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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McIntosh v. City Edinburgh Council [2003] ScotCS 174 (18 June 2003)
URL: http://www.bailii.org/scot/cases/ScotCS/2003/174.html
Cite as: [2003] ScotCS 174

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McIntosh v. City Edinburgh Council [2003] ScotCS 174 (18 June 2003)

OUTER HOUSE, COURT OF SESSION

A349/02

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD McEWAN

in the cause

STEVEN EDWARD McINTOSH

Pursuer;

against

THE CITY OF EDINBURGH COUNCIL

Defenders:

 

________________

Pursuer: Lloyd, Thompsons

Defenders: Dunlop; E. Bain,

Solicitor for City of Edinburgh Council

18 June 2003

[1]      This case is all about a ladder. At first blush it all appears very simple. In March 1999 the roof at Moredun Park Grove Children's Centre was leaking. The pursuer is a slater. He works for the defenders. He was sent to repair the roof. He got a line from his supervisor to obtain a ladder from the depot. He was told to get a three piece ladder and did so. That proved to be a big ladder. It weighed 50kg. The pursuer took the ladder to the site in a van, assembled it, went up, did the job, came down, lowered the sections then lifted it up to return it to the van. Unfortunately one of the feet of the ladder had stuck in the grass and when it was lifted the ladder suddenly came free. The pursuer lost control of it, lost his balance and fell. He injured his knee. He avers it was normal practice for one person to lift a ladder. He has now sued his employees for breach of statutory duty and all simplicity disappears from the case.

[2]      The Manual Handling Operations Regulations 1992 provide inter alia:-

"4.-(1) Each employer shall -

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

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

(i) make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them .....

(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 ....".

 [3]      I was referred in detail to a number of authorities, viz Mitchell v Inverclyde District Council 31st July 1997 (unreported); King v Carron Phoenix Ltd 1999 Rep.L.R.51; Cullen v North Lanarkshire Council 1998 S.C.451; Taylor v City of Glasgow Council 2000 S.L.T.670 and 2002 S.C.364; McGhee v Strathclyde Fire Brigade 2002 S.L.T.680; Easson v Dundee Teaching Hospitals NHS Trust 2000 S.L.T.345; Robb v Dundee District Council 1980 S.L.T.(Notes) 91; Nisbet v Orr 20th March 2003 (unreported); Divit v British Telecom 20th February 1997 (unreported); Logan v Strathclyde Fire Board 12th January 1999 (unreported). Two other well known cases were referred to in passing as the argument will show.

[4]      Mr Dunlop, appearing for the defenders asked me to sustain his first plea-in-law and dismiss the action. He gave me two distinct arguments.

[5]      Firstly, he said, the pleadings did not disclose the use of a load in terms of the Regulations. He referred me to the Guidance Notes for these Regulations which under the word "Load" say this ".... A load in this context must be a discrete moveable object. This includes, for example, a human patient receiving medical attention or an animal during husbandry or undergoing veterinary treatment, and material supported on a shovel or fork. An implement, tool or machine - such as a chainsaw - is not considered to constitute a load while in use for its intended purpose....".

[6]      I was referred to the Oxford English Dictionary. A load was something to be transported or supported by bodily force. He referred me to Mitchell at page 5 (the rotary lawnmower) and the Schedule I to the 1992 Regulations Factor 2 and to King (the spanner case). In the present case, at all times, the ladder was being used for its purpose. He referred me to Cullen. The risk of injury need be no more than a foreseeable possibility.

[7]      His second argument concerned the relevancy and specification of the risk of injury. There had to be a manual handling operation involving risk. In Cullen the risk was standing on fencing. Here there was no foreseeable risk. He referred me to various passages in Taylor, McGhee and Easson. In the pleadings there was no differentiation between the narrative and what was foreseeability. How could the employer foresee it would stick. The Regulations imposed a duty to avoid the risk altogether and only if that could not be done to make an assessment. What should be foreseeable; the way it was held, why it sank, whether it was too heavy? The common law cases which referred to probability had to be used with caution. Robb was referred to at page 92 and Nisbet at page 5.

[8]      In reply Mr Lloyd asked me before answer to allow a proof.

[9]      He said that he had relevantly averred that a manual handling operation was in progress and he had given fair notice to the defenders. It was plain the pursuer was lifting the ladder to his van. The word "load" should be given a wide interpretation. In the context of European Directives a purposive interpretation to improve safety should be given.

[10]      What was involved here was a 50kg load which (O.E.D.) was "....laid upon a person to be carried ....". There was no reason why it could not be a load and a tool in use. The pursuer had ceased to use the ladder as a ladder, i.e. to go up and down. That meant it ceased to be a tool and reverted to being a load. There was no dichotomy and tool and load were not mutually exclusive. It could be both at the same time. The defenders could not avoid the pursuer lifting it. The purpose of a ladder was not to be carried.

[11]      Mitchell was an unsatisfactory case and should not be followed. King was a case at the margins but here the pursuer was clearly lifting a load. Divit was consistent with King and Logan showed almost an identical set of facts. Common sense showed that this was a load.

[12]      As to specification all the pursuer had to aver was a risk of injury and aver on record matters capable of allowing the court to draw the inference of foreseeable risk of injury. A foreseeable possibility is not a high standard.

[13]      The common law was of no assistance. These Regulations were brought in to improve matters over the common law. Robb and Nisbet were thus not relevant. Taylor was the case in point. Counsel referred me to a passage at H3-202 in Volume 4 of Sweet & Maxwell's Encyclopaedia of Health and Safety at Work and the ergonomic chart. Here the mere weight of 50kg was enough.

[14]      The employers should have asked themselves in advance of sending the pursuer out whether he would be engaged in a manual handling operation and whether it would give rise to risk of injury. With a ladder of that weight the risk of injury was obvious and had to be avoided. The pleadings clearly showed how the risk arose and the facts were in contrast to Taylor where the load was lighter. That case also showed that an employer had to consider matters in advance and be pro-active; not reactive as under the common law.

[15]      The Court should be slow to dismiss a case. Counsel reminded me of the well known tests in Jamieson v Jamieson 1952 S.C.(H.L.) 44 and Millar v Galashiels Gas Co 1949 S.C.(H.L.) 31.

[16]      I now turn to examine the authorities.

[17]      Some of the cases cited can only be seen as examples. In Mitchell the pursuer was cutting wet grass and pushing a rotary mower. The Lord Ordinary at page 5 was of the opinion that the mower was not aptly to be regarded as a "load". The observation is, however, obiter as the case was decided on other grounds. I do not regard it as helpful in the present circumstances. King was a case directly concerned with the Regulation in issue here. The job of the pursuer was to use a spanner to loosen and tighten bolts. This produced the condition known as "tennis elbow". Lord Kingarth held that while the pursuer was no doubt involved in pushing and pulling when working with the spanner it could not be said he was involved in the transporting or supporting of a load. In my view the decision on this point is plainly correct. However, on its facts it is quite different from the heavy ladder involved here.

[18]      In Divit the pursuer was a telephone engineer who was replacing a door closer in a kiosk. He required to push at and hold open a flap. His hand slipped and he was cut on the razor edge of the flap. The Lord Ordinary held that what he was doing could be said to be the action of transporting or supporting a load even though the flap was secured by a hinge. Importantly he allowed a proof before answer. Clearly Lord Cameron was prepared to give a wide construction to the word "load".

[19]      In Cullen the pursuer was standing in the back of a truck on top of some fencing. He was unloading the fencing, and when holding a piece above his head to throw it out lost his footing. After proof the Lord Ordinary found for the defenders and inter alia rejected the case under Regulation 4(1) of the present regulations. Both in the Outer and Inner House various words were used to qualify "risk", it not being in dispute that the fence was a load. The Lord Ordinary at 455F had held there had to be "sufficient" risk of injury before any assessment took place. The Court, however, was of the view that the risk of injury had to be no more than a "foreseeable possibility". Even those comments were strictly obiter as the only point at issue was whether the manner in which he was injured fell within the scope of the protection provided by 4(1).

[20]      In my view the most important and helpful case about the risk involved is Taylor. What happened was this. The pursuer was a school janitor. Together with two other employees he was moving a cupboard (weighing 35kg) up two flights of stairs. As they ascended he felt pain in his back. In the Outer House the temporary judge dismissed the action because on the facts averred there was no risk of injury. In the Inner House the reclaiming motion was allowed to the extent of allowing proof before answer on the Regulation 4(1)(a) case. What is important is what was said about "risk". The majority (Lords Marnoch and Reed) were of the opinion that there had to be a foreseeable risk of injury (see 366 and 372) Lord Carloway took a different line. He was of the view that foreseeability was not a necessary ingredient, even a foreseeable possibility (379). Mere averment of a relevant manual handling operation and an injury in consequence is enough. The opinion of the majority is binding on me and so if the facts here show a foreseeable risk of injury the pursuer is entitled to a proof before answer. I will have more to say about Taylor but before doing so let me look at some other cases. In Easson the pursuer was injured while unloading bags of laundry from a barrow. The Lord Ordinary was of the view that the pursuer had to aver facts and circumstances showing a foreseeable possibility of injury. In McGhee the risk of injury (in terms of different Regulations) was described as requiring to be "real risk". Next is Logan which has certain similarities to the present case. It was decided after proof. The pursuer who was a fireman was injured when moving a heavy power pack to the scene of a road accident. The weight was 83kg and he had a fellow employee to help him. The Lord Ordinary found that this weight was above the maximum guidelines for two men. He applied the test of foreseeable possibility of risk of injury and found the defenders liable under Regulation 4(1)(b)(ii). In my view the pattern of cases cited to me (and there are others) disclose too many different tests and words added to what is in the various Regulations. Here the only words are "a risk". I have to follow Taylor and look to see whether here there is a foreseeable risk and for reasons I will give shortly I think there is. However, were I free to do so I would have followed the approach of Lord Carloway. In my view his approach is more in line with the intention of the European Legislation which is to improve the health and safety of workers. It is obvious that the use of any working equipment of whatever kind may be covered at different times by different Regulations. To adopt the wide and purposive approach of Lord Carloway to "risk" would allow a seamless transition in safety for those engaged in the relevant different operations. It may be in the future that a Court will interpret "risk free" from any qualifying adjectives which seem still to appear as the long shadow of the common law. I think that the proper approach for the future is one akin to strict liability unless there are any statutory defences. However, that day has not yet dawned.

[21]      I was referred to cases which set out the common law tests. I do not find these helpful. Robb and Nisbet are examples of common law tests which, I am satisfied have no application to this Regulation. I do not propose to refer further to them.

[22]      In my opinion the word "load" has to be given a wide meaning. It is noteworthy that its definition in Regulation 2(1) incorporates the word "includes". Nowhere is the word "means" mentioned which would inevitably restrict the definitions. I consider the heavy ladder here is a load. To hold otherwise would be an affront to commonsense. The fact that at the same time it may also be a tool does not seem to me to matter. A Manual Handling operation is relevantly averred.

[23]      As far as "risk" is concerned I have to (against my better judgment) look for a foreseeable possibility (Taylor). In my view the facts averred of a one man lift of a ladder of 50kg clearly presents a foreseeable possibility of injury. The weight is greater than in Taylor or Logan where more than one person was lifting.

[24]      I do not wish to say too much about the facts because to do so would be to speculate in advance of the proof before answer which I am going to allow. Enough is averred to go to inquiry. The modern trend following the Coulsfield reforms is to have less said in pleadings than formerly. In my view in a case involving these Regulations very little needs to be said. The averments were criticised as " formulaic". In my opinion they do not merit this description. Since they give fair notice to the defenders of the facts which the pursuer offers to prove. I do not consider it necessary to be more specific about the Regulation and their application than appears here. In any case the argument for the defenders does not begin to overcome the Jamieson tests.

[25]      In the result before answer I will allow a proof leaving all pleas standing.

 

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