Scottish Court of Session Decisions

This action came before the Court on procedure roll in respect of the defenders' first plea-in-law. The defenders argued for dismissal on the ground of want of specification of the alleged risk in the operation..

The pursuer felt a sharp pain in his lower back while engaged in moving a cupboard from a classroom on the second floor of one of the defenders' predecessor's schools to a classroom on the third floor. He did so along with William Kennedy and Joseph Gourley. The pursuer avers "the operation of moving the cupboard was a manual handling operation at work which involved a risk of said employees, including the pursuer, being injured". He pleads a breach of statutory duty under Regulation 4(1) of the Manual Handling Regulations 1992. He avers a breach of paragraphs (a) and (b) (but only those paragraphs) as follows:-

He avers that in the performance of their said statutory duties the defenders' predecessor failed and "by its failure so caused (sic)the accident". The defenders refer to the Regulations for their terms and deny that they had any duty to comply with them.

The pursuer's detailed averments which relate to the issue which requires to be determined, i.e. whether the manual handling operation in question involved a risk of the pursuer being injured, are as follows. "The centre of gravity of the cupboard was not positioned centrally. Strathclyde Region did not take appropriate steps to provide the pursuer with precise information on the heaviest side of the cupboard. Said cupboard was approximately 2 metres high. It weighed approximately 35kgs. To reach the third floor the pursuer and his fellow employees carried said cupboard up two flights of stairs. Each flight of stairs consisted of approximately 9 steps. The pursuer and Joseph Gourlay took hold of the cupboard so that they were at its front as it was being carried upstairs. William Kennedy held the cupboard so that he was at its rear. The pursuer and his fellow employees had almost reached the top of the second flight of stairs when the pursuer felt a sharp pain in his lower back".

The averments relating to an alleged lack of information given to the pursuer about the load were challenged as irrelevant and the Court was moved to delete them. They would appear to relate to paragraph 4(b)(iii) of the Regulations which are not part of the case. I would have deleted them had I considered the case should go to proof otherwise.

The defenders complained that the averments above quoted gave insufficient notice of the evidence upon which the pursuer proposed to rely to establish that there was a manual handling operation which involved a risk of the pursuer being injured. He maintained that the pursuer had given no reasonable specification of his share of the load, of the position and proximity of the load to his body; or of any particular aspects of the lift which gave rise to any risk of injury, which complaints were foreshadowed amongst other calls at page 8 of the Record.

The defenders' counsel also attacked the suggestion that failure to make an assessment under paragraph 4(b)(i) of the Regulations imposed a duty breach of which could lead to liability for injury. The defenders' pleadings in this case do not attempt to invoke the escape clauses in paragraph 4(a) and accordingly 4(b)(i) and (ii) would not arise at a proof. However, I would record that in relation to the duty to make an assessment I adopt the remarks of Lord Eassie in Logan v Strathclyde Fire Board 12 January 1999, unreported, where he said:

I do not think that the Opinion of the Inner House in Cullen (below) is in conflict with that understanding. Accordingly in this action the case under para. 4(b) is irrelevant and would not have been remitted to probation.

The pursuer maintained that he had averred sufficient in relation to the circumstances to make the case appropriate for inquiry as to whether the operation was one in which there was a foreseeable possibility of injury. In that connection he sought to invoke the existence and presence of the other employees and to assert that there was a foreseeable possibility of injury to somebody in the course of such an operation.

Both counsel referred me to Cullen v North Lanarkshire Council 1998 S.C.451 and Hall v City of Edinburgh Council 1999 S.L.T.744. These cases, it was said, vouched the proposition that all that the pursuer required to establish was that injury need be no more than a foreseeable possibility.

It was in Anderson v Lothian Health Board 1996 S.C.L.R.1086 that Lord Macfadyen used the phrase "injury need be no more than a foreseeable possibility"; it need not be a probability. In that case the pursuer was handling a load of 44kgs in the defenders' laundry. It might be said that a risk in that operation was fairly obvious. In Hall his Lordship again adverted to the Regulations and said that a risk of the employee being injured means merely that injury is foreseeable as a possibility. He contrasted that with the position in common law in which the issue was whether injury was reasonably foreseeable as a probable consequence of the operation. I note that in Hall the operation was described as one involving lifting a "heavy bag" of cement and the estimate which the Court had, was that the pursuer's share of the weight of the bag was about 30kgs. It was held that the case would have failed at common law but that the evidence satisfied the Court that there was a risk of injury which was foreseeable as a possibility.

In Cullen the Court was not concerned with risk arising from the imposition of a load on the pursuer and made only passing reference to the terms of the EC Directive to which the Regulations were said in the Explanatory Note to be intended to give effect. It should be noted that the Directive does not mention reasonable practicability and that the definition makes it plain that the particular concern was with back or strain injury. The definition in Article 2 of the Directive says that "manual handling of loads" means "any transporting or supporting of a load by one or more workers including lifting, putting down, pushing, pulling, carrying or moving of a load which, by reason of its characteristics or of unfavourable ergonomic conditions, involves a risk particularly of back injury to workers". The general provision in Article 3 of the Directive provides that the employer shall take appropriate organisational measures, or shall use the appropriate means, in particular mechanical equipment, in order to avoid the need for the manual handling of loads by workers. There is no manual handling within the meaning of the Directive to be avoided unless there is the specified risk present. In Cullen the injury occurred when the pursuer was holding a section of fencing above his head in order to throw it into a skip. He caught his heel on some of the remaining material on which he was standing and fell backwards off the platform of the truck upon which the material was situated sustaining injuries when his left shoulder struck the ground. Uninstructed by the Opinion of the Court in Cullen it is in my respectful opinion by no means obvious that the U.K. manual handling regulations were designed to or in fact did deal with such an operation. The Directive does not warrant the imposition of liability merely if injury occurs when something is handled manually, nor do the regulations in my opinion. I note that the facts in Cullen were very similar to those in Nimmo v Alexander Cowan & Sons Ltd 1967 S.C.(H.L.) 78. Cullen however would bind the Outer House upon its facts. It was conceded in that case that there was a foreseeable possibility of the pursuer being injured and the question determined by the Court was whether that injury fell within the scope of the Regulations. The Court went on, obiter, to adopt the statement in Anderson that injury need be no more than a foreseeable possibility.

It is interesting to note that the authors of the commentary in the Health & Safety at Work Encyclopaedia at 82-106-8 comment on Anderson thus, "The risk need not be probability - it is sufficient that it is foreseeable". I do not think that any of these authorities deal with the question in the present debate and whether or not Cullen would survive reconsideration by a higher court on the issue decided on the facts and concession therein, it is necessary to consider whether the test is one of a foreseeable possibility. It would seem that the Court was seeking to indicate that the risk of injury in the Regulations required to be more than a mere possibility when they indicated that it also required to be foreseeable. The question must arise whether it is useful or helpful to seek to add by way of gloss, words to the terms of Regulations which do not appear in them. Anything is possible. Both parties in this case were economical with their pleadings and pursuer's counsel specifically declined an invitation from the Court to amplify his pleadings to demonstrate wherein lay his contention that there was a risk of injury. Those are the words in the Statutory Instrument. Nothing about "foreseeable possibility" is there provided. If there is to be any limitation on the ambit of the Regulations to make them less than a duty of insurance when somebody sustains injury at work while engaged in manual handling, then some content has to be given to the notion of a risk of injury. It cannot in my view be sufficient for a pursuer simply to assert that because he was involved in a manual handling operation and in the course of that operation an incident happened, he would be entitled to succeed unless the defenders could establish otherwise. Sustaining injury is not res ipsa loquiter.

The escape clauses in these Regulations only come into consideration once it has been established that there is a risk of injury. In this regard the Manual Handling Regulations differ from, for example, a duty under the Factories Act to make a place safe. In my opinion it is for the pursuer to aver and prove that there was a risk of injury. To do that he requires to do more than merely so to assert. Risk must be a matter of degree in the particular circumstances of the case and it must be open to the Court to reject an insufficiently specific case. For example, if an employee suffered an incident involving his back while lifting a book from the floor, it would, in my opinion, be absurd to say that there was even a foreseeable possibility of injury, let alone a risk of injury. It is open to the Court to determine as a matter of law the matter of foreseeable possibility, if that be the correct test, the observations of the Division in Cullen being obiter. If that is so there require to be sufficient averments giving proper notice of the facts giving rise to the contention the pursuer has to make.

In my opinion there are no such averments in this case. Reading the pursuer's averments as a whole, it would appear that he, at the higher end of the cupboard, was engaged in manoeuvring at worst 171/2kgs assuming that his colleague Mr Gourley was bearing no weight whatsoever. Looking at the matter with practical common sense, it was Mr Kennedy at the foot who was bearing the weight to the largest extent and the pursuer and Mr Gourley who were sharing the rest of it. There is not, in my opinion, a risk of injury to a pursuer in these circumstances.

No doubt if the pursuer had been able to aver some particular difficulty or awkwardness, some particular characteristic or some failure in the conduct of his fellow employees, that might have made the operation one which involved a risk of injury and then proof would have been required on the question of whether the operation did in fact cause the effects on the pursuer's back.

The defenders are well founded in my opinion in demanding specification of what it was about this operation which involved a risk of injury and since that request was not complied with the action will be dismissed. Before the resources of the parties and the Court are expended in investigating the incident to the pursuer's back, it ought to be clear what it is they require to investigate. The particular circumstances are of critical importance and it will not suffice in my opinion to rely upon generalities, either in relation to the moving of the cupboard or the fact of some incident having occurred involving the pursuer's back which, on the averments, could only be an allegation of a strain or stress since no accident as that term is normally understood occurred. On the present averments the pursuer cannot succeed and his action is not saved by invoking the well known observations about dismissal of actions in Jamieson v Jamieson 1952 S.C.(H.L.) 44 or Miller v SSEB 1958 S.C.(H.L.) 20.