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Cite as: [2007] ScotCS CSIH_64, [2007] CSIH 64

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Johnston

Lord Eassie

Lord Wheatley

[2007] CSIH 64

XA142/06

OPINION OF THE COURT

delivered by LORD JOHNSTON

APPEAL

from the Sheriffdom of Tayside, Central and Fife at Arbroath

in the cause

TONY REID

Pursuer and Appellant;

against

SUNDOLITT LIMITED

Defenders and Respondents:

_______

Act: McDonald; Lefevre Litigation (Pursuer and Appellant)

Alt: McPherson, Solicitor Advocate; Simpson & Marwick (Defenders and Respondents)

27 July 2007

[1] This is an appeal at the instance of the pursuer against a decision of the sheriff at Arbroath in an action of reparation brought by him in relation to an accident he sustained at work in the course of his employment with the respondents on 12 March 2002.

[2] The circumstances of the accident itself as found by the sheriff in her findings

in fact are not in dispute.

[3] By way of summary of those findings, on the day in question the appellant was assigned to a vacuum forming machine - the TFT machine - which made plastic boxes or punnets. The punnets were formed from a continuous sheet of plastic drawn into the machine from a roll of plastic and once formed were automatically cut out and punched from the sheet and thereafter stacked. The remains of the sheet, once the punnets had been cut out, constituted waste plastic which was collected for re-cycling (or disposal if soiled). If the machine was not operating properly the quantity of waste could increase, since some of the punnets would not be successfully cut and punched from the sheet. As a receptacle into which to put the waste pending re-cycling the respondents used inter alia containers known as "octobins". An octobin is made of cardboard and is about six feet high by three feet across. An octobin is octagonal in cross section. They were moved around the factory on a hand operated pallet truck. On the day in question the TFT machine developed a fault. While waiting for the machine to be repaired the appellant set about tidying up the plastic waste produced while the machine had been operating. He filled one empty octobin by simply placing the waste in it, but was unable to find another in the two areas of the factory in which he looked. He then decided to compact the material in the octobin. The appellant first tried to compress the waste material within the octobin by standing on a table which he placed next to the octobin and using a broom handle; thereafter he climbed into the Octobin on top of the material and proceeded to endeavour to compress it by using his feet. In the course of this operation the octobin toppled off the pallet on which it was standing and landed on its side on the concrete floor of the factory, ejecting the pursuer onto that floor and causing him serious injury.

[4] Damages in the case were agreed in the sum of £57,000 and the principal issue focused in the evidence before the sheriff was a narrow one, namely, whether or not the pursuer in stamping on the material within the octobin was following a practice ("the practice") which, it was contended, was known to and permitted by the respondents in order to achieve the purpose of compression. To this end counsel for the appellant proposed two additional findings in fact in the following terms:

"17. The defenders had three methods of dealing with waste material. These were the use of empty octobins, the use of plastic bags, and the use of pallets. There were no empty octobins available to the pursuer on the day of the said accident. The waste material from the TFT machine was too sharp to make the use of plastic bags advisable. The material was too bulky and unstable to attach it to the top of an empty pallet.

18. When there were insufficient octobins available for the amount of waste material which had to be cleared away it was not unusual for someone to climb into the top of an octobin in order to try to tramp down the waste and thereby free some space at the top of the octobin. The said practice was known to the senior management of the defenders' factory in Montrose."

[5] Counsel for the appellant, under reference to a full extension of the notes of evidence (obtained subsequent to the sheriff's judgment), made detailed references to it in accordance with paragraph 3 of his grounds of appeal, essentially maintaining that there was unchallenged evidence that the practice had been prevalent for many years right up to the time of the pursuer's accident.

[6] The sheriff herself paraphrased or summarised the evidence of each witness

and at the end of the day the important evidence focused on by counsel for the appellant, apart from that of the pursuer himself, was that of George Nicol, Mrs. Cowley and Mark Simpson. He also made references to the defenders' witnesses Mrs. Hartup, Chris Dennis and Kenneth Smith.

[7] His essential submission was that the decision of the sheriff to grant decree of absolvitor was incorrect. Having regard to what he stated was the unchallenged evidence as to the practice, he submitted that the sheriff had no option but to find the pursuer had established fault at common law and breach of the statutory duty as averred.

[8] In his pleading, the pursuer's cases were as follows:

"Cond. 3 The said accident was caused by the fault and negligence of the defenders. It was their duty to take reasonable care for the safety of their employees including the pursuer. It was their duty to take reasonable care to devise, implement and maintain a safe system of work for all tasks which their employees required to carry out. In particular, it was their duty to take reasonable care for devise, implement and maintain a safe system of work for the disposal of waste materials. It was their duty to take reasonable care to devise, implement and maintain a system of work for the disposal of waste materials which did not require employees, such as the pursuer, to step into octobins. It was their duty to take reasonable care to devise, implement and maintain a safe system of work for the disposal of waste materials which did not require employees, such as the pursuer, to step into unsupported octobins. In their performance of each and all of the said duties the defenders failed. But for their said failures the said accident would not have happened. A safe system of work for the disposal of waste materials would not have required employees to step into unsupported octobins. The defenders knew or ought reasonably to have known that a failure by them in the performance of all or any of the said duties could give rise to an accident of the sort which did, in fact, happen. In particular they knew or ought reasonably to have known that a failure by them to take reasonable care for the safety of all of their employees, including the pursuer could result in him being the victim of an accident whilst at work. They knew or ought reasonably to have known that a failure by them to take reasonable care to devise, implement and maintain a safe system of work for all tasks which their employees required to carry out could result in injury to one or more of their employees. They knew or ought reasonably to have known that a failure by them to take reasonable care to devise, implement and maintain a safe system of work for the disposal of waste materials could result in an accident in the course of disposing of waste materials. They knew or ought to reasonably have known that a failure by them to take reasonable care to devise, implement and maintain a system of work for the disposal of waste materials which did not require employees, such as the pursuer, to step into octobins could result in an accident of the sort which did, in fact happen. They knew or ought reasonably to have known that a failure by them to take reasonable care to devise, implement and maintain a safe system of work for the disposal of waste materials which did not require employees, such as the pursuer, to step into unsupported octobins could result in an accident of the sort which did in fact happen. With reference to the defenders' averments in answer, it is admitted that the pursuer was subject to certain duties of reasonable care for his own safety under explanation that he duly fulfilled all such duties incumbent upon him. Quoad ultra the defenders'

averments in answer are denied except in so far as coinciding herewith.

Cond. 4 Separatim, the said accident was caused by the breach of statutory duty of the defenders. The said octobin was work equipment within the meaning of the Provision and Use of Work Equipment Regulations 1998. Regulation 2 thereof provides:-

'(1) In these Regulations, unless the context otherwise requires - "use" in relation to work equipment means any activity involving work equipment and includes starting, stopping, programming, setting, transporting, repairing, modifying, maintaining, servicing and cleaning;

"work equipment" means any machinery, appliance, apparatus, tool or installation for use at work (whether exclusively or not).'

When the pursuer was tramping down the contents of the octobin he was using the work equipment within the terms of the said Regulations. Regulation 4 of the said Regulations provides:-

"(2) In selecting work equipment, every employer shall have regard

to the working conditions and to the risks to the health and safety of persons which exist in the premises or undertaking in which that work equipment is to be used and any additional risk posed by the use of that equipment.

(3) Every employer shall ensure that work equipment is used only

for operations for which, and under conditions for which, it is suitable.

(4) In this Regulation 'suitable' means suitable in any respect

which it is reasonably foreseeable will affect the health or safety of any person."

The defenders breached the duties which the said Regulation placed upon them. The said octobin was not suitable for use by someone standing inside it whilst it was sitting on a pallet. The defenders did not have regard to the risk to the pursuer of the octobin falling over whilst the pursuer was standing in it. Regulation 20 of the said Regulations provides:-

"Every employer shall ensure that work equipment ... is stabilised by clamping or otherwise where necessary for the purposes of health and safety."

The defenders breached the said Regulation and so caused the said accident. But for the breach of the said Regulation the said accident would not have occurred. The defenders did not ensure that the octobin was stabilised by clamping or otherwise. The defenders' averments in answer are denied except insofar as coinciding herewith."

[9] At the end of the day the submission of counsel for the appellant as respects the non-statutory case was essentially that the practice was prevalent if octobins were in short supply; and that the defenders were at fault in that they had failed to take adequate steps to ensure that the practice was forbidden and that all the relevant employees knew of the prohibition.

[10] With regard to the evidence, the solicitor advocate for the respondents submitted that, properly understood, while there were some variations between, particularly, Mr. Nicoll and Mrs. Cowley on the one hand and Mr. Dennis on the other as to the prevalence of the practice, it was not established that it occurred many times over the years and particularly not in recent times after the business had been acquired by the respondents. Further, and more importantly, the generality of the evidence was that if it did occur it was in the context of the perpetrator knowing that he should not be carrying it out. This was, he said, particularly important when it came to looking at the evidence led by the respondents and particularly that of Kenneth Smith who he submitted was a highly significant witness. In addition he submitted that the evidence from the employees generally was to the effect the practice was obviously dangerous and should not be followed (pursuer 81-82; Simpson 205-215; Hartup 226-228 and Smith 397-398).

[11] Against that background we set out the conclusions of the sheriff on the question of liability on the part of the respondents, which are as follows:

"In my opinion the pursuer fails to prove his case. It seems to me that there was a safe system of work (a) for all tasks which the employees of the defenders required to carry out; (b) for the disposal of waste materials; (c) that did not require employees such as the pursuer to step into the octobins and (d) which did not require employees such as the pursuer to step into unsupported octobins. To say that the fact that there had been what, at most, can be described as a handful of incidents in the past meant that there was not a safe system of work does not stand up to scrutiny. More than one witness stated that in his or her opinion it was common sense not to climb into the octobin and, indeed, to do so was inherently dangerous. The terms of the internal memo by Mr. Dennis refer to a verbal instruction relating to this practice being given some eighteen months prior to the pursuer's accident. That memo makes it quite clear that instructions had been given to supervisors and team leaders in all departments. Again, more than one witness stated that it was a Health and Safety issue. Indeed, the fact that there has been only the occasional incident of this nature seems to me to indicate that a mixture of plain common sense and an awareness that this was a practice which was not allowed, existed.

As far as the breach of duty of care owed in terms of the Provision & Use of Work Equipment Regulations 1998, Regulations 2, 4 and 20 is concerned, it is eminently obvious that the octobin was not suitable for use by the pursuer standing inside it. As far as the terms of Regulation 4 are concerned, it seems to me that the defenders did their best to ensure that the work equipment, namely the octobins, were used only for operations for which or under conditions for which they were suitable, that suitability being any respect which it is reasonably foreseeable will affect the health or safety of any person. In my opinion this is precisely the reason why Mr. Dennis had, some 18 months earlier, instructed the supervisors and team leaders to make it clear to all employees that climbing in and out of the octobins had to cease immediately. As far as the alleged breach of Regulation 20 is concerned, the said Regulation provides, the pursuer did not lead any evidence to prove that stabilising the octobin by clamping it or otherwise would have prevented the accident."

[13] It immediately has to be noted that while the sheriff summarises the evidence of each witness she expresses no view or comment on the credibility or reliability of any of the witnesses in reaching her conclusions which do include decisions on fact. In particular she reaches an essentially factual conclusion in describing the prevalence of the practice as "a handful of incidents in the past". Equally, she reaches a similar conclusion in finding that Mr. Dennis had, conform to his evidence, on hearing of such an incident 18 months prior to the accident instructed the supervisors and team

leaders to make it clear to all employees that the practice had to cease.

[14] While it has to be deprecated that the sheriff has not made any reference to the credibility or reliability of the witnesses, nor referred to any apparent conflicts in the evidence or her approach to resolving such apparent conflicts. We are not convinced that her failure to do so negatives her decision in this matter as argued for by counsel for the appellant. There was on any view within the evidence, which the sheriff summarises relatively fully, a clear basis upon which she could properly conclude that, at least within the respondents' period of conduct of the enterprise, past instances of an employee climbing into an octobin to trample down the waste were very few; and in so far as there might be apparent inconsistencies it is implicit in her conclusions that she has preferred that evidential basis. Accordingly, we are prepared to hold that the conclusions of the sheriff were ones which she was entitled to reach upon the evidence.

[15] Assuming, however, we are wrong about that and the matter is at large for us in view of the absence of any discussion by the sheriff of the credibility and reliability of the evidence or analysis of apparent conflicts, we consider, looked at across the board, the sheriff came to a conclusion in respect of both cases of fault which correctly reflects the law against the background of the evidence.

[16] While counsel for the appellant contended to us that the pursuer was entitled to succeed on the basis that the respondents were at fault at common law in not taking sufficient steps to ensure that all employees knew that they should not climb into octobins to trample down the waste, the solicitor advocate for the respondents pointed out in response that such a contention did not form any part of the case pleaded at common law. What was desiderated in the pleadings for the pursuer was a system of work which did not require the employees to climb into octobin and, he submitted, the evidence on no basis suggested that the defenders' system included such a requirement. We agree that there is no basis in the evidence for the view that the respondents' system for the collection, for ultimate disposal, of the plastic waste produced by the TFT machine required employees to climb into the octobins and trample down the waste material. On the contrary, far from requiring their employees to do so, the evidence discloses that the employers wholly disapproved such a practice. Accordingly, we consider that the solicitor advocate for the respondents is correct in his submission that the case of fault at common law pled on Record is not made out.

[17] But apart from the pleadings, and again looking at the evidence across the board, we do not consider that the evidence supports the contention that the practice of climbing into octobins to trample down the waste was prevalent and known to, and permitted by, management. As respects prevalence, counsel for the appellant invoked particularly the evidence of Mr. Nicol and Mrs. Cowley. It is correct that in the course of his evidence Mr. Nicol stated that the practice was "going on all the time" (p. 109). However, it is far from clear that the witness is talking about recent times since he then goes on to say that the last time on which he saw any such incident was long before the accident - probably about nine years before he left the respondents' employment (which he did in 2003). There are indications elsewhere in the evidence that the practice may have been more common in the distant past, when the factory was a family business and well before its acquisition by the respondents. Thus, while Mrs. Cowley may at some points in her evidence have indicated a degree of prevalence, we consider that it becomes clear from her evidence in cross-examination (p. 147) that she was referring to a time years before the appellant's accident and that she had not seen anybody in an octobin for a very long time before that accident. So far as concerns recent times, following the respondents' taking over the management of the factory, our assessment of the printed evidence accords broadly with that of the sheriff when she concluded that it disclosed only "a handful of instances".

More importantly, there is in our view no support at all in the evidence for the respondents' having known of or condoned those instances. With the possible exception of the pursuer, all of the relevant employees who gave evidence stated - naturally in different formulations - that they regarded climbing into an octobin to be obviously dangerous; and they were equally clear that if a worker were to be found indulging in that practice, their expectation - again naturally expressed in words of differing colourfulness - was that the individual concerned would be reprimanded or disciplined. This negatives any case based on want of instruction, since there is no duty to instruct somebody in respect of some danger of which he is or should be aware and when the practice which gives rise to the danger is forbidden. In essence, therefore, we would conclude that the pursuer's case at common law fails on fact, contrary to the submissions of counsel for the appellant.

[18] However, the case made under the Regulations reflects different considerations.

[19] Here, counsel for the appellant submitted that the use of the word "ensure" in Regulation 4(3) effectively causes the Regulation to be breached in the event of an accident occurring contemporaneously with the use of the equipment in question with the consequence that the work equipment is therefore to be regarded, because of the accident, as unsuitable. Further, he submitted that Regulation 20 was also breached because the octobin had not been clamped onto the pallet.

[20] This latter point can be comparatively easily disposed of since, as the sheriff points out, the pursuer did not lead any evidence relative to the issue of clamping, its practicability and the consequences thereof of not doing so. It is not, on the face of matters easy to see how an octobin might be "clamped" or why, in the absence of indulgence in the folly of climbing into an octobin there should be any reason to consider clamping. In the event counsel for the appellant did not make much of Regulation 20. We therefore approach this matter on the basis of whether or not the pursuer has established a breach of Regulation 3.

[21] Mr. McPherson referred us to the Work Equipment Directive 89/655 which is in the following terms:

"1. The employer shall take the measures necessary to ensure that the work equipment made available to workers in the undertaking and/or establishment is suitable for the work to be carried out or properly adapted for that purpose and may be used by workers without impairment to their safety or health. In selecting the work equipment which he proposes to use, the employer shall pay attention to the specific working conditions and characteristics and to the hazards which exist in the undertaking and/or establishment, in particular at the workplace, for the safety and health of the workers, and/or any additional hazards posed by the use of work equipment in question.

2. Where it is not possible fully so to ensure that work equipment can be used by workers without risk to their safety or health, the employer shall take appropriate measures to minimise the risks."

[22] It is to be noted at once that while that Article includes the word "ensure", the second paragraph would suggest that the obligations imposed are not absolute.

[23] More importantly Mr. McPherson referred us to Robb v Salamis (M & I) Ltd. [2006] UKHL 56; 2007 SC (HL) 71; 2007 SLT 158 and in particular the speech of Lord Hope of Craighead in paragraph [23] et. seq. What Mr. McPherson took from this case particularly was that the issue of suitability in terms of Regulation 4(3) required to be judged in the context of the intended use. There was no suggestion, he submitted, in this case that the octobin was not suitable for containing the material, which was its intended use. The problem in the present case, namely the accident to the appellant, arose simply from the misconduct of the appellant in proceeding in a way which was not authorised and did not form any part of the system for which the equipment was intended. Mr. McPherson also referred to the cases referred to by Lord Hope in that passage. He also referred us to another House of Lords case Boyle v Kodak [1969] 1 WLR 661, but we do not consider that case adds anything to the issues in the present case.

[24] We have reached the conclusion that the submissions advanced by Mr. McPherson are sound and could not be seriously challenged by counsel for the appellant. We do not consider the word "ensure" implies that liability arises simply because an accident has occurred in circumstances in which work equipment was being used. The use of the equipment must be considered in the context of suitability. As we have already pointed out the octobin was provided to contain material for which it was obviously suitable. The defenders' system did not require an employee to enter the octobin and trample on the material and such activity therefore cannot be correlated to the intended use of the octobin, namely the containment of material.

[25] In these circumstances we are satisfied that the sheriff reached the correct conclusion in relation to the case under the Regulations and the defenders are entitled to absolvitor in that respect also.

[26] That being so, the issue of contributory negligence does not arise, but we would support the sheriff to the extent that she addresses it in her note. It is generally appropriate, even if the defender is to be assoilzied, if contributory negligence is otherwise in issue that the trial judge expresses an hypothetical opinion thereon. Beyond that we would go no further than to suggest that if liability had been occurred in this case fault, to some significant extent, must also be attributed to the pursuer. On his own admission that it was a dangerous practice even if permitted. We would not differ from the sheriff's hypothetical assessment.

[27] Finally, the appellant appeals also against the sheriff's refusal to certify the cause as appropriate for the employment of counsel. She refused such certification on the basis that -

"The quantum aspect having been agreed, it seemed to me that the Proof was not of such complexity that required Counsel and could have been conducted by a Solicitor".

Counsel for the appellant informed us that he had been employed at an earlier stage at which there were some difficult issues respecting quantum of damages. He had been very participant in their resolution, shortly before the proof. In these circumstances we consider that the sheriff has misdirected herself in law in as much as she applied the question of propriety and necessity of employing counsel as to the circumstances obtaining at the start of the proof. This is not the appropriate time to consider the matter, which has to be assessed when counsel is first instructed. In this case this was some time before the proof when, quite apart from issues of liability, difficult questions of damages appeared to exist. Given those facts and the fact that the sum of money involved was substantial we consider that the instruction of counsel in this case was entirely appropriate. We therefore allow the appeal in this respect and hold that the cause should have been certified as suitable for the employment of counsel.

[28] In these circumstances and for these reasons we shall allow the appeal to the extent of certifying the cause as suitable for the instruction of counsel and recall the sheriff's interlocutor of 29 June 2006 to the extent that she "does not consider the cause to be of sufficient complexity to merit the instructions of counsel". Quoad ultra we shall refuse the appeal and affirm the interlocutor of the sheriff granting decree of absolvitor.