Scottish Court of Session Decisions

On Monday 25 April 1994 the pursuer, then aged 63, was working as a laundry assistant at Cleland Hospital. Bags of soiled laundry from outlying hospitals were delivered to the checkout area. The bags were opened, and the contents sorted, in preparation for washing. While at work, the pursuer injured his right arm. He claims that his injury was caused by the defenders' negligence at common law and failure to comply with the Manual Handling Operations Regulations 1992 - "the 1992 Regulations".

The pursuer gave evidence. Mrs. Allan, the laundry superintendent, also gave evidence on his behalf. The defenders led three witnesses, their deputy services manager Mrs. Hughes, their area services manager Mr. Bell, and Mr. Keating, consultant orthopaedic surgeon.

At the close of evidence, counsel intimated that the pursuer no longer insisted upon his common law case. Quantum of damages was agreed. The outstanding issues were whether there was a breach of the 1992 Regulations, and whether any breach caused the pursuer's injury.

During 1993 to 1994, as a direct result of the 1992 Regulations, the defenders introduced metal cages on wheels in order to reduce manual handling of laundry bags. The laundry bags (illustrated in photographs no. 13/1 of process) were similar in style and shape to large canvas travel or sports holdalls. White bags contained bed linen, yellow bags contained nurses' uniforms. The bags were packed and placed in cages by staff at outlying hospitals, over whom the defenders had no control. At collection points, the defenders' drivers wheeled the cages onto the lowered mechanical hoist at the back of the lorry, raised the hoist, and wheeled the cages into the lorry. At the delivery point at Cleland Hospital laundry checkout area, the process was reversed.

Generally white bags outnumbered yellow bags. On some occasions yellow bags arrived loose in the lorry, and were carried in by hand by the drivers. On other occasions, yellow bags came mixed in with white bags in a cage, and had to be separated from the white bags. It was the task of the drivers and laundry assistants, such as the pursuer, to open the door of each cage, and allow or assist the bags to spill out onto the floor. White bags were stored in a "wall" along the side of the checkout area; yellow bags were stored in a smaller room known as the staff bay, accessed by a door off the checkout area.

There was a dispute in evidence about the way in which yellow bags were stored in the staff bay. The pursuer maintained that two cages were kept permanently in the staff bay for the sole purpose of storing yellow bags tidily, keeping them off the floor and out of people's way. As one could not open a cage door without the bags already within the cage falling out, a laundry assistant such as the pursuer had to stand at an angle to the cage in a confined space and swing yellow bags up to a height of at least 5 feet over the barrier into the cage. By contrast, Mrs. Allan, Mrs. Hughes and Mr. Bell stated that yellow bags were simply left in a pile on the floor in the staff bay; there were no cages kept permanently in the staff bay for storage purposes. A laundry assistant such as the pursuer would drag a yellow bag into the bay and leave it on the floor, or alternatively lift it up to rest on top of yellow bags already there, forming a pile which could be three or four bags deep. Mrs. Allan thought that there could, on occasions, be as many as twenty bags in the staff bay, although Mrs. Hughes and Mr. Bell did not remember such a large accumulation. Mr. Bell agreed that if a cage arrived filled only with yellow bags, that cage would simply be wheeled through to the staff bay and left there for attention: but he pointed out that generally yellow bags did not arrive in a cage.

In relation to opening the bags and sorting the contents, white bags had priority. Yellow bags were opened as and when time permitted. A laundry employee, usually Jessie McGregor (deceased at the date of the proof), cut the cords of the yellow bags and checked the nurses' uniforms, removing and safe-guarding any personal belongings such as money, pens, or jewellery which had inadvertently been left in the uniforms. Employees were encouraged to empty bags where they lay, rather than moving them to another position before emptying them.

All the witnesses, both pursuer's and defenders', agreed that some of the incoming laundry bags were too heavy for one employee to lift. Bags containing wet linen could be very heavy. The pursuer thought that some of the bags weighed between 1/2 and 3/4 cwt. (25.4 to 38.1 kg.). Mrs. Hughes estimated that overweight bags might be about 40 to 50 lbs. (18.14 to 22.68 kg.). On many occasions before the pursuer's injury, Mrs. Allan had received complaints about the weight of some of the bags from drivers, possibly including the pursuer when he was working as a driver before being transferred to laundry duties in January 1994. Mrs. Allan usually telephoned the outlying hospitals in an attempt to prevent over-heavy bags being sent in. If her telephone requests met with no response, she passed the matter to her superiors, Mrs. Hughes and Mr. Bell. They had on various occasions sent letters and memos to outlying hospitals. Often matters would improve for a period. Then over-heavy bags would begin to reappear, possibly as a result of staff changes. In a further endeavour to prevent the lifting of over-heavy bags, the defenders instructed their drivers simply to leave lying any bags which were too heavy to lift: however, the introduction of the cage system had meant that the drivers no longer had to gauge the weights of the bags, as the bags were contained within cages which were wheeled onto the lorry.

At the reception point in Cleland Hospital, there was no procedure whereby incoming bags could be weighed or checked before being handled by laundry staff. As a result, laundry assistants such as the pursuer were expected to manhandle bags of unknown weight - for example, getting the bags out of cages, stacking them in a "wall" in the checkout area, moving yellow bags through to the staff bay, and either swinging yellow bags up and over cage barriers into cages (according to the pursuer) or lifting yellow bags onto a pile of bags already there (according to Mrs. Allan, Mrs. Hughes, and Mr. Bell). The weight of each bag could not even be guessed at until an attempt was made to lift or drag or move it in some way.

Regulation 2 of the 1992 Regulations defines "manual handling operations" as meaning "any transporting or supporting of a load (including the lifting, putting down, pushing, pulling, carrying or moving thereof) by hand or by bodily force". For the purpose of assessing whether manual handling operations were taking place in the checkout area and staff bay area at the time of the pursuer's accident, I consider that it does not matter whether the pursuer's evidence or the evidence of Mrs. Allan, Mrs. Hughes, and Mr. Bell is accepted. On the basis of either version, I am satisfied that the manhandling of bags in the checkout area and the staff bay constituted manual handling operations within the 1992 Regulations.

The defenders appreciated that manhandling a bag which was too heavy could cause an employee injury. This understanding was implicit in much of the evidence of Mrs. Allan, Mrs. Hughes, and Mr. Bell, and was also evidenced by the defenders' Laundry Training Manual (no.10/1 of process) which stated at page 1:

And at page 11:

Mrs. Allan and Mrs. Hughes agreed that one consequence of the introduction of cages was that the weight of the bag could only be ascertained when a laundry assistant such as the pursuer tried to manhandle it. Mrs. Hughes accepted that handling such bags in such circumstances might involve a risk of injury.

I am satisfied that the manual handling operations routinely carried out in April 1994 in the checkout area and staff bay of Cleland Hospital involved a risk of injury (within the meaning of Regulation 4 of the 1992 Regulations) to laundry assistants such as the pursuer: cf. Anderson v. Lothian Health Board, 1996 S.C.L.R. 1068; Hall v. City of Edinburgh Council, 1999 S.L.T. 744.

Regulation 4 of the 1992 Regulations provides inter alia:

1. so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured; or
1. where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured -
1. make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them, having regard to the factors which are specified in column 1 of Schedule 1 to these Regulations and considering the questions which are specified in the corresponding entry in column 2 of that Schedule,
1. take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operations to the lowest level reasonably practicable ..."

Where a pursuer establishes that a manual handling operation which he has to carry out in the course of his duties carries with it a risk, in the sense of foreseeable possibility, of injury, there is an onus on his employers to aver and prove that it was not reasonably practicable to avoid the need for the employee to undertake that manual handling operation, and that they had made a suitable and sufficient assessment of the operation and had taken appropriate steps to reduce the risk of injury to the lowest level reasonably practicable: see Regulation 4 of the 1992 Regulations, Anderson v. Lothian Health Board, 1996 S.C.L.R. 1068; Cullen v. North Lanarkshire Council, 1998 S.C. 451; Hall v. City of Edinburgh Council, 1999 S.L.T. 744; Nimmo v. Alexander Cowan & Sons Ltd., 1967 S.C. (H.L.) 78.

In the present case, the defenders made no averments that it was not reasonably practicable to avoid the need for the pursuer to undertake manual handling operations, nor did they make averments about any assessments of the manual handling operations in the light of the factors set out in Schedule I of the 1992 Regulations, nor about steps taken to reduce the risk of injury to the lowest level reasonably practicable. Mrs. Allan and Mrs. Hughes mentioned improvements which had as a matter of fact been brought into effect after the pursuer's accident: for example, the use of smaller and lighter laundry bags; and a new practice of leaving items loose on trolleys so that an employee could choose to make many lighter lifts, rather than fewer heavier lifts. Evidence was led (subject to reservation as to competency and relevancy as a result of an objection to the line by counsel for the pursuer on the basis of lack of record) about a Health and Safety Audit which had been carried out on 10 February 1994. The report of the Audit, No.10/2 of process signed by Mrs. Hughes, included a standard question "Is the manual handling of laundry kept to a minimum" followed by a tick in the column headed "Satisfactory". However Mrs. Allan said that she thought that this question was directed to the safe height of stacked laundry bags, while Mrs. Hughes thought that the question was directed to whether staff were using trolleys and other available manual handling aids wherever possible, in preference to lifting. Neither witness gave a picture of an assessment of the factors listed in Schedule I of the 1992 Regulations by someone with the appropriate expertise.

I consider that the pursuer's objection to the line of evidence was well-founded: in an action such as this, it is for the defenders to aver and prove that it was not reasonably practicable to avoid the need for the pursuer to undertake the manual handling operations in question, that an assessment of the factors listed in Schedule I in terms of Regulation 4(1)(b) had taken place, and that it was not reasonably practicable to take any steps to reduce the risk of injury (if such was the case). I accordingly sustain the pursuer's objection and discount the evidence of Mrs. Allan and Mrs. Hughes insofar as relating to the manual handling questions in the Safety Audit. However, even if I were to have taken their evidence into account, I would not have been satisfied that the defenders had fulfilled their duties in terms of Regulation 4.

The pursuer gave evidence that on Monday 25 April 1994, a cage was delivered to the checkout area containing white bags mixed with two yellow bags. The two yellow bags had to be separated from the white bags and taken through to be stored in the staff bay to await checking and sorting. The pursuer "trailed" the bags through to the staff bay by dragging them along the ground. In the staff bay, according to the pursuer, were two metal cages permanently situated there for the sole purpose of storing yellow bags. One cage was almost full, with some space at the back. The pursuer could not open the cage door to place the two bags inside, as the bags within the cage would fall out. The pursuer had to stand at an angle to the cage, hampered by the confined space in which he was working, lift the yellow bag, and swing it over the top of the cage barrier which was at least 5 feet high. The pursuer was successful with the first bag, but when he swung up the second bag which he described as "very, very heavy", it struck the first bag, and both bags fell down and hit his right arm. It happened so fast that there was no time for him to try to stop their fall, or to catch them, even if such a course of action had been sensible which the pursuer did not think it was. Nor had he been able to evade the bags. He immediately felt severe pain in his arm, which he attributed to the bags falling on top of him. He reported the accident to his supervisor Mrs. Allan. He had not been able to work since, because of continuing pain and limitation of movement in his arm.

The pursuer alone could give evidence about the circumstances of his accident. There was no other eye-witness. In terms of s.1 of the Civil Evidence (Scotland) Act 1988, the court may accept uncorroborated evidence but has to be satisfied, on a balance of probabilities, that any fact (including for example the way in which an accident occurred) has been established.

The pursuer's credibility came under sustained attack. In submissions, counsel for the defenders made reference to discrepancies between the pursuer's evidence and evidence from other sources, and also to different versions of the accident given by the pursuer. He referred inter alia to conflicting evidence from other witnesses; the terms of the Accident Report; the medical records; the pleadings; and Mr. Keating's orthopaedic opinion.

It was submitted on behalf of the pursuer that where the evidence of other witnesses conflicted with that of the pursuer, the pursuer's evidence should be preferred, as the other witnesses' evidence could not be relied upon due to inaccurate recollection, or mistake, or misunderstanding. However I considered that Mrs. Allan, Mrs. Hughes, and Mr. Bell each gave evidence in a straightforward manner, and that none of them appeared to be troubled by inaccurate recollection, or to have been labouring under any mistake or misunderstanding. Accordingly I saw no reason to reject their evidence, and where there were differences between their evidence and the pursuer's, I preferred their evidence. Furthermore, while one apparent discrepancy between the pursuer's evidence and contemporaneous records or subsequent pleadings might be regarded as unimportant, there were in the present case too many discrepancies, variations, versions and contradictions. In the result I was unable to hold that the pursuer's account of events leading to his injury was credible or reliable.

Counsel for the pursuer submitted, on an esto basis, that it was sufficient for the pursuer to establish that he had suffered his injury while engaged in some sort of manual handling operation with laundry bags in the checkout and staff bay area: it was unnecessary to define the precise operation (cf. the circumstances which arose in McCusker v. Saveheat Cavity Wall Insulation Ltd., 1987 S.L.T. 24). I cannot agree. The 1992 Regulations have had a major impact upon manual handling cases, but they do not dispense with the requirement that a pursuer must establish the circumstances of his accident to the court's satisfaction on a balance of probabilities. Questions of causation, contributory negligence and sole fault cannot properly be addressed unless and until the court is satisfied, on a balance of probabilities, about the events which led to, or the manoeuvre which resulted in, the injury. For example, in the present case, the pursuer had received the Laundry Training Manual referred to above, and had undergone a half-day's training in manual handling at a course at Hartwood Hospital in 1993, the content of which training was admittedly not explored in any detail in evidence. The nature and degree of any contributory negligence on the part of the pursuer might vary greatly depending upon the particular manoeuvre being attempted at the time of injury.

In the result therefore the pursuer has not established on a balance of probabilities how he came to sustain his injury, and his case fails. I shall sustain the defenders' second and third pleas-in-law, and assoilzie the defenders.