Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 183
PD1751/10	OPINION OF LORD PENTLAND in the cause SAMUEL O'NEIL Pursuer; against DHL SERVICES LIMITED Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: McCaffery; Digby Brown

Defender: Martin-Brown; McClure Naismith

11 November 2011

Introduction
[1] In this personal injury action, the pursuer seeks damages from the defenders for injuries he suffered as a result of an accident in the course of his employment with them as a driver/drayman on 3 February 2009 (the pursuer's pleadings mistakenly give the date of the accident as 5 February). I was informed on the first morning of the proof that the parties had agreed quantum of damages in the amount of £12,500, inclusive of interest to the date of decree. I refer to paragraph 1 of the Joint Minute. The live issues at the proof were, therefore, whether the pursuer had established liability against the defenders for the accident (either at common law or for breach of statutory duty or both) and, if he succeeded in so doing, whether and to what extent there should be a finding of contributory negligence.

[2] A number of basic facts were not in dispute at the proof. I shall begin by summarising these. By the date of the accident the pursuer had been continuously employed as a driver/drayman for about 24 years. He is 57 years of age. The pursuer began his career with Tennent Caledonian Breweries. Latterly (and at the time of the accident) he worked at a distribution centre at Dale Avenue in Cambuslang ("the depot"). In or about the early 1990s the defenders acquired the business carried on by Tennents and the pursuer's employment was transferred to the defenders under the TUPE regime. The evidence revealed that the defenders had taken over the employment of a number of drivers and draymen in this way; some of them gave evidence at the proof. At the time of the accident the pursuer was working for a part of the defenders' business known as Tradeteam, sometimes referred to in the evidence as DHL-Tradeteam. Tradeteam are one of the three largest distributors operating in the drinks industry in the United Kingdom. They have about 30 distribution centres throughout the country. In Scotland they operate distribution centres in Cambuslang, Dundee and Aberdeen.

The defenders' system for delivering beer and the equipment used
[3] In order to understand the issues in the case it is necessary to explain something of how the defenders' system for delivering beer worked at the time of the accident (and, I understand, continues to work) and the type of equipment they used (and still use). During the night-shift forklift trucks load trailers with full beer kegs for delivery to customers the next day. The kegs are stacked on pallets. The type of trailer involved in the present case was manufactured by a company called Don-Bur Bodies and Trailers Limited. It had a retractable curtain on both sides. The trailer is, of course, designed to be attached to a cab unit, thereby forming an articulated vehicle. The actual trailer involved in the accident (number 7418) is shown in photographs lodged during the proof (7/19A of process). Each curtain is attached to a runner at the top, enabling it to be opened and closed. There are also ropes hanging down from the runners. There are supposed to be two ropes on each side of the trailer, one at the front and one at the rear. The purpose of these ropes is to assist men to climb on and off the trailer. The ropes are attached to the runners by a karabiner clip (i.e. a looped metallic connecting device with a sprung or screwed gate). The ropes are intended to slide along the runner, to which they are attached. The height from the deck of the trailer to the ground is about 106.7cm at the rear and about 116.8cm at the front. On either side of the trailer, between its deck and the ground, there is a slightly recessed metallic crash bar whose primary purpose is to prevent vehicles from sliding underneath the trailer in the event of a collision. These bars can also be used as steps by men climbing on and off the trailer. To assist in their use as a step the upper surfaces of the crash bars have been fitted with ridged material known as tread-grip. The crash bars do not run the whole length of the trailer. There is also a door at the rear of the trailer; this can only be opened from the outside. On either side of the door there are grab handles designed to be used when climbing in and out of the door. There is also a metal crash bar (again with tread-grip), which can be used as a step.

[4] In the morning the driver is expected to check the cab and trailer, which have been assigned for his use that day, before leaving the depot. Amongst other things, a driver should check that the four ropes are present and in proper working order. The ropes and the karabiner clips are vulnerable to being damaged by the forklifts. In the event that there is found to be a missing or damaged rope, the driver should complete a defect slip and give this to the office. There was some divergence of view amongst certain of the witnesses as to the exact number of ropes which were required, as a minimum, before the trailer would be allowed to leave the depot. In my view, the proper conclusion to draw from the evidence is that the defenders permitted trailers to leave the depot with one rope on either side. I base this finding on the evidence of the defenders' Regional Safety Risk Manager, Mr Paul Staynings, the most senior of the defender's employees to testify, and also on the evidence of Mr Jim Dougan, the defenders' Regional Transport Manager for Scotland. Their evidence on the point was quite clear. In the final analysis the point is not, however, of major importance.

The accident
[5] On the day of the accident the pursuer was working with an experienced drayman, Hugh McDermid. They regularly worked together. They completed their first round of deliveries and then returned to the depot, having collected a number of empty kegs from various customers. These were loaded on the trailer. The pursuer's accident occurred at about 11.45am when he jumped down from the trailer onto a foam-filled pad, known as a Vita pad; it was also referred to in the evidence as a dumping pad or a killer pad. The purpose of the pad is to absorb the weight of a full beer keg when thrown down onto it. The pad has a plastic cover and is about 30cm thick by 1.2m square. The pursuer threw the pad onto the ground and then jumped down onto it. It was snowing and the ground at the depot was icy. As the pursuer landed on the pad, it slid away from underneath him, causing him to strike his back against the ground and almost hit his head on the underneath of the trailer. The pad slid because of the icy condition of the ground.

The pursuer's evidence about the accident and its aftermath
[6] There was no dispute that the pursuer suffered injury when he jumped down from the trailer onto the pad. The issues in the case concerned the circumstances surrounding his decision to get down from the trailer in this way and whether he was justified in so doing. In examination-in-chief the pursuer said that he climbed onto the trailer in order to pull the empty "odd kegs" to the nearside. The so-called odd kegs were those used for cider and Guinness as opposed to lager. The pursuer said that the odd kegs had to be lifted off manually, two at a time, whilst he was standing on the ground. On the offside of the trailer a forklift was being used to unload the empty lager kegs; these (unlike the odd kegs) were stacked on pallets. The pursuer said that he pulled the odd kegs to the front nearside of the trailer. He then had to get off the trailer. According to the pursuer, he then noticed that there was no rope at the front nearside of the trailer. So he decided to jump down onto the pad. He said that he did this because there was no rope which he could have used and he had no other way to get down. In any event, he claimed that he did not have faith in the ropes; they had snapped on previous occasions and could swing back and forwards when being held onto. When it was raining the ropes, according to the pursuer, were liable to slide on the runner when a man was holding onto them. The pursuer did not think that the ropes were safe. At the time of the accident the rope at the rear nearside was trapped behind the open curtain and could only be freed from the ground. He could not, he claimed, have used either of the ropes on the offside because the forklift was still working in that area. Nor could the pursuer have gone out of the back door because, he said, there were empty kegs stacked there and he would not have had enough room. It was common practice, according to the pursuer, for drivers and draymen to jump down onto a pad. Everyone, including managers and supervisors, was aware that this was regularly done.

[7] Unfortunately, there are a number of serious difficulties about the pursuer's position in the present litigation and about his account of the accident in particular. Firstly, the version of events he gave in his evidence in court differed on a number of important points from accounts he had provided at earlier stages. In the Accident Record form (7/2 of process) and in the Report by Injured Person form (document 3 of 7/3 of process) the pursuer is recorded as having said that there was no rope on the trailer. The pursuer signed both of these documents on the day of the accident. Similarly, in the description of the accident he provided on the day to his shift manager, Mr John Templeton, the pursuer is recorded in the Accident Investigation Report, as having said that there were no ropes on the trailer (document 2 of 7/3 of process). When he came to give evidence, Mr Templeton was quite clear that the pursuer told him shortly after the accident that there were no ropes on the trailer. I have no difficulty in accepting Mr Templeton's evidence about this. He seemed to me to be a careful and reliable witness. Mr Templeton investigated matters straight away and found that there were, in fact, three serviceable ropes on the trailer. Only the one at the front nearside was missing. There was also an inconsistency between the averments contained in the Summons and the pursuer's position in evidence as to the part of the trailer from which he jumped. In the Summons the pursuer averred that he jumped from the rear of the trailer. There are several references in the averments in the Summons to the pursuer having jumped from that particular position on the trailer. In evidence, the pursuer was adamant that he jumped from the front of the trailer and not from the rear. His explanation for this discrepancy was that his solicitors must have misunderstood his instructions at the time when the Summons was drafted. I did not find this explanation convincing. I also found it difficult to believe the pursuer when he insisted that he had never seen the Summons. I note as well that in the latest version of the pleadings the pursuer does not aver that he jumped from the front of the trailer; he says merely that he jumped from the nearside. On the same point, I note that in the Report by Injured Person form, which he signed on the day of the accident, there is a diagram showing the pursuer jumping onto the pad from a position close to the rear wheels of the trailer and clearly not from the front. Another inconsistency arises from the fact that in the Record the pursuer avers that the vehicle being used by him had only one rope (page 5E). When he gave evidence he accepted that the trailer in fact had three ropes on the day of the accident. There was, in addition to these various discrepancies, an important inconsistency between what the pursuer said about the detailed circumstances of the accident in examination-in chief and in cross-examination. In evidence-in-chief he claimed that at the time when he jumped down from it the trailer was almost fully loaded. Therefore, he had no option but to jump down from the front nearside; it would not, for instance, have been possible for him to have moved to the rear nearside where there was a rope, which he could have used to help him climb down. But when cross-examined on this point, the pursuer completely changed his position and said that by the time when he jumped down the trailer was, as he put it, empty apart from four kegs. He said at this stage of his evidence that he had just about finished taking off the empties when the accident occurred. In this connection, I note also that on Record the pursuer avers that he threw the empty barrels from his position on the trailer onto the dumping pad (page 4E); however, in evidence the pursuer claimed that he intended to lift them off manually. He avers also (page 5A) that he alighted when the lorry was empty; again this is inconsistent with his evidence-in-chief, in which he claimed that the trailer was almost fully loaded and also with his position in cross-examination when he maintained that it was almost empty.

[8] A further serious problem about the pursuer's evidence arises from what happened some weeks after the accident at the stage when the defenders' investigation into the circumstances of the accident was being concluded. On 20 February 2009 the pursuer attended an interview with Mr Templeton as part of the formal accident investigation process conducted by the defenders. On that date the pursuer and Mr Templeton each signed a document entitled "Accident Investigation, Conclusions and Recommendations" (document 1 of 7/3 of process). This document stated that the pursuer had been fully trained in alighting from the vehicle using the ropes. In particular, the document stated that the pursuer acknowledged that the accident had been caused due to his failure to follow Task Procedures 12 and 13. I shall have more to say about these in due course. The section of the document headed "Recommendations" contained the following:

"This incident occurred through a failure to follow company procedures notably Task Procedures 12 and 13. These procedures have been designed and put in place for the safety of employees and anyone who may be affected by the workings of Tradeteam. ... I therefore recommend that no formal action be taken for this incident. I base my findings on the fact that (the pursuer) has been fully co-operative with the investigation and is aware that his actions led to the accident; also the fact that he has a previously good record for his accident performance. However, (the pursuer) must be aware of his contribution to this incident and that any further breaches may lead to more formal action being taken. The outcome of this investigation has been made known to me by the investigating manager through this final interview (there then followed the signatures of the pursuer and Mr Templeton)".

[9] In evidence, the pursuer said that he had not read the document before signing it. His explanation was that he thought that he was signing something to say that he would have to use his holidays because the defenders were not willing to pay him sick pay while he was off work following the accident. Mr Templeton gave clear evidence (which I accept) that on the day on which the document was signed he had a meeting with the pursuer in which he discussed everything with him; the meeting took place in an office at the depot and lasted about 45 minutes. According to Mr Templeton, the pursuer was honest and admitted that he had done the wrong thing. The pursuer said that he had made a mistake by jumping onto the pad. Mr Templeton praised the pursuer for his honesty. That is reflected in the document.

[10] In my opinion, the pursuer's explanation for signing this document is implausible and falls to be rejected. I consider that he must have appreciated that he was being asked to accept that he was solely responsible for causing his accident and that this was the conclusion at which the defenders' investigation had arrived. By signing the document the pursuer must, in my view, be taken to have accepted the conclusions reached by the defenders about the cause of the accident and, in particular, the view that he was solely to blame for it. The pursuer did not suggest that he was in any sense put under pressure to sign. He was at the time a mature adult and an experienced employee; based on his evidence in court he is clearly not an unintelligent man. By this stage matters were obviously being conducted on a formal basis in accordance with the defenders' procedures. In the whole circumstances, I reject as incredible the pursuer's explanation for having signed the document. The result is (at least) to create another serious inconsistency between the pursuer's evidence and his previous position.

[11] For all these reasons, I have found myself at the end of the day unable to accept the pursuer as being a reliable witness. I did not form the impression that the pursuer was deliberately trying to mislead the court in his evidence in the sense that he set out to tell lies. I did, however, form the view that he was inclined to exaggerate, to try to talk his way round any difficulties or weaknesses and that he was not, in general, a reliable historian. In the circumstances, it seems to me that I must approach matters upon the basis that, on any disputed issue of fact, the pursuer's evidence has to be treated with considerable caution. On any such issue I consider that it would be unsafe to accept the pursuer's position unless it was independently supported by other acceptable, credible and reliable evidence.

The evidence as to training and the alleged practice of jumping down from trailers
[12] In his closing submissions counsel for the pursuer helpfully identified the critical issues in the case as being: (a) whether there was a common and accepted practice of jumping from the sides and the rear of trailers and (b) the nature and extent of the pursuer's knowledge about the dangers of jumping and the training he had received on the matter. I shall now summarise the evidence on these issues. It was accepted on behalf of the pursuer that unless he succeeded on one of these issues his claim would fail.

[13] The pursuer said that he had jumped down from a trailer on hundreds of occasions. He had watched many other people doing the same. Throughout his employment with the defenders and their predecessors, it had been common for employees to jump down from the trailers. He would do it not just in the depot, but also when out on the road. He claimed that he would throw a keg down onto the pad and then jump down onto the pad. Everybody was aware that this went on, including supervisors and managers. One of the managers, Mr Alan Wright, had seen the pursuer doing this and on one occasion a couple of months before the accident he had kicked the pad into a position which allowed the pursuer to jump onto it. According to the pursuer, most people used this way of getting down all the time. He had never been criticised or disciplined for following this practice. He was not aware of anyone having ever got into trouble for doing so. There was CCTV at the depot and the management must have seen men jumping down on that.

[14] The pursuer denied that he had ever received training in which he had been instructed not to jump from a trailer. When the defenders took over they had not asked him what training he had received and they did not send him on an induction course. He accepted that he had, however, received certain training while employed by the defenders. The trainer had been John Walker. The pursuer accepted that he had signed a document referred to as a Task Procedure Record Sheet on 8 January 2008; this contained a declaration at the end stating that the pursuer had read, practised and fully understood the training material presented to him. It stated also that the pursuer would adhere at all times to the work methods detailed in the Task Procedures for his own safety as well as those working around him. The pursuer signed immediately after that declaration. The document states inter alia that on 8 January 2008 the pursuer completed Task Procedures 12 and 13, in addition to a large number of other Task Procedures. Task Procedure 12 covers the task described as "access and egress from a retail trailer via back door". The relative document shows a series of photographs of a man stepping on and off a fixed trailer through the open back door. The man is shown stepping on the metal crash bar beneath the door and holding onto a grab handle at the side. On the second page of the Task Procedure document the task of getting on and off the trailer by the back door is broken down into a series of simple bullet points. These, to my mind, explain the tasks clearly and simply in a way that anyone could be expected readily to understand. The second page also sets out what it describes as a Safety Note. This states amongst other things: "Step down one step at a time, never jump from trailer." Task Procedure 13 is similar in format. It deals with access and egress by means of the side of a vehicle; again the vehicle shown is a fixed trailer and not the articulated type that the pursuer was using on the day of the accident. The first sheet illustrates, by means of a series of photographs, the process of climbing on and off the side of the trailer by stepping on the crash bar while holding onto one of the ropes. On the second and third sheets the task is again broken down into a series of simple bullet points. Amongst other things the Safety Note states: "Never use the rope as a swing" and "When using the rope, always make sure it is directly above your head before you use it, if the rope is not directly above your head the rope can easily slide and could cause you to loose (sic) your balance." In his evidence the pursuer was critical of such training as he accepted he had been given by the defenders. He said that he had sat in an office with Mr Walker, who had asked him if he knew how to do this and how to do that: I understood the pursuer to be referring to the Task Procedures listed in the Record Sheet. The pursuer said to Mr Walker that he had done certain of the tasks and they then ticked off those tasks. He denied having been shown Task Procedure 13. All the training that the pursuer had received was, he claimed, directed at driving the vehicle. It was done in a morning. He had not been shown photographs illustrating how to carry out Task Procedure 13. He had not been taken outside into the yard and given a practical demonstration of how to use the ropes to climb onto and off the trailer. In any event, the photographs showing Task Procedure 13 involved a rigid vehicle and not an articulated one. The safety bar on an articulated trailer did not run as far as the front of it. It would, therefore, have been necessary for the pursuer to have stepped down onto the plastic wing of the wheel, something he had been instructed not to do because of the damage that would be caused to the wing. He had never been shown a Guidance Note published by the Brewers and Licensed Retailers Association entitled "Manual Handling in the Brewing and Licensed Retail Industry" (this was also referred to in the evidence as the "Brown Book"). He had never been made aware of any risk assessments. When pressed in cross-examination as to whether he was really saying that he had never been told not to jump, the pursuer accepted that it was a matter of common sense that it was dangerous to do so. He conceded that this was particularly the case when it had been snowing. He accepted that the dumping pad was not designed to be jumped onto, but he said in re-examination that he had been doing it for so long that he just did it at the time of the accident without thinking.

[15] The pursuer led evidence from Mr James Wilson. He had been an "on-job trainer" with the defenders for eight years and had worked for Tradeteam for twenty one years. He had not provided any safety training to the pursuer. Mr Wilson regarded jumping onto pads as an unsafe practice, but he acknowledged that men would cut corners. He himself had jumped down when he was younger, but this had been directly onto the ground and not onto a pad. This was safer because the pad could slip. He had stopped jumping because, as he put it, everything was about health and safety nowadays. He said that he had jumped before he became aware of the dangers. Mr Wilson considered that the best method of alighting was by way of the rear door because there were handles at the sides. He thought that the ropes were a satisfactory way of getting on and off. He had been told not to jump and it was something that had been in the safe handling book for years, before pads were even used. This was a reference to the so-called Brown Book. I should explain at this point that this publication contains a forward by the Head of the Health and Safety Executive's Food and Environment Sector. It also contains a section entitled "Unloading the vehicle at the drop". Amongst other pieces of advice this section states the following: "Always use the correct method of climbing onto and off the vehicle: use the steps/ropes provided." In the same part of the Guidance Note a number of safety warnings are highlighted in bold text and marked with crosses. One of these says: "DO NOT jump from the vehicle." In cross-examination Mr Wilson explained that he was involved in training new employees as well as existing employees. He said that there was refresher training provided approximately every three years. The refresher training took place in the training room and out on the road; it lasted a couple of days. The men were shown videos. When asked if it was a tick box exercise he said no, he actually trained the men. He confirmed that he trained the men in Task Procedures 12 and 13 by doing the procedures himself and then having the men follow him. He observed them doing the Task Procedures properly. He made it quite clear to them that they should not jump. He would only sign the declaration at the bottom of the Task Procedure Record Sheet if the training had been done and he was happy with what the men had done. He would train them to use the ropes and footholds to come down. In re-examination Mr Wilson said that he was unable to confirm whether the pursuer had received induction training from the defenders at the time when his contract of employment was transferred to them under the TUPE rules. He observed that the older drivers and draymen had been doing the job for years and knew how to do it. His own focus as a trainer had tended to be on the new employees.

[16] Mr Wilson was an impressive and, I thought, an obviously honest witness, who was doing his best to assist the court. I formed the impression that he was not trying to favour one side over the other. I regard his evidence as being credible and reliable.

[17] The pursuer then led evidence from a number of colleagues and former colleagues, who worked or had worked as drivers or draymen for the defenders and their predecessors. They were: Andrew Gilbert, Andrew Din, John Flynn, George Ross, Jim Balfour and Hugh McDermid. These witnesses were experienced in the haulage industry and were mature individuals ranging in age from about their late forties to their early sixties. A number of them were heavily-built. It is not necessary to go through every aspect of their respective testimonies in detail because their evidence was broadly consistent and contained a number of clear themes. In particular, they all supported the view that the practice of jumping down from trailers was well-established, that it continued to the present day and that the defenders' management and supervisors were aware that it was going on. None of these witnesses had ever been disciplined for jumping down from a trailer and none of them was aware of anyone having been criticised for doing so. When they were asked about the training they had received from the defenders, they tended to be rather disparaging and dismissive about it, although at the end of the day most of them (somewhat grudgingly I thought) accepted that at least some training had been given. For instance, Mr Gilbert said that over the years he had received a bit of training. He agreed that he had received training in Task Procedures and he accepted that he had seen Task Procedure 13. He remembered seeing the photographs on the first page of that document. He accepted that they did not show jumping down from the side of the vehicle as a means of egress. In re-examination Mr Gilbert acknowledged that in recent years he had received what he described as "wee bits of training" and he mentioned having been shown slides. It was just ticking boxes. Mr Din observed that when you had been on the job long enough you knew your own limitations and would choose the safest method in the circumstances. He accepted, however, that he had been shown Task Procedures 12 and 13 in a folder in the training room. Mr Flynn was willing to accept that he had received what he described as semi-regular training, which took place in a classroom. He mentioned that he had been shown pictures about manual handling and then asked to sign something. In cross-examination his position appeared to be that he did not remember seeing the particular photographs contained in Task Procedure 13. He accepted that he had been shown photographs like those in Task Procedure 12. He remembered being shown photographs, but he said that no one told him that you had to do a task in the way shown in the photographs. He recalled having been trained by Mr Wilson, who said to him that he (Mr Flynn) knew what he was doing; then the boxes would be ticked. He thought that one had to use one's own judgement. He claimed to remember having been told that the easiest way to get down was to jump onto a pad because it would protect your knees. Mr Ross recollected being shown what he described as "view foils" (this was a term apparently used when he had been in the army); I understood him to be referring to photographs or pictures displayed on a screen. He said that when he started with the defenders he had been shown how to get on and off a truck using the rope. But he gave evidence that jumping down was well-known and nobody had ever told him not to jump. He was sure that supervisors must have seen him doing this and he recalled one of them moving a pad into position for him so that he could jump down onto it. He thought that the men were asked to sign training paperwork because it was for the defenders' records. Mr Balfour said that no one had ever shown him how to get on and off a lorry. Mr McDermid accepted that he had been given training in a class room upstairs at the depot; this had involved him being shown pictures. But like all the other drivers and draymen, he said that jumping down took place all the time and was widely known about. He said that he had last done it the day before he gave evidence.

[18] It appeared to me that these witnesses were all inclined to underplay the fact that they had received training from the defenders and its significance. The impression they seemed to be trying to give was that the training was rather perfunctory and in the nature of a tick box exercise, a phrase used by several of the witnesses (and mentioned also by the pursuer). The witnesses also tended to view the training as unnecessary in view of the long experience that most of them had. Nonetheless, when one looks at this body of evidence as a whole, it tends to support the view that training was provided on how to get on and off a lorry or trailer and that jumping down was not an approved method of alighting. The same conclusions fall to be drawn, in my view, from the evidence of Mr Wilson. The drivers and draymen called as witnesses by the pursuer were also at pains to stress that they regarded it as permissible to jump down from a trailer, that the defenders knew that this was regularly being done and that the defenders' managers and supervisors, in effect, turned a blind eye to the practice. Some of them said that they were dubious about using the ropes because they could swing or give way. The impression I was left with from this body of evidence was that the drivers and draymen took the view that they should use the method of getting off the trailer which seemed safest and most appropriate to them in the prevailing circumstances, no matter what the training might prescribe.

[19] Overall, I formed the impression that the drivers and draymen were disposed to lend support to the pursuer's case. It was not suggested on behalf of the defenders that they were dishonest witnesses or that they had put their heads together, but I did not feel that it would be right to regard them as impartial witnesses. They tended to support the pursuer's position wherever possible and to evince a marked reluctance to concede any points that might be thought to favour the defenders, even where there was merit in such points. In my opinion, the evidence of this group of witnesses must be treated with caution.

[20] Finally, the pursuer led the opinion evidence of Mr John Stewart, a retired Inspector of Factories, who now works as a health and safety consultant. He had prepared a report based on consideration of precognitions from some of the pursuer's witnesses and of certain documents. Mr Stewart accepted that he had no experience of the drinks delivery industry. He accepted also that he had not been provided with the document signed by the pursuer entitled "Accident Investigation Conclusions and Recommendations". Importantly, as it seemed to me, he had not been instructed to listen to any of the factual evidence given at the proof. He had not been asked to inspect the trailer or even to consider photographs of it for the purposes of preparing his report. Nor had he been instructed to visit the depot. He explained in his evidence that he had not previously come across delivery trailers fitted with ropes for the purpose of assisting access and egress to the deck. When shown the Brown Book in cross-examination, he conceded that the reference in it to ropes indicated that their use was commonplace in the industry.

[21] Mr Stewart observed that it was important for a system of work to be adequately implemented and for compliance with it to be sufficiently monitored. On the basis of the information supplied to him, it appeared that jumping down onto a pad occurred more frequently than the defenders were willing to admit. This tended to suggest that the system was failing because the defenders' management had failed to eradicate the practice. He thought that it would have been possible for fixed ladders to be fitted or for folding steps to be carried on the trailers. These would be preferable to ropes, which were inherently unsafe. When asked about the Task Procedure Record Sheet signed by the pursuer, he agreed that if all the training referred to had been provided on the same day it looked like a tick box exercise. Sending employees out with more experienced drivers and draymen as part of their training was unsatisfactory because it could lead to them picking up bad habits.

[22] In my opinion. Mr Stewart's views are of no significant value in the circumstances of the present case. They are based on (at best) an incomplete understanding of the working practices and systems in the relevant industry and, with respect, seemed to me to be somewhat superficial.

[23] As I have already mentioned, evidence was given for the defenders by their Regional Safety Risk Manager, Mr Paul Staynings. He was, to my mind, an impressive and measured witness. Mr Staynings had been with DHL for about 13 years and with Tradeteam for about 10. He had responsibility for training procedures in the company. He had been involved in an exercise of standardising training procedures across the organisation. These had been based on the Brown Book. The Task Procedures had been devised with the assistance of experienced draymen and had been rolled out nationally in about 2003. Every drayman employed by the company was to be taken through the Task Procedures. The training in the Task Procedures would be carried out over two days. On the first day there would be a demonstration on site; then the trainee would be taken out on the road. There were also regular refresher courses, which employees were required to attend. Mr Staynings said that he was very confident that every drayman had had the Task Procedures explained to him. This system of training had resulted in a significant reduction in the number of accidents. He would be very surprised to learn that the training was limited to the class room. He had never seen anyone jumping down from a trailer. He would speak to anyone whom he saw doing that. He explained that he would visit the depot about 6 times per year.

[24] Mr John Campbell is, as I have mentioned, the Regional Health and Safety Facilitator for Tradeteam in Scotland; he covers a total of five depots and would be at Cambuslang perhaps three or four days a week. Mr Campbell was an assured and confident witness, who gave evidence with authority and conviction. He clearly has a wealth of experience in the relevant industry; he started as a drayman and then progressed to being a driver/drayman; he still holds an HGV licence. For some time he has been heavily involved in the development and delivery of training for the defenders. Mr Campbell was able to provide me with a very detailed and helpful explanation of the defenders' systems of work. He stressed that the purpose of the pads was to absorb the impact of a heavy keg falling from height. They were not intended to act as cushions for men to jump onto. He thought that it should rarely be necessary for a man to get onto the trailer deck when unloading empty kegs. Usually the rear door would be open during unloading at the depot. As to training, Mr Campbell explained that for experienced employees, such as the pursuer, this would comprise refresher training every three years. Such training took place over two days. The first day involved sitting in a classroom going through the Task Procedures and making sure that they were understood; on the second day the men would carry out the Task Procedures as part of the day's work under the supervision of the trainer. Mr Campbell strongly refuted the suggestion that the training was a mere tick box exercise. He acknowledged that men would sometimes be tempted to take short cuts, but the purpose of training and supervision was to try to prevent this happening so far as possible. When asked about the alleged practice of jumping down from trailers, Mr Campbell gave, as it seemed to me, realistic and convincing evidence. He did not believe that this was happening regularly. Most of the drivers and draymen were middle-aged men and many of them were quite heavily built; they would find it difficult to jump down without injuring themselves. He acknowledged that they might sometimes clamber down, but jumping was obviously dangerous and he did not accept that it was commonplace. If he saw someone doing it, he would have a word with him; if he did it repeatedly there would be disciplinary action taken.

[25] The defenders led evidence also from Mr Peter Fearns. He is employed as the yard foreman at the depot. Before that he had been a driver/drayman for some twenty two years. Mr Fearns said that the defenders operated an on-going training policy. He said that he had been trained in Task Procedures 12 and 13. He could not recall having come across anyone jumping down onto a pad in recent years, although he acknowledged that he did not usually work in the unloading area.

[26] Finally, the defenders led evidence from Mr James Dougan, the Regional Transport Manager for Tradeteam in Scotland. He said that he had never seen men jumping down from trailers. He was regularly in the depot at Cambuslang and, as he put it "walked the yard twice a day". Mr Dougan explained that the defenders preferred to use their disciplinary procedure as a learning process rather than merely as a punishment. If he saw a driver or drayman jumping down he would discipline him by way of a written warning; this would last for twelve months. If the offence was repeated, further disciplinary steps would be taken; these could culminate eventually in dismissal.

Conclusions on the relevant facts
[27] I have to say that, on all the contentious issues, I found the evidence given by the defenders' witnesses to be substantially more convincing and persuasive than that given by the witnesses led for the pursuer (with the exception of Mr Wilson). None of the defenders' witnesses seemed to me to be inclined to exaggerate or embellish the position; they all testified in a straightforward and credible manner. By contrast, I was generally unimpressed by the evidence given by the pursuer and the other drivers and draymen for the various reasons I have already set out in this Opinion.

[28] Turning first to the training issue, I hold that the defenders did provide the pursuer with adequate training in how to get on and off a trailer using the ropes. I find that this extended to explaining Task Procedures 12 and 13 to him in sufficient detail. There is documentary evidence in the form of the Task Procedure Record Sheet signed by the pursuer supporting this conclusion. I do not accept that merely because that document covers a significant number of tasks one should conclude that the training was inadequate. The pursuer was by that time an experienced man, who was familiar with all aspects of his job. Matters would not have had to be explained to him in the same level of detail that would be required for a new driver or drayman. Task Procedures 12 and 13 make it perfectly clear that the proper method of getting on and off a vehicle is to use the ropes provided. They clearly do not lend any support to the view that it is acceptable to jump down. I find also that the pursuer told Mr Templeton immediately after the accident that there were no ropes on the trailer and that this was why he jumped. Again, there is contemporary signed documentary evidence to support that. In the circumstances, it is reasonable to infer that the reason why the pursuer sought to explain his decision to jump in this way was because he knew that it was wrong to jump and that he should have used the ropes. Then there is the further document which the pursuer signed some weeks later, the Conclusions and Recommendations of the Accident Investigation. In this he expressly acknowledged that the accident occurred because of his failure to follow proper procedures, in particular Task Procedures 12 and 13. In my opinion, the evidence viewed as a whole supports the conclusion that the defenders had taken reasonable care to train their men, including the pursuer, not to jump down from trailers and that they had drawn attention to the dangers of jumping off trailers. Counsel for the pursuer criticised the fact that the defenders did not lead evidence from Mr John Walker, who was the pursuer's trainer on the occasion when the Task Procedure Record Sheet was signed. In my view, nothing turns on this; there was sufficient persuasive evidence to enable me to make the factual findings on the sufficiency of training and the provision of a suitable warning about an obvious danger, to which I have just referred. The same response can be given to the pursuer's argument that the defenders should have produced more training records relating to the pursuer.

[29] Secondly, I do not accept that there was an established practice of jumping down, which the defenders had failed to root out or to which they turned a blind eye. In my view, the evidence given by the pursuer and his supporting witnesses on this issue was significantly exaggerated and cannot be accepted. The suggestion that middle-aged drivers and draymen were in the habit of regularly jumping down a significant height from trailers onto the ground or onto a pad strikes me as being implausible. In any event, I am satisfied that the defenders have not been proved to have acquiesced in or tolerated any such practice. I believed the defenders' witnesses when they said that they would not have turned a blind eye to such conduct. In my opinion, the pursuer was entirely the author of his own misfortune; he chose to take a risk for which, in my judgement, he alone is to blame. Indeed, the pursuer acknowledged this in cross-examination when he conceded that it was dangerous to have jumped from the trailer onto the pad, particularly as it was snowing at the time. I consider that since the trailer was almost empty at the material time the pursuer could easily have waited for a few moments until the forklift had completed its work at the offside. He could then have climbed down using one of the two ropes on that side. Alternatively, he could have waited until Mr McDermid was available to open the rear door and gone out that way. That too would not have involved any significant delay. I do not accept that the system of using ropes to help with climbing on and off the trailer is inherently unsafe. It seems to me that so long as a reasonable degree of care is used the system is perfectly acceptable and safe. I accept that it may be necessary to slide a rope along the runner so that it is in a suitable position from which a man can safely step down onto the crash bar. I accept also that the crash bar is slightly recessed so that care will have to be taken to place one's foot on it, but none of this seems to be to be unduly onerous or challenging. I take account also of the fact that the use of ropes appears to be well-established in the industry, as is recognised in the Brown Book. In summary, I conclude that the defenders provided the pursuer with safe working equipment, which was adequately maintained. The absence of one of the four ropes on the trailer was not a significant deficiency in my view. The other three ropes and the rear door provided sufficient means of access and egress.

[30] I should deal also with some other points raised by the pursuer. His counsel submitted that Task Procedures 12 and 13 were, in any event, deficient because they showed a rigid and not an articulated vehicle. In my view, there is no substance in this argument. The Task Procedures make it clear that the correct way to get on and off the section of the vehicle used for carrying the beer kegs is to make use of the ropes that were provided. In my view, the fact that this is illustrated by showing a man climbing on and off a rigid vehicle makes no difference to the substance of the guidance which was being provided. Counsel for the pursuer drew attention also to what he said was the time pressure under which the trailer required to be emptied on returning to the depot. I was not persuaded that there was anything in this point. The pursuer himself said in evidence-in-chief that there was a reasonable amount of time for him to unload the trailer. No doubt the job had to be done without any undue delay, but I do not accept that this was proved to be a factor having any relevance in the context of the pursuer's decision about how to get down from the trailer. It was argued also that the defenders had been at fault in not ensuring that the trailer was fitted with four ropes when it left the depot on the morning of the accident. I do not agree. In my view, it was sufficient for the trailer to have one working rope on each side. As I have explained, the pursuer could have waited a few moments and then used the ropes on the offside once the forklift truck had finished work there. Or he could have waited until Mr McDermid was in a position to open the rear door from the outside.

[31] It was not suggested that, if the pursuer failed on both of the critical issues in the case (as I hold that he has done), there was any other basis on which he could succeed in proving negligence or breach of statutory duty. Certain authorities were very briefly referred to on both sides of the bar, but it was not suggested that there was any real point of law in the case. It seems to me that the case turns on its own facts.

[32] I would only mention that I acknowledge that an employer may be under a duty to warn his employees against even an obvious risk. For example, the House of Lords held in General Cleaning Contractors Ltd v Christmas [1953] AC 180 that, in leaving it to individual workmen to take precautions against an obvious danger, the employers had failed to discharge their duty to provide a reasonably safe system of work. As Lord Oaksey put it at pp.189-190:

"In my opinion, it is the duty of an employer to give such general safety instructions as a reasonably careful employer who has considered the problem presented by the work would give to his workmen. It is, I think, well known to employers, and there is evidence in this case that it was well known to the appellants, that their workpeople are very frequently, if not habitually, careless about the risks which their work may involve. It is, in my opinion, for that very reason that the common law demands that employers should take reasonable care to lay down a reasonably safe system of work. Employers are not exempted from this duty by the fact that their men are experienced and might, if they were in the position of an employer, be able to lay down a reasonably safe system of work themselves. Workmen are not in the position of employers. Their duties are not performed in the calm atmosphere of a board room with the advice of experts. They have to make their decisions on narrow window sills and other places of danger and in circumstances in which the dangers are obscured by repetition.

The risk that sashes may unexpectedly close, as the sashes in this case appear to have done, may not happen very often, but when it does, if the workman is steadying himself by a handhold, his fall is almost certain. If the possibility is faced the risk is obvious. If both sashes are closed there is no longer the handhold by which the workman steadies himself. If either sash is kept open the handhold is available and, on the evidence in this case, is, in my opinion, reasonably safe. But the problem is one for the employer to solve and should not, in my opinion, be left to the workman. It can be solved by general orders and the provision of appropriate appliances."

Recently, the Court of Appeal applied this approach in Ammah v Kuehne+Nagal Logistics Limited [2009] EWCA Civ 11, although the facts of that case were very different from those of the present and I have not found it to be of any particular assistance in resolving the issues before me. In my judgement, the evidence in the present case shows that the defenders took reasonable care to ensure that the pursuer was properly trained and instructed in how to alight from a trailer. As part of the training it was explained to the pursuer that it was dangerous to jump down from a trailer. That, as I have already explained, was made clear in Task Procedures 12 and 13, the former of which contained an explicit warning never to jump. The other branch of the pursuer's common law case was that the defenders had failed to eradicate a common practice of jumping down from trailers. In my view, this too fails. I find as a fact that there was no such common practice.

[33] I can, in the circumstances, deal briefly with the various statutory regulations on which the pursuer relied. So far as regulation 5 of the Workplace (Health, Safety and Welfare) Regulations 1992 is concerned, I find that the trailer was properly maintained; in particular, the number of ropes was sufficient at the time of the accident. As to regulations 4, 5, 8 and 9 of the Provision and Use of Work Equipment Regulations 1998, I hold that the work equipment was suitable and properly maintained; that the pursuer was provided with adequate information and instructions in its use; and that he received adequate training. I consider that the defenders complied with regulation 13 of the Management of Health and Safety at Work Regulations 1999 (as amended) because they took account of his capabilities and provided him with adequate health and safety training. Although mentioned in his pleadings, the pursuer did not, in his final submissions, found on regulation 3 of the 1999 Regulations. In relation to regulations 4, 5, 6 and 7 of the Work at Height Regulations 2005, I conclude that the defenders adequately planned and organised the work; that the pursuer was competent to carry it out; that sufficient steps were taken to avoid risks from work at height; and that the equipment selected for work at height was suitable and sufficient.

[34] In view of my findings on liability, the issue of contributory negligence obviously does not arise. Had it been a live issue, it seems to me that, on any reasonable view of matters, the pursuer would have been found to have made a substantial contribution to the accident. He admitted as much in his own evidence. He was an experienced man and must have appreciated that to jump down onto the pad in wintry conditions was foolhardy.

[35] For the various reasons given in this Opinion, I have, however, granted decree of absolvitor in favour of the defenders. I have reserved all questions of expenses.