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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:
ннннннннннннннннн________________
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Pursuer:
Mr Christine, Advocate; Thompsons
Defenders: Mr Bowie, Advocate; Simpson & Marwick
22 September
2006
Introduction
[1] This
is an action for damages for personal injuries sustained in the course of
employment. Although the pursuer pleaded
a case at common law, after proof he insisted only in his case under Regulation
4 of the Manual Handling Operations Regulations 1992 as amended ("the 1992
Regulations"). Regulation 4 (so far as
relevant) provides:
"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 г6,650 inclusive of interest to 13 June 2006. Accordingly the only issues for determination
are whether the defenders were in breach of their statutory duties under Regulation
4 of the 1992 Regulations and if so whether that breach caused the pursuer the
injuries for which he claims damages.
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 29 March
2004, he was instructed to take a consignment of goods by Mercedes
Sprinter van from the defenders' Glasgow
depot to the offices of the Department for International Development in East
Kilbride. The consignment,
which was numbered 39150691 in the defenders' consignment system, comprised
five items which had a total weight of about 59 kilograms. The consignment consisted of two packages and
three green tote boxes, which measured approximately 60 cm by 30 cm
by 30 cm. When he was manoeuvring
the second or third of the boxes out of the van at the premises of the Department
for International Affairs the pursuer injured his back. He described the accident in the following
way.
[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 26 March 2004
and marked with the consignment number 3915096910. It was thought that the last zero in the
number was an error and that the consignment note referred to the consignment
that the pursuer delivered to the Department's East Kilbride
office on 29 March 2004. The consignment comprised five items and its
total weight was noted as 60 kg, which may have reflected a rounding up of
the aggregate of the weights of the packages.
The heaviest box was recorded as being 22 kg. I accept her evidence and am satisfied on
balance of probabilities that the manuscript consignment note accurately
recorded the weight of the packages and that the package which the pursuer
lifted when he injured himself weighed about 22 kg. Ms Whitehead also explained that she had been
informed that the Department's contract with the defenders stipulated that
individual packages were not to exceed 25 kg.
[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 Glasgow
depot and other depots, and have instituted training courses which include
training in manual handling. He
emphasised the importance of manual handling training and of refresher
courses. The defenders also had driver's
handbooks, which among other things described safe lifting practice and which
were placed in their lorries and vans. Mr Campbell
Ferrier, a general manager at the defenders' Durham
and Teesside depots, who formerly worked at the Glasgow
depot, also confirmed the importance of manual handling training and refresher
courses to the defenders' operations as it was not possible to eliminate manual
handling operations in delivering parcels and boxes by van.
[9] The
pursuer received training in manual handling on 13 May 1997 when he worked for TNT Newsfast (which
appeared to be an associated company of the defenders) and, when he transferred
to TNT Express, he received further training in manual handling as part of a
regional induction course on 6 August
1997. The pursuer gave
evidence that since then he received no further training in manual
handling. The defenders' training record
summary relating to the pursuer supported the pursuer's evidence as it revealed
that he had not attended a refresher course on manual handling and dangerous
goods held on 25 September 2003
but that he had attended a refresher course on fire procedures on that
date. Thus his signature on a form for
attendance at the refresher course on that date, on which the defenders relied,
is explained by his taking part in only the fire procedures training which was
given by a Mr John Lawless. I
accept the pursuer's evidence on this matter.
[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 Anderson v
Lothian Health Board 1996 Rep LR 88, paragraph 21-07, Cullen v North Lanarkshire Council 1998 SC 451, 455F-H and Taylor v
Glasgow City Council 2002 Rep LR 70, paragraph 13-17. In view of that risk from a manual handling
operation, the burden of proof under Regulation 4(1)(a) shifted to the
defenders to prove that it was not reasonably practicable to avoid the need for
the operation: Hall v City of Edinburgh Council
1999 SLT 744, 747A-C. They had failed to
plead and prove that it was not reasonably practicable to avoid a manual
handling operation when removing the box for the van. They were therefore, he submitted, in breach
of Regulation 4(1)(a). In any event, he
submitted that the defenders were in breach of Regulation 4(1)(b). Given the risk of injury the burden of proof
shifted to the defenders to show that they had taken appropriate steps to
reduce the risk of injury to the lowest level reasonably practicable: Davidson v Lothian and Borders Fire Board 2003 SLT 939, paragraph [22]. The defenders' system of training and
refresher courses was designed to reduce the risk of injury but in the
pursuer's case he had not received relevant training in seven years. Nor had the defenders demonstrated that it
was impracticable to have used a sack barrow in order to minimise the number of
manual handling operations in the unloading of the van.
[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 Glasgow
depot and could have been used by a driver if he required one. It might have been possible for a driver to
use a sack barrow in a van but I think that it is unlikely that a careful
driver would have done so in the circumstances of this case in order to move a
box which was on top of another box and which was within the weight limit
imposed by the defenders. I am not
satisfied that under Regulation 4(b) it was incumbent on the defenders to
require their drivers to use sack barrows in such circumstances, provided that
the employees were trained in and periodically reminded of safe manual handling
techniques.
[17] I therefore award the pursuer г6,650 in damages together with
interest at the judicial rate from 14 June
2006 until payment.
