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Cite as: [2002] ScotCS 351, 2002 SCLR 816
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Taylor v. City of Glasgow Council [2002] ScotCS 351 (30 April 2002)
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Marnoch Lord Reed Lord Carloway
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A2077/01 OPINION OF LORD MARNOCH in RECLAIMING MOTION in the cause DAVID TAYLOR Pursuer and Reclaimer; against CITY OF GLASGOW COUNCIL Defenders and Respondents: _______ |
Act: Mackay QC, RG Milligan; Digby Brown SSC (Pursuer and Reclaimer)
Alt: Ivey QC, Lloyd; HBM (Defenders and Respondents)
30 April 2002
[1] I have had the advantage of reading in advance the Opinion about to be delivered by Lord Carloway and I agree that this Reclaiming Motion should be allowed and the matter disposed of in the manner proposed by him. [2] The short ground on which I base my own opinion is that, in common with both of your Lordships, I consider that even on the Lord Ordinary's own approach (with which I, myself, happen to agree), if account is taken of the ergonomics of the manoeuvre on which the pursuer was engaged, it cannot be said that the pursuer's averments do not warrant at least a proof before answer on the question of whether that manoeuvre involved a foreseeable risk of injury and thus fell within the ambit of Regulation 4(1)(a) of the Manual Handling Regulations 1992. [3] As to the wider issues canvassed in the course of the Reclaiming Motion I am indebted to Lord Carloway for setting out so clearly the background to the legislation with which we are concerned in this case. In the result, it seems to me beyond question that Regulation 4 of the Manual Handling Regulations 1992 envisages that employers should draw up some sort of scheme or system of work which is designed to avoid, failing which minimise, the risk of injury from manual handling operations. In terms, therefore, of the duties arising under Regulation 4(1)(a) I agree with Lord Carloway that the Regulation cannot always be applied, as it were, directly to the particular circumstances in which injury from a manual handling operation is sustained. Of course, if an employee is injured while engaged on an operation or in a manner which should have been, but which was not, specifically prevented by the scheme, the causal link between breach of duty and injury will clearly be established. Where, however, the employee is injured while engaged on an operation arising casually in the course of general labouring duties, then it seems to me that the particular operation or method employed can only fall within a genus of operation or method which it is claimed should have been so prevented. In the present case, for example, had the question arisen, I would have been satisfied that the moving of furniture was clearly a type of operation which should have been foreseen as likely to occur and as involving a risk of injury with the result that it should have been guarded against in the sort of scheme which I have envisaged. Lord Carloway takes the view that "risk of injury", in this context, entails little more than the factual occurrence of an injury. I well understand the desirability of this approach since it is otherwise arguable that the effect of these and comparable Regulations will be to reduce, rather than increase, the protection previously afforded to the workforce, e.g. by Section 29(1) of the Factories Act 1961 and by other similarly expressed statutory provisions. However, with all due respect to his Lordship, I doubt whether the legislation here in question will bear that construction. The effect of such a construction, it seems to me, would be to read the phrase "which involve a risk of their being injured", where it appears in Regulation 4(1)(a) of the Regulations, as if it were synonymous with "which result in their being injured", a meaning which would deprive the words used of any real effect. More importantly, precisely the same phrase is used in Regulation 4(1)(b) where it seems to me even clearer that only a prospective meaning can be intended. In that respect I respectfully agree with all that is said by Lord Reed. [4] It has been necessary for me to set out the foregoing views because, as a Court, we are divided on what seems to be the proper construction of Regulation 4(1)(a) and, in particular, on the question of how far, if at all, it involves actual foreseeability on the part of the employer. It is, however, of some comfort that, despite differences in our reasoning, we are agreed as to the proper outcome of this Reclaiming Motion.
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Marnoch Lord Reed Lord Carloway
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A2077/01 OPINION OF LORD REED in RECLAIMING MOTION in the cause DAVID TAYLOR Pursuer and Reclaimer; against CITY OF GLASGOW COUNCIL Defenders and Respondents: _______ |
Act: Mackay QC, RG Milligan; Digby Brown SSC (Pursuer and Reclaimer)
Alt: Ivey QC, Lloyd; HBM (Defenders and Respondents)
30 April 2002
[1] The background to the present reclaiming motion, and the legislation with which it is concerned, are set out in the Opinion about to be delivered by Lord Carloway. I gratefully adopt his account of those matters. As appears from that account, the pursuer in the present case is seeking to establish a case against the defenders under regulation 4(1)(a) of the Manual Handling Operations Regulations 1992. It may be convenient if I quote at the outset the terms of regulation 4(1):"4.-(1) Each employer shall -
(a) so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured; or
(b) where it is not reasonably practicable to avoid the need for his employees to undertake any manual operations at work which involve a risk of their being injured -
(i) make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them, having regard to the factors which are specified in column 1 of Schedule 1 to these Regulations and considering the questions which are specified in the corresponding entry in column 2 of that Schedule,
(ii) 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, and
(iii) take appropriate steps to provide any of those employees who are undertaking any such manual handling operations with general indications and, where it is reasonably practicable to do so, precise information on -
(aa) the weight of each load, and
(bb) the heaviest side of any load whose centre of gravity is not positioned centrally."
"make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them, having regard to the factors which are specified in column 1 of Schedule 1 to these Regulations and considering the questions which are specified in the corresponding entry in column 2 of that Schedule."
It is difficult to see how an employer can fulfil this duty unless the "risk" which is referred to in regulation 4(1)(b) is a risk which is foreseeable. If that is so, then it seems to me that regulation 4(1)(a) has also to be understood as being concerned with operations which involve a risk which is foreseeable.
[8] I am not persuaded that the absence of foreseeability of any risk can be fully taken into account by way of a defence raising the issue of "reasonable practicability". If it were not reasonably practicable to avoid the need for employees to undertake operations which involved an unforeseeable risk of their being injured, then the employer would not be in breach of regulation 4(1)(a) if he failed to avoid such a need. Regulation 4(1)(b) would however then apply; and it requires the employer to fulfil the obligations set out in sub-paragraphs (i), (ii) and (iii). Those obligations cannot be performed, as it appears to me, in respect of operations which involve no foreseeable risk. [9] For these reasons, and differing with respect from the Opinion of Lord Carloway, it appears to me that regulation 4(1)(a) has to be understood as referring to manual handling operations at work which involve a foreseeable risk of injury. As your Lordship in the chair has pointed out, the effect of Lord Carloway's approach is to interpret the words "which involve a risk of their being injured" as meaning "which result in their being injured". As a result, Lord Carloway's approach effectively brings within the scope of regulation 4 any operation which falls within the definition of manual handling operations in regulation 2; whereas regulation 4 appears to me to place a duty upon employers only in respect of such operations as involve a risk of injury. [10] There remains the second question I identified earlier in this Opinion: whether the foreseeability of risk of injury has to be assessed in relation to the specific circumstances of the operation being undertaken at the time when an injury is said to have occurred. In the circumstances of the present case, for example, one might ask which of the following the pursuer has to establish:(1) that his employer failed to avoid the need for his employees to undertake the moving and lifting of furniture by hand, which involved a risk of their being injured; or
(2) that his employer failed to avoid the need for three of his employees to carry up two flights of stairs a cupboard which was 2 metres tall and weighed 35kg, which involved a risk of their being injured.
There are of course other ways in which the operation might be described, of different degrees of specificity.
[11] Regulation 4(1)(a) imposes, as I have mentioned already, a duty (subject to reasonable practicability) to avoid the need for employees to undertake any manual handling operations at work which involve a risk of their being injured. In a case where an employee claims to have been injured as a result of a breach of that duty, he has to establish that there was a need for him to undertake a manual handling operation at work which involved a risk of his being injured: that much appears to me to be apparent from the terms of the provision. The employee must therefore establish inter alia that he in fact undertook a manual handling operation which involved a risk of his being injured. Unless the manual handling operation which he undertook involved a risk of his being injured, his case cannot therefore succeed. [12] In the circumstances of the present case, it would appear to me to follow that, in order to establish that regulation 4(1)(a) is applicable, the pursuer has to establish that the operation of lifting the particular cupboard in question up two flights of stairs with the assistance of two other men was an operation which involved a risk of his being injured; and that was the approach adopted by the Temporary Judge. That approach also appears to me to be implicit in certain other cases in which the regulation has been considered (e.g. Hawkes v London Borough of Southwark (20 February 1998, unreported); Koonjul v. Thameslink Healthcare Services (2000) P.I.Q.R. 123, at p.127 per Hale L.J.). [13] The approach adopted by Lord Carloway - that it is sufficient for the pursuer to establish that the operation which he undertook belonged to a wider category of operations which, in general terms, involve a risk of injury - appears to depend upon interpreting "operations" as referring to categories rather than to individual operations. Certain aspects of regulation 4 may call for a generalised approach in some circumstances, for example in deciding whether an employer has made a "suitable and sufficient" assessment and has taken "appropriate" steps within the meaning of regulation 4(1)(b) (cf. Koonjul, ante, at pp. 127-128 per Hale L.J.). That approach does not, however, appear to me to be necessary in determining the question with which we are here concerned, namely whether the actual operation which the pursuer undertook was or was not one which involved a risk of injury and therefore fell within the ambit of the regulation. [14] Lord Carloway's approach also appears to me to give rise to difficulties. A proposition which is true in general terms of a category is not necessarily true of every member of that category. If one chooses, as the general category, "moving items of furniture by hand", then that is a category of operations which can be said, in general terms, to involve a risk of injury. But it does not follow that every instance of moving an item of furniture involves a risk of injury. To interpret regulation 4 as Lord Carloway suggests could therefore have the consequence that it would apply to particular operations which involved no risk of injury. A further problem with the argument is that whether a pursuer had pled a relevant case under regulation 4(1)(a) would turn on whether a particular operation fell within a given category, rather than on a consideration of whether the operation itself involved any risks. For example, the question whether the operation of moving a table lamp falls within the scope of regulation 4 depends upon whether the circumstances involve a risk of injury, and thus on such factors as the weight and size of the lamp. It does not depend on whether moving a table lamp falls within a category of operations which in general terms involve a risk of injury, such as "moving an item of furniture". [15] It was argued before us that the approach which I favour tends to reduce the practical effectiveness of the regulations. Regulation 4, it was argued, adds little of substance to the common law duty owed by an employer to his employees, if an employee who has been injured requires to prove that there was a foreseeable risk (or a "foreseeable possibility", as it has been put in other cases) that a particular operation at work would result in injury. The regulations, so interpreted, might also be argued to have the effect of relaxing the duty previously incumbent on employers under section 72 of the Factories Act 1961, which the regulations repealed and replaced. Section 72 imposed on the employer a duty, unqualified by "reasonable practicability", not to employ a person to lift, carry or move any load so heavy as to be likely to cause injury to him. The other provisions replaced by the regulations, and listed in schedule 2, were in similar terms. [16] I accept that an interpretation of regulation 4 which would have the effect of diminishing the protection afforded to employees is to be avoided if possible, since the regulation has to be interpreted, as far as possible, so as to achieve the result pursued by the Manual Handling Directive (Case C-106/89 Marleasing SA v La Comercial Internacional de Alimentación SA [1990] ECR I-4135); and the Directive, like the Framework Directive, was intended to encourage improvements in the health and safety of workers at work, in accordance with Article 118A of the Treaty of Rome. The preamble to the Framework Directive indeed states explicitly that "this Directive does not justify any reduction in levels of protection already achieved in individual Member States". [17] It appears to me, however, that the regulations, interpreted in the manner which I have suggested, go beyond the protection afforded by the common law duty of reasonable care, and can be given effect in a way which is both realistic and apt to achieve the objectives of the Manual Handling Directive. Paragraph (a), implementing Article 3.1 of the Directive, requires the employer to avoid hazardous manual handling operations so far as is reasonably practicable (for example by redesigning the task, or by changing the place where it is performed, or by automating or mechanising the process). Where it is not reasonably practicable to avoid such operations, paragraph (b), implementing Articles 3.2 and 4 of the Directive, requires the employer to make a suitable and sufficient assessment of such operations, and to take appropriate steps to reduce the risk of injury to the lowest level reasonably practicable. These provisions require the employer to adopt an ergonomic approach, rather than focusing solely upon the weight of the load, and thus provide better protection than the statutory provisions which they replaced. [18] For these reasons, it appears to me that the Temporary Judge followed the correct approach in identifying, as the issue for decision, whether the pursuer's pleadings enabled him to establish that his undertaking the particular operation in the course of which he claims to have been injured involved a foreseeable risk of his being injured. I cannot however agree with the Temporary Judge's conclusion, on the pleadings, that "looking at the matter with practical common sense...there [was] not...a risk of injury to a pursuer in these circumstances". In a situation in which a large piece of furniture was being manoeuvred up a number of steps, it seems to me to be impossible to conclude, merely on the basis of the pleadings, that there was no foreseeable risk of injury. I would regard it as inappropriate to reach any conclusion on the question of risk in the present case until the evidence had been heard. [19] For these reasons, I concur in the order proposed by Lord Carloway.
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Marnoch Lord Reed Lord Carloway
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A2077/01 OPINION OF LORD CARLOWAY in RECLAIMING MOTION in the cause DAVID TAYLOR Pursuer and Reclaimer; against CITY OF GLASGOW COUNCIL Defenders and Respondents: _______ |
Act: Mackay QC, RG Milligan; Digby Brown SSC (Pursuer and Reclaimer)
Alt: Ivey QC, Lloyd; HBM (Defenders and Respondents)
30 April 2002
1 The Legislation
[1] The European Council Directive 89/391 of June 1989 On the Introduction of Measures to Encourage Improvements in the Safety and Health of Workers at Work (O.J. 1989, L.183/1) (the "Framework Directive") specifies, as its first object, the introduction of measures to encourage improvements in the safety and health of workers at work (Article 1.1). The preamble states that its terms do not justify any reduction in levels of protection already achieved in individual Member States. The Directive stipulates a general duty on employers "to ensure the safety and health of workers in every aspect related to the work" (Article 5.1). The measures necessary for the safety and health of the employees are to be implemented, and reviewed, by the employer on the basis of certain principles of prevention, commencing with the following:"(a) avoiding risks;
(b) evaluating the risks which cannot be avoided;
(c) combating the risks at source; ..." (Article 6.2)
The Framework Directive intimated the Council's intention to adopt individual ("daughter") directives in certain specific areas, including the "Handling of heavy loads involving risk of back injury" (Article 16.1, Annex) but the provisions of the Framework Directive remain applicable in these specific areas subject only to any more stringent requirements imposed by a daughter directive.
[2] The hierarchy of steps to be taken by an employer generally in relation to the avoidance, evaluation and combat of risks is reflected in these daughter directives. The one bearing upon this case is the (fourth) Council Directive 90/269 of May 29, 1990 on the Minimum Health and Safety Requirements for the Manual Handling of Loads Where there is a Risk Particularly of Back Injury to Workers (O.J. 1990, L. 156/9) (the "Manual Handling Directive"). Because its wording differs from that in the regulations introduced to implement it, it is instructive to pause and consider some of that wording. It is of some note that "manual handling of loads" is defined (Article 2) as:"any transporting or supporting of a load, by one or more workers, including lifting, putting down, pushing, pulling, carrying or moving of a load, which, by reason of its characteristics or of unfavourable ergonomic conditions, involves a risk particularly of back injury to workers."
The general obligations on employers are then stated (Article 3):
"1. The employer shall take appropriate organisational measures, or shall use the appropriate means, in particular mechanical equipment, in order to avoid the need for the manual handling of loads by workers.
2. Where the need for the manual handling of loads by workers cannot be avoided, the employer shall take the appropriate organisational measures, use the appropriate means or provide workers with such means in order to reduce the risk involved in the manual handling of such loads ..."
So, the primary obligation is to avoid the need for manual handling, as defined. Only where that manual handling cannot be avoided do the requirements to reduce the risk come into play. These requirements are made more specific as follows (Article 4):
"Wherever the need for manual handling of loads by workers cannot be avoided, the employer shall organise workstations in such a way as to make such handling as safe and healthy as possible and:
(a) assess, in advance if possible, the health and safety conditions of the
type of work involved, and in particular examine the characteristics of loads ...
(b) take care to avoid or reduce the risk particularly of back injury to
workers, by taking appropriate measures, considering in particular the characteristics of the working environment and the requirements of the activity ..."
Even with the daughter directive, what is envisaged, again as a generality, is not an assessment of each particular task which an employee carries out at the time when that task is executed, but the taking of steps to avoid manual handling in general, together with steps to reduce risk in areas of work, no doubt including specific operations, where manual handling cannot be avoided.
[3] Implementation of the Framework Directive is attempted in the Management of Health and Safety at Work Regulations 1992 (SI 1992/2051 as amended). These Regulations require employers to make an assessment of the risks to which employees are exposed whilst at work in order to identify any measures which are required under relevant statutory provisions (regulation 3). The assessment must clearly be carried out in advance of any work being executed and it is required to address risks over the whole spectrum of tasks in which employees may be engaged. Failure to abide by these Regulations imposes no civil liability (regulation 15). That might, in certain situations, be seen as amounting to deficient implementation of the Framework Directive but, in the type of case under consideration here, that is of no moment because the particular circumstances are covered by the Manual Handling Operations Regulations 1992 (SI 1992/2793), which are, in turn, intended to implement the Manual Handling Directive. [4] An interesting feature of the Regulations is that the language used in them is reminiscent, in certain important particulars, of that used in the factories and related workplace legislation, which predated the Directives. As distinct from the Directives, the Regulations use the term "manual handling operations" without reference, in any definition of that term, to risk of injury (regulation 2(1). They then proceed:"4(1) Each employer shall -
(a) so far as reasonably practicable, avoid the need for his employees to
undertake any manual handling operations at work which involve a risk of their being injured; or
(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 a suitable and sufficient assessment of all such manual handling operations to be undertaken by them ...
- 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; and
- take appropriate steps to provide any of those employees who are undertaking any such manual handling operations with general indications and, where it is reasonably practicable to do so, precise information on -
(aa) the weight of each load, and
(bb) the heaviest side of any load whose centre of gravity is
not positioned centrally;
(2) Any assessment such as is referred to in paragraph (1)(b)(i) of this regulation shall be reviewed by the employer who made it if -
(a) there is reason to suspect that it is no longer valid; or
(b) there has been a significant change in the manual handling operations
to which it relates;
and where as a result of any such review changes to an assessment are required, the relevant employer shall make them."
As in the Directives, the primary obligation is expressed as one to avoid, as a totality, manual handling operations (my emphasis) involving risk. It is not expressed with reference to an individual task. The obligation is one intended to be carried out in respect of the employer's undertaking generally and in advance of any particular task or operation, the effects of which may ultimately be complained about. If the employer does have unavoidable manual handling operations, some of which involve risk, then he requires to assess them separately and take appropriate measures and review that assessment and these measures from time to time. This sequential structure of obligations is of some significance when the Regulations come to be construed.
2 The Pleadings
[5] The accident averred by the pursuer did not involve any obvious complexities of causation. The pursuer was aged 57. He was employed by the defenders' predecessors, Strathclyde Regional Council, as a school janitor. On 14th March 1995, the pursuer was working at St. Leonard's Secondary School at Easterhouse, Glasgow, when he was asked by his head janitor to assist in the moving of a cupboard from one classroom, up two flights of stairs, to another classroom. The cupboard was about two metres high and weighed about thirty five kilograms. The head janitor held the lower end of the cupboard and the pursuer and another colleague the higher end as they manoeuvred it up the nine steps on each flight. The pursuer avers that as they were nearing the top of the second flight, he suffered an accident when he "felt a sharp pain in his lower back". [6] From these seemingly simple beginnings, the pursuer avers that:"The operation of moving the cupboard was a manual handling operation at work which involved a risk of said employees, including the pursuer, being injured. It was a manual handling operation to which the provisions of the Manual Handling Operations Regulations 1992 applied. No steps had been taken by Strathclyde Region to avoid the need for their employees, including the pursuer, to undertake said operation. Strathclyde Region did not make a suitable and sufficient assessment of said operation. They did not take appropriate steps to reduce the risk of injury to employees, including the pursuer, arising out of their undertaking the operation to the lowest level reasonably practicable. They did not take appropriate steps to provide the pursuer with precise information on the weight of the cupboard ... He had never been given any training by Strathclyde Region in the safe performance of manual handling operations such as said operation."
The defenders admit that the pursuer had been engaged, along with the two others, in moving the cupboard up the stairs in the manner averred by the pursuer. They admit that the pursuer had complained of pain during this operation. They accept that he had been given no training in the safe performance of manual handling operations but explain that, as an experienced janitor, he would be familiar with the "basic principles of safe lifting". Of considerable importance, however, the defenders do not aver that it was not reasonably practicable to avoid the need for their employees to undertake manual handling operations generally or this operation in particular.
3 Outer House Proceedings and Submissions
[7] The argument presented by the defenders to the Temporary Judge in Procedure Roll was in short compass and was based upon a submission that there was insufficient specification of the risk of injury during the course of the particular task. It centred upon a contention that a case founded upon a breach of regulation 4(1)(a) required averment that the injury sustained by the pursuer as possibly arising out of the particular operation being carried out by him and, in this case, his two co-employees was, to some degree, foreseeable. It was said that the averments gave insufficient notice of the evidence upon which the pursuer proposed to rely in order to establish that there was a manual handling operation which involved a risk of the pursuer being injured. There was no specification of the pursuer's share of the load, of the position and proximity of the load to his body, or of any particular aspects of the lift which gave rise to any risk of injury, all of which specification the defenders had sought by calls placed upon record. Although the pursuer maintained that he had averred sufficient to entitle him to an inquiry, it was accepted by both parties that the test of whether a "risk" existed was whether there was a "foreseeable possibility" of injury. This test, the Temporary Judge noted, arose out of certain dicta in Anderson v Lothian Health Board 1996 SCLR 1068; Cullen v North Lanarkshire Council 1998 SC 451; and Hall v City of Edinburgh Council 1999 SLT 744. The Temporary Judge was sceptical about the merits of such a test and, having observed that there was nothing about "foreseeable possibility" in the Regulations, he continued (2000 SLT 670 at 672):"If there is to be any limitation on the ambit of the Regulations to make them less than a duty of insurance when somebody sustains injury at work while engaged in manual handling, then some content has to be given to the notion of a risk of injury. It cannot in my view be sufficient for a pursuer simply to assert that because he was involved in a manual handling operation and in the course of that operation an incident happened, he would be entitled to succeed unless the defenders could establish otherwise. Sustaining injury is not res ipsa loquitur."
Despite his scepticism, the Temporary Judge proceeded to apply the "foreseeable possibility" test, adding that, in order to meet it, a pursuer had to aver sufficient to give proper notice of the facts giving rise to his contention that there was foreseeable possibility of injury. On the facts averred, the Temporary Judge held that as a matter of "practical common sense" there was no risk of injury to the pursuer in engaging in the three man lift described and accordingly, even applying the well known observations on dismissal of actions in Jamieson v Jamieson 1952 SC (HL) 44 and Miller v South of Scotland Electricity Board 1958 SC (HL) 20, the pursuer was bound to fail. He dismissed the action. Had he not done so, he would in any event have excluded the pursuer's averments relative to regulation 4(1)(b) from probation on the basis, as advanced by the defenders, that they did not seek to escape from regulation 4(1)(a) because of lack of reasonable practicability.
[8] As I have already recorded, the argument presented to the Temporary Judge was one which proceeded largely on the issue of whether the pursuer had adequately specified in his averments the factors from which it could be deduced that a foreseeable possibility of injury arose from the particular work being carried out by the pursuer. As the debate before this Court progressed, it appeared that, irrespective of the Court's view on that narrow issue, there were certain wider questions as to the application of regulation 4(1)(a) to the workplace that required to be addressed. These included, in particular, whether and to what extent regulation 4(1) should be approached in what might reasonably be called the traditional manner in relation to duties at common law, or those under the pre-existing Factories Acts and related statutory provisions, or whether, on the contrary, a new approach might be required. [9] The pursuer maintained that all he required to aver was that a risk existed. However, that did not involve imposing upon the defenders a duty of insurance since there were a number of statutory defences available. Even if the test was one of foreseeable possibility, that was a low threshold to overcome and the pursuer's averments were at least sufficient for inquiry. Reference was made by counsel to: (a) the source of "foreseeable possibility" in Anderson v Lothian Health Board (supra, per Lord Macfadyen at 1070), Cullen v North Lanarkshire Council supra, at 455, and Hall v City of Edinburgh Council (supra per Lord Macfadyen at 746); (b) the approach taken in the recent Outer House cases of Easson v Dundee Teaching Hospitals NHS Trust 2000 SLT 345 (per Lord Macfadyen at 347-348), Fleming v Stirling Council 2001 SLT 123, Purdie v City of Glasgow Council, 21st December 2001, unreported, (per Lord Hamilton at paras. 5 and 7), and McGhee v Strathclyde Fire Brigade, 18th January 2002, unreported (per Lord Hamilton at paras. 9 and 11); and (c) the English Court of Appeal cases of Koonjul v Thameslink Healthcare Services [2000] PIQR 123 (per Hale LJ at 127 and Sir Christopher Staughton at 128) and Hawkes v London Borough of Southwark, 20th February, 1998 unreported, where Aldous LJ referred to the need for a "real" risk. [10] It was argued that the Temporary Judge, although paying lip service to the test of "foreseeable possibility", had not applied it in practice. In looking at what the operation was here, the Temporary Judge had erred in concentrating upon the particular task being carried out by the pursuer as distinct from the more general task of moving furniture up flights of stairs. In that regard, the Regulations had to be interpreted purposively. The Guidance on the 1992 Regulations issued by the Health and Safety Commission explained the substantial problem which existed in relation to injuries, especially to the back, as a result of manual handling operations. They also stressed the need for a hierarchical approach to safety measures (para. 7). There was no need to imply foreseeability into the Regulations any more than this had been done under pre-existing legislation even where criminal sanctions could be imposed (Mains v Uniroyal Engelbert Tyres 1995 SC 518, Lord Sutherland at 528). Risk simply meant "danger" or "hazard" (Shorter Oxford English Dictionary (2nd ed. 1989 p. 987; Chambers Dictionary p.1486). It was a "risk" only that required averment and, ultimately, proof. Once risk was proved, the onus swung back to the defenders to avoid liability using the reasonable practicability defences (see generally Munkman: Employers' Liability (13th ed.) paras. 14.17-20). [11] The pursuer went on to submit that the pleadings ought not to be scrutinised like a conveyancing document (McMenemy v James Dougal and Sons 1960 SLT 84 per Lord Guest at 85) and that cognisance should be given to the known fact that defenders carry out their own investigations (Avery v Hew Park School for Boys 1949 SLT (notes) 6 per Lord Blades at 7). It could not be said that, on the averments, the pursuer was bound to fail (Miller v South of Scotland Electricity Board (supra) Lord Keith at 33) and, standing an adequacy of fair notice, the Temporary Judge had erred in dismissing the action. [12] The defenders maintained that, for the reasons explained in the passages in Anderson v Lothian Health Board (supra); Cullen v North Lanarkshire Council (supra) and Hall v City of Edinburgh Council (supra), "risk" in the context of the Regulations involved a need for a "foreseeable possibility" of injury occurring in the course of the operation in question. The Court required to consider that issue after the event even although the employer had to do so beforehand. The Temporary Judge had applied the correct test despite his scepticism. In this case, the relevant operation to look at was the one actually carried out, namely that of three men lifting a cupboard. In the absence of the pursuer specifying how a risk of injury arose from such an operation, the case lacked the requisite specification to merit a proof. The pursuer had given no notice of what he planned to prove in support of the proposition that the particular operation in question carried with it the requisite risk. He had to do that (Easson v Dundee Teaching Hospitals NHS Trust (supra) at 347-348). This was essential to enable a defender to consider whether he ought to be pleading a reasonable practicability defence and, indeed, to assist him in determining whether to defend the action at all. The pursuer also required to aver specifically that the operation caused the back injury (Wardlaw v Bonnington Castings 1956 SC (HL) 26) and he had not done so.4 Decision
[13] Prior to the Framework Directive, United Kingdom health and safety legislation, which ran parallel to the common law of delict in the employment field, consisted of a set of somewhat piecemeal provisions which focused on dangers present on specified premises and in particular processes or types of work. It reflected what might be termed an incremental approach to the problems of injury at work, the extent of which was being increasingly recognised and, in relation to back injuries, is well documented in the Guidelines produced relative to the Manual Handling Operations Regulations 1992. However, it is important to observe that where this legislation did apply and there was, for example, an obligation on an employer to provide and maintain a safe place of work, the obligation was precisely that and not qualified by requiring the employee to prove that the employer ought to have foreseen the particular risk which caused his injury, albeit the lack of such foreseeability might play a part if a defence of reasonable practicability was available and prayed in aid by the employer. If that principle was not clear beforehand, it was made clear by the Court in Mains v Uniroyal Engelbert Tyres 1995 SC 518. It is worth quoting from the opinion of Lord Sutherland in that case at some length, since it sets out the existing law prior to the Framework Directive in situations where specific health and safety provisions obliged employers to keep workplaces safe. He said (pp 530-531):"In my opinion, the construction of section 29(1) [of the Factories Act 1961
(c 34)] must depend upon the wording of that section itself. Since Nimmo [v Alexander Cowan & Sons 1967 SC (HL) 79] the obligation under the section must be read as being that every working place shall be made and kept safe. If that obligation has not been met then it may be open to the employers to invoke the qualification that it was not reasonably practicable for them to prevent a breach and it may well be that reasonable foreseeability has a part to play in that. As considerations of reasonable practicability involve weighing the degree and extent of risk on the one hand against the time trouble and expense of preventing it on the other, quite clearly foreseeability comes into the matter as it is impossible to assess the degree of risk in any other way. To that extent I agree that reasonable foreseeability can play its part in a consideration of section 29(1) but only at that later stage of considering whether the employers have discharged the onus upon them of showing that there were no reasonably practicable precautions which could have been taken. The initial part of the section is, in my view, clear. The duty is to make the working place safe. That means that there is a duty to prevent any risk of injury arising from the state or condition of the working place. There is nothing whatever in the section to suggest that the obligation is only to prevent any risk arising if that risk is of a reasonably foreseeable nature. Had that been the intention of Parliament it would have been perfectly simple for Parliament to have said so. If the duty had only been to take reasonably practicable precautions against reasonably foreseeable risks it is difficult to see how this section would have added anything of substance to the common law. Where the statute is designed to protect the safety of workmen it is, in my view, not appropriate to read into the statute qualifications which derogate from that purpose. It cannot be said that this reading of section 29 imposes an intolerable or impossible burden upon employers. They have the opportunity of establishing that there were no reasonably practicable precautions which could have been taken to prevent their breach of obligation. If they can do so they have a complete answer both to civil and criminal liability even though they are prima facie in breach of their obligation."
There are, perhaps, two specific points arising from this passage. First, Lord Sutherland interestingly uses the word "risk", with which the present case is, of course, intimately concerned. Even in the context of prevention, he saw no need to read into the word "risk" any element of "foreseeability" (cf McGhee v Strathclyde Fire Brigade (supra) at para. 11). Secondly, he recognises that interpreting this type of legislation in a manner which excludes any element of foreseeability does not involve the imposition on an employer of a duty "to insure", nor does it cause sustaining injury of itself to instruct liability (cf the Temporary Judge at the passage quoted (supra)). This is because the employer is given a specific defence of, phrased shortly, "reasonable practicability". Furthermore, as Lord Sutherland also recognises, the restriction of the scope of the employer's duty to "reasonably foreseeable" risks limits the effect of the legislation to something close to the common law upon which it was designed to innovate.
[14] The Framework Directive and its daughters were introduced following ratification of article 118A of the Treaty of Rome, which provided that Member States were to pay particular attention to encouraging improvements as regards the health and safety of workers. The Directive has as its object that encouragement (Article 1.1 (supra)). It stipulates that employers shall "ensure" their worker's safety (Article 5.1 (supra)) by implementing a hierarchy of measures starting with the avoidance of risks and continuing, only in the event of the risk being unavoidable, by evaluating and then combating the risks (Article 6.2.(a-c) supra)). This scheme cascades down partly through the Management of Health and Safety at Work Regulations 1992 and partly by way of the Manual Handling Directive, into the Manual Handling Operations Regulations 1992. Accordingly, despite the use of some familiar language, the scheme, as it eventually appears in the Manual Handling Operations Regulations constitutes a major departure in both style and content from the earlier piecemeal approach of safety legislation giving rise to civil liability. In particular, it is centred on a general avoidance of all risks to health and safety as the primary measure, rather than an attempt to tackle perceived dangers in particular premises or processes. In such circumstances, I have no difficulty in accepting that the Regulations must be construed "purposively" so as to give effect to the objective pursued by the parent and daughter directives. That purpose is manifestly to improve existing health and safety regimes and certainly not to diminish them. [15] In accordance with the structure of the Regulations generally, regulation 4(1)(a) must be seen not as applying in the traditional sense to a specific task which ultimately involves injury (although it may do that) but as requiring the employer, in advance of any consideration of that specific task and perhaps of any knowledge of the need for its performance, to avoid the need for any manual handling tasks carrying with them the risk of injury. This obligation is a general one to be carried out in respect of all operations in the employers' undertaking in advance of these operations being carried out. Where regulation 4(1)(a) is relied on it is on the simple basis that the employer did not prohibit manual handling operations carrying the risk of injury. If the employee then pleads that he was carrying out some miscellaneous manual handling operation in the sense defined in regulation 2 (i.e. some form of manual transporting or supporting of a load including the lifting, putting down, pushing, pulling, carrying or moving of a load) and was injured as a consequence of doing so, that, per se, is a relevant case under this part of the regulation. If that is all that is averred upon record then, if proved, the failure to prohibit generally coupled with the sustaining of an injury caused by the carrying out of the operation will normally be sufficient to establish liability (subject to any defence raising the issue of reasonable practicability) since the occurrence of the injury, as a consequence of carrying out of the operation, will usually carry with it the almost irresistible inference that the operation did involve the risk of injury. In this regard, although I agree with the previous dicta that proof of a "foreseeable possibility" of the particular injury arising is sufficient to demonstrate that a risk of injury was present (Anderson v Lothian Health Board (supra); Cullen v North Lanarkshire Council (supra), I do not regard such foreseeability as a necessary pre-requisite (cf. Hall v City of Edinburgh Council (supra). If it was always incumbent upon the employee to establish the foreseeability of his being injured in the course of the particular operation in which he was engaged then safety regimes would, in many cases, be taken back to a stage before the pre-existing health and safety legislation. Leaving aside the niceties of language present in distinguishing "reasonable foreseeability" from "foreseeable possibility", in practical terms, the Regulations would impose little more than what was already in place as a common law duty. [16] Whether a particular operation carried with it a risk of the employee being injured is a matter of fact for the Court to assess at the time of the proof looking at, amongst other things, what actually happened. It is not, in my view, either legitimate or useful to attempt to define what a risk is by using different words to explain it or additional words such as "real" or "significant" to qualify it (cf Hawkes v London Borough of Southwark, Aldous LJ (supra), McGhee v Strathclyde Fire Brigade (supra) para. 11). In the ordinary case, apart from situations involving exceptional medical or other occurrences, where a particular operation in fact causes an injury it is very difficult, if not impossible, to maintain that the operation did not involve a risk of injury. [17] The pursuer was employed as a janitor. It is well known that janitors are charged with certain tasks concerning the care-taking and maintenance of schools and that such care-taking or maintenance will sometimes involve the moving of large pieces of furniture. Since, in my view, moving large items of furniture by hand obviously involves a risk of injury, particularly back injury, the duty under regulation 4(1)(a) was a simple one to avoid the need for moving such furniture by hand. In so far as the pursuer is relying on that regulation, all he requires to plead is that he was involved in a task of that type (i.e. moving a large item of furniture) and sustained an injury as a result. There is no requirement under this part of the regulation to aver or prove that the employer foresaw or could have foreseen the possibility of injury arising from the particular task of moving a cupboard up flights of stairs or theeven more specific one of doing so with the assistance of two other men. Such a traditional approach is not in keeping with the scheme set out in the Directives and Regulations.
[18] I would add, however, that, contrary to the view of the Temporary Judge, even if the present case were approached on the basis which he adopted, I would have had little difficulty in holding that the particular operation (involving three men manoeuvring a large cupboard up two flights of stairs) was one which might foreseeably give rise to injury. Standing current knowledge on such matters, including that set out in the Guidelines issued in respect of the 1992 Regulations, the foreseeability of risk arising out of an operation involving the manoeuvring of a load cannot be assessed by attempting to determine the heaviest weight which might have been imposed upon the handler. The ergonomics of the whole manoeuvre must be looked at. [19] Of course, regulation 4(1)(a) also includes the qualification "so far as is reasonably practicable" but it is a well established principle of our rules of evidence and procedure that the onus of pleading and proving such a qualification rests upon the employer. It is an important part of this opinion that it is for the defender, under our current system of pleading, to raise in averment the fact that he maintains that the avoidance of the need for the manual handling of, for example, furniture is not reasonably practicable in order to establish a defence to a case under regulation 4(1)(a). If he does not do so then the issue of reasonable practicability need not be considered. If he does, then no doubt he has to explain why avoidance is not reasonably practicable. In that event, a pursuer may go on to rely upon the terms of regulation 4(1)(b) by setting out in what way, nevertheless, the employer failed. If he does so, then in determining the issue, for example, of whether the employer took appropriate steps to reduce the risk of injury to the lowest level reasonably practicable, no doubt issues such as the foreseeability and the level of risks may be important (see the approach of Hale LJ in Koonjul v Thameslink Healthcare Services (supra) but cf that of Sir Christopher Staughton). For present purposes, however, these issues simply do not arise. That having been said, I should also add that an alternative case, which a pursuer elects to plead, under regulation 4(1)(b) would not be rendered irrelevant merely because a defender does not plead reasonable practicability. It may ultimately turn out to be unnecessary or superfluous on the basis that the pursuer succeeds in any event under regulation 4(1)(a) but that of itself would not justify the Court in excising averments directed towards 4(1)(b) where these are tabled. However, in the present case, the averments relating to regulation 4(1)(b) do not proceed on such an alternative basis that the avoidance of the operation was not reasonably practicable. In these circumstances they are strictly irrelevant. [20] In short, for the reasons given above, I am of the view that regulation 4(1)(a) imposes, prima facie, a general duty to avoid the need for all manual handling carrying with it a risk of injury. Where a particular pursuer is injured whilst engaged in and as a result of such a manual handling operation then liability for the consequences of a breach of the regulation is only avoided if the employer has relevantly pled the defence of lack of reasonable practicability in respect of the type of operation being carried out by the pursuer. In these circumstances, I am satisfied that the Temporary Judge applied an unnecessary test in considering whether there was a "foreseeable possibility" of injury arising out of the particular manner in which the particular operation was being carried out on the occasion on which the alleged accident occurred and that, in any event, he erred in considering that the pursuer had not given sufficient specification of his case, even if that test was applied. In my view the pursuer has pled a relevant case under regulation 4(1)(a). In these circumstances, I would refuse to admit to probation the averments relative to the reduction of risk of injury under regulation 4(1)(b) from "They did not take..." to "...side of the cupboard" at pages 6A-C and from "or (b) where..." to "...reasonably practicable..." at 8E-9A-B of the closed record but quoad ultra I would allow the reclaiming motion, recall the interlocutor of the Temporary Judge dismissing the cause and allow a proof before answer.