SHERIFFDOM OF LOTHIAN & BORDERS AT HADDINGTON

 

Ref: A370/06

 

JUDGEMENT

 

of

 

SHERIFF M. PETER ANDERSON

 

in the cause

 

EDWARD GRANDISON, 51 Stoneyhill Road, Musselburgh, Midlothian, EH21 6TW.

PURSUER

 

against

 

EAST LOTHIAN COUNCIL, John Muir House, Haddington, East Lothian, EH41 3HA.

DEFENDERS

 

 

HADDINGTON FEBRUARY 2008

Act: Mr McNulty, Solicitor, Dallas McMillan, Glasgow.

Alt: Mr Scott, Solicitor, Ledingham Chalmers, Edinburgh.

 

The Sheriff, having resumed consideration of the evidence, productions and submissions for the parties, grants Decree for payment by the Defenders to the Pursuer of the sum of Three Thousand Five Hundred and Seventy Pounds (£3,570) Sterling with interest thereon at the rate of eight per centum per annum to follow from the date of this interlocutor until payment; certifies Ms Margaret McQueen, Consultant Orthopaedic Surgeon and Mr John Stewart, Health & Safety Consultant, as skilled witnesses for the Pursuer and Mr Michael McMaster, Consultant Orthopaedic Surgeon as skilled witness for the defenders; finds the Defenders liable to the Pursuer in the expenses of process insofar as not already dealt with and remits the account of expenses to the Auditor of Court to tax.

 

 

 

.........................................................

Sheriff of Lothian & Borders at Haddington

 

 

FINDINGS IN FACT

1.            The Pursuer is Edward Grandison. He resides at 51 Stoneyhill Road, Musselburgh, Midlothian. His date of birth is 17 January 1949. The Defenders are East Lothian Council, who have their headquarters at John Muir house, Haddington, East Lothian EH41 3HA.

 

2.            The Pursuer was and is a slater to trade although his job description is that of a builder. He has been employed by the Defenders for the past 22 or 23 years and prior to this he worked on a number of building sites. As well as carrying out slating tasks he did a wide range of other tasks, including the laying of new slabs and removal of old slabs. On average over the past 22 or 23 years he has carried out slabbing tasks once per week.

 

3.            On 29 Mary 2003 the Pursuer was experienced in the laying a relaying of slabs. He and David Glass were instructed to remove slabs from the rear garden of property owned by the Defenders at 27 Cedar Drive, Dunbar.

 

4.            They obtained a job line from their manager. They proceeded to the Defenders' stores and collected the slabs. They did this by reversing their van and trailer into the stores and lifting the slabs into the trailer. They lifted one slab at a time. The distance which they had to travel with each slab was around one metre. They also loaded sand into the trailer using a shovel. This sand was to be used as a base for the slabs.

 

5.            Prior to issuing the job line an inspector would have visited the property to consider the work to be done and determine the number of slabs which would be required to complete the task.

 

6.            The Pursuer and Mr Glass arrived at 27 Cedar Street, Dunbar. They lifted one slab at a time from the trailer and loaded it onto a wheelbarrow. They then pushed the wheelbarrow to the rear of 27 Cedar Street along a footpath or vennel leading from the road to the garden at the rear of the property. The trailer was to be used to transport the old slabs from the property. The old slabs were to be broken up and taken away.

 

7.            The Pursuer and Mr Glass intended to begin the removal of the existing slabs at the edge of the garden and work their way to the back door of the house. Accordingly they left the slabs at the back of the garden next to a concrete area. This began at a gate leading from the vennel at the side of the house into the back garden. On one side of the gate was a hedge and on the other was the house. The concrete area was bounded on one side by the house, on another by the gate and hedge, on another by an area of grass, and on the final side by paving slabs. The area of grass was opposite the rear wall of the house.

 

8.            When the Pursuer and Mr Glass had completed the transfer of the new slabs from the trailer to the back garden they began the operation of breaking up the concrete block. Neither of them had the previous experience of breaking up and removing a concrete area.

 

9.            They had a pickaxe and a large hammer. They were able to prise the concrete block up using the pickaxe and slide a brick or similar object under the block to support it in a raised position. The block was now angled towards the house, away from the Pursuer and Mr Glass.

 

10.        They were not able to see what was underneath the concrete block.

 

11.        Using the heavy hammer the Pursuer and Mr Glass broke up a section of the block closest to the gate. They broke it into smaller sections until they believed that the pieces could be lifted.

 

12.        The Pursuer and Mr Glass crouched down to lift a section of concrete measuring approximately 18 inches by 18 inches. They crouched down with their legs bent and their backs as straight as possible. They took the strain and were about to lift the section of concrete when the Pursuer felt a pain in his back.

 

13.        Following this it was discovered that brickwork had become attached to the underside of the section of concrete which the Pursuer and Mr Glass had attempted to lift. The weight of the concrete with brick attached is unknown and cannot be reliably estimated.

 

14.        A generic Risk Assessment dealing with paths and slab work had been carried out by the Defenders. It was first carried out on 13 February 1998 and its last revisal prior to the date of the Pursuer's accident was carried out on 13 March 2003.

 

15.        Due to the number of jobs involving path and slab work undertaken by the Defenders each year it was not reasonably practicable for them to carry out a specific risk assessment for each and every such job carried out by their staff.

 

16.        The Risk Assessment identified lifting and carrying as both generic and specific risks involved in path and slab work. It identified a manual handling assessment as a generic control measure and noted the availability of manual handling courses as specific control measures. The risk associated with paths and slab work was assessed as medium. The Risk Assessment in place at the time of the Pursuer's accident stated that no item exceeding 30 kilograms should be lifted by a single person. It stated that all construction materials when split into their component parts would weigh less than 30 kilograms. It noted that tasks would not be carried out without assistance. It noted that there were no time constraints on the performance of the work.

 

17.        The Pursuer attended two health and safety courses which included manual handling prior to the date of the accident. The first was at the Defenders' Macmerry depot provided by Borders College in April 1997. The course involved practical lifting exercises by those attending the course. No specific instructions were given in relation to the lifting of slabs. General lifting principles were demonstrated and practised. These principles can apply to the lifting of slabs and lifting sections of concrete blocks such as the section being lifted by the Pursuer and Mr Glass. The second training course was provided by LAGTA on 25 May 1999. Although there was no practical participation by those attending they were shown videos demonstrating the correct lifting techniques to be used in various situations. Again, although this course did not deal specifically with the lifting of slabs, the general lifting techniques and principles demonstrated applied to the lifting of slabs and sections of concrete.

 

18.        The Pursuer and Mr Glass knew that if they were uncertain about a task or required additional equipment to allow them to complete it they were able to report to their line manager and request advice and assistance. In the event of mechanical assistance being necessary this could be provided from the Defenders' stores or hired.

 

19.        Additional manpower might also be made available if requested.

 

20.        The Pursuer and Mr Glass assessed the job before them on 29 May 2003. They intended to complete it using the pickaxe, heavy hammer and wheelbarrow which they had in their possession.

 

21.        The presence of the underlying brickwork could not have been revealed during inspection, but it could have been anticipated and planned for. The weight of the section of concrete which the Pursuer and Mr Glass attempted to lift could not have been assessed in advance.

 

22.        The use of a sack barrow would not have been of assistance. Even if it had been possible to push a broken section of concrete onto the sack barrow, this would have required the section to be manually handled.

 

23.        The use of a pneumatic drill or jack hammer was reasonably practicable. The jack hammer owned by the Defenders was heavy and in any event neither the Pursuer nor Mr Glass were trained to use it. It was reasonably practicable to send a trained operator with that drill, or with a hired, smaller pneumatic hammer to break up the concrete. A jack hammer would have gone through the concrete and stopped against the brick, or continued exposing and breaking up the brick.

 

24.        The use of a small mechanical digger was reasonably practicable despite the space constraints. It could have been hired at a cost of about £150 for 3 days, with the cost of an operation in addition.

 

25.        The Pursuer sustained a significant injury to his back which obliged him to be absent from work for a period. His loss, injury and damage is assessed at a value of £3,570.

 

 

FINDS IN FACT AND LAW:

That the loss, injury and damage sustained by the pursuer was a result of the breach by the defenders of their obligations under Regulation 4(i)(a) of the Manual Handling Operations Regulations 1992 and of Regulation 4(i)(b) of the Manual Handling Operations Regulations 1992 and

 

THEREFORE

Sustains the first plea-in-law for the Pursuer, repels the first, second and third pleas-in-law for the Defenders, repels of consent the fourth and fifth pleas-in-law for the Defenders; in part sustains plea-in-law 2 for the Pursuer and plea-in-law 6 for the Defenders and grants Decree for payment by the Defenders to the Pursuer of the sum of Three Thousand Five Hundred and Seventy Pounds (£3,570) Sterling; Finds the Defenders liable to the Pursuer in the expenses of the action insofar as not already dealt with; Certifies as skilled witnesses for the Pursuer Ms Margaret McQueen, Consultant Orthopaedic Surgeon and Mr John Stewart, Health & Safety Consultant; as skilled witness for the Defenders Mr Michael McMaster and remits the account of expenses for the Pursuer when lodged, to the Auditor of Court to tax.

 

 

 

 

.........................................................

M. Peter Anderson

Sheriff of Lothian & Borders at Haddington

 

 

NOTE

This is an action of damages for personal injuries following an accident at work on 29 May 2003. The Pursuer originally sued for £20,000. By the commencement of the Proof, the parties had agreed damages in the event of liability being established at the sum of £3,570 inclusive of interest to the date of the Proof "subject to any deduction which might be made in respect of contributory negligence". During the course of the Proof Mr Scott, the solicitor for the Defenders, intimated that he did not intend to argue there had been any contributory negligence let alone sole fault on the part of the Pursuer. That is reflected in my treatment of pleas-in-law 4 and 5 for the Defenders.

 

At the commencement of the Proof the Defenders tendered a late Inventory of Productions, the Fourth Inventory for the Defenders, production 6/4 of process containing 12 productions, some of which extended to a number of sheets. There were mostly job records. It was explained to me by Mr Scott that he had not appreciated until the previous week that the Pursuer was disputing the Defenders' averment at the top of page 7 of the Closed Record about the Pursuer's experience of similar work previously to that he was engaged on when he had his accident. The late productions were opposed by Mr McNulty for the Pursuer. It was pointed out to him however that he had no denial of the Defenders' averments and therefore there was every justification for Mr Scott, at least on the face of the pleadings, taking the view that all of his averments in answer were effectively admitted.

 

To resolve this, I allowed an adjournment at the beginning of the Proof to enable Mr McNulty to discuss the late productions with his client resuming the Proof one hour later approximately. Mr McNulty at a later stage did move to allow the Record to be amended by adding at the end of Articles 2, 3 and 4 "The Defenders' averments in answer are denied except insofar as coinciding herewith." I allowed that Amendment and there had in any event been no objection from the Defenders. I am grateful to both solicitors for their helpful submissions and to Mr Scott for providing me with a printed version of Proposed Findings in Fact which I have adopted to the extent that I found them to be non-controversial.

 

1. SUBMISSIONS for the Pursuer

Mr McNulty, after outlining his proposed Findings in Fact began his submissions by directing my attention to the common law case of fault and negligence on the part of the Defenders which he sets out in Article 3 of Condescendence. He submitted that the Defenders did not comply with their duties under the Management of Health & Safety at Work Regulations 1999 and the Code of Practice which is the general guidance on the Manual Handling Operations Regulations 1992, that the Defenders should have assessed the risk to the Pursuer which is involved in lifting and removing the area of concrete and then that ultimately to fulfil their duties of reasonable care the Defenders should have provided "a sack barrow and hydraulic lifting equipment to move the concrete". Article 3 of Condescendence goes onto argue as an alternative that the Defenders should have provided the Pursuer "with a pneumatic drill and a colleague experienced in the use of it" to break up the concrete, and failing that they should have provided two other men to assist in the lifting and should have instructed the Pursuer not to attempt to remove that section of concrete until two further colleagues had been made available. After discussion, Mr McNulty agreed that the common law case might better fall to be considered after review of the cases he makes under the Manual Handling Operations Regulations 1992 Regulation 4(i) and 4(ii).

 

His submissions in considering the facts of this case then in essence treated Regulations 4(i)(a) and 4(ii)(b) as being so closely linked that in this particular case, the Defenders had breached both by the way in which the task was undertaken. He argued that the Defenders had taken no steps to reduce the risk of injury; that the risk assessment for paths and slabs which is production 6/1 did not mention the work of slabbing although he agreed that at pages 3 and 4 there is a sufficient mention of manual handling which includes slab work and modified his position to criticise the risk assessment as making no specific mention of the removal of concrete slab sections such as the Pursuer encountered when he had his accident.

 

He went onto argue that based on the evidence primarily of Mr Stewart the expert for the Pursuer, where an area of paving had been formed from concrete the Defenders should have known that it was to be expected that something may well be attached to the underside of concrete which was being removed, that bricks, stones and other assorted rubble could be anticipated given the place where the concrete had been introduced and the fact that it was likely to have been done informally at some unknown date because it would not have been part of the original construction of the house by the Local Authority leading again to the prospect of some uncertain material adhering to the under surface - and that all of this should have been given consideration in an appropriate risk assessment.

 

In developing this submission Mr McNulty went onto argue that he relied upon the evidence of Mr Stewart to the effect that there had been no steps taken to reduce the risk of injury in the circumstances of this incident and that Mr Rafferty, the Defenders' witness, had effectively conceded that. He took as the concessions from Mr Rafferty his agreement in cross-examination that there was no mention of any form of mechanisation in the risk assessment; that the entire task was manual and that mechanisation could have been made available using either a mini or micro excavator.

 

In Mr McNulty's submission, all of that demonstrated that it was practicable to obtain the excavator and that with no more than a limited number of paving jobs each year, perhaps 50 or so for each paving squad and pointing to a total of 219 found at page 7 of production 6/4/4 on the computer search record over what is a period difficult to specify but the cost of hire of suitable equipment would not have been excessive and that accordingly to introduce a mini or micro excavator was not just practicable but reasonably practicable.

 

Mr McNulty went onto criticise the Defenders for leaving it to the employees such as the Pursuer on arrival at site to assess the work and then to make decisions about any equipment or assistance they required. He argued that in any event, on the Pursuer's evidence requests for assistance would be refused or not implemented within a sufficient and reasonable time. All of this in the Pursuer's submission was not good enough and meant that the Defenders did not meet their statutory obligations. He left those obligations unspecified.

 

He then went onto argue that on the day in question the Pursuer and his colleague, Mr Glass, made a "best guess" about the concrete in judging the size of section they would try to lift. They could not see what was underneath nor did it seem reasonable to do as Mr Rafferty had suggested which was to dig out further below it to check the position. In Mr McNulty's submission Mr Rafferty was using hindsight in offering that view.

 

Mr McNulty further argued that a supervisor had had to look at the proposed job before the work instructions were given to the Pursuer. Having inspected, the supervisor could and should have given more specific instructions about the breaking up and removal of the concrete rather than leaving that to an employee such as the Pursuer to tackle when he arrived on site.

 

Mr McNulty then referred to the decision of the Second Division in Cullen v. North Lanarkshire Council 1998 SC451 for the purposes of pointing me to the responsibility on an employer to direct more specifically how an employee should deal with concrete given a foreseeable risk of injury. He founded on the passage at page 455 at the top of the page where it was said that "Article 2 of the Directive, which provided a definition of "manual handling of loads" defines that expression as meaning, in short, a number of activities with a load "which by reason of its characteristics or of unfavourable ergonomic conditions, involves a risk particularly of back injury to workers". It appears to us to be natural to interrupt the involvement of risk as referring to those activities rather than to the load itself. In any event, the article does not appear to us to make the characteristics of the load an essential component in the creation of the relevant risk".

 

He also referred me to the Decision of Sheriff D J Cusine in Jaffray v. Grampian Test & Certification Ltd 2007 SLT (Sh.Ct.) 73 as support for his proposition that even although the Pursuer had received some training, that training could not cure any breach of obligation on the part of the Defenders. He did not return to argue his common law case further.

 

2. SUBMISSIONS FOR DEFENDERS

Mr Scott opened his submissions by considering thef terms of the risk assessment and any omission in it. He argued that if the risk assessment had been written so as to deal with the specific operation on which the Pursuer was working - the removal of the concrete section - then it would not have recommended a means of doing the job which was any different to that which was adopted by the Pursuer and Mr Glass. In other words, all it would have said was that the section should have been broken up into small manageable pieces none of which should weigh more than 30 kilograms.

 

He went onto argue that in order to succeed the Pursuer has to prove that the risk assessment was inadequate and that any inadequacy was causally linked to the accident - which in his submission the Pursuer had failed to do. Further he argued that in order to establish a breach of the Manual Handing Regulations the Pursuer needed to show either that the need to handle manually the section of concrete could have been avoided, or if that was not possible then the Defenders had failed to take reasonably practicable steps to reduce the risk of injury.

 

In his submission, the risk assessment was adequate and that on the evidence of Mr Rafferty, even if there had been additional material expressed in it, the assessment would have indicated the job should have been done in the way that the Pursuer and Mr Glass attempted it. They would have done the same job with the same instructions and the same tools - with the knowledge that they could request other equipment or assistance if they needed it.

 

Turning to Regulation 4(i)(a) and the need to avoid manual handling if practicable, in Mr Scott's submission the only equipment that might have been introduced was the mini excavator. The Pursuer and Mr Glass insisted that it could have been taken into the garden ground although to do so on Mr Glass's evidence may have involved taking down part of the hedge. The Pursuer's expert, Mr Stewart, could not comment because he had not been to the site. In Mr Scott's submission it was not reasonably practicable to introduce the mini excavator because the combination of the cost of hire of the machine, together with its operator, added to the cost of removal of part of the hedge and perhaps fence and their reinstatement and any damage to the house occupier's garden ground was out of proportion to any benefit or perceived risk.

 

Turning to Regulation 4(ii) and appropriate steps, Mr Scott referred to the Pursuer's averments in Article 3 of Condescendence. The sack barrow was clearly of no assistance. The second option, a pneumatic hammer was in his submission finally irrelevant. Whilst it may make easier the breaking up of the slab, it did not remove the need for the Pursuer and his colleague to bend and remove the sections of concrete once broken. The most it might do is speed up the process. On the Pursuer's evidence, he and Mr Glass had judged the size of the section of concrete which they tried to move to be reasonable and something which they could manage. It was further submitted that neither the Pursuer nor Mr Glass would have asked for the large pneumatic jack hammer which it was known the Defenders kept in their stores at MacMerry. A lighter smaller pneumatic jack hammer could have been hired in but on the evidence could not necessarily have been sufficient to separate the concrete from any attached brick.

 

In Mr Scott's submission, the non-availability of a pneumatic jack hammer could not create a breach of Regulation 4(ii) since even if it had been provided since neither the Pursuer nor Mr Glass would have known how to use it. Accordingly provision of a pneumatic jack hammer was irrelevant.

 

He went on to argue relying on Mr Rafferty's evidence that it was not necessary to supply a pneumatic jack hammer on a daily basis for the work which the Pursuer and his colleague were doing. On Mr Rafferty's evidence, the Maintenance Department carry out approximately 30,000 jobs a year and at most, one a week would involve slabbing. Tradesmen going out each day for maintenance jobs including slabbing are given the basic tools, a pickaxe, a fsledge hammer and a pinch bar (crowbar). If they on reaching the job think that they need anything more they are at liberty to request other equipment and encouraged to do so. Further, had it not been for the unknown piece of brick work attached to the concrete, everyone including the Pursuer and Mr Glass accepted that the job could probably have been done safely. In Mr Scott's submission to oblige the Defenders to supply a pneumatic jack hammer is not reasonably practicable because this equipment would need to be given to all slabbing squads just in case brickwork was adhering to the underside of a surface being removed. It was not reasonably practicable to send out operatives with every tool for every circumstance, despite the opinion of Mr Stewart to the contrary that it was not good enough to have tools available in the stores on request. The Defenders have so many operatives and so many jobs that it was only reasonably practicable to give them the basic tools and training and thereafter to rely on experienced operatives who knew when to ask for additional equipment or assistance. It was not reasonably practicable in Mr Scott's submission to provide pneumatic hammers other than on request. He also did not accept that the pneumatic jack hammer would have penetrated sufficiently far below the surface of the concrete to reveal that the brickwork was there.

 

3. THE KEY FACTS, CREDIBILITY AND RELIABILITY

3.1 Although I heard evidence about the generality of the job of lifting and laying paths and the suitability or otherwise of the equipment which the Defenders provide for the more routine tasks of moving paving slabs, I do not need to make any finding about any of that. The Pursuer, like many men and women in their 50s had back problems, and indeed on the medical reports Mr Grandison had suffered from a number of back episodes over the years, but ultimately it was not argued that even lifting a section of concrete without a brick attached - or for that matter lifting or manhandling a typical slab - may or would have been just as likely to cause the back injury. It may be that Mr Grandison was at risk of a disabling injury from a whole variety of activities whether at work or in his ordinary life but in this case it is a matter of agreement that he sustained injury whilst, along with his workmate, Mr Glass, he was trying to lift a section of concrete which, unknown to either of them, also had attached to the underside of it brickwork. The important facts in this case can therefore be stated briefly. A supervisor had assessed the garden area which needed repair. It was identified that the section of concrete existed, needed to be removed and replaced with slabs. The concrete section ran along the rear of the house from the back door at right angles to the path to the back gate which had been constructed at about the time the house was built. Probably the concrete had been introduced by an occupier of the house to provide an access route to a new gate which had been introduced at the side of the garden ground and which allowed entry onto a vennel which ran down the side of the house and which can be seen in photograph production 5/1/2 that shows a path marked as 34.8m long which is the vennel. The supervisor who inspected could and should therefore have realised that the concrete was not part of the original construction and could also have appreciated that it would have been poured on top of a made up area which would be of uncertain quality. If someone had thought about it therefore it could have been appreciated that when the concrete slabs were lifted there would be a prospect that other material would adhere to the base of them.

 

The Pursuer and Mr Glass used the only equipment available to them, notably the pickaxe to lever up the edge of the concrete. Having done that, they placed a brick or some other material under the edge that they had levered and then used the sledgehammer which weighed approximately 14 pounds to break up the concrete. That task seems to have taken 15 minutes or so. At the end of 15 minutes they had a section of concrete which they judged they should move manually. The dimensions remain uncertain. The Pursuer expressed it as being approximately 18"². Mr Glass thought it was bigger, perhaps even as much as 3 feet long. Ultimately I think I do not need to resolve that. It is sufficient for me to say that both men judged it was something they thought they should be able to lift. Having seen them, both the Pursuer and Mr Glass seem to me to be of average height and of stocky build, particularly the Pursuer. They were not expecting additional weight. No criticism is advanced of the way in which they carried out the lift. They therefore must be taken to have bent down appropriately following the lifting technique advice given in the training courses they had both been on but as Mr Grandison tried to lift he immediately experienced severe pain in his back.

 

The Defenders had a pneumatic jack hammer in their stores but it is large and heavy and needs to be moved on a barrow. Neither the Pursuer nor Mr Glass had training in its use even if they had asked for it, so an operator would have had to be supplied. That jack hammer was not offered for this job.

 

This was the first time the Pursuer or Mr Glass had encountered a concrete area for break up and removal and neither of them were aware of the prospect of brick being attached to the underside of the piece they were moving.

 

The risk assessment, like many, had been prepared on a generic basis and covered the wide variety of tasks which someone doing paving and slabbing work would encounter. It had not anticipated the existence of concrete slabs or that they might present an additional hazard. Nevertheless the risk assessment acknowledged there was a risk of injury which overall was categorised as "medium" (production 6/1/1) although the manual handling category was expressed as low risk (production 6/6/3). I confess to some surprise at that assessment given the weight and size of slabs but ultimately nothing turns on this because the general risk of injury is assessed as medium. Despite that category of risk it appears the Defenders, as was expressed in evidence by Mr Stewart and reinforced in the submissions from Mr McNulty reached the view, perhaps too readily, that nothing could be done to remove or reduce the risk of injury. They did not provide any mechanical aids to minimise or remove the hazards which are obvious in any manual operation which involves the lifting, transport and manipulation of significant weights such as the slabs and then in particular in this case, the section of concrete slab. I was given no evidence that there had been any attempt at a cost/benefit analysis to consider what might be needed to reduce or remove by mini excavator the results of demolition in whole or in part of existing paths which needed to be replaced. Whilst it is on the evidence true that removal of this section of concrete was unusual and so far as I know was the first and only occasion when any employees of the Defenders had had to deal with it, it was also true that the breaking up and removal of paving material was a regular weekly occurrence for every squad. All of that is a manual handling activity and the Council even recognising as I do that they do not have unlimited financial resources, have a duty like every other employer to avoid manual handling if that can be done - and where it cannot be avoided, to reduce it to the lowest level reasonably practicable.

 

A mini excavator or perhaps better still a micro excavator could have been hired at what seems a modest cost of £150 for 3 days - a cost which would no doubt be significantly increased if an operator had to be hired as well. Neither the Pursuer nor Mr Glass knew how to operate it.

 

The pneumatic jack hammer which the Defenders own sounds unwieldy. Ut required a trained operator and 2 men to lift and move it, with or without a barrow, but it could have been requested and in due time perhaps made available with an appropriately trained operator. The evidence indicated that as a generality, lighter forms of pneumatic jack hammer could be hired and made available. These would have broken up the concrete. As I understood the evidence of the Pursuer and Mr Glass, they would have expected a jack hammer also to be able to be introduced under the fringe of the concrete and therefore to manipulate it. The jack hammer would have been used to break the concrete into smaller pieces. The evidence in my assessment indicated that use of a jack hammer would have penetrated through the depth of the concrete and would then have come to a halt against the brick indicating the under-structure and the risk which it presented, or would have continued, exposing and breaking up the brick.

 

3.2 Credibility and Reliability

 

Although there were aspects of the Pursuer's evidence in which he was sometimes less than careful in his answers - and was unwilling to make any concessions in cross-examination even where they were plainly needed and where to do so would not have damaged his case, finally, these criticisms are of no great importance because I find the Pursuer's evidence sufficiently reliable on all of the material facts of how the accident happened and the non-availability of equipment. The most obvious example of his unreliable evidence was when he was asked about the possibility of using a sack barrow for the task of moving the concrete and decided to volunteer the view that the leading edge of the sack barrow could have been used in much the same way as the pickaxe, putting it underneath the concrete and levering the concrete upwards. That answer clearly came as a surprise to his solicitor - and when the suggestion was put to his colleague, Mr Glass, he could not see how this would ever have been attempted. I formed the impression that Mr Grandison made this up when he was being asked about it in the witness box. Because he derived entirely credible support from Mr Glass who seemed to me to be an honest, thoughtful and careful witness, I do not disbelieve the Pursuer on any of the important issues. I also accept as generally reliable and credible the evidence of the other witnesses, the Pursuer's expert, Mr Stewart and Mr Rafferty who was led for the Defenders.

 

4. Pursuer's Statutory Cases, Defences and Decision

4.1 Regulation 4(i) of the Manual Handling Operations Regulations 1992

Regulation 4(i)(a) states that the 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".

 

The Pursuer argues that the task on which Mr Grandison was engaged should have been avoided and that it was the manual handling "of said concrete section" ... "given the weight of the concrete, its shape, dimensions and weight" which create the background. In answer, the Defenders do not actually plead that it was not reasonably practicable to avoid the need for the manual handling but rather make averments about reasonable steps taken to reduce the risk of injury. They then aver that "mechanical assistance could have been provided if requested and considered necessary. Hydraulic lifting equipment would have been too large for the operation being undertaken." More specific pleadings of this type which are still required in Sheriff Court cases can look less than elegant after the evidence and a detailed discussion. I take the Defenders' answers however as amounting to an attempt at a defence that they did all that was reasonably practicable. As is clear from Anderson v Lothian Health Board 1996 S.C.L.R. 10 and Cowan v North Lanarkshire Council 1998 S.C. 451, the onus is on the Defenders to prove this. Have they done so?

 

In my judgement they have not. There was an enhanced risk from the concrete area because of its construction and prospect of brick attaching to its underside. That risk was not considered and in my judgement it should have been by the supervisor who should have drawn attention to it. The regulation obliges the Council "so far as is reasonably practicable to avoid the need...to undertake any manual handling" which involves a risk of their being injured. The weight of traditional slabs was enough to draw attention to the whole manual handling operations and it is self-evident that manual handling operations which require someone such as the Pursuer or Mr Glass to lever up a section of concrete and then try to break it up using a hammer is going to involve a risk of their being injured. That means the Council had to try to avoid the need for those manual handling operations. In my judgement they could have done so by the use of a small excavator.

 

The evidence seemed to me to indicate that it would be possible and even straightforward to bring a mini excavator - and more so a micro excavator which would have been no more than three foot six inches wide (approximately the width of the Court door as was pointed out) down the vennel to the side gate which was adjacent to the concrete area. It may well be that a length of hedge at the gate would have needed to be removed - and that use of the excavator would then inevitably have caused some damage to the garden ground of the occupier of the house. That does not make it unreasonable and it was certainly reasonably practicable. Having introduced the excavator it could then have been used either in the way that the pickaxe had been driven under, then to lever up the concrete - or if the concrete had been lifted manually the excavator bucket could have been used further to lift and break up the concrete or to have itself picked up smaller pieces of concrete. Using an excavator in this way would have meant that either the Pursuer and his colleague needed to do very little in the way of manual handling - or that at the very least they would not have had to lift the offending section which was the cause of the injury in this case.

 

Regulation 4(1)(a) insists that the Employer is to avoid the need for employees to undertake any manual handling operations at work which involve a risk of their being injured - so far as is reasonably practicable. It seems to me clear that there was always a risk of injury - notably a back injury from lifting what was always going to be a significant load - and one which in this case carried the added risk of being much heavier than could be seen. As was pointed out by Lord Macfadyen in Anderson (supra), approved by the Second Division in Cullen (supra), "For there to be a risk of injury, injury need be no more than a foreseeable possibility; it need not be a probability".

 

In my judgement a mini excavator could have been provided. It was practicable even if it may have involved a bit of additional work to remove and replace part of a hedge and created the risk of damage to the occupier's garden ground. No doubt the occupier's irritation or worse could have been managed if the occupier had it explained to them that the precaution was necessary to safeguard the health of those doing the work. So was it reasonably practicable? The Defenders have not satisfied the onus on them to persuade me that it was not reasonably practicable. That is not the same as a duty of reasonable care. It is not enough for the Defenders to say it was unreasonable to go to the time, trouble and cost of an excavator and operator. They have to prove it was not reasonably practicable and they have not satisfied me about that. I do not say that the Defenders require to provide a mini excavator every time a squad relays a path - although in my view they should certainly think carefully before rejecting that option. The Defenders may say that to provide a mini excavator would materially increase, and even make many times more expensive the cost of each job. But if they do, I heard no evidence about that. I have no evidence of any cost/benefit analysis so I cannot judge whether the reduction in risk of injury to employees does justify the expense. I can and do however hold that I am not satisfied it has been proved that the precaution of the mini excavator was not reasonably practicable. Finally it is for the Council to decide what it can do with its resources and to make a judgement as to whether each or any job requires the provision of a mini excavator to satisfy the manual handling regulations - with whatever effect that may - or may not - have on the number of repair jobs that can be done each year.

 

I consider however that the evidence goes further than that and allows me to find positively that the Defenders did not so far as is reasonably practicable do as they should have done. The mini or micro excavator was not expensive - particularly when weighed against the cost and disruption not just to the Pursuer but even also to the Defenders of an absent employee with a significant back injury. No doubt an operator would have had to be hired as well and that would create a cost increase beyond the basic £150 for 3 days - and no doubt all of this would significantly affect the economics of each individual job which a repair and maintenance squad undertook - if it was to be repeated. However, I have no evidence to say that it would be needed on every or even any other job and therefore I have to treat it as a one off cost. It was practicable to hire in the mini or micro excavator and I find also that it was reasonably practicable to have provided this. It is for the Council to carry out any financial risk/benefit analysis to decide whether they can and should provide mini/micro excavators or any other form of mechanised load moving assistance for their workers on a daily basis to remove or reduce the risk of injury.

 

4.2                Regulation 4(i)(b)

This provides that the employer shall "where it is not reasonably practicable to avoid the need for 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 were specified ... (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 ...".

 

The Pursuer in Article 4 of Condescendence sets out the Regulations and includes para (iii) which is an obligation to provide general indications and precise information about the weight of a load etc. I did not understand Mr McNulty to advance any case based upon this and I therefore disregard it.

 

I consider the Defenders, even if I am wrong in my approach to Regulation 4(i)(a) have separately breached this alternative. The reasoning is largely similar. It does not seem to me that the fact that a generic risk assessment has been done necessarily avoids the need to do a more specific review - or at least to provide a modified version with a change of circumstances. It seems to me that that has arisen here because of the existence of the concrete section of slab created in an area where it could also have been appreciated that the substructure was uncertain and could well be adhering to the concrete. This gave rise to the need for specific consideration - and a review as to whether other things could and should be done to remove or reduce the risk. Accordingly in my view there was not a "suitable and sufficient assessment of all manual handling operations". For the avoidance of doubt, I do not find that the absence of the type of specific risk assessment which I consider was required then gives rise to civil liability. In my understanding, no such liability results from breach of this part of the Regulations. In the decision of Lord Eassie in John Logan v Strathclyde Fire Brigade (Court of Session, 12 January 1999) at page 10 he said that "I am not satisfied that the breach of the duty to make an assessment in itself gives rise to liability and damages. One can understand the legislative intention that employers should endeavour to formalise their approach to employees' safety by carrying out assessments. A failure to carry out that statutory obligation may be of evidential significance in deciding whether the employer has fulfilled the substantive duties in relation to working systems imposed by, for example, sub-para (ii) of the Regulations. However, if an employer shows that he has in fact done all that could be required of him by reduction of risk to the lowest level reasonably practicable, this seems to me to be immaterial that he may have achieved that result without having gone through the formal stage of carrying out an assessment. It appears to me that generally it is the failure to fulfil the substantive duty of taking proper precautions to reduce the risk of injury which will give rise to liability rather than the procedural obligation to carry out an assessment." I respectfully agree and adopt that approach.

 

I do not accept what was put to me by Mr Scott for the Defenders to the effect that any specific risk assessment dealing with the concrete area would have offered the same conclusions as the generic version - and should have left the Pursuer and his colleague to do the work in the same way. As I have indicated, in my judgement use of the mini or micro excavator would have been an appropriate step which would have reduced the risk of injury arising out of the manual handling operations and would have reduced it to the lowest level reasonably practicable. Even if the pickaxe and hammer had been used to do the initial loosening and prising up of the concrete and breaking it into sections, it seemed on the evidence that the excavator bucket could then have lifted it thus removing or reducing the risk to the Pursuer from having to attempt such a lift.

 

Whilst it might be said that the provision of a mini excavator would not necessarily have removed the need to manhandle the concrete section into the bucket of the excavator, this was not explored in evidence so far as I have it noted, and on it my understanding it would have been possible to use the excavator bucket to dig underneath the concrete and lift it either before or after the pickaxe had been used or for that matter before or after the use of the sledgehammer. If it was not practicable then it was for the Defenders to prove that and I have no such evidence. Accordingly, all I have to consider in relation to the excavator is whether it was reasonably practicable to introduce it. For the reasons expressed in the last chapter I conclude that it was.

 

Further and separately, it does also seem to me that the use of a pneumatic jack hammer was both reasonable and reasonably practicable and would have had beneficial results. It seems to be acknowledged that it would have penetrated at least to the base of the concrete and in my judgement on the evidence would have penetrated sufficiently far at least to disclose the existence of the brickwork below - and hence to alert the Pursuer and Mr Glass to the risk that the section of concrete might have something adhering to it. It seems to me however that the use of the jack hammer would have had other important benefits. It was going to be much easier to break up the concrete using the jack hammer than trying to lever underneath it with a pickaxe and then hammer at it for a period of 15 minutes to try to break it up. No doubt anyone instructed to use the jack hammer would also have been told to break the concrete into sections that were clearly small enough to be picked up by the excavator - or alternatively handled by two men with certainty of no material risk of injury - or even by one man. The jack hammer and its operator would have been a much easier way of breaking the concrete into smaller pieces and it is little surprise that the Pursuer and Mr Glass were ready to try to lift what looked like an acceptable piece after 15 minutes hammering - a task which in itself put them both at some significant risk - although it did not cause any of the problems in the present case.

 

The jack hammer owned by the Defenders could have been used. It was for the Defenders following any risk assessment to identify that requirement and then to instruct the appropriate operator to attend. The Defenders' own jack hammer was large, unwieldy and required a trained operator and two people or at least one man with a barrow to move it. There was nothing however to suggest to me that it was other than reasonably practicable to have had it made available for this job. If it was not available then it was open to the Defenders to hire in a smaller jack hammer, perhaps of a type that could be used by one man - and if necessary to provide appropriate training to the Pursuer and/or Mr Glass to use it. It just needed someone to think about this in advance.

 

For the avoidance of doubt, I do not consider that it was sufficient for the Defenders essentially to delegate the preparation of an on-site risk assessment to the Pursuer and his colleague, Mr Glass by leaving it to them to ask for assistance or additional equipment. That may well be an obviously sensible additional step in most if not all working situations but the primary responsibility is for the Defenders to assess - and then importantly to take the appropriate steps to reduce the risk of injury rather than leaving it for the employees to decide what those steps should be and call for them.

 

 

4. COMMON LAW CASE

Standing the conclusions I have reached in relation to Regulation 4(i)(a) and 4(i)(b) the Pursuer's common law case becomes much less important. The employer only has a duty of reasonable care - which as I have said is a much less demanding obligation than in effect to do everything which is reasonably practicable to reduce the risk of injury to the lowest possible level.

 

With some hesitation, I would have been prepared to find that given the absence of previous problems with lifting slabs and the removal of them, given the difficulty of knowing what lay underneath the concrete and that instructions had been given about lifting techniques and to reduce loads to not more than 30kg for lifts by two men - coupled also with the availability of other equipment on request, the Defenders had done just enough. I have real doubts about this because it does seem to me that the thoughtful employer could and should have appreciated that the underside nature of the concrete was unpredictable and that further advice and assistance to the maintenance team should have been considered.

 

5. SUMMARY AND CONCLUSIONS

For all of the foregoing reasons I find that there has been a breach of Regulation 4(i)(a) and 4(i)(b) because of the Defenders' failure to reduce the risk of injury to the lowest level possible - which they could have done by allocating a mini or micro excavator with an operator and by providing a pneumatic jack hammer and operator to break up the concrete slab area. Quantum is agreed at £3,570 and accordingly I grant decree for that sum as craved.

 

 

 

 

 

..............................................

Sheriff M Peter Anderson

Sheriff of Lothian & Borders at Haddington