SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

 

A139/02

		JUDGMENT   of   SHERIFF DOUGLAS J CUSINE
		in the cause
		ALAN ORR JAFFRAY
		PURSUER
		against
		GRAMPIAN TEST & CERTIFICATION LIMITED
		DEFENDERS

 

 

 

 

 

 

 

ABERDEEN, 23 June 2006.

 

 

 

 

The sheriff, having heard parties' counsel on the pursuer's motion made at the bar to amend the Fifth Amended Closed Record, No. 40 of process, by inserting in Article 4 of Condescendence in the third bottom line on page 8 between the words "Ross" and "In" the words, "They could have provided a face visor.", Grants the same; Allows the Record to be opened up and amended as above and thereafter Closes the Record of new; Having resumed consideration of the whole cause,

 

 

 

Finds in Fact:-

 

1. The pursuer resides at 52 Denmore Gardens, Danestone, Aberdeen. He is 39 years of age.

 

2. The defenders are GTC Group Limited formerly called Grampian Test & Certification Limited. They have a registered office at 20 Queen's Road, Aberdeen.

 

3.                  On 22^nd September 1999, the pursuer was employed by the defenders as a labourer at their premises at Crawpeel Road, Altens Industrial Estate, Aberdeen. He had been in their employment for approximately 3 weeks. Prior to that, the pursuer had been employed by the Craig Group. He worked in the same yard as that occupied by the defenders. While he was at the Craig Group, he dealt with shackles and taking wires and reeling them off on to spools.

 

4.                  At the commencement of his employment with the defenders, the pursuer received a copy of his contract of employment and a copy of a Health & Safety handbook.

 

5. At the same time, the pursuer also saw and signed an induction check list which included general things, but nothing specifically relating to the making of Flemish Eyes. The department of the defenders to which the pursuer was allocated is described as "rigging".

 

6.                  On the morning of 22^nd September 1999, the defenders' manager, Stuart Melville, instructed George Morrison, who was the pursuer's supervisor, to have six Flemish Eyes made up. A Flemish Eye is a length of steel wire rope cable, one end of which is formed into a loop. While this is being done, the wire is held in a hydraulic clamp. It is impossible to form a Flemish Eye mechanically, but 95% of all loops in steel wire rope are formed using a machine. The hydraulic clamp had been made in the defenders' workshop. The electric cables for the machine were taken in and out of a warehouse when required, but the machine itself had been in place for some time.

 

7.                  George Morrison instructed the pursuer and three other employees of the defenders, namely George Beaton, Darren Ross and Stephen Craig, a crane driver, to assist him. Both Morrison and Beaton had had experience of making Flemish Eyes. George Morrison was the supervisor of the operation.

 

8. Prior to 22^nd September, the pursuer had had no involvement in the construction of a Flemish Eye, but he had been told by Morrison what was involved in the operation. All of the employees were wearing overalls, hard hats, leather gloves and glasses.

 

9. The steel wire rope from which the Flemish Eye would be formed consisted of seven strands of steel wire, each of which was approximately one inch in diameter and a core, all of which measured approximately 7 inches in diameter. The wire was between 20 and 30 feet long.

 

10. A Flemish Eye is constructed by separating three strands from the core and the other three strands one at a time. This is called "splicing." The pursuer had never previously dealt with splicing.

 

11. Each strand is then bent back in the shape of an eye and should be held in a hydraulic clamp. Thereafter, that length of rope would be woven into the main length of rope and the same exercise would be undertaken in relation to the other two strands. Once the whole of the rope had been bent back on itself, a metal collar or ferule would be attached at the join, thus forming a permanent eye.

 

12. Between 7 and 8 feet of one end of the rope protruded beyond the point at which the wire had been clamped in the hydraulic clamping machine, Thereafter, Steven Craig was to operate the clamp.

 

13. At the material time, the rope had been clamped in the machine and one strand of between 7 and 8 feet long had been bent back towards the main length of rope, clamped and the strands unwound.

 

14. One of the strands was to be pushed through the loop formed by the rope. Morrison instructed the pursuer and George Beaton to push the strand of steel rope through the eye towards Darren Ross who was standing at the clamping machine on the other side of the loop. This movement required considerable force, and the two men were using their chests to move the rope.

 

15. George Morrison had explained to the pursuer that the person inserting the wire through the loop should hold on to it until the man at the other side had acknowledged that he had a hold of it and had taken the strain, and both he and George Beaton had emphasised to the pursuer the importance of not letting go of the wire until the man on the other side had confirmed that he had taken the strain.

 

16. Ross signalled that he had taken the strain of the rope which was at that time under tension and if released would spring back into, or towards, its original position. He then told the pursuer was told that it was safe to move away. George Beaton was then told the same thing by Ross.

 

17. The pursuer and George Beaton then stood back, but Ross failed to retain hold of the strand of rope and it ricocheted back and struck the pursuer on the right side of his head. Although George Morrison was immediately behind the pursuer at the time the pursuer was struck, he was distracted because someone had called "George," but he did see the rope strike George Beaton's hat.

 

18.              On 7^th September 1999, the defenders carried out a risk assessment in relation to forming Flemish Eyes on wire rope. That risk assessment identified hazards as including "wire springing back" and the effect being "striking body parts" and the hazard rating was assessed as "high". The defenders had identified the following as minimising the risk namely "ensuring minimum of two operatives at all times. Gloves, hard hats and at all times."

 

19.              The pursuer had never seen the risk assessment above referred to and none of the hazards was mentioned to him, but he was given the basic instruction to look after himself. George Morrison had been involved in the preparation of this and other risks assessments done at the same time. They would be written out, and then typed. All of the defenders' activities are the subject of annual risk assessments.

 

20 The pursuer's accident was reported by George Morrison to Stuart Melville, a director of the defender company, and to Lesley Crichton who was in charge of safety that day. She was to report to the Health & Safety Executive but that was not done until 6 October 1999. In that report, the details of the incident are given as follows. "Alan Jaffray and George Beaton were making Flemish Eyes. They were splicing wire back into making a Flemish Eye when wire slipped. Alan Jaffray stepped back when wire came at him and hit him on the head briefly scaved George Beaton on the head. A Jaffray was sent to hospital. A Jaffray received three stitches. G Beaton was okay." That wording is George Morrison's.

 

21. In a safety preventative actions form dated 7^th October 1999, Lesley Crichton reports as follows. "A Jaffray was injured on 22^nd September 1999 when he was making Flemish Eyes. They were splicing wire back into make a Flemish Eye when wire slipped, struck him on head. George Beaton was scaved on head as he was helping A Jaffray. When carrying out this particular operation employees should ensure that they have a secure grip of the wire so it does not strike back. As this can be difficult, it is wise to have more than one person carrying out this job depending on the size of the wire. Employees should also ensure that they wear the correct personal protective equipment. Hard hats in the yard and safety glasses at all times."

 

22.              On 9^th February 2000, David Walker of the Health & Safety Executive, Aberdeen, visited the site to "assess guarding of splicing machine" following upon the accident. He was shown the Flemish Eye operation by George Morrison. Walker took photographs. He reported that guarding is generally difficult because operators require access to both sides of the clamp in order to produce the Flemish Eyes. He did say, however, "One solution may be to install an array of posts through which the rope can be threaded." He referred this issue to a colleague in Edinburgh, because he did not have the expertise.

 

23.              A consulting engineer, Stanley Wylie Johnston was of the opinion that a post could be made as part of the machine and that a second post could be placed outwith the machine. That would help to prevent such an accident as would the provision of a face visor of some kind. At the time, the pursuer was wearing eye glasses which are for eye protection, whereas a visor would have protected the pursuer's head. In Mr Johnston's opinion, there ought to be two people holding on to the wire and two others ready to receive it.

 

24. David Wood, a health and safety consultant, and a former health and safety inspector, was of the opinion that a post would not help and he could not imagine anyone saying that, had they seen a Flemish Eye being made. He was also of the opinion that it was unsafe to have more than one person on each side of the hydraulic clamp as more than would might mean that they would get in each other's way.

 

 

Finds in law

 

1.      The defenders owed the pursuer a duty of care not to cause him injury of a foreseeable kind.

2.      The defenders were in breach of that duty of care, as a result of which the pursuer was injured.

3.      The injury sustained by the pursuer as a result of that breach was foreseeable

4.      The operation of making a Flemish Eye is a Manual Handling Operation within the meaning of the Manual Handling Operations Regulations 1992.

5.      The defenders were in breach of Regulation 4 of said Regulations in that they failed (i) to make a suitable and sufficient assessment of this manual handling operation, having regard to the factors specified in column 1 of Schedule 1 and considering the questions which are specified in the corresponding entry in column 2 of said Schedule thereto, and (ii) to 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.

6.      The breach of the said Regulations caused the pursuer injury of a foreseeable kind.

7.      The pursuer is entitled to reparation from the defenders for the injury so sustained.

 

THEREFORE SUSTAINS the first plea in law for the pursuer, REPELS the first, second, third, fourth, fifth, sixth, seventh and eight pleas for the defenders; Certifies Stanley Wylie Johnston and David Wood as skilled witnesses for the pursuer and defenders respectively; Certifies the cause as suitable for the employment of junior and senior counsel; RESERVES meantime all questions of expenses; CONTINUES consideration of the cause until 11^th July 2006 at 10.00 am within the Sheriff Court, Castle Street, Aberdeen.

 

 

 

 

NOTE.

 

Background

 

On 22^nd September 1999, the pursuer was employed by the defenders when he was struck on the head by a strand of wire rope while he was engaged in the making of a "Flemish Eye". This operation involves making a loop in a piece of wire. The wire rope is clamped in a hydraulic clamping machine. The wire which had six strands and a core was spliced by separating three strands which were in turn bent back and clamped. The three strands were bent back one at a time and pleated into the rope, thus forming an eye. The join was then clamped by a metal ferule. The operation is shown in photographs No. 5/3/21 of process, the correct order being H, E, D, F, G & I, J, K, A, B and C.

 

There were four people involved in this operation, namely the pursuer, George Beaton, Darren Ross and Steven Craig. The operation was being supervised by George Morrison, who, like George Beaton, had experience of making Flemish Eyes. The pursuer and George Beaton were pushing one strand of the wire towards the clamping machine. They had been instructed not to let go of the rope until Ross who was at the machine and was to clamp the strand had indicated that he had the strain of the strand of rope. Either Ross never had the strain, or he let go, but, in any event, the wire sprang back and struck both the pursuer and George Beaton on the head, both of whom had stepped back from the rope at the time. The pursuer was injured on the right side of his head. He was taken to hospital and received three stitches to the wound. The accident scene and the machine were subsequently inspected by David Walker of the Health and Safety Executive.

 

The pursuer sues the defenders both at common law and under the Manual Handling Operations Regulations 1992 (S.I. 1992/2793) in respect of his accident. The proof was heard on 15^th, 16^th and 17^th May 2006. The pursuer was represented by Mr Di Rollo, QC and Mr Macdonald, Advocate. The defenders were represented by Mr Jamieson, Advocate. Evidence was given by the pursuer and on his behalf by George Morrison and Stanley Johnston. On behalf of the defenders, evidence was given by George Beaton, Stuart Melville, David Wood and David Walker.

 

Submissions for the pursuer

Mr Di Rollo invited me to sustain the pursuer's first plea-in-law and to repel the defenders' first, second, third, fourth, fifth, sixth, seventh and eight pleas-in-law. He invited me to allow amendment of the record to insert a reference to the provision of a face visor as something which could have prevented the accident.

 

He submitted that the pursuer should be accepted as a credible and reliable witness, certainly in relation to the material facts, namely that when the pursuer was being assisted by George Beaton in bending the rope back towards the clamp, Ross indicated that he had taken the strain on the rope and accordingly that the pursuer and Beaton could safely step backwards. It was the first time the pursuer had been involved in this exercise. While he had been given training, that was of a general nature and the instruction to the pursuer in relation to the making of the Flemish Eye was that when he was bending the rope backwards towards the clamp, he should not let go until he was told by Ross that he (Ross) had taken the strain.

 

The defenders' risk assessment dated 7^th September 1999 is ambiguous in that it could be read as requiring two people to push the rope and another two to receive it, or it may mean only one of each.

 

The pursuer's common law case which is set out in Article 5 of Condescendence is supported by George Morrison who says that Ross was on the other side of the clamp and was to receive the wire from Beaton and the pursuer. There was no evidence to support the defenders' averment that the pursuer had let go of the wire at the time that he was injured. The pursuer's productions, namely 5/2/6, 5/2/7, 5/2/8 and 5/3/8 to 5/3/11 of process, support his position. Furthermore, at no point in any of these productions is the pursuer blamed for the accident. If I accepted that the pursuer stepped back only when advised to do so, that is inconsistent with his letting go of the rope, prior to being told that it was safe to do so.

 

The defenders had attempted to discredit the pursuer by making reference to his use of cannabis, his conviction for drunk driving and his saying that he knew nothing about Flemish Eyes prior to the accident. They also sought to discredit him in relation to his position that the machine had not been there on previous days and his comment that Morrison and Beaton had said that they had not made Flemish Eyes in the previous six years. Even if I took the view that the pursuer was wrong in relation to the machine and Morrison and Beaton's experience of making Flemish Eyes, that did not necessarily discredit the pursuer. Careful consideration of the defenders' pleadings reveals a different account from what was said by the witnesses.

 

Mr Wood who was a witness for the defenders was not given an account of the accident other than that which appears in the pleadings and his comments on page 4 of his report (No. 6/2/1 of process) do not square with the defenders' case on record.

 

So far as reporting of the accident is concerned, the position is unsatisfactory in that Mr Melville, who was called by the defenders, could not explain why the accident was reported to the HSE only on 6^th October 1999 and not earlier and furthermore he could not explain why there is no internal accident report prior to 6^th October. In Mr Di Rollo's submission, it is difficult to reject the pursuer given the delay on the part of the defenders. The pursuer's position is that Ross let go and in relation to the things that the pursuer got wrong, these are merely honestly-held but mistaken views.

 

So far as the case under the Manual Handling Operations Regulations is concerned, the defenders' case is that this was not a manual handling operation. Even if the pursuer's account is rejected, Mr Di Rollo's submission was that this was a manual handling operation and that the defenders failed to have three things in place. One was a post or posts on or near the machine to prevent any strand of wire from springing back further than the post(s). Another was to have two people involved in pushing the rope and two people involved in holding on to it at the other end, i.e. at the clamping machine, and the third was to provide a face visor. One or more of these would have reduced the possibility of an accident.

 

In relation to the post(s), one had to contrast the evidence given by Mr Johnston, an expert, as against the evidence given by the other expert, Mr Wood. It is clear that the defenders considered the question of two people as can be seen from the safety preventative accident form (No. 5/2/8 of process), but their risk assessment (No. 5/2/5 of process) is defective in that it is not clear whether it means two people on either side of the clamp, or just one. Mr Wood rejects the suggestion of a face visor, whereas Mr Johnston feels that eye glasses are there for eye protection, whereas a visor would have protected the pursuer's head which is where he was injured.

 

So far as the application of the Regulations is concerned, Mr Di Rollo's position was that while Sheriff Jessop allowed a proof before answer being unable to resolve the matter at debate, he did indicate at page 14 of his judgment that the operation may very well fall within the ambit of the Regulations.

 

If one looks at the definition in Regulation 2, it is sufficiently wide to cover the operation in which the pursuer was involved. There would be no doubt, in Mr Di Rollo's submission, that if the pursuer had injured his back, that would have been covered by the Regulations. It would seem that the defenders' expert accepts that point if one has regard to his report. If one considers the duties under Regulation 4, it is quite clear that the making of a Flemish Eye involves a manual handling operation and that one of the three things mentioned above would have reduced the risk.

 

If there was any contributory negligence on the part of the pursuer, it should be assessed at no more than 20%.

 

Mr Di Rollo asked me to certify Mr Johnston as an expert and to satisfy the cause as suitable for the employment of both senior and junior counsel.

 

Submissions for the defenders

Mr Jamieson submitted that Mr Johnston's report (No. 5/10/1 of process) had been supplied only a few weeks prior to the proof, and that the Rule 18(3) hearing on the pursuer's minute of amendment, there was no mention made of a face visor. Accordingly, I should not allow the record to be amended.

 

He invited me to repel the pursuer's first plea-in-law and sustained the fifth, sixth and seventh pleas-in-law for the defenders. Under the Manual Handling Operations Regulations, his submission was that the evidence demonstrated that the pursuer had let go; accordingly I should sustain the defenders' eighth plea-in-law.

 

So far as the common law case is concerned, the record demonstrates that the pursuer had been engaged for the first time in this operation, but that he had been given training. The onus in relation to both the common law case and Regulations' case rests with the pursuer who, to succeed, has to be regarded as both credible and reliable and that means being consistent throughout his evidence.

 

If one considers Mr Walker's report (No. 5/3/11 of process, page 3) and he is impartial, one will see that the documentation and the evidence support the view that there were two colleagues of experience involved, and accordingly the pursuer's account is not a consistent one. The pursuer's evidence was that he had not received any training and that he had never seen the risk assessment. His evidence that he had received no training is at odds with what appears on page 5 of the record.

 

So far as the location of the clamping machine is concerned, the pursuer was adamant that it had been put there on the morning of his accident and that there had been an conversation between and Morrison and Beaton to the effect that neither had made a Flemish Eye in the previous six years. The pursuer wanted us to infer that the machine had been moved, whereas the evidence points to the contrary and the evidence of Morrison and Beaton themselves about their experience should be preferred to that of the pursuer. That tended to discredit the pursuer, as did his admitted involvement with cannabis and his drink driving conviction. According to him, everybody is telling lies apart from himself. That was said to discredit the defenders and show that the company does treat health and safety matters conscientiously. The company accepted, however, that the chain of command was not operating correctly on that particular occasion.

 

So far as the Regulations are concerned, the only evidence that the pursuer had stepped back from the rope comes from the pursuer himself, but the Regulations cannot apply on the facts as set out by the pursuer, namely that he was not holding the rope at the time. If the pursuer had let go of the rope, he was not at that time involved in a manual handling operation, even if he had been immediately prior to that. In that connection, I was referred to the case of Hughes v Grampian Country Food, a decision of Lord Menzies dated 18^th January 2006, where his Lordship held that there was a manual handling operation involved in lifting chickens, but the pursuer was injured while trussing chickens. It was quite clear from paragraphs 29 to 31 of the decision in Hughes that the pursuer in the present case was not involved in a manual handling operation.

 

In the present case, one must look at what exactly was happening and the reality is that the pursuer's involvement with any manual handling operation had come to an end as soon as he had let go of the rope. Schedule 1 of the Regulations sets out the relevant factors and merely because the pursuer was pushing the rope at some stage does not necessarily imply that the Regulations apply.

 

On the assumption that they do, one has to look at the reasonably practicable steps that could have been taken and these were the positioning of posts, having two people holding on to the rope and two others ready to receive it at the machine, and the provision of a face visor.

 

The matter of the posts was canvassed only with the experts and in these circumstances, I should prefer the evidence given by Mr Wood. If I were to take Mr Johnston's view I would need to be satisfied that he had come to the correct conclusion without having had a site visit. Mr Johnston stated that he did not need to consider testing whether a post would work or not---his position was that that would prevent an accident. The risk assessment said a minimum of two people and again one should prefer Mr Wood's evidence which was that two people would suffice. The pursuer's evidence was that he was hit on the side of the head, but there was no evidence to show whether a visor would make any difference.

 

So far as contributory negligence is concerned, it was submitted that it is difficult to assess that against an account which the pursuer himself does not accept. There are, however, admissions about George Morrison's instructions and the advice from both Morrison and Beaton (Fifth Amended Record, Article 2 on page 5) and accordingly I should hold the pursuer to be 100% contributorily negligent. I was asked by Mr Jamieson to certify Mr Wood as an expert and to certify the cause as suitable only for the employment of junior counsel given that he had conducted the case without senior counsel.

 

Assessment of the evidence

In relation to the material facts, I found the pursuer to be both credible and reliable. These material facts are that he was one of a group of four who were involved in the making of a Flemish Eye, an operation which can be done only manually and one which was supervised by George Morrison. The group had been instructed to perform this operation by Morrison who, like George Beaton one of the four involved, had some experience of this process whereas the pursuer himself had none. The pursuer and George Beaton were pushing one of the strands of wire rope towards the clamping machine. Ross, one of the persons at the machine indicated to both the pursuer and George Beaton that he had a hold of the wire as a consequence of which both the pursuer and George Beaton let go of the wire and stepped back from it. The pursuer obeyed the instruction which he had been given by both George Morrison and George Beaton not to let go of the wire until Ross had indicated that he had the strain. Ross either had the strain and let go or never had the strain in the first place but in any event the wire sprang back and struck both the pursuer and George Beaton on their heads as a result of which the pursuer was injured. No evidence was led to contradict that account, and accordingly, there was no evidence led to support the position of the defenders on record, viz:- that the pursuer had let go of the rope before being told that it was safe to do so.

 

It was not clear from the evidence whether there was another person along with Ross at the clamping machine at the material time. However, from the report of the HSE inspector, Mr Walker, of a telephone conversation about the accident with the pursuer on 27 October 1999 (No. 5/3/11 of process, 3^rd entry), there were two at the machine.

.

The defenders sought to discredit the pursuer by reference to the machine, the experience of Morrison and Beaton, the pursuer's use of cannabis and a conviction for drink driving. I am not convinced that someone who admitted using cannabis less than he did before and admitted that he had a conviction for drink-driving lacks credibility and cannot be relied on.

 

The pursuer's evidence in relation to the clamping machine was that it had been put in place only on the morning of his accident. That evidence was contradicted by both George Morrison, George Beaton and Stuart Melville who said that it had been there for some time. I accept their evidence, but in my view, that contradiction is of no consequence. There was evidence that the electrical wiring for the clamping machine was taken out when required and Mr Johnston's opinion from looking at the photographs was that the machine looked relatively new. It may be that the pursuer saw the wiring being taken out and assumed that the machine had been taken out also.

 

The pursuer also said that George Morrison and George Beaton had a conversation prior to the commencement of the operation which indicated that they had not been involved for some time in the making of Flemish Eyes. They both contradicted that matter and on that I prefer their account to his. However, all who were involved knew that those who were pushing the strand of wire should not let go of it until the other or others at the clamping machine had indicated that he or they had the strain. That instruction makes sense against the background of a risk identified in the risk assessment (No. 5/2/6 of process) as high, the risk being that the wire would spring back.

 

Reporting process

It seems obvious that on this occasion, the defenders failed to comply with their statutory obligations in relation to the reporting of the accident to the Health and Safety Executive (HSE). The accident took place on 22^nd September and was reported internally that day, but not to the HSE until 6^th October.

 

I believe George Morrison who said that he had reported the accident to Lesley Crichton that day and to the managing director, Mr Melville who accepted that it had been reported to him on the day, but he could not provide any explanation for the delay in reporting to the HSE.

 

The experts and the precautions recommended

The pursuer's expert was Mr Johnston who has professional engineering qualifications, and is a consulting engineer with 30 years' experience. He stated that the operation of forming loops in wires is usually a mechanical one. Should a Flemish Eye be required or thought desirable, the operation can be done only manually.

 

The opinion evidence of Mr Johnston differed from Mr Wood in relation to two of the three precautions suggested namely, having a post or posts and four people involved. I prefer the opinion of Mr Johnston in relation to the placing of a post inside the clamping machine. Mr Wood's position was that he could not imagine anyone suggesting that had he or she seen a Flemish Eye being formed and yet Mr Wood had seen the operation only once. Admittedly, Mr Johnston had not seen the operation but had come to his conclusion after a careful study of the photographs (No. 5/3/21 of process). The correct order for the operation is to look at photographs H, E, D, F, G and I, J, K, A, B and C. Mr Wood did not suggest that it was impracticable to have a post. It might be possible for one of the men pushing the rope to put the post(s) in position once the person at the clamp had the strain. That would not be possible if there was only one person involved in pushing the wire and one person at the clamping machine.

 

Accordingly, that in turn points to the need to have more than two people involved in the exercise something which Mr Wood dismissed as dangerous, because they could get in each other's road. That does not, in my opinion, follow, and there was no evidence to support that view . That said, the sensible reading of the risk assessment, in my opinion, points to four people being involved as they were on the day of the pursuer's accident and when the photographs were taken. For these reasons, I do not accept Mr Wood's opinion on the number of people who need to be involved. I prefer the opinion of Mr Johnston on this point in that on the day of the accident there were four people involved and there were also four people involved when the HSE attended. (That also accords with at least one interpretation of the risk assessment which unfortunately in relation to this important matter is ambiguous and accordingly unhelpful.) Mr Johnston has also 30 years' experience in the field.

In relation to the provision of a face visor, both experts agreed that that would provide a possible protection. Defenders' counsel invited me not to go along with that suggestion since there was no evidence about what the nature of the visor would be. However, as both experts agreed that the presence of a face visor would reduce the risk of injury or even prevent it, I do not need to go into the precise details of what shape or form the visor would take.

 

Discussion and Decision.

In a risk assessment carried out on 7^th February 1999 by the defenders (No. 5/2/5 of process) which relates to the operation of forming a Flemish Eye on wire rope, one hazard which is identified is "wire springing back". The effect is "striking body parts" and the hazard rate "high". The risk assessment indicates that the risk is minimised by "ensuring minimum of two operatives at all times, gloves, hard hats and at all times." The residual risk is described as "medium". (It seems clear that something is missing after the word "and".)

At the commencement of his employment, the pursuer received a short but general induction course, a copy of his contract of employment and a copy of the health and safety handbook. None of these deals specifically with the forming of a Flemish Eye and the pursuer had not seen the risk assessment above referred to.

 

The pursuer had been instructed by his superior, George Morrison, to assist in the operation which involved three others, Beaton, Ross and Crane. The pursuer had never previously been involved in making a Flemish Eye, but both Morrison and Beaton had some considerable experience of this operation. The pursuer was engaged along with George Beaton in pushing one of the strands of wire towards the clamp where, had things gone to plan, it would have been clamped. The pursuer had been instructed by George Morrison and George Beaton not to let go of the rope until Ross indicated that he had taken the strain of the rope. Ross did so indicate and both the pursuer and George Beaton stepped back. Either Ross did not have the strain or he let go of the wire which then struck the pursuer on the head causing him an injury. George Beaton's head was also struck by the wire. The pursuer was taken to hospital and his head wound was stitched.

 

The accident was not reported to the HSE until 6^th October 1999 which is outwith the statutory period for such reporting. No satisfactory explanation was given for this delay. The report to the HSE is No. 5/2/7 and also No. 5/3/8 of process. There is also lodged in process the defenders' Accident Investigation Form (No. 5/2/6) and their Safety Preventative Action Form (No. 5/2/8). In the report to the HSE, the description of what happened is "Injured person was splicing wire to make "Flemish Eyes" and wire sprung back and struck his head, causing injury. Was taken to hospital and received three stitches. Incident only reported caller on 6/10/99." In the Accident/Incident Report Form, the description is, "Alan Jaffray and George Beaton were making Flemish Eyes. They were splicing wire back into make a Flemish Eye when wire slipped. Alan Jaffray stepped back when wire came and hit him on the head and briefly scaved George Beaton on head. A Jaffray was sent to hospital. A Jaffray received three stitches. G Beaton was okay." The description in the Safety Preventative Action Form is, "A Jaffray was injured on 22^nd September 1999 when he was making Flemish Eyes. They were splicing wire into make a Flemish Eye when wire slipped, struck him on head. George Beaton was scaved on head as he was helping A Jaffray. When carrying out this particular operation employees should ensure that they have a secure grip of the wire so that it does not strike back. As this can be difficult, it is wise to have more than one person carrying out this job depending on the size of the wire. Employees should also ensure that they wear the correct personal protective equipment. Hard hats in the yard and safety glasses at all times."

 

Although in their pleadings, (Answer 2 page 7 of the Fifth Amended Closed Record) the defenders blame the pursuer for letting go of the rope before he ensured that Ross had the strain, in none of these reports is the pursuer blamed for the accident, nor are any of the descriptions therein consistent with that position. The reports of the accident could have been based only on eye witness accounts. More important, there was no evidence that the pursuer had let go of the rope prior to any indication that it was safe to do so. Both George Morrison and George Beaton had been involved in the making of Flemish Eyes on previous occasions. That being so, it is difficult to explain why someone with George Beaton's experience should step back at or about the same time as the pursuer had he (Beaton) not been given an indication that it was safe to do so. Even if, contrary to the evidence, the pursuer had let go prior to such an indication, there is no reason why George Beaton should also have let go of the wire at or about the same time. Had Beaton maintained his grip, even if the pursuer had let go before it was safe to do so, the accident might not have occurred.

 

In my opinion, the evidence supports only one conclusion, viz:- that the pursuer let go of the rope only after he had been given an indication from Ross that he had the strain of the wire.

 

Common Law Case.

The pursuer was injured as a result of the wire springing back towards him because it had not been securely held by Ross. This, in my opinion, was foreseeable and such an injury is identified in the defenders' risk assessment No. 5/2/6 of process. The defenders owed the pursuer a duty of care not to cause him injury of a foreseeable kind and they were in breach of that duty which caused the pursuer injury. That being so, the pursuer is entitled to reparation from the defenders.

 

In my opinion, no blame can be attached to the pursuer for the accident. He was told not to let go of the wire until he was advised that Ross had taken the strain. He did not. Had he let go without getting that assurance, he would have been the author of his own misfortune. Both he and George Beaton stepped back in circumstances where they thought it was safe, i.e. because Ross had so indicated. I fail to see how the pursuer can be said to have contributed in any way to his accident.

 

Manual Handling Regulations

I can well understand why my colleague, Sheriff Jessop, was unable to conclude on the basis of the pleadings alone that the operation of making a Flemish Eye was covered by the Manual Handling Operations Regulations 1992. Having heard and considered the evidence, I am satisfied that it was so covered. "Manual handling operations" are defined as meaning, "any transporting or supporting of a load (including the lifting, putting down, pushing, pulling, carrying or moving thereof) by hand or by bodily force." There is no doubt that the pursuer was pushing and moving the wire. The word "load" is said to include "any person and any animal." In the absence of any further details on this in the Regulations, the word "load" must be given its ordinary meaning. One of the meanings in the Shorter Oxford English Dictionary is "a thing laid on or taken up by a person or animal." The pushing and moving of a wire towards the machine was, in my opinion, the pushing and moving of a load within the meaning of the Regulations.

 

In Hughes v Grampian Country Food Group Limited, an unreported Outer House decision of Lord Menzies (2006 CS OH 5), the significant difference there was that the evidence from the pursuer did not disclose that she was supporting a load while trussing a chicken (the operation which resulted in her injury) and for that reason his Lordship held the Manual Handling Regulations did not apply. Counsel for the defenders in the present case submitted that the exercise that the pursuer was involved in was similar to that in which the pursuer in Hughes was involved. I do not agree. Counsel for the defenders invited me to hold also that when the pursuer stepped back from the wire, he was not involved in a manual handling operation, even if prior to that he had been. In my opinion, that is taking far too narrow a view of the Regulations. In Hughes, there were identifiable distinct parts of a process, whereas in the present case there was one process which involved pushing or moving the wire towards the clamp. According to the pursuer, that required considerable force on his part. I would find it hard to be persuaded that the operation would have ceased to be a manual handling operation if, for example, the pursuer and Beaton had stopped momentarily to get their breath back. I accept that that was not what they were doing in this particular case, but they were stepping back to prepare themselves for another manoeuvre of precisely the same kind and they would have proceeded to do that had the pursuer not been injured. In my opinion, therefore, the operation has to be looked at as a whole and not split up into small parts to be looked at minutely. Looked at as a whole, the pursuer was involved in a manual handling operation at the time he was struck by the wire and injured.

 

Given that I have held that the operation was a manual handling operation, the duties on the employers are set out in Regulation 4(1). The primary obligation is to ensure so far as reasonably practicable that employees avoid undertaking manual handling operations. As the making of a Flemish Eye can be done only manually, there is no breach of Regulation 4(1)(a). Regulation 4(1)(b) applies where 4(1)(a) is inapplicable. Employers are required to do three things, only two of which are relevant in this particular case. The first of these is to "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;" secondly, to "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." The pursuers did carry out a risk assessment, but it is unclear about the number of persons who should be involved in the operation and there is also an omission of some word or words in the heading "Minimise Risk By." The risk assessment was therefore neither suitable nor sufficient. By providing four persons for the operation, the defenders took one appropriate step. Having at least one post to be located within the clamping machine and providing a face visor were appropriate steps which could have been taken, either of which would have prevented or reduced the risk of injury to the pursuer.

 

In all the circumstances I shall sustain the first plea-in-law for the pursuer and repel the first, second, third, fourth, fifth, sixth, seventh and eight pleas for the defenders. I have no problem certifying Mr Johnston and Mr Wood as skilled witnesses, nor in certifying the cause as suitable for the employment of both junior and senior counsel. While I accept that junior counsel conducted the case on behalf of the defenders, the case was the subject of a debate and of an appeal to the Sheriff Principal. The common law case was not a matter of great complexity, but the interpretation and application of the Manual Handling Operation Regulations is a matter of some complexity and justifies the employment of senior counsel. I have reserved the question of expenses.