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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kelly v Pollock (Scotrans) Ltd [2007] ScotCS CSOH_27 (13 February 2007)
URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_27.html
Cite as: [2007] CSOH 27, [2007] ScotCS CSOH_27
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OUTER HOUSE, COURT OF SESSION [2007] CSOH 27 |
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PD1898/05 |
OPINION OF LORD TURNBULL in the cause STUART FRANCIS KENNY Pursuer; against POLLOCK (SCOTRANS) LIMITED Defenders: ญญญญญญญญญญญญญญญญญ________________ |
Pursuer -
Defenders - Murphy, Q.C.; HBM Sayers.
Introduction
[1] The
pursuer was employed by the defenders as a warehouseman in at their
stores located
at the Royal Elizabeth Yard in Dalmeny.Dalmenny.
Within these premises stock was stored on pallets, which were
then placed kept on racks located in aisles.
Within the aisles there were two racks, one on either side. Each rack was
separated into bays. The pursuer's duties were to load and unload pallets of
stock onto or from the racks as required. He did so by lifting the pallets onto
or off the racks by means of a type of fork lift truck known as a "Reach
Truck". The particular vehicle used by the pursuer was manufactured by a
company called Lansing Linde and was a model R14.
[2] The pursuer began his employment with
the defenders on
The Use of the Reach Truck
[3] The Lansing Linde R14 is operated by the
user sitting within the cab of the vehicle..
The operator sits side onat right angles
to the forks which are used to lift and locate pallets. The forks and their
frame are to the right of the operator as he sits within the cab. The vehicle
is steered by the use of a steering wheel which is directly in front of the
operator. Forward or rear direction is selected by means of a lever to the
right of the steering wheel. The controls for operating the lifting forks are
levers which are located on a raised area to the operator's right. On the floor
of the cab there are two pedals and a button. To the right, and located
adjacent to the side structure of the cab is the accelerator pedal. To the left
of that in about the middle of the available floor area is the brake pedal.
Further to the left and nearer to the left hand edge of the floor area is a
button, referred to by various witnesses as the "dead man's button". It is
properly called an interlock pedal. The cabin is open to the operator's left,
which provides access to and egress from the vehicle. The vehicle has an
electric engine which will not operate unless the operator keeps his foot on
the interlock pedal located on the floor of the cab. In normal use the
operator's foot is kept on this pedal, or button, throughout the use of the vehicle. In
doing so his foot will be entirely within the area of the cab. If the
interlock pedal is released whilst the vehicle is in
operation it will remove electrical power from the vehicle. Doing
so will not apply a braking effect although the vehicle will coast to a halt.
The Pursuer's Employment
[5] The pursuer obtained the position with
the defenders by application. He was aware that the position available was that
of fork lift truck driver. He was interviewed for the position on
[6] There was a degree of conflict in the
evidence as to the circumstances in which this part of the pursuer's interview
occurred, to which I will return later. However the pursuer was offered
employment that day and commenced about twelve days later. Between the date of
commencing work and the date of his accident the pursuer's daily duties
involved the operation of both the Model R14 Reach Truck type of vehicle and
a the
counterbalance fork lift
truck. Abouttype. However
about two thirds of his working day
was spent operating the R14 Reach Truck.type of vehicle.
Photographs of this vehicle were produced in 6/11 of process and 7/1 of
process. The pursuer drove the same vehicle each day. Following his interview
he was given no formal instruction
or training in the use of this vehicle by the defenders. Between the 7 October
and 2 December the pursuer used this vehicle daily without incident or
difficulty.
The Pursuer's Accident
[7] On the date of the pursuer's accident he
was carrying out his normal duties. At about 4.15 in the afternoon he was
engaged in taking stock on pallets,
which had been delivered to the premises,
from the area of the loading bay to the racks in the aisles. He drove his
vehicle down an aisle in the direction of the wall at the far end. In this
direction of travel the wall was to his left and the loaded pallets to his
right. He had intended to place the pallets intoonto the rack within
the second last bay of the rack which was behind him. In order to do this he
would require to drive past the intended bay, bring the
vehicle to a halt and then manoeuvre it forwards and to his right,
thereby entering the selected bay. In giving evidence the pursuer explained
that as he reached the point in the aisle where he required to
stop the vehicle he applied his foot to the brake pedal in the normal
fashion. This action, he explained, had no effect and the vehicle kept moving.
He stated that he then took his foot off the dead man's button, thinking that
this would bring the vehicle to an immediate halt. The vehicle continued
travelling in the direction of the wall, coming to a halt upon colliding with
it. The pursuer's left foot was trapped between the wall and the side of the
truck. In order for this to occur the pursuer must have moved his foot both to
the left and downwards, taking it outside the protected area of the vehicle
cab.
[8] The written pleadings on behalf of the
pursuer aver in Statement IV.2 that:
"The pursuer was driving at walking speed. He applied
the brakes as he approached a wall. The brakes did not operate".
This
proposition was also reflected in the pursuer's
evidence. However, the pursuer accepted, in
his evidence
in chief the pursuer accepted knowing, that he
knew the vehicle had been
comprehensively tested following his accident and was found to have no defect which
could have contributed to the operation or effectiveness of the braking system.
Mr Ivey asked him if he could offer any explanation as to why the brakes did
not operate in response to the acts which he described. The pursuer offered no
explanation and said he had no knowledge as to why this would happen.
[11] As best as I could understand Mr Lessels
in evidence he explained that the pursuer told him that he was going to step
off the fork lift truck but the motor kept going and he hit the wall. When
pushed a little further on this by Mr Ivey he seemed to say that the pursuer
had told him that he was going to step off and he took his foot off the button
which ought to have stopped the vehicle right away but it didn't. There was no mention ofMr Lessels did not give evidence to the effect
that the pursuer had told him off applying the brake pedal in this
account.. In fairness to Mr Lessels he was
being asked to recall the terms of a short conversation which took place almost
four years previously. However I did not find the evidence of Mr Lessels to be ofoff
much assistance in arriving at a resolution of the matters before me. The
evidence of Constable Dunlop was of a different quality. He too had asked the
pursuer for an account of what had happened. Helpfully, he had noted the
response in his police notebook. At proof he read the terms of the pursuer's
response as noted at the time. The accuracy of this note was not challenged.
His note was in the following terms:
"I tried to slow down but it wouldn't. I took my foot
off the safety button and put it down the side of the fork lift truck which
thinking now was silly. It still would not stop and the truck hit the wall
trapping my foot. I have not had problems before with that truck".
These
witnesses concluded the evidence for the pursuer as to the circumstances of the
accident.
[12] The pursuer also led the evidence of Mr
Lenford Greasley. Mr Greasley was led as an expert witness and spoke to a
report, number 6/15 of process, which he had prepared on the instructions of
the pursuer's solicitors. Mr Greasley, who was aged 60, was a director of
a firm of consulting engineers. He had been a member of the Health and Safety
Inspectorate for two to three years in his late twenties. Thereafter he
returned to industry and also obtained a degree in law and a diploma in safety
and hygiene. He had attended at the defenders' premises and had been given an
opportunity of observing the function and operation of the vehicle the pursuer
had been operating on the day of his accident. He was given an operator's
manual for this model of vehicle. He had also been
provided with an account from the pursuer of how his accident occurred, and various other documents, including number 7/10 of process. This appeared to be a
file record on the defenders' notepaper. It recorded the fact of the pursuer
attending for interview on
[13] Mr Greasley's report expressed his opinion
that the pursuer's state of competence and training at the time of his
employment by the defenders was insufficient for safe operation of the Reach Truckreach truck
in that he did not appreciate or understand basic operation of controls on the
machine. In his opinion the defenders were in breach of Regulation 9 of the
Provision and Use of Work Equipment Regulations 1998 by virtue of failing to provide the pursuer
with adequate training. In giving his evidence he referred to the terms of
production 6/17, the Health and Safety Executive Code of Practice
"Rider-operated lift trucks: Operator training", which came into force in
October 1999. In evidence Mr Greasley explained the emphasis within the Code of
Practice on the need to provide employees with training. He was taken through
paragraphs 33-35 of the Code, covering the need for and extent of basic
training. He was taken through the passages of the Code dealing with the need
for specific job training and through the passages dealing with the need for
familiarisation training, under the guidance of a supervisor. He was also taken through the passages of the
Code dealing with the need for refresher training and conversion training, as
found in paragraphs 47 and 48 of the Code. He was also
take to paragraph 30 of the Code which provides guidance as to how employers
ought to react to claims of experience made by employees. It emphasises the
responsibility placed on the employer to satisfy himself as to the extent and
relevance of any such experience. In Mr
Greasley's view the defender's practices, as he understood them, failed to
conform to the sort of guidance found in the Code of Practice.
Evidence for the Defenders
[14] The defenders led the evidence of Paul
Cook and David Fernie. Mr Cook had been in their employment for a period of
eleven years up until about May of 2006. He had spent his entire working life
operating and working with forklift trucks. At the time of the pursuer's
employment he had been the warehouse supervisor, with responsibility for five
warehousemen, including the pursuer. Mr Cook explained that when the company
was seeking to recruit a new fork lift tuck driver it was his responsibility to
assess the applicant's competence. The applicant would be interviewed initially
by Helen Innes, who would then bring the individual down to the warehouse to be
introduced to him. Mr Cook would then have a discussion with the applicant
about his abilities and experience following which he would ask the applicant
to demonstrate his competence by driving a the forklift
truck and removing and replacing a number of pallets on and off and onto the rackingraking
system. He reported his view as to the applicant's capabilities back to Mrs
Innes. Over his years with the defenders he had assessed the competence of
applicants for around ten positions. with the defenders.
On a number of occasions he had required to report back that a particular
applicant was incapable of operating the vehicle adequately.
[16] After the pursuer commenced work with the
defenders he worked the same All functions tested were
operating correctly.
Pursuer's Submissions
[19] Regulation 9 is in the following terms:
"9 Training
(1)
Every
employer shall ensure that all persons who use work equipment have received
adequate training for purposes of health and safety, including training in the
methods which may be adopted when using the work equipment, any risks which
such use may entail and precautions to be taken."
Mr Ivey's
introduction was to submit that the pursuer's accident occurred as a
consequence of two operator errors. The first being an apparent failure to
operate the foot brake effectively and the second being a misunderstanding as
to the effect of taking his foot off the interlock pedal in trying to retrieve
the situation brought about by the first error. On this analysis the first
error was significantly compounded by the second in that it was the second
error which caused the pursuer's foot to go outwith the confines of the truck.
This second error he submitted occurred because as a consequence of
inadequate training provided by the defenders and in consequence there was a
breach of Regulation 9. Mr Ivey acknowledged that even if this analysis was
accepted the question of contributory negligence would arise for consideration.
[22] In seeking to support his submission that
it was an the
error in understanding the
function of the interlock pedal which caused the pursuer's foot to go outside
the truck Mr Ivey invited me to view this act as occurring in a classic heat of
the moment situation. He invited me to accept that the pursuer was describing a
rapid movement in the course of an emergency during which his foot was placed
outwith the protection of the cab. Mr Ivey submitted that this was not a
conscious or deliberate act and that one could not criticise him for not
weighing up where to place his foot. Mr Ivey's contention was that on the evidence, had the pursuer known the true
function of the interlock pedal he would have kept his foot on it. Mr Ivey also
invited me to see in the statement which the pursuer gave to Police Constable
Dunlop an account which was, at least to an extent, consistent with the
pursuer's account in evidence. His submission was that in that statement the
pursuer had referred to taking his foot off expecting something to happen which did not,
rather than an attempt to disembark from the vehicle.
[23] In explaining the way in which he said
that breach of Regulation 9 had occurred Mr Ivey relied on the evidence of the
pursuer and on the evidence given by Mr Greasley, as taken along with the terms
of the Code of Practice to which he had referred. Mr Ivey's submission was that
the defenders had failed to properly satisfy themselves as to the pursuer's
experience and ability by relying on elderlydated
certificates and inadequate assessment. This he submitted failed to comply with
the provisions of paragraph 30 of the Code of Conduct. Further, he submitted that the defenders had failed to provide
any basic training or conversion training, the necessity for which was set out
in paragraphs 33, 35, 48 and 50 of the Code of Practice. Had they done so, he
submitted, the pursuer would have been aware of the proper function of the
interlock pedal. Although the Code of Practice did not have statutory authority
it was clear, said Mr Ivey, that its purpose was to
give guidance to the industry on what was necessary in order to comply with
their statutory requirements. He submitted argued that
the two errors which he argued combined to cause the pursuer's accident arose on
account of the failures which he had specified.The and the
defenders were accordingly in breach of their responsibilities in terms of the
statutory provision. In these circumstances Mr Ivey moved me to find for the
pursuer.
Defenders' Submissions
[30] On the matter of assessing the pursuer's
suitability for employment, again Mr Murphy invited me to reject the
pursuer's account and to prefer the evidence of Mr Cook. In this regard he
submitted that the defenders had been looking for an experienced fork lift
truck driver. The pursuer presented himself as such,
provided certificates to vouch his experience and underwent practical
assessment. In addition, he was then under the supervision of Mr Cook for the
period of time up until his accident. He submitted that there had been no
challenge to the evidence that the pursuer was observed by, and under the supervision
of, Mr Cook, during his trial
period. In all of these
circumstances Mr Murphy submitted that therethe defenders
had been no breach of complied with any requirement for training imposed
by Regulation 9 by the
defenders.
Discussion
[31] It was clear in my opinion that the
pursuer thought of himself as a competent and
experienced fork lift truck driver. I was satisfied that he presented himself
as such at his interview on
i.
that production 7/10
correctly reflected the level of assessment undergone by the pursuer,
ii.
that the pursuer did
not understand the effect of removing his foot from the interlock pedal and
iii.
that the pursuer removed his foot from this pedal in a panic
as a result of the foot brake failing to operate.
In the
end of the day I did not find that any of these assumptions were warranted.
Accordingly Mr Greasley's evidence turned out to be of little value.
[33] In light of the compelling and uncontested
evidence as to the condition of the vehicle in which the pursuer had his
accident, I was unable to accept his evidence that he had applied the brake
pedal. Had the brake been applied it is clear that the vehicle would have been
halted. I should of course recognise that I was not invited to accept this part
of the pursuer's his
testimony by Mr Ivey. His Counsel for the pursuer's submission was that his case did
not depend on the pursuer having in fact applied the brake. He submitted that
it would be sufficient if I were to hold that the pursuer was under the
impression that he had done so. I could find no basis in the evidence for
understanding how such an impression could have been formed despite the brakes
not in fact being applied. No such explanation was offered by the pursuer, or by Counsel on his behalf. Accordingly, the clear conclusion
which I reached was that the pursuer chose to take his foot of the interlock
pedal without making any effort to apply the foot brake. Why he did this is not
entirely clear. A number of suggestions were canvassed in evidence but it did
not seem to
me necessary to come to a concluded
view on that matter. I should note however that I did not find the pursuer
credible in his evidence that he was unaware of the effect of doing so. I was
not able to accept that in the period of time during which he had operated the
vehicle he had not previously performed this action.
[35] In light of the view which I arrived at as
to the level of the pursuer's experience and competence I was in any event
satisfied that the defenders had not been in breach of the terms of Regulation
9. I was satisfied that the presentation of certificates,
the discussion which the pursuer had
with Mr Cook on the day of his interview, the formal assessment carried out
that day and the ongoing supervision provided by Mr Cook, all combined
was sufficient to
provide sufficient compliancecomply
with the need to test an operator's experience and ability as described in
paragraph 30 of the Code of Practice. On the evidence led the pursuer did not
require the sort of basic training or conversion training described in
paragraphs 33, 35, 48 and 50 of the Code of Practice. The pursuer was well
aware of how to operate the relevant vehicles and was familiar with safety
considerations arising therefrom. In particular, as he acknowledged, he was
well aware of the need to keep his body within the confines of the vehicle
whilst it was in motion.