Scottish Court of Session Decisions

[1] On or about 20 April 1994 the pursuer was working in the course of her employment as a care assistant with the defenders' predecessors at Laurenscroft Home, Stirling, a residential home for elderly and infirm people. The establishment comprised several units including Bruce Court in which the pursuer was working that day. Of the home generally the pursuer avers:

Of Bruce Court in particular she avers:

[2] The pursuer avers that on the day in question she was the only member of staff on duty in Bruce Court. Her averments continue:

[3] In this action the pursuer seeks damages from the defenders for loss, injury and damage claimed to have resulted from that accident. The action is laid on various grounds at common law. The pursuer also maintains a claim that the defenders' predecessors were in breach of Regulation 4(1) of the Manual Handling Operations Regulations 1992.

[4] Miss Shand, who appeared at procedure roll for the defenders, intimated that the defenders were content that that part of the pursuer's case at common law which proceeded on an alleged duty to instruct and train staff in a particular method of dealing with a falling resident ("the R.C.N. Guide illustrated method") should be appointed to a proof before answer. She submitted, however, that the remainder of the pursuer's common law case was irrelevant and lacking in specification and that the statutory case was irrelevant. She moved that the pursuer's averments directed to those matters be excluded from inquiry.

[5] It is convenient first to consider the challenge to the statutory case. Regulation 4(1) provides:

By Regulation 2(1) "manual handling operations" means "any transporting or supporting of a load (including the lifting, putting down, pushing, pulling, carrying or moving thereof) by hand or by bodily force" and "load" includes "any person ...".

[6] The pursuer avers that "the manoeuvre which [she] carried out" was within the definition of manual handling operations and that Mrs McKenzie was a "load" for the purposes of the regulations. Schedule 1 identifies a number a factors, namely, "The tasks", "The loads", "The working environment", "Individual capability" and "Other factors" to which the employer is to have regard and, in respect of each of them, poses questions which he must consider.

[7] Miss Shand submitted that it was unclear on the pursuer's averments what was the operation or manoeuvre which she contended attracted the statutory provision. It was assumed, she said, that it was the act of trying to catch Mrs McKenzie as she fell in the toilet, not the whole procedure of assisting her to get there. That act was not, it was argued, a manual handling operation for the purposes of the Regulations but the coping with an emergency situation. The Regulations did not apply to such a situation (Fraser v Greater Glasgow Health Board 1996 Rep. L.R. 58, per Lord MacLean at p.63 (para. 14-17)).

[8] Mrs Illius for the pursuer submitted in relation to this aspect of the debate that the relevant manual handling operation comprised the whole manoeuvre of "toileting" the resident, namely assisting her to her feet, attending to her as she proceeded to the toilet, physically settling her on the toilet seat, attending to her thereafter, getting her back onto her feet in the toilet, attending to her as she proceeded back to the sitting room and assisting her to resume her seat there. The accident occurred in the course of that operation. In any event, the specific manoeuvre of trying to catch Mrs McKenzie as she fell was a manual handling operation within the meaning of the Regulations. The 1992 Regulations, which were made in furtherance of the Manual Handling Directive 90/269/EEC (in turn an individual Directive adopted in furtherance of the "Framework Directive", 89/391/EEC) should be given a purposive construction. Reference was made to English v North Lanarkshire Council 1999 SCLR 310, per Lord Reed at p.319. The Regulations should be given a broad interpretation. Reference was made to Divit v British Telecommunications plc, Lord Cameron of Lochbroom, unreported, 20 February 1997, Cullen v North Lanarkshire Council 1998 S.C. 451, especially at pp.455-6, Brown v East and Midlothian NHS Trust 2000 Rep. L.R. 10 and Easson v Dundee Teaching Hospitals NHS Trust 2000 Rep. L.R. 7. Lord MacLean's observations in Fraser v Greater Glasgow Health Board were obiter and had not been followed in Purvis v Buckinghamshire County Council [1999] E.L.R. 231. The editors of Redgrave's Health and Safety (3^rd Ed.) at para.6.8 had described Lord MacLean's observations as "hard to reconcile with the wording of Regulation 4". A satisfactory resolution of whether the Regulations applied and whether they were breached could not be made without inquiry into the circumstances.

[9] In my view the pursuer's averments in relation to her statutory case are sufficiently relevant to justify inquiry by way of proof before answer. As the legal issues of the scope and applicability of the Regulations will require to be revisited in the context of the evidence led at the proof, it is undesirable to make definitive pronouncements on these issues at this stage. Suffice it to say that there is, in my view, force in the submission that Lord MacLean may in Fraser v Greater Glasgow Health Board have taken an unduly narrow view of the scope of the Regulations. His Lordship said at para.14-17:

These observations were obiter, the pursuer having succeeded at common law. The accident in question happened when an elderly patient in a hospital suddenly collapsed and, urgent steps being required to restore her to an upright position, the pursuer responded to a request for assistance from a nursing colleague. While the terms of the Regulations, including Schedule 1 to them, envisage that the persons to whom the duties under them are owed are employees who are at risk of injury from undertaking tasks involving the transporting or supporting of a load, including a human load, by hand or by bodily force, there appears to be nothing to exclude from the scope of the Regulations such tasks performed by employees in an emergency, at least where an emergency of the type which occurred was foreseeable. Nor, in my view, is it possible at this stage to identify conclusively the proper scope of the relevant manual handling operation. The "toileting" responsibility involved at various stages the carer supporting the resident by hand or bodily force. It is not obvious that each of these stages must for the purposes of the Regulations be treated as discrete rather than as parts of a composite operation. While there may well be situations in which successive elements of a job require separate consideration (Easson v Dundee Teaching Hospitals NHS Trust, per Lord Macfadyen at para.2-10), that issue is in this case best resolved, in my view, once evidence has been heard, including evidence of experience in the handling of elderly and infirm residents.

[10] Nor am I satisfied that it is appropriate to exclude from inquiry the elements of the pursuer's common law case with which Miss Shand took issue. I find it unnecessary to set out at length the averments criticised or the arguments advanced for their exclusion. Broadly stated, the pursuer maintains that the defenders' predecessors had a duty to assess the risks to staff of the manual handling of residents, including the risks attendant in relation to "toileting", and that no proper assessment had been made or the appropriate measures taken to eliminate or reduce those risks. Complaint is made of the lack of training generally. Complaint is also made that inadequate staff (the pursuer alone rather than with another member of staff) were provided to deal with the needs of residents in Bruce Court. In relation to the lack of appropriate training Miss Shand argued that, the relevancy of the pursuer's case based on "the R.C.N. Guide illustrated method" having been conceded, to allow the pursuer's averments on lack of training, in so far as more widely drawn, to proceed to probation would expose the defenders to lack of fair notice as to what else was desiderated by way of training and how such additional training was causally related to the pursuer's accident. In relation to the case based on inadequate staff, it was submitted that no proper basis had been laid for the need for an assessment in this respect, that the type of assessment envisaged was not specified and that it was not explained why two members of staff were necessary to avoid the emergency which had in fact occurred or how the provision of another member of staff would have avoided the pursuer sustaining her injury.

[11] In my view the pursuer's averments in support of her case at common law are sufficient to warrant inquiry, by way of proof before answer, into them as a whole. The pursuer sustained injury when attempting to give practical physical support to an elderly and infirm resident. The particular situation which immediately gave rise to the accident is properly to be viewed against the background of such general arrangements as ought to have been put in place by the defenders' predecessors to protect care assistants employed by them against foreseeable risks of physical injury arising from the exigencies of care, particularly physical support, which they were expected to provide for residents. What arrangements ought to have been put in place in that regard will turn inter alia on what the employers ought, by evaluation of the characteristics of the residents and of the assistants' work for them, to have foreseen as giving rise to risk of injury to their employees. The complaints of lack of appropriate training and of inadequacy of staff provision are, individually or cumulatively, but particularisations of the more general complaint that a foreseeable risk of injury of this type was not duly guarded against. Whether in the particular circumstances the duties alleged arose or any failure to perform them was causative of the accident can best be determined when the circumstances and the relevant background are established by evidence. Nor am I persuaded that the defenders have been given insufficient notice of the cases against them.

[12] In the whole circumstances I shall allow to parties a proof before answer of their whole averments on record.