Scottish Court of Session Decisions

[1] In this action of reparation the pursuer, who is an engineer, sues his employers for damages sustained when his hand was trapped as he was shutting two heavy doors at the defenders' premises. According to the Record the two doors close together towards each other in an area known as the Print Line in the Mall part of the defenders' premises. It is averred that the two handles on the doors which have to be pushed towards each other were so close to the edge of the door that it created a danger for the hand of the engineer closing the doors. The pursuer goes on to aver that the interlock mechanism in the doors was defective and required a very strong push together of the handles in order to make the doors close securely.

[2] The pursuer avers that for some time the interlocking mechanism on the doors was defective and the doors did not properly close without a great deal of effort. On the day of his accident he says that he was closing the door with his right hand loose on the right hand door handle and in so doing he got his index and middle finger trapped in the space between the two doors when they closed. As a result of that his fingers were crushed and he sustained certain injuries. He goes on to aver that the accident was reported and that certain improvements were made to the interlocking bracket mechanism after his accident (7E to P8).

[3] The pursuer makes no case against the defenders at common law. His first case of fault is to be found in Article 3 of the Condescendence where it is alleged the defenders are in breach of statutory duty. The pursuer pleads the Workplace (Health, Safety & Welfare) Regulations 1992. Regulation 5 of that provides as follows:-

In the same Regulations the pursuer specifies a breach of regulation 18 which provides inter alia:-

[4] The pursuer alleges breach of both these duties by the defender. Further in Article 4 of the Condescendence the pursuer alleges a different breach of statutory duty under and in terms of the Provision and Use of Work Equipment Regulations 1992. It is complained that the defenders are in breach of regulation 5 of the 1992 Regulations which provides inter alia:-

[5] Finally, the pursuer alleges a breach of regulation 6 of the same Regulations which provides:

[6] I now deal with the submissions made to me at the close of the evidence. Mr Grant-Hutchison invited me to grant decree for the sum of £4,800 to sustain his appropriate pleas-in-law and repel the defenders' pleas. He asked me to accept the pursuer as credible and the other witnesses also led by the pursuer. He maintained that the Regulations which he had placed in issue had been breached and the breach led to the accident. He first of all directed attention to regulation 18 as previously specified. He said that the door was not suitably constructed as the handles were too close. Although the word "door" was not defined, it was a door into a workplace and he referred me to certain European Directives. He maintained that the defenders had a strict liability to observe this regulation. He referred me again to the Workplace Directive (Article 2). Maintaining that the door was not suitably constructed he said it could not have been if an accident happened. He referred me to the case of Mains v Uniroyal 1995 S.L.T. 1115 at 1126. He argued that foreseeability had no part to play. Moving on to regulation 5 he maintained that the doors were not in an efficient state because the bracket was out of line for some time before the accident. Under this regulation there was absolute liability. Moving to his second set of regulations he maintained that regulation 5 did introduce the concept of reasonable foreseeability but that it should be looked at in a way that would give a liberal interpretation to it. He referred me to the case of English v North Lanarkshire Council 1999 SCLR 310 at 320 and to McLaughlin v East & Midlothian Trust Hospitals 2000 S.C.L.R. 1108 at 1110. Finally, moving to regulation 6 he said that the facts proved applied to that, because the interlock was defective. Again he maintained this regulation laid an absolute duty on the defenders and he referred me to the case of Stark v The Post Office[2000] ICR 1013. The Directive under which these regulations were passed gave minimum standards and it was for that reason he argued that regulation 6 was in absolute terms. In any event he said the defenders ought to have known the handles were too close together. He addressed me briefly on the question of contributory negligence, saying that it was not in issue. According to Mr Grant-Hutchison his client was not to blame and if he was it was no more than 10%. Moving to damages and under reference to number 6/4 of process, he accepted that the fractures to the fingers were not a major injury and that the pursuer had made a good recovery. He referred me to three examples of similar injuries going back some time, none of which seemed to me to be precisely in point. He said that the sum mentioned in the schedule of damages was a correct figure to award. As far as the claim under section 8 for services is concerned, he said the evidence showed that the pursuer's wife helped him for a week to button his clothes and fasten his shoes. Accordingly the modest sum claimed was justified.

[7] For the defenders Mr Clark invited me to assoilzie the defenders and to make a finding of substantial contributory negligence if the pursuer was held to be entitled to make any recovery. He accepted that the only regulation in issue was regulation 18. He argued however that it was a pure question of fact as to whether the doors were suitable and referred me to Daniels v The Ford Motor Co. [1955] 1 All. E.R. 218. He maintained that regulation 5 did not apply as doors were not "the workplace". The other regulation did not apply because a door was not "work equipment". He accepted that regulation 6 would apply and the switch not working would be a breach of an absolute regulation. However he maintained that this breach, if it had occurred, did not give rise to the accident. The accident would still have occurred even without that breach because, of course, there remained a gap which narrowed as the doors closed. The real cause was the pursuer allowing his fingers to extend and be trapped. It would have been perfectly easy for the pursuer to close the door with his fist clenched and not bang the handles together causing any injury to his knuckles. He criticised the pursuer's expert who seemed to be unaware of any British Standard relating to handles.

[8] As far as contributory negligence was concerned, he maintained the pursuer was two-thirds to blame for his misfortune. Finally he said quantum was far too high and in any event there was no evidence whatever of services provided by the pursuer's wife, no amount of time was specified or an hourly rate. In any event it was a minimal claim. Finally he said that the solatium figure sought in the schedule of damages was far too high and invited me to award a figure of a few hundred pounds.

[9] The pursuer was the first witness. I found him to be a clear, credible and careful witness and a man of intelligence. He made no attempt to exaggerate his injuries.

[10] He described the operation of the Mall. It is an area of the defenders' premises which contains machinery for decorating bottle caps for popular brands of alcohol. These include Smirnoff Vodka and Whyte and Mackay whisky. The pursuer spoke to No. 6/3 of Process Photo 3. That shows the machinery behind the doors. It also shows the pursuer with his right hand on the handles and the instrument panel to his rear. The machinery, which is very noisy, is in effect in a closed room; and the doors in the photograph are one of three sets allowing entry to the machinery.

[11] Importantly, the pursuer went on to say that unless the doors were properly closed the machinery could not be started up from the control panel (subject to an override which is not relevant to this action). When the doors were properly closed there was an interlock mechanism which made an electrical circuit and allowed the machinery to start up.

[12] The pursuer explained the interlock by reference to the photos attached to No. 6/1 of Process. That series of photos showed the male housing which entered the female housing at the area of the L-shaped bracket seen in Photos 4 and 9. This bracket had a further importance as the pursuer later told me.

[13] Once the male and female housings were together a vertical drop key located and the doors were then shut. The difficulty experienced by the pursuer and others was that it required a very firm "together" closure to make these connections. The pursuer said that for some weeks at the time of his accident everyone had difficulty closing the doors and it needed a lot of strength to hold them shut. The reason for this he said, and it was not disputed, was that the L-shaped bracket was loose. No. 6/1 Photo 9 shows the white bracket. Normally it is held by the two top black nuts fastened by an appropriate gauge Allen key. After the pursuer's accident were added the two lower silver dowel bolts which were drilled and hammered in. That made the L-plate immovable. The trouble, said the pursuer, was that at the time of his accident it was loose and he and others had problems closing the doors.

[14] The pursuer said that he and others opened and closed the doors many times in a day. This was done as from time to time it was necessary to enter the room where the machinery was.

[15] On the day of his accident he closed the doors and two of his fingers on his right hand were trapped in the gap. He suffered great pain and had to go home around 2.00 p.m. He reported his accident and confirmed the relevant entries in 6/5 and 6/6. I deal later with his injuries.

[16] In cross-examination there was some unsatisfactory and inaccurate evidence from questions designed to show the width of the gap between the handles and the thickness of his fingers. I cannot rely on any of it. A number of different methods of holding the handles was put to him but each had drawbacks as to force needed and positioning. The pursuer wisely remarked that "... hindsight is not a useful exact science...".

[17] Before I deal with the pursuer's expert I should notice the evidence of two other employees. Mary Conway was a Process Operator at the time. She worked in the Mall and had to open and close the doors. She said she had problems as the doors were stiff. At times she had to ask a (male) engineer to close them; and for months before the pursuer's accident had to get this help.

[18] John McKerracher was led for the defenders. He had been employed at the Mall since 1989. He spoke to the difficulty over closing the doors in March 1998 due to the misalignment of the L-bracket. The doors were stiff and needed more force than necessary to close. He said that closing the doors was not an operation he thought about but that when he had used clenched fists his knuckles had met but had not been bruised.

[19] The pursuer led an expert witness Mr Johnstone. He had an impressive list of qualifications noted in his Report (No. 6/1). He had extensive relevant experience of plant world-wide. I found him to be a good and careful witness. The material parts of his evidence can be summarised thus.

[20] His report and photographs is No. 6/1 of Process. He confirmed that the Mall plant was large and noisy and that once the heavy doors were opened the logo printing machinery went off. The handles were "D" shaped and when the doors were shut the gap between the handles was 40 mm. Photos 1 and 6 give a clear view of this. He then gave evidence about two matters which I wholly accept. What he said was not seriously challenged in cross-examination.

[21] He told me that in industry it is not uncommon to put handles near to the leading edge of doors; but that such handles were usually angled back to keep fingers away from the "trap area" of doors shutting together. This is important because, as his report confirms, closing the handles holding them in fists tends to bang knuckles, especially with the force needed here. To some extent it depends on the size of the hands of any given person. It is thus entirely foreseeable that one hand will be open with the consequent risk of trapping.

[22] Mr Johnston then described the electrical interlocking mechanism (seen in photo 9; and in photos 3, 4 and 5 of 6/1). His evidence agreed with the pursuer about the mechanics of closure, the electrical circuitry and the modification of the "L" bracket to make it tight and allow proper closure.

[23] His evidence was not shaken in cross-examination. He had over 20 years experience of plant and machinery. Some attempt was made with him to speculate that in certain measured situations the accident would have been impossible. I did not find the evidence of any assistance and I do not think it was in any way related to the case of contributory negligence.

[24] I now move to deal with the cases of alleged breach of statutory duty. Both sets of Regulations relied on are made in implement of the relevant applying EEC Directives. In argument before me these were simply noticed and not referred to in any way, save to say that they had as their purpose certain minimum standards to ensure a better level of protection for health and safety at work. The pursuer's counsel invited me to give a broad interpretation to the Regulations for this reason.

[25] I have already quoted the Regulations and deal first with the Workplace (Health, Safety & Welfare) Regulations 1992. Firstly under regulation 5(1) are the doors included in the meaning of the words "workplace" or is it a "device"? In my view it is neither. The interpretation of workplace in regulation 2 contemplates by definition things which are open spaces. The difficulty with the doors being "a device" in the present case is that on the evidence their closing efficiency is really related to productivity not health and safety. As long as they do not close properly the procedures in the Mall will not start up.

[26] I am, however, of the opinion that regulation 18 does apply. The doors had to be opened and closed many times. They were of importance to the efficiency of the operations. In my view the proved position of the handles shows they were not suitably constructed. The fact of the accident is further evidence of that and I rely on what was said about this by Lord Johnston in Mains v Uniroyal 1995 S.L.T. 1115 at 1126. It also seems to me that being in implement of the Directive the standard is one of strict liability.

[27] What then of the Provision and Use of Work Equipment Regulations 1992. The regulations have been quoted. In my view the doors fall within the meaning of "work equipment", if only because (regulation 2) they are an "assembly of components" functioning as a whole. On the evidence the proper closing is part of the production process in the Mall. "Use" is widely defined and in my view covers the opening and closing in safety to the employee. I propose to follow the broad approach taken by Lord Reed in English. It follows that in my view the door was not "suitable" for its purpose at the relevant time due to the misaligned and loose bracket. The force needed to close the doors and the position of the handles near to the edge shows the danger to the employee. As Parker L.J. said in Daniels at 200 I it was not "well adapted for the process under consideration".

[28] By parity of reasoning regulation 6 also applies; and it was, correctly, conceded that the duty here was in absolute terms. (Stark v Post Office is in point.)

[29] Having held that three of these regulations apply the only remaining question is whether the defenders are in breach of the regulations and that breach caused the accident. On the evidence about the bracket and the closing problem the doors were not suitably constructed or maintained in an efficient state. The breach under regulation 18 is more one of design whereas the word "use" in regulation 5 brings in more consideration of the production operation itself and the electrical connection.

[30] In my opinion the breach did cause the accident. The cause is not the gap but the position of the handles and the problem with the bracket. On any view the handles have to be close to the gap and in a repetitive task such as this it is no surprise to me that an accident happened when more force than should have been needed had to be applied each time the doors were closed.

[31] That leaves only the issue of damages and contributory negligence. On any view the claim is a small one and should not have been litigated in this court.

[32] The Joint Minute agreed Mr Mann's medical report of 8 December 1999 (see 6/4 of Process).

[33] He sustained minor fractures of the terminal segments of the middle and ring fingers of the right hand. The ring finger lost its nail which has now regrown. The fingers were splinted and he suffered pain for a few weeks. There was also some discomfort in cold weather. By December 1999 Mr Mann found full function and some sensitivity in cold weather.

[34] The pursuer said that for some weeks his wife had to help him with laces and buttons.

[35] The pursuer made light of his disability but the injury must have been painful and unpleasant at the time. In my opinion the proper award for solatium is £2,000. For services I award £500. It is true no figures or hourly rates were put in evidence. In a small claim like this I do not think that is needed. What the pursuer said about the matter was not challenged.

[36] Is there any contributory negligence? All the defenders say (page 11) is that he had a duty to hold the handles "properly". At page 9 the defenders mention holding the hands in fists. For the reasons given by Mr Johnston that is not a suitable method. This job is repetitive and is conducted in noisy circumstances. I have found it is inherently dangerous due to the loose bracket. There is no suggestion that the pursuer agreed to do this job at his own risk. To maintain production he had to close the doors in the way his employers wanted. In all the circumstances I do not find that he contributed in any way to his misfortune. In the result he is entitled to recover in full.

[37] I accordingly sustain the first plea-in-law for the pursuer and the second plea-in-law pro tanto. I repel the defenders' pleas-in-law 1 to 6 and sustain their seventh pro tanto.