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Cite as: [2004] ScotCS 134

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Napier v Scotsman Publications Ltd [2004] ScotCS 134 (08 June 2004)

OUTER HOUSE, COURT OF SESSION

A1434/02

OPINION OF LADY SMITH

in the cause

JOHN JAMES NAPIER

Pursuer;

against

SCOTSMAN PUBLICATIONS LIMITED

Defenders:

________________

Pursuer: Ivey, Q.C.; Thompsons

Defenders: Arthurson; Simpson & Marwick, W.S.

8 June 2004

[1] On 13 June 2001, the pursuer, who is aged 48 years, was working in the course of his employment with the defenders as a maintenance engineer at their Newhaven Road premises. He had worked for the defenders for some 26 years, prior to which he had been employed as a motor mechanic. Changes in employment terms were negotiated between employees such as the pursuer, and the defenders, in 2000 and by letter dated 13 July 2000, the defenders had written to him setting out the new terms and conditions on which he was to be employed in the future (no. 7/10 of process). He accepted those terms in writing. They included the statement that his position as maintenance engineer constituted promotion to management level within the company. He was described by the defenders' Engineering Manager, Robert Tulloch, as being a very capable and competent engineer.

[2] The pursuer's job description was appended to the letter of 13 July 2000 and included the following:

"To be directly or indirectly responsible for highlighting health and safety issues associated with the safe operation and replacement of plant equipment."

The defenders' newspaper production operation requires the provision of compressed air. A group of four pumps which provide compressed air to machinery in the premises, including the newspaper printing presses are situated in the plant room. The pumps require to be serviced and maintained from time to time. When a pump requires servicing, it has to be removed and sent away for the necessary work to be carried out. The defenders' newspaper production operation can work satisfactorily with only three pumps functioning and during a normal working week, they regularly function with only three pumps working. However, as the week builds up towards the production of the weekend newspapers, production has to increase and they work to a target of having all four pumps operating by Saturday. They have, in the past, managed at the weekend with only three pumps but there was no doubt, on the evidence, that the weekend is a critical time and the desire is to have all four pumps in operation by Saturday of each week. The incident which was the subject of this case happened, however, on a Wednesday and there was no suggestion that there was any problem, as at that stage of the week, in having only three pumps operating. The evidence was to the effect that there would have been no pressure to ensure that all four pumps were operating on a Wednesday.

[3] The pursuer was, as at June 2001, working to the instructions of the engineering manager, Robert Tulloch. On the morning of 13 June 2001 he was instructed, along with three other men, to attend to the replacement of a vacuum pump situated in the plant room of the factory. When Robert Tulloch entered the employment of the defenders, he quickly appreciated how important the vacuum pumps were to the efficiency of the defenders' operation and he instituted a system whereby, instead of keeping only four pumps in stock, so that when one was sent away for maintenance, the operation was restricted to three pumps, five were kept in stock. It seems to have taken some time for the new system to be put in place and 13 June 2001 was the first occasion on which there was a new pump waiting to be attached to the compressor in place of the one that was being sent away.

[4] The pursuer and three other of the defenders' employees were instructed by Robert Tulloch to carry out the job of removing one of the existing vacuum pumps and putting in its place the new pump that was available. Robert Tulloch, a witness who gave clear evidence in a professional manner which impressed me as both credible and reliable explained that the pursuer was the natural "lead" for the job particularly since he had just been on a "slinging" course. Two of the men set about the tasks that required to be done to set up the block and tackle for the removal of the existing pump, the first of which was to go and select the appropriate slings for lifting the pump. The pursuer and Michael Keenan, a fellow employee, went to the plant room with a view to moving the new pump over to the compressor and attaching it, once the old one had been removed. They were the only two men of the group of four who were present in the plant room at that time. The evidence regarding the weight of the pump was not precise but witnesses appeared to be in agreement that it weighed something in the order of 1-2 cwt. The pump was sitting on a pallet. The pursuer and Michael Keenan intended to move the pump with the assistance of a pallet truck, the forks of which would have been placed under the pallet which would then have been lifted hydraulically. Thereafter, the plan was to wheel the pump over to the compressor where it could have been lifted into place by using the block and tackle which was available in that part of the plant room. They did not, however, get to that stage because the pursuer sustained an injury to his finger.

[5] The way in which the pursuer's injury came about was as follows:

At about 11.30 a.m. the pursuer and Michael Keenan tried to place the forks of the pallet truck underneath the pallet and they found that they could not get them into place. The pursuer said that the difficulty arose because the pallet was broken but he gave no specification of what the defect in the pallet was nor did he indicate that he observed any defect in the pallet prior to the accident which occurred. Michael Keenan said that they couldn't get the forks of the pallet truck in and they thought, initially, that it was due to the weight of the pump flexing the wooden struts of the pallet. He added that he thought they realised that the pallet itself was possibly damaged on one side and that that was the conclusion they came to afterwards. In cross-examination he indicated that there was slight damage to the left-hand side of the pallet but it seems that he was describing something he observed after the pursuer's accident, not before. Indeed, his description seemed to suggest that it was damage that occurred during the accident. In short, the evidence regarding the state of the pallet prior to the pursuer's accident was not satisfactory and I do not feel able to find, on the basis of it, that the pallet was, prior to the accident, damaged.

[6] Once the pursuer and Michael Keenan realised that they were having difficulty with the pallet truck, they decided that they would move the pump manually from the pallet to the metal cradle on wheels which they referred to as a "beetle". They did not refer back to Robert Tulloch to advise him of the problem nor did they consider whether there was other equipment in the building that they might be able to use to effect the lift. The pursuer described what happened as being that the pallet gave way, the pump fell off it and he cut his finger and hand. The accident happened, he said, because they were trying to slide the pump, its rubber mount caught on something and it toppled when his hand was underneath it. Michael Keenan's description was that they were sliding the pump manually along the pallet, it stuck, the pallet collapsed on one side and the pursuer's hand got trapped.

[7] There was available in the building though not in the plant room, a piece of equipment referred to as a "jib crane" or "engine lifter". It was a relatively small piece of mobile lifting equipment that had been moved into the building from the Scotsman garage when it closed. It had been used in the garage for lifting engines out of vehicles. The defenders' position was that it could and should have been used to lift the pump if the job could not be done using the pallet truck. It would have to have been taken up to the plant room from where it was situated two floors below but that could have been done using the block and tackle in the plant room to lift it through a hatch in the floor. It could have been taken up to a position below the hatch by means of a forklift truck. Whilst there were various materials and boxes stored in the area below the hatch which would have to have been cleared, they were capable of being moved and, indeed, were cleared away from the area by one man, John Gilroy, the day after the pursuer's accident.

[8] The pursuer was asked in evidence in chief for his reaction to the suggestion that they should have used the jib crane to move the pump. He said that it could have been used but it wasn't there in the plant room at the time. He accepted that using the jib crane would have been a safer route. Michael Keenan said, similarly, that he accepted it could have been used but it was two floors down from where they were. He also accepted that it probably would have been safer than trying to move the pump by hand. Both men gave evidence that they knew they were not expected to lift pumps manually and neither suggested that they had ever been instructed to lift pumps manually. As to the time that the job would have taken if they had got the jib crane up to the plant room and used it to move the pump, the pursuer accepted that the four men on the job, working together, could have completed it by mid-afternoon that day.

[9] The pursuer also accepted that another option would have been to go back and speak to Mr Tulloch to advise him of the problem that had arisen. Mr Tulloch, in evidence, said that had he been advised of the problem that had arisen he would have discussed with the men what was the appropriate solution. After the event, he suggested the use of the jib crane and he would certainly have advocated its use as opposed to manual handling, had that been the only alternative. However, in accordance with his normal policy of giving employees the opportunity to discuss the best way to carry out necessary tasks, he would have listened to any suggestions which came from the men involved with the task, who were experienced engineers. It was clear, however, that he would not have sanctioned manual handling.

[10] After the pursuer's accident, Mr Tulloch went through the exercise of having the jib crane taken up to the plant room by two engineers. The job took about 70 minutes including the time taken to clear the area underneath the hatch. That evidence was not challenged.

[11] Parties were agreed that, in the event of the defenders being found liable to pay damages to the pursuer, without any finding of contributory negligence, the sum awarded should be £3,000 together with interest. No evidence was, accordingly, led as to the nature and extent of the pursuer's injuries.

The Provision and Use of Work Equipment Regulations 1998, Regulation 5:
[12] In submission, senior counsel for the pursuer departed from the common law case pled against the defenders and advanced the claim under reference to statutory duties only. Firstly, the case was advanced under reference to regulation 5 of the Provision and Use of Work Equipment Regulations 1998 which states, inter alia:-

"5 -(1) Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair."

[13] The pursuer's case was to the effect that the pallet on which the pump was situated was work equipment. It was said that the pallet truck system was interrupted by the pallet being broken. The pallet was a necessary adjunct to the use of the pallet truck. The pallet was a separate piece of equipment. The pallet truck could not be used because of the defect in the pallet. The failure of the pallet left the pursuer again in a position whereby there was no way that he could move the pump other than by manual handling and, accordingly, the defect in the pallet caused his injury. It was not open, it was said, for the defenders to maintain that the availability of the jib crane excused the inability of the pursuer to make use of the pallet truck.

[14] On behalf of the defenders, it was submitted that the onus was on the pursuer and he had failed to prove that the pallet was broken prior to the accident. Further, even if it had been, the pursuer had not proved that there was a causal link between the defect in the pallet and the pursuer's accident. The causal link was broken by the pursuer's selection of a manual handling option, something which he was not required to do.

[15] As I have already indicated, on the evidence, I am not satisfied that the pallet was broken prior to the accident. That being so, the pursuer's case under these regulations does not get off the ground. I would add that, had there been satisfactory evidence of the pallet being broken prior to the accident, I would not have found in favour of the pursuer. The pursuer was not injured by the broken pallet. Despite his counsel's valiant and imaginative efforts to link the state of the pallet with the pursuer's ultimate injury, I agree with counsel for the defenders that no causal link existed.

The Manual Handling Operations Regulations 1992, Regulation 4:
[16] Secondly, the pursuer's case was advanced under reference to the above regulation which states, inter alia:

"4. Duties of Employers

Each employer shall -

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;"

On behalf of the pursuer, it was submitted that the defenders failed to avoid the need for manual handling of the pump from its position on the pallet. The pursuer was "at work", he was engaged in a "manual handling operation" and it was obvious that it was one that involved a risk of injury, given the weight of the pump. It was for the defenders to show that it was not reasonably practicable to avoid that need and they had led no evidence to that effect. Since there was no avoidance of manual handling, the defenders were in breach of Regulation 4(1)(a) of the 1992 regulations. As regards the jib crane, the evidence did not stand up because it was not available in the plant room that day. Its use was a matter of hindsight. It was not made plain to the pursuer at the time that the jib crane should have been used.

[17] In response, it was submitted on behalf of the defenders that it was clear on the evidence that manual handling of the pump was not normal practice. Indeed, the thrust of the evidence was that manual handling of the pump was not, as far as the defenders were concerned, an acceptable option. The pursuer himself had accepted that use of the jib crane was an option. It would have been a comfortable fit through the hatch. There was no time limit on the job and the pursuer accepted that would have been safer to use the jib crane as did Michael Keenan. There was, in short, no "need" for manual handling. The pursuer had a safety responsibility within his job description and he knew of the existence of the jib crane. Separately, he knew that he could have gone back to Mr Tulloch and discussed the problem with him. Had he done so the one thing that Mr Tulloch would not have advised was that the pump should be moved manually. The accident happened because the pursuer chose the less safe option. It was not a question of him needing to do so.

Decision
[18] The duty contained in regulation 4(1)(a) of the 1992 regulations only arises in circumstances where an employee needs to undertake a manual handling operation. Such circumstances may arise where an employee is specifically instructed to do so or where manual handling is the only way to carry out a required task. In this case, the operation which the pursuer was instructed to carry out was one in which it was envisaged by all concerned that the pump would be moved by means of the pallet truck. It was not envisaged that the pump would be manually handled nor was any need for manual handling implied in the instruction. On the contrary, it was clear from the evidence of Mr Tulloch that manual handling would not have been countenanced.

[19] The reason why the pump came to be manually handled was the exercise of choice on the part of the pursuer and Michael Keenan in circumstances where the manual handling of a substantial load was not the only option available to them. It was clear from the evidence that there were two other options available namely the use of the jib crane and going to speak to Mr Tulloch before attempting to move the pump, once the problem with the use of the pallet truck had arisen.

[20] Both the pursuer and Michael Keenan frankly accepted that the use of the jib crane would have been the safer option. The pursuer accepted that going back to speak to Mr Tulloch was another option and whilst Michael Keenan said that he wouldn't have asked Mr Tulloch, because his expertise was on the electrical side, he would have maybe asked somebody else in the engineering department. It seems, however, that neither of them gave much thought, at the time, to the adoption of any alternative safer than manual handling. That was notwithstanding the pursuer had stated responsibilities for highlighting health and safety issues associated with the safe operation and replacement of plant equipment. That was also notwithstanding the fact that the pursuer had, only days before, been away on a course directed towards providing training in slinging for the purpose of lifting loads. It was not suggested that the course specifically provided training as to what to do in circumstances such as the pursuer found himself on the day of the accident but his attention had clearly been directed towards thinking about means of lifting loads other than manual handling a very short time before. In all these circumstances, I do not see that the task being carried out by the pursuer at the relevant time was one in which a need for manual handling either in fact arose or should have been anticipated by the defenders as liable to arise.

[21] In these circumstances, whilst what in fact happened was that manual handling occurred, I cannot conclude that there was any need for it. That being so, I conclude that the defenders were not in breach of regulation 4. I shall, accordingly, repel the pursuer's pleas-in-law and sustain the defenders' second plea in law so as to grant decree of absolvitor.