OUTER HOUSE, COURT OF SESSION [2006] CSOH 149 |
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OPINION OF LORD HODGE in the cause JAMES WALSH Pursuer; against TNT UK LIMITED Defender: ________________ |
Pursuer:
Mr Christine, Advocate; Thompsons
Defenders: Mr Bowie, Advocate; Simpson & Marwick
Introduction
"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 -
... (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 ..."
[2] Parties
agreed damages by joint minute in the sum of £6,650 inclusive of interest to
The facts
[3] The
pursuer is aged thirty-six. He has been
employed by the defenders or an associated company since late 1996 principally
as a collection and delivery driver. In
March 2004, when the accident occurred, he was employed by the defenders. On
[4] He said that when standing in the back of the van he had had to bend as the roof height would not allow him to stand up straight. The boxes were located at the wheel arch in the back of the van and the second or third one was stacked on top of another so that when he started lifting the box its top was located approximately at knee level. He explained that he lifted the boxes by placing his fingers in hand-holds located under the lids. He stood close to the box and, when he lifted it upwards and towards himself, he was surprised by its weight which he estimated at 40 kg. He felt that the contents inside the box moved when he had raised it about six inches and he felt a sharp pain on the right hand side of his back. He then told an official from the Department for International Development who was receiving the goods that he had hurt his back. The official slid the box to the rear of the van and removed it.
[5] There
was a dispute between the parties as to the weight of the box which the pursuer
was lifting when he suffered injury. The
pursuer gave evidence that the weight of the box was approximately
40 kg. He derived some support for
the existence of an unusually heavy box at the defenders' depot on the day in
question as Mr Robert Smith, who was a foreman employed by the defenders,
gave evidence of having had difficulty in manoeuvring a very heavy tote box
near the pursuer's van on the day of the accident before the pursuer made his
deliveries. However I am persuaded that
the box, which the pursuer was lifting when he was injured, weighed
approximately 22 kg. Ms Julie
Whitehead, a manager of the post room in the Department for International
Development in London, gave evidence of their system of noting the weight of
the packages which they dispatched using
the defenders' services. She spoke to a
manuscript note, which was taken from the consignment log which her staff
completed, dated
[6] I therefore do not accept the pursuer's estimate of the weight of the box. There was also a dispute as to whether the height of the roof of the van required the pursuer to crouch when lifting the box. The pursuer's evidence was contradicted by both Mr Grierson and Mr Ferrier (whom I mention in paragraph 8 below). While the pursuer may be correct that he stooped when lifting the box, I am not prepared to accept that it was necessary for him to do so. Nor am I satisfied that the pursuer's evidence, that he felt that something had moved within the box as he lifted, is sufficient to allow me to conclude that he was correct and that something did move. But I am otherwise generally satisfied that his evidence about the occurrence of the accident is reliable. It is supported by a contemporaneous accident report and the occurrence of an accident on that date is supported by the evidence of Mr Robert Smith and Mr Grierson.
[7] The pursuer suffered a sharp pain in his lower back on the right hand side. After the Department had taken delivery of their consignment, the pursuer drove to Hairmyres Hospital. There, doctors advised him to rest and not to lift anything for about four weeks. He was given pain killers and after about fourteen days started a course of physiotherapy. He was absent from work for about fifteen and a half weeks. He suffered some stiffness and pain after he resumed his employment.
[8] As
I am satisfied that the weight of the box was about 22 kg, no issue arises
about the lifting of weights in excess of the guideline weights set out in the
Health and Safety Executive's Guidance on the Regulations ("the HSE
Guidance"). Nonetheless, it is clear
that manual handling operations are frequently the cause of accidents and
employers are required to take steps to train their employees who carry out
such operations in safe handling techniques in order to reduce the risk of
injury. I accept that, as the defenders'
operations manager in Glasgow, Mr Brian Grierson, explained in evidence,
the defenders have a good record for health and safety, have achieved a
five-star accreditation from the Health and Safety Executive in their
[9] The
pursuer received training in manual handling on
[10] The lack of refresher training in manual handling is, in my opinion, significant in this case. First, it is clear from the HSE Guidance that manual handling accidents account for more than one-third of the accidents reported to the authorities each year. Secondly, the defenders' own risk assessment carried out at their Glasgow depot in February 2002 on the loading and unloading of vehicles identified that there was a medium risk of injury from the operations and recommended that the way to reduce the risk was to adopt correct manual handling techniques. While I accept that the defenders had a practice of placing driver's handbooks in their lorries and vans and that the handbooks included guidance on safe manual handling, it appears to me that the refresher courses which the defenders had in place were an important conduit of information to their employees on, among other topics, safe manual handling.
Submissions
[11] Mr Christine, for the
pursuer, submitted that the defenders were in breach of Regulation 4(1)(a) of the 1992 Regulations
and, as a fall back, he submitted that they were in breach of Regulation
4(1)(b) of those Regulations. There was
no dispute that the pursuer was involved in a manual handling operation. He invited me to accept the pursuer's account
of the accident as credible and reliable.
There was, he submitted, a risk of injury in the sense that injury was a
foreseeable possibility. In this regard
he referred me to
[12] Mr Bowie for the defenders submitted that the pursuer was neither credible nor reliable and that he had failed to establish the circumstances of his accident. The pursuer had exaggerated the weight of the box and was simply incorrect in suggesting that he required to stoop in the back of the van. The pursuer's allegations that the contents of the box moved and that he had to stoop to lift it were not made at the time of the accident but emerged only later. There may have been an eye witness to the accident as he had passed the packages out of the van to an employee of the Department for International Development but the pursuer had led no corroborating evidence.
[13] Mr Bowie accepted that the operation on which the pursuer was engaged was a manual handling operation and he accepted Mr Christine's analysis of the case law. He submitted that the defenders had demonstrated that it was not possible to avoid manual handling operations altogether in unloading their vans: their risk assessment and the evidence of Mr Ferrier supported this conclusion. There was therefore no breach of Regulation 4(1)(a). In relation to Regulation 4(1)(b) he submitted that the weight of the box was well within what the defenders accepted as the safe limit of 25 kg. The lifting operation of which the pursuer spoke was a straightforward one for a reasonably fit man to carry out when standing close to the boxes. The pursuer might not have had the refresher training on manual handling in 2003 but he had had two courses in 1997 and he would have known how to carry out a simple lifting exercise where the box was being lifted from a position above his knees. He also had the driver's manual in his van. It was not reasonably practicable to use a sack barrow to move the box from the middle to the back of the van. He referred me to Kelly v Forticrete Limited [1999] EWCA Civ 1202 and sought to distinguish it. He invited me to infer that, from his training, the pursuer knew what to do and either unnecessarily stooped or, acting too hastily, snatched at the box and caused the accident. There were no other practicable ways of reducing the risk of injury from this particular manual handling operation.
Decision
[14] I do not accept that the pursuer's suggestion that the contents of the box moved as he lifted it in the absence of further explanation as to how that occurred. Nevertheless, I accept that he was injured when attempting to lift the 22 kg box in the back of his van from near the wheel arch. I am satisfied that the operations which the pursuer required to undertake in loading and unloading his van, on a regular basis and on the date of his accident, involved the risk of his being injured. I am also satisfied that it was not reasonably practicable to avoid the need for such manual handling operations. Regulation 4(1)(b)(ii) of the 1992 Regulations is therefore relevant. It places the burden on the defenders of showing that they have taken appropriate steps to reduce the risk of injury to employees engaged in manual handling operations to the lowest level reasonably practicable. See Davidson v Lothian and Borders Fire Board (above).
[15] I am satisfied that the defenders were in breach of regulation 4(1)(b)(ii) of the 1992 Regulations as the holding of refresher courses was an important part of the steps which they took to reduce the risk of injury from manual handling operations. The pursuer had not attended such a course on manual handling and the defenders' training record summary showed that he had not. Although his job involved lifting packages on a daily basis, he had not received training on safe lifting techniques since 1997. While I accept that the operation which the pursuer carried out was a straightforward one, many injuries from lifting operations occur in straightforward operations. It was and is important that employers should remind their employees of safe lifting techniques and discourage casual practices that cause injury. The defenders, recognising this, had introduced a system of courses. Unfortunately in the pursuer's case the system broke down and so put the defenders in breach of Regulation 4(1)(b)(ii).
[15] It is likely that that failure contributed to the accident. While the pursuer had received training in manual handling in 1997 and appears then to have understood the principles to be applied, I consider it likely that the reinforcement of safe practice at refresher courses would have encouraged him to adopt the appropriate posture and lifting techniques, which in this case he appears not to have adopted.
[16] For completeness, I comment on the possible use of a sack
barrow. There was evidence that such
barrows were available at the
[17] I therefore award the pursuer £6,650 in damages together with
interest at the judicial rate from