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Cite as: [2013] ScotCS CSIH_57

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SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk

Lord Drummond Young

Lord McEwan

[2013] CSIH 57

XA132/12

OPINION OF THE COURT

delivered by LORD DRUMMOND YOUNG

APPEAL

from the Sheriffdom of North Strathclyde at Dumbarton

CAROL KENNEDY

Pursuer and Appellant;

against

CHIVAS BROTHERS LIMITED

Defenders and Respondents:

_______________

Act: Fitzpatrick; Digby Brown LLP

Alt: A Cowan, Solicitor Advocate; Simpson & Marwick

20 June 2013

[1] The pursuer and appellant is employed by the defenders and respondents as a line operator, working in a bottling plant operated by them at Kilmalid, Dumbarton. On 20 October 2009 she was working in the course of her employment with the defenders when she sustained an accidental injury to her hand. In the present action she seeks reparation for the loss sustained by her in consequence of that accident. The action proceeded to proof in Dumbarton Sheriff Court, and on 28 June 2012 the sheriff granted decree of absolvitor.

The sheriff's findings in fact

[2] The sheriff made detailed findings in fact. Counsel for both parties submitted a number of amendments to these. We have accepted all of the amendments proposed by counsel, on the basis of the transcript of evidence. The following narrative is based on the sheriff's findings in fact as so amended. On 20 October 2009 the pursuer was working in the course of her employment with the defenders as a line operator at their bottling plant at Kilmalid. She was working on one of eight bottling lines in the part of the plant known as Clyde Hall, line 4, which is the fastest running of the eight lines. A number of processes are carried out on each bottling line. These include the placing of caps on the bottles once they are filled and the fixing of labels to the bottles. Caps for placing on bottles are stored in a cap store on the floor beneath the bottling lines. The caps require to be transported from the store to the head of each of the eight bottling lines in Clyde Hall. At the head of each line is a hopper into which quantities of caps are loaded from time to time. The caps are transported from the store to the hopper by way of trolleys. Employees known as cap men load the trolleys with cardboard boxes containing caps, and then take the trolleys to the lines by way of a lift. On line 4, where the pursuer was working, the trolley is filled and taken to the line between six and eight times on average per shift. A filled trolley holds 25 boxes of bottle caps, arranged in five layers with five boxes on each layer.

[3] Photographs of the bottling lines and the type of trolley used by the pursuer are available among the productions. In order to illustrate what happened to the pursuer, we reproduce three of these photographs. The first shows two of the bottling lines, line 4, where the pursuer was working, on the left and line 5 towards the right. The bottom of the line, where trolleys are delivered by the cap men, is at the back of the photograph. The hoppers in which the caps are placed are situated at the other end of the line, below the bottom of the photograph. The gap between the autocol machines, referred to below, can be seen where a line operator in a safety vest is standing. In front of her are the autocol machine and associated bin for line 4. Their equivalents on line 5 can be seen immediately behind her, slightly closer to the camera. One of the trolleys, laden to a fifth layer, can also be seen. The second and third photographs each show one of the trolleys. The second illustrates the structure of the trolley, which is basically a steel frame with wire cages along three of the sides. The third photograph illustrates the trolley as it passes through the gap between the autocol machines and associated bins; a bin is on the right.

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[4] The hopper for the caps is at the head of each line. The loaded trolleys are delivered by a cap man to the hopper at the top of the line. If, however, a cap man is unable to do that for any reason, an operator on the line such as the pursuer is expected to push the trolley from the bottom of the line to the hopper at the top of the line. The distance from the store to the bottom of line 4 is approximately 150 m, and the distance from the bottom of line 4 to the hopper is approximately 50 m.

[5] The trolleys used by the defenders are 81 cm in width, 118 cm in length, and 181 cm in height. They consist of a cage with one open side, and are mounted on four wheels. Two of the wheels are fixed and two of them rotate or swivel to assist steering. The trolleys are designed to carry a maximum load of 500 kg. The boxes of caps that are loaded on to the trolleys are 27 cm in height. The weight of the load on the trolley that was being taken up line 4 at the time of the pursuer's accident was approximately 380 kg. The trolleys are robust, and are designed in such a way as to prevent the load carried on them from toppling. The dimensions of the wheels of the trolleys are in accordance with guidance issued by the Health and Safety Executive.

[6] The processes carried out on each bottling line include the fixing of labels. This is carried out by a labelling machine known as an autocol machine. The autocol machines on line 4 and line 5 protrude from the side of the bottling line into the passage that runs between them. This is the passage that the trolleys must negotiate to take the boxes of caps to the hopper at the head of line 4. The trolleys must be manoeuvred between the autocol machine on line 4 and the autocol machine on line 5. Photographs of lines 4 and 5 and the passage between them show the two autocol machines. Next to each machine is a plastic bin which is required to catch the waste that results when backings are removed from self-adhesive labels. The sheriff finds that there is adequate room between these machines through which to manoeuvre the trolleys safely. For reasons that we will discuss later, we are of opinion that this finding is misleading.

[7] On occasion the swivelling wheels of the trolleys become aligned other than in the direction of intended travel, making it difficult to move the trolley in that direction. The trolley wheels stick and come to a stop. On those occasions it is necessary to realign the wheels. The trolleys used by the defenders at their bottling plant are "industry standard" trolleys for the industry in which the defenders operate. The sheriff finds that they are "suitable for the use to which they are put". This finding of suitability was challenged by counsel for the pursuer. Although it is not wholly clear, the finding appears to relate to the use of the trolleys at the bottling plant in the manner in which the trolley was being used at the time of the pursuer's accident. If this is so, we are of opinion that this finding should not have been made, for reasons discussed below.

[8] In relation to the pursuer's accident, the sheriff makes the following findings in fact. On 20 October 2009, during the course of the shift that she was working that day, the pursuer required to move a trolley loaded with caps from the bottom of line 4 to the hopper at the top of the line. When trying to manoeuvre the trolley between the autocol machines on lines 4 and 5 she experienced difficulty with the wheels on the trolley, in that they appeared to be stuck. Until that point she had been pushing the trolley. She then went to the other end of the trolley to try to pull it through the gap between the autocol machines. When the pursuer experienced this difficulty, she did not seek any assistance, or report a problem with the trolley; nor did she do so at any point thereafter prior to the accident. An operator from the neighbouring line, Margaret McIntyre, observed the pursuer having difficulty and went to assist by pushing the trolley from the other end. At about this time the trolley wheels became free or unstuck, and as the trolley moved between the two autocol machines the pursuer's hand came into contact with one of the machines and was injured. Both of her hands were situated on the outside of the cage of the trolley, which, we note, did not have any handles. The pursuer was wearing safety gloves at the time, the wearing of such gloves being compulsory. The accident was reported to the defenders. The pursuer did not work any further on her shift and received medical treatment. The trolley that she had been moving remained in circulation, and was moved by another person to the hopper, unloaded, and taken back to the bottom of line 4 for further use.

[9] The defenders maintain a computerised record of reported faults and trolleys. Between 20 March 2007 and 6 November 2009 15 faults in relation to trolleys were reported, of which four related to wheels. The defenders have a system in place for taking defective trolleys out of circulation for repair. On the morning after the pursuer's accident all of the trolleys in circulation in the Clyde Hall were checked for defects, and were found to be free of defects. Operators were instructed to report faults with equipment, including faults with the trolleys. The pursuer had made no complaint about the trolleys prior to the accident. The defenders did not receive any complaints from any other person about the condition of the trolleys prior to the pursuer's accident. The defenders took disciplinary proceedings against the pursuer in respect of the accident. In the course of those proceedings, they received a handwritten note, signed by a number of operators on line 4, raising an issue with regard to the use of the trolleys.

[10] The trolley being moved by the pursuer when she had her accident did not have any defect in its wheels. The reason for the wheels' apparently sticking was that one or both of the swivelling wheels on the trolley had become out of alignment with the intended direction of travel, causing resistance to the trolley's movement in that direction.

[11] The defenders carried out a general risk assessment of manual handling operations to be undertaken by employees working on their bottling lines, in particular line 4. These included the delivery of caps to those lines. Nevertheless, no specific risk assessment had been made of the operation of moving trolleys loaded with caps from the bottom to the top of the bottling lines such as line 4.

[12] The sheriff found that the task of moving trolleys loaded with caps from the bottom to the top of a bottling line such as line 4 is a simple task which does not involve real and foreseeable risk of injury. He further found that the moving by a line operator of a trolley loaded with caps from the bottom of the line to the hopper does not and did not at the time of the pursuer's accident involve a foreseeable and real risk that the line operator might be injured as the pursuer was. Counsel for the pursuer submitted that that finding should be deleted. For reasons that we discuss below, we are of opinion that the finding was not justified, and we accordingly agree with that submission.

[13] The sheriff further finds that it is not reasonably practicable to deliver caps to the hopper at the top of the bottling lines other than by way of the trolleys which the defenders use for that purpose. Counsel for the pursuer submitted that that finding should be deleted. We agree, for reasons discussed below. The Sheriff continues by finding that there is insufficient room between the lines for this operation to be carried out by a forklift truck. An automated system which had been in use before the introduction of the trolleys had been problematic. The installation of an automated system would necessitate substantial structural alteration to the defenders' premises. No other measures to reduce the risk of injury to workers in moving trolleys loaded with caps had been put in place.

[14] On 17 March 2009 the pursuer received manual handling training, which lasted for approximately 2 hours. During the course of this training the pursuer and other operators were given information about the safety aspects of pushing and pulling objects. While a water canister was used for demonstration purposes, the information given applied to any piece of equipment which required to be moved. In particular, operators, including the pursuer, were instructed that before manoeuvring any load they should assess the load, that they should seek assistance if it were not possible to manoeuvre of the load, that pushing rather than pulling is the preferable manual handling technique, that they should not take risks, that the techniques they were shown were to be applied to all manual handling aids, and that they should reduce the height of any load if it were too high. Operators including the pursuer were also instructed that they should not place their hands on any item of equipment in a position which would expose their hands to the risk of injury. Finally, the defenders have formal health and safety procedures, including procedures for reporting defects and raising issues regarding working practices and equipment.

The pursuer's case

[15] On appeal, the pursuer's case was based first on regulations 4 and 5 of the Provision and Use of Work Equipment Regulations 1998 and secondly on regulation 4 of the Manual Handling Operations Regulations 1992. Counsel for the pursuer submitted that the sheriff was in error in his application of those statutory provisions. We will deal with these in turn, and will then consider the question of contributory negligence, which is pled by the defenders.

Provision and Use of Work Equipment Regulations 1998, regulation 4

[16] Regulation 4 (suitability of work equipment) of the Provision and Use of Work Equipment Regulations 1998 is in the following terms:

"(1) Every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided.

(2) In selecting work equipment, every employer shall have regard to the working conditions and to the risks to the health and safety of persons which exist in the premises or undertaking in which that work equipment is to be used and any additional risk posed by the use of that work equipment.

(3) Every employer shall ensure that work equipment is used only for operations for which, and under conditions for which, it is suitable.

(4) In this regulation 'suitable'-

(a) subject to sub-paragraph (b), means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person;

...".

The sheriff found in fact that the trolley was work equipment within the meaning of regulation 4.

[17] It is clear from the wording of regulation 4 that its application is critically dependent upon the precise facts of the case under consideration. Thus paragraph (1) requires that work equipment be suitable "for the purpose for which it is used or provided". It follows that the fact that work equipment is of a type that is commonly used in the industry, or conforms to British Standards, is not conclusive; what matters is suitability for the particular task for which it is to be used. Likewise, paragraph (2) requires employers to have regard to the working conditions and risks to health and safety "which exist in the premises or undertaking in which that work equipment is to be used". Once again, the particular factual context is of critical importance. Similarly, paragraph (3) provides that employers should ensure that work equipment is used "only for operations for which, and under conditions for which, it is suitable".

[18] The word "suitable" is defined in paragraph (4) by reference to a test of reasonable foreseeability. That test has recently be considered by the Court of Appeal in England in Hide v The Steeplechase Company (Cheltenham) Ltd, [2013] EWCA Civ 545. (We observe that the judgments in Hide were issued on the first day of the present appeal; Mr Cowan very properly drew the case to our attention, notwithstanding that, as he acknowledged, it did not assist his clients' position). The facts of that case, which involved an accident at Cheltenham Racecourse, are far removed from the present. The court required, however, to decide a question that had been identified by Lord Clyde in Robb v Salamis, [2007] ICR 175, [2006] UKHL 56 namely whether regulation 4(4) accurately transposed article 5(4) of the European Framework Directive on the introduction of measures to encourage improvements in the safety and health of workers (89/391/EEC). The 1998 Regulations are intended to implement the obligations of the United Kingdom under the Framework Directive and the Use of Work Equipment Directive (89/655/EEC), and article 5(4) of the Framework Directive is the provision that authorises measures such as regulation (4) which exclude or limit employers' responsibility for accidents caused by work equipment in certain circumstances. Article 5(4) provides as follows:

"This Directive shall not restrict the option of Member States to provide for the exclusion or the limitation of employers' responsibility where occurrences are due to unusual and unforeseeable circumstances, beyond the employers' control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care".

In Hide, Longmore LJ indicated (at paragraph 22) that, agreeing with Lord Clyde, he found it difficult to see any origin for regulation 4(4) other than article 5(4) of the Framework Directive. On that basis, he stated (at paragraph 25):

"Once, therefore, the claimant shows that he has suffered injury as a result of contact with a piece of work equipment which is (or may be) unsuitable, it will be for the defendant to show that the accident was due to unforeseeable circumstances beyond his control or to exceptional events the consequences of which could not be avoided in spite of the exercise of all due care on his part. The fact that an injury occurs in an unexpected way will not excuse the defendant unless he can show further that the circumstances were 'unforeseeable' or 'exceptional' in the sense given to those words by the Directive".

We agree with that analysis; it seems to follow inevitably from the origin of the 1998 Regulations in European Directives and in the plainly restrictive wording of article 5(4) of the Framework Directive.

"I agree, however, with Longmore LJ that it was not for Mr Hide to prove the availability of effective remedial options: it was for the racecourse to show (if it could) that the consequences for Mr Hide from this accident could not have been avoided despite the exercise of all due care for the purposes of Regulation 4".

At paragraph 45, Davis LJ summarized the effect of the case:

"The point this case establishes, therefore, is that it is not enough for a defendant, where Regulations apply, simply to comply with the requirements of reasonableness imported by the common law or the Occupiers' Liability Act. Where the Regulations apply, the test for an employer... is stricter. If, in any particular case arising hereafter, it is shown that what occurred was due to unusual and unforeseeable circumstances, beyond the employer's control; or if it is shown that what occurred was due to exceptional events the consequences of which could not have been avoided despite the exercise of all due care: then that will mean the employer will have no liability. That, it can be accepted, may be in some situations onerous for an employer. But the Regulations are evidently designed to be stringent; and the test laid down is in general terms workable".

We agree with those observations. The European Framework Directive and the various health and safety Directives, including the Use of Work Equipment Directive, are clearly intended to impose strict standards, going well beyond the common law of negligence and in some respects beyond the existing United Kingdom health and safety legislation. The Regulations that implement those Directives within the domestic law of the United Kingdom should not therefore be read in accordance with common law concepts. In particular, the concept of reasonable foreseeability as used in provisions such as regulation 4(4) of the 1998 Regulations should not be read in the same way as reasonable foreseeability in the law of negligence or occupiers' liability; an event that can cause injury will be foreseeable unless it is due to unusual and unforeseeable circumstances beyond the employer's control, or exceptional events whose consequences could not have been avoided despite the exercise of all due care. Moreover, as Longmore LJ emphasizes, if an accident of the general nature of that suffered by a pursuer is foreseeable, that may be sufficient for liability.

[20] On the facts of the present case, we are of opinion that the pursuer has satisfied the requirements of regulation 4 of the 1998 Regulations and that the defenders are accordingly liable for her injury. The trolley that the pursuer was required to move to the head of the bottling line was heavily loaded; the weight carried was 380 kg. It is apparent from the photographs of the factory that she required to move it across a tiled floor along the passage between two rows of machinery. The pursuer's height is recorded in evidence as 5'3". It is clear from photographs that she would have had difficulty in seeing over the top of a fully laden trolley. The photographs further show that the autocol machines protruded into the passage between the bottling lines to a significant degree, as did the bins that collected waste from those machines. While the sheriff finds that there was adequate room between the autocol machines to manoeuvre the trolleys safely, it is clear from the photographs that the configuration requires the trolleys to change their direction of travel at least twice in a relatively cramped space. The difficulties of manoeuvring a trolley in such a situation appear to us to be clear and obvious.

[21] Furthermore, the sheriff finds that on occasion the swivelling wheels of the trolleys become aligned other than in the direction of intended travel, making it difficult to move the trolley in that direction, and necessitating a realignment of the wheels. It further appears from the evidence, as counsel for the pursuer submitted when he proposed amendments to the findings in fact, that on those occasions the trolley wheels stick and come to a stop. In these circumstances it seems to us that there is a very obvious hazard when the loaded trolleys are compelled to negotiate the gap between the autocol machines, especially if as a result of the wheels' sticking there is a need to realign them. If that happened, the realignment in a constrained space could obviously result in sudden movements, with a risk of injury to the persons involved. In these circumstances, we consider that the trolleys were not "so constructed... as to be suitable for the purpose" of taking a full load of cap boxes from the bottom to the top of line 4, especially in the area between the two autocol machines (regulation 4(1)). Furthermore, the pursuer's trolley was not in the circumstances "used only for operations for which, and under conditions for which, it is suitable", in terms of regulation 4(3). We are of opinion that, even without the gloss provided in Hide on the concept of reasonable foreseeability, it was reasonably foreseeable that an accident of the general type suffered by the pursuer might result as a fully laden trolley was negotiated through the gap in question, especially if the wheels stuck at that point, requiring realignment. The matter is even clearer if the concept of reasonable foreseeability is interpreted in line with the guidance given in Hide, as we think it should be. In these circumstances liability exists under regulation 4.

[22] The sheriff accepted evidence from the defenders' bottling manager at Clyde Hall, Caroline McCafferty, and their safety, health and environmental specialist, James Reilly, to the effect that the trolleys were industry standard, used widely throughout the industry in which the defenders are involved, and that the weight of the boxes of caps which they carry did not exceed the maximum load carrying capacity of the trolleys, and indeed was well below that capacity. We do not consider these considerations persuasive. The fact that trolleys are used throughout the industry suggests that they are used for a range of different tasks in a range of physical situations. As we have indicated, it is necessary under regulation 4 to focus on the particular task in question. The fact that the trolleys can safely be used in other, different, circumstances is irrelevant to the consideration of that question. Indeed, it seems to us that the sheriff can be said to have relied too much on the general suitability of the trolleys for a range of tasks rather than focusing on the particular circumstances of the task that the pursuer required to perform. As we have already remarked, the application of regulation 4 depends critically on the precise facts and circumstances of the particular task that is to be undertaken. The sheriff also accepted evidence that trolleys with comparable loads had been used for many years without difficulty and evidence that the wheels fitted to the trolleys were suitable for the task. On the second of these points, the wheels may have been suitable for general use of such trolleys in an industrial context, but it does not follow that they were suitable for use in the particular circumstances of taking boxes of caps along the passage between lines 4 and 5. On the first, it was clear on the evidence that the defenders' reporting system was not completely comprehensive, and that many cases where wheels caused difficulty or did not function properly would go unreported. That inevitably reduces the significance of evidence based on lack of complaints.

[23] The sheriff further held, and found in fact, that the task of moving trolleys loaded with caps from the bottom to the top of a bottling line is a simple task which does not involve real and foreseeable risk of injury, nor of injury in the manner sustained by the pursuer. We disagree with that conclusion for the reasons stated at paragraphs [20] and [21] above. The task of pushing a trolley is no doubt simple in itself, but when the trolley has to negotiate obstructions, and is loaded to a height that obstructs the operator's visibility, and its wheels have a tendency to stick from time to time, matters cease to be simple and an obvious hazard seems to us to arise. Moreover, it is clear that the line operators on line 4 operated under some pressure; the line was the fastest running in Clyde Hall, and the evidence discloses that it processes 300 bottles per minute, or five every second. Even simple tasks can present a hazard if they are executed under pressure, or indeed repetitively; a trolley had to be taken to the head of line 4 between 6 and 8 times in every shift.

[24] For the foregoing reasons we are of opinion that the sheriff was wrong in the conclusion that he reached that there was no infringement of regulation 4 of the 1998 Regulations. We recognize that an appeal court must always be slow to interfere with the findings of the judge at first instance on questions of fact: Thomas v Thomas, 1947 SC (HL) 45. Nevertheless, in the present case we are concerned not with the determination of the primary facts but with inferences drawn from the primary facts, and with the application of judgment to the significance of those primary facts. We are concerned in particular with the question of whether the trolley used by the pursuer was suitable for the purpose of conveying caps along the passage between lines 4 and 5 in the circumstances found by the sheriff. Moreover, in considering that question, we are greatly assisted by the existence of excellent photographs both of the locus of the accident and of trolleys of the type in question. In these circumstances we consider that it is appropriate to interfere with the sheriff's decision; the photographs make it clear that the operation bore a foreseeable risk of an accident, and in considering that question the sheriff does not appear to us to have had any particular advantage through hearing the witnesses in person. What is involved is an evaluation of the trolley at the place where it was used based on the physical characteristics of the trolley and the place; that is something that appears very clearly from the photographs.

Provision of Work Equipment Regulations 1998, regulation 5

[25] The pursuer also has a case based on regulation 5 of the 1998 Regulations. This provides as follows:

"(1) Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair".

We can deal with this regulation very shortly. The evidence did not disclose that the trolley which caused the pursuer's injury was in a poor state of repair; what went wrong rather related to an inherent defect in that the swivelling wheels had a tendency to become aligned other than in the intended direction of travel, so that the wheels became stuck and required realignment. In these circumstances the case based on regulation 5 must fail.

Manual Handling Operations Regulations 1992, regulation 4

[26] The pursuer's third ground of action is based on regulation 4 (duties of employers) of the Manual Handling Operations Regulations 1992. This is in the following terms:

"(1) Each employer shall-

(a) so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured; or

(b) where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured-

(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.

(2) Any assessment such as is referred to in paragraph (1)(b)(i) of this regulation shall be reviewed by the employer who made it if-

(a) there is reason to suspect that it is no longer valid; or

(b) there has been a significant change in the manual handling operations to which it relates;

and where as a result of any such review changes to an assessment are required, the relevant employer shall make them.

(3) In determining for the purposes of this regulation whether manual handling operations at work involve a risk of injury and in determining the appropriate steps to reduce that risk regard shall be had in particular to-

(a) the physical suitability of the employee to carry out the operations;

(b) the clothing, footwear or other personal effects he is wearing;

(d) the results of any relevant risk assessment carried out pursuant to regulation 3 of the Management of Health and Safety at Work Regulations 1999;

(e) whether the employee is within a group of employees identified by that assessment as being especially at risk; and

(f) the results of any health surveillance provided pursuant to regulation 6 of the Management of Health and Safety Regulations 1999".

[27] It is not disputed that the pursuer was engaged in a manual handling operation. Regulation 4 deals with manual handling operations which involve a risk that an employee may be injured. In such a case, the employer is obliged to undertake the sequence of steps set out in paragraph (1) of the regulation. These are qualified by the requirement of reasonable practicability. Paragraph (1)(a) requires that operations which involve a risk of injury should be avoided so far as is reasonably practicable. Paragraph (1)(b) applies where that is not reasonably practicable, and requires the employer to make a suitable and sufficient risk assessment and to take appropriate steps to reduce the risk of injury to the lowest level reasonably practicable.

[28] In the present case, we are of opinion that the operation that was being undertaken by the pursuer, taking the trolley along the passage between line 4 and line 5, involves a risk of injury, for the reasons discussed in relation to regulation 4 of the 1998 Regulations. Especially at the point where the trolley had to negotiate the gap between the two autocol machines and their accompanying bins, the operation presented a clear hazard in view of the propensity of the swivelling wheels to become misaligned and stick, requiring realignment. Paragraph (3) of the regulation lists a number of factors that are to be taken into account in determining whether a manual handling operation involves a risk of injury and in determining the steps that are appropriate to reduce that risk. Three of these seem to us to be pertinent. The first is the physical suitability of the employee to carry out the operation. The pursuer was 5'3" in height, and must clearly have had a limited view when pushing the trolley. The trolley was, moreover, carrying a weight of 380 kg, and it may be thought that the pursuer was less well suited to the task of pushing the trolleys than the cap men. The third factor is the knowledge and training of the employee. Evidence was given of the general health and safety training given to the line operators at the plant, including the pursuer. The evidence indicated that the training was fairly general in nature, however, and it did not appear to focus on the problems that might arise if the wheels stuck while negotiating a difficult gap. The fourth factor is the results of any relevant risk assessment. Evidence was led that the defenders had carried out risk assessments on the bottling lines in Clyde Hall, and the sheriff finds that included a general risk assessment of manual handling operations. Nevertheless, it was clear that these did not deal specifically with the problem that confronted the pursuer as she negotiated the gap between the autocol machines.

[29] In these circumstances we are of opinion that the risk of the type of accident that the pursuer sustained was clear and obvious. Regulation 4 of the 1992 Regulations only requires an employer to do what is reasonably practicable. It is clear, however, that the onus of proving that a particular step is not reasonably practicable rests on the employer. Moreover, the fact that a step is not reasonably practicable must be the subject of averment. This is so even though personal injuries actions are now conducted with abbreviated pleadings. The critical point is that fair notice must be given, even with simplified pleadings. The proposition that a particular precaution is not reasonably practicable is one that might well be challenged by the pursuer, but that requires advance notice. In the present case, the defenders do not plead that it was not reasonably practicable to avoid the need for line operators such as the pursuer to move the trolleys to the head of line 4; indeed, their pleadings say nothing about reasonable practicability. Had a case based on the absence of reasonable practicability been pled, a number of possibilities might have been open to the pursuer. It is possible, for example, that the risk of accidents could have been reduced if the cap men had invariably taken the trolleys right up to the hoppers at the head of the bottling lines. Alternatively, it might have been possible to use a hand operated forklift device (as distinct from a forklift truck) to move the boxes of caps. Yet a third possibility is that trolleys of a different size and shape might have been used, in such a way that they could negotiate the gap between the autocol machines without hazard. Without being put on notice, the pursuer could not be expected to appreciate the need for evidence of possible alternatives. We are accordingly of opinion that the defence of reasonable practicability has no application to the present case.

[30] Moreover, regulation 4 clearly envisages a sequential approach to the various issues set out in paragraph (1): avoiding the need for the operation in question, making a risk assessment, and taking appropriate steps to reduce the risk of injury. As we have remarked, no evidence was led of any specific risk assessment dealing with the particular task that the pursuer was performing. There is thus no indication that the defenders approached the particular task in the manner required by regulation 4. On this basis, too, any defence must fail.

[31] The sheriff, in dealing with the 1992 Regulations, referred to the fact that the task of manoeuvring the trolley was simple, that the pursuer was an experienced employee who had undergone manual handling training, and that she was wearing protective gloves and footwear. On that basis he considers that there might have been "a very small theoretical risk of injury", but it was not in his opinion "a real risk of injury, which was foreseeable". In this connection he referred to the decision of the Court of Appeal in Koonjul v Thameslink Healthcare Services [2000] PIQR 123, where it was indicated (Hale LJ at 126) that "there must be a real risk, a foreseeable possibility of injury; certainly nothing approaching a probability". For the reasons we have already stated, we disagree with the sheriff's conclusion. We consider that the risk was quite sufficiently substantial to bring regulation 4 of the 1992 Regulations into operation.

[32] The sheriff gave consideration to the factors listed in paragraph (a)-(d) of regulation 4(3), and indicated that he thought that these supported the view that there was no real and foreseeable risk. He pointed out that the pursuer had carried out the task for several years without complaining of difficulty, and that manual handling training had included training to assess the load of anything that had to be moved and to ask for assistance if necessary. The pursuer was required to wear safety gloves and footwear, and the risk assessment had identified that manual handling would be involved. For the reasons that we have stated, we consider that certain of these factors point in the opposite direction. Essentially, however, our view that there was a significant risk in the present case is based on an evaluation of the task that confronted the pursuer, having regard to the very clear evidence contained in the photographs and to the critical finding that the trolley wheels had a tendency to become misaligned and stick, necessitating realignment.

[33] The sheriff further indicated that the pursuer had not pled any case that the defenders ought to have avoided the need for employees to undertake the manual handling operation involved in moving the trolleys. He stated that no evidence was led from the pursuer to the effect that the bottle caps should have been transported in some other way. While the legal burden might be on the defenders to prove that it was not reasonably practicable to avoid the need for employees to undertake the manual handling operation, that would arise only if the issue were raised properly by the pursuer, on the basis that an initial evidential burden to raise the issue is on the pursuer. In this connection he referred to Egan v Central Manchester & Manchester Children's University Hospitals NHS Trust, [2008] EWCA Civ 1424; [2009] ICR 585 (Smith LJ at paragraph 22). In our opinion that case provides no support for the view that there is any evidential burden on the pursuer. What Smith LJ states at paragraph 22 is as follows:

"It is true that the judge did not refer to the burden of proof and it appears to me, from his reference to the lack of particularity in the claimant's pleading, that the judge may, in his own mind, have placed the burden on the claimant. If he did, that would have been wrong. I accept, of course, that, in practice, if a claimant wants to allege that there were steps which could and should have been taken and the employer says there were none, there will be an evidential burden on the claimant to advance those suggestions, even though the legal burden will remain on the employer. So, although it was not in my view correct, the judge's approach was capable of leading him to the right conclusion. The question is whether or not his assessment of the various suggestions was right, bearing in mind that the claimant had established that the operation in question carried a risk of injury and it was therefore for the employer to show that it had taken appropriate steps to reduce that risk to the lowest level reasonably practicable".

[34] That passage makes it quite clear that the burden of establishing that a step is not reasonably practicable rests on the employer, not the employee. The "evidential burden" that is referred to does not appear to us to be an evidential burden in the true sense, where evidence is required to bring a particular issue into play. What is referred to is the situation where the employer pleads a case and leads evidence to the effect that a particular step was not reasonably practicable. In that event, if the employee wishes to rebut that case, he or she will normally wish to lead evidence to that end. That does not involve placing any burden of proof on the employee, however; the burden of both averring and proving that a particular step is not reasonably practicable rests at all times on the employer.

[35] The sheriff further indicated that, although the defenders had not averred that it was not reasonably practicable to transport the bottle caps to the hopper by some other means, evidence was led for the defenders without objection that it would not be possible to transport the bottle caps to the top of the line by any other means than trolleys. In these circumstances the sheriff considered that, notwithstanding the lack of pleading, he was entitled to take account of that evidence and make a finding to that effect. In our opinion that was not correct. If evidence is led without objection but there is no basis in the pleadings, it may be proper to hold that the party failing to object has acquiesced in the leading of such evidence, but before the evidence can be taken into account for the purpose of making findings in fact amendment of the pleadings is necessary: Stair Memorial Encyclopaedia, Civil Procedure (Reissue), paragraph 135. This is made clear in McGlone v British Railways Board, 1966 SC (HL) 1, where it is pointed out by Lord Reid (at 12) that in such a case a motion should be made for an amendment of the pleadings. If no objection has been taken, the motion to amend will usually be allowed. In the present case, however, the pleadings were not amended.

[36] For the foregoing reasons, we are of opinion that the pursuer should succeed on a case based on regulation 4 of the Manual Handling Operations Regulations 1992.

Contributory negligence

[37] There remains the question of contributory negligence. The sheriff took the view that the pursuer could not be criticized for going to the front of the trolley to attempt to free the wheels when they stuck, with assistance from her colleague at the rear. Nor did he consider that the pursuer could be criticized for not seeking assistance. The basis on which he would have upheld the plea, if he had found for the pursuer, was that she had placed her hands on the extremities of the trolley (the vertical poles found in each corner), which exposed her to the risk of injury when manoeuvring it between machinery. In this respect, the sheriff found that the pursuer's training included instruction not to place her hands on equipment where they would be at risk of injury, and in particular not to place her hands on the extremities of a trolley when manoeuvring it. He records, however, that this matter was not put to the pursuer in cross-examination, but he considered that failure to cross examine did not preclude the defender from leading evidence on the issue, although it might have a bearing on the weight of such evidence.

[38] In our opinion there should be no finding of contributory negligence. In general, courts have been reluctant to hold that contributory negligence exists in cases where an employee sues for breach by his employer of health and safety legislation. In Staveley Iron & Chemical Company Ltd v Jones, [1956] AC 627, Lord Tucker stated (at 648) that:

"in Factory Act cases the purpose of imposing the absolute obligation is to protect the workmen against those very acts of inattention which are sometimes relied upon as constituting contributory negligence so that too strict a standard would defeat the object of the statute".

Exactly the same point applies to modern European-inspired health and safety legislation such as the Provision and Use of Work Equipment Regulations 1998 and the Manual Handling Operations Regulations 1992. The point of the legislation is to ensure a safe working environment and work practices, and to impose strict liability on the employer if those standards are not met. Momentary acts of inattention are to be expected, especially when employees are under pressure or are performing repetitive tasks. For that reason a finding of contributory negligence should only be made in a clear case; generally speaking this will be one where the employee has made a conscious decision to embark upon a risky course of action: see Tafa v Matsim Properties Ltd, [2011] EWHC 1302 (QB), at paragraphs 164-166; and McLachlan v Early Learning Centre Ltd, [2011] CSOH 25; 2011 Rep LR 30, per Lord Tyre at paragraphs [7]-[10].

[39] In the present case the pursuer was confronted with a problem when the wheels of a trolley became stuck, in that she required to realign the trolley in order to move it in the direction of the hopper. She obviously required to take hold of the trolley to do that. The trolleys themselves do not have handles, and the only way in which they can be easily manoeuvred is by taking hold of the steel cage. The sheriff appears to have accepted the proposition that the pursuer should have taken hold of the smaller wires in the interior of each of the panels of the cage. It is obvious, however, that that would not have been comfortable and would not have given the best of control over the trolley. The best control would be achieved by holding on to the frame of the trolley, which necessitated holding it at its extremities. It is entirely understandable that an employee might do that in attempting to deal with the problem that had arisen. This is certainly not a case where the pursuer consciously embarked on a risky course of action; it was rather a case of momentary inattention. In these circumstances we do not think that any significant blame can be attached to her.

[40] The sheriff had regard to evidence from the defenders' witnesses that the pursuer, in the course of her training, had been told not to place her hands on the extremities of a trolley. That proposition was not put to the pursuer in cross-examination, however. Nor is it referred to in the pursuer's pleadings. In these circumstances we are of opinion that the sheriff ought not to have had regard to this evidence. In the first place, if the defenders were to found on the pursuer's holding on to the extremities of the trolley, that should have appeared in their pleadings. (They did refer expressly to the pursuer's pulling the trolley instead of pushing it and failing to seek assistance from other operators, and that she had a duty to act in accordance with her training, to take care in manoeuvring the trolley, and to keep a proper lookout). This is a simple question of fair notice, because such an issue might really affect the assessment of the case by the pursuer's advisers. On that basis, for the reasons discussed at paragraph [35] above, if questions were asked without an averment, at the very least an attempt should have been made to amend the pleadings to take account of such evidence. In the event no motion to amend was made. In the second place, the failure to put this evidence to the pursuer is of great significance, because it is her conduct that is directly under challenge. Serious prejudice could result from the failure to cross-examine. Even if regard is had to evidence about the pursuer's training, however, we are of opinion that what is involved in this case is an attempt by the pursuer to deal with a problem that had arisen because the wheels had stuck. It was natural that the pursuer in such a situation should take hold of the extremities of the trolley because they gave her better control. That is especially so because of the lack of any handle on the trolley. Consequently we do not accept that there was any contributory negligence.

Conclusion

[41] For the foregoing reasons we will allow the appeal and pronounce decree for the agreed damages of £5321.62. That sum includes interest to 28 June 2012. After that date interest will run at the judicial rate.