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Cite as: [2001] ScotCS 111

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OUTER HOUSE, COURT OF SESSION

OPINION OF LADY PATON

in the cause

GILBERT SKINNER

Pursuer;

against

ABERDEEN CITY COUNCIL

Defenders:

________________

Pursuer: Lamont, Advocate; Allan McDougall S.S.C.

Defenders: Pilkington, Advocate; Ledingham Chalmers

11 May 2001

[1] The pursuer was employed by the defenders as a foreman road worker in Aberdeen. His duties included lifting and laying pavement slabs. He had been in the defenders' employment since 1986. His previous employment had also involved working with slabs. He was therefore experienced in lifting and laying slabs.

[2] In early 1997 the pursuer suffered injury to his left shoulder in the course of his work. He retired on medical grounds in October 1997. He then raised an action against the defenders on the grounds of unsafe system and breach of the Manual Handling Operations Regulations 1992 ("the 1992 Regulations").

[3] At a proof before answer, the pursuer (aged 67) gave evidence, as did his labourer George Stott (aged 64), and an engineering expert Leonard Smith (aged 76). The defenders led the evidence of their roads supervisor, Douglas Allan (aged 53). Quantum of damages was agreed.

Incidents while lifting slabs

[4] The pursuer gave evidence about two incidents.

[5] In relation to the first, the pursuer stated that on 15 January 1997, he was instructed to stop his normal winter maintenance duties (salting paths, steps and other inaccessible places) in order to lift and relay some pavement slabs which had become sunken. He was given a written work order at the depot. The pursuer described the weather that day as freezing. He had to scrape his windscreen before being driven to work. He had seen gritters out, gritting the roads. He checked the thermometer outside the supervisor's office and read minus 4 degrees centigrade.

[6] The pursuer thought that it was too cold and frosty to lift or lay slabs. He explained that, in such conditions, the sand and cement tend to stick to the underside of the slabs. Slabs laid in such weather often ceased to be level once the frost thawed.

[7] Nevertheless the pursuer obeyed instructions. He went with his labourer George Stott to Royfold Crescent, arriving at about 8.20 a.m. He found the slabs which required attention. Twelve slabs lay in three rows; one row consisted of a slab measuring three feet by two feet and three slabs measuring two feet by two feet; another row consisted of four two by twos; and the third row consisted of one three by two, and three two by twos. According to the pursuer, there was no visible frost on the slabs.

[8] The pursuer used two racking irons. Racking irons were metal rods about three feet long and one inch wide, as shown in photographs number 7/1 of process. One iron had a hook-shaped end; the other had a flat or chiselled end. The pursuer explained that the object was to get one racking iron under the slab, then the other one, and to work them both in order to slacken and raise the slab. According to the pursuer, the irons were to be used one on each side of the slab. The pursuer estimated the weight of each slab to be about one hundredweight.

[9] The pursuer placed the chiselled racking iron under a two by two slab, and tried to raise it. He could not move it. He then took a hammer, and hammered the chiselled end of the racking iron about two inches under the slab. He used the hammer placed on the ground under the iron near the slab as a fulcrum, and pressed down hard on the far end of the racking iron. The slab edge rose to some extent, and the pursuer then inserted the hooked end of the second racking iron. The pursuer then took the hammer from under the chiselled racking iron and placed it under the hooked racking iron, to give him more leverage. He pressed down as hard as he could on the hooked racking iron laid over the hammer, and at the same time lifted up with the other racking iron. At that point, as he put it, "twelve slabs rose as one". They were frosted together. The corner of the slab being raised by the hooked racking iron snapped off, and the pursuer's upper body and left shoulder were jerked. He suffered injury.

[10] In relation to the second incident, the pursuer stated that at about 2 p.m. on 26 February 1997, following the instructions in his work order, he went to Union Terrace, Aberdeen. The broken slabs which required attention bounded a rainwater channel which ran from the wall of the Thistle Hotel across the pavement onto the road. A metal covering flush with the slabs sealed the channel, so that pedestrians could walk over a level surface.

[11] The pursuer described the channel as being blocked with mud. The adjacent slabs were broken, sunken, and covered with mud and water. The pursuer and Mr. Stott cleared some of the mud, but the broken slabs were still covered by rainwater and mud. The pursuer took a crowbar, about five feet three inches long, and inserted it under a two by two slab, adjacent to the channel. The crowbar kept sinking into the mud. The pursuer used a hammer placed under the crowbar as a fulcrum. The slab started to rise. The pursuer applied more pressure. A piece of slab measuring about six inches by nine or ten inches broke off. The top of the pursuer's body and shoulder were again jerked. He again suffered injury. According to the pursuer, he commented to Mr. Stott that once they had finished that job, he intended to stop work, as he felt sore. However the pursuer found that after the first slab was raised, the other slabs came up easily. He subsequently continued working, carrying out a further urgent job in King Street.

[12] In relation to both incidents, the pursuer was asked in examination-in-chief why he had not first broken the slabs up before trying to remove them. The pursuer explained that at Royfold Crescent, his instructions had been to "lift and relay" the slabs, while at Union Terrace, the slabs (admittedly already broken to some extent) had been covered in mud. He also commented that he had not been instructed to break up slabs.

[13] In cross-examination, entries in the defenders' Accident Report Book number 7/2 of process were put to the pursuer. The entries at the beginning of 1997 had been made by Mr. Douglas Allan, the pursuer's supervisor.

[14] There were two entries relating to the pursuer at the beginning of 1997. They read as follows:

Full name, address and occupation of injured person	Signature of injured person or other person making this entry (If the entry is made by some person acting on behalf of the employee, the address and occupation of such person must also be given)	Date when entry made	Date and time of accident	Room or place in which accident happened	Cause and nature of injury (state clearly the work or process being performed at the time of the accident)
Gilbert Skinner [address given]	Douglas Allan [address given]	10/2/97	7/2/97	Whitehall Place	Racking slab when pin slipped jerking arm. (Left).
Gilbert Skinner [address given]	Douglas Allan [address given]	27/2/97	26/2/97 8.40	Union Terr.	Racking up slabs when racking pin slipped & jerked arm. (Left) causing sharp pain in same.

[15] The pursuer said that the dates, places, and descriptions of the incidents which he had given in his evidence in court were accurate. He could not remember any incident on 7 February 1997, nor any incident relating to Whitehall Place. In relation to the different description of events at Royfold Crescent, the pursuer stated that Mr. Allan had failed accurately to note the details which the pursuer had given him. He maintained that his description of the frosty conditions was accurate, despite the defenders' roads maintenance records number 7/4 of process (which noted weather conditions on 15 January 1997 as "mild"), and despite the fact that, on one view, the meteorological office records number 7/5 of process indicated a lack of hard frost.

[16] The pursuer agreed in cross-examination that he had been aware that if a slab was already broken, he could break it up into even smaller pieces in order to facilitate its removal. However he pointed out that when he was sent to do a job, it was up to him to work out how to take the slab out. In relation to the Union Terrace job, quite apart from the slabs being obscured by mud and water, it had been his judgement that he could take the slabs out with a crowbar.

[17] The pursuer's labourer, George Stott, gave evidence that he could remember an accident involving the pursuer in Royfold Crescent, but he could not remember the date. He thought that the accident had occurred some time after 1995, as their third labourer, Derek, had no longer been part of their team. The weather had been frosty, below zero, and the incident had probably happened at some time between December and March. Mr. Stott had seen visible white frost on the slabs. He stated that they had tried to lever the first two by two slab with a crowbar. They had placed the big hammer underneath the crowbar to try to lever the slab out. The pursuer had been doing the levering, using both arms, and really pressing down with all his force on the crowbar to try to get the slab to lift. A corner had broken off the slab because of "the weight all round". When asked if it was only the raised-up slab which broke, he replied that a fair area of slabs had been raised, about eight or ten or even more: they were "clogged up together and frozen together".

[18] Mr. Stott had no recollection of a second incident in Union Terrace.

[19] The pursuer's expert, Mr. Leonard Smith, was a chartered engineer with a variety of engineering, electrical, and other, qualifications, including a Diploma in Safety Management. He had been a self-employed safety and engineering consultant since 1989. However he had no qualifications directed specifically to ergonomics or the functioning of the human body.

[20] Mr. Smith in his report dated 8 November 2000, number 6/3 of process, described the correct use of racking irons as follows:

"A joint between two slabs is raked out as much as possible using the tools provided. The raising is done by inserting both racking irons in the cleared joint as far as they will go, and some distance apart. The bars are then oscillated forwards and backwards alternately, so that when one iron has got a grip on the slab and raised it slightly, it can be held there when the second bar gets a grip which, on being pushed downwards, raises the slab a little further. This sequence of operations is continued until the bottom edge of the slab being raised clears the top edge of the adjacent slab. A racking iron can then be slid underneath the slab, and the slab can be prized out of its residual position."

[21] Mr. Smith stated that if a racking iron were used with a hammer as a fulcrum, it was entirely possible that the pursuer might have lifted about ten to twelve slabs, each weighing about a hundredweight, in other words, about half a ton. If a workman trying to raise a concrete slab applied as much of his body-weight as he could to the far end of a metal lever about one inch wide, with only a small point of contact with the slab, a large force or stress would be applied to the small area of contact, and the slab could break. The stage at which a slab might break would depend on several factors, including the tensile strength of the concrete, the length of the lever, the force being applied, and the area of the point of contact with the slab. If a slab did break in such circumstances, there would be a sudden release of the load, giving rise to a risk of injury to the workman, particularly if the workman had been applying considerable force.

[22] The defenders' roads supervisor Mr. Allan, stated inter alia that it was part of his function to supervise about forty-two employees. In 1997 he had supervised the pursuer. Mr. Allan confirmed that, although it was not advisable to lift or lay slabs in frosty weather, such a task might be unavoidable if the state of any paving slabs gave rise to a serious risk of a member of the public falling and having an accident.

[23] Mr. Allan stated that in his view it was impossible for ten to twelve paving slabs to be raised up by one man with a racking pin, but conceded that he was not an engineer qualified to work out pressures and forces. If he had been told that several slabs had been lifted up together because they were joined by frost, he would have regarded such an event as so unusual in his thirty years experience of road work that he would have remembered if such an incident had been reported to him. Also, following his normal practice, he would have noted it in the Accident Report Book. Mr. Allan confirmed that one of his duties was to make entries in the Accident Report Book. He explained that he took that duty very seriously, as an apparently minor injury such as a cut finger might ultimately turn out to be serious. He agreed that one factor in his mind when noting the details was potential litigation against the defenders. His approach was to ask the employee to explain what had happened, and when. He then wrote down, in short-hand form (missing out some words such as "I" or "the") his interpretation or understanding of how the accident had happened. He agreed that he had not read out entries to reporting employees, nor had he asked them to sign entries, simply because that had never been the practice. He had no doubt that the description of the incidents concerning the pursuer contained in the Accident Report Book accurately reflected what he had been told. He nevertheless accepted that the fact that the Accident Report Book entry for 26 February 1997 made no mention of a "broken slab" did not necessarily mean that the pursuer had not told him about a broken slab. Mr Allan was unable to point to any entry in the Accident Report Book which recorded a broken slab. Mr. Allan further explained that he was in the habit of using the words "racking pin" and "racking iron" interchangeably.

[24] When Mr. Allan's attention was drawn to a work order for Whitehall Place bearing the completion date 6 February 1997, he agreed that his entry for the accident date (7 February 1997) appeared to be wrong, but explained that he would have been told "7 February 1997" by the pursuer.

[25] Mr. Allan stated that he personally had not lifted many slabs, but he had often supervised the lifting of slabs. When asked about possible methods of lifting an already broken slab, Mr. Allan said that the appropriate method would depend on the circumstances and the type of slab. If a slab was already broken, it could be further broken down into little pieces, using a pick or hammer. The smaller pieces could then be removed. The slab-layers knew to do that: their experience would tell them. A foreman such as the pursuer was paid to decide how to tackle a job. Mr. Allan agreed that a workman could use shovels, or racking irons, or a crowbar, or a hammer - all depending on the circumstances. When asked if a racking iron could be used as a lever, with a hammer placed under the racking iron to act as a fulcrum, Mr. Allan said words to the effect that he had never seen it, but it "could happen".

Avoidance of manual handling, and training in manual handling

[26] Avoidance of manual handling: Mr. Allan stated that the defenders had tried to use a machine for lifting and laying slabs. It had been a suction-type slab-layer-and-lifter. The suction pad stuck to the slab. A slab could be removed from its position on the ground. Alternatively a slab could be taken from a stock pile and laid on the ground. However the machine had proved unsatisfactory. It was slow. It could not lift a slab which was in some way broken, split, dipped, or uneven, as broken or uneven surfaces meant that a complete seal (necessary to achieve a vacuum for the suction pad) could not be achieved. Accordingly it had not been possible to find a way of lifting and laying pavement slabs which avoided the need for manual handling.

[27] Manual handling training: The pursuer in evidence stated that he had been with the defenders for about ten years. During that time he had not been given any training or instructions in lifting or laying slabs. He had not been given any training in manual handling. He had not been sent on any course. The only training he had received had been about the use of a still saw. He was not aware of any manual handling assessment of the task of lifting and laying slabs. If there had been an assessment, he had not been told of the results. The system which he used was one that he had always used. No-one had ever told him that he was doing something wrong. He had never been instructed not to use a hammer as a make-shift fulcrum.

[28] The pursuer's labourer Mr. Stott said that he had never been given instructions, either written or verbal, about the way in which to lift or lay slabs. He had not received training in the lifting or laying of slabs. In 1999, some time after the pursuer's two accidents, he had been sent to a manual handling training course at Craigshaw. Mr. Stott was not aware of any assessments having been made of the task of lifting and laying slabs.

[29] On the third day of the proof, counsel for the defenders sought to lodge a booklet containing guidance on manual handling, said to have been given to the pursuer prior to the accidents in 1997. Despite objection from counsel for the pursuer, and the apparently inexplicable failure on the part of the defenders when preparing for the proof to have appreciated the possible significance of the booklet, I allowed the relevant pages from the booklet together with a list of signatures evidencing receipt of the booklet by employees (including the pursuer) to be lodged as number 7/12 of process. I permitted the pursuer to be recalled to give evidence about the booklet.

[30] The booklet was entitled "A Guide to Your Safety", produced by Grampian Regional Council Roads Department, a fourth edition (issued in November 1995). Page 23 was entitled "Manual Handling Operations Regulations 1992". That page gave some basic guidance indicating that back injury could be caused by failure to assess the weight or size of the load, by attempting to lift beyond one's capacity, by carrying loads unnecessary distances, and by over-reaching when lifting a load. The reader was given certain advice under four headings, "Stop and think", "Place the feet", "Adopt a good posture", and "Get a firm grip". The advice included seeking help where necessary, placing the feet apart, keeping the back straight and the shoulders level, and getting a firm grip of the object to be lifted with both hands. The advice was accompanied by illustrations showing a man lifting a free-standing box-shaped item from the floor. The page ended with the advice: "Remember back injuries are common, serious and usually permanent."

[31] When recalled, the pursuer confirmed that he had seen the booklet. He had read page 23. He had not found the information helpful or relevant in relation to the task of lifting and laying slabs. The only way it might assist would be in connection with lifting a free-standing bag of cement off the ground and loading it onto a lorry.

[32] Mr. Allan stated in evidence that, until recently, most of the defenders' employees had been given a one-day induction course at Jackie's Hillock. The induction course booklet included a variety of subjects, including road signs, changing blades on kerb saws, and a small section on manual handling (currently page 23 of booklet number 7/12 of process). There had been no specific instruction about lifting and laying pavement slabs. The induction courses had ultimately ceased as a result of lack of funds.

Pursuer's submissions

[33] At the close of evidence, counsel for the pursuer intimated that the only case of fault which would be relied upon by the pursuer would be the Manual Handling Operations Regulations case in respect of the second incident on 26 February 1997 at Union Terrace. The pursuer no longer relied upon his case based on negligence at common law in relation to the incident on 26 February 1997; nor did he insist upon the case relating to the incident on 15 January 1997, either at common law, or on the basis of the Manual Handling Operations Regulations.

(a) Accident on 26 February 1997. Counsel submitted that the pursuer had proved his case. (i) "Manual handling operation": under reference to regulation 4 of the 1992 Regulations, and to Cullen v North Lanarkshire Council, 1998 S.C. 451, and Boyd v Lanarkshire Health Board, February 25, 2000 (unreported), counsel submitted that where a pursuer established that a manual handling operation which he had to carry out in the course of his duties carried with it a risk, in the sense of a foreseeable possibility, of injury, there was 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. There was also an onus on the employers to aver and prove 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. In the present case, the pursuer had established that he was engaged in a manual handling operation in the course of his duties as a foreman road worker, and that there had been "a risk, in the sense of foreseeable possibility, of injury". Accordingly the onus shifted to the defenders.

(ii) Defence issues: Counsel submitted that the only defence which the defenders had averred and proved, by means of their witness Mr. Allan, was that the defenders had tried a slab-lifting-and-laying machine, which had not been able to cope with broken slabs because of the break in the vacuum seal. Counsel for the pursuer accepted that the machine was not a feasible option. However there were other measures available to the defenders. There could have been instructions to employees to smash up broken slabs and remove the small pieces, rather than attempting to lift an entire slab. Such an instruction might satisfy either regulation 4(1)(a) or regulation 4(1)(b) of the 1992 Regulations. But in the present case, there had been no such instruction. There had been no suitable and sufficient assessment in terms of regulation 4(1)(b). The only relevant evidence of training related to a one-day induction course. The pursuer did not recollect any training, but at best for the defenders the evidence disclosed that such training as there had been related to road signs, money management and other matters, and only touched briefly on manual handling. The training had not been demonstrated to have any relevance to the task of lifting and laying slabs. There was no evidence that appropriate steps had been taken to reduce the risk of injury. The "Guide to Your Safety" (issued November 1995) number 7/12 of process had only one page, page 23, devoted to handling. That page showed a man lifting a free-standing box-shaped object. Such information was of limited use for slab-lifting, which involved slabs affixed to the ground, with varying weather and site conditions, variations in ground level, the use of racking irons, the risk of sudden movement of the load, difficulties in gripping the load, and prolonged physical effort. Mr. Allan had indicated that the defenders left it to the pursuer to decide on the best way to lift a slab, but, as the 1992 Regulations made clear, such an approach was no longer acceptable. It was for the defenders to carry out an assessment of the type of manual handling operation which the pursuer was employed to carry out, and to take the steps outlined in regulation 4.

(iii) How the accident occurred: Counsel submitted that there were many facts relating to the incident on 26 February 1997 which were not in dispute. In particular, the pursuer sustained an accident on 26 February 1997 while working in Union Terrace. He suffered injury as a result. The injury had occurred when the pursuer was attempting to lift a broken slab, with a lever (although there was dispute about the type of lever, and whether the mechanism of the accident was a piece of slab breaking off, or the racking iron slipping). The only eye-witness was the pursuer: Mr. Stott could not remember any incident. On the pursuer's evidence, a crowbar was used to lift a broken and sunken slab, and the end of the slab broke off, causing the pursuer injury. Counsel submitted that the pursuer gave his evidence in a straightforward manner. The fact that Mr. Stott could not remember an incident was not adverse to the pursuer's case, bearing in mind section 1 of the Civil Evidence Act 1988. Mr. Smith, the expert witness, was wrong about some matters. For example, he spoke of a racking pin being used, whereas the pursuer referred to a crowbar. Mr. Smith also referred to the wrong arm (the right arm, whereas the left arm had been injured). But Mr. Smith had been trying to recollect from precognitions. He had been brought into the case at short notice. No adverse inference could be drawn from his errors. In particular it could not be inferred that the pursuer had changed his story. The only other contrary piece of evidence was the description in the Accident Report Book number 7/2 of process, and the conflict between the evidence of Mr. Allan and the pursuer. In that connection, counsel submitted that the pursuer's evidence was the best evidence. The Accident Report Book entry was hearsay evidence. There was no evidence that the entry had been shown to the pursuer. The entry had not been signed by the pursuer. Mr. Allan had at first claimed to have written "word for word" what the pursuer had told him; but subsequently Mr. Allan changed his position and stated that he had written "his interpretation of how the accident happened". Mr. Allan had also maintained that he tried to make the description brief, although in fact he could have taken as much space as he wanted in the relevant column of the Accident Report Book. Accordingly the entry in the Accident Report Book should be viewed with caution. It was less reliable than the pursuer's own words: reference was made to the dangers inherent in precognitions. If one was to be critical of the pursuer and suggest that his evidence was a false version, one might ask, for what purpose would the pursuer lie? By adhering to his version, the pursuer in fact had a weaker case than if his version matched the Accident Report Book entry. In Boyd v. Lanarkshire Health Board, cit. sup., the accident book entry had been signed by the pursuer, and further, of the different versions of events in the accident book, the medical records, the pleadings, and so on, one version might have resulted in there being no finding of liability on the part of the defenders. The present case differed from Boyd: in particular, there was only one discrepancy, relating to the entry in the Accident Report Book which the pursuer had neither read nor signed.

(b) The effect of any evidence about the incident said to have occurred on 15 January 1997 insofar as relating to credibility and reliability. Counsel for the pursuer submitted that, if one left aside the date of the first incident, both the pursuer and Mr. Stott confirmed the details of the incident. The discrepancies which had arisen (for example, Mr. Stott referred to a crowbar, whereas the pursuer referred to two racking irons) were perhaps attributable to the passage of three years since the accident. While counsel invited the court to find the pursuer credible and reliable, counsel further invited the court at least to find the pursuer credible, if not reliable. In other words, the pursuer had made innocent errors about the precise date.

(c) Credibility and reliability. Under this heading, counsel reiterated the submission that the pursuer was an open, straightforward witness, as was Mr. Stott. In relation to Mr. Allan, counsel suggested that there had been significant changes in position in the course of his evidence.

(d) Contributory negligence. Counsel invited the court to make no finding of contributory negligence, or alternatively, a very minimal finding. The pursuer had been following the defenders' system. The defenders' system permitted an employee such as the pursuer to make his own decision about the method of raising the slab. Mr. Allan had accepted that a number of methods were open to the pursuer, including the crowbar method. In the absence of any instruction, there had been no contributory negligence on the part of the pursuer, or at worst, very minor contributory negligence.

[34] The court was invited to sustain the pursuer's first and second pleas-in-law, and to grant decree for the sum contained in the Joint Minute.

Defenders' submissions

[35] Counsel for the defenders' primary position was that the court should repel the pursuer's pleas-in-law, sustain the second and third pleas-in-law for the defenders, and assoilzie the defenders. If the court were to find in favour of the pursuer, the defenders' fifth plea-in-law (contributory negligence) should be sustained.

[36] Counsel submitted that, while the pursuer no longer founded upon the first incident in January 1997, the evidence relating to that incident was significant. There was no consistency in the evidence about the date, place or mechanism of the accident. There were discrepancies between the pursuer and his eyewitness Mr. Stott; between the pursuer and his expert witness Mr. Smith; within the pleadings themselves (the original averments, as compared with the adjusted averments, as compared with the evidence given in court); and between the pursuer's evidence and the weather records. The inconsistencies and discrepancies were not minor: they related not only to the equipment used, but also to the very method adopted by the pursuer to do the job. The pursuer had demonstrated that he was quite capable of changing his version of events. The Accident Report Book number 7/2 of process had not been lodged in process until 24 October 2000, after the pleadings had been finalised. The pursuer had by that stage averred that the first accident occurred on 15 January 1997, whereas the Accident Report Book recorded no complaint by the pursuer of an accident on that date. There were too many discrepancies and inconsistencies.

[37] Counsel accepted that the defenders had not fulfilled their obligations under the Manual Handling Operations Regulations 1992. Page 23 of the "Guide to Your Safety" number 7/12 of process did not satisfy the 1992 Regulations, nor did it fit the mechanics of the task which the pursuer was required to perform. Nevertheless, in order to succeed, the pursuer had to prove how the accident occurred. In relation to 26 February 1997, counsel accepted that the pursuer had an accident in Union Terrace on that date. However the pursuer had failed to prove two critical issues, namely (i) that he had used a crowbar to lift up the broken slabs; and (ii) that a corner of the slab broke, causing the pursuer injury. The pursuer's accident had not been witnessed. Mr. Stott could not remember anything of the accident. While the pursuer was entitled to rely on section 1 of the Civil Evidence (Scotland) Act 1988, the court had to be satisfied on a balance of probabilities how the accident occurred. The pursuer had spoken of using a crowbar, but the Accident Report Book number 7/2 of process recorded "racking up slabs when racking pin slipped and jerked arm (left) causing sharp pain in same". The unreliability of the pursuer's memory was well illustrated by the fact that he could not even remember having suffered another accident on 7 February 1997, although such a fact was recorded in the Accident Report Book. The court should accept Mr. Allan's evidence that he was careful to note exactly what was reported to him. If Mr. Allan had been told about a crowbar, a hammer, and a slab breaking, he would have noted these matters. Accordingly, one was left with a serious conflict between the pursuer's evidence and the fairly contemporaneous record in the Accident Report Book.

[38] There were further reasons for concluding that the pursuer had failed to establish how the accident on 26 February 1997 had occurred. His pleadings made no mention of slabs lying alongside a rainwater channel; slabs covered with mud and water; broken slabs sunken in towards the rainwater channel; the crowbar sinking into mud; or mud and water hindering the pursuer in his attempts to free the slab. Site conditions were important. Had there been no rain, no mud, and no sunken slabs, the method adopted by the pursuer would probably have worked satisfactorily, and no accident would have occurred.

[39] Counsel further drew attention to the evidence of Mr. Smith, the pursuer's expert. Mr. Smith appeared to be unaware that the slabs in question were broken, or that mud and water had obscured the pursuer's work. He seemed to be of the view that a crowbar could not have assisted the pursuer, as he had assumed that one end of one slab was several inches below another slab, which was not as the pursuer had described circumstances. Mr. Smith had given an opinion apparently based on information sent to him, yet there were significant discrepancies between his understanding of events and the pursuer's evidence in court.

[40] Counsel submitted that it was not sufficient for the pursuer to establish that he had sustained an injury while engaged in some sort of manual handling operation involving paving slabs: cf. Boyd v Lanarkshire Health Board, February 25, 2000 (unreported). The pursuer had to satisfy the court on a balance of probabilities that the accident on 26 February 1997 occurred using a crowbar and hammer, and that the slab edge broke. Questions of causation, contributory negligence and sole fault could not properly be addressed unless the court was satisfied, on a balance of probabilities, about the events which led to, or the manoeuvre which resulted in, the injury: Boyd v Lanarkshire Health Board, cit. sup.

[41] In relation to the requirements of regulation 4 of the Manual Handling Operations Regulations 1992, counsel for the defenders accepted that the defenders had not been able to produce risks assessments such as were referred to in paragraph (i) of regulation 4(1)(b). However it was submitted that a breach of the duty to make an assessment did not in itself give rise to liability for damages: Logan v Strathclyde Fire Board, January 12, 1999 (unreported). If an employer could show that he had done all he could in terms of the reduction of risk as required by regulation 4(1)(b)(ii), then any failure to carry out an actual risks assessment was not in itself determinative of liability. It was failure to fulfil the substantive duty of taking proper precautions to reduce the risk of injury which would give rise to liability, rather than the procedural obligation to carry out an assessment.

[42] Counsel submitted that what the proper precautions might be depended on how the accident occurred. The site conditions were also important, and the defenders had not been given fair notice of the pursuer's case in that respect. Questions of contributory negligence could not be properly addressed until the court was satisfied how the accident occurred. It was important that the pursuer already knew that he was entitled to smash up a slab which was broken to some extent. Given that there were four competing versions of the accident on 26 February 1997 (the pleadings, the pursuer's evidence, the Accident Report Book entry, and the expert's evidence), the court could not be satisfied how the accident on 26 February 1997 had occurred. The pursuer's pleas-in-law should be repelled, and the defenders' second and third pleas-in-law should be sustained.

How the accident on 26 February 1997 occurred

[43] I accept that the pursuer is entitled to rely solely upon the accident on 26 February 1997. Nevertheless the evidence relating to any alleged incident on 15 January 1997 remains relevant when assessing credibility and reliability.

[44] Mr. Allan gave his evidence frankly and fairly, making reasonable concessions in the course of cross-examination. I saw no reason to doubt his evidence.

[45] The pursuer also gave his evidence frankly and fairly. I found him a generally credible witness. However he struck me as not entirely reliable about dates, times, and certain details including precise site conditions and weather conditions. Nevertheless it was notable that, in relation to the incident on 26 February 1997, he was consistent in evidence about certain core details, namely: the task in hand was the lifting of a slab fixed in the pavement; and his approach was, in broad terms, the use of a lever inserted under the slab edge and laid over a hammer as a make-shift fulcrum such that he could exert a downward force on the far end of the lever, and prize the slab up. Having considered all the evidence (including the evidence of the pursuer's expert Mr. Smith) I was satisfied, on a balance of probabilities, about the following matters: firstly, the pursuer was on 26 February 1997 attempting to prize up a paving slab; secondly, in order to do so, he used some sort of bar (either a racking iron or a crowbar) as a lever; thirdly, having inserted one end of the lever under the edge of the slab, he placed a hammer underneath the lever near the slab, to act as a make-shift fulcrum, and then exerted as much force as he could on the far end of the lever; fourthly, this manoeuvre resulted in a considerable degree of force being applied to a focal point on the slab; fifthly, that the force so generated and applied at the focal point on the slab was sufficient to cause the slab to break; and sixthly, that the sudden breaking of the slab caused the pursuer's body and shoulder to jerk, resulting in injury.

[46] I should add that, in relation to the entry in the Accident Report Book, I entirely accept Mr. Allan's evidence that he noted his understanding of what the pursuer had told him. I formed the view that the pursuer, when reporting the incident to Mr. Allan, would give a fairly brief description of what had happened. I also considered that Mr. Allan would to some extent paraphrase what he had heard, and would tend to use his own terminology rather than the employee's - for example, Mr. Allan recorded "racking pin" in the entry for 26 February 1997, although the pursuer stated in evidence that he never used that phrase, preferring the description "racking iron", and that in any event he had used a crowbar.

[47] In Boyd v Lanarkshire Health Board, cit. sup., the evidence was such that the pursuer failed to establish even the basic essentials of the manoeuvre which he had been carrying out at the time of injury. There was a possibility that he had been attempting a manoeuvre in a way which he should have known was not appropriate. However in the present case, as indicated above, I was satisfied about the essential features of the operation being carried out by the pursuer on 26 February 1997. I was also satisfied that the pursuer had never been instructed not to approach the task in the way he did. I consider therefore that Boyd v Lanarkshire Health Board can be distinguished from the present case.

Whether any breach of duty

[48] The Manual Handling Operations Regulations came into force on 1 January 1993. They imposed new duties upon employers, no matter how experienced their employees, and no matter how well-settled their work practices.

[49] Regulation 4(1)(b) of the 1992 Regulations provides:

"Each employer shall -

...(b) 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 -

make 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 I to these Regulations and considering the questions which are specified in the corresponding entry to column 2 of that Schedule.
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 ..."

[50] Both counsel accepted that, in view of the evidence about the limitations of the slab-lifting-and-laying machine, it was not reasonably practicable to avoid the need for employees such as the pursuer to undertake the task on which he had been engaged on 26 February 1997.

[51] Both counsel accepted that the task with which the pursuer was engaged on 26 February 1997 was a "manual handling operation" within the meaning of the 1992 Regulations. I agree with counsel.

[52] Both counsel accepted that, on the evidence, the task gave rise to a risk of injury, in the sense of foreseeable possibility of injury: cf. Anderson v. Lothian Health Board, 1996 S.C.L.R. 1068; Hall v City of Edinburgh, 1999 S.L.T. 744. Again, I agree with counsel. The many entries in the Accident Report Book well illustrated the fact that it was known to the defenders that the manual handling of pavement slabs could, and did, result in a variety of injuries being suffered by the defenders' employees.

[53] It follows therefore that the defenders had a duty to "make a suitable and sufficient assessment of all such manual handling operations to be undertaken [by the pursuer and his fellow road workers], having regard to the factors which are specified in column 1 of Schedule 1" to the 1992 Regulations, "considering the questions which are specified in the corresponding entry in column 2 of that Schedule". It also follows that the defenders had a duty to "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."

[54] Schedule 1 is headed "Factors to which the employer must have regard and questions he must consider when making an assessment of manual handling operations". Column 1 of Schedule 1 specifies five categories to which the employers are to have regard, namely the tasks, the loads, the working environment, individual capability and other factors. Column 2 lists the questions which employers must consider, including, for example:

The tasks: Do they involve:

holding or manipulating loads at a distance from trunk?
unsatisfactory bodily movement or posture, especially twisting the trunk, stooping ...?
excessive pushing or pulling of loads?
risk of sudden movement of loads?
frequent or prolonged physical effort? ......

The loads: Are they:

heavy?
bulky or unwieldy?
difficult to grasp?

[55] In Logan v Strathclyde Fire Board, January 12, 1999 (unreported) Lord Eassie noted:

"...I am not satisfied that a breach of the duty to make an assessment [in terms of regulation 4(1)(b)(i)] in itself gives rise to liability in damages. One can understand the legislative intention that employers should endeavour to formalise their approach to employees' safety by carrying out assessments. A failure to carry out that statutory obligation may be of evidential significance in deciding whether the employer has fulfilled the substantive duties in relation to working systems imposed by, for example, sub-paragraph (ii) of the regulations (reduction of risk). However, if an employer shows that he has in fact done all that could be required of him by reduction of risk to the lowest level reasonably practicable it seems to me to be immaterial that he may have achieved that result without having gone through the formal stage of carrying out an assessment. It appears to me that generally it is the failure to fulfil the substantive duty of taking proper precautions to reduce the risk of injury which will give rise to liability rather than the procedural obligation to carry out an assessment."

[56] I respectfully adopt these observations.

[57] In the present case, counsel for the defenders accepted that there had been no formal assessment in terms of regulation 4(1)(b)(i). Applying the approach in Logan v Strathclyde Fire Board, the issue is then whether the evidence demonstrated that the defenders had "in fact done all that could be required of [them] by reduction of risk to the lowest level reasonably practicable", and had thus fulfilled "the substantive duty of taking proper precautions to reduce the risk of injury" involved in the sort of task being performed by the pursuer on 26 February 1997.

[58] In my view, the evidence did not do so. I did not regard page 23 of the booklet "A Guide to Your Safety" (number 7/12 of process) as satisfying the defenders' obligations under regulation 4(1)(b): indeed counsel for the defenders very properly did not seek to argue that it did. Nor was there any satisfactory evidence about the pursuer's having been trained or instructed in methods considered to have the effect of reducing the risk of injury to the lowest level reasonably practicable. Although the pursuer appeared to be aware of a method involving two racking irons, his evidence seemed to indicate that he tended to use a racking iron (placed over a hammer fulcrum) as a lever, exerting considerable force on the far end of the lever, whereas the evidence of Mr. Allan and the pursuer's expert Mr. Smith suggested that the proper use of racking irons involved inserting the two irons under one side of a slab, and using an oscillating motion involving a much lesser degree of force, thus loosening and raising the slab. The difference in approach to the use of racking irons suggested that the pursuer might well have benefited from some training and information about equipment and methods when lifting and laying slabs. In the circumstances I conclude that the defenders were in breach of their obligations arising under regulation 4(1)(b)(i) and (ii) of the 1992 Regulations.

Consequences of defenders' breach of duty

[59] One of the submissions made by counsel for the defenders was that, had there been no rain, no mud, and no sunken slabs, the method adopted by the pursuer would probably have worked satisfactorily, and no accident would have occurred. In other words, the placing of a lever over a makeshift fulcrum, and the exerting of considerable force on a focal point in the slab, could be regarded as an acceptable method of raising a fixed slab.

[60] In my view, in the absence of evidence about (i) the advisability - from an ergonomic or health and safety point of view - of exerting considerable force on a focal point in a fixed concrete slab by means of pressure on the far end of a metal lever positioned over a hammer acting as a makeshift fulcrum, (ii) the advisability of any possible alternative methods of approach, and (iii) the respective levels of risk of injury inherent in any such methods, it cannot be said that the method adopted by the pursuer was in fact one which "reduced the risk of injury to the lowest level reasonably practicable". On one view, the application of considerable force to a small area of slab gives rise to a significant risk that the slab may break at the pressure point, resulting in "sudden movement of loads": see Schedule 1 of the 1992 Regulations. Alternatively, it may be that the lever-over-fulcrum approach is regarded as acceptable in manual handling terms, and as reducing the risk of injury to the lowest level reasonably practicable. In the present case, there was no evidence either way. In such circumstances, where a breach of regulation 4(1)(b)(i) and (ii) has been established, I consider that the onus rests on the defenders to demonstrate that the method actually adopted by the employee happened to be one which did, in any event, reduce the risk of injury to the lowest level reasonably practicable, and accordingly that fulfilment of the requirements of regulation 4(1)(b)(i) and (ii) would not have made any difference.

[61] That onus has not been satisfied in this case. It follows that the defenders are liable for any injury suffered by the pursuer on 26 February 1997, subject to any reduction attributable to contributory negligence.

Contributory negligence

[62] There was no satisfactory evidence that the pursuer had received any training or instruction as to appropriate methods of lifting fixed pavement slabs. There was no evidence that he had been instructed to avoid the method involving a lever placed over a hammer as a make-shift fulcrum: indeed Mr. Allan accepted that such an approach "could happen". Counsel for the defenders submitted that the pursuer knew that he was entitled to smash up a slab which was already broken, and that he was careless of his own safety in that he had not adopted that approach in preference to the lever-over-fulcrum approach. However in this case, as already noted, there was no evidence about the relative advisability of the different methods, from an ergonomic or health and safety point of view. Nor was there evidence about the respective levels of risk of injury which might arise depending on the method adopted. In such circumstances, and bearing in mind the lack of satisfactory evidence establishing that some training or instruction had been given to the pursuer about appropriate methods of lifting fixed pavement slabs, I am unable to conclude that the smashing up of a slab (with, for example, a pick or a sledge-hammer) prior to removing the pieces of slab would necessarily result in a reduction of the risk of injury to a road worker such as the pursuer. Nor am I able to conclude that the pursuer should have known that smashing up a slab would reduce the level of risk of injury. In the result therefore I make no finding of contributory negligence.

Quantum of damages

[63] By Joint Minute number 15 of process the parties were agreed that:

"In the event of the defenders being found liable to make reparation to the pursuer (under reservation of the defenders' pleas of sole fault and contributory negligence), the amount of the pursuer's loss, injury and damage is £15,500 inclusive of interest to date of proof upon which interest should be applied at the rate of 8 per cent a year (solatium £5,000, past wage loss £10,000, past services £500)."

When the Joint Minute was tendered, I raised with counsel the possibility that the case might be taken to avizandum, resulting in some time elapsing between the proof and the date of the interlocutor disposing of the merits. In view of the terms of the Joint Minute, it would not be possible for the court to calculate with any degree of accuracy any further interest to the date of decree. Ultimately it was agreed that, if I found in favour of the pursuer, the case should be put out By Order to enable parties to address me on the question of any further interest due.

Conclusion

[64] In the result, the case will be put out By Order to enable parties to address me on inter alia interest, the figure for which decree should be granted, and any motions relating to witnesses and expenses.