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Cite as: 1999 SCLR 310, [1999] ScotCS 29

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OPINION OF LORD REED

in the cause

LILIAN SMITH ENGLISH

Pursuer;

against

NORTH LANARKSHIRE COUNCIL

Defenders:

________________

22 January 1999

On 20 June 1995 the pursuer cut her hand while cleaning the blade of a meat slicing machine. She was working at the time in the course of her employment with Strathclyde Regional Council. In this action she seeks to recover damages from the Council's successors. The material evidence in the case can be summarised as follows.

The pursuer began working for the Council in 1986 as a catering assistant at Coatbridge High School. She had no previous experience of catering. She was given training by the catering manager at the High School, Mrs Marion Ewens. This covered all aspects of work in the kitchen at the High School and the operation of the equipment there, including the operation and cleaning of the meat slicing machine.

The machine at Coatbridge High School was a "Bantam Slicer" model, manufactured by Berkel. The machine was produced in court at the proof. It is necessary to describe it in some detail in order to understand the issues in the case. In general terms, it is the type of machine used in grocers and delicatessens to slice bacon or cold meats. It has a circular blade, which revolves when the machine is switched on. The blade moves backwards and forwards in order to slice the meat, which is held against a metal plate by an attachment. The operator stands at the front of the machine, which is 40 cm wide. On the front of the machine is an on/off switch and a control for adjusting the separation between the blade and the metal plate, thereby determining the width of the slices cut. The plate and the blade are sideways on to the operator, and tilted to one side so as to face upwards towards the right. The blade is at the back of the machine. The distance from the front of the machine to the far edge of the blade is 60 cm. The height of the machine (to the top of the blade) is 35 cm.

The pursuer was taught by Mrs Ewens to clean the blade of the machine in the following way. First, the machine is switched off and the plug removed. Next, the thickness control is set to zero. This results in the blade being flush with the metal plate, with no gap between them. Next, the attachment which holds the meat in place is removed. Next, the protective half-moon shield which partially covers the blade is removed. At this stage it is possible to see the whole of the blade. There is however only a short section of the edge of the blade which is exposed so as to present any risk to safety. If one visualises the blade as a clockface, with 12 o'clock at the highest point on the circumference, then from about 7 o'clock to 11 o'clock the blade is contiguous with the metal plate, so that contact between fingers and the edge of the blade is impossible. Between about 1 o'clock and 7 o'clock the circumference of the blade is covered by a protective rim (referred to in evidence as the "fingerguard"), which prevents accidental contact with the edge of the blade. Between about 11 o'clock and 1 o'clock there is a gap of about three inches between the metal plate and the fingerguard, where the edge of the blade is exposed. This is where a sharpener attachment is supposed to be fixed, but the sharpener is missing from this particular machine (and was missing when the pursuer was trained on it). If the sharpener were fitted, it would cover the exposed section of the blade and render it safe. As it was, however, the pursuer was trained on a machine which presented some risk to safety in that a short section of the edge of the blade was exposed once the protective shield was removed.

After removing the protective shield, the next stage is to remove the blade from the machine so that it can be washed and sterilised. This is done using a protective carrier which is attached to the blade. The carrier is in effect a circular plate, with a handle, of the same diameter as the blade. When the carrier is fixed to the blade, the edge of the blade fits tightly against the circumference of the carrier, so as to prevent accidental injury. Using the carrier, the blade is lifted away from the machine to a sink, where it is scrubbed in soapy water using a scourer. Only one side of the blade can be scrubbed, since the other side is covered by the carrier. The side which is exposed is the side which faces inwards when the blade is fitted to the machine. After being washed in the soapy water, the blade (still fixed to the carrier) is then placed in another sink to be sterilised. It is then replaced on the machine, and the carrier is removed. Up to this point, the outward face of the blade has not been cleaned. Typically, there will be debris of meat and fat around the outer part of the blade, near the edge, and the surface of the blade will be wet and soapy. In order to clean and dry it, it is wiped by hand with industrial paper. It is wiped up to the edge. The pursuer was trained to wipe the blade holding the palm of her hand flat, and wiping around the circumference of the blade in a circular movement. According to the pursuer, she wiped in a clockwise direction. Mrs Ewens stated that she herself wiped in an anti-clockwise direction, but considered either technique to be equally safe. After wiping the blade clean and dry in this manner, the machine is then re-assembled ready for use. As well as showing the pursuer the technique just described, Mrs Ewens also emphasised to the pursuer the need to be careful and to concentrate on the task in hand.

While the pursuer was working at the High School as a catering assistant she also attended a cookery course at a local college and obtained a qualification. She was then promoted to the post of catering manager at Our Lady in St Joseph's Primary School in Coatbridge. That was at some point between 1987 and 1990. In that post she again had to operate and clean a meat slicing machine. The machine at Our Lady in St Joseph's was another Berkel "Bantam Slicer", identical to the one at Coatbridge High School except that it had the sharpener in place. The pursuer cleaned it in the way described above. She had to pull the sharpener upwards in order to remove and replace the blade, and the blade was wiped clean before the sharpener was pushed down again. With the sharpener pulled up, about three inches of the edge of the blade was exposed to some extent, but the sharpener still served to prevent accidental contact. While working at Our Lady in St Joseph's, the pursuer was sent on training courses in 1992 and 1993. These courses did not specifically cover the cleaning of meat slicing machines, but reiterated the importance of care and concentration in the kitchen. It should also be mentioned that, as a catering manager, the pursuer was responsible for training the catering assistants under her in the use of kitchen equipment and in accident prevention. She was also liable to be transferred to different kitchens from time to time to replace absent staff.

On the date of the accident the pursuer was required to go to the Alexander Resource Centre, a day centre for the elderly in Coatbridge, to replace a member of staff who was absent. She had worked there previously on about three occasions, but had never required to operate or clean the meat slicing machine in the kitchen there. This was a Crypto "Peerless" machine, the only one in any of the Council's kitchens. It was broadly similar in appearance and type to the Berkel machine, although somewhat larger: 70 cm in length, and 40 cm in height. The pursuer used it to slice meat, and then required to clean it. She proceeded in her usual way. When she removed the protective shield, however, she discovered that the Crypto machine differed from the Berkel in that it had no fingerguard. The edge of the blade towards the back of the machine - between about 1 o'clock and 7 o'clock - was exposed. The only parts of the edge which were protected were the part which was flush with the metal plate, and the part which was covered by the sharpener. The pursuer proceeded to clean the blade in the way already described. All went well until the stage when she had to wipe the outer face of the blade with a piece of paper held in her right hand. At that stage she cut her right hand on the edge of the blade at the back of the machine around the 5 o'clock position. The pursuer was adamant that she was wiping the blade in the way in which she had been trained, and was concentrating on the task in hand. She appreciated that she was dealing with an exposed blade which was extremely sharp and had to proceed with caution. She said (according to my note):

"I must have gone over the edge of the blade with my paper ... My hand's been at the end of the blade - a split second, and that was it."

She sustained a deep cut to the back of her hand, running from her right thumb towards her wrist.

The pursuer accepted that if she encountered a problem at work she could have telephoned her area manager, Mrs Elizabeth Baxter, for advice; or she could have telephoned Mrs Ewens, as a friend.

Some evidence was led about written safety instructions. The manufacturers of the Berkel machine supplied written instructions regarding its cleaning. The two alternative methods described in these instructions were both different from the method in which the pursuer was trained. One of the methods described was agreed to be unsatisfactory insofar as it involved cleaning only one side of the blade, while it was attached to the safety carrier. The other method was however similar to the pursuer's method in that it involved wiping the blade by hand. The instructions emphasised the need to:

"carefully wipe both sides being sure to work from the centre of the knife towards the edge.

DO NOT FORGET THE KNIFE MUST ONLY BE WIPED FROM ITS CENTRE TOWARDS THE EDGE."

The technique in which the pursuer was trained - to wipe around the blade in a circular motion - was contrary to these instructions. Neither the pursuer nor Mrs Ewens had ever seen these instructions. They were kept in a drawer in the kitchen at Our Lady in St Joseph's.

The manufacturers of the Crypto machine also supplied written instructions regarding its cleaning. These instructions involved cleaning the blade only when it was attached to its safety carrier. It was common ground that, if these instructions were followed, the outward side of the blade would not be effectively cleaned. The instructions advised to "AVOID CONTACT WITH THE EXPOSED CUTTING EDGES OF THE KNIFE". The pursuer had never seen these instructions. They were kept in a drawer in the kitchen where the accident happened.

The pursuer had access to a training manual and to a health and safety manual, and was familiar with their contents at the date of the accident. The training manual advised in general terms to avoid haste and distractions when working in a kitchen. The health and safety manual was not produced, but a certain amount of evidence was given about its contents. In particular, Mrs Lorraine Jackson, who worked for the Council at the time of the accident as a training officer, explained that the manual contained advice about all types of kitchen equipment, including slicing machines, although it did not cover every particular model. The general tenor of the advice, so far as relevant, was to have in mind the danger of cutting one's hand on the blade, to be careful, and to carry out the cleaning operation without rushing and without distractions.

It was suggested to the pursuer in cross-examination that she had been trained to clean the blade from the centre outwards, rather than using a circular motion, but she denied this. It was also suggested to her that if she had been taking care, she would not have injured herself. Her response was that she was just doing her duty the same as every other day, the same as she had been taught, and that the only difference was that her hand got caught.

Mrs Ewens' evidence was consistent with the pursuer's. In particular, she confirmed that she had trained the pursuer to clean the blade in the way described above, wiping always in a circular motion, and not from the centre towards the edge. She had never seen any written instructions for the cleaning of meat slicing machines. She would have thought that the Crypto machine could safely be cleaned in the same way as the Berkel and would have cleaned it in that way, although she was aware that there was no fingerguard on the Crypto and that there was a risk of catching one's hand on the back of the blade.

Mrs June Wilson was the cook at the Alexander Resource Centre who had been absent on the date of the accident and whom the pursuer had replaced that day. She gave evidence that, prior to the accident, she had always cleaned the blade in the way described by the pursuer: that was how she had been trained when she began working for the Council. She had worked in the Centre for about a year before the accident, and cleaned the blade about once a week. She had never cut herself. After the accident, she was told to clean the blade with a long-handled brush and then leave it to dry, instead of wiping it by hand. She understood that this was to keep her hands away from the edge of the blade. She had read the Crypto instruction manual, and regarded its advice to avoid contact with the edge of the blade as obvious common sense. She said that she was frightened when the blade was exposed: "it was lethal looking".

Mrs Kathleen McCafferty, the kitchen assistant at the Centre, was the only person with the pursuer when the accident happened. She had not however seen the accident happen. She herself had worked in the kitchen for about five years prior to the accident, and cleaned the machine about once a fortnight. She had cleaned it the same way as the pursuer, and had never cut herself. Following the accident, she had been told to use a long-handled brush.

Mrs Elizabeth Baxter was at the time of the accident the Council's area manager, responsible for thirty catering managers including the pursuer, and for the catering operations at numerous locations including the Alexander Resource Centre. She was responsible for seeing that catering managers were properly trained, although she did not personally carry out the training. She had previously worked as a training officer, and prior to that as a catering manager. In relation to the cleaning of meat slicing machines, she stated:

"You always work from the inside out, so your hand doesn't come into contact with the edge. You shouldn't be coming in from the outside edge."

She would have expected the pursuer, by reason of her training and experience, to be able to clean any meat slicing machine safely. If the pursuer had not known what to do, she should have left the machine alone, and could have telephoned Mrs Baxter for advice. In her opinion the blade could not be cleaned and dried properly using only a brush: wiping by hand was essential.

Finally, Mrs Lorraine Jackson was employed by the Council at the date of the accident as a training officer. She had previously been a catering manager. She confirmed the pursuer's evidence about the nature of the training courses on which the pursuer had been sent. She agreed with Mrs Baxter's opinion that wiping by hand was essential. She also confirmed Mrs Baxter's evidence about the appropriate method of wiping the blade of a slicing machine:

"You always clean from the centre out, so as to avoid being cut."

When asked about the use of a circular motion, she responded:

"If they're doing it that way, the nearer they go to the edge the more chance they have of catching their hand."

It was apparent from the evidence of Mrs Jackson and Mrs Baxter that the defenders had a large number of slicing machines in the North Lanarkshire area, some of which had fingerguards and others of which had exposed blades.

The pursuer seeks damages on the basis that the accident was caused by (1) the defenders' failure to take reasonable care for her safety, and (2)the defenders' breach of certain statutory duties. In relation to the common law case, the pursuer avers that it was the defenders' duty not to require her to clean the Crypto machine when it was not safe for her to use; and, more particularly, that they should have provided a guard on the machine that prevented contact with the edge of the blade, or should have provided the pursuer with training and instruction in a safe method of cleaning the blade. In response, the defenders aver that the pursuer was in fact familiar from her training and experience with the correct and safe method of cleaning the outer surface of the blade, namely by wiping from the centre towards the outer edge, proceeding with caution and concentrating fully on the task in hand. In addressing me, counsel for the defenders recognised that the pursuer had not in fact been trained to wipe outwards, and that the method in which she had been trained involved a higher risk of injury, but maintained that the critical element in the training was the emphasis placed upon caution and concentration. If her training and experience had instilled in her the need for caution and concentration (as they undoubtedly had), then she was well able to clean the blade safely, and the defenders had fulfilled their common law duty of care.

I have come to the conclusion that the defenders failed to take reasonable care for the pursuer's safety. One of her duties was to use slicing machines, and to clean them after use. The defenders required her to replace absent staff in unfamiliar kitchens from time to time, and supplied some of these kitchens with slicing machines which lacked a fingerguard, such as the Crypto machine at the Alexander Resource Centre. The defenders ought therefore to have foreseen that she was liable to have to use the Crypto machine, as occurred on the date of the accident. She had been trained by them to clean a slicing machine after using it, and had been trained a specific technique to use when cleaning the blade. That technique involved an obvious risk to safety if it was used when cleaning the blade of a machine which lacked a fingerguard: yet the pursuer had not been trained that the technique should not be used on machines lacking a fingerguard (although she was liable to require to work with such a machine), nor had she been trained a safe technique for use on such machines. I reject the defenders' contention that it was sufficient to have instilled in the pursuer the need for caution and concentration. In the first place, it appears to me that to clean the blade of the Crypto machine in the manner in which the pursuer was trained presented an unacceptable risk to safety even if the person cleaning it took great care and concentrated on the task in hand. The blade is extremely sharp. If a person is moving her hand around the perimeter of the blade in a circular fashion, pressing against the blade, there is an obvious risk that she will cut herself. In particular, bearing in mind that she has to move her hand sideways on to her body, stretching her arm out as she reaches towards the far side of the blade, the operation is one which requires dexterity if it is to be carried out safely. If the person is moving her hand in a clockwise direction, then when it reaches the 3 o'clock position it is extended out beyond the lower edge of the blade, and as the hand continues round there is a danger of its remaining beyond the blade and being cut as it is drawn back in. Since the pursuer was cut on the back of the thumb at about the 5 o'clock position on the blade, this would appear to be how her accident happened. Cleaning the blade in this manner, a momentary misjudgement would be likely to result in an injury; and the injury inflicted by the blade could well be serious. In my opinion, an employer taking reasonable care for his employee's safety would not expect her to carry out an operation in which a momentary misjudgement could result in serious injury, at least where the employee's safety could be protected by suitable training (as suggested by Mrs Baxter and Mrs Jackson) or by suitable equipment (such as the Berkel machine). Secondly, it appears to me that in any event a reasonable employer will anticipate the possibility of a momentary lapse of concentration, and will allow for that where practicable in taking care for his employee's safety. Finally, the fact that Mrs Wilson and Mrs McCafferty had cleaned the machine many times without accident, using the same method as the pursuer, does not in my view compel the inference that due care was taken. That evidence may be taken as demonstrating that the risk - at least to a person used to cleaning that machine (which, as mentioned above, differed from the pursuer's usual machine both in its size and in lacking a fingerguard) - was of a small magnitude; but it does not follow that the employer was entitled to disregard the risk, particularly given the potential seriousness of an accident if the risk materialised. As Lord Reid said in The Wagon Mound (No 2), Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd [1967] 1 A.C. 617 at 642:

"But it does not follow that, no matter what the circumstances may be, it is justifiable to neglect a risk of such a small magnitude [scil. an infinitesimal risk]. A reasonable man would only neglect such a risk if he had some valid reason for doing so, e.g. that it would involve considerable expense to eliminate the risk. He would weigh the risk against the difficulty of eliminating it ... A person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man."

Applying that approach to the facts of the present case, I am in no doubt that the defenders must be regarded as negligent.

Although the pursuer has established common law fault, I must also deal with her case of breach of statutory duty. This part of the case is based on the Provision and Use of Work Equipment Regulations (S.I. 1992 No 2932), and in particular Regulations 5, 8, 9 and 11. A variety of issues arose in argument before me as to the interpretation of these Regulations, and in that regard I was referred to well-known decisions (mostly of the House of Lords in the 1950s and 1960s) on the interpretation of regulations made under the Factories Acts. As a preliminary matter, however, I would observe that the 1992 Regulations are intended to give effect to Council Directive 89/655/EEC concerning the minimum safety and health requirements for the use of work equipment by workers at work, which was itself made under the "Framework Directive", 89/391/EEC. The interpretation of the Regulations has to be approached in that context, and therefore in the light of the general guidance given by the European Court of Justice (in such cases as Von Colson v Land Nordheim-Westfalen [1984] ECR 1891) and by national courts, both in the United Kingdom (e.g. by the House of Lords in Litster v Forth Dry Dock & Engineering Co Ltd 1989 S.C.(H.L.) 96) and in other jurisdictions within the European Union, and also of course in the light of any specific guidance available from any of these sources as to the interpretation of these particular directives. An approach based on the Factories Acts is fundamentally misconceived. It is also potentially misleading, since the European directives on health and safety at work differ materially from the Factories Acts in important respects. For example, obligations under the Factories Acts tend to be qualified by reference to what is reasonably practicable, whereas the directives generally impose obligations which are expressed in unqualified terms; and the structure of the directives tends to follow a sequential analysis of any hazard and the ways in which it may cause an injury, so that some obligations may be secondary to others. Finally, it is important to bear in mind in a case such as the present (where the defender is a local authority, and hence an emanation of the State: Fratelli Costanzo SpA v Commune di Milano [1989] E.C.R. 1839) that directives can be relied upon directly against the State in the event that they are capable of direct effect..

Turning to consider the specific regulations in issue in the present case, Regulation 5 is in the following terms:

"Suitability of work equipment

5.-(1) Every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided.

(2) In selecting work equipment, every employer shall have regard to the working conditions and to the risks to the health and safety of persons which exist in the premises or undertaking in which that work equipment is to be used and any additional risk posed by the use of that work equipment.

(3) Every employer shall ensure that work equipment is used only for operations for which, and under conditions for which, it is suitable.

(4) In this regulation 'suitable' means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person."

The pursuer avers that the defenders were in breach of paragraphs (1), (2) and (3) of Regulation 5. In his submissions, counsel for the pursuer laid particular emphasis upon paragraph (3), arguing that the machine was being used under conditions for which it was not suitable because it was being used by a person who had been inadequately trained.

The only potential breach of Regulation 5(1) in the present case arises from the absence of a fingerguard. The pursuer also contended that the absence of a fingerguard would in addition constitute a breach of Regulation 11, and I did not understand that to be disputed (if, contrary to the defenders' submission, Regulation 11 was in force in relation to the Crypto machine). The relevant provisions of Regulation 11 are in the following terms:

"Dangerous parts of machinery

11.-(1) Every employer shall ensure that measures are taken in accordance with paragraph (2) which are effective-

(a) to prevent access to any dangerous part of machinery or to any rotating stock-bar; or

(b) to stop the movement of any dangerous part of machinery or rotating stock-bar before any part of a person enters a danger zone.

(2) The measures required by paragraph (1) shall consist of-

(a) the provision of fixed guards enclosing every dangerous part or rotating stock-bar where and to the extent that it is practicable to do so, but where or to the extent that it is not, then

(b) the provision of other guards or protection devices where and to the extent that it is practicable to do so, but where or to the extent that it is not, then

(c) the provision of jigs, holders, push-sticks or similar protection appliances used in conjunction with the machinery where and to the extent that it is practicable to do so, but where or to the extent that it is not, then

(d) the provision of information, instruction, training and supervision."

It is therefore necessary to examine the relationship between Regulations 5 and 11. Domestic principles of statutory interpretation might encourage one to think that, since Regulation 11 is concerned specifically with dangerous parts of machinery (and with the provision of guards in particular), Regulation 5 may be concerned with a different subject-matter. This approach is especially attractive in view of the fact that Regulation 5 came into force on 1 January 1993, whereas Regulation 11 came into force (so far as applicable to equipment provided before 1 January 1993) on 1 January 1997, so as to provide a four year period of grace to employers who had equipped their workplaces before the Regulations generally came into force. That approach might lead one to emphasise that Regulation 5(1) is concerned with the suitability of equipment for the purpose for which it is used, rather than with its suitability for use. This is indeed the point emphasised in the non-statutory guidance on the Regulations published by the Health and Safety Executive, which glosses Regulation 5(1) as follows:

"Equipment must be suitable, by design, construction or adaptation, for the actual work it is provided to do. This should mean in practice that when employers provide equipment they should ensure that it has been produced for the work to be undertaken and that it is used in accordance with the manufacturer's specifications and instructions" (Para 63).

Nevertheless, "use" is defined by Regulation 2(1) as including cleaning, and it is not difficult to say that an unguarded blade which has to be cleaned if it is to be used hygienically, but which cannot be properly cleaned without a reasonably foreseeable risk of injury, is not "suitable for the purpose" for which it is used.

Regulation 5 is based principally upon Article 3 of Directive 89/655, which is in the following terms:

" ARTICLE 3

GENERAL OBLIGATIONS

1. The employer shall take the measures necessary to ensure that work equipment made available to workers in the undertaking and/or establishment is suitable for the work to be carried out or properly adapted for that purpose and may be used by workers without impairment to their safety or health.

In selecting the work equipment which he proposes to use, the employer shall pay attention to the specific working conditions and characteristics and to the hazards which exist in the undertaking and/or establishment, in particular at the workplace, for the safety and health of the workers, and/or any additional hazards posed by the use of work equipment in question.

2. Where it is not possible fully so to ensure that work equipment can be used by workers without risk to their safety or health, the employer shall take appropriate measures to minimise the risks."

Regulation 11 is based upon Article 4 of the directive, which is in the following terms:

" ARTICLE 4

RULES CONCERNING WORK EQUIPMENT

1. Without prejudice to Article 3, the employer must obtain and/or use:

(a) work equipment which, if provided to workers in the undertaking and/or establishment for the first time after December 31, 1992, complies with:

(i) the provisions of any relevant Community directive which is applicable;

(ii) the minimum requirement laid down in the Annex, to the extent that no other Community directive is applicable or is so only partially;

(b) work equipment which, if already provided to workers in the undertaking and/or establishment by December 31, 1992, complies with the minimum requirements laid down in the Annex no later than four years after that date.

2. The employer shall take the measures necessary to ensure that, throughout its working life, work equipment is kept, by means of adequate maintenance, at a level such that it complies with the provisions of paragraph 1(a) or (b) as applicable."

(The directive is quoted as originally adopted: the amendments effected by Direction 95/63 were not in force on the date of the accident with which the present case is concerned.)

In the light of Articles 3 and 4 of the directive, it appears to me that Regulation 11 should be understood as being without prejudice to Regulation 5. In other words, the specific requirements as to guards and other precautions contained in Article 4 (and the Annex) and Regulation 11 must be met in respect of all equipment by 1 January 1997; but, even before that date, an employer whose equipment does not have a guard may (but need not necessarily) fail to meet the requirements set by Article 3 and Regulation 5. Moreover, in the light of Article 3, Regulation 5 should not be interpreted narrowly in a way which would fail to implement the directive fully. In particular, Article 3(1) requires not only that equipment be "suitable for the work to be carried out" but also that it "may be used by workers without impairment to their health": the general objective, as emerges from Article 3(2), is that compliance with Article 3(1) will, where this is possible, fully ensure that equipment can be used without risk to safety or health. "Use" in this context includes "in particular, cleaning" (Article 2). Accordingly, Regulation 5(1) should be interpreted so as to cover not only the suitability of a meat slicing machine for the purpose of slicing meat safely, but also as covering its suitability for being cleaned safely.

Approaching the matter in that way, I have come to the conclusion that the Crypto machine was not so constructed as to be suitable for the purpose for which it was used, and that the defenders therefore failed to comply with their obligation under Regulation 5(1). As I have already explained when discussing the common law case, it appears to me that it was reasonably foreseeable that a person cleaning the Crypto machine would injure herself even if she took great care and concentrated on the task in hand; and the risk was of course much greater if there was a momentary lapse of concentration, which appears to me to be a reasonably foreseeable occurrence.

Given my conclusion as regards Regulation 5(1), I do not consider it necessary to examine paragraphs (2) and (3) in detail. My preliminary impression is that my reasoning in respect of paragraph (1) would arguably lead also to the conclusion that there was a breach of paragraph (2), but I would not wish to express a definite view without hearing fuller argument. Paragraph (3) appears to be inapposite: the problem in the present case concerns the equipment, and to some extent training in its use, rather than the nature of a specific operation for which it was being used, or particular conditions under which it was being used. Counsel for the pursuer argued that the "conditions" under which equipment was used could encompass the adequacy of the training of the person using the equipment. It appears to me however that Regulation 5 and Articles 3(1) and 4 (and also the Annex to the directive, from which Regulation 5(3) derives - see requirement 2.12) are concerned with the equipment itself rather than with the adequacy of training. That latter subject is covered by Regulation 9 (and Article 7).

The pursuer founded also upon Regulation 8, the material provisions of which are as follows:

"Information and instructions

8.-(1) Every employer shall ensure that all persons who use work equipment have available to them adequate health and safety information and, where appropriate, written instructions pertaining to the use of the work equipment.

....

(3) Without prejudice to the generality of paragraphs (1) and (2), the information and instructions required by either of those paragraphs shall include information and, where appropriate, written instructions on-

(a) the conditions in which and the methods by which the work equipment may be used;

(b) foreseeable abnormal situations and the action to be taken if such a situation were to occur; and

(4) Information and instructions required by this regulation shall be readily comprehensible to those concerned."

Regulation 8 is based upon Article 6 of the directive, which is in the following terms:

" ARTICLE 6

INFORMING WORKERS

1. Without prejudice to Article 10 of Directive 89/391, the employer shall take the measures necessary to ensure that workers have at their disposal adequate information and, where appropriate, written instructions on the work equipment used at work.

2. The information and the written instructions must contain at least adequate safety and health information concerning:

- the conditions of use of work equipment,

- foreseeable abnormal situations,

- the conclusions to be drawn from experience, where appropriate, in using work equipment.

3. The information and the written instructions must be comprehensible to the workers concerned."

As is apparent from Article 6(1), its provisions have to be understood in the context of the Framework Directive 89/391; and Article 1 of Directive 89/655 makes it clear that the entire directive has been adopted under the Framework Directive, and that the provisions of the Framework Directive are fully applicable to the subject-matter of Directive 89/655. Article 6 of the Framework Directive sets out the "general principles of prevention" of occupational risks. These follow a sequential approach: they begin with the avoidance of risks; next comes the evaluation of risks which cannot be avoided; then the combating of these risks at source; and so on, ending with "giving appropriate instructions to the workers". This approach is reflected in the relationship between paragraphs (1) and (2) of Article 3 of Directive 89/655; and Articles 6 and 7 appear to give specific expression to the general obligation contained in Article 3(2). Following that approach, it appears to me that the duty to provide information and instructions under Article 6 of Directive 89/655, and Regulation 8, should be understood as a duty which arises after the logically prior duty to provide suitable equipment under Articles 3(1) and 4 has been complied with: in other words, the work equipment with which Article 6 and Regulation 8 are concerned is "suitable" work equipment within the meaning of Article 3(1) and Regulation 5. If my conclusion that the defenders were in breach of Regulation 5 is correct, then the question whether they complied with Regulation 8 in respect of the use of the unsuitable equipment does not in my view arise.

The same point also arises in respect of Regulation 9(1), which the pursuer also founded upon. Regulation 9(1) is in the following terms:

"Training
9.-(1) Every employer shall ensure that all persons who use work equipment have received adequate training for purposes of health and safety, including training in the methods which may be adopted when using the work equipment, any risks which such use may entail and precautions to be taken."

It appears to me that the suitability of the equipment is an issue which is precedent to the adequacy of training in its use. Having held that the equipment in the present case was not suitable, the issue of the adequacy of the training in its use does not arise.

If, however, I had not held that the equipment was unsuitable, contrary to Regulation 5, I would in any event have held that the defenders had failed to provide the pursuer with adequate training, contrary to Regulation 9. I have already summarised the evidence as to the technique which the pursuer was trained to use, and the criticisms of that technique which were made by Mrs Baxter and Mrs Jackson. The technique involved an obvious risk to safety when used to clean the Crypto machine, but the pursuer had not been trained that she should not use that technique on such a machine. In those circumstances, the pursuer's training was not "adequate ... for purposes of health and safety". For similar reasons, I would also have held that the defenders had failed to make available to the pursuer adequate health and safety information, contrary to Regulation 8. In particular, Regulation 8(3)(a) makes it clear that, in the context of the present case, adequate information should have been provided as to the methods by which the Crypto machine could be cleaned. Such information was not provided to the pursuer, either orally or otherwise.

Finally, the pursuer also founded on Regulation 11, the terms of which have already been quoted. The pursuer founded particularly on the obligation under Regulation 11(1)(a) to prevent access to any dangerous part of machinery by means of the precautionary measures listed in paragraph (2). As I have already mentioned, it was conceded that the defenders were in breach of Regulation 11, if that regulation was in force in relation to the Crypto machine. I express no opinion as to whether that concession was correctly made. The issue in dispute was whether I could proceed on the basis that Regulation 11 was in force.

The commencement of the Regulations is dealt with in Regulation 1 as follows:

"(2) Subject to paragraph (3), these Regulations shall come into force on January 1, 1993.

(3) Regulations 11 to 24 and 27 and Schedule 2 in so far as they apply to work equipment first provided for use in the premises or undertaking before January 1, 1993 shall come into force on January 1, 1997."

Nothing is said in either party's pleadings as to the date when the Crypto machine was first provided for use. Just before the close of working hours on the eve of the proof the defenders intimated to the pursuer's solicitors a proposed amendment to their pleadings to the effect that the machine was supplied by the manufacturer to the defenders on or about 8 July 1992. The allowance of that amendment was opposed by the pursuer, on the grounds that Regulation 11 had been founded on from the commencement of the action; the date of supply of the machine was a matter within the defenders' knowledge; the amendment would necessitate consideration of the statutory regime in force prior to the commencement of Regulation 11, and consequent amendment of the pursuer's pleadings; issues of time-bar would arise; and the amendment of the pursuer's pleadings would be possible only if the proof were discharged. The defenders' counsel accepted that there was no satisfactory explanation of the lateness of the proposed amendment, the records on which it was based having been in the defenders' possession from the outset. In these circumstances I decided that it would not be in the interests of justice to allow the amendment, particularly in view of the delay by the defenders and the consequent prejudice to the pursuer. The consequence was that, at the end of the proof, there was no evidence as to the date of supply of the machine.

In his submissions, counsel for the pursuer emphasised the terms of the pleadings. In response to the pursuer's detailed averments of breaches of the Regulations, including Regulation 11, the defenders responded:

"The said provisions of the Provision and Use of Work Equipment Regulations 1992 are referred to for their terms. Quoad ultra denied under reference to the preceding answer."

The preceding answer, which responded to the pursuer's averments of common law negligence, was in the following terms:

"Admitted that certain duties were incumbent upon the Defenders under explanation that they fulfilled all such duties. Quoad ultra denied. Explained and averred that esto the Pursuer sustained injury in the manner averred by her, such was caused or at least contributed to by her own fault."

There then followed averments of fault on the part of the pursuer. Counsel for the pursuer did not suggest that the defenders' pleadings contained any express admission that Regulation 11 was in force in relation to the machine, but he maintained that it was not open to the defenders on those pleadings to raise any issue as to the applicability of Regulation 11, especially when the critical fact (namely, the date of supply of the machine) was a matter peculiarly within their own knowledge. Counsel for the pursuer relied upon two lines of authority: the first, which included such cases as Nimmo v Alexander Cowan & Sons Ltd 1967 S.C.(H.L.) 79, was concerned with the burden of proof in respect of statutory obligations which are subject to a qualification or exception; and the second, which consisted of the cases of McNaught v British Railways Board 1979 S.L.T.(Notes) 99, Lamont v Monklands District Council 1992 S.L.T. 428 and Ballantyne v John Young & Co (Kelvinhaugh) Ltd 1996 S.L.T. 358, was concerned with the rules governing pleading. In response, counsel for the defenders approached the matter along the same lines, arguing that the condition that the equipment be supplied on or after 1 January 1993 was an inherent qualification to the application of the Regulation rather than an exception, exemption, provision or excuse (adopting the distinction drawn, for example, by Lord Wilberforce in Nimmo), and that it was therefore for the pursuer to prove that the equipment was supplied on or after that date. In relation to pleading, counsel suggested that if the accident had occurred on 1 January 1993 then it could not be maintained that it was for the defenders to raise the issue of the date of supply; and, if that were accepted, then it was impossible to identify any subsequent date on which the defenders came under such an obligation. On the contrary, it was for the pursuer to aver and prove the date of supply.

The question where the burden of proof lies in relation to an issue as to whether a Regulation is in force is different from the question whether any such issue arises on the pleadings. Nevertheless, one would generally expect the party who required to raise on issue of fact in the pleadings to be the party on whom the burden of proof lay, since, as Lord Patrick observed in Brydon v Railway Executive 1957 S.C. 282 at 291:

"The purpose of written pleadings is that each party shall give notice of the points he desires to raise, so that the evidence may be directed to the solution of such issues."

If the burden of proof lay on the defenders in the present case in relation to the date of supply of the equipment, then they have failed to discharge that onus, having failed to lead any evidence on the point. If on the other hand the burden lay on the pursuer, then her case under Regulation 11 must fail unless, for some reason arising from the state of their pleadings, the defenders are to be taken as having implicitly admitted the applicability of Regulation 11, or are otherwise prevented from disputing its applicability.

In considering where the burden of proof lies, a number of matters have to be borne in mind. First, the present case differs from Nimmo and the other cases in that line of authority which were cited to me in being concerned with a commencement provision rather than an exception etc. to a provision which is in force. There is a difference between the question whether a provision was in force in the circumstances existing at the time and place of an occurrence, and the question whether the obligation created by the provision was subject to an exception etc. which existed in those circumstances. That difference is reflected in the criminal law (and it is necessary to bear in mind that Regulation 11 is enforceable by criminal as well as civil procedure): see the Criminal Procedure (Scotland) Act 1995, Schedule 3, paras. 12(a) and 16. In the present case, however, the difference appears to me to be one of form rather than substance. The commencement provisions in Regulation 1 are not of the familiar kind which have the effect that on a given date provisions become the law in force as regards all circumstances falling within their scope. The effect of Regulation 1 is that, from 1 January 1993 to 31 December 1996, Regulation 11 was the law in force as regards all work equipment except work equipment first provided for use in the premises or undertaking before 1 January 1993. This qualified form of commencement was one means of implementing Article 4(1) of Directive 89/655, which has already been quoted. Article 4(1) could however equally have been implemented by bringing Regulation 11 into force on 1 January 1993 but providing a transitional exception, exemption or proviso in respect of equipment provided before that date. Indeed, that would have reflected more precisely the terms of the directive itself, Article 10 of which requires Member States to "bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by December 31, 1992." In that situation, it would be inappropriate to treat the distinction between a qualified commencement provision such as Regulation 1 and an exception or proviso as having substantial consequences, particularly if to do so would prejudice the effective implementation of the Directive. As the European Court of Justice stated in Von Colson at 1909 (in a passage cited by Lord Templeman in Litster at 104):

"(T)he Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying the national law and in particular the provisions of a national law specifically introduced in order to implement [a] Directive ..., national courts are required to interpret their national law in the light of the wording and the purpose of the directive in order to achieve the result referred to in the third paragraph of Article 189."

In relation to Article 189, the Court stated at 1906:

"According to the third paragraph of Article 189: 'a directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.' Although that provision leaves Member States to choose the ways and means of ensuring that the directive is implemented, that freedom does not affect the obligation imposed on all the Member States to which the directive is addressed, to adopt, in their national legal systems, all measures necessary to ensure that the directive is fully effective, in accordance with the objective which it pursues."

Following this approach, it appears to me that to treat the qualified commencement provision in Regulation 1 as different from a proviso or exemption as regards the burden of proof would not be a mere technicality but would have important practical consequences. If the defenders are correct, the pursuer would have to aver and prove that the equipment was first provided for use on or after 1 January 1993. In some cases that might be a straightforward matter, but in many cases (including the present case) the pursuer could not be expected to have the necessary knowledge. She would presumably have to recover the relevant records from the defenders by proceeding under section 1 of the Administration of Justice (Scotland) Act 1972 prior to raising her action, or fall back on pleading alternative cases under the Regulations and the prior law on inconsistent factual bases, with the intention of subsequently recovering the relevant records and then deleting whichever averment turned out to be inappropriate. I am doubtful whether the Regulations were intended to impose that burden on the injured person (or, if dead, his widow or representative), particularly since the relevant facts should be within the knowledge of the employer. Moreover, it appears to me that the objective of the Directive (which appears from the preamble to be the encouragement of improvements in the safety and health of workers at work) would be less effectively implemented if injured persons or their relatives had to prove the date when equipment was supplied in order to be able to rely on the obligations contained in the Directive. For these reasons, I have come to the conclusion that the burden of proving the date of provision of the equipment in the present case lay upon the defenders.

In case my conclusion on that matter is held to be incorrect, I turn to the question whether the defenders are in any event to be taken as admitting, or are not in a position to dispute, that Regulation 11 was in force in relation to the Crypto machine. Of the cases cited to me, Lamont v Monklands District Council and Ballantyne v John Young & Co (Kelvinhaugh) Ltd do not appear to me to be directly in point. Lamont concerned a situation where the pursuer sued under a statute which had no application to the factual situation averred and proved by him. Not surprisingly, the defenders were held to be entitled to challenge the applicability of the statute, notwithstanding their failure to take the point specifically in their pleadings. As Lord Caplan said in that case:

"I consider that it would be an unfortunate result if a court had to decide a litigation by applying statutory duties which, even on the basis of the pursuer's own pleadings, could have no application. Such artificial resolution of a litigation is to be deprecated."

Ballantyne was concerned with a similar situation and was decided on a similar basis, Lord Clyde observing:

"I do not consider that the court should be bound by an admission on a matter of or involving the law."

McNaught v British Railways Board on the other hand was concerned with a situation which is closer to the present case. That case concerned the application to a particular railway of a statutory provision which only applied to railways constructed under an Act which post-dated 1845. It was contended by the defenders that the pursuer had failed to prove that the railway in question had been so constructed. No issue had been raised in the defenders' pleadings as to the date of construction of the railway or the applicability of the statutory provision in question. Those circumstances are analogous to the circumstances in the present case: in each case, the applicability of a statutory provision depended upon a particular event having occurred (viz. the construction of the railway under a post-1845 statute in McNaught, and the provision of the equipment on or after 1 January 1993 in the present case), and no issue was taken by the defenders as to the occurrence of the critical event (or, more generally, as to the applicability of the provision in question). The present case also resembles McNaught in that, in each case, the critical event was one which could be expected to be peculiarly within the knowledge of the defenders. The present case might however be thought to be a stronger case for the pursuer than McNaught in one respect: in McNaught the defenders led evidence, apparently without objection, that the railway had been constructed prior to 1845. Lord Stewart disregarded that evidence on the basis that the defenders must be held, on the basis of their pleadings, to have admitted the applicability of the statutory provision pleaded against them. Even an express admission, however, cannot normally be founded upon in the face of contrary evidence led without objection: see for example McGlone v British Railways Board 1966 S.C.(H.L.) 1; Brown's Executrix v North British Steel Foundry Ltd 1968 S.L.T. 121. The problem of evidence which is inconsistent with an implied admission does not however arise in the case before me. For present purposes, it is sufficient to treat McNaught as supporting the view that where the applicability of a statutory provision depends on a particular state of facts, the defenders' failure to give notice that those facts are in dispute may have the consequence that they are not allowed to raise the issue.

In McNaught itself, and in the subsequent case of Ballantyne, much of the discussion concerned the precise terms of the defenders' pleadings, and the effect of such formulas as "referred to for its terms" and "beyond which no admission is made". Where an admission is said to be implicit in pleadings, close attention must no doubt be paid to the precise terms of those pleadings. I would however deprecate any tendency towards artificiality and technicality in such matters. The essential purpose of pleadings is to give fair notice, in the interests of justice. If pleadings fail to give fair notice, then the court must then proceed as the interests of justice require. Attempts to analyse the matter in greater detail are liable to lose sight of these essential points and to become unduly technical. Analysis in terms of deemed admissions, in particular, appears to me to be artificial and potentially misleading. The effect of a judicial admission is not necessarily the same as the effect of a failure to give fair notice in pleadings. In particular, such a failure will not necessarily exclude from the consideration of the court the issue of which notice was not given. The failure to give fair notice will in many cases have the consequence that the court will regard it as prejudicial to the other party, and therefore contrary to the interests of justice, to allow the issue to be raised. But in other cases the court may consider that it is just to allow the issue to be raised notwithstanding the absence of prior notice, as McGlone, Brown's Executrix, Lamont and Ballantyne all demonstrate. The court has wide powers - notably in relation to amendments, adjournments and expenses - to enable it to do justice when such situations arise. The fundamental point is, as was said by Lord Guest in McGlone (at 15): "Pleadings are to be used as servants and not masters".

In the present case, I regard it as significant that the date of provision of the equipment was a matter which was peculiarly within the defenders' knowledge. The pursuer's reliance upon Regulation 11 rested upon an implicit assumption that the critical date was on or after 1 January 1993. The defenders were in a position to check that assumption and to raise the issue in their pleadings if they wished to do so. In the absence of any challenge being taken, the pursuer was in my view fairly entitled to proceed on the basis that Regulation 11 was in force and that this was not in dispute. To raise the issue for the first time after the evidence had been led would be likely to take the pursuer by surprise, and would cause unfair prejudice to the pursuer. In my judgment, it would not be in the interests of justice to allow the issue to be raised without proper notice. To refuse to allow the defenders to raise the issue will not in this case (unlike Lamont and Ballantyne) require the court to decide the case by failing to apply the law to the established facts.

I turn now to the issue of contributory negligence. Counsel for the defenders submitted that there had been a high degree of contributory negligence. If the pursuer was unsure how to clean the Crypto machine safely, then she could and should have asked a colleague or superior such as Mrs Ewens or Mrs Baxter. She would not in any event have cut herself if she had taken proper care when wiping round the blade.

I am not persuaded by these submissions. The pursuer was not unsure how to clean the Crypto machine: she felt confident that she could clean it safely using the method in which she had been trained, and there was nothing in her training or experience to indicate otherwise. If the pursuer had asked Mrs Ewens for advice, then, according to Mrs Ewens' evidence, she would have said that the method in which she had trained the pursuer was a safe method to use when cleaning the Crypto machine. Nor am I persuaded that the accident was caused by the pursuer's failure to take proper care when wiping round the blade. There is no evidence to suggest that the pursuer was hurrying or talking to anyone or otherwise distracted. She struck me, if I may say so, as a mature and sensible woman, who had been appointed by the defenders to a position of some responsibility. I see no reason not to accept her evidence that she was proceeding in the same way as usual and was concentrating on the task in hand, and that when her hand was at the far edge of the blade she momentarily went over the edge and cut herself. That sort of momentary misjudgement does not in my view imply a failure to take reasonable care for one's own safety. I would be particularly reluctant to draw such an inference in a case where the pursuer was performing a task which required manual dexterity in order to be performed safely, and which she was used to performing on a particular machine, with a fingerguard, and which she was then required to perform on a machine of different dimensions and lacking a fingerguard. If it is necessary to look for an explanation of how she came to cut herself the first time she cleaned the Crypto machine, whereas the persons used to cleaning that machine had done so many times without any accident, then that appears to be the likeliest explanation. I should add that even if there was a momentary lapse of concentration on the pursuer's part - and I am not satisfied that that was in fact the case - I would not regard momentary inadvertence of that kind as amounting to contributory negligence. In that regard, I refer to the well-known words of Lord Wright in Caswell v Powell Duffryn Associated Collieries Ltd [1940] A.C. 152, 178-179; to what was said in a similar context to the present case in Pringle v Grosvenor (1894) 21 R. 532 (and approved by Lord Wright in Caswell); and to Lord Oaksey's observation in General Cleaning Contractors Ltd v Christmas [1953] A.C. 180, 190 about "circumstances in which the dangers are obscured by repetition".

I turn finally to the assessment of damages. The pursuer sustained a laceration to the back of her thumb, which damaged the extensor tendons. She was taken to hospital and detained overnight. She underwent surgery the following day to repair the damaged tendons and was then discharged. Her thumb was splinted for several weeks. Once the splintage was removed she received physiotherapy as an out-patient for three months. She was off work for about three months. For about the first three months after the accident her husband and daughter assisted her in activities such as carrying shopping, dressing, eating and bathing, and drove her about (she normally drove a car herself, but was unable to do so during that period). She has been left with a noticeable scar, about 5 cm long, over the dorsum of the first metacarpal. She also has problems with her thumb which, although not particularly serious, are nevertheless significant. Because of scarring, the tendons have become adhered to the surrounding tissue. This has restricted the amount of movement she has in her right thumb by about 60 to 70 per cent. In practical terms, this loss of function means that she has difficulty with dressing and undressing (e.g. fastening a bra and pulling up tights) and with fine movements such as picking up coins. Some activities at work are a problem, such as using a piping bag or scissors. She can hold a pen but has difficulty controlling it, with the consequence that her writing is untidy. The thumb is also painful if she knocks the scarred area or if she strains the tendons. The restriction of movement will be permanent unless surgical exploration of the wound is carried out and the tendons are freed. Such surgery would have good prospects of improving her thumb function by about 60 or 70 per cent, but would not return it to normal. There would be a small risk that surgery might make matters worse.

In relation to solatium, counsel for the pursuer urged me not simply to apply an index to previous judicial awards, but to take account of the fact that jury awards are generally above judicial awards, and to have regard to the jury award in Girvan v Inverness Farmers Dairy 1998 S.C.(H.L.) 1 in particular. I accept that the assessment of damages should involve more than the application of an index to previous awards (whether by a judge or by a jury). I refer to what was said in that regard by Lord President Hope and by Lord Prosser in Currie v Kilmarnock and Loudon District Council 1996 S.C. 55 at 67 and 71 respectively. I also accept that jury awards may be a valuable aid in the assessment of damages, as was recognised by Lord Hope of Craighead and Lord Clyde in Girvan at 12 and 25 respectively. On the other hand, the award in Girvan itself is of no assistance to me in the present case, because the two cases are far removed from each other on their facts. In the absence of any information as to an actual jury award in a comparable case, I do not see how I can take into account the suggestion that jury awards in general tend to be above judges' awards.

Several judicial awards were drawn to my attention. The present case appears to me to be more serious than Sanderson v Precision Engineering, Kemp & Kemp, H7-014/1, which involved similar injuries but to the non-dominant thumb; but less serious than Hunt v Stradwick, Kemp & Kemp, H7-013/2. The awards in those cases equated to £6,170 and £7,630, respectively, at July 1998 values. In the light of these cases, and the others to which I was referred, an award of £7,000 appears to me to be reasonable. One half of that sum can reasonably be allocated to the past and will bear interest at 4 per cent per annum from the date of the accident to the date of decree.

In addition to solatium, the pursuer is also entitled to awards under section 8 of the Administration of Justice (Scotland) 1982 in respect of the services rendered by her husband and daughter. A reasonable sum in respect of each would in my opinion be £300. That sum would bear interest at 4 per cent per annum from the date of the accident to 14 August 1995 (the date of the pursuer's return to work) and thereafter at the rate of 8 per cent per annum to the date of decree.

In the whole circumstances I shall repel the defenders' pleas-in-law and sustain the first plea-in-law for the pursuer. I shall put the case out By Order for a precise interest calculation prior to granting decree for the appropriate sum.