|
OUTER HOUSE, COURT OF SESSION
[2007] CSOH 33
|
|
PD531/04
|
OPINION OF C.J.
MacAULAY, Q.C.
(sitting as a
Temporary Judge)
in the cause
WALLACE BROWN
Pursuer;
against
GLASGOW
CITY COUNCIL
Defenders:
ннннннннннннннннн________________
|
Pursuer:
Hanretty QC,
McNaughton; Digby Brown SSC
Defenders: Davies; G Lindsay
16 February 2007
Introduction
[1] In
this action the pursuer seeks damages for injury to his back allegedly caused
by two accidents at work, both accidents occurring within a very short time of
each other. One of the principal issues
I had to decide was whether the accidents had occurred at all, it being the
defenders' position that they had not.
For reasons that will become evident in the course of this Opinion, I
have concluded that the pursuer did indeed sustain the accidents that he
complains of and that the defenders are liable in respect of both accidents.
[2] The
accidents occurred on 3 October 2001. At that time the pursuer
(DOB 29 January 1968) was employed by the defenders as a stockman and
had been in that employment since about June 1998. The defenders own a herd of highland cattle,
a herd purchased by the defenders' predecessors in about the 1960s. The herd is kept at Pollock
Country Park,
Glasgow. From about November to early May the young
stock is housed in an area known as the shinty shed. As the photographs taken of the shinty shed
disclose, it is a large roofed area some 150 feet long and 50 feet wide. The perimeter generally is an open area with
poles and gates. The poles support the
roof of the shinty shed and the gates ensure that the cattle are penned
in. There are also a number of poles
broadly in the centre of the shinty shed which serve to divide it into an upper
and lower part. Apart from the fixed
boundary gates there are also plumbed in water troughs at the perimeter of the
shinty shed. The purpose behind the open
design of the shinty shed was to prevent the highland cattle with their very
thick coats from overheating. Although
the number of cattle housed in the relevant period might vary, in broad terms
there could be around 40 cattle in the shinty shed. The top perimeter of the upper part of the
shinty shed is adjacent to a hill. It
was in the area of the perimeter of the upper part adjacent to the hill that
the accidents occurred.
[3] Although
there was some controversy as to whether or not the shinty shed was cleaned out
after October 2001 and before 2004, there was no dispute that after the cattle
had left the shinty shed in May the normal practice would involve mucking out
the shinty shed, usually in the Autumn in preparation for the next batch of
young cattle being housed there through the winter months and into the
spring. Once cleaned, it was necessary
to put down a thick bed of straw, some two feet deep, and then, once the cattle
were in the shinty shed, to add to that straw as and when necessary, and
ideally twice a week. It follows from
that that come the following May a substantial quantity of straw and manure
would require to be removed in the mucking out process.
[4] It
is a matter of admission on record that the pursuer was working in the course
of his employment on 3 October 2001
and had been instructed by his supervisor Malcolm Moy to muck out the shinty
shed. It is also admitted on record that
the pursuer was able to muck out most of the manure and straw using a tractor
and that he was instructed to muck out the remaining areas manually. For that purpose he was provided with a fork
known as a "dung grape". This part of
the operation was known as "forking out".
[5] In
the course of the pursuer's proof I heard evidence from the pursuer himself and
from Fraser Hyslop, a tractor driver employed by the defenders. The defenders led evidence from Raymond
Porter, a claims assistant employed by the defenders, Malcolm Moy, the
pursuer's supervisor and the senior stockman, Marilyn Muir, the assistant
manager at Pollock Country Park employed by the defenders and John McCall, a
training instructor and driving assessor also in the employment of the
defenders. The defenders also led
evidence from Gavin Robert Tait, a consultant orthopaedic surgeon, his evidence
being interposed during the pursuer's proof.
[6] The
pursuer averred that the defenders were in breach of their common law duty to
take reasonable care for his safety and in breach of their statutory duties
under (i) Regulations 5, 12 and 13 of the Workplace (Health, Safety and
Welfare) Regulations 1992, (ii) Regulation 4(1) of the Manual Handling
Operations Regulations 1992, (iii) Regulation 4 of the Provision and Use of
Work Equipment Regulations 1998 and (iv) Section 2(1) of the Occupiers
Liability (Scotland) Act 1960. In his
submissions Mr Hanretty indicated that he was not insisting on his case under
the Provision and Use of Work Equipment Regulations 1998. He also indicated that he was not insisting
on his case under Regulation 13 of the Workplace (Health, Safety and
Welfare) Regulations 1992. In response
to the pursuer's case under the Workplace (Health, Safety and Welfare)
Regulations 1992 the defenders contend on record that the pursuer's workplace
was part of an agricultural undertaking and that in the circumstances the
regulations relied upon by the pursuer did not apply. Mr Davies pursued that line of argument in
his submissions.
[7] In
terms of a Joint Minute of Admissions the quantum in respect of each of the two
accidents complained of by the pursuer was agreed, each in the sum of г3,260.89,
a total of г6,521.78.
The circumstances in which the pursuer sustained injury
[8] The
pursuer said that he was instructed by Mr Moy on 3 October 2001 to clean out the remainder of the
material that at that time remained in the shinty shed. By then most of the material had been removed
by a tractor with a bucket. That meant
that he had to fork out the remaining material and in particular he required to
fork out around the perimeter of the shinty shed in areas where the tractor and
the bucket had not gained access. The
idea was to remove the straw and manure from the perimeter towards an area
where the tractor could gain access to it.
The pursuer embarked upon this task and in particular sometime after 10am he was working in an area shown in the
first photograph in 6/6 of Process. He
was working his way down the left hand side towards the photographer and had
arrived at a point in the area of the third post viewed from the perspective of
the photographer. He explained that
water tended to come off the hill adjacent to the top perimeter into the shinty
shed with the result that the material he had to remove was made heavier. While he was engaged in this task he said
that Mr Moy was hosing down the brick floor.
He described his action in using the dung grape as one of holding the
shaft of the grape with his left hand and moving to his left to throw the
material towards the middle area of the shinty shed. After about an hour to an hour and a half,
the pursuer said that he felt a pain in his back. He described it as a sharp pain in the lower
part of his back. He decided to have a
rest and made his way along the boundary of the shinty shed. As he did so he came to an area where Mr Moy
had been hosing down the floor of the shinty shed. At that point his foot went down a hole
causing him to suffer even more pain in his back. The hole was not visible to him because it
was full of water and manure and discoloured brown. The pursuer also said that he told Mr Moy
that he was going to go outside and sit down and have a cigarette. The pursuer maintained that Mr Moy saw his
foot going into the hole and seemed to acknowledge that something had happened
because he "smiled or smirked". It was
the pursuer's left foot that went into the hole. In summary therefore the pursuer complained
of two separate but closely connected incidents both contributing to the pain
he suffered in his back.
[9] The
photographs in No. 6/6 of Process were photographs taken by the pursuer and
later I shall deal with the controversy that arose as to when they may have
been taken. At this point it is worth
noting that apart from showing the nature of the construction of the shinty
shed and its general location, photographs 2 and 3 do show the hole which the
pursuer says he put his left foot into as he made his way out of the shinty
shed. It had a circumference of about 2
feet and it was about a foot or so in depth.
Some insight into how the hole happened to be there can be gained by
piecing together evidence from the pursuer, Mr Hyslop and Miss Muir. Some years previously a beech tree had fallen
onto and destroyed the then shed and one of the posts of that original shed had
been pulled out with its concrete base attached to it leaving behind a hole
that had never been properly filled.
Indeed the post in question was visible in photograph 1 lying on the
hill outside. Posts in other areas had
been cut at ground level leaving their concrete bases in situ. Mr Hyslop thought that the hole had been
there for approximately 6 years prior to the accident. It was usually covered by dung and by layers
of straw when the cattle were there.
However, Mr Hyslop said that he himself had been involved with the
tractor in mucking out the shinty shed and had reported the presence of the
hole to his foreman every year that he had been involved in that particular
task. Although he had not been involved
in the mucking out process in October 2001 he had been involved in that process
the previous year. His complaints
regarding the hole were either to Jim Rae or Stevie Burns. They did not give evidence. He said that the hole could be compacted with
material but that the tractor wheel could strike the hole and the front of the
tractor would go down to some extent. He
also said that when the dung got wet your foot could sink in and you could lose
your wellington boot in the process.
[10] Two issues that arose were the extent to which the mechanical
removal of the waste material in the shinty shed was carried out and also the
extent to which manual handling of the remaining material required to be
carried out by the use of the dung grape in the forking out process. So far as the pursuer was concerned, on the
day of his accidents most of the waste material in the shinty shed had been
removed by use of the tractor. He
explained that the tractor had a bucket and that the task involved loosening
the straw and waste material and picking it up with the bucket and then
removing it. However, material remained
around the perimeter of the shinty shed because of the difficulty of accessing
that area with the tractor. That meant
that that material had to be removed manually.
That was the task the pursuer was engaged upon when he first felt pain
in his lower back. He was using the dung
grape to remove the material from the perimeter into the middle area of the
shinty shed so that it could be accessed by the tractor. As I have already indicated, it is a matter
of admission on record that at the time of the mucking out process in October
2001, it was the pursuer himself who had operated the tractor before he started
forking out. Mr Hyslop had operated the
tractor on previous occasions and so far as he was concerned, he could access
the perimeter areas with the tractor bucket to such an extent that very little
material would be left behind. He
explained that he was a tractor driver of some experience and because of his
skill and experience he was able to access areas that a less skilled tractor
driver could not. So far as the material
left behind was concerned, he disagreed with the proposition that a border of
some sort would be left along the perimeter of the top end of the shinty shed
in order to impede water ingress. His
position was that he would clean that up.
[11] Mr Brown also explained that after his accidents he understood
that JCBs were used in the mucking out process.
Because the JCB had a hydraulic arm on the back with a bucket it could
access right up to the boundary of the shinty shed and scrape the material away
from the fence line. Consequently only
bits of material would be left, the sort of volume that could be brushed. That meant in effect that there was no real
need to be lifting manure and straw as had been the position when forking out
was required on the day of his accident.
[12] In the immediate aftermath of his accidents the pursuer was not
clear as to whether and to what extent he worked throughout the rest of that
day but it is certainly the case that he continued to work for a period
thereafter. He requested physiotherapy
for his back from Miss Muir on Friday 5
October 2001, and as she recorded in the medical request documentation
his purpose in so doing was because he had suffered a work related lower back
strain. On 8 October 2001 (Monday) Mr Brown reported to Mr Rae that
he had had an accident in the shinty shed.
Mr Rae recorded this in the accident book. The report in the accident book narrates that
he had sustained the accident when mucking out with the dung grape. Miss Muir said that Mr Rae then contacted her
and she was able to confirm to Mr Rae that Mr Brown had made a request for
physiotherapy. When asked whether she
would have spoken to Mr Moy about the accident Miss Muir said she would have
done so at some point definitely although she could not by the time she gave
evidence remember precisely when she did so.
As Miss Muir was Mr Moy's supervisor it would be expected of her to
speak to him about such an event. So far
as Mr Moy was concerned, he was not approached by Miss Muir until some weeks
afterwards but again he was somewhat vague on that matter.
[13] The pursuer had experienced pain with his back for a number of
years prior to 3 October 2001. Having requested physiotherapy, he continued
to work with the defenders until about 23 October 2001 when he attended for physiotherapy. At that time there was some concern that his
symptoms might indicate that he had developed a cauda equina syndrome. That concern proved to be unfounded. An MRI scan disclosed that he had a bulging
disc at L5/S1 and a disectomy was carried out at the Victoria Infirmary, Glasgow
in February 2002. The pursuer was off
work from late October 2001 to May 2002.
He stopped working for the defenders in November 2004 and took up his
present employment as an HGV driver.
[14] I propose now to consider some aspects of the evidence given on
behalf of the defenders. In the main the
defenders rely on the evidence of Mr Moy in particular and to a lesser extent
Miss Muir.
[15] Mr Moy was the senior stockman and the pursuer's
supervisor. He denied witnessing the
pursuer's second accident. He also
denied that the hosing that he may have been carrying out would have been in
the vicinity of that accident.
[16] Notwithstanding the defenders' admission on record that the
mechanical part of the operation on 3
October 2001 involved the use of a tractor, Mr Moy's position
was that in 2001 it was what he referred to as "digger" that was used to remove
the waste material. He explained that by
a digger he meant a JCB with tracks or with wheels. Indeed, again contrary to the defenders'
admission on record that it was the pursuer himself who operated the tractor in
October 2001, Mr Moy contended that in 2001, not only was it a digger that was
used, but because of the nature of the machine, a specialised driver required
to come with it. He said he remembered
very clearly that the name of the operator was "Stuart" and that Stuart had
since died.
[17] In relation to the existence of the hole, Mr Moy's position was
that prior to October 2001 he had not been aware of its existence. So far as he was concerned, the hole was
filled with compacted manure and was not apparent. However, as I have already explained, Mr
Nisbett was aware of the existence of the hole and indeed why it existed at all
and had reported its existence to his own supervisors on previous
occasions. Mr Moy had regular contact
with the supervisors and it is certainly surprising that he was never told that
there was such a hole in the shinty shed.
[18] Mr Moy also said in evidence that his policy was to leave a
bank of compacted manure along the top perimeter of the shinty shed in order to
provide some protection from water ingress from the hill behind. The thrust of his evidence was that that
being the case there would have been no need for the pursuer to be forking out
in the area where he said he was on 3
October 2001. Again it is a
matter of admission on record that the pursuer was instructed to muck out the
areas remaining in the shinty shed manually and, so far as the pursuer was
concerned, that task involved him forking out along the perimeter at the top
end of the shinty shed. Furthermore,
Mr Hyslop was adamant that no such bank would be left behind when he
removed the waste material in that location with the tractor. He was able to move material right up to the
edge of the gates at the perimeter.
[19] In relation to any hosing out that might have been carried out
by Mr Moy, Mr Moy's position on this issue was somewhat confused. At one point he said that not much hosing
would be carried out. At another point
in his evidence he suggested that the hosing would take half a day to a
day. At one point he agreed that he
could recollect hosing down while the pursuer was mucking out elsewhere. His position in evidence was different to the
hypothesis put to the pursuer in cross examination that "we may hear evidence
from Mr Moy that his recollection may be that he didn't start in fact hosing
down ..." until the pursuer had finished forking out. The line in cross examination also seemed to
be that the shinty shed would be hosed out.
However, Mr Moy rejected the suggestion that the hosing would take
place in the vicinity of where the pursuer had previously been forking out
along the perimeter of the shinty shed.
His position was that the focus of the hosing was an area to the front
of the shinty shed near the gate which he eventually seemed to accept may only
have been some 12 sq.m. and which became particularly dirty because it was an
area in which the cattle tended to congregate.
When asked about the fact that he had indicated it would take half a day
to a day to do the hosing, he responded by saying he had given that answer
because he would not be doing it all the time.
The tap for the hose was in a location where, depending on the length of
the hose, he would be able to access the location where the pursuer had been
working. In his evidence in chief
Mr Moy said the hose was some ten metres in length but at one point in his
cross examination he suggested it was only four meters.
[20] Mr Moy presented as being extremely uncomfortable while giving
his evidence. It may be that he found
the whole experience a nerve racking one but in any event he was not an
impressive witness. On a number of
occasions he did not seem to address the questions that were put to him. He repeatedly explained that he had a poor
memory and at one point in his cross examination he confessed to "losing the
plot". He knew that the pursuer had a
history of back problems and it may be that the back injury sustained by the
pursuer in the forking out process and his stumble into the hole did not fully
register at the time because the pursuer had complained to Mr Moy about his
back in the past. Nevertheless I formed
the clear impression that Mr Moy sought to downplay the extent to which the
pursuer would require to manually fork out the waste material in October 2001 after
the mechanical part of the operation had been completed. Furthermore, he was inconsistent on whether
he did in fact instruct the pursuer to muck out manually on 3 October 2001. It is admitted on Record that he did but at
one point in his evidence he suggested that if the pursuer did muck out
manually "it was done at his own volition".
Subsequently he agreed that he did remember instructing the pursuer to
muck out manually but then a few answers later he said he did not remember
doing so. As I have already said, his
evidence about the mechanical part of the operation in October 2001 was
contrary to the agreed position on record and his evidence on hosing down that
he carried out was confused.
[21] Generally Miss Muir accepted that in relation to the events of 3 October 2001 she was simply relying
upon what she had been told by Mr Moy as to what would be involved in the
mucking out process. She supported Mr
Moy to the effect that the bank would be left along the top perimeter of the
shinty shed but that was on the basis that that is what she was told by Mr Moy
he would have done. She also gave some
evidence about the use of the JCB in the mucking out process and I propose to
look at that shortly (paragraph [23]) when I consider the controversy
surrounding the photographs taken by the pursuer.
[22] Miss Muir also gave evidence that she was responsible for the
preparation of the defenders' risk assessment, no. 6/7 of Process. The subject area of assessment in that risk
assessment is described as "Livestock".
One of the hazards identified is that of "Cleaning out soiled building,
slippery floor, straw" and the potential injury or damage is described as
"Lifting and handling, slipping, falling, strains, sprains, back injuries,
infected". The risk rating is described
as "Tolerable". Miss Muir accepted that
in preparing the risk assessment she did consider the task of mucking out.
[23] It is to the controversy surrounding the photographs taken by
the pursuer to which I now turn. What is
now 6/6 of Process is a number of photographs taken by the pursuer. During the proof an issue arose as to when
these photographs might have been taken.
When first asked in his examination in chief as to when these
photographs were taken, the pursuer responded that he had taken the photographs
when he got back working "with the cattle".
He then indicated that when he returned to work he was on light duties
and that the photographs may have been taken in May or just after May. However, it is clear from the photographs
and, in particular the state of the trees, that they must have been taken in
the autumn. There is no doubt that the
pursuer's recollection as to precisely when he took the photographs was
somewhat hazy but in fact it transpired that, although he returned to work in
about May, he did not return to working full time with the cattle until October
2002. It is also the case that the
photographs taken by the pursuer were not in the hands of his Solicitors until
about January 2003. However, Mr Moy
contended that the shinty shed was not mucked out again after October 2001
until about July to September 2004. Of
course if that evidence were to be accepted then it would follow that the
pursuer could not have taken the photographs in about October 2002 because the
pursuer's photographs show the shinty shed in the process of being mucked
out. Furthermore, because of the amount
of material shown in the photographs, the mucking out process was at a point
prior to the forking out operation that it is admitted the pursuer was engaged
in on 3 October 2001. In essence therefore the suggestion made on
behalf of the defenders was that the pursuer had taken the photographs,
including the photographs of the hole, prior to his accident.
[24] Mr Moy got some support for his contention that there had been
no mucking out between October 2001 and about July 2004 from Miss Muir. Her position was that she would be aware of
when the shinty shed was being mucked out because she would require to organise
the mechanical digger that was involved in the operation. Prior to giving her evidence she had checked
her diaries and checked with the depot from where they would acquire the JCB
for the operation. Her position was that
there were no records to support the use of the JCB between 2001 and 2004. At first blush this provided positive support
for Mr Moy's evidence but, as Mr Hanretty pointed out in his submissions, such
records would only exist if in fact a JCB was used. If a tractor had been used then no such
records would exist.
[25] As Mr Hanretty submitted, if in fact the photographs were taken
by the pursuer prior to his accidents, then that would mean that he had
deliberately concocted a fraudulent scheme to lodge a false claim for compensation
with his employers. Mr Hanretty
asked me to assess carefully the pursuer's character and personality. He was described by Mr Tait as a "stoic"
individual who did not seek to exaggerate his symptoms. There was no doubt that in October 2001 he
developed a significant exacerbation of his back problems but nevertheless
continued to work until it was thought the problem was a serious one. He returned to work when he could. He could not be accused of seeking to enhance
the value of any claim he may have had.
In my opinion, these points were well made. Also, as Mr Hanretty indicated, it was
clear that he was not the "brightest" of individuals. Although in relation to certain aspects of
his evidence the pursuer's recollection was poor, I am completely satisfied
that he was a truthful witness and simply not capable of concocting the plan
that the defenders suggest he must have concocted in order to sustain his
claim. I have come to the conclusion
that the shinty shed was indeed mucked out in 2002 and that provided the
pursuer with the opportunity of taking photographs sometime after he had
sustained his accidents with a view to showing the location of where the
accidents and in particular the accident involving the hole had taken place.
[26] The defenders also sought to challenge the pursuer's
credibility and reliability by reference to what he was reported to have said
to Mr Tait, the consultant orthopaedic surgeon who examined the pursuer at the
request of the pursuer's solicitors.
That examination took place on 20
October 2003 and Mr Tait's report is 6/13 of Process. In relation to the task of forking out Mr
Tait has recorded in his report that in that process the pursuer was throwing
the waste material "over his left shoulder".
That was different to the pursuer's position in evidence where he said
that he would be throwing the material to his left and not over his left
shoulder. Also, the sequence of events
in Mr Tait's report is different to the pursuer's position in evidence. According to Mr Tait's report, after the
initial episode of pain the pursuer left the shinty shed, and on his return
some 5 minutes later the second incident occurred when his foot went down the hole. Mr Tait agreed that since what he had written
was not in quotation marks then it would not be an absolute quote. He said that he had not been able to retrieve
his original notes, and the report may have been dictated two weeks later. In relation to how he handled the dung grape
I accept the pursuer's evidence that essentially he would turn to his left
rather than lifting the material up and throwing it over his left
shoulder. The pursuer himself said that that
sort of manoeuvre would be a silly way of doing the job. It is certainly the case that Mr Tait
has recorded a different sequence but the account generally is consistent with
the pursuer's evidence. It is worthy of
note that when the pursuer gave evidence he originally missed out reference to
the hole incident and, no doubt because the examiner wanted to get the correct
sequence from him, he was subsequently able to focus on the sequence that was
developed in evidence. In my view the
account given by the pursuer to Mr Tait assuming Mr Tait has recorded it
correctly does not undermine his credibility and reliability. Indeed Mr Tait supported the proposition that
a jarring accident such as the pursuer's stumble into a hole as described by
the pursuer was the kind of compressive event that may well have caused the
final damage to the pursuer's already degenerated disc.
[27] It will be apparent from what I have said so far that I did not
find Mr Moy a reliable witness. I accept
the pursuer's account of what happened on 3 October 2001 and subsequently as summarised in
paragraphs [8] to [12]. I also accept Mr
Hyslop's evidence as summarised in paragraphs [9] and [10]. In relation to whether a JCB could have been
used in October 2001 to improve significantly the condition of the shinty shed
after the mechanical part of the operation so as to virtually eliminate the
need for any significant amount of forking out, I am satisfied that a JCB could
have been used at that time. Ironically,
and as I have indicated contrary to the defenders' position on record, Mr Moy
said it was a digger such as a JCB that was used. It is not particularly helpful to the
defenders' position generally that the position adopted by them on record is
different to the position that they sought to advance in evidence.
Liability
[28] In relation to the first incident, the pursuer contends that
the defenders were in breach of duty at common law and also in breach of
Regulation 4 of the Manual Handling Operations Regulations 1992. I propose first to look at the case made
under the regulations. Regulation 4
provides:
"Duties of Employers
4.(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
- ...
(ii) take appropriate steps to reduce the
risk of injury to those employees arising out of their undertaking any such
manual handling operations to the lowest level reasonably practicable ..."
[29] The defenders in the risk assessment which they carried out
recognised that there was a risk of injury arising from the manual handling
operations that might be involved in the mucking out process. Mr Hanretty's argument was that standing such
a risk it was incumbent upon the defenders, so far as was reasonable
practicable, to avoid the need for the manual handling part of the operation,
or in any event, to take appropriate steps to reduce that risk to the lowest
level reasonably practicable. He argued
that the defenders had failed to do so.
In that regard he relied upon the evidence of Mr Hyslop that the skilled
tractor operator could effectively clear away the waste material leaving very
little to be managed by hand and that, in any event, the defenders themselves
recognised that a JCB, with the ability to access areas that the less skilled
tractor operator might not be able to access, supported the view that they had not
taken appropriate steps to avoid the manual handling part of the operation or
at least to reduce the risk of injury to the lowest level reasonably
practicable. Mr Davies did not seek to
suggest that the pursuer was not engaged upon a manual handling operation when
carrying out the forking out process.
[30] The pursuer has proved that he was engaged in a manual handling
operation and that it involved a risk of his being injured. That risk materialised. In terms of Regulation 4(1)(a) the defenders
are under a duty to avoid the need for such an operation unless they can prove
that it was not reasonably practicable to do so. In my view the defenders have failed to
discharge that onus. There were mechanical means open to them to
avoid the forking out the pursuer was engaged upon at the time of his first
accident. In any event the defenders
have failed to prove that they reduced the risk of injury to the lowest level
practicable.
[31] So far as the pursuer's common law case is concerned in
relation to the first incident, in light of my conclusion that there was a
breach of Regulation 4 of the Manual Handling Operations Regulations, this
issue is now an academic one. In a short
submission on this issue, Mr Hanretty contended that he should also succeed on
his common law case but I confess I had some difficulty in seeing where it was
suggested that in relation to this incident there had been negligence on the
part of the defenders. It was not
suggested for example that there had been some failure in system or in relation
to the provision of equipment. The
suggestion seemed to be that the pursuer was engaged in a task involving a risk
of injury that he might have been saved from doing if the waste material had
been removed by other means, but, whereas that can set up liability under
reference to the terms of Regulation 4 of the Manual Handling Operations
Regulations, it does not seem to me that that means the defenders would be at
fault at common law. For the pursuer to
succeed at common law he requires to prove that it was reasonably foreseeable
that he probably would sustain injury while engaged in the task of forking
out. As Lord Macfadyen explained in
Hall v City of Edinburgh Council 1999 SLT 744 that is a different question
to whether or not for purposes of Regulation 4(1) of the Manual Handling
Regulations the operation on which he was engaged involved a possible risk of
his being injured as opposed to a probable risk. I am not satisfied that the pursuer has
established that the defenders are in breach of their common law duty of
care. The operation that the pursuer was
engaged upon was one that he and other employees of the defenders had carried
out in the past and there was no suggestion in the evidence that any
difficulties had been experienced before.
In my view as a generality the use of an implement such as a fork does
not carry with it the foreseeable risk of injury required at common law to
impute fault to an employer.
[32] In relation to the second accident the pursuer first relied
upon Regulation 5 of the Workplace (Health, Safety and Welfare) Regulations
1992 ("the Workplace Regulations"). That
regulation provides:-
"Maintenance of workplace and of equipment,
devices and systems
5.(1) The workplace and the equipment, devices
and systems to which this regulation applies shall be maintained (including
cleaning as appropriate) in an efficient state, in efficient working order and
in good repair."
[33] Mr Hanretty argued that the presence of the hole meant that the
pursuer's workplace had not been kept in good repair. On the assumption that the Workplace
Regulations apply I agree with Mr Hanretty's submission.
[34] In relation to the second accident the pursuer also relied upon
Regulation 12 of the Workplace Regulations.
That regulation provides:
"Condition of floors and traffic routes
12.(1) Every floor in a workplace and the surface of
every traffic route in a workplace shall be of a construction such that the
floor or surface of the traffic route is suitable for the purpose for which it
is used.
(2) Without prejudice to the generality of
paragraph (1), the requirements in that paragraph shall include requirements
that -
(a) the floor or surface of the traffic
route shall have no hole or slope, or be uneven or slippery so as, in each
case, to expose any person to a risk to his health or safety; ..."
[35] The essence of Mr Hanretty's position was that the presence of
the hole exposed the pursuer to a risk to his health and safety and that
accordingly the defenders were in breach of Regulation 12. I did not understand Mr Davies to contend
that if I found in fact that such a hole as described by the pursuer at the
time of his accident existed, and on the assumption the Workplace Regulations
applied, that the defenders would not be in breach of Regulation 12.
[36] The defenders' primary position in relation to the Workplace
Regulations was that they did not apply to the pursuer's workplace at the time
of the second accident. In advancing that position Mr Davies relied
upon Regulation 3 which is in the following terms:
"Application of these Regulations
3.(1) These Regulations apply to
every workplace but shall not apply to - ...
(4) As respects any workplace which is in
fields, woods or other land forming part of an agricultural or forestry
undertaking, but which is not inside a building and is situated away from the
undertaking's main buildings -
(a) Regulations 5 to 19 ... shall not apply to
any such workplace; ..."
[37] Mr Davies submitted, and I agree, that the defenders were
engaged in an agricultural undertaking at Pollock
Country Park. That being so the critical question on
whether the particular regulations founded upon by the pursuer apply is whether
the shinty shed comes within the meaning of the word "building" as that word is
employed in Regulation 3(4). Mr Davies
submitted that the shinty shed was not a building, and under reference to the
Shorter Oxford Dictionary and Chambers Dictionary definitions, he argued that a
building had to be a substantial structure such as a house or a factory. In response Mr Hanretty pointed to size of
the shinty shed and nature of the construction involved in it.
[38] I am of the view that the shinty shed does come within the
meaning of the word "building" as that word is used in the Workplace
Regulations. What might be described as
a "building" must generally be a question of fact and degree. The shinty shed is a substantial structure
with a brick floor and a large roof area.
Its open-sided design is for a particular purpose - to cater for the
fact that it is long-haired highland cattle that are to be housed. However, its function is essentially that of
a barn, namely a means of providing shelter for the cattle during the winter
months. In the circumstances I am
satisfied that the Workplace Regulations do apply.
[39] Mr Davies accepted that if the Workplace Regulations applied
and if the pursuer's account of the second accident was to be accepted, then
the defenders would be in breach of the regulations. That concession was properly made. I am satisfied that the defenders are in
breach of their duties under Regulations 5 and 12 of the Workplace Regulations.
[40] In relation to the second accident the pursuer also relied upon
Section 2(1) of the Occupiers Liability (Scotland)
Act 1960. Here I agree with Mr Hanretty
that in light of Mr Hyslop's evidence the defenders are taken to have known of
the existence of the hole. It was
reasonably foreseeable that in respect of the type of hole described by the
pursuer as existed at the time of his accident that someone in the position of
the pursuer could sustain injury. I
conclude that the defenders are in breach of the 1960 Act. Again I did not understand Mr Davies to
seriously disagree with such a conclusion if the hole described by the pursuer
was present and reports had been made previously to the defenders as to its
existence.
Contributory Negligence
[41] Mr Davies argued that in the event of the defenders being found
liable to make reparation to the pursuer, in relation to the first accident the
pursuer should also be found at fault.
The thrust of Mr Davies' argument was that the pursuer should have taken
care to not lift too heavy a load when he was forking out, and, furthermore,
should not have thrown the load over his left shoulder.
[42] Records produced by the defenders (No 7/2 of process) disclose
that the pursuer along with Mr Moy attended a manual handling course on 27 July 2001. Neither the pursuer nor Mr Moy had any
recollection of doing so, and although their names have been entered as being
in attendance, they have not signed in the appropriate part of the document to
acknowledge that they did indeed participate.
The course was organised by Mr McCall and he had a clear
recollection of speaking to the pursuer and Mr Moy about certain aspects
of their work and in particular giving advice in relation to the operation of
forking out. Mr McCall gave his
evidence in a clear and straightforward way, and I have no hesitation in
accepting it. I find therefore that the
pursuer had received advice on how to fork out in as safe a way as possible,
and in particular to avoid lifting too heavy a load and unnecessary twisting
movements. However, I am satisfied that
the pursuer did not seek to lift more than he could reasonably manage and,
furthermore, that when he disposed of the material he simply turned to throw
the material to his left hand side. In
my opinion the sole cause of the discomfort felt by the pursuer in the course
of the first incident was that he had to engage upon a manual handling
operation for a relatively prolonged period of time in a situation when that
was not necessary.
[43] In relation to the second accident, Mr Davies argued that the
pursuer should have taken greater care where he placed his feet. He argued that the pursuer should have been
aware of the presence of the hole having been working in that general
area. I do not consider that any blame
should be placed upon the pursuer in respect of the second incident. Because the hole was full of discoloured water
and waste material, it was not visible to him.
It was in effect a hidden danger.
Conclusion
[44] In the circumstances I find the defenders liable to make
payment to the pursuer in the agreed total sum of г6,521.28. At this stage I do not propose to pronounce
decree but rather put the case out by order so that I can be addressed on any
issues relating to interest on the agreed sum prior to pronouncing decree, and
to be addressed on the issue of expenses.
