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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 89
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PD530/06
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OPINION OF LORD CLARKE
in the cause
GRAHAM ROBERTSON
Pursuer;
against
GLASGOW
CITY COUNCIL
Defenders:
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Pursuer:
Young; Digby Brown, SSC
Defenders: G J Clarke; G Lindsay,
Solicitor
29 May 2007
Introduction
[1] In
this action the pursuer sues the defenders for damages in respect of an injury
he sustained to his right ankle while working in the course of his employment
with them. The parties have agreed that,
on a full liability basis, the sum due to be paid to the pursuer in damages
(inclusive of interest to the date of the commencement of the proof) is
г75,000. The defenders, however, deny
liability and have, moreover, pled contributory negligence.
[2] The
pursuer is a 60 year old man who began working with the defenders in July 2003
as a temporary gardener. Prior to that
he had worked for over 20 years with British Telecom, working as an underground
cabler. In that position he drove a van
for British Telecom.
[3] During
the summer of 2003 the pursuer was usually engaged in grass-cutting operations
at park gardens operated by the defenders.
When the garden activities came to an end in September the pursuer and
other temporary gardeners were asked to continue working by the defenders, to
assist in general tasks. The pursuer was
a driver of one of the defenders' vehicles.
He was put in charge of a number of men.
On 22 January 2004
he was instructed, along with other men, to uplift a number of plywood boards
which had been placed over grass at one of the defenders' parks. These boards were to be removed to a yard in
the defenders' depot a Victoria Park, Glasgow. Six men were engaged in this operation with
two vehicles being used. Fifteen to twenty
sheets in total were to be uplifted.
[4] The
vehicle driven by the pursuer was a LDV tipper which had side flaps which could
be lowered, by means of a pin and bolt arrangement, to allow for off-loading
the contents of the vehicle. Photographs
of the particular vehicle are part of a report by Dr Ian Randle,
No 6/21 of process.
[5] On
the day of the accident to the pursuer, the six men engaged upon this
particular operation were divided into two groups of three. The pursuer was working with Ralph Murphy and
Thomas Canavan. The pursuer and his said
fellow employees uplifted approximately 10 of the said boards from their
position in the park where they had been placed. They did so by manually lifting them and
putting them on to the vehicle at its sides, the side flaps having been
lowered.
The Evidence
[6] The pursuer in his evidence
said that these boards had been manually unloaded by the said means, that is,
by removal from the side of the vehicle when they had been placed originally in
the park. The boards had become covered
with mud due to having lain in the open.
This had added to their weight and had made them slippery.
[7] When
the pursuer's vehicle was loaded with approximately 10 boards, he drove with
his two men to the defenders' depot at Victoria Park. The pursuer was to drive up as close as
possible to a skip in which the boards were to be placed. He advised the Court that he could not get
right up to the skip and had to park the vehicle some four metres from it. In his evidence-in-chief, the pursuer
informed the Court that he and his colleagues had tried to remove the boards
from the side of the vehicle but there was insufficient space to manoeuvre them. He then decided to open up the rear flap of
the lorry and to tip the load so as to allow the boards to slide from the
vehicle on to the ground. He told the
Court that he did not tip the vehicle to its full extent because while carrying
out the operation he thought he had heard all the boards come off the
vehicle. He, accordingly stopped
tipping, left the tipper at its three-quarters raised position. He turned off the engine of the vehicle and
then joined his two colleagues to assist in the task of lifting each board and
carrying it to the skip.
[8] As
averred by the pursuer in Article 4 of Condescendence, the accident to him
occurred as follows:
"The pursuer
raised the tipper to the three quarter position to allow the boards to slide
from the back of the vehicle. As a
result, the ends of the boards at the rear of the vehicle appeared to be
resting on the ground. The boards were
then upright, balanced against the back of the vehicle. The pursuer, along with Thomas Canavan,
manually lifted one board at a time from the back of the vehicle to the area
where the boards were to be stored. The
boards had been used to cover and protect grass areas at Govan
Park from heavy digger
vehicles. The boards were covered in mud
and were soaken with water. The boards were heavy. They had removed approximately 5 boards. Unbeknown to the pursuer a number of boards
had stuck together and had not fully slid off the back of the vehicle. As the pursuer and Thomas Canavan removed the
6th board, one of the remaining boards on the back of the vehicle
slid off striking the pursuer on his right ankle."
[9] In
examination-in-chief, the pursuer said that he was waiting to take his turn to
lift one of the boards which were resting against the rear of the vehicle. He proceeded to pick up a board with
Mr Canavan. He was situated at the rear driver's side of the vehicle. Mr Canavan was at the rear passenger
side. The pursuer and Mr Canavan
lifted the board to waist level and began to move with it when one of the
remaining boards which had been leaning against the tipped section of the
vehicle slipped and hit the top of his right ankle. The pursuer said that he thought the board in
question was the last of those remaining resting against the back of the
vehicle. The pursuer described
Mr Canavan as apparently having lost his balance which resulted in the
pursuer moving forward to balance him, just before he was struck on the right
ankle.
[10] The pursuer said that he had never received any instruction by
the defenders as to the appropriate way to remove boards from the lorry. In particular, he had never been told that
they must always be removed from its side.
He had never been told that if its load was to be removed by tipping it
out, the tipper should be tipped up to its maximum height and the vehicle
driven away from the tipped load before the load was to be lifted. The pursuer specifically denied that he and
his colleagues had lifted five of the boards, by the sides of the vehicle, before
tipping and that he had simply walked in the way of boards which were falling
off the vehicle. An incident report
form, 6/6 of process, apparently completed by the pursuer's supervisor, William
Black, was put to the pursuer.
Part E of the form is headed "DESCRIBING WHAT HAPPENED" and narrates
as follows:
"Unloading 8' 4'
Plywood Boards from Back of LDV with Tipper 3/4 raised. Boards stuck together with mud and
water. Had to be manually
off-loaded. Removed 5 boards and
stacked. Sixth board was being taken off
back of vehicle when remaining four boards slipped off hitting Graham on right
ankle. Graham fell backwards and twisted
over. Ambulance called. Employee taken to Western Infirmary."
[11] The pursuer said that that description of the accident was in
accordance with his recollection of what had happened to him, although he had
himself never spoken to Mr Black about it before this form was completed,
on 22 January 2004. Another document, 6/7 of process described as
"Report of an injury or dangerous occurrence" was put to the pursuer. In it the accident is described in the
following terms:
"IP was
unloading plywood boards from back of LDV, the boards were stuck together with
mud and water and had to be manually off-loaded. They had removed 5 boards, the remaining 4
slipped hitting IP on the ankle causing him to fall backwards and twist
over. Preventative measures: Tool box talks will be arranged for all
employees."
[12] The pursuer considered this also to be a generally correct
description of the accident. The
pursuer, however, took issue with the description of the accident in another
document 6/8 of process in which it is stated as follows:
"Employee
unloading 8' 4' boards from back of vehicle with tipper 3/4 raised when
boards (4) slid off vehicle hitting employee on right ankle."
The pursuer said that four boards
did not hit him. They had, he said, been
"holding down the board that hit him".
[13] The pursuer was examined and interviewed by Mr Peter Scott,
consultant orthopaedic surgeon, on 28
November 2005. Mr Scott's
report is dated 2 December 2005
and is 6/1 of process. Mr Scott
reported the pursuer telling him that the accident occurred as follows:
"Was working as
a seasonal gardener when he was injured in an accident on 22 January 2004.
He was involved with other workers in transporting a number of heavy 8
feet x 6 feet plywood boards. A number
of them were stacked in the back of a lorry which was capable of tipping and in
order to unload the boards from the lorry, the lorry was tipped up at an angle
to allow the boards to slide from the back of the vehicle. A number of the boards had done so and he
was, with another worker, lifting the boards up to stack them. As he and his partner lifted one of the
boards his partner slipped backwards and he stepped forward along with the
board, just as a second board, which was stuck on the back of the lorry, slid
down and struck the outer aspect of his right ankle."
The pursuer, in evidence, said that
he considered that what Mr Scott recorded there was a fair account of what he
had told Mr Scott. The pursuer's
evidence was that any instruction which he had received from the defenders
about how he should carry out his work for them was only in respect of the use
of grass mowers and other grass cutters.
In particular there was no induction course or instructions in relation
to the winter work which the pursuer was engaged upon when the accident
occurred.
[14] In cross-examination the pursuer said that all the boards were
touching the ground at the time of the accident and none was left lying on the
lorry. While he accepted that the tipper
had not been raised fully at the time of the accident, the pursuer maintained
that he had raised it as far as he could.
He then said that he thought it was fully extended when he heard the
boards slipping down from the vehicle.
His description of the accident involved his leg having extended under
three of the remaining boards which then slipped allowing the fourth board to
hit his ankle. When it was put to the
pursuer that this version of events did not square with what was averred on his
behalf on record, he maintained that all the boards had reached the ground and
only one, which had been supported by other boards, slipped and hit him. He said that had he known that one of the
boards was still stuck on the lorry he would not have approached it. He suggested that three quarters of the boards
in question, which had hit him, had come off the lorry. The board in question was camouflaged because
the lorry was covered in dirt and mud.
In cross-examination the pursuer said that the reason that he and his
men could not remove the boards from the sides of the lorry was that they were
stuck together. That was why they
decided to tip them off. In addition
there was not enough room to remove them from the left hand side because it was
adjacent to a JCB vehicle which was parked at the locus.
[15] In re-examination the pursuer said that his right ankle found
itself in the path of the remaining boards because he had stepped forward to
balance himself.
[16] Evidence was led from Ralph Murphy, the pursuer's fellow
workman. At the time of the accident
this witness had been working as a temporary gardener with the defenders and
had done so for four years. The witness confirmed
that the boards were sodden with mud and were very difficult to handle. They had been lying on the ground for months
in rainy conditions. Mr Murphy said
that when he, the pursuer and Mr Canavan arrived at the yard at the
Victoria Park depot, the pursuer tipped the vehicle to try to remove all the
boards from it. They did not all tip off
because some were stuck together. He and
Mr Canavan had tried to prise them apart.
Three or four of the boards had slipped off. No boards had been removed by the men before
the tipper was tipped. This witness said
that the accident occurred as a result of four boards, which had not come off
the lorry, hitting the pursuer, as the pursuer was holding another board at the
rear of the vehicle. The four boards
which hit the pursuer had been stuck together.
[17] The witness said that he had never received any instruction in
loading or unloading the tipper truck.
After the accident to the pursuer, employees like himself, were advised
by the defenders to off-load from the side of the vehicle.
[18] In cross-examination Mr Murphy said that the four boards which
hit the pursuer had been lying flat on the tipper. All the men, including the pursuer, knew that
there were boards left on the tipper because of being stuck with mud. The pursuer would, he said, have been able to
see the four boards in question. The
accident occurred when Mr Canavan and the pursuer were facing towards each
other, with each holding an end of one of the boards. The witness said that after the boards hit
the pursuer Mr Canavan had uplifted the four boards off the pursuer and he
himself had dragged the pursuer out from under them.
[19] A safety officer had come to the scene of the accident about
half an hour after it had occurred and the witness had told him what had
happened. He did not think that he had
told the safety officer that five boards had been removed from the tipper
before it was tipped.
[20] In re-examination the witness said that it was only just before
the accident that he realised that all the boards had not slipped down from the
tipper.
[21] Thomas Canavan gave evidence.
He, too, confirmed that the boards were wet and muddy. At the time of the accident he had been
standing at the rear passenger side of the vehicle and the pursuer was at the
rear driver's side. He and his
colleagues had already moved three of the boards to the place in the yard where
they were to be left. He and the pursuer
were in the process of lifting the last boards which had slipped off after the
tipper had been tipped. As they were
doing so, a board which had not slipped off, struck the pursuer's leg. Originally, the witness said, it looked as if
one board had hit the pursuer. He was
pinned to the ground. The witness had to
lift the board from him. The witness
explained that the boards which had slipped off had held the remaining boards
back on the tipped up tipper. As the
boards which had slipped off were removed, this released the pressure which had
been holding the other boards and allowed them to fall forward. Mr Canavan said that if the tipper had
been tipped to its maximum height, the accident would not have occurred because
the boards would all have slipped off the vehicle, to the ground, before the
men set out to lift them. He was aware,
before the accident, that some of the boards remained stuck on the tipper. He said that he had told both the pursuer and
Mr Murphy that that was the case.
The pursuer, however, wanted to take those boards off after they had
removed the first four boards which had slipped off. The witness said that he had never done this
task before and had had no instruction or training in relation to it. There were, he said, "suggestions" after the
accident that the men should unload only from the side of the vehicle.
[22] This witness recalled speaking to the defenders' safety
officer, Mr McGoogan, about half an hour after the accident, and he
thought he had told him essentially what he was now saying in his evidence to
the Court. He thought that seeking to
lift boards, when others remained stuck on the tipper, which had been tipped up,
was dangerous but he was not the chargehand and was not in charge of the
vehicle. He, however, was sure that
either he or Mr Murphy had said to the pursuer to tip the vehicle to its
maximum height because not all of the boards had slid off.
[23] In cross-examination Mr Canavan repeated that either he or
Mr Murphy had suggested to the pursuer that he should tip the tipper to
its full height but that he had said that they should lift the remaining boards
off the tipper manually. The witness
said he had no idea why the pursuer decided to tip the tipper in the first
place. Two broken boards had been lifted
off before the tipper was tipped.
Mr Canavan insisted that the fact that the four boards remained on
the tipper would have been visible to anyone working at the rear of the
vehicle. The pursuer knew that four
boards had stuck on the tipper because he went to lower the tipper to remove
them. Mr Canavan said the pursuer's
mistake was to seek to remove the boards which had come off thus releasing the
other boards. It was, Mr Canavan
said, dangerous to seek to remove the four boards which had been tipped off
when a number of boards remained on the vehicle because when the first boards
were removed the others would slip, which was exactly what happened. The board which he and the pursuer were
moving was the last which had been tipped from the vehicle. He accepted that he may have told
Mr McGoogan that five boards had been removed before the tipper was
tipped. He did not accept that the
accident happened, not when he and the pursuer were seeking to lift the boards,
but when the pursuer was simply walking behind the lorry. Mr Canavan repeated that he had told the
pursuer to tip the tipper to its full height to get the remaining boards to
slip off. The boards remaining on the
tipper, he said, were an obvious danger.
[24] The pursuer led as an expert witness Dr Ian Randle, who is an
ergonomics consultant. He provided a
report which is 6/21 of process. In that
report, which he spoke to in evidence, Dr Randle said that he considered
that the operation in respect of which the pursuer was engaged at the time of
the accident was one to which the Manual Handling Operations Regulations 1992
applied. The size and weight of the
plywood boards were such that manually uplifting them from the rear of the
vehicle should have been subject to a full risk assessment. Mr Randle had considered the document
6/9 of process which is titled
"Glasgow
City Council
Health & Safety Risk Assessment - (Risk 111
Doc)."
Section 8 of the document covers
"loading and unloading vehicles". The
degree of risk therein is stated as low and the preventative measures are
stated as manual handling training and provision of PPE. Mr Randle said that while it was clear
that the risks involved in unloading vehicles had been considered at the
general level in this assessment, it did not represent a detailed assessment of
the manual handling risks of the material task as required in the Regulations. It was the witness's view that had the
defenders taken account of the factors listed in Schedule 7 of the
Regulations in their assessment and had they made reference to HSE guidelines
on lifting and lowering, then a singular risk would have been identified. A great deal of his evidence to the Court,
was taken up by referring to methods of lifting which he considered should have
been instructed, having regard to the risk of back injury to employees. The accident, in question, of course did not
result in back injury to the pursuer, because of a lifting manoeuvre, as such,
but by virtue of him being struck by an object.
The witness did, however, advise the Court that, having regard to the
lack of stability in the boards, the defenders should have instructed the
pursuer and his fellow employees to remove them from the side of the vehicle
only, particularly if the boards were covered with dirt or mud. His opinion also was that even if the boards
were removed from the side of the vehicle they should have been stacked up
vertically "like panes of glass". This
view was given because he thought that it was preferable to have men carrying
the boards on the vertical plane.
[25] The only witness for the defenders was Mr Bernard McGoogan, who
is an assistant Health & Safety Officer with the defenders. He had first heard of the pursuer's accident
some 15 minutes after it had occurred, having been contacted by Mr Black,
the pursuer's supervisor. He went to the
locus, taking a camera with him. The
pursuer had been removed to hospital by the time Mr McGoogan arrived at the
locus. He met Mr Black, Mr Canavan and
Mr Murphy. He asked them what had
happened. Mr Canavan and Mr Murphy had
told him that they had unloaded five or six boards manually from the tipper
before it was tipped up. The tipper was
raised in an attempt to remove the remaining four boards. The tipper had been raised to its
three-quarter position by the pursuer.
The pursuer then went to the rear of the vehicle to give Mr Murphy a
hand in lifting the boards. Mr McGoogan had asked why the tipper had not
been tipped to its full height but was given no explanation. Production 7/1 are photographs taken by
Mr McGoogan of the vehicle at the locus.
The top left photograph shows the vehicle, he said, tipped at the
position it was in when the boards came off it.
Mr McGoogan said that he had asked Mr Murphy and Mr Canavan why all
the boards had not been removed by extending the tipper to its full
height. They had replied that they were
not in charge and were just doing what they were told.
[26] In cross examination the witness said most of the recalling of
the circumstances of the accident to him was done by Mr Canavan. There was, however, no disagreement between
Mr Canavan and Mr Murphy as to what had happened. The witness said that had he been carrying
out the task he would have extended the tipper fully to allow all the boards to
slip off onto the ground. What the
witness had been told was that the accident occurred when the pursuer had passed
to the rear passenger side of the vehicle to assist Mr Murphy in manoeuvring a
board. The witness said that he had
taken some notes of what he was told. Mr
Canavan and Mr Murphy could not be specific as to whether one board or all
of the four boards had struck the pursuer.
Mr McGoogan accepted that what Mr Black had said in the incident form
6/6 of process differed from what he said he was told had happened. What the witnesses, Canavan and Murphy had
told him seemed plausible and sensible.
Mr McGoogan said that after the accident he made a recommendation
that employees should be told to remove boards off the lorry by lowering the
sides or mechanically tipping them off.
He also recommended that such items should not be manhandled if they
were covered with mud or dirt.
Pursuer's Submissions
[27] Junior counsel for the pursuer in his submissions invited me to
hold, contrary to the evidence of Mr McGoogan, that the pursuer had been
lifting a board at the time of the accident.
The pursuer, Mr Canavan and Mr Murphy had all given evidence to that
effect. Mr McGoogan's evidence was
hearsay and contrary to what the pursuer and the two other witnesses had said
on oath. Mr McGoogan accepted that his
version was contrary to Mr Black's description of the accident contained in 6/6
of process. He had not interviewed the
pursuer after the accident and no contemporaneous notes, made by him, had been
produced.
[28] It was accepted by junior counsel for the pursuer that there
was some dispute among the witnesses as to how many boards had struck the
pursuer. Junior counsel submitted that
ultimately the number of boards did not really bear upon the question of
liability though it might be relevant to the question of contributory
negligence. The evidence of the pursuer
and Mr Murphy was that men did not know that any of the boards had remained on
the vehicle and had not descended. Only
Mr Canavan was to the contrary effect.
Junior counsel posed the question as to why Mr Canavan was quite content
to help the pursuer if he was aware of that being so. Junior counsel also submitted that the most
likely scenario, in fact, was that only one board had been left on the tipper
and the remaining boards had obscured the fact that it had not descended.
[29] While the pursuer had attended an induction course regarding
his summer work there was no training given when he transferred to winter
work. He had never done the particular
task in question before and was not given any instruction regarding it. The defenders had not carried out any
relevant risk assessment. It was to be
noted that after the accident advice was given to employees regarding the
appropriate way to remove such boards from the tipper vehicle. There was no instructed system of work. The pursuer and his colleagues were simply
left to get on with the task which they had not done before. No advice was given to them as to how to
carry out that task.
[30] Junior counsel submitted that the accident in question was
reasonably foreseeable. It was
reasonably foreseeable that an accident would occur when the boards were in the
condition they were, sticking together, and remaining on the vehicle when the
tipper was only tipped up partially.
The pursuer's common law case of negligence had been established.
[31] Junior counsel for the pursuer submitted that the pursuer's
case based on breach of statutory duty by the defenders had also been made out,
in the first place in relation to Regulation 4 of the Manual Handling
Operations Regulations 1992 and, in the second place, under Regulation 13 of
the Workplace (Health, Safety and Welfare) Regulations 1992. The evidence was that, at the time of the
accident, the pursuer was carrying out a lifting operation, that is the removal
of approximately ten boards from the back of the lorry to a position at the
side of the lorry. Reference was made to
Regulation 2 of the Manual Handling Operations Regulations which provides, inter alia
" '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 operations at work
which involve a risk of their being injured -
(i) make a suitable and sufficient
assessment of all such manual handling operations to be undertaken by them,
having regard to the factors which are specified in column 1 of
Schedule 1 to these Regulations and considering the questions which are
specified in the corresponding entry in column 2 of that Schedule,
(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, and
(iii) take appropriate steps to provide any of
those employees who are undertaking any such manual handling operations with
general indications and, where it is reasonably practicable to do so, precise
information on -
(aa) the weight of each load, and
(bb) the heaviest side of any load whose centre
of gravity is not positioned centrally ....".
Reference was made by counsel then
to Schedule 1 headed "FACTORS TO WHICH THE EMPLOYER MUST HAVE REGARD AND
QUESTIONS HE MUST CONSIDER WHEN MAKING AN ASSESSMENT OF MANUAL HANDLING
OPERATIONS". Factor 2 in column 1
of the Schedule is "the loads" and poses the question "Are they: 'Unstable or with contents likely to
shift'". Junior counsel submitted that
for a duty to have been imposed in terms of the Regulations, it was not
necessary for the pursuer to show that the risk of injury was a risk arising
from the imposition of a load and that for there to be any risk of injury for
the purposes of the Regulations the injury need not be more than a foreseeable
injury. That proposition was advanced
under reference to the decision of the Second Division in the case of Cullen v North Lanark Council 1998 S.C.451, particularly at pages
454-455. When the employer had shown
that it was not reasonably practicable to avoid the need for his employees to
undertake any manual handling operation at work, which involved a risk of them
being injured, the onus was on him to comply with Regulation 4(1)(b) of
the Regulations. The defenders had not
averred or proved that it was not reasonably practicable to avoid the need for
employees to undertake the manual handling operation in question. Nor had they asserted that they had complied
with Regulation 4(1)(b). I was
referred by junior counsel for the pursuer to the decision of the Extra
Division in the case of Davidson v Lothian and Borders Fire Board 2003
S.L.T.939 and the Opinion of Lord Macfadyen, in that case, at page
943C-944A. His Lordship there set out a
submission made on behalf of the pursuer in that case which was to the
following effect:
"in order to
make a case under reg 4(1)(b)(ii), all that he required to prove was (i) that
he was engaged in the manual handling operation, (ii) that it gave rise to a
risk of injury; (iii) that an event following within the ambit of that risk
occurred and (iv) that actual injury was thereby caused. If these matters were proved the pursuer was
entitled to succeed unless the defenders made out the statutory defence that
they had taken appropriate steps to reduce the risk of injury to the lowest
level reasonably practicable. The
defenders accepted that that was so".
Although the construction of
Regulation 4(1)(b)(ii) set out in that paragraph was conceded on behalf of the
defenders in that case, there was no suggestion that the Court did not agree
that it was correct.
[32] Against that background junior counsel for the pursuer
submitted that the Regulations applied because the operation undertaken at the
time of the accident involved manual lifting.
There was a foreseeable risk of injury arising during that operation. There was no evidence led by the defenders to
establish compliance with Regulation 4(1)(b)(ii). The pursuer had sustained injury from an
event falling within the ambit of the Regulations. The pursuer's case of statutory fault under
these Regulations was established.
[33] Counsel for the pursuer founded also, albeit, I think, somewhat
lightly on Regulation 13 of the Workplace (Health, Safety and Welfare)
Regulations 1992. Reference was made in
the first place to Regulation 3 which provides that the Regulations shall apply
to every workplace with certain exceptions.
Regulation 3(3) continues ...
"(b) regulation 13 shall apply to any such
workplace only when the aircraft, locomotive or rolling stock, trailer or
semi-trailer or vehicle is stationary inside a workplace and, in the case of a
vehicle for which a licence is in force under the Vehicles (Excise) Act 1971,
is not on a public road".
Regulation 13 provides inter alia as follows:
"(1) So far as reasonably practicable, suitable
and effective measures shall be taken to prevent any event specified in paragraph
(3).
(2) So far as is reasonably practicable, the
measures required by paragraph (1) shall be measures other than the
provision of personal protective equipment, information, instruction, training
or supervision.
(3) The event specified in this paragraph
are -
(a) any person falling a distance likely to
cause personal injury;
(b) any person being struck by a falling
object likely to cause personal injury".
The Regulations, I was informed by
counsel, had been revoked in 2005 but were in force at the time of the
accident. Counsel had been unable to
trace any authority giving guidance on the application of Regulation 13. Nevertheless he contended that the Regulations
applied to the present case as the vehicle was a "workplace" for the purpose of
the Regulations and the accident had involved "the event" of the pursuer being
struck by a falling object. The
defenders had failed to aver and prove compliance with the Regulation
requirements and for that reason the pursuer's case of statutory fault on this
basis should succeed.
[34] Counsel for the pursuer then turned to address the issue of
contributory negligence. While he
accepted that the pursuer was in de facto
charge and control of the operation, on the day in question, and while it was
accepted that he could have sought to have more men around or could have tipped
up the lorry in a different way, it was submitted that he was a chargehand in
name only and he had no particular expertise or experience in the work in
question, nor had he received any instruction in relation thereto. For these reasons it was submitted that
contributory negligence would only arise if the Court were to accept
Mr Canavan's evidence of the circumstances of the accident. Even then, any deduction should not exceed
20%. I was invited, however, to accept
the pursuer's evidence as to what happened, although junior counsel for the
pursuer accepted that all of the witnesses had been doing their best to recall
matters and to tell the truth. Elements
of difference had arisen in their respective version of events but the material
aspects of the pursuer's case had been established.
Defenders' submissions
[35] In reply junior counsel for the defenders invited me, in the
first place, to accept that the accident occurred in the way described by Mr
McGoogan, albeit that his account was hearsay.
The position was that the men, including the pursuer, having removed
some boards manually, the tipper was raised by the pursuer to three-quarters of
its height to enable the remaining boards to slip down. This did not work. The pursuer came from the driver's side of
the vehicle to help the other two men remove the boards. As he got to the rear of the vehicle the
boards slipped and hit him. The pursuer
himself had caused the danger of which he should have been aware. He could probably have averted that danger by
raising the tipper to its full height.
He did not do so but, in the knowledge that the boards might slip from
the partially tipped vehicle, put himself into danger by standing where he might
be struck, should the boards slip. It
was not reasonably foreseeable that the pursuer should stand in front of a
raised tipper in the path of boards which might slip. Counsel for the defenders criticised Mr Randle's
evidence to the extent that it criticised lack of instruction on how to lift
the boards. There was no foreseeable
risk of injury and, if this was so, the Manual Handling Operation Regulations
did not apply.
[36] Junior counsel for the defenders said that if he was wrong
about this, and there was a foreseeable risk, 6/9 of process showed that the
defenders had considered the risk. The
question was whether the risk of injury had been reduced to the lowest level
reasonably practicable. The lorry had
sides which could be lowered and its tail could also be lowered. There was therefore good access to the loads
and the load itself was quite small.
More men could have been asked to assist if necessary. The accident had not been caused by any
breach of those Regulations.
[37] As regards Regulation 13 of the Workplace (Health, Safety and
Welfare) Regulations 1992, junior counsel for the defenders pointed out that
the purpose of the tipper was to tip loads.
Accordingly, just because a lorry had been tipped it could not be said
that the defenders were in breach of the Regulations. Any duty to prevent injury from falling
objects in the context of tippers must be met with a requirement not to stand
in the way of the load. Requirements of
reasonable practicability had been met in the circumstances of this case, or
alternatively, the Court should hold that the Regulations were not ever
intended to apply to circumstances like those of the present case.
[38] Counsel for the defenders invited me to accept
Mr Canavan's evidence that he had seen the boards remaining on the tipper
and that there had been a discussion among the men as to whether to tip the
tipper to its full height. He had not
been cross examined about this conversation.
At the beginning of his cross examination Mr Murphy had accepted that
he, too, could see boards remaining on the tipper. He contradicted this, however, in
re-examination. Mr Canavan's version of
events taken together with Mr McGoogan's evidence, established that the
defenders were not at fault. The
accident had been caused by the sole fault of the pursuer. I was invited to assoilzie the
defenders. If, however, the Court was
not prepared to assoilzie the defenders, at the very worst for the defenders
there must be a very significant element of contributory negligence on the part
of the pursuer, which counsel suggested would be at least 50% and would be more
likely to be in the region of two-thirds.
Decision
[39] Whatever is clear about the
circumstances of this accident, there is no doubt that the pursuer, on the
evidence, received no instruction at all in carrying out the winter work with
the defenders which involved removing wet and sodden boards from park greens to
the defenders' depot. In particular
there was no instruction given to him and his fellow employees as to the way to
unload such boards, particularly when they were wet and muddy (as they, no
doubt, were on occasions) and likely to stick together as a result.
[40] As to the way the accident occurred there were, as has been
seen, some significant differences among the pursuer and the other witnesses as
to precisely how the pursuer came to be struck on his ankle. I accept that all the witnesses were doing,
on the whole, their best to recall events.
I found Mr Canavan ultimately to be the most persuasive witness. He gave his evidence in a manner which led me
to conclude that his account was probably the most likely and plausible
description of how the accident occurred.
I, accordingly, accept his evidence to the effect that he and the
pursuer were attempting to lift a board which had slipped off the vehicle but
by doing so they released the pressure on boards which had remained on the
tipper causing them to move and to strike the pursuer on the ankle. I also accept his evidence that if the
vehicle had been tipped up to its full height the boards would probably all
have slipped off the lorry on to the ground and the accident would not have
occurred. The witness, as has been seen,
said that he considered that seeking to lift the boards while others remained on
the tipper was dangerous, and that either he or Mr Murphy advised the pursuer
to tip the truck to its maximum height but that the pursuer declined to do so
saying that he did not wish the boards damaged and that they should be removed
manually. I also accept that none of the
boards, apart from a couple of broken ones, had been removed before the vehicle
was tipped and that the tipping had allowed only some of the boards to slip off
the vehicle while others remained on it.
This view of events was substantially supported by Mr Murphy, who in
cross examination agreed that it should have been obvious to the pursuer that
four boards remained stuck on the tipper, although in re-examination he said
that he himself did not realise that all the boards had come down but he was, at
the material time, standing in a different position from the pursuer and
Mr Canavan.
[41] In the foregoing findings I am satisfied that the pursuer has
made out his case of fault on the part of the defenders at common law in their
failure to establish a safe system of work.
Simply supplying a vehicle which had side flaps, in my judgement, did
not satisfy their duty to provide their employees with a safe system of work
and they ought to have instructed the pursuer and his fellow employees in the
use of the tipper for loading and unloading loads like the boards in
question. Those instructions should have
been that the boards should have been removed from the side of the vehicle or,
alternatively, that the tipper be extended to its full height and the boards deposited
on the ground. If the latter method was
to be used then their employees should have been instructed to ensure that all
the boards had left the tipper before seeking to lift them from the
ground. I was not impressed by submissions,
made on behalf of the defenders, that the pursuer was an experienced man who
should not have required to have been instructed at all about these
things. His experience did not extend to
this kind of work, involving this kind of vehicle, and the unloading of this
kind of load from it.
[42] I am satisfied that the pursuer has also made out his case on
the basis of breach of the Manual Handling Operations Regulations 1992. It seems to me that the Regulations did apply
to the operation in the question for the reasons advanced by counsel for the
pursuer, as noted above, and that the defenders have failed to discharge the
onus on them to show that they took any reasonable steps to reduce the risk of
injury in terms of Regulation 4(1)(b)(i) and (ii).
[43] As far as the case made on the basis of Regulation 13 of the
Workplace (Health, Safety and Welfare) Regulations 1992, as has been noted,
there is apparently no decided authority dealing with the application of these
now revoked provisions. In the absence
of any such guidance I am not satisfied that the pursuer has made out that its
provisions were intended to apply to the use of a tipper truck which is, ex hypothesi, used for tipping out
loads. In any event having reached the
views I have on the pursuer's common law case and his case on the Manual
Handling Operations Regulations, it is not necessary for me to reach a
concluded view on that question.
[44] On the findings in fact I have made I have no hesitation in
reaching the conclusion that the pursuer should be held to be the author of his
own misfortune to a very substantial extent.
He, in my judgement, should have seen that there were boards remaining
on the tipper which were, to some extent, being supported by the board he chose
to move and he should have realised that by moving that board the remaining
boards on the rear of the tipper might move and hit him. He could have, in that situation, either raised
the tipper to its full height (and no satisfactory explanation was ever given
by him as to why he did not do so) or returned the tipper to the horizontal and
removed the remaining boards from the side of the lorry. In failing to do these things I find him to
have been contributory negligent to the extent of 50%. Damages payable to the pursuer by the
defenders are, accordingly, г37,500 having regard to the agreed schedule of
damages, said sum being inclusive of interest until the date of the
commencement of proof, therefore interest is attracted at the rate of eight per
cent per year on the sum of г37,500 from 27 February 2007 until payment.
