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FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Philip

Lord Eassie

[2007] CSIH 32

A887/03

OPINION OF THE LORD PRESIDENT

RECLAIMING MOTION

in the cause

MARGARET HUGHES

Pursuer and Reclaimer;

against

GRAMPIAN COUNTRY FOOD GROUP LIMITED

Defenders and Respondents

_______

Act: Campbell, Q.C., Heaney; Thompsons

Alt: A. Smith, Q.C., Duncan; Simpson & Marwick

18 May 2007

[1] The reclaimer has, since about 1991, been employed by the respondents as a process worker at their factory premises at Cambuslang. Her work involves her in a variety of activities, including trussing the wings and legs of chicken carcasses using elastic strings. In about 2000 she developed carpal tunnel syndrome in her left wrist which was aggravated by her work conditions. She seeks damages for personal injuries from the respondents in respect of this aggravation.

[2 ] The Lord Ordinary assoilzied the respondents but expressed a view on the value of the claim. He found that the aggravation of symptoms was relatively short lived: it commenced at about the beginning of December 2000, involved a first visit to the reclaimer's doctor on 22 January 2001 and was resolved by a successful operation as a day patient on 24 March 2001. The Lord Ordinary assessed solatium at £900, inclusive of interest. He also assessed damages for loss of earnings and for necessary services in modest amounts - £563 and £300 respectively.

[3 ] The reclaimer's case in her pleadings proceeds upon both common law and upon an alleged breach of statutory duty under Regulation 4 of the Manual Handling Operations Regulations 1992. Before the Lord Ordinary her claim, in so far as based at common law, was abandoned. The Lord Ordinary held that her case under the Regulations was not established. Against the decree of absolvitor consequentially pronounced this reclaiming motion has been taken.

[4 ] As part of her proof the reclaimer put in evidence a video recording (No. 6/1 of process). Although this recording was made on 21 November 2003 and showed another employee working at the trussing line, the reclaimer stated without elaboration in evidence that this was the way she worked and that the video accurately showed how she trussed chicken carcasses. The Lord Ordinary accepted that statement as accurate. In his Opinion (at paragraph [35]) he describes what is shown on the recording as follows:

"The video initially shows the employee picking up a carcass from the work bench beside her and placing it on the work bench in front of her. While the carcass is on the work bench in front of her, she manipulates the legs and wings of the carcass, and then applies elasticised string around the carcass before tossing it onto a moving conveyor belt. After the first four chicken carcasses, which appear to have been picked up by the employee from the work bench beside her, she begins to lift carcasses from shackles on a conveyor belt at approximately head height above the work bench and take each carcass in turn to manipulate and truss it on the work bench in front of her. From taking the carcass from the work bench or from the shackle, through the process of manipulation and to the point at which the trussed carcass is thrown onto the lower conveyor belt takes approximately 11 or 12 seconds per carcass. Of this time it appears that less than one second is taken in lifting the carcass from the shackle to the work bench, and only a fraction of a second is taken in throwing the trussed carcass onto the conveyor belt. While the carcass is being manipulated and trussed, the employee is working on it while the carcass is on the work bench, or picks it up for a moment to apply the trussing string around it before placing it back on the work bench".

[5 ] The Lord Ordinary found that there was a sufficient causal link between the reclaimer's work (the manipulation of chicken carcasses) and the exacerbation of her symptoms. At the proof it was conceded by counsel for the respondents that there was a reasonably foreseeable risk of injury. The remaining issue between the parties was whether the Regulations applied to the work on which the reclaimer was engaged.

[6 ] The Regulations (1992 SI 2793) were made under powers conferred under the Health and Safety at Work etc. Act 1974. They were devised with a view to implementation of the United Kingdom's obligations under various European Directives to which I shall return.

[7 ] Regulation 2 provides that

"'load' includes any person and any animal"

and that

"'manual handling operations' means any transporting or supporting of a load (including the lifting, putting down, pushing, pulling, carrying or moving thereof) by hand or by bodily force".

Regulation 4 provides:

"(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 handling operations at work which involve a risk of their being injured; -

[take certain steps including the making of an assessment and the taking of steps to reduce the risk of injury]."

In making an assessment an employer is required to have regard to the factors specified in column 1 of Schedule 1 to the Regulations and to consider the questions specified in the corresponding entry in column 2 of that Schedule. Schedule 1 is in the following terms:

"Column 1

Factors

Column 2

Questions

1. The tasks

Do they involve:

-holding or manipulating loads at distance from trunk?

-unsatisfactory bodily movement or posture, especially:

-twisting the trunk?

-stooping?

-reaching upwards?

-excess movement of loads, especially:

-excessive lifting or lowering distances?

-excessive carrying distances?

-excessive pushing or pulling of loads?

-risk of sudden movement of loads?

-frequent or prolonged physical effort?

-insufficient rest or recovery periods?

-a rate of work imposed by a process?

2. The loads

Are they:

-heavy?

-bulky or unwieldy?

-difficult to grasp?

-unstable, or with contents likely to shift?

-sharp, hot or otherwise potentially damaging?

3. The working environment

Are there:

-space constraints preventing good posture?

-uneven, slippery or unstable floors?

-variations in level of floors or work surfaces?

-extremes of temperature or humidity?

-conditions causing ventilation problems or gusts of wind?

-poor lighting conditions?

4. Individual capability

5. Other factors

Does the job:

-require unusual strength, height, etc?

-create a hazard to those who might reasonably be considered to be pregnant or to have a health problem?

-require special information or training for its safe performance?

Is movement or posture hindered by personal protective equipment or by clothing?"

[8 ] Having reviewed the statutory provisions and referred to certain decisions in the Outer House, the Lord Ordinary observed at paragraph [39]:

"In the present case, on the basis of the video evidence, it appears that the removal of a chicken carcass from the upper shackle to the work bench might be categorised as a manual handling operation, involving as it does both elements of transporting and supporting of a load. It may also be that the action of throwing the trussed carcass onto the lower conveyor belt can be categorised as transporting or supporting of a load by hand or by bodily force. However, there is no suggestion that the pursuer sustained any injury or exacerbation of symptoms as a result of either of these steps. Her complaint was focused on the repetitive movements of the wrist, hands and fingers in the manipulation of the chicken carcass, by tucking in the legs and wings and tying it with elasticated trussing string. While this manipulation was being performed, there was no transporting or supporting of a load".

[9 ] He then noted that counsel then appearing for the reclaimer had attempted to characterise the activity on the trussing line as one single operation, involving the transporting and supporting of the chicken carcass from its initial position on the upper shackle via the work bench to the lower conveyor belt. The Lord Ordinary rejected that characterisation observing that a task cannot be transformed into a manual handling operation by looking at the surrounding context.

[10 ] The approach adopted on the reclaimer's behalf in the Outer House was expressly departed from before us by Mr. Campbell. He invited us to hold that throughout the reclaimer's activity with any chicken carcass there was but one short time (about two seconds - while she stretched and retrieved an elastic band, the carcass then resting on the work surface) when her actions did not constitute manual handling as envisaged by the Regulations. At all other times in the course of a trussing cycle she was "supporting" the carcass by hand or by bodily force. Arrangements were made for us to view the video recording in the course of the reclaiming motion. Mr. Campbell invited us, on the basis of our observations of it, to conclude that the Lord Ordinary had erred in the factual conclusions which he had drawn. In particular, he challenged the Lord Ordinary's conclusion at the end of paragraph [39] that, while the manipulation (the repetitive movements of the wrists, hands and fingers in manipulation of the chicken carcass, by tucking in the legs and wings and tying it with elasticated trussing string) was being performed, "there was no transporting or supporting of a load". I shall in due course return to consider whether it is in the circumstances open to this court to review that finding. First, however, it is appropriate to address the interpretation of the Regulations.

[11 ] By Directive 89/391/EEC ("the Framework Directive") the Council of the European Communities addressed the Member States on the introduction of measures to encourage improvements in the safety and health of workers at work. Article 1 provided:

"1. The object of this Directive is to introduce measures to encourage improvements in the safety and health of workers at work.

2. To that end it contains general principles concerning the prevention of occupational risks, the protection of safety and health, the elimination of risk and accident factors, the informing, consultation, balanced participation in accordance with national laws and/or practices and training of workers and their representatives, as well as general guidelines for the implementation of the said principles.

3. This Directive shall be without prejudice to existing or future national and Community provisions which are more favourable to protection of the safety and health of workers at work".

Article 5.1 imposed a duty on employers to ensure the safety and health of workers in every aspect related to the work. Article 6 provided:

"1. Within the context of his responsibilities, the employer shall take the measures necessary for the safety and health protection of workers, including prevention of occupational risks and provision of information and training, as well as provision of the necessary organization and means.

The employer shall be alert to the need to adjust these measures to take account of changing circumstances and aim to improve existing situations.

2. The employer shall implement the measures referred to in the first subparagraph of paragraph 1 on the basis of the following general principles of prevention:

(a) avoiding risks;

(b) evaluating the risks which cannot be avoided;

... ".

Article 16.1 provided that the Council should adopt individual Directives, inter alia, in the areas listed in the Annex. Among the areas so listed was "Handling of heavy loads involving risk of back injury". Article 16.3 provided that the Directive should apply in full to all the areas covered by the individual Directives, without prejudice to more stringent and/or specific provisions contained in these individual Directives.

[12 ] In furtherance of Article 16(1) of the Framework Directive the Council made Directive 90/269/EEC ("the Manual Handling Directive"). Article 1 provided:

"1. This Directive, which is the fourth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC, lays down minimum health and safety requirements for the manual handling of loads where there is a risk particularly of back injury to workers.

2. The provisions of Directive 89/391/EEC shall be fully applicable to the whole sphere referred to in paragraph 1, without prejudice to more restrictive and/or specific provisions contained in this Directive."

Article 2 provided:

"For the purposes of this Directive, 'manual handling of loads' means 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 ergonomics conditions, involves a risk particularly of back injury to workers".

Article 3 provided:

"1. The employer shall take appropriate organizational 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 manual handling of loads by workers cannot be avoided, the employer shall take the appropriate organizational 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, having regard to Annex 1".

Annex 1 provided the following reference factors:

"1. Characteristics of the load

The manual handling of a load may present a risk particularly of back injury if it is:

-too heavy or too large,

-unwieldy or difficult to grasp,

-unstable or has contents likely to shift,

-positioned in a manner requiring it to be held or manipulated at a distance from the trunk, or with a bending or twisting of the trunk,

-likely, because of its contours and/or consistency, to result in injury to workers, particularly in the event of a collision.

2. Physical effort required

A physical effort may present a risk particularly of back injury if it is:

-too strenuous,

-only achieved by a twisting movement of the trunk,

-likely to result in a sudden movement of the load,

-made with the body in an unstable posture.

3. Characteristics of the working environment

The characteristics of the work environment may increase a risk particularly of back injury if:

-there is not enough room, in particular vertically, to carry out the activity,

-the floor is uneven, thus presenting tripping hazards, or is slippery in relation to the worker's footwear,

-the place of work or the working environment prevents the handling of loads at a safe height or with good posture by the worker,

-there are variations in the level of the floor or the working surface, requiring the load to be manipulated on different levels,

-the floor or foot rest is unstable,

-the temperature, humidity or ventilation is unsuitable.

4. Requirements of the activity

The activity may present a risk particularly of back injury if it entails one or more of the following requirements:

-over-frequent or over-prolonged physical effort involving in particular the spine,

-an insufficient bodily rest or recovery period,

-excessive lifting, lowering or carrying distances,

-a rate of work imposed by a process which cannot be altered by the worker".

[13 ] Mr. Campbell submitted that the Framework Directive set a "goal setting" objective to be achieved with reference to the health and safety of workers. It was to be given a purposive construction. The circumstance that that Directive envisaged work dealing with the handling of heavy loads involving a risk of back injury did not restrict the scope of the "daughter" Directive or of national regulations made in furtherance of it to "heavy" loads or to the risk of "back injury". The Manual Handling Directive referred to "particularly of back injury", pointing to injury of that kind not being its exclusive scope. The national Regulations went further. Schedule 1 included questions such as "Are [the loads] sharp, hot or otherwise potentially damaging", which went beyond any risk occasioned by the bearing of weight. The Regulations should be given a broad and purposive construction consistent with the objective of protecting employees from harm; the intention was to heighten the obligation on the employer beyond the duty at common law of reasonable care (Mains v Uniroyal Englbert Tyres Limited 1995 SC 518, especially per Lord Sutherland at page 531D and Lord Johnston at page 535G). An ergonomic approach was required (Taylor v City of Glasgow Council 2002 SC 364, per Lord Reed at page 371D-H; reference was also made to Lord Marnoch at page 366 and Lord Carloway at pages 372-4 and 378-9). A similar purposive approach to parallel regulations could be seen in Robb v Salamis (M and I) Limited 2006 SLT 158. It would be bizarre if the trussing operation (which was conceded to give rise to a foreseeable risk of injury, which risk had been foreseen by the employers as giving rise to the risk of repetitive strain injury) was not covered by this or apparently by any other Regulations made in furtherance of the Directives. Watkinson v British Telecommunications plc 1996 SLT 72 had been decided under the (now repealed) section 72 of the Factories Act 1961; it would be surprising if under the Manual Handling Regulations a worker had less protection. In the definition of "manual handling operations" the words in parenthesis were expansive of the expression "transporting or supporting". Thus, moving of any object manually would, if done by an employee, involve a manual handling operation. That would include a seamstress lifting and replacing a needle, a librarian turning the page of a book, an employee switching on or off an electrical switch. "Load" required to be given a wide meaning (McIntosh v City of Edinburgh Council 2003 SLT 827). In King v Carron Phoenix Limited 1999 Rep LR 51 (which the Lord Ordinary had followed) Lord Kingarth had given an unduly restrictive interpretation to the Regulations. Guidance on Regulations issued by the Health and Safety Executive (which indicated that an implement, tool or machine, such as a chainsaw, fire hose or breathing apparatus was not considered to be a load when in use for its intended purpose) was not authoritative. Reference was made to R v Wandsworth London Borough Council [1996] 3 All ER 913. The Guidance was itself internally inconsistent; reference was made to paragraphs 24 and 26. There was no warrant for construing "load" or "manual handling operations" with reference to the purpose of the activity. Lady Smith had been in error in McFarlane v Ferguson Shipbuilders Limited 2004 Rep LR 78 where she had relied upon the purpose for which the grinder was being used. In Mitchell v Inverclyde District Council (31 July 1997, unreported) Lord Cameron of Lochbroom had held that the Regulations did not apply to a grass cutting operation with a rotary mower. But the ratio of that decision was not clear. The running of a rotary motor over a surface did involve "moving a load" and was accordingly within the scope of the Regulations. Lord Brodie in McFarlane v Corus Construction and Industrial 2006 SLT 375 at para. [51] had, in relation to the moving of a barrowbuff across a surface to grind out defects, followed Mitchell, King and McFarlane. He had been in error in doing so. He had further erred in concluding that the activity did not fall within these Regulations because it fell within other Regulations. In any event, the present activity did not fall within any other Regulations. The risk arising, provided it was foreseeable, need not be one arising from the load (Cullen v North Lanarkshire Council 1998 SC 451). Thus, an employed seamstress, engaged in a manual handling operation by virtue of the lifting and replacing of her needle would have a remedy if she pricked her finger. Reference was also made to King v RCO Support Services Limited [2001] ICR 608 and Purdie v Glasgow City Council 2001 Rep LR 26. It was inappropriate to break down the operation on which the reclaimer was engaged into different parts. It was a continuous process amounting to a manual handling operation - see Jaffray v Grampian Test and Certification Limited 2006 Rep LR 112. The Lord Ordinary in stating (towards the end of paragraph [35]) that the employee "picks [the chicken carcass] up for a moment" had failed to apply his mind properly to the evidence - particularly to what was disclosed by the video recording. Reference was made to Thomas v Thomas 1947 SC (HL) 45. There had been no evidence led to contradict that given by the reclaimer and by the expert witnesses led on her behalf. The most favourable construction should accordingly be given to that evidence (Ross v Associated Portland Cement Manufacturers Limited [1964] 1 WLR 768; O'Donnell v Murdoch McKenzie & Co. 1967 SC (HL) 63). The Lord Ordinary should be reversed on the basis that it clearly appeared from the evidence that the reclaimer was engaged in an operation which involved supporting and moving the chicken carcasses or, more generally, on the view that "load" and "supporting and transporting" were not to be construed restrictively, the Lord Ordinary being wrong to follow King v Carron Phoenix Limited and McFarlane v Ferguson Shipbuilders Limited.

[14] Mr. Smith for the respondents submitted that the case now advanced by the reclaimer was that, if there were some elements of pushing or pulling of the carcasses in the course of trussing them and if such trussing involved some foreseeable possibility of injury, the respondents were liable in damages. The respondents' position had always been that this was not a manual handling operation. They adhered to that position. Having regard to well-known principles of review (Thomas v Thomas), it could not be said that any basis for opening up the Lord Ordinary's factual conclusions had been demonstrated. The Lord Ordinary had seen and heard the evidence, including seeing the video, with such commentary as the reclaimer's expert witnesses had offered to it. It was inconsistent with established principles that the Inner House should be asked to view the video and reach its own independent factual conclusions on it. One could not have a trial by video. It was clear from the Lord Ordinary's Opinion that he had not regarded the reclaimer as wholly reliable. Moreover, the reclaimer's experts had not in evidence focused upon those aspects (pulling, pushing and supporting of the carcasses) upon which reliance was being placed in the reclaiming motion. It could not be said that the Lord Ordinary had gone plainly wrong in the factual conclusions at which he had arrived. It was accepted that the Regulations should be given a purposive construction but an interpretation which led to an absurd result should be rejected. Commonsense should be applied. It was not contended that the Regulations only extended to back injury cases but the type of injury which they were directed against was that caused by an excessive load or repeated loads. There were two questions to be asked in a case of this kind, namely, (1) whether the activity was a "manual handling operation" and (2) whether it gave rise to a foreseeable risk of injury, which need not itself arise directly from the load-bearing (Cullen v North Lanarkshire Council, where it had been conceded that (1) was satisfied). It was not contended that Cullen had been wrongly decided but the court might entertain some doubts about the soundness of the concession. But the answer to (2) might inform the answer to (1). The notion of risk of injury ran through the Regulations. In the present case any load-bearing was purely incidental to the trussing. In King v RCO Support Services Limited the employee had been carrying and spreading grit; that was clearly manual handling, albeit the risk of injury was presented by the icy surface of the yard. The purpose of the Regulations was the avoidance of risk through the bearing of a load (a single heavy load or a repeated sequence of load-bearing). As to the evidence in the case, the reclaimer had not been taken through her work pattern on a step-by-step basis and asked to compare it with what was to be seen on the video recording. The experts in commenting on the video recording had not suggested that there was significance in any weight-bearing involved in the trussing of the carcasses. Their focus had been on the manipulation with the fingers, hands and wrists. The Guidance Note issued by the Health & Safety Executive had no legal status. King v Carron Phoenix Limited and McFarlane v Ferguson Shipbuilders Limited had been correctly decided. Lord Brodie's use of the parallel Regulations in McFarlane v Corus Construction and Industrial at para. [51] had been legitimate; it was not, however, legitimate to argue that because the situation did not appear to fall within any other Regulations, it must fall within the Manual Handling Regulations. In Purdie v Glasgow District Council it had in effect been conceded that the Manual Handling Regulations applied. The reclaiming motion should be refused.

[15 ] In my opinion it is necessary for the purpose of deciding this reclaiming motion to form a view as to the scope of the term "manual handling operations" employed in the Regulations. The language used, if considered in isolation, is open to more than one interpretation but an interpretation of an ambiguous provision which leads to absurd results is to be avoided. The wide construction urged by Mr. Campbell does, in my view, lead to absurd results. It would offend against commonsense to suppose that the framers of the Regulations intended to bring within its scope the activities of the seamstress lifting and replacing her needle, the librarian turning the pages of a book or the employee throwing an electrical switch. Indeed, the retrieving by the chicken trusser of the trussing string, which according to Mr. Campbell would not be a manual handling activity, would on his argument also fall within that class. Accordingly, unless compelled by the absence of any tenable alternative, I am disposed to reject Mr. Campbell's construction, which would appear to make virtually every human activity, other than the purely cerebral, one of manual handling.

[16 ] It is common ground that the Regulations were made in furtherance of the obligations incumbent on the United Kingdom under the Framework and the Manual Handling Directives. It is a familiar rule that the domestic court must seek to interpret national law to achieve the same result as is intended by the relevant provision of EU law, where it is reasonably possible to do so (Robb v Salamis (M & I) Limited, per Lord Hope of Craighead at para. 14, and earlier authorities there referred to). Often, as in Robb, the issue will be concerned with the extent of the protection within an undisputed field. Here the issue is rather the extent of the field, namely, the scope of the activities which are "manual handling operations". Bearing in mind that the Directives provide for minimum requirements and that accordingly the Member State may choose to make wider provision, it is nonetheless legitimate, in construing the Regulations, to have regard to the terms and apparent scope of the Directives.

[17 ] The Framework Directive by Article 16 provided that the Council would adopt "daughter" Directives inter alia in the areas listed in the Annex to it. Such areas were so listed, the fifth of which was "Handling of heavy loads involving risk of back injury". Accordingly the mechanism adopted for guaranteeing a better level of protection of the safety and health of workers was, in addition to imposing the general obligations under the Framework Directive, the prospective adoption of "daughter" Directives in relation to seven, or possibly more, discrete though conceivably overlapping areas. The fifth area identified a readily comprehensible source of risk to the health and safety of workers, namely, the risk of back injury presented by the handling of heavy loads. In that context it is plain that the loads which were contemplated were burdens which by their weight (in the ordinary rather than in any scientific sense) presented a risk to humans handling them.

[18 ] The relevant "daughter" Directive provided a definition of "manual handling of loads" namely, as meaning

"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".

It dispensed with the concept of "heavy" loads and, while identifying the risk of back injury as being of particular concern, did not limit the scope of the protection to operations which gave rise to the risk of that specific injury. It identified the type of load which would give rise to a "manual handling of loads" as being that which "by reason of its characteristics or unfavourable ergonomic conditions" involved the risk in question. The reference factors set out in Annex 1 to that Directive elaborated upon the characteristics of a load, or the unfavourable ergonomic conditions in relation to its transportation or support, which were regarded as relevant. All of these point to an activity which by its intrinsic characteristics or its positional or similar circumstances, gives rise to a risk of injury by reason of the transporting or supporting of a load as that term would be understood in ordinary parlance.

[19 ] The framer of the Regulations adopted a somewhat different approach to the definition of the relevant operation. The concept of risk was transferred out of the definition of the operation into the terms of the obligation imposed on the employer (Regulation 4(1)(a)). The reference to back injury was omitted. The factors and questions set forth in Schedule 1 differ to some extent from those in Annex 1 to the Manual Handling Directive. A definition of "load" was provided - but only to the extent of making it plain that animate as well as inanimate objects might be a load. But these differences are not, in my view, such as to point to the Regulations having a radically different scope from the Directives in implement of which they were made.

[20 ] In none of the Framework Directive, the Manual Handling Directive or the Regulations (except in the case of the last to the limited extent indicated) was "load" defined. But none of the contexts in which that expression is used supports the concept that it is used in a scientific as distinct from an ordinary sense - of something which, by its weight, in the context of how it is being handled, presents a risk of injury. While the Regulations can and may give wider protection than either of the Directives, the scope does not extend in my view as far as Mr. Campbell contended. I am not persuaded that the terms of the Schedule support Mr. Campbell's argument. He relied in particular upon the fifth question "[are they] -sharp, hot or otherwise potentially dangerous?" against the relevant factor "the loads". But a load which is sharp, hot or otherwise potentially dangerous may present greater risk than an equivalent load which does not have those characteristics. That does not detract from "load" having the intrinsic characteristic of weight in the ordinary sense.

[21 ] Accordingly, although it may be difficult to define with exactness the scope of the Regulations, in any particular case their applicability or otherwise must be determined as a practical exercise by the use of commonsense. It may be that in some circumstances the purpose for which the item in question is being used may be of some assistance (see Lady Smith's approach in McFarlane v Ferguson Shipbuilders Limited) - though I would not regard the purpose of the activity as a conclusive test. I agree with Lord McEwan in McIntosh v City of Edinburgh Council that a heavy object may be a load, notwithstanding that at it may also be a tool. In so far as the Guidance issued by the Health and Safety Executive suggests the contrary, I have serious doubts as to its soundness; but it is unnecessary for present purposes to express any concluded view on that matter. I agree with the conclusions reached by Lord Cameron of Lochbroom in Mitchell v Inverclyde District Council and by Lord Kingarth in King v Carron Phoenix Limited in the circumstances of these respective cases.

[22 ] Against that interpretative background it is necessary to consider the present circumstances. The case for the reclaimer as advanced in the Outer House did not focus upon any weight-bearing aspect of the trussing part of the reclaimer's activity. Her own evidence was restricted to general testimony that what she did was as depicted in the video recording. That recording was played several times in the course of the proof and commentary on it was offered by the experts led on the reclaimer's behalf. These experts also spoke to reports which they had prepared for the purposes of the litigation. Although in the course of that testimony expressions such as "supporting", "moving", "lifting" and "turning" are incidentally used with reference to the operative's manipulation of the carcasses, the thrust of the testimony is directed to her repetitive flexing movements (in the wrists, hands and fingers) in the course of that operation. No attention was given to the weight of the chicken or to any weight-bearing giving rise to any risk of injury. Indeed no evidence was led as to the weight of any typical carcass. The basis on which counsel for the reclaimer in the Outer House presented the case for the application of the Regulations was dependent on the trussing being brought within them by virtue of the manhandling of the carcasses before and after the trussing was done.

[23 ] Regard being had to the way in which the case was presented in the Outer House, the Lord Ordinary was, in my view, well entitled to describe the operation in the way that he did in paragraph [35], including describing the employee as "working on it while the carcass is on the work bench, or picks it up for a moment to apply the trussing string around it before placing it back on the work bench". He was also well-entitled, having seen and heard the evidence, to conclude, as he did in paragraph [39], that "[while] this manipulation was being performed, there was no transporting or supporting of a load".

[24 ] Before us, the video recording was played and much reliance was put upon what, it was claimed, was evident from a simple viewing of it. We were not addressed on any authority as to the use which a fact-finding body may properly make of such material in the absence of focussed commentary on it by a witness. In the criminal field there is a line of authority on this matter - Steele v H.M. Advocate 1992 SCCR 30, Gray v H.M. Advocate 1999 SCCR 24 and Donnelly v H.M. Advocate 2000 SCCR 861. That line suggests, at least in relation to crucial matters of fact, a somewhat restrictive approach to what may be taken by the decision-maker from unassisted observation. I find it unnecessary and, in the absence of the benefit of argument, inappropriate to express a view as to the use of video recorded evidence in civil proceedings.

[25] The primary decision-maker in this case was the Lord Ordinary. He saw and heard the evidence, including seeing the video recording, and reached certain conclusions of fact and of fact and law based on it. I am not persuaded that it has been demonstrated that the Lord Ordinary failed to take proper advantage of having seen and heard the evidence, or that there is any other basis upon which this court could hold that he was not entitled to conclude that the operation on which the reclaimer was engaged was not a "manual handling operation" within the meaning of the Regulations.

[26 ] For these reasons I move your Lordships to refuse this reclaiming motion.

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Philip

Lord Eassie

[2007] CSIH 32

A887/03

OPINION OF LORD PHILIP

RECLAIMING MOTION

in the cause

MARGARET HUGHES

Pursuer and Reclaimer;

against

GRAMPIAN COUNTRY FOOD GROUP LIMITED

Defenders and Respondents

_______

Act: Campbell, Q.C., Heaney; Thompsons

Alt: A. Smith, Q.C., Duncan; Simpson & Marwick

18 May 2007

[27 ] I agree that, for the reasons set out by your Lordships, the reclaiming motion should be refused, and there is nothing that I can usefully add. Like Lord Eassie I would reserve my opinion on the question as to whether the use of an object as a tool can constitute an activity within the scope of the Manual Handling Regulations 1992.

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Philip

Lord Eassie

[2007] CSIH 32

A887/03

OPINION OF LORD EASSIE

RECLAIMING MOTION

in the cause

MARGARET HUGHES

Pursuer and Reclaimer;

against

GRAMPIAN COUNTRY FOOD GROUP LIMITED

Defenders and Respondents

_______

Act: Campbell, Q.C., Heaney; Thompsons

Alt: A. Smith, Q.C., Duncan; Simpson & Marwick

18 May 2007

[28 ] I have had the benefit of considering in draft the Opinion which has been delivered by your Lordship in the chair, which sets out the circumstances of this case, the relevant legislative texts at European and domestic levels and the submissions of parties. I agree that the reclaiming motion should be refused.

[29 ] As has been described by your Lordship, in presenting the reclaiming motion counsel for the reclaimer adopted a very different approach from that which had been adopted by his predecessor before the Lord Ordinary. The argument presented to the Lord Ordinary was to the effect that the process of removing a carcass from the shackle, trussing it, and casting it on to the conveyor belt should be treated as a single operation - a unum quid - with the actual trussing of the carcase deriving the character of a manual handling operation from the steps which immediately preceded and succeeded it. But before us counsel for the pursuer and reclaimer was content to focus on the trussing alone, since the finger and wrist movements deployed in the actual trussing are considered to be the cause of the aggravation of the pursuer's carpel tunnel syndrome. As counsel put it in the course of his submissions, for the purposes of his argument it would not matter if the two tasks of obtaining the untrussed carcase from the shackle and of placing the trussed carcase on the conveyor belt respectively were performed by someone other than the pursuer. The activity of "manipulating the chicken" (as the Lord Ordinary termed it) consisted in itself a manual handling operation with the possible exception of the brief second when the bird lay still while the operative sought the elasticated string with which to complete the trussing (though, as your Lordship has pointed out, the logic of the argument for the reclaimer would treat the obtaining of the elasticated string as a manual handling operation in itself).

[30 ] In advancing that submission counsel for the reclaimer thus argued for a very wide interpretation of the term "manual handling operation" as defined in the Regulations. During the actual trussing stage, he said, the operative was continually giving lateral support to the chicken carcase in order to hold it in position or lifting it wholly or partially. In doing so she was supporting or lifting a load. The action of folding in the legs of the chicken involved the transport of a load, namely the resistance of the chicken leg during the movement of its peripheral extremity into the orifice in the carcase. Counsel effectively gave to the word "load" and to the words "supporting, moving, lifting ..." (which appear in parenthesis in the regulatory definition) what might be described as their technical scientific meaning.

[31 ] On that basis, in discussion counsel was content, as your Lordship has noted, to include within the Regulations' definition of a manual handling operation a wide variety of examples such as:- (i) the turning of a page in a notebook; (ii) the lifting by a seamstress of a needle - and its subsequent movement in the course of sewing or (iii) the simple operation of an ordinary electrical switch. All of these activities were, said counsel, manual handling operations since, having regard to what he described as the expansionary effect of the words in parenthesis in the definition in the Regulations, they involved respectively lifting the page, lifting the needle and pushing or pulling the needle or the moving of the switch and each of those activities of motion involved the moving of what was technically a load.

[32 ] It seems to me to be clear that on the construction of the definition of a manual handling operation advanced by counsel for the reclaimer the Regulations would embrace or apply to almost the totality of human activity in the workplace apart from the most purely mental or cerebral.

[33 ] In the course of his submission counsel for the respondents stated that what he termed "the absurdity principle", as a canon of construction, remained, as he put it,

"alive and well". I agree that an interpretation of a statutory provision which produces absurd results is obviously to be avoided. It is in my view wholly improbable that the promulgator of the Regulations intended them to apply to virtually the universality of human activity in the workplace. Had that been the intention there would have been no need to employ the adjectival qualification of "manual handling" to the operations in Regulation 4 and hence no need for a definition of those words along the lines of that given in the Regulations. There would have been no call for a catalogue of factors as contained in Schedule 1 to the Regulations. In this context it is also appropriate to bear in mind the wider obligations imposed on employers in the over-arching Management of Health and Safety at Work Regulations 1999, implementing the Framework Directive. Further, while I fully recognise that in implementing the daughter Directive, Member States were not only free to impose higher standards of worker protection than required by the Directive, but were also enjoined not to reduce existing standards, it nonetheless remains the case, in my view, that the European legislative texts, which the domestic legislative body seeks to implement, are a factor which may be relevant to the legislative intent of the domestic legislative instrument. The provisions of those texts relevant to the present case do not, to my mind, give support for the submission of counsel for the reclaimer to the effect that virtually everything done in the workplace constitutes a manual handling operation. They are directed to a particular problem, namely the risk of injury while handling heavy loads and particularly the risk of back injury. I find it difficult to believe that the framer of the Regulations intended dramatically to expand the field of application of the Manual Handling Directive in its implementation in the United Kingdom. I am accordingly unable to accept the argument now advanced on behalf of the reclaimer to the effect that the definition of manual handling operations in the Regulations has the universal application for which her counsel contended.

[34 ] That said, one is yet left with the problem of endeavouring to ascertain the proper scope of the term and thus the field of application of the regulations. I fully agree with your Lordship in the chair that commonsense should be brought to bear. In my view, one has to be dealing with a "load" in an ordinary workplace sense, rather than in the technical sense in which the word might be used in a scientific paper or textbook. Understandably, neither the daughter Directive nor the Regulations stipulate any minimum weight, but in my view that does not mean that the concept of "load" should be deprived of anything of the ordinary notion of a burden of some significance. Clearly, as the reference factors in the Schedule indicate, the heaviness of the load is not the sole criterion. Other ergonomic considerations such as, inter alia, size, ease of handling and the physical working environment obviously come into play in the assessment of risk, as is required by the legislation in issue, but it respectfully appears to me that the focus is on an operation which, in ordinary workplace parlance, has as its function, or at least one of its functions, the transporting or supporting of a load in that sense, by any of the actions mentioned in the words in the parentheses.

[35 ] I would add that, in agreement with your Lordship, I think that the purpose for which the load is being transported or supported may sometimes be a further factor to consider. However, I also entertain reservations as to the soundness of the proposition advanced in the HSE Guidance that using an object as a tool, for its intended purpose as a tool, does not constitute an activity within the scope of the Regulations. However, since the present case does not involve any contention that the reclaimer was using a tool I would prefer to reserve my ultimate conclusions on that issue, if only since there may be questions as to the relationship and interlinking of the Regulations with other regulations, principally the Provision and Use of Work Equipment Regulations 1998 (S.I. 1998/2306) upon which we were, quite understandably, not fully addressed.

[36 ] As regards other health and safety regulations, in the course of his submissions counsel for the reclaimer stated that if the actual trussing were not a manual handling operation within the statutory definition given in the Regulations, there was no other regulation which would come to her aid. That may be so, and I did not understand counsel for the respondents to point to any other particular regulation which would be applicable in the present case. However, I do not understand the Framework Directive and the daughter directives to be intended as the code, in the sense in which Portalis understood a code, namely as a single legislative text, or corpus, providing a self-contained totality of employee protection in the workplace. There remains the ordinary law of delict. The reclaimer sought damages under that law and it is not clear to me the basis upon which her claim under that aspect of her case was given up. No doubt there may have been good reasons for it, but they are not immediately apparent.

[37 ] Reverting more closely to the circumstances of the present case, I consider that, for the reasons given by your Lordship in the chair, the Lord Ordinary was entitled to conclude that the actual trussing of the chicken carcase on the workbench did not constitute a manual handling operation. Viewed as a matter of commonsense, and applying ordinary workplace parlance, one would not say that in steadying the carcase, or turning it over, or tucking the legs of the chicken in the orifice in the carcase while performing the operation of trussing it, the employee was engaged in an operation of "transporting or supporting a load". As already indicated, counsel for the reclaimer did not submit that the Lord Ordinary was wrong in isolating the trussing operation from the preceding operation of obtaining the carcase from the shackle and the succeeding operation of casting the trussed carcase onto the conveyor belt. The focus was on the trussing alone. Having viewed the video (whatever the evidential status of that viewing may be in appellate proceedings) I am if anything confirmed in the proposition that the Lord Ordinary did not err in his interpretation of the totality of the evidence, including the video recording.

[38 ] In these circumstances I concur in the motion of your Lordship in the chair that this reclaiming motion be refused.