Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT LIVINGSTON

 

Judgment

 

By

 

Sheriff Douglas A Kinloch,

Advocate

 

In the cause

 

JOHN STRANGE, Residing at 47 Covenanter Road, Harthill

Pursuer

 

Against

WINCANTON LOGISTICS LIMITED, a company incorporated under the companies acts and having its place of business at Blackburn Road, Bathgate

Defenders

 

 

 

 

 

 

LIVINGSTON June 2010

 

The Sheriff, having resumed consideration of the cause:

 

 

FINDS IN FACT

 

1        The pursuer is John Strange, residing at 47 Covenanter Road, Harthill. He is 44 years old.

2        The defenders are a National Warehousing and Logistics Company, the second largest in the UK with approximately three million square metres of warehouse space. The defenders operate, inter alia, warehouses and distribution centres for Asda, Tesco, Morrisons, Somerfield and B & Q.

3        On 5 February 2007 the pursuer was employed by the defenders as a labourer at their warehouse at the Pyramids Business Park, Bathgate.

4        At the relevant time, the defenders operated a warehouse at Pyramids Business Park for Morrisons supermarkets. The warehouse was set out as shown in a plan number 6/4/1 of process. The warehouse was of a standard layout and design with a number of aisles containing storage racking.

5        Goods were delivered to the warehouse on pallets and placed on the racking using high reach fork lift trucks. Moving full pallets of goods was the principal function of fork lift trucks in the warehouse. Goods were collected from different places where they were stored on the racking by "pickers" who had the task of making up orders of goods according to a computerised order sheet. Pickers used motorised "pick trucks" to transport the goods which they had collected, and these pick trucks were capable of carrying two pallets.

6        The pursuer's principal duties included keeping the warehouse clean and free from debris, litter and spillages, in order to maintain a safe working environment. In particular, it was a routine part of the pursuer's job to collect empty pallets from ground floor locations and to remove these to the loading bay where the pallets were stored in order to be re-used.

7        The pursuer started his shift on the night in question at 8.00pm. His supervisor, George Stewart asked him to remove empty blue pallets from an aisle known as the "BA aisle" to another part of the warehouse. There were around forty blue pallets which required to be moved. They were lying on the ground underneath the warehouse racking.

8        Each pallet measured around 1 metre by 1.2 two metres and weighed around 23.5 kilograms. They were made of wood.

9        The pursuer asked George Stewart for assistance with the task of removing the pallets, but no assistance was made available. The pursuer then asked that a fork lift truck operator should be assigned to remove the pallets, but this request was also denied.

10    In order to remove the empty pallets the pursuer made use of a hydraulic pallet truck. His intention was to stack the pallets five high on the pallet truck and then use the truck to remove the pallets to another part of the warehouse. The pursuer was aware that pallets should not be stacked by hand to a height of more than five high.

11    On the night in question the pursuer used the pallet truck to remove the first pallet from underneath the racking. He positioned the first empty pallet on the forks of the pallet truck, and moved the empty pallet out from under the racking, and then parked the truck as close as possible to the racking to allow room for other warehouse vehicles to pass in the aisle. For each of the subsequent four pallets which were to be placed on the pallet truck he dragged the pallet out from under the racking by hand, and then manipulated it on to the stack of pallets.

12    The pursuer was placing a fifth pallet on top of four which he had already stacked on the pallet truck when he felt a terrific pain in his back, and he then collapsed on the ground. A security guard who heard him cry out in pain came to see what had happened. He fetched George Stewart. George Stewart found the pursuer still in the BA aisle he was gasping and in pain. George Stewart gave him an ice pack and arranged for him to go to hospital. The pursuer had twisted his body as he placed the last pallet on the stack.

13    At St Johns Hospital it was noted that the pursuer was tender across his lower back, and that his lumber spine was tender. His range of movement was very limited. The diagnosis was back sprain. The hospital recommended mobilisation and physiotherapy and gave the pursuer pain killers.

14    After the accident the pursuer experienced pain until around the end of May 2007.

15    There were two approved methods of manually removing pallets from the ground floor locations at the defenders warehouse at Pyramids Business Park. The first method is shown being demonstrated in a video no 6/4/3 of process. The second method is described in the Safe System of Work Statement no 5/2/9 of process. The first method was the commonly used, accepted and approved method of manually removing pallets from ground floor locations at the defenders' warehouse. This method could be performed safely by one man.

16    The pursuer was familiar with the method of stacking of pallets as demonstrated in the video no 6/4/3 of process. On the day in question it was essentially that method which he used, with the exception that as he lifted the fifth pallet he twisted or turned his body in the direction of the pallet truck. He did not use the method as outlined in the Safe System as Work Statement no 5/2/9 of process. The method used by the pursuer is a Manual Handling Operation within the meaning of the regulations.

17    The method used by the pursuer involved part of the pallet being in contact with either the ground or another pallet on the stack at all times. Consequently, the pursuer never required to bear the full weight of the pallet. The weight he had to bear was about half of the full weight of the pallet. At all times the pursuer was using approved lifting techniques.

18    Stacking pallets to a height of five high had always been regarded as a one man job within the Pyramids Warehouse and within the warehousing industry in general.

19    The pursuer had received comprehensive training from the defenders, which included Health and Safety induction, Manual Handling Training, and Training in Approved Lifting Techniques.

20    There were no space constraints or other factors which might have prevented the pursuer removing the pallets by an approved method. The aisle which the pursuer was working at the relevant time was of a standard size in common with the majority of aisles in the defender's warehouse.

21    The defenders had carried out a risk assessment of the Manual Handling Task associated with the handling and stacking of pallets. In addition to the Risk Assessment, the defenders had devised two systems of work or methods for the task of manually removing pallets from the ground floor. The pursuer was using one of these.

22    The pursuer was constitutionally pre disposed towards experiencing back pain as a result of degenerative changes in his spine.

23    The task of moving the pallets on the day in question was an incident which triggered an episode of back pain in the pursuer's back. Had this particular incident not triggered back pain, another incident would have done so within a period of four to five months from the day in question.

24    The pursuer fully recovered from the episode of back pain by the end of May 2007, at which point his back returned to is pre accident state.

 

FINDS IN FACT AND LAW

 

1        The task of stacking pallets on which the pursuer was engaged on the day in question was a Manual Handling Operation which involved a risk of injury.

2        It was not reasonably practicable for the defenders to have eliminated Manual Handling as a method of removing and stacking pallets.

3        The defenders reduced the risks involved in the task of removing and stacking pallets to the lowest level reasonably practicable by assessing the risks of the task and instructing the pursuer in safe lifting techniques and safe methods of work.

4        The pursuer's loss injury and damage was not caused by fault on the part of the defenders or by any breach of statutory duty.

 

THEREFORE repels the first plea in law for the pursuer; assoilzies the defenders from the craves of the Initial Writ; finds the pursuer liable to the defenders in the expenses of the cause in so far as not already dealt with; certifies the cause as suitable for the employment of Junior Counsel; allows an account of expenses to be given in and remits the same when lodged to the Auditor of Court to tax and report.

 

 

 

NOTE:

 

[1] This is a personal injuries action in which the pursuer claims damages for a back injury said to have been sustained in an accident at work whilst in the employment of the defenders on 5 February 2007. The pursuer claims that the accident was caused through the fault of the defenders at common law, and in breach of their duties under the Manual Handling Operations Regulations 1992 (hereinafter "The Regulations"). The defenders deny liability.

[2] Following a somewhat protracted procedural history, which need not be rehearsed here, the case called for proof before me at Livingston Sheriff Court over a period of nine days during December 2009 and March 2010. At the proof the pursuer was represented by Mrs C. McCall, Advocate and the defenders by Mr B Smith, Advocate. At the proof I heard evidence from the pursuer and four witnesses on his behalf, namely George Stewart (a manager employed by the defenders), Frank Hunter (a warehouse manager with the defenders), John Stewart (a health and safety expert) and Mr J. N.A. Gibson (a consultant orthopaedic surgeon). The defenders led the evidence of four witnesses, namely Mr James Christie (a consultant orthopaedic surgeon), John Ferguson (a "site services manager" employed by the defenders), Bernard Commons (group safety manager with the defenders), and James Garry (a health and safety expert). At the conclusion of the evidence the parties' Counsel provided me with written submissions which assisted me greatly. I have read these and taken them into account. These are available in process for reference.

 

Circumstances of accident

[3] The defenders make few admissions on Record as to the circumstances of the accident, but the pursuer's evidence as to the general background was uncontroversial, and I accordingly hold it proved that at about 8.00pm on 5 February 2007 the pursuer was working in the defenders' warehouse as a "hygiene operator", which is a warehouse labourer or storeman. He was working at premises operated by the defenders at that time at an industrial site known as Pyramids Business Park, Bathgate, which was located near to the well known pyramidical objects adjoining the M8 motorway. The warehouse where the pursuer worked was a distribution warehouse which stored various items which were then supplied to customers, such as supermarkets, as and when required. The items were stored on wooden pallets, which were placed on storage racks, the racks being arranged in rows with aisles between them. The pallets measured 1.2 metres in length by 1 metre in width and were 160 millimetres deep. Each pallet weighed about 23.35 kg. The pallets are shown in photographs lodged by the defenders as 6/1/1 of process. As items were taken off the pallets they gradually became empty, and when completely empty had to be removed to a storage area, so that they could be re-used. Part of the pursuer's job was to remove empty pallets which were lying in various locations on the floor of the warehouse and take them to the storage area.

 

[4] As to exactly how his accident happened, matters are less clear. In describing the precise circumstances of the accident I regret to say that the pursuer gave contradictory and confusing evidence, although it is possible that some of this may be explained by the fact that he was carrying out a very routine task at the time and the accident happened some three years ago. However, it is also relevant in considering his account of what happened that he must, surely, have been able to provide a detailed account to his agents at an early stage in order to allow his pleadings to be drafted. In addition as I understand it, the pursuer's case on Record has changed on a number of occasions, and did so even during the proof, all on matters which must have been taken from the pursuer on precognition. Moreover, it was clear from the evidence of Mr James Christie, the doctor instructed on behalf of the defenders, that when he examined the pursuer in November in 2009, the pursuer was able to give a detailed account of the task being undertaken, and was consistent in that account on being questioned closely by Mr Christie. That account was somewhat different from the account given in court. It also appears that he may have given false or misleading evidence to the doctor who treated him at St Johns Hospital and to the consultant orthopaedic surgeon who examined him on the instructions of his agents to the effect that he had never suffered any previous back injury, when in fact he had on three occasions, one of which necessitated a three week absence from work. I must also take into account, although not as a greatly important factor, that the pursuer had in his short time with the defenders made two previous claims neither of which were found to be well founded. It is with these matters in mind, which do not help the pursuer, that I have assessed his evidence as to how the accident happened.

 

[5] His evidence was that he was instructed on the night in question by his supervisor, George Stewart, to remove empty pallets from an aisle in the warehouse known as the "BA isle". He said that he asked his supervisor for assistance with this task, and that request was refused, and that he then asked for a forklift truck driver to use a fork lift truck to move the pallets, but this request was also refused. The defenders' Counsel asked me to reject this evidence as unreliable, but on this point I do not find any reason to do so. Mr Stewart had no recollection of being asked to provide assistance, and despite my general hesitation over the pursuer's evidence as expressed above, on this particular point I consider that there is no reason for him to make this up, and there was no evidence to the contrary. I therefore accept that he was not offered assistance.

 

[6] His evidence was that having embarked on his allotted task, he stacked five pallets without trouble. He accepted in his evidence, as I understood it, that he was stacking in lots of five pallets, and seemed to accept that he knew that this was the rule in the warehouse. According to the evidence of Mr Frank Hunter this rule was introduced after a risk assessment of the task of stacking pallets, and although he was not sure when this was, it must have been before the accident, as the pursuer was aware of the rule. It was in the course of stacking the second lot of five that he experienced pain in his back. He had removed four empty pallets and placed them in a stack on top of the forks of a hydraulic trolley known as a "picking truck". He said that it was while he was attempting to place the fifth pallet on top of the other four that he experienced back pain. That he experienced pain was agreed by way of a Joint Minute (to be found as number 35 of process) and I accordingly hold it to be proved.

 

[7] What has given me difficulty is trying to understand exactly in what way he was trying to place the fifth pallet on top of the other four.

 

[8] At one point in his evidence he said that he hurt his back when he was "sliding it up" on to the other pallets. At another point he said that he felt the pain in his back just as he was "lifting the pallet up". At another point he seemed to suggest that he "twisted" his back, and seemed to suggest that he was involved in a twisting motion when he was lifting the pallet up, but when questioned about this in cross examination he insisted that he did not twist round as he put the pallet on the stack of four. Notwithstanding his denial in evidence of twisting, I understand that it was stated to the Court on his behalf on a previous occasion that he accepted that he twisted his back while lifting a fifth pallet. He also stated in cross examination that he never lifted the pallet clean off the ground when he was putting it on top of the stack.

 

[9] Relevant to a consideration of the circumstances of the accident is that the defenders have lodged in process a Notice to Admit (no 29 of process) by reason of which the pursuer is deemed to have admitted the following facts: "On 5 February 2007 the Pursuer lifted a pallet with the aim of placing it on to a pallet truck. Whilst lifting the pallet the pursuer twisted or turned his body in the direction of the pallet truck.". In terms of Ordinary Cause Rule 29.14 (3) the pursuer is deemed to have admitted these facts, and I must accordingly hold it proved that in the course of placing the fifth pallet on top of the others the pursuer twisted or turned his body.

 

[10] The pursuer also insisted at various times during the course of his evidence that he was using approved lifting techniques when he was stacking the pallets on the night in question. It was clear that he was aware of approved lifting techniques as he accepted that he had received training in these. Having carefully considered his claim to have been using approved lifting techniques (in which he had received training), I find that I have no real reason to doubt his claim in this regard, and I hold it proved that he was using approved lifting techniques when he was stacking the pallets (with the exception as established by the deemed admission of the fact that he indulged in a twisting motion as he was doing so). In other words, that he was stacking essentially in accordance with the method demonstrated in a video which is lodged as a production and to which I refer later, as this was the method he was familiar with and always employed. I also accept his evidence that he always had one edge on the ground or resting on top of other pallets. That was the way that he had been trained to do it. I do not think the deemed admission under no. 29 of process, referring in fairly general terms to "lifting", precludes this finding. The defenders have therefore not, in my view, established that he lifted the pallet entirely off the ground in placing it on the other pallets, as averred by them, and as submitted by their Counsel.

 

[11] Taking all these matters into account, I have come to the conclusion that what is clear and therefore proved is that he had stacked four pallets on the truck without incident, and was in the course of placing the fifth, and final, pallet on top of the others when he experienced a shooting pain in his back. At all times he was lifting in accordance with safe lifting techniques, as he had been trained to do, and in accordance with the method demonstrated in the video number 6/4/3 of process, with the exception that while he was lifting the pallet he twisted round to the side. At all times he always had one edge of the pallet on the ground or resting on top of other pallets.

 

Common law negligence

[12] As pled, the case at common law is to the effect that the defenders failed to take reasonable care for the safety of the pursuer in respect that he was working in a confined space and therefore was unable to use proper lifting techniques, and that in any event, and alternatively, the moving and stacking of empty pallets was a two man job, and he was not provided with any assistance. However, the pursuer's Counsel conceded during the course of the proof that she was no longer founding on the confined space case, there being no evidence to support it, and it is accordingly not necessary for me to consider that case. By the conclusion of the proof the pursuer therefore rested his common law case on the assertion that the "task of moving said pallets ought to have been a two man job".

 

[13] The steps which an employer has to take to deal with a risk or hazard depend on the level of the risk: Bolton v Stone [1951] AC 850. So, how risky an operation was stacking the pallets by hand? It is at least clear that there was some level of risk, as the fact that there was a risk has been conceded by the defenders in relation to the statutory case, and that concession must really be seen to apply to the common law case also.

 

[14] The empty pallets weigh about the same as a fully packed holiday suitcase, which, I think most people would accept, is quite heavy. The pursuer's health and safety expert, Mr John Stewart, suggested that he would not have attempted to lift one on his own, and pointed out that the weight exceeds the guideline figure given in the guidance which accompanies the Manual Handling Regulations. He explained that in terms of the guidance, employers have to look at their procedures very carefully when employees are lifting weights above the guideline figures. He said that the risks could have been reduced here by having two men lift pallets, even though that could bring about some problems in having men co-ordinate properly when lifting.

 

[15] Mr Stewart's views, however, as he conceded, were based on his understanding that the pursuer had to lift the full weight of the pallet by himself. That, as I have set out above, was not the case. Mr Stewart was unable to say what weight the pursuer would have lifted if he was keeping one edge of the pallet on the ground, but thought that it might be half of the full weight. The defenders' expert, Mr Garry, confirmed in his evidence that this guess was correct, and explained that there are scientific calculations which are used and which show that in most cases only half the weight has to be lifted when one edge rests on the ground. Mr Garry had actually tried stacking himself as an experiment and he felt, contrary to Mr Stewart, that he was able to do it "with ease".

 

[16] Of very considerable importance, in my view, in my consideration of the risks must be the video which the defenders have lodged as a production. It shows a gentleman, who in fact was one of the defenders' witnesses, Mr John Ferguson (aged 60), stacking pallets on a picking truck. Having watched that video a number of times during the proof, it is abundantly apparent to me that Mr Ferguson could move and shift the pallets with ease, provided that in doing so part of the pallet was always resting on the ground or on top of the stack of pallets. This is a very strong indication in my view that although there is some risk of injury associated with stacking pallets that risk is small.

 

[17] Also of importance are the views of the various witnesses in the case. One of the pursuer's own witnesses, namely his supervisor George Stewart, said that pallet moving was a one man job as long as he could remember. His witness Mr Hunter (a former warehouse manager) said that it has always been a one man job, provided the pallets were only stacked up to five high. The defender's witness, Mr Ferguson (mentioned above) said that stacking pallets was a very common task which had "always been a one man job". Their expert witness Mr Garry said that: "I simply cannot envisage two labourers lifting pallets. It just isn't done." Their witness, Mr Commons (Group Safety Manger) said that "This is most definitely a one man job".

 

[18] The implication which I take from all this consistent evidence from men who are experienced in the working of warehouses is that the risks are so small that they simply do not justify the extra costs of assigning two men to the task. This evidence shows that the operation has been carried out routinely by many employees, including the pursuer, over many years, both in the defenders' warehouse at the Pyramids Business Park and indeed almost universally in the warehousing industry.

 

[19] If, however (as the witnesses mentioned above have asserted), the risks were low, then the question arises as to why the pursuer experienced pain in his back in carrying out the task? It is relevant in this connection to consider the medical evidence which was placed before the court as to the nature of the injury sustained by the pursuer.

 

[20] The pursuer was examined by two medical consultants for the purpose of this case. Mr J. N. A. Gibson (55) a Consultant and Orthopaedic and Trauma Surgeon based at St Johns Hospital in Livingston examined him on the instructions of the pursuer's agents in June 2007. His medical report is lodged as no 5/1 of process. He was also examined by Mr James Christie (69) a Consultant Orthopaedic Surgeon based at the Royal Infirmary in Edinburgh (now retired) who saw him on behalf of the defenders on 20 October 2009. Mr Christie's medical report is to be found as number 6/5/1 of process.

 

[21] Mr Gibson's view as to the nature of the injury sustained by the pursuer is quite straightforward and is expressed in paragraph 7.1 of his medical report, where he says as follows:-

 

"It is clear that Mr Strange felt acute back pain following the lifting incident described. The Casualty Officer diagnosed a back sprain and I believe this was correct. Mr Strange did not develop sciatica per se, and it is unlikely that he suffered any substantive injury to an inter vertebral disc."

 

In his evidence Mr Gibson expanded on this opinion slightly by stating that he thought that the pursuer had either sprained the ligaments to his spine or the muscles supporting his spine. In his evidence he offered the view that although it was clear from x-rays that the pursuer has some degenerative changes in his spine, he thought these changes were minor, and as I understood him he therefore did not think these degenerative changes played any part in the back pain felt by the pursuer, or his previous episodes of pain.

 

[22] The defender's doctor, however, offered a somewhat different view. The basis of his views are to be found in his medical report where he states as follows:-

 

"I think it reasonable to suppose that shifting pallets was influential in precipitating systems in the lumbar spine. It is a moot point whether one should consider the activity in which he was involved as being "injury" as he claims he was acting in accordance with Health and Safety Regulations which had been explained to him previously. Nevertheless it would appear to me there was a long standing condition of the lumber spine and he was at considerable risk of developing back pain such that the activity of lifting a pallet has precipitated symptoms ...I would consider therefore that the event in January 2007 might not be considered injury in the true sense of the word but that he was at critical risk and therefore despite this relatively minor trauma has developed symptoms which had continued until the end of May 2007... In the strictest sense of the word I would not consider the activity in which he was involved as representing injury but accept that despite this and because of the underlying degenerative condition he has experienced acceleration of symptoms that may well have occurred anyway within four or five months had it not been for this index event".

 

Mr Christie goes on to suggest that it would be wrong to think of the activity of lifting the pallet as actually having caused the pursuer's back pain, offering the view that: "If as he says he used an approved technique it is unlikely that such an activity was influential in causing back pain". Mr Christie's views might have given rise to a causation issued in this case, but as the Joint Minute which I refer to above agrees that the pursuer "suffered back pain as a result of the accident" I think that this precludes such a consideration.

 

[23] Mr Christie has perhaps expressed his views somewhat enigmatically in his report but he explained and expanded upon these views in his evidence and made them very clear. Mr Christie did not approve of the term "back sprain". He suggested that it was just a convenient, although inaccurate, shorthand expression which covered a multitude of conditions. Mr Christie's view was that the weight which the pursuer was lifting was so low that it did not expose him to any significant risk at all of spraining his back. As Mr Christie said in his evidence, "something happened in his back which caused him pain", but that "something" in Mr Christie's view was not the weight of the pallet as he felt that the pursuer should have been able to lift even the full 23 kg of the pallet "without problem". In Mr Christie's view the essential cause of the back pain which the pursuer experienced was therefore the degenerative changes which he has. The lifting of the pallet was merely an incident which "precipitated pain in a back which is already abnormal". So, on Mr Christie's view, the pursuer was someone who already had a vulnerable back, and this meant that any one of very many activities could trigger back pain and it just happened to be the very low risk activity (in Mr Christie's view) of moving and stacking pallets. As Mr Christie put it, some activities "find out those who have a greater constitutional risk" of suffering from back pain. Indeed, Mr Christie offered a view that if the pursuer did not take the whole weight of the pallet by lifting it off the ground then "the risk was absolutely negligible" and "the problem was his own individual risk". This reasoning explained why Mr Christie, no doubt like every other doctor, had come across scores of people who had experienced shooting back pain which had been triggered by nothing more onerous than brushing their teeth or tying their shoe laces.

 

[24] Both doctors were, in my view, experienced, careful, and impressive witnesses. I think that Mr Gibson's diagnosis of a back sprain is perhaps more orthodox, and he gave his evidence in a careful and measured way. I initially wondered, I have to say, if Mr Christie's views were rather idiosyncratic, but having considered both views as carefully as I can I have come to the conclusion that in this particular case I find Mr Christie's views as to the nature of the "injury" more persuasive. Having watched the video lodged by the defenders which shows a demonstration of pallets being moved and stacked in a way which I have held was very similar to the way in which the pursuer carried out the task, I personally find it difficult to explain the back pain in terms of a back "sprain", because the physical effort involved seems so little. The fact that many people experience shooting and temporarily disabling pain of the same type experienced by the pursuer when doing nothing whatsoever out of the ordinary confirms to my way of thinking that it can be misleading to refer to such incidents as involving an injury. Mr Christie's evidence suggests very strongly to my mind that moving the pallets just happened by coincidence to be the incident which triggered an episode of back pain for the pursuer, the underlying and therefore real cause of which was a constitutional predisposition to back pain, most probably the result of early degenerative changes in his spine. This conclusion is confirmed, in my view, by Mr Christie's evidence, which I have no reason to doubt, that population studies show that about 80% of people with back pain of the same type as the pursuer make a full recovery within about twelve days and this supports the probability that where recovery takes much longer than this then it is not a sprain. The pursuer here claims that despite making an initial recovery he has continued to experience symptoms now for about three years, and Mr Christie is of the view that the continuing symptoms such as this which last beyond six months are a result of the underlying degenerative condition, rather than the result of the "accident". The pursuer's doctor did not accept Mr Christie's reasoning, being of the view that the degenerative changes shown in the x-rays were too minor to lead to any real likelihood of playing any part in back pain, and I understand that opinion, but it is my respectful view that Mr Gibson's diagnosis of a back sprain does not easily explain the way in which the back sprain could have been sustained, nor does it explain the reason for the continuing symptoms.

 

[25] I accordingly conclude that Mr Christie is correct in his view that the pursuer is an individual who was "at extreme risk" of experiencing back pain which could have been triggered by almost any activity, and that he may well have experienced similar symptoms "within four or five months had it not been for this index event". Mr Christie readily accepted that this time scale was plucked from the air, but to my mind it makes sense.

 

[26] Both doctors also offered the view, to which I must attach some weight in view of their expertise, that an average man could lift the whole weight of a pallet provided he used proper techniques. Mr Gibson said that; "If he lifted the 23kg pallet properly an average man could do this without pain." Mr Christie was more emphatic, saying that the risks involved in moving the pallet provided part was kept on the ground were "absolutely negligible", and that what the pursuer was doing "was such a minor activity". He also felt that even taking the full weight of a pallet "only exposes those at extreme risk".

 

[27] Taking all the above evidence into account the conclusion to which I come on the question of how risky the job was, is that it was not risky at all provided that proper techniques were used. Although the defenders have conceded in relation to the statutory case that there was a risk of injury, it is my view, in agreement with Mr Christie, that the risk was absolutely negligible.

 

[28] Turning back to the question of whether the defenders took reasonable care for the safety of the pursuer, what did the defenders do to minimise that small risk? Their evidence, which I do not think was seriously challenged and which I accept, is that they had carried out risk assessments of the task of stacking pallets (such as to be found in 5/2/9 of process), they had given the pursuer comprehensive training in Health and Safety matters, in Manual Handling, and in approved lifting techniques (with which techniques he complied), and they had instituted a rule that pallets should not be stacked to a height of more than five high. The evidence in the pursuer's favour was only to the effect that the job could have been carried out by two men. Given my finding that the risk involved in the task of stacking pallets was negligible, and the almost complete lack of support for the pursuer's own contention that this was a two man job, I agree with the defenders submissions that the precautions which I have set out above were sufficient to discharge the defenders' duty to take reasonable care for the safety of their employees. There was nothing in the way in which the pursuer had to carry out the task of moving and stacking pallets, which he did by following his training in lifting, which exposed him to anything more than a negligible risk. Despite the negligible risks in the task which he was carrying out, he unfortunately experienced pain in his back but this was because he was constitutionally at risk of such an episode happening, and any other activity could have caused this, and probably would have caused it, within four or five months of the accident.

 

[29] I have therefore come to very much the same conclusion as Lord McFadyen in the case of Hall v City of Edinburgh Council 1999 SLT 744 (a case where two men were lifting a bag of cement) where he said as follows:-

 

"At common law ... the issue is whether injury is reasonably foreseeable as a probable consequence of the operation .. But for the pursuer to succeed at common law, I have to be able to conclude that a reasonably careful employer who did address that question would have concluded that instruction should be given that the operation should not be undertaken. I am not satisfied that I should so conclude. It seems to me that a reasonably careful employer might well have come to the view that, while the guidance issued by the HSE was enough to point to the existence of a "risk" of injury for the purpose of the regulations, when weighed against the fact that the operation had been carried out virtually daily without complaint, incident or injury for a considerable number of years, that risk was insufficient to lead to the conclusion that it was probable that a blacksmith experienced in relatively heavy work would suffer injury if required to carry out the operation in question. I am therefore not satisfied that in the circumstances reasonable care required the defenders, as part of their system of working, to advise or instruct the pursuer that a 50kg bag of cement should not be lifted from the ground by two men."

 

[30] It is my view that his case at common law must accordingly fail.

 

Manual Handling Operations Regulations

Regulation 4(1)(a)

[31] The pursuer's statutory case rests on a breach of the Manual Handing Operations Regulations 1992. The pursuer contends that his employers breached their primary obligation under Regulation 4 of the Regulations to avoid the need, so far as is reasonably practicable, for him to undertake any manual handling operation at work which involves a risk of him being injured. He contends that the task of moving an empty pallet was a manual handling operation which involved a risk of injury to the pursuer, and that the risk could have been eliminated if the defenders had arranged for the pallets to be moved by means of a fork lift truck. As mentioned above, I have held it proved that he had asked that the job be carried out by a fork lift truck driver on the night in question, but this request was refused. Alternatively, if in fact this risk could not have been eliminated in this way, it is said that the defenders should have reduced the risk of injury by designating the task of moving and stacking pallets as a two man job.

 

[32] There is again a deemed admission here which is relevant, brought about by another Notice to Admit which was lodged by the pursuer and which is to be found as no. 14 of process. In terms of the deemed admission the defenders have admitted that the "task of moving the wooden pallet, as referred to on Record, was a Manual Handling Operation in terms of Regulation 2 of the Manual Handling Operations Regulations 1992 which involved a risk of injury to the pursuer". Given that admission, the onus is placed upon the defenders to establish that it was not reasonably practicable for them to eliminate the necessity for the pursuer to stack the pallets by hand: Cullen v North Lanarkshire Council 1998 SC 451; Anderson v Lothian Health Board 1996 SCLR 1086.

 

[33] As with the pursuer's common law case of fault, I find that there is almost no support from the witnesses in the case for the pursuer's assertion on Record and in evidence that this was a job which should have been carried out by a fork lift truck driver rather than by employees manually. His supervisor (George Stewart) said that whenever fork lift trucks were moving about a warehouse that created its own risks and he did not suggest that using a fork lift truck was a suitable way of stacking pallets. I have no note that the warehouse supervisor (Frank Hunter) suggested in his evidence that fork lift trucks ought to be used to stack empty pallets. The pursuer's expert witness did suggest that a fork lift truck could be used, which undoubtedly it could have been, but he was not able to comment on whether it was practicable for fork lift trucks to be used for this purpose. The defenders' Site Service Manager (John Ferguson) did not comment according to my note on the practicality of using a fork lift truck, but their Group Safety Manager (Bernard Commons) was very clearly against the use of fork lift trucks for this task on the basis that this would increase the frequency of manoeuvres being carried out by fork lift trucks throughout any warehouse. He said in his evidence that the defenders sought to reduce the number of times fork lift trucks have to be involved in reversing in and out of particular locations as there had been too many accidents involving fork lift trucks. He said that for this reason they did not allow fork lift trucks to clear empty pallets. In his view there was too much risk and the task was therefore carried out manually. Mr Commons view was supported by the defender's expert witness, who said that although it was possible, in theory, to stack the pallets by using a fork lift truck it was not in his opinion really practicable to do that. As I understood his evidence he seemed to be of the view that the fact the empty pallets were normally spread throughout the warehouse meant that there would be too much movement around the warehouse by fork lift trucks if the fork lift trucks were to be used to stack them, and that in any event the main role for a fork lift truck was to move heavy, full, pallets which just could not be moved manually. The resource factors are explained in the report by the defenders' expert (no 6/3/1 of process) at pages 12 and 13.

 

[34] The conclusion which I reach on the above evidence is that while it would, of course, be perfectly possible for a fork lift truck driver to remove empty pallets from where they lay in order to stack them, the overwhelming preponderance of the evidence is that this would be an inefficient use of resources as fork lift trucks can and ought to be used for other tasks, and in addition the considerable manoeuvring which a fork lift truck would have to do in order to stack the pallets would create its own, and not inconsiderable, risks.

 

[35] The defenders have accordingly proved, in my view, that the only practicable way for the pallets to be removed and stacked was by hand.

 

Regulation 4(1)(b)

[36] The pursuer contends, in the alternative, that if, as I have held, it was not possible to eliminate the Manual Handling Task, the defenders failed to take appropriate steps to reduce the risk of injury to the "lowest level reasonably practicable". He contends, as in his common law case, that the defenders should have categorised this as a two man job.

 

[37] In connection with this statutory case, I should say at the outset that it is clear to my mind that the pursuer has established on the evidence that it is safer for two men to lift pallets together than for one to lift on his own. While the use of two men brings about its own risks, namely that there is then the risk of one man dropping his end causing the other man to jolt his back (as set out in detail in the report by the defenders' expert at page 16), I am persuaded that overall it is clear that it is safer to use two men. The question, accordingly, which is probably crucial to liability in relation to the statutory case, is whether Regulation 4 in terms of which the defenders have to reduce the risk to the "lowest level reasonably practicable" required the defenders to reduce the already negligible risk of injury even further by insisting that only two men should ever lift pallets? On this point, the pursuer's Counsel argued that if two men could do the job more safely than one, then in terms of the regulations the defenders should have provided two men unless they could show that this was impracticable, and the fact that the defenders led no evidence as to the cost of providing two men meant that they had failed to show that it was impracticable for them to have done so.

 

[38] The obligation of the defenders, broadly stated, is to make the task as safe as possible, but, as with their common law obligations, in doing so they are entitled to take into account the level of the risk in deciding what steps they have to take (see the authorities listed in the defenders' written submissions at page 22, including Edwards v National Coal Board [1949] 1KB 704, at 712. I have held, as set out above, that the risks involved in one man stacking pallets are very low provided the job is done in accordance with set procedures. The defenders had reduced the risks involved in stacking pallets by giving their employees, including the pursuer, training in good lifting techniques (which did not involve the need to twist or turn while lifting), by devising a safe method for stacking pallets, and by laying down the maximum height of any stack of pallets. These steps take the defenders quite a long way, in my view, towards establishing that they had reduced the risks as far as possible.

 

[39] With regard to the pursuer's argument that the defenders' evidence was insufficient to show that it was not practicable to make this a two man job, I have come to the conclusion that no such direct evidence is required as it is self evident, and in any event arises by implication from the evidence, that specifying that this should have been a two man job would have involved extra costs and inconvenience. I have also come to the conclusion that these extra costs were not justified to try and reduce a very small, almost negligible, risk even further. The duty on the defenders under Regulation 4 is to take "appropriate steps" to reduce the risk, and this had been held in a number of cases to include the provision of information and training (eg O'Neill v D S G Retail Ltd [2002] E W C A CIV 1139, and also Brown v East & Mid Lothian NHS Trust 2000 SLT 342. The defenders in my view did indeed reduce the risks as much as they reasonably could be expected to do by taking the steps set out above.

 

[40] I have accordingly come to the conclusion, for much the same reasons as apply in relation to the common law case, that the defenders had reduced the risks in this particular task as much as they reasonably could, and made it as safe as possible without resorting to extreme measures, in other words to the lowest level reasonably practicable. I am persuaded that they did not need to go to the extent of classifying this as a two man job.

 

[41] In so far as the pursuer avers and claims that the defenders failed to make a suitable and sufficient assessment of the risks, I find that the assessment which they made as set out in the risk assessments lodged in process, were sufficient. In any event, a breach of the duty to make a risk assessment of a Manual Handling Operation does not, of its self, give rise to liability in damages (Logan v Strathclyde Fire Board 1999 rep LR 1997).

[42] The pursuer's case under the Regulations accordingly also fails.

Damages

[43] In case I am wrong in the conclusion to which I have come, and in case the matter goes further, I ought to deal with the question of damages.

 

[44] With regard to solatium, a joint minute has been lodged (to be found as number 35 of process) in which it is agreed the pursuer "suffered back pain as a result of the accident on 5 February 2007". He avers, and I have no reason to doubt that it is true, that when he felt pain in his back "he stumbled backwards and collapsed to the floor. He immediately felt a numbness in his left leg", which was diagnosed as a "back sprain" at St Johns Hospital, Livingston. It is agreed that he was off work for a period of fourteen weeks, and have several sessions of physiotherapy.

 

[45] In his evidence the pursuer said that he had to have physiotherapy for about three months after the accident, and that this helped considerably, and that the pain had fully resolved by the end of May 2007 at which time he was feeling very good. However, he claimed that his pain had returned later, and still existed. He claimed that he was constantly taking painkillers now, and that after he was made redundant by Wincanton Logistics he had to look for a lighter job. He claimed that his back now prevented him from exercising in the gym and that he had replaced this with swimming. He accepted that he had had back pain in the past which had caused him to be off work for two weeks.

[46] His evidence that his pain had resolved by May 2007 was consistent with the contemporaneous note of the physiotherapist dated 28 May 2007 (number 5/3/1 of process, at page 4) where he is recorded as reporting a "100 per cent improvement" and "experiencing no pain". However, only a week later at the time of his appointment with Mr Gibson on 7 June, the pursuer complained again of pain. It seems so unlikely that pain would have returned so quickly that I regret to say that I can only conclude that the pursuer gave an untruthful or exaggerated account of his symptoms at the time of his appointment with Mr Gibson.

 

[47] The pursuer also visited his General Practitioner on 21 August 2007 complaining of back pain. This is consistent with his evidence in Court that the pain returned two or three months later, but, I have to say, it is also consistent with the exaggerated account to Mr Gibson. There is no record of any further attendance at his GP complaining of back pain until 3 November 2009 shortly before the commencement of the proof in this case. It is also apparent that the pursuer was working in the intervening period and returned to his pre accident hobby of fishing.

 

[48] Having examined his claims closely, it is my view, for reasons which I have set out above, that the back pain which the pursuer experienced was an acceleration of symptoms which he would probably have experienced within four to five months from the accident. I consider that any back pain beyond this time cannot be attributed to the accident. I consider that Mr Christie is correct in his view that the pursuer is an individual who was "at extreme risk" of experiencing back pain which could have been triggered by almost any activity, and that he may well have experienced similar symptoms "within four or five months had it not been for this index event". Mr Christie readily accepted that this time scale was plucked from the air, but to my mind it makes sense and I accept his view.

 

[49] I therefore conclude that any continuing pain beyond May 2007 is, on the medical evidence, attributable to his underlying condition.

 

[50] I would add that f I am wrong in that view, I would have held that the symptoms resolved by May 2007, as I find that I cannot accept the pursuer's evidence of continuing symptoms. I did not find his evidence to be persuasive, for the reasons given above.

 

 

 

Solatium

[51] I take as my starting point for the assessment of solatium is the lower level of the minor back injuries category of the Judicial Studies Boards Guidelines for the assessment of damages in personal injuries. This applies to "Minor soft tissue and whiplash injuries and the like where symptoms are moderate ...with a full recovery between a few weeks and a year." The range in this category is £850 - £2,750.

 

[52] The defenders contended for an assessment at the sum of £1,500 and in my view that is entirely appropriate (and perhaps generous), being a sum roughly at the mid point of the JSB range. It is also supported by the reported cases listed in the defenders' written submissions. That is the sum which I would have awarded had the pursuer succeeded.

 

Loss of earnings

[53] The agreed figure for loss of earnings excluding interest from the date of the accident until redundancy is £1,300. Had I found in favour of the pursuer then that figure would have represented the total amount of damages for loss of earnings, exclusive of interest.

 

Disadvantage on the labour market

[54] The pursuer claims to be disadvantaged on the labour market because of ongoing symptoms said to be attributable to the accident. However, even the doctor led on his behalf (Mr Gibson) was of the view that ongoing symptoms (comprising "lesser discomfort") attributable to the accident should only continue for up to eighteen months. That period has now elapsed and so on the evidence of the pursuer's own medical witness any continuing discomfort or restriction on his ability to work has not been shown in my view to be likely to be attributable to the accident. In any event, I have accepted the views of Mr Christie that there are no ongoing symptoms which can be attributed to the accident. The medical evidence means, it seems to me, that there can be no award for disadvantage on the labour market.

 

[55] Moreover, the pursuer has eighteen years or so experience in the warehousing industry, and accepted during evidence in chief that he could have carried on working with the defenders had he not been made redundant, and is still be able to do a job similar to that which he had with the defenders. By his own admission, therefore, he is not disadvantaged on the labour market as a result of any injury which is attributable to the accident.

 

Contributory negligence

[56] It is also necessary, in case this case goes further for me to deal with the question of contributory negligence.

 

[57] The defenders sought to persuade me that the pursuer had chosen to disregard the safe lifting techniques and safe system of work which he had been shown. It was suggested that he ought to be found to have contributed to the accident to the extent of at least 60 per cent. Reference was made to a number of cases where findings at this level had been sustained (Ewing v NCB 1987 SLT 414966%); Morrice v Buchan Potato Growers Ltd 1976 SLT (notes) 60 (60%); Nelson v NCB 1986 SLT2 (60%); and Ferguson v Glasgow City Council (50%).

 

[58] The pursuer's evidence persuaded me that he was lifting in accordance with the training which he had been given. This training is one of the reasons why the pursuers claim fails, but it is also a reason why, if I am wrong in my views as to liability, the pursuer should not be held to be partly responsible for the accident. The question of contributory negligence is complicated by the fact that it is admitted by the pursuer (in the deemed admission) that he twisted as he lifted the pallet. There was no particular evidence, however, that such a twist was the cause of any "injury" or back pain. Mr Gibson's evidence was that twisting movements do increase the risk of disc type injuries, but this was not the sort of injury seen in this case. Mr Christie thought that the question of twisting made little difference in the pursuer's case, and the pursuer himself felt that the pain was associated with the part of the manoeuvre he straightened his legs to slide the pallet on to the truck, at which he was not twisting his body. In light of this evidence I cannot find that the twisting manoeuvre contributed in any way to the back pain which the pursuer sustained, and had the pursuer succeeded on liability I would not have reduced his claim on account of contributory negligence.

 

Expenses

[59] It was agreed by the parties' Counsel that expenses should follow success and that the cause should be certified as suitable for the employment of Junior Counsel. I will accordingly make such findings.

 

[60] The result is that the pursuer's case fails, and the defenders will be granted decree of absolvitor together with expenses.