Scottish Court of Session Decisions

[1] In this action the pursuer seeks damages against the defenders for loss and damage flowing from a back injury which he alleges was sustained by him on 31 March 1996 while he was employed as a caretaker at Dam Park Hall, Ayr by the defenders' predecessors, Kyle and Carrick District Council.

[2] The pursuer's evidence was that on Sunday 31 March 1996, while working in Dam Park Hall, he received a telephone call from William Fulton, the Contracts Manager for Sports and Leisure Management with Kyle and Carrick District Council, instructing him to take twenty "Gopak" tables from Dam Park Hall to the visitor attraction known as the Tam O'Shanter Experience at Doonfoot, Alloway near Ayr. The Tam O'Shanter Experience is part of the Burns' National Heritage Park, which is run by a joint board comprising representatives of various bodies, including the defenders, and formerly Kyle and Carrick District Council. At the time he received the telephone instruction, the pursuer was working alone and without assistance. His evidence was that he indicated to Mr Fulton that he was reluctant to undertake the work. Nevertheless, he loaded a van with twenty tables and drove it to the Tam O'Shanter Experience. The tables each measured 3 feet by 6 feet and weighed approximately 30lbs. They were lightweight foldable tables specifically designed for ease of handling and storage. According to the pursuer, the work of this nature was not a regular occurrence, but the transportation of tables to and from other premises was usually undertaken during week days when another employee, Glen Whyte, was also on duty.

[3] When the pursuer arrived at the Tam O'Shanter Experience, the car park was busy and he was unable to park his van close to the entrance. He accordingly parked his van in the middle of the car park, about 46 yards from the entrance to the building. He was told to take the tables to a storage area adjacent to the audio visual auditorium which was located in the building about 40 yards from the front door. The distance from the van to the storage area was therefore about 86 yards. The pursuer's evidence was that he asked a member of the Tam O'Shanter Experience staff to open a locked side gate which allowed access to a fenced compound at the side of the building, which, in turn, allowed access to the auditorium through the cafeteria. Had he been allowed access to the compound he would have been able to park his van in such a position that the distance between the van and the storage area would have been approximately 33 yards. He said that he had been allowed to drive through the gate of the compound on previous occasions. The pursuer considered that he could have managed the job without difficulty if he had been allowed to drive his vehicle into the compound and carry the tables with the assistance of one other person through the cafeteria. He was, however, told that the key of the gate was not available as the key holder was not present. In that situation he began to carry the tables, one by one, via the main entrance of the building, through the foyer and shop area, and then via the auditorium to the storage space. As he walked through the shop he had constantly to change direction in order to avoid colliding with customers and in doing so had to turn his feet and his torso. After he had made a number of journeys he began to feel tired and his back, arms and legs became painful. When he had carried about fourteen tables he complained to the Tam O'Shanter Experience staff. As he was pulling the next table from the van, he felt his back go into spasm and experienced a severe cramp or knotting feeling in his back. By this time two female members of staff had arrived to assist him and the remainder of the tables were carried to the storage area by them. Although he told the two girls that he had hurt his back, he did not make any report to anyone in authority in the Tam O'Shanter Experience, but drove the van back to the Dam Park Hall.

[4] The pursuer deponed that about 9.00am the following day, 1 April 1996, he informed Edward Nelson, the Safety Officer of Kyle and Carrick District Council, and James Carmichael, the trade union convenor, of what had happened and completed an accident report form with Mr Carmichael. The two men then went to Mr Nelson's office and handed the form to him. Mr Fulton, the Contracts Manager, was unavailable. Later the same day he attended his general practitioner and was signed off work. He had been off work several times with back trouble in the past and in 1991 had been given a course of hydrocortisone injections in his discs.

[5] About two years earlier, in April or May 1994, he had a meeting with John Singleton, the Personnel Officer of Kyle and Carrick District Council to discuss his poor attendance record. The pursuer said that at this meeting he complained about his working conditions, and in particular, he maintained that delivering tables from Dam Park Hall to other premises such as Ayr Town Hall, a task he had to perform once or twice a week, should not be part of his job, which he felt should be confined to care-taking at Dam Park Hall itself. He told Mr Singleton that trolleys for transporting the tables ought to be provided, or that the manager of the receiving premises should be fore-warned so that his staff could be detailed to help the pursuer. According to the pursuer, Mr Singleton said that he ought to have lifting equipment, and that he would speak to other managers about it. The pursuer heard no more about it. The pursuer also said that he had complained along the same lines to Mr Carmichael, the trade union official, three or four times over a three or four year period. He did not know whether Mr Carmichael had done anything about it. In any event, no lifting equipment was provided apart from a sack barrow at Dam Park Hall which was of little use because the tables were too large to be conveniently carried by it.

[6] The pursuer's evidence as to the physical effects of the events of 31 March was that the next morning and for some time thereafter he was unable to get out of bed or to put his socks on or to tie his shoelaces. His wife had to help him dress and go to the toilet. He had to wear tracksuit trousers which were easy to put on. He required to take what he described as a "liberal refreshment" at night in order to get to sleep. He was unable to engage in gardening. He underwent hydrotherapy and physiotherapy. As a result his back improved. He was off work for five weeks. At the date of the proof his back was in a worse condition than it had been on 31 March 1996. His range of movement was not so great and he suffered pain from time to time.

[7] I found the pursuer an unsatisfactory witness. He was careless with detail and exaggerated. In cross-examination he fenced with counsel. He began by saying that when he carried the tables through the shop area, there were about 200 customers in the shop. When challenged, he withdrew that figure and said that he had given it "off the top of his head". The figure was a wild exaggeration. Mrs Morton, the Centre manager of the Tam O'Shanter Experience, gave evidence with reference to financial records that the shop was not busy on that day, and it is clear from the photographs and plan of the shop area that when filled out with a counter and display stands, it could not accommodate 200 people. The pursuer maintained that he had to manhandle twenty tables. Mr Fulton's evidence was quite clear that he had been asked to uplift twelve tables, and Mrs Morton said that there was not room in the Tam O'Shanter Experience for twenty tables. The pursuer himself admitted recording twelve tables in his trade union accident form and he told Mr Rae, F.R.C.S., the consultant orthopaedic surgeon instructed on behalf of the pursuer, that he had had to manhandle between twelve and twenty tables. I conclude that the pursuer, in recounting the events of 31 March, increased the number of tables involved as time went on.

[8] The pursuer's evidence of the events of 31 March 1996 was uncorroborated. None of the witnesses who were present at the Tam O'Shanter Experience that day was aware that he had experienced any difficulty and he accepted that he did not report the matter at the time. His reason was that he was not prepared to go back into the Tam O'Shanter Experience in order to do so, an explanation which I found unsatisfactory. The pursuer's evidence that the key holder of the compound gate was absent was contradicted by Mrs Morton who said that she had the keys, was present all day, and had no such request. Further, in a substantial number of respects in which the pursuer's evidence on other matters was capable of being corroborated by other witnesses, he was not supported by them. For example, the pursuer maintained that he was delivering tables and that he had received his instructions to do so on the same day. Mr Fulton's evidence was that the pursuer had been instructed to uplift twelve tables from the Tam O'Shanter Experience at some time during the previous week. His evidence was consistent with that of Mrs Morton and Mr David Roy, the general manager of the Burns' National Heritage Park, who was also present in the building that day. Their recollection was that the tables were being uplifted. The pursuer said that after he had removed the fourteenth table from the van his back went into spasm. Then, as he put it, "I raised quite a stink about it", and the remainder of the tables were carried into the building by young female students who were employed there. In contrast, the pursuer told Mr Rae at examination on 13 November 1998, that after he felt a searing pain in his lower back while lifting the third last table, he hurriedly off-loaded the last three tables himself. No other witness spoke to the pursuer making a complaint.

[9] The pursuer's evidence as to the events of the following day, Monday 1 April 1996, was partially supported by certain of his own witnesses, but entirely at odds with other evidence. The pursuer's wife said that on 1 April the pursuer was in a lot of pain and had to be helped out of bed. She drove him into Ayr after 9.00am and picked him up about an hour later and returned home. She was not sure on which day he went off work. Mr Carmichael, the convenor of shop stewards, spoke to the pursuer coming to see him, asking for an accident form, and saying he had been injured. He was not able to recall the date, but it was about the time of local government re-organisation. He took the pursuer to Mr Nelson and a Council accident form was filled in. He said the accident had happened during a weekend and the pursuer came to see him on a Monday or a Tuesday. His visit to Mr Nelson could not have been later than lunchtime as he, Mr Nelson, was always busy in the afternoon. Mr Nelson, the Council safety officer, confirmed that the pursuer and Mr Carmichael had come to his office some time about the end of March or early April 1996 to complain that the pursuer had a sore back as a result of lifting tables at the Tam O'Shanter Experience. He was unable to be specific about the date but said that the men came to see him about lunchtime. He asked the pursuer if he had reported the problem to line management.

[10] Mr Fulton, on the other hand, said that the pursuer came to see him on Monday 1 April and they had a heated discussion about certain duties which the pursuer was required to carry out, but which he maintained were not part of his job. These duties involved the locking and unlocking of a certain car park. The upshot was that the pursuer put the keys to the car park on Mr Fulton's desk and stormed out, intimating that he was not going to carry out these duties any more. The pursuer made no complaint of pain in the back or of any incident the previous day. Glen Whyte, a caretaker at Dam Park Hall between 1987 and 1997, spoke to attending a meeting along with the pursuer and Mr Fulton at the beginning of April 1996 at the time South Ayrshire Council took over from Kyle and Carrick District Council. At that meeting there was an argument about the car park, as a result of which the pursuer put the car park keys on Mr Fulton's desk and walked out. The pursuer denied that any meeting with Mr Fulton took place on 1 April, but maintained that he had attended his general practitioner and been signed off work that day.

[11] The records of the pursuer's general practitioner made no reference to a consultation on 1 April, the first recorded consultation after 31 March being 9 April. The Council records disclosed that the pursuer was at work on 1 and 2 April and went off work on 3 April. The evidence of the pursuer in relation to the events of 1 April 1996 was accordingly unsupported by the available documentary records, and his supporting witnesses could not confirm the date of the meetings with Mr Nelson and Mr Carmichael. In these circumstances I prefer the evidence of Mr Fulton as to the events of that day. I am not satisfied that the pursuer made any complaint or was signed off work on 1 April. I find that he did not absent himself from work until 3 April.

[12] The various discrepancies and inconsistencies which I have listed cast such doubt on the pursuer's evidence as a whole that I find myself unable to make a finding that his subsequent absence from work was related to the events of 31 March. He had at least two long standing grievances against his employers. One related to the locking and unlocking of the car park, and the other to the transporting and manhandling of tables to and from premises outwith Dam Park Hall. Neither of these, according to him, was properly part of his job. I accept Mr Fulton's evidence that the car park problem came to a head on 1 April, and that the pursuer made no complaint of back trouble on that day. Messrs Nelson and Carmichael were unable to be specific as to the date when the pursuer reported the incident. Having regard to his demeanour in the witness box and to the two long-standing grievances to which I refer, I cannot rule out the possibility that his absence from work was connected with the disagreement he had had with Mr Fulton.

[13] Nevertheless, it seems clear that the pursuer did suffer from chronic back pain for which he received treatment both from his general practitioner and in hospital over about twenty years. It is significant, however, that his attitude to this condition altered from time to time depending on the circumstances in which he found himself. On 11 October 1994, he was seen by Mr John Singleton, the personnel officer of Kyle and Carrick District Council, in order to discuss his poor attendance record in the preceding year. Following that discussion it was arranged that the pursuer would be medically examined by Dr Shanks Kerr who provided a report dated 12 January 1995. Dr Kerr reported that he found the pursuer to have a full range of comfortable movements of his neck and back. He also said this:

In the light of that report the defenders were in my view entitled to treat the pursuer as fully fit for all his duties, including the manhandling of tables. The events which form the subject matter of this action took place just over a year later in 1996. In August 1998, the pursuer applied to participate in a gymnasium training course with a view to becoming a gymnasium instructor. At an interview with Mr David Miller, the Sports Facilities Officer of South Ayrshire Council he said that he was in perfect health and had no disabilities that would stop him using gymnasium equipment, carrying out exercises or lifting weights. He specifically denied any back problems. On 13 November 1998, three months later, the pursuer was examined by Mr Rae, F.R.C.S., at the request of his own solicitor. In his report Mr Rae noted the pursuer's extensive past history of low back pain and the treatment he had received and continued:

Mr Rae also noted that lumbar spinal x-rays taken in 1991 had been reported as showing no abnormality. He considered that they showed minor facet joint changes, but was of the view that there were no gross changes in his lumbar spine of degeneration or any evidence of injury. Under the heading "Present Condition", Mr Rae reported:

I conclude from this history of varying accounts that the pursuer's description of his condition and symptoms depended upon the purpose for which it was required. When seeking to secure the continuation of his existing employment or to apply for alternative employment, he denied the existence of any back problems. When, on the other hand, he perceived it to be to his benefit to describe symptoms of back pain, he did so.

[14] The pursuer's evidence was also inconsistent in relation to the frequency with which he was required to transport and manhandle tables. At the beginning of his evidence he was at pains to indicate that the instruction given by Mr Fulton was unusual, and somehow designed to ingratiate Mr Fulton with Mr Roy. Later on in his evidence it became clear that the requirement to transport tables was fairly regular, but that the pursuer strongly objected to having to do it because he considered that it was not part of his job. At one point he said he carried out such work under protest. He made these objections known, according to him, to Mr Singleton in 1994 and to Mr Carmichael on several occasions.

[15] It may be that the true reason for the pursuer's complaint was that he found lifting tables uncomfortable. If that was so, I consider that he concealed it from his employers, because he wished to give the impression that he was fully fit.

[16] For all these reasons I did not find the pursuer to be a credible witness and I am therefore not prepared to find that he suffered any back pain or strain as the result of his activities at the Tam O'Shanter Experience in the course of his employment on 31 March 1996.

[17] The pursuer's statutory case was based upon the Manual Handling Operations Regulations 1992. Counsel for the pursuer accepted that it was not reasonably practicable to avoid the need for the pursuer to undertake manual handling operations at work and accordingly, she based her case on Regulation 4(1)(b) which provides:

Counsel for the pursuer argued under reference to Cullen v North Lanarkshire Council 1998 S.C. 451 that the obligation to make a suitable and sufficient risk assessment arose when injury was a foreseeable possibility in relation to the operation being carried out. The test was not as high as reasonable foreseeability. Relying upon the evidence of Mr John Blamire, Superintendent Physiotherapist at the Astley Ainsley Hospital, Edinburgh, counsel for the pursuer argued that injury was a foreseeable possibility in the task that the pursuer was performing, in that the task involved twisting the trunk in order to avoid obstacles on the route which required to be negotiated, stooping when lifting and lowering tables and frequent and prolonged physical effort in respect of the distance over which the tables had to be carried. The tables were unwieldy because of their length. It was argued that if the defenders had carried out an appropriate risk assessment they ought to have concluded that an additional person was required to help carry the tables and that a shorter route should be provided through the tea room.

[18] Dealing first with the defenders' obligation under Regulation 4(1)(b)(i), the duty to carry out a risk assessment arises if there is a foreseeable risk of injury attached to the performance of the relevant task. The tables in question were lightweight and specifically designed to be carried by a single individual in the hand with the arm extended at the side close to the legs. Their weight fell well within the guidelines for that method of carriage set out in the Health and Safety Executive's Guidance on the Manual Handling Operations Regulations 1992. A number of male witnesses spoke to the ease with which these tables could be carried and a number of the female employees at the Tam O'Shanter Experience had carried one and even two tables without difficulty.

In contrast, in his report, Mr Blamire said at page 9,

In coming to his conclusion he took account of what he called "the nature of the congestion" and the pursuer's known previous back problems. I do not accept that the shop area was congested. I accept the evidence that there was a clear pathway though it which could be negotiated by any person carrying a Gopak table or tables without the need constantly to twist and turn. If a customer impeded progress the carrier needed only to stop or pause and say "Excuse me". In making this finding I accept the evidence of Mr Roy, Mrs Morton, Hugh Campbell, a former employee at Dam Park Hall, and Glen Whyte, and reject the pursuer's evidence.

[19] As I have already indicated, the defenders were entitled to assume that the pursuer was fit for all his duties. He was at pains to assure Dr Shanks Kerr of that when specific enquiry into his fitness was made. If the two factors of congestion and unfitness are taken out of account, the job the pursuer was asked to do in my view carried no foreseeable risk of injury. In these circumstances I conclude that the defenders had no duty to carry out a risk assessment.

[20] If I am wrong in that, and, contrary to my conclusion, the defenders ought to have carried out a risk assessment, I am clearly of the view that they would have concluded, as any reasonable employer would have done, that no other method of transporting the tables was practicable and that the method adopted by the pursuer was the only practicable one in the circumstances.

[21] The pursuer argued that there were two alterations to the method of carrying the tables which should have been adopted. He maintained firstly that he ought to have been allowed to gain access to the storage area by reversing his van into the compound and carrying the tables through the cafeteria. Mr Roy and Mrs Morton both gave evidence that the provision of access through the tea room was wholly impracticable because of the presence of customers sitting at tables and moving about carrying hot food and liquids. They said that the pursuer had never been allowed to drive a van into the adjacent compound. I accept their evidence.

[22] Secondly, the pursuer argued that a barrow or similar appliance ought to have been provided for transporting the tables. I reject that argument also. The tables were of such a size and shape that the provision of a barrow was of no assistance. The safest method of transporting these tables was to carry them at the side of the carrier. Nor am I satisfied that the provision of two persons to carry one table would have reduced any risk of injury. These tables were designed to be carried by one person and their weight was appropriate for that. It seemed to me, accepting the evidence of Ms Selina Woolcott the Health and Safety Adviser to the defenders, that the risk of injury might well be increased by the provision of a second person over whose movements the other would have little or no control. The consequent lack of co-ordination might give rise to a marginal increase in risk. For all these reasons I would have rejected the pursuer's statutory case. Counsel for the pursuer accepted that if the pursuer failed in his statutory case, he could not succeed in his common law case. It will however be clear from my approach to the statutory case that I would have found that there was no foreseeable risk of injury to the pursuer in carrying out the task he was asked to do. I would accordingly have rejected the pursuer's common law case also. In the result I shall sustain pleas-in-law 1, 2 and 3 for the defenders and repel pleas-in-law 1 and 2 for the pursuer and assoilzie the defenders.

[23] So far as damages are concerned Mr Rae was unable to identify any specific injury to the pursuer's spine but took the view that he had a degenerative condition which would give rise to back pain following exertion in the form of bending and lifting weights. The symptoms spoken to by the pursuer have already been recorded. Damages were agreed at £3,052, arrived at as follows. Solatium was agreed at £2,000, with interest thereon at £620. Past loss of earnings was agreed at £130, with interest thereon at £40. Loss of services was agreed at £200, with interest thereon at £62.