and was in apparent pain. He said that he had hurt his back at work; he had had an accident and hurt his back while operating some machinery. On the following day her husband went to his general medical practitioner. Mrs Gordon accepted that her husband had previously had back problems including sciatica.

The pursuer had also deponed that on the following day he had gone to his general practitioner. He said that he told the general practitioner "the exact events". He was later referred to the Royal Alexandria Infirmary where he told the examining doctor the "exact circumstances" of the accident.

The GP entry is difficult to decipher with confidence but does not on its face disclose any account of an accident at work involving defective equipment. The hospital record appears to be in these terms:-

"PC sudden loss of power lower limb since this morning while coming out of car. H/O acute LBA two wks. Sustained pain while lifting some heavy weight. H/O similar LBA on and off for the first two years".

Some six months later, on 17 July 1995 the pursuer - who was then still off work - returned for the first time to the airport. He deponed that his purpose in so doing was to collect mail which might have been sent to him in connexion with a social club with which he was involved. However, being there for that purpose he took the opportunity of checking the defenders' accident book. On finding that there was no relevant entry respecting his alleged accident he inserted the entry now copied in No 6/6 of process. The description of the incident is in these terms:-

"Faulty 757 towbar. Jarred my back (pump on towbar poss lack of oil) reported."

The employers declined to accept that entry as being the report of an accident. The pursuer agreed that in June 1995 he applied for DSS benefits but he denied the proposition that he had gone to the airport in July because the DSS had declined payment of certain benefits for want of any written record of the occurrence of an accident at work.

The Acceptability of the Pursuer's Account

Mr Batchelor, who appeared for the defenders, submitted at the closure of the proof that the pursuer's account should not be accepted as credible or reliable. A number of grounds were advanced in support of that submission.

First, counsel observed that there was no evidence which directly corroborated or supported the pursuer's evidence as to the happening of the accident or the manner of its supposed happening. The task in question was normally a two-man operation. Of the other witnesses Mr Gerald King, another maintenance worker, was fairly sure that on the day in question the pursuer had been working as a pair with Robert Wilson. In his evidence Mr Wilson, whilst recollecting the pursuer's complaint, was unsure of the identity of his working colleague on that particular day. Mr Wilson did not claim to have witnessed anything at all although the pursuer claimed to have used a wingman for the push out of the Boeing 757 after the alleged incident - and possibly the other aircraft. The pursuer, curiously, claimed to have no recollection of the identity of anyone with whom he was working that day. As I understood the thrust or implication of these observations it was to the effect that the absence of any witness who had actually been involved in the push out, in which the involvement of a second man would be normal, incited at the least a close examination of the pursuer's account.

Secondly, Mr Batchelor pointed out that even on the pursuer's account of what he said to Mr Mavers on 14 February 1995, no report was made of the existence of any defect in the hydraulic system.

Thirdly, in relation to the contradiction between Mr Mavers' evidence of what was said to him by the pursuer and the pursuer's account of that conversation, no reason had been suggested why, if the pursuer had reported an accident, particularly an accident involving defective machinery, Mr Mavers should not have made appropriate entries in the accident book. Mr Mavers' account was consistent entirely with Mr Hamill's evidence of having seen in the handover book an entry to the simple effect that the pursuer was sent home sick with no mention having been made of any accident or particularly, defective equipment.

Further, the defenders plainly had a clear system for dealing with defective items of equipment involving the submission of defect sheets, the labelling of defective items as being so defective, and the subsequent job cards and related paperwork in the repair workshop. Counsel pointed to the evidence of Mr Frederick Clark, the supervisor in the MT department, who, while accepting that the MT paperwork might not be absolutely perfect, had searched their records once the pursuer, in July 1995, had alleged the occurrence of an accident. Mr Clark had found nothing indicative of any repair to a defect in a 757 towbar at the relevant time. Moreover, neither Mr Wilson nor Mr King, a fellow maintenance worker, had spoken to there being any deficiency in the hydraulic system of the towbar shortly before or after this supposed incident. Mr Mavers had not received any report of any deficiency in the hydraulic system of the towbar at the relevant time, nor insofar as he himself carried out the work of pushing out aircraft, had he found a deficiency of the type complained of by the pursuer. There was thus nothing supportive of the pursuer's suggestion that there had been any deficiency in the equipment at the relevant time.

Fifthly, despite the pursuer's assertion that he had told his general medical practitioner and the hospital doctor "the exact circumstances" of the accident none of the medical records contained any reference to any occurrence of an accident at work.

Sixthly, there were internal inconsistencies within the pursuer's own evidence about what he did after this alleged accident (to which I have already referred) and these cast doubt on the reliability of the pursuer's evidence.

Furthermore, seventhly, the pursuer's explanation for not looking for a replacement towbar, had there been a failure in the hydraulic system, was wholly unconvincing. The evidence of Mr King, a witness tendered for the pursuer, was to the effect that, with a shuttle, one would connect up on arrival of the aircraft so as to be ready for push out. The urgency claimed by the pursuer was thus suspect. But much more importantly, Mr King would have been startled by any suggestion that the defenders would issue a warning to an employee were an aircraft to be delayed in departure by reason of the discovery of any defect in the equipment.

Mr Batchelor also stressed the inherent improbability, if not impossibility, of the pursuer's account of the accident. The hydraulic system was plainly effective in order to connect and lock the towbar to the nosewheel oleo. In order to release the towbar from the aircraft after the push out, the hydraulic system would require to operate. Not only did that indicate the absence of any defect but, asked counsel, if in connecting the tractor to the towbar the pursuer had encountered a defect in the hydraulic system, how could he know that it would operate sufficiently to allow the detachment of the towbar on the conclusion of the push out.

Further, but importantly, it was simply not possible for the pursuer to lift the eyelet of the towbar a vertical height of one and a half inches and then move it horizontally, or laterally, into the socket on the tractor. By that stage in the procedure the opposite end of the towbar had been fixed and locked to the aircraft and consequently the eyelet of the toolbar was a fixed point to which the tractor had to be brought, and not vice versa.

Finally, counsel referred to the evidence given by the consultant surgeon Mr Mackay on commission, who, having reviewed the relevant records, came to the conclusion that the back condition of which the pursuer was complaining was unlikely to have been caused by any accident at work but was an acute episode of the general manifestation of degenerative changes in the spine consistent with the pursuer's previous medical history of persistent back problems, including sciatic episodes.

For his part, Mr Mundy, for the pursuer, submitted that the evidence showed that on the day in question the pursuer did hurt his back and, submitted Mr Mundy, he did so while both lifting and pulling the towbar. Mr Mundy accepted that there was confusion in the pursuer's evidence as to what the pursuer did after the occurrence of the accident but he submitted that the pursuer's position was encapsulated in what was effectively his assent to the proposition put to him in re-examination that he was injured while pushing out the 757 shuttle flight which was the second aircraft which he pushed out on that day. Counsel further pointed to the evidence supportive of the pursuer's account of having sustained a back injury, namely the evidence of his wife; the evidence of Mr Wilson insofar as Mr Wilson deponed to having received an account from the pursuer of a back injury; Mr Hamill's evidence as to what he saw in the handover book; even Mr Mavers' evidence that the pursuer said to him that he was "fucked" and additionally, the evidence of Mr Mackay to the effect that there was an acute back problem evident in February 1995 albeit that it occurred on top of a chronic back problem.

Counsel for the pursuer went on to submit that the pursuer's account of what happened to cause him to hurt his back was consistent with evidence of what other maintenance workers said that they had done in the past and in that connection counsel relied principally on the evidence of Robert Wilson and Gerard Hamill. Reliance was also placed upon the evidence of the consultant engineer Mr Johnston, to the effect, first, that it was possible should there be a leak of hydraulic fluid for an hydraulic system to fail partially and consequently not raise or operate to its full extent and, secondly, that since the weight of the towbar was being borne by pneumatic tyres it would be possible to lift it very slightly insofar as assistance was afforded by the compression in the tyres and that he, Johnston, had been able to lift it slightly.

Of these competing submissions I considered that those advanced by counsel for the defenders are to be preferred.

It is plain from the medical records and it was accepted by the pursuer that he had a history of back pain and sciatica going back for a number of years before the incident. As I read it, the evidence of the surgeon, Mr Mackay, is unsupportive of the probability of injury to the pursuer's back having been caused by a traumatic episode on 14 February 1995. Thus, having concluded that the pursuer was suffering from a degenerative condition of the spine, Mr Mackay said (p. 70E) in response to a question whether the pre-existing condition rendered the pursuer prone to injury in the course of lifting:-

"....He was prone, he would be prone to an injury and also he would be prone to having the symptoms recurring at really any old time. As far as I could make out from Mr Gordon there was no specific injury the previous times when he had these problems so yes, I would regard him as being, his back was prone to injury. Equally, I would regard his back prone I think to developing further symptoms."

And at p. 98F-99B one finds:-

"....the fact that his condition worsened in February 1995 does not indicate by itself he had suffered some traumatic incident around about that time? - No. Trauma would only be one cause of exacerbation of back pain. A natural history of degenerative disease of a lumbar spine is it will flare up and give you tremendous difficulties without any history of trauma."

I am prepared to accept that the pursuer did develop back pain in the course of the afternoon of 14 February 1995 but particularly in the light of the medical evidence it does not follow that the development of that pain must have resulted from a particular lifting accident, let alone one of the kind claimed by the pursuer.

Had there been an accident, particularly an accident ensuing following the discovery of defective equipment, I consider that the pursuer would have reported it immediately. Indeed the pursuer claimed to have done so to Mr Mavers and the pursuer was at pains to stress in his evidence that he had reported "the exact circumstances" to his general medical practitioner and to the hospital doctors. However, in relation to the latter it may be observed that neither the relevant GP records nor the hospital records contain any mention of any accident at work, or indeed any accident, and no reference is made to the failure of any item of machinery. Mr Mavers' account was clearly contradictory of the pursuer. I find no reason for rejecting Mr Mavers' evidence that all that the pursuer said as he left work was that he was "fucked" and was going home. Indeed, no reason for disbelieving Mr Mavers was urged upon me by counsel for the pursuer. If an accident had been reported to Mr Mavers there was no evident explanation for his not having made an entry in the accident book. If a defect in the appliance had been reported, there was no reason for his not entering that in the handover book and not completing the appropriate documentation for the MT department. The relevant pages of the handover book are missing. The reasons for that are essentially unexplained and I draw no inference from their absence one way or another. However, Mr Hamill's evidence was to the unambiguous effect that the entry which he saw prior to the disappearance of the relevant pages was that the pursuer had gone home sick and nothing in it suggested the occurrence of an accident. In his demeanour Mr Mavers appeared to me to be a truthful and basically reliable witness and I accordingly accept his evidence to the effect that the pursuer made no complaint of any accident but simply told Mr Mavers that he was "fucked and was going home". I did not find Mr Wilson's evidence supportive of the pursuer on this aspect. To the extent that it conflicts with what Mr Mavers said, I prefer the testimony of Mr Mavers. It also appeared to me that insofar as Mr Wilson initially suggested that the pursuer told him that he had hurt his back on "one of those 757 towbars" his later qualification of inability to remember the reference to the towbar was perhaps significant and I do not treat the 757 reference as reliable. I would also observe that in any event the remark makes no reference to any failure in the hydraulic system. I accordingly hold that the pursuer did not make any de recenti report of the occurrence of the alleged accident, involving allegedly defective equipment, which he now claims to have suffered in circumstances in which such a report would have been expected.

I also attach significance to the absence of any independent evidence of any defect in the hydraulic system at or about the material time. Mr Mavers, whose evidence on this topic I also accept, said that if there had been a problem with the hydraulic system on the 757 towbar at this time, he would have expected that to be reported to him (or his opposite number on other shifts). No such reports were received by him and he saw nothing in the handover book during the ensuing days. Mr Frederick Clark, a supervisor in the defenders' MT department for the last 15 years, deponed that on the pursuer's making the accident report in July 1995, he had conducted a search of the job sheets and other records of his department for some weeks before and after the date of the alleged accident and could find nothing of relevance, although Mr Clark fairly accepted that no system of paperwork was 100% perfect. There was nothing in the evidence of the skilled witness, Mr Johnston, to suggest that a failure of the hydraulic system such as he or the pursuer described could rectify itself spontaneously. None of the pursuer's fellow workers deponed to having encountered any difficulty of the particular type described by the pursuer with the 757 towbars at this particular period. No-one was tendered who spoke to having encountered the same problem either immediately before or shortly after the alleged accident.

Apart from the absence of any evidence supportive of the pursuer's assertion that the hydraulic system failed to work perfectly and thus could not raise the fulcrum of the towbar to a height sufficient to enable the eyelet to enter the middle slot of the tractor, there is nothing supportive of his being able to do what he claims to have done on the hypothesis of such partial failure. Mr King, a long-standing employee at the airport who had spent considerable time in the MT department and became a maintenance worker some nine years ago, deponed that the method of connecting the tractor to the towbar was to adjust the height of the eyelet appropriate to the tractor and then drive the tractor forward so that the tractor engaged the eyelet in the appropriate slot. He had never used any other means. Since the aircraft end of the towbar has already been fixed and locked to the aircraft nosewheel oleo the eyelet at the other end of the towbar was a fixed point to which the moveable socket in the tractor had to be brought. As he put it, the tractor has to be the one that moves. He could not see how it would be possible to lift the towbar and move it into the slot of a stationary tractor. Mr King impressed me as a careful and reliable witness. In my view it is difficult in the extreme to see how the pursuer, acting on his own, and faced with a supposed failure of the hydraulic system could raise the eyelet through the claimed distance of one and a half inches to reach the level of the middle slot of the tractor and, while holding the eyelet at that level, horizontally move it along the direction of its long axis so as to place the eyelet within the middle slot. Even if, having lifted the towbar one and half inches, the horizontal movement were then a movement at a right angle to the long axis of the towbar (and the pursuer did not describe or claim such a movement) it is evident that such a movement would require movement of the tyres on which the towbar rested. In short, on a closer analysis the account given by the pursuer is either physically impossible or, at the least, so highly improbable as to border thereon.

Counsel for the pursuer founded on certain passages in the evidence of other employees which he put forward as supportive of the pursuer's claim that he had lifted the towbar up one and a half inches and then moved it horizontally into the slot. Those other employees were Mr Wilson and Mr Hamill.

At one point in his evidence Mr Wilson did say that in the past he had lifted up the eyelet by as much as, he thought, half an inch and counsel pointed in particular to that passage. However, I consider that to focus on that statement in isolation is to misconstrue Mr Wilson's evidence as a whole. Earlier in his testimony Mr Wilson described the procedure, much as did Mr King, whereby the wingman endeavoured by use of the hydraulic system to set the eyelet at a height at which the tractor might be driven forward to engage the eyelet in one of its three sockets. Mr Wilson then deponed that once the eyelet was within the socket, if the alignment were not perfect, one might push or pull at the towbar to get it sufficiently perfectly aligned to allow the insertion of the vertical towing pin. As to the lifting of the towbar to insert it initially into the socket, he said that he had never tried to lift it and he did not think that one could so lift it. Mr Wilson added however that once it was "metal on metal" - which I understood to mean when the eyelet was within the socket - it was possible to move it by pushing or pulling in order to perfect the alignment for the insertion of the pin. The proposition that, once the eyelet was inserted into a slot on the tractor, fine adjustment of the alignment to allow the insertion of the pin might be required is one which is, to my mind, comprehensible. Such an exercise, which Mr Wilson described as commonly done, was not related by him to any deficiency in the hydraulic system. Mr Wilson's practice was always to pump to full extent prior to connecting to the aircraft with the consequence that release of pressure was carried out in order to adjust the height of the towbar for the tractor to connect to it. Mr Wilson was clear that if there were any defect in the hydraulic system one would report the defect which would then receive attention from the MT department and one got another appropriate towbar. I accordingly do not consider that Mr Wilson's evidence supports the proposition that it was possible to do what the pursuer claims to have done, let alone the proposition that such was common practice.

Mr Hamill, as already indicated, gave evidence on commission. Counsel for the pursuer founded on a passage at p.34C-D of the transcript in which the witness having described the eyelet as having a swivel, enabling fine adjustment to be made in order to accommodate the insertion of the pin which, in turn, entailed pushing by the operative with his leg or hand, is in the following terms:-

"But assuming everything is working well you would not require to lift the towbar? - No you wouldn't.

Now if the hydraulic pump for one reason or another was not working? - Yes.

To its full extent? - Yes.

How would you connect up the end of the towbar to the tractor? - You would basically have to try and lift it manually.

Is that something which you yourself did? - Daily, almost hourly."

The implication of that passage of Mr Hamill's evidence is that the incidence of failure in the hydraulic system was a daily, hourly occurrence. That implication must be contrasted with passages elsewhere in Mr Hamill's evidence, such as that a p. 44C -FF which imply that a failure of the hydraulic system was a rare event. At p. 47, there having been postulated to the witness the situation of the towbar having been attached to the aircraft, the hydraulic system then demonstrating some fault in its lifting ability, the proper course was to get another working towbar, the witness said this:-

"If the towbar is already connected to the aircraft and it is only a fraction out and you are guiding the driver in, there isn't any problem using it. If the actual thing is, if the pump fails once you are holding on to it and guiding the driver in and manoeuvring the towbar from side to side, obviously you got a grip of that and if the wheels go on you then you're, you're holding the baby is the phrase that we use. Now, in the perfect world and assuming that there is three towbars which are working, assuming that they are all on station, then correct, you can disconnect it and go and get it."

It is thus difficult to make sense of Mr Hamill is evidence unless it be that his assertion of having to try to lift the towbar manually to connect the towbar to the tractor "daily, almost hourly" relates to the fine tuning to accommodate the pin once the "metal to metal" situation and the swivel design comes into play after insertion of the towbar into the slot. I adopt that favourable interpretation of his evidence, failing which I would simply reject, it having in view the evidence of Mr King, whose evidence I accept.

Counsel for the pursuer also founded on the evidence of Mr Johnston. While Mr Johnston may have satisfied himself that it was possible, by reason of the yielding effect of the compressed air within the pneumatic tyres to lift the end of the towbar to some minor extent, his evidence was based on a simple examination of the towbar in a hangar and without having tried or tested the pursuer's account on the apron or in actual circumstances. It contributed nothing to the issue of the possibility of the pursuer's being able not just to lift the towbar by the height of one and a half inches to achieve the height necessary to place it into a higher slot but also to move it horizontally to achieve that effect.

In these circumstances I am unable to hold that the pursuer has established by acceptable evidence that he was the victim of an accident at work in the manner claimed by him and judging matters on the balance of probabilities I reject his account.

While that finding is sufficient for the disposal of the action I am also of the view that in any event the pursuer has not established that the defenders were in breach of any relevant duty owed to him and it is appropriate that I give some expression to my views on those matters.

Breach of Duty

Insofar as the case which the pursuer seeks to make is pled as ordinary breach of duty of care or culpa, counsel for the pursuer, as I understood him, accepted that the defenders did have a system for repairing and maintaining equipment such as the towbar and that there was no evidence that complaints or reports of defects did not receive appropriate prompt attention. The case which counsel sought to make was that the defenders were under a duty to give and enforce specific instructions that, in the event of a failure of the hydraulic system, employees should not attempt to lift the end of a towbar but should disconnect it from the aircraft and obtain a replacement. In support of the proposition that there was a duty to give specific instructions counsel referred to Monkman on Employers' Liability 12 Ed. p. 109, 112, 114 and Mearns v Lothian Regional Council 1991 SLT 338 and McGregor v AAH Pharmaceuticals Ltd 1996 SLT 1161. Counsel accepted however that the duty claimed was predicated on the averment (Closed Record p. 14C-D) that the defenders knew or ought to have known, "that if the pneumatic pump on a towbar was inoperative that one or other end of the towbar would require to be lifted manually." which in turn followed the averments in the Closed Record at 11C-D as follows:-

"The defenders' duty managers John Mitchell Marshall and Neil Robertson were aware that maintenance workers such as the pursuer lifted the ends of towbars manually. It was normal and common practice for those employees to do so. No instructions were ever issued by the defenders to the maintenance workers to the effect that they were not to attempt to lift the end of a towbar manually. No instructions were ever issued as to what was to be done in the event that a hydraulic pump failed to operate properly. No instructions were ever issued to the effect that the towbar should be disconnected and a replacement towbar found and used."

However, so far as the evidence was concerned it was plain that if there was a failure in the hydraulic mechanism the employers' system and the practice of the employees was to report the failure and seek a replacement. Mr King's evidence was to the clear effect that if a problem arose in achieving the right height through any deficiency in the hydraulic system the matter would be reported and the towbar would receive attention from the MT department. As I have already noted, Mr Wilson's normal practice was to pump to full height before connecting to an aircraft and then lower the tractor connection. He too stated that if he encountered a problem with the hydraulics he would then report it and that the towbar would be removed for repair. As I have already explained insofar as Mr Wilson described pulling or pushing or lifting the toolbar I am satisfied that he was referring, not to the case of a failure in the hydraulic system, but to the "metal to metal" stage at which the eyelet was positioned within the slot on the tractor. I have already expressed my view on the material parts of Mr Hamill's evidence. There is accordingly, in my opinion, no body of acceptable evidence to the effect that on a failure of the hydraulic system the practice was to lift the end of the towbar. As counsel for the defenders pointed out, no witness spoke to having lifted or manhandled a towbar after encountering a failure in the hydraulic system. I therefore do not consider that the basis upon which the claimed duty to give instructions is premised has been established. (I would add that no evidence was led suggesting that, if the claimed practice existed, it was a matter known to the named representatives of the defenders, Mr Marshall and Mr Robertson).

The pursuer also pleads that the defenders were in breach of Regulation 6(1) of the Provision and Use of Work Equipment Regulations 1992 which provides:-

"Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair."

Counsel for the pursuer submitted under reference to the annotation in Redgrave on Health and Safety at Work, p. 383 and Millar v Galashiels Gas Company 1949 SC (HL) 31 that the duty so imposed was absolute. I did not understand counsel for the defenders to dispute that proposition. He submitted however, first, that the pursuer had not proved the hydraulic system not to have been working properly and, secondly, that even if it were not working the injury was not caused by the breach of the regulations. Even on the hypothesis that the pursuer's account of the accident were accepted, the pursuer did not suffer injury by reason of the failure of the hydraulic system but by virtue of his decision to lift the towbar rather than seek a replacement. The alleged failure in equipment was thus not the effective cause of the injury. In relation to the issue of causation reference was made in the course of counsel's submissions to the passage in Monkman on Employers' Liability at p. 48 and p. 55. Counsel for the pursuer submitted initially that the proximate cause was the breach of statutory duty but as I understood it, he thought that it was a question of the foreseeability of the pursuer's lifting the towbar in the event of a failure in the system. He also submitted that the failure of the hydraulic system was a material contribution to the accident (Wardlaw v Bonnington Castings 1956 SC (HL) 26.

In my opinion on this matter also the submissions for the defenders are to be preferred. It is plain that the failure in the hydraulic system did not in itself cause any injury to the pursuer. The pursuer was on the very hypothesis claimed by him aware that the defect was present before he attempted to lift and move the towbar. The passage in Monkman at p. 55 and particularly the decisions referred to in the second full paragraph of that page persuade me that the supposed failure of the hydraulic system is too distant to be an effective cause of the accident. Insofar as Mr Mundy sought to argue that the accident was yet causally linked to the partial failure in hydraulic system because it was probable that a workman such as the pursuer would seek to lift the towbar, that argument founders also on the absence of any body of evidence from which it may be concluded that the employer ought plainly to have foreseen such an event.

Counsel for the pursuer also submitted that the defenders were in breach of the statutory duty imposed on them by Regulation 4(1)(a) of the Manual Handling Operations Regulations 1992 which provides that each employer shall,

"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".

In relation to the interpretation and application of the Regulation, counsel for the pursuer referred me to Anderson v Lothian Health Board 1996 SCLR 1068, Redgrave on Health and Safety at Work, p.734 and Cullen v North Lanarkshire Council 1998 SC 451. As I understood him the principle proposition which Mr Mundy sought to draw from these authorities was that it was for the defenders to plead and prove absence of reasonable practicability and they had not sought to do either. Although observing that the operation of pushing out an aircraft taken as a whole involved some manual handling (for example when the towbar was wheeled out to the aircraft) counsel for the pursuer accepted that the particular operation pled as being a manual handling operation was the operation of lifting the tractor end of the 757 towbar into the slot. (Closed Record 18A-C). The Regulation, it was submitted, imposed on the employer the obligation of avoiding the need to carry out a manual handling operation. It was not so much whether a workman was actually doing a manual handling operation when the injury was sustained but the issue was, rather, whether the employer had avoided the need for him to do the manual handling operation. Counsel submitted that in the present case it was foreseeable that the pursuer would lift the towbar if the hydraulic system underwent partial failure and there was, in that sense, a need for the employee to carry out the manual handling operation. As a common-sense approach, in absence of instruction not to lift the towbar in those circumstances the common practice followed by the employees was the equivalent to "need" for the maintenance workers to carry our a manual handling operation.

For his part, counsel for the defenders agreed at the outset that no question of reasonable practicability arose. The simple answer to the pursuer's argument under this branch of his case was that under the employers' system there was no need to engage in manual handling at this point in the wider operation of the pushing out of the aircraft. If the hydraulics failed it was not then the defenders' system that the towbar be connected manually. They had avoided the need for manual handling of this operation by providing a hydraulically operated system and a system for reporting and repair in the event of a defect.

On this branch of the case also I must prefer the defenders' submissions. Looking to the terms of Regulation 4, it is apparent to me that it is concerned with the assessment of the systems or operations carried out as a matter of ordinary course within the ambit of the employers' undertaking. To my mind that is particularly apparent from the terms of sub-paragraph (1) of paragraph (b) of the Regulation 4(1). In the present case the system operated by the defenders for the engagement by the tractor of one of its slots with the towbar was one which did not involve any manual handling. The system operated by the employers accordingly avoided any need for manual handling and in these circumstances I do not consider that any breach of Regulation 4(1)(a) of the Manual Handling Operations Regulations has been demonstrated.

Contributory Negligence

I would, for completeness, add that counsel for the defenders submitted that if the defenders were at fault either at common law or in respect of a breach of statutory duty the pursuer was contributorily negligent and was substantially at fault. The pursuer knew of the need to report defective equipment and the system of reporting defective equipment. He did not go to see whether any replacement towbar was available. He did not adopt the elementary step of putting the eyelet in the lower slot simply because it was "not his practice". He attempted lifting in the knowledge that he had a bad back. The counter-arguments on behalf of the pursuer were that there was nothing wrong with the towbar hydraulics when the pursuer first used it; there was nothing particularly blameworthy in the pursuer's lifting the towbar once the partial failure of the hydraulics was evidence, since when that was the common practice; he was also never instructed specifically to get another towbar and it was not proved that there was in fact one available.

Since I do not find the defenders liable to the pursuer apportionment of blame in precise terms would be a hypothetical exercise, involving potentially different hypothetical bases and in the circumstances I consider that I can do no more than observe that I would have been inclined to find, in most general terms, a significant degree of contributory fault on the part of the pursuer.

Decision

In the whole circumstances, I uphold the second and third pleas for the defenders and assoilzie them.

I was asked by counsel for the pursuer and the defenders to certify Mr Stanley Johnston and Mr Iain Mackay respectively, as skilled witnesses. There being no objection to either motion, I shall grant that certification.