Scottish Court of Session Decisions

The pursuer was employed by Wrangler (UK) Limited from 1976 to 1995. She worked in their jeans factories. She seeks damages in respect of injury to her back. Her case is not founded upon one particular incident, but upon daily manual handling operations which she had to carry out as an inspector, initially in the laundry department, and latterly in the parts department.

The pursuer avers that, during her time in the laundry department, she had to push a truck loaded with bundles of garments about ten to fifteen yards to an inspection table. Loose threads often caught in the truck's castors, making the truck more difficult to move. At the inspection table, the pursuer had to bend down to pick up armfuls of garments which she placed on the table. She then inspected and sorted the garments, and put them in a truck, which she pushed about ten yards to the next holding station. In the parts department, the pursuer had to pull a pallet truck loaded with cloth bundles to an inspection table. She had to flex her back up and down in order to operate the handle of the truck. She also had to use effort to start the truck, and to pull it along. Once at the inspection table, the pursuer had to lift individual bundles onto the table. Depending upon the height at which bundles were stacked, she might have to lift from above shoulder height, or to bend down to lift lower bundles. She would then turn to place the bundles on the table and inspect them. Unsatisfactory bundles had to be pushed across the table to a cutter. Satisfactory bundles were stacked in a pile on an adjacent table, and subsequently pushed across the table.

The pursuer alleges that her back condition was caused by the defenders' negligence at common law, and by their failure to comply with the Manual Handling Operations Regulations 1992 ("the 1992 Regulations") which came into force on 1^st January 1993.

At debate, the pursuer sought a proof before answer. The defenders sought dismissal of the action, failing which either exclusion from probation of the pursuer's common law case or restriction of the common law case to the period from 1^st January 1993 to July 1994, being the period after the 1992 Regulations came into force until the date of the pursuer's departure from work. The parties were agreed that, for the purposes of the debate, reference could be made to the contents of two productions referred to (although not incorporated) in the pleadings. These productions were no.18/1 of process, a Health and Safety Commission Consultative Document "Proposals for Health and Safety (Manual Handling of Loads) Regulations and Guidance" (1982), and no.18/2 of process, "Force Limits in Manual Work" prepared by The Materials Handling Research Unit, University of Surrey (1980) - "the 1982 consultative document" and "the 1980 research paper" respectively.

Counsel for the defenders submitted that the pursuer had not averred sufficient to establish that it was reasonably foreseeable to the defenders that the pursuer would sustain a progressive deterioration or degeneration of her back. The pursuer made no averment of any previous injury suffered by the pursuer or by any other employee. Nor did the pursuer aver that there had been complaints made to the defenders about sore backs or injuries to backs. In view of the lack of averment as to previous back injuries, or complaints to the defenders about sore or damaged backs, the pursuer's case of fault depended heavily upon the 1980 research paper and the 1982 consultative document. However the pursuer did not offer to prove that the defenders knew or ought to have known of the existence and content of these publications. In particular, the 1980 research paper was produced by a research unit of the University of Surrey. The 1982 consultative document was issued merely for consultation. Neither document would necessarily have reached a company such as the defenders.

Counsel for the defenders argued further that, even if knowledge on the part of the defenders of the publications was assumed to be sufficiently relevantly averred, the publications did not assist the pursuer's case. Insofar as the 1980 research paper was concerned, the contents were research results concerning male workers, directed mainly to the coal and steel industry, and not easily comprehensible to a layman. A clothing manufacturer, taking reasonable care for his employees, could not be expected to review and reorganise his whole workforce and work practices on the basis of such a paper. As for the 1982 consultative document, it had been produced in terms of ss.11(2)(d) and 50 of the Health and Safety at Work Act 1974. It merely contained proposals for regulations and an employer's checklist and guidance. Paragraph 3 of the document stated:

Such a document did not provide clear guidance or impose obligations such that employers would be expected to review their whole workforce and work practices. It was merely a consultative document, putting forward proposals which might, or might not, finally be issued as guidance or regulations binding upon employers. These particular proposals were not ultimately issued as guidance or regulations for employers: see Hall v. City of Edinburgh Council, 1999 S.L.T. 744, referring to an unreported case Forsyth v. Lothian R.C. (Lord Coulsfield, 17 December 1993, affirmed by the First Division 13 December 1994). The 1992 regulations were enacted as a consequence of the European Manual Handling Directive of 29 May 1990 (90/269/EEC): see p.740 of Redgrave's Health and Safety (3^rd ed.) Hendy & Ford. In view of the lack of averments about any previous back injuries, or any complaints about sore or injured backs, the pursuer was not offering to prove anything which would have alerted the defenders to the fact that the pursuer might suffer injury as she continued to carry out the routine daily tasks which she had performed for many years. There was nothing to draw the employers' attention to the pursuer in the context of physical injury. Injury to the pursuer was thus not reasonably foreseeable: cf. Hall v. City of Edinburgh Council, cit. sup. The pursuer's common law case should be excluded from probation, or at least restricted to the period from 1^st January 1993 to July 1994, being the period from the coming into force of the 1992 regulations until the pursuer ceased work.

Counsel for the defenders made certain further subsidiary criticisms relating to the lack of specification in averments about complaints, and also relating to the formulation of the averments of fault in Article 4 of Condescendence.

Counsel for the pursuer contended that sufficient had been averred to entitle the pursuer to a proof before answer of her common law case. There were averments inter alia describing the lifting, bending, turning, pushing and pulling movements which the pursuer had to carry out in relation to lifting and moving heavy loads. There were averments about complaints. In particular it was averred that "the pursuer and other employees frequently had to ask for the castors on the said trucks to be repaired. She and other employees complained to their supervisor about the trucks not working properly (p.7C-D) ... She [the pursuer] and other employees, such as Sandra Feighan, complained to the defenders' managers about the amount of lifting and moving of heavy loads involved in their work (p.10E-11B)". There were also averments that the spring-loaded mechanism of the trucks, which should have raised the base of the trucks as garments were removed, would frequently not work properly, forcing the pursuer to bend progressively lower and lower in order to pick up garments (p.7E-8A); that the pursuer was expected to perform her duties without assistance (p.8B); that she was not provided with any advice or training in relation to moving and lifting techniques (p.8B-C); that the pursuer had at times to lift loads of up to 30 lbs. (p.8E); that she was not provided with assistance or with mechanical devices apart from pallet trucks (p.10C-D); that the defenders did not carry out an assessment of whether the pursuer was capable of handling the bundles and the pallet truck without risk of injury (p.10D). Counsel for the pursuer relied upon the 1980 research paper and the 1982 consultative document as providing a background against which an employer had to operate. The 1982 consultative document had been published by HMSO, and was accordingly available to the public. The 1982 consultative document made reference to the 1980 research paper. The case of Cartwright v. G.K.N. Sankey Ltd., (1973) 14 K.I.R. 349 illustrated that a public document containing information about hazards to health might be relevant when assessing the knowledge of an employer.

I consider that a research paper produced by a University, and recording results of handling and lifting experiments, is not prima facie a paper which an average employer in the U.K. might in normal course be expected to have obtained and read. However the 1982 consultative document could be purchased from HMSO, and there were references to the 1980 research paper within the 1982 consultative document. I am therefore prepared to remit to probation the averments relating to both the 1982 consultative document and the 1980 research paper, despite the lack of any specific averment about the circulation of each paper reaching the defenders. Questions relating to the reliance to be placed upon, or weight to be given to, either document would be a matter for proof.

Turning to the defenders' esto argument, the test of relevancy is whether, even if all the pursuer's averments are proved, the action must necessarily fail: Jamieson v. Jamieson, 1952 S.C. (H.L.) 44. In the present case, unlike the case of Hall v. City of Edinburgh Council, cit. sup., the pursuer offers to prove that complaints were made to the defenders' managers "about the trucks not working properly", and "about the amount of lifting and moving of heavy loads involved in their work". In relation to the trucks, there are averments of castors collecting threads and having to be repaired, of spring-loaded mechanisms frequently not working properly, and of the effect which each of these faults had on the pursuer's physical work pattern. In relation to the amount of lifting and moving of heavy loads, there are averments of a variety of lifting, bending, turning, pushing and pulling movements which the pursuer had to carry out.

The context, nature, import, and impact of any complaints made to the defenders cannot be assessed without proof. The complaints may, or may not, have been sufficient to alert the defenders by a particular date to a foreseeable risk of injury to the pursuer, without their having to review their whole workforce and work practices. The fact that the pursuer has averments about complaints suggests that she does not rely solely upon the 1980 research paper and the 1982 consultative document (as the defenders' counsel contended) but rather upon the nature of the duties which she was required to perform, the mechanical defects in the equipment, and the complaints made by herself and others, all against a background of growing awareness of work-induced back injury.

As I consider that the pursuer may have a relevant case at common law, the defenders' criticisms relating to lack of specification must be considered. It was submitted that it was not clear from the averments to whom any complaints were made, and when they were made.

On the pursuer's averments, complaints appear to have been made to the pursuer's supervisor in the laundry department (p.7D) and to the defenders' managers and supervisors in the parts department, named as Danny Lynch, Gerry Goldie, and Margaret Bellingham (p.11A-B). While greater specification in relation to the laundry department might have been desirable, I consider that the pursuer has averred enough. In relation to the timing of complaints, counsel for the pursuer advised that, on a proper construction of the pleadings at p.11A, the complaints directed to the amount of lifting and moving of heavy loads in the parts department were made from 1991 onwards. Indeed, on the pursuer's averments, she only began working in the parts department in 1991 (p.6C). The complaints about the trucks not working properly (whether complaints relating to castors or to spring-loaded mechanisms) appear from the averments to be related to the pursuer's period in the laundry department, ending in about 1991 (p.6A-C; p.10D-11B). Again in my view the pursuer has averred enough to give the defenders fair notice of the case made against them.

In relation to the defenders' subsidiary criticisms relating to the formulation of the averments of fault in Article 4 of Condescendence, I consider that the averments of fault are adequate for proof before answer.

On the whole matter, for the reasons given above, I am not persuaded either that the pursuer's common law case must necessarily fail, nor am I persuaded that there is such a lack of specification that the common law case, or part of it, should be excluded from probation.

The defenders' only attack upon the statutory case was a submission that the pursuer did not offer to prove that any breach of the regulations, occurring as it must after 1^st January 1993 and before the pursuer ceased work in July 1994, made a material contribution to the pursuer's back condition. Counsel for the pursuer contended in response that causation was a matter for proof. Only after inquiry into the facts, including evidence from medical witnesses, would it be possible to assess whether and to what extent any breach of duty on the part of the defenders during 1993-1994 caused or contributed to the pursuer's condition.

In my opinion the pursuer's contention is well-founded and the case so far as based upon the 1992 regulations is relevant.

On the whole matter I shall allow a proof before answer on the pursuer's averments.