|
OUTER HOUSE, COURT OF SESSION
[2006] CSOH 79
|
|
PD185/05
|
OPINION OF LORD
GLENNIE
in the cause
CHARLES ASHBRIDGE
Pursuer;
against
CHRISTIAN SALVESEN
PLC
Defenders:
ญญญญญญญญญญญญญญญญญ________________
|
Pursuers: A C Forsyth;
Bonnar & Company
Defenders: McCaffery;
Simpson & Marwick
18 May 2006
Introduction
[1] The
pursuer claims damages in respect of burns suffered by him to both feet, on 18 February 2002, whilst he was
working in the course of his employment with the defenders at their premises at
Deans Industrial Estate in Livingston. The pursuer claims both at common law and on
the basis of certain statutory Regulations.
The parties have agreed quantum, subject to liability and to
contributory negligence, in the sum of ฃ12,500, inclusive of interest to 21 February 2006; and have further
agreed that two thirds of any sum awarded will be related to the past.
The defenders' "traywash" operation
[2] The
defenders carry out a "traywash" operation at their premises. Plastic trays, used by supermarkets for
storing or transporting fruit and vegetable and other goods, are washed in a
weak caustic solution (water and 0.5% caustic soda) at a temperature of
about 85ฐC. The trays are washed by
use of a "technopack" traywashing machine. The defenders have two such machines at their
premises, and the throughput is very high.
The process is relatively simple.
Trays are delivered into the machine by means of a conveyor belt. They are placed on the conveyor belt by one
or two operatives employed by the defenders.
The conveyor belt takes them through a wash tank, where they are
immersed in the hot caustic solution.
From the wash tank they pass into a space where they are rinsed above a
rinse tank by jets of hot water. The
rinse tank catches the water used for rinsing, as well as the caustic solution
washed off the trays. The trays are then
conveyed to another area where they are dried.
I am not concerned with the drying part of the operation. There is a further tank at the end of the
process known as the "back tank"" which, it appears, catches water and
solution dripping off during the drying process. I am not concerned with this either.
[3] There
is a risk of blockages occurring in the tanks.
The piles of trays brought to the supermarkets contain debris of a
variety of kinds: remnants of fruit and vegetables, labels stuck to the trays,
polythene bags of different sizes, and other plastic and paper used in
wrapping. The operatives loading the
trays onto the conveyor belt are instructed to remove all such debris before
putting the trays into the system. They
do not do this very efficiently. I was
shown three memos from the early part of 2000 (some two years before the
accident) in which Mr Cameron, the Operations Manager at the premises, had
complained about the amounts of polythene entering the wash process. This was not an isolated incident or series of
incidents. It is apparent that it was a
continuing problem. The polythene and
other debris would be carried on the trays into the wash tank. Much of it would come off. Some would remain on the trays and come off
at the rinse stage, ending up in the rinse tank. It was not clear whether some also ended up
in the back tank. This debris in the
tanks meant that the tanks had constantly to be cleaned out. This was done, according to the evidence,
about four times a week. The tanks would
be emptied and, once emptied, the sludge doors on the side of the tanks would
be opened and operatives specially trained for that purpose and wearing full
protective equipment would hose out the debris using a jet wash lance. Once this was done, all jets, belts and
other working parts within the tanks would also be cleaned.
The defenders' "safe systems of work" document
[4] I
was shown in evidence a "safe systems of work" document concerning "clean down
procedure for the technopack traywash machine".
The defenders' employees were required to read it and sign an acknowledgement
that they had both read and understood it.
That document noted that the traywashing machines would have to be
cleaned when approximately 50,000 trays had passed through the
machine - as I have said, this in practice meant
about four times per week. It
emphasised in capitals and in bold that the practice described in the document "must
be adhered to at all times".
[5] The
document identified protective clothing that "MUST be worn at all times when
cleaning down the traywash". In
paragraph 3, under the heading "dropping the traywash water tanks" (the
word "dropping" being jargon for "draining"), a step that had to be taken
before the tanks could be cleaned out, it described certain steps and
precautions which required to be taken.
First, it pointed out that all sludge doors were secured by red safety
lock off devices. The shift supervisor
had the key and would only issue it to trained and authorised personnel. The reason for this precaution was clearly to
prevent someone inadvertently opening the sludge doors when the tank was
full - anyone who did so would be exposed to a large quantity of caustic
solution pouring out of the tank at a temperature of about 85ฐC. Second, this part of the document described
the method for draining the tanks. This
was to be done by opening drain valves on the tanks. These were simple levers. The tanks drained through these valves via
the drainage pipes into a gutter which ran all the way around the concrete
plinth on which the traywash machine stood.
The gutter was covered by a metal grating through which the water in the
gutter could be seen. The document
instructed the operator that if water coming out of the tanks started to
overflow the gutter, he should reduce the rate of flow by turning off some of
the valves until the water level had dropped down. Third, the document instructed the operator: "NEVER
use the sludge doors ... to drop [i.e. drain] the water as it will pour out
and being under its own pressure the operative will not be able to shut off the
water due to the pressure". This simply
emphasised what ought to have been obvious, namely that if an operator opened
the sludge door before the tank was empty, he would be exposed to a hot caustic
solution pouring out over him. The
document went on as follows:
"When the
process water has been drained out of the tanks then and only then is it safe
to open the sludge doors ... check first by opening the tank covers and
looking inside, if it is obvious that all the process water has drained away
then it will be safe to proceed."
Checking that the water has drained
out before opening the sludge doors is identified as a matter of safety. The operator should, before opening the
sludge doors, check that the tank is empty by opening the tank cover and
looking inside. The tank cover is the
lid on top of the tank. In the case of
the wash tank, the lid was hinged and opened like doors placed horizontally
over the tank. In the case of the rinse
tank, the cover simply lay on top of the tank and was removed by the use of two
metal handles. It would be safe to
proceed to open the sludge door if, and in the context this clearly means "if
and only if", it was obvious, as a result of the check by opening the tank
covers, that all the solution had drained away.
That part of the document then goes on to describe the process of jet
washing out the tanks. I find it
difficult to conceive how the danger of opening the sludge door before being
absolutely sure that the tank is empty could have been more clearly or
forcefully brought home to the reader of the document.
The pursuer
[6] The
pursuer was a supervisor at the defenders' premises. He had been a supervisor there ever since the
traywash operation started there about ten years ago. Before that he had been employed for a further
five years by the defenders elsewhere.
As a supervisor, he was answerable at the premises, to Mr Cameron,
the Operations Manager and ultimately to Mr Howe, the Depot Manager. There were four supervisors employed by the
defenders on the traywash operation at the premises. Only one was on duty at any one time. Under the supervisor would be a chargehand
and a number of operatives, some but not all of whom would be trained for
cleaning the machines.
The accident
[7] At
the time of the accident, the pursuer was working on the nightshift, having
started at 6pm that
evening. He was due to go through
to 6am the next morning. The accident happened at about 11pm during the course of draining down the
tanks preparatory to cleaning them. The
pursuer's account of what happened was not seriously challenged and there were
no other eyewitnesses. I accept his
account.
[8] The
pursuer said that he began the process of draining down by opening the yellow
drain valve for each tank. He started at
the wash tank since this was the largest of the tanks and took longer to
drain. That tank normally took 20-35
minutes to drain. He opened the drain
valves for the rinse tank next, and then the valves for the back tank. The rinse tank and the back tank were each
expected to drain within about 10 minutes.
After a short time, he opened the door of the back tank. That had drained. He assumed, therefore, that the rinse tank
had also drained. He fetched a small
tray and put it under the sludge door of the rinse tank to catch any debris
that came out when he opened it. There
was a dispute as to whether or not he opened the top cover of the rinse tank to
look in. In his evidence, he said that,
although he had no direct recollection of having done so, he almost certainly would
have done because he almost always did.
However, in a statement given to Mr Howe about a day and a half after
the incident, when he was lying in hospital, he said that he had not opened the
top cover. I do not ultimately think it
makes any significant difference whether he did or did not, for this
reason. He told me that when he looked
into the tank, he did so by lifting one end of the top cover and peering
in. He did not remove the whole
cover. He also told me that whenever he
did this, there was so much steam in the tank that he could not see whether
there was any water there or not. In
light of this evidence, it seems to me to make no difference whether he opened
the lid, not expecting to see anything and not seeing anything; or failed to
open the lid, because he knew that he would not see anything. But in case it should be relevant hereafter,
I think it more likely that the statement he gave after the accident is
correct; and I find that he did not on this occasion open the cover of the
rinse tank to look in. He proceeded
straight to the next stage of opening the sludge door. To do this, he unlocked the safety cover of
the door catch and "cracked open" the sludge door to make sure that there was
no water left in the tank. The sludge
door is opened by unscrewing a catch and moving it to the side. In the process of unscrewing the catch,
before it has reached the point at which it can be pushed to one side, the
sludge door itself can be cracked open so that there is a small gap at the
opening end. Since no water came out
when he cracked the door open, he assumed that the tank was empty and opened
the door fully. The tank was not
empty. The caustic solution poured out
of the tank through the sludge door and, despite his attempts to move away, he
suffered severe burns on his feet. The
pursuer said that when he opened the door he had the impression that the water
was for a moment held back by a "bubble" of polythene covering the whole of the
open doorway, which then gave way suddenly to allow the water to pour out.
The pursuer's criticisms of the system
[9] The
main criticisms of the system upon which the pursuer's claims are based were
essentially four in number. First, it
was submitted that the defenders were negligent in allowing the situation to
arise where the traywash machine, and in particular the wash tank and rinse
tank, became clogged up with debris. But
for the presence of debris in the rinse tank, the tank would have drained
freely and the accident would not have happened. Second, it was submitted that the defenders
were at fault in not providing an adequate system for checking whether the tank
was empty. The method of checking the
water level by opening the lid was inadequate.
There were better methods commercially available, such as a gauge on the
side of the tank. At the least, the
provision of a dipstick would have provided a much more reliable indicator than
just looking in from the top. Had there been
such a method available, the pursuer would have been able to check that the
tank was empty before he opened the sludge door. Third, it was submitted that the defenders
had failed to provide the pursuer with any adequate safety equipment. Such personal protective equipment as was
available, in the form of waterproofs and boots, was made available only to
operatives, in particular those assigned to the cleaning of the machines. The pursuer had asked for boots - not
wellington boots but reinforced boots that went above the height of the
ankle - but had been refused by Mr Cameron in no uncertain terms on
the grounds that he did not need them because he did not do any of the
work. Had the pursuer had such boots, he
would not have suffered the burns. Fourth,
and this overlaps to a large extent with the criticism about the lack of protective
clothing, it was submitted that the instructions given to the pursuer were
inadequate, in that they did not make it clear to him that he was not meant to
be carrying out the draining operation.
[10] I have no difficulty in finding that the first of these
criticisms is well founded. The
operatives charged with loading the plastic trays onto the conveyor belt were
instructed that they should remove all debris of whatever kind from the trays. It is not clear whether they were warned that
if they did not do so, it might create a situation in which there was a risk of
injury. But that does not matter. There was no difficulty in removing most of
the debris, such as the remains of fruit or polythene bags. There may have been a difficulty in removing
labels - these may be stuck onto the trays and might come off in the hot
wash - but labels were not the main problem in the present case. The real problem was the large quantity of
polythene which was allowed to go through the system. Mr Howe accepted in his evidence that
this was left on the trays as a result of carelessness. That carelessness by the employees is
carelessness for which the defenders are vicariously responsible and, in any
event, they could, with appropriate supervision, have ensured that the
operatives took proper care and effectively remove most of the debris. The supervisors ought to have ensured that
this took place. Although the pursuer
was one of these supervisors, he cannot be held solely responsible for the
large build up of polythene in the tanks which would have happened not only on
his shift but on shifts when he was not present.
[11] I also have no difficulty in accepting the second
criticism. Expert evidence was led to
establish that gauges were available and could have been fitted to the wash
tank and rinse tank. A dipstick could
easily have been provided. There was no
evidence led as to the likely cost of a gauge and some suggestion was made that
a dipstick might not be the most reliable way of ascertaining the level of
solution in the tank. I accept that a
dipstick may have limitations, but it seems to me that it is a better method
than one depending on visual observation through steam from the top of the
tank. If the pursuer is to be believed,
and I accept his evidence on this, the observation achieved by opening the
cover of the tank was to all intents and purposes useless. The defenders, through him, knew this. Mr White, the chargehand working with
the pursuer at the time of the accident, said that when he checked the level of
the solution in the tank, he would remove the lid altogether and step back to
allow the steam to die down. Whilst I
accept his evidence that this was what he did, he was applying common sense to
make the best of a bad system. The
system was, to mind, wholly unsatisfactory and liable to lead to the situation
where a person who ought to be checking the level of water in the tank would
either try and fail or, perhaps more likely and as I suspect happened on the
present occasion, simply not bother.
[12] The third and fourth criticisms raise more difficulties. They can be taken together. The evidence as to what protective clothing
was available was somewhat confused. For
supervisors such as the pursuer, the clothing issued by the defenders was by
way of a uniform to distinguish supervisors from others. The only protective equipment was
footwear. The pursuer was given shoes
with reinforced steel toecaps. This is
commonplace for work in a factory or warehouse where the risk would be to the
feet striking, or being struck by, hard objects. Operatives on the shop floor were given
overalls and boots with reinforced steel toecaps. It appears that at one point they had been
issued with trainers but the reinforced boots had been introduced after an accident
at another of the defenders' premises in England. Waterproof clothing was provided for those
operatives authorised to carry out tank cleaning duties. They were also issued with safety Wellingtons,
i.e. Wellington boots with steel
toecaps. The "Safe Systems of Work"
document to which I have referred also suggests that they were given waterproof
gloves and safety goggles or a visor.
However, although there was some evidence that one or more pairs of
Wellingtons were available in the conference room, or in a cupboard, I am
satisfied that the pursuer was not provided personally with either waterproof
clothing or with Wellington boots; nor were these generally made available on a
"to be shared" basis. The reason for
this was not hard to discern. As I have
already observed, it appears that at the time the safety boots were introduced
as a replacement for trainers the pursuer took one of the operatives to
Mr Cameron for him to be issued with safety boots. There was some conversation in which the
pursuer asked Mr Cameron whether he too could have a pair of safety boots
and Mr Cameron responded, perhaps partly in jest: "What do you need them for, you do fuck
all." This conversation was spoken to in
similar terms both by the pursuer and by Mr White, the operative in
question. To my mind, their accounts had
the ring of truth. As far as
Mr Cameron was concerned, the pursuer was not the person who would be
doing the sort of job that required such protective clothing. He was meant to be supervising. Mr Cameron himself had formerly been a
supervisor before being promoted.
Mr Howie, when he gave evidence, said that he used to tell
supervisors that they were not to do the work themselves. They had other responsibilities. So it would not have been surprising if
Mr Cameron had responded in this way.
For the pursuer it was argued that this demarcation of responsibilities
was not made clear in the "Safe Systems of Work" document to which I have
referred. That is factually correct, but
I regard it as irrelevant because supervisors such as the pursuer were told
orally that they should not be doing this work.
In any event, a fair and commonsense reading of that document would have
told the pursuer that the work of cleaning the tanks was to be carried out by
people with the proper protective clothing.
Where I think there is more room for criticism is that the document
itself does not draw a clear line between, on the one hand, the cleaning and,
on the other, the draining down of the tanks prior to cleaning. Evidence from the pursuer and from others
involved in the job of draining down showed that it was not uncommon for the
person who started the draining process by opening the valves to continue to
the stage of opening the sludge door.
The defenders must have known this.
The operation of the valves was a simple task that required no
protective clothing. Cleaning the tanks,
however, required full protective clothing.
The operation of opening the sludge door after draining and prior to
cleaning falls into a grey area. Should
it have been done, or been allowed to be done, by someone who was not wearing
protective clothing or at least protective boots? If the tanks had properly drained before the
sludge door was opened, there is no reason why it should not have been done by
a person in ordinary clothing. It was
only if there was a risk of caustic solution coming out from the sludge door
when it was opened, that protective clothing of this sort was necessary. But there was such a risk, and that risk was
caused or contributed to by the carelessness of the operatives loading the
trays, in failing to ensure the removal of rubbish, and by the failure to have
some more reliable method of ascertaining whether the tanks had properly
drained. In those circumstances I consider
that it was foreseeable that the pursuer would open the sludge door and expose
himself to the risk of injury from hot caustic solution. In those circumstances, the defenders should
have made protective clothing available to him.
They were at fault in failing so to do.
The pursuer's statutory case
[13] Mr. Forsyth, for the pursuer, relied upon Regulations 4, 5 and
12 of the Provision and Use of Work Equipment Regulations ("PUWER") 1998,
Regulations 4, 6 and 10 of the Personal Protective Equipment Regulations
("PPER") 1992 and Regulations 6 and 7 of the Control of Substances Hazardous to
Health Regulations ("COSHH") 1999.
PUWER 1998
[14] Regulation 5(1) requires every employer to "ensure that work
equipment is maintained in an efficient state, in efficient working order and
in good repair". Under reference to Ball v Street (unreported) [2005] ECWA Civ. 76, Mr. Forsyth submitted
that this imposed an absolute duty. The
pursuer needed only to prove a malfunction, not the cause of it. Here the tank washing machine malfunctioned
in that water did not drain away as it was meant to do when the valves were
opened. This was enough to show a breach
of the Regulation. He referred me in
this context to Hyslop v Lynx Express Parcels 2003
SLT 785. Regulation 4(1)
requires every employer to "ensure that work equipment is so constructed or
adapted as to be suitable for the purpose for which it is used or
provided". Under reference to Robb v M&I Salamis 2005 SLT 523, Mr Forsyth accepted that
the word "suitable" imported the concept of protecting against a foreseeable
risk. Here, he submitted, there was a
foreseeable risk of scalding from the tank if the sludge door was opened before
the tank had drained. The purpose for
which the equipment was being used was draining. There were methods available for checking
that the tank had drained before the sludge door was opened. Without some such method the equipment was
not so constructed or adapted as to be suitable for the purpose for which it
was used. Mr Forsyth submitted that
the same facts also proved a breach of Regulation 4(3). I was referred to English v North Lanarkshire
Council 1999 SCLR 310 and Beck
v United Closures & Plastics Plc
2001 SLT 299. An employer would be
at fault in disregarding even a small risk.
Further, the employer must take account of the possibility of a
momentary misjudgement or lapse of concentration. I was also referred to Regulation 12(1),
which requires every employer to "take measures to ensure that the exposure of
a person using work equipment to any risk to his health or safety from any
hazard specified in paragraph (3) is either prevented, or, where that is not
reasonably practicable, adequately controlled".
Paragraph (3) includes amongst the hazards referred to, the
unintended or premature discharge of any liquid which is produced, used or
stored in the work equipment. Mr Forsyth
said that the duty on the employer was absolute, subject to a defence that it
was not reasonably practicable. The onus
was on the defenders to plead and prove that it was not reasonably
practicable. He referred me to Mains v Uniroyal Englebert Tyres Limited 1995 SC 518, Hall v City of Edinburgh Council
1999 SLT 744 and the unreported decision of Lord Macfadyen in William Ferguson v Marshall Foods Limited 10
July 1996. The defenders had
not pled any defence that it was not reasonably practicable to take the
necessary measures. Nor did the evidence
suggest that such a defence might have been available.
PPER 1992
[15] Mr Forsyth relied upon Regulations 4, 6 and 10. The starting point, he submitted, was that
the employer was required in terms of Regulation 6 to assess the risks to
which the employee may be exposed. If,
in the present case, the pursuer was opening the sludge door, then an
assessment required to be made to determine whether personal protective
equipment was required and, if so, what protective equipment was suitable. In terms of Regulation 4, suitable protective
equipment required to be provided. I was
referred to Fytch v Wincanton Logistics PLC [2004]
4 All.ER221 and Henser-Leather v
Securicor Cash Services (unreported)
[2002] EWCA Civ 816. There was no
evidence that any assessment was carried out.
The question was: Was personal
protective equipment provided? and; was it suitable? Here the answer was clearly: No.
COSHH 1999
[16] Mr. Forsyth referred to Regulations 6 and 7. Regulation 7(1) requires every employer
to ensure "that the exposure of his employees to substances hazardous to health
is either prevented or, where this is not reasonably practicable, adequately
controlled". This Regulation also places
upon an employer an absolute duty, subject to the employer pleading and proving
a defence that it was not reasonably practicable. No such defence was pled or proved in the
present case. Regulation 6(1)
requires the employer to make an assessment of the risks to which employees may
be exposed. There is a definition of
substances hazardous to health in Regulation 2.
That definition includes:
"(a) a substance
which is listed in Part I of the approved supply list as dangerous for supply
within the meaning of the Chemicals (Hazard Information and Packaging for
Supply) Regulations 1994 and for which an indication of danger is
specified for the substance in Part V of that list is very toxic, toxic,
harmful, corrosive or irritant".
Caustic soda, or sodium hydroxide,
is listed in Part I of the approved supply list as corrosive, but with
this qualification, that the concentrations to which the various warning
notations apply are concentrations stronger than 0.5%. Mr. Forsyth said that this did not matter,
since paragraph (e) of the definition of substances hazardous to health
included substances, not being specifically mentioned in the previous
sub-paragraph, which create a hazard to the health of any person which is
comparable with the hazards created by the substances mentioned in the
sub-paragraphs: see Bilton v Fastnet Highlands
Limited 1998 SLT 1323. The
Regulation imposed an absolute duty, subject to the defence that it was not
reasonably practicable. Mr. Forsyth
referred me to Williams v Farne Salmon & Trout Limited 1998
SLT 1329 and Dugmore v Swansea NHS Trust (unreported) [2002] EWCA Civ 1689.
The pursuer's common law case
[17] In support of the common law case, Mr Forsyth referred me to
various passages in Monkman's Employers'
Liability. He said that the evidence
established negligence in a number of respects.
There was negligence on the part of the operatives loading trays on to
the conveyor belt, in failing to remove items of debris; in the failure to fit
the tank with a gauge or other instrument for detecting whether or not it was
empty; in the failure to provide the pursuer with protective clothing; and in
failing to ensure that the pursuer wore protective clothing when opening the
sludge door. It was plainly foreseeable
that in the absence of such measures a person opening the sludge doors was at
risk of injury. The pursuer was amongst
the class of persons who might be expected to be injured in this way if an
accident happened. Mr. Forsyth
submitted that on all of these heads the common law case had been made
out.
The defenders' case
[18] Mr. McCaffery, for the defenders, did not take issue with
Mr. Forsyth's analysis of the Regulations and the case law relevant
thereto, but he submitted that the pursuer had failed to prove his case of
breach of statutory duty and of negligence at common law. In the alternative, he submitted that I
should find the pursuer contributorily negligent to an extent of up to 90%.
[19] Mr McCaffery helpfully put before me certain draft findings in
fact which he invited me to make. Some
of them I accept. Thus, I accept that
the pursuer's accident and subsequent injuries were a result of him fully
opening the sludge door of the tray washing machine. I accept also that the pursuer failed to
comply with the defenders' system of work, in that he failed to carry out any
visual check of the water level within the rinse tank by lifting off the lid of
the tank before he fully opened the sludge door; but I add this reservation,
namely that the defenders' own failure to fit the tank with a gauge or provide
some other mechanism for checking the water level in the tank contributed to
this failure by the pursuer. I accept
that the pursuer, in his capacity as a supervisor and the most senior person on
shift on the night, was responsible for the issuing of personal protective
equipment to his team and, if necessary, to himself; and was responsible,
further, for ensuring that protective clothing was worn by all members of staff
for the task in which they were involved during that shift. However, insofar as he failed in these
respects, his failure is a failure for which the defenders are responsible. His failures do not absolve the defenders
from liability under the Regulations, though they may be relevant in assessment
of contributory negligence. More
fundamentally, however, as I have already indicated, I do not accept that
appropriate protective clothing was available for the pursuer. It was the responsibility of those senior to
him to put this right.
[20] However, with one exception, I was unable to accept the
remainder of Mr. McCaffery's proposed findings. More specifically, I do not accept that the
defenders had in place a system which was sufficient to reduce to its lowest
possible level the risk of injury to persons, such as the pursuer, undertaking
the process of draining the various tanks.
As I have already indicated, it would have been practicable to fit the
rinse tank with a gauge, or to provide a dipstick, so that the amount of water
in the tank could be checked. Nor do I
accept that the method of visually checking the rinse tank for the presence of
water by lifting the lid was a reasonable and effective method in the
circumstances. I reject also the
submission that the employees of the defenders who loaded the trays on to the
conveyor belt reduced the level of debris present within the tanks to the
lowest level reasonably practicable in the circumstances. It follows that I also reject Mr. McCaffery's
next two proposed findings, which went to the question of compliance with
Regulation 4 of PUWER, namely that the tray wash machine was constructed
or adapted so as to be suitable for the purpose for which it was used; and that
the defenders had proper regard to the risks of health and safety of persons
dealing with the machines. Since the
tray wash machine tended to get blocked by debris from the trays, I reject also
the submission that the defenders ensured that it was used only for those
operations which, and under those conditions for which, it was suitable. I decline to make a finding that the tray
wash machine was maintained in an efficient state, in efficient working order
and in good repair all in terms of Regulation 5(1) of PUWER; or that the
defenders took measures to ensure that the exposure of any person using the
tray wash machine to the hazard of the unintended premature discharge of liquid
stored in the machine was adequately controlled in terms of Regulation 12
of PUWER.
[21] It follows from what I have said earlier about personal
protective clothing, that I also reject the proposed findings that the
defenders complied with their duties in terms of Regulations 4, 6 and 10
of PPER. I was asked to hold that if
protective clothing had been made available, the pursuer would not have worn
it. I am unable to make that
finding.
[22] The exception to which I have referred was to do with the
application to this case of COSHH 1999.
Mr. McCaffery asked me to find that the caustic soda solution was not a
substance hazardous to health within the meaning of the Regulations, because
the concentration of caustic soda in the solution was below the limits
specifically referred to in the list of hazardous substances. The concentration in the wash tank was
0.5%. By the time it reached the rinse
tank it would have been further diluted.
I think Mr McCaffery is correct on this point. The general wording of paragraph (e) of the
definition is, to my mind, designed as a sweep up provision to cover substances
not specifically mentioned in the preceding paragraphs. But I consider that it would be wrong to read
it so widely that it included a substance specifically excluded by the other
paragraphs. Paragraph (a) includes
sodium hydroxide in a concentration of greater than 0.5%, and by implication
excludes it in a lesser concentration.
It would be wrong to construe paragraph (e) so that it included it by
the back door. I agree, therefore, that
COSHH does not apply in the circumstances of this case. There was, in fact, evidence that the burns
suffered by the pursuer were caused by the heat of the liquid rather than the
caustic nature of the solution, and no evidence to suggest the opposite.
Conclusion on liability
[23] I find that in all respects other than the case under COSHH,
both the statutory case and the common law case succeed.
Contributory negligence
[24] The main thrust of Mr. McCaffery's argument, as I
understood it, was that the pursuer should be held contributorily liable to a
level of up to 90%. Mr. McCaffery
referred me to the discussion of contributory negligence in my own decision in Morrison v Gardiner (unreported ,18
November 2005) and the decision of Lord Menzies in Steven v Peters 2005 SCLR 513.
He also referred me to certain of the cases mentioned by Mr Forsyth,
such as English, Beck, Ball and Fytche.
On this question of contributory negligence, Mr. Forsyth referred me inter alia to MacGregor v AAH
Pharmaceuticals Ltd. 1996 SLT 1161 and to Delaney v MacGregor
Construction (Highlands) Ltd. 2003 Rep LR (P) 56.
[25] The question of contributory negligence involves not only a
consideration of the conduct of the pursuer but also an analysis of what it is
that the statutory regulations and the common law duty of care are designed to
guard against. I propose to consider
this question by reference to the Regulations.
The regulations with which I am here concerned are designed to protect
the employee against the dangers inherent in working with machinery and
equipment of various kinds. It is a
feature of every working environment that there will be moments of carelessness
or lack of concentration. It is in part
to guard against danger arising in such an environment from such carelessness
or lack of concentration that the Regulations assume a role of great
importance. It follows that the purpose
of the Regulations would be defeated if a finding of contributory negligence
were made whenever an employee was careless and by his carelessness contributed
to the accident. This applies a fortiori to careless or sloppy
practices which have become rife and of which the employers are, or ought to
be, aware. It is, therefore, the
exceptional case rather than the norm where a finding of contributory
negligence will be made.
[26] In the present case I consider that the pursuer's actions went
beyond the sort of carelessness or inadvertence which I have described. His attitude towards checking the level of
water in the tank before cracking open the sludge door was, to my mind,
cavalier in the extreme. He himself said
that he usually opened the lid but could not see anything inside because of the
steam. He ought to have known,
therefore, that his method of checking whether there was water in the tank was
useless, or perhaps worse than useless if, albeit irrationally, he gained some
re-assurance from his actions. He knew
that it was dangerous to open the sludge door if there was water in the tank,
because the tank contained a hot caustic solution which would come out if the
sludge door were opened. His actions are
to be contrasted with those of Mr White, who, as I have described, had the
common sense to allow the steam to disperse before looking to see whether there
was any water in the tank. It seems to
me that the pursuer was guilty of the most wanton disregard of his own
safety. That does not absolve the
defenders from responsibility for the inadequacies in the system which I have
described, but it does entitle me to find the pursuer contributorily negligent. I assess his responsibility for the accident
as 50% and I shall reflect this in the award of damages.
Disposal
[27] I will give effect to my finding of contributory negligence by
finding the defenders liable to the pursuer in the sum of ฃ6,375, that sum
being 50% of the agreed sum as adjusted slightly to take account of further
interest accrued to date.
