RONALD McNAUGHTON v. MICHELIN TYRE PLC [2001] ScotSC 2 (19th January, 2001)

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Dundee, 19^th. January, 2001. The sheriff, having resumed consideration of the cause, finds the following facts admitted or proved:-

Accordingly, repels the first plea-in-law for the pursuer and finds it unnecessary to deal with his second plea-in-law; sustains, of consent, the third plea-in-law for the defenders; sustains the fourth plea-in-law for the defenders; finds it unnecessary to deal with the second, fifth, sixth or seventh pleas-in-law for the defenders; assoilzies the defenders from the crave of the writ; appoints parties or their procurators to be heard on all questions of expenses arising herein and assigns as a diet therefor.

Council Directive 89/654 of 30^th. November, 1989, concerning the Minimum Safety and Health Requirements for the Workplace (First Individual Directive within the meaning of Article 16(1) of Directive 89/391) esp. Art. 6 and annexes I and II.

This is a reparation action at the instance of an employee against his employers consequent upon an accident which occurred on 31^st. October, 1997. At the outset, I was advised that the pursuer was departing from his common law case as averred in Article 3 of condescendence and that quantum was agreed in the sum of Ј3250, inclusive of interest, consisting of Ј2,250 solatium and Ј1,000 of past loss of earnings between the date of the accident and the pursuer's return to work. I was further informed that there was a nil certificate from the Compensation Recovery Unit and I do not therefore require to make any order in terms of the Recoupment Regulations. Standing the agreement on quantum, it has, naturally, been unnecessary for me to make any findings on the subject nor deal with any pleas-in-law as to the propriety of the figure sought as damages.

I also observe that, notwithstanding its continued appearance in the Amended Closed Record, No.16 of process, the defenders' first plea-in-law was repelled for want of insistence on 16^th. September, 1999.

The evidence was in short compass. I heard from the pursuer and from his colleague at work, Donald Chalmers, who was now a production worker but at the material time had been a fork lift truck driver, like the pursuer. Both struck me as straightforward individuals and neither engaged in any embellishment or unnecessary elaboration of the circumstances of the accident or the background to it. I concluded that they could both be regarded as credible and reliable witnesses.

For the defenders, I heard evidence from Robert Heslip, the defenders' safety adviser, and from Ian Gordon, who was a cell manager employed by the defenders. Again, there was little, if anything, in their evidence which struck me as being untrue and significantly at odds with the evidence of the pursuer and Mr. Chalmers. Insofar as Mr. Gordon tended to suggest that the pursuer and Mr. Chalmers should have known not to walk in the area where the accident occurred because he had told them that, I preferred the evidence of the pursuer, supported by Mr. Chalmers, that no such instruction had been given to them.

The pursuer had worked for the defenders for some 22 years and had worked as a fork lift truck driver in the area in which the accident occurred since June, 1994. He was familiar with the operation and there was nothing to suggest that he had a record of being negligent or was regarded other than as being a reliable worker. Part of the operation in which he worked involved the transportation by fork lift truck of basic materials to form the tyres manufactured by the defenders at this factory from a storage area to each of four production lines known as the Mac areas, 1- 4. A Mac, I was informed, was a semi-automatic production line for a tyre. There were four such lines. The pursuer and others were to supply the materials to each of the areas. The particular material involved at the time of the accident came on a reel, the weight and dimensions of which were never effectively established, but the like of which can be seen in the photographs lodged by the pursuer, especially 5/1/1/A. The system was that the reel with the product would be uplifted from a storage area by the fork lift truck operator, with the forks of the truck being tilted towards the body of the truck so that the reel could not roll off, and would then be conveyed a distance of around 50 metres to each of the Mac areas, to be located in what was known as a cradle. The cradle concerned in this incident is seen in photograph 5/1/1/A and consists of four vertical posts, two parallel horizontal bars bolted to the floor into each of which two of the vertical posts were located and a series of rods at right angles to these parallel horizontal bars, also bolted to the floor, which were supposed to act as pair of holders for the reel as it was deposited there from the fork lift truck. I am a little surprised that these defenders could not come up with a more effective system for the safe location of these product reels, but that was not an issue at the proof. The reel would then remain there until required by the process workers and when they removed it, the fork lift truck drivers, like the pursuer, would require to replace it. There was a slight divergence of evidence about how often in an eight hour shift this process would be repeated. Suffice it to say that it was an extremely regular and common procedure in which the pursuer was experienced and with which he was wholly familiar. The particular Mac area shown in phgotograph 5/1/1/A is Mac 3 and this is where the pursuer's accident occurred.

The pursuer was working on the night shift of 31^st. October, 1997. In the course of that shift, he deposited a reel in the Mac 3 cradle. For some unexplained reason, the reel rolled out of the cradle and towards the first stage of the production line. The pursuer descended from his fork lift truck and walked through the cradle area to retrieve the reel which he successfully did, getting round behind it and pushing it back into position so that it came to be located in place between two of the rods bolted to the floor. He then attempted to walk past what for him would then be the right hand side of the reel (its left hand side as depicted in photograph 5/1/1/A) to return to his fork lift truck. In the course of so doing, he struck the protruding bracket - he walked into the protruding bracket on what is the front left vertical post as depicted in said photograph - with his upper arm and shoulder sustaining a haematoma thereto as well as swelling and discomfort which persisted over a significant period of about five months.

Much time was wasted, in my opinion, at the proof in the exploration of two issues which did not appear to me to be relevant to the outcome standing that the case was restricted to the alleged breach of statutory duty in terms of Regulation 5(1) of the Workplace (Health, Safety and Welfare) Regulations, 1992. These two issues were whether the pursuer had been negligent in his depositing of the product reel in the Mac 3 area cradle from his fork lift truck and whether the pursuer had walked in an area in which walking was prohibited given that this was not a designated walkway. It seemed to me that, whether the pursuer was or was not negligent in depositing the reel of product, by the time he had recovered it, which he was expected to do, and walked back through the cradle area striking the bracket, a novus actus had intervened. In any event, in my opinion, the risk of an employee negligently depositing a reel is one which a reasonable employer ought to have in mind. It seems to me to be entirely natural that an employee, such as the pursuer, whose reel rolled off towards the production area, would get off his fork lift truck and retrieve the reel, as happened here, by walking through the cradle area and pushing it back into the cradle area, as he did. In any event, there was no evidence from which I could reach the conclusion that the pursuer had been negligent on this particular occasion in depositing the reel in what was accepted by Mr. Heslip as being a tricky operation.

So far as the question of designated walkways is concerned, in the first place, as I have already said, the pursuer's reaction in pursuing the reel via the cradle area was entirely natural and, given that by definition on account of the fact that the pursuer was engaged in pursuit of the reel, the cradle area was otherwise empty, it is hard to see what the danger was in his entering this area for this purpose notwithstanding that it was not a designated walkway. Secondly, in my opinion, designated walkways are just that - that are routes designated for the purpose of persons walking through the factory keeping them out of the way of manufacturing activity or any other process which might present a risk to a person casually moving from one part of the factory to the other. They are not the only areas in which employees are allowed to walk and this was quite clear from the evidence of all the witnesses. Both the pursuer and Mr. Chalmers were quite clear that they had commonly walked in the cradle areas.

Thirdly, it was accepted that no instructions had been issued to the employees, including the pursuer, to the effect that walking in the factory was only permitted in designated walkways.

The issue, it seemed to me at the end of the day, was, quite simply, given that the bracket on the vertical pole had once been used to support a shelf which had been removed, the bracket constituted a potential hazard to anyone who was walking in the area of the cradle. At least, that would have been the issue had the common law case not been abandoned.

Instead, the issue has become whether the presence of the bracket constituted a breach of Regulation 5(1) of the Workplace (Health, Safety and Welfare) Regulations, ("the Regulations.") Regulation 5(1) provides:-

" The workplace and the equipment, devices and systems to which this regulation applies shall be maintained (including cleaned as appropriate) in an efficient state, in efficient working order and in good repair."

"Workplace" is defined in Regulation 2(1) as meaning "any premises or part of premises which are not domestic premises and are made available to any person as a place of work and includes (a) any place within the premises to which such person has access while at work; and (b) any room, lobby, corridor, staircase, road or other place used as a means of access to or egress from that place of work or where facilities are provided for use in connection with a place of work other than a public road......."

There can be no doubt, in my opinion, that the defenders' factory and, in particular, the cradle area at Mac 3 therein, are both workplaces for the purposes of these Regulations.

It was the primary submission of Mr. Bathgate, who appeared for the pursuer, that if something in the workplace constitutes a danger, then the workplace is not in an efficient state. He appeared to suggest that I should confine myself to the condition of the workplace rather than the "equipment, devices and systems to which this regulation applies," on the hypothesis that a bracket did not fall happily within the description of any of those three demarcations. That would appear to be correct on a consideration of Regulation 5(3) which suggests that the equipment and devices with which the Regulation is concerned are those in which a fault is liable to render them non-compliant with any of the other Regulations. While a bracket could conceivably be a piece of equipment or a device it is difficult to see what fault in brackets generally and in this bracket in the circumstances of this case in particular could amount to a breach of any of the other Regulations, certainly in the absence of any suggestion that the bracket was not effectively attached to the vertical pole. What, if anything, was wrong with this bracket was where it was located rather than any suggestion that the bracket itself had any inherent defect which created a risk. Hence I am inclined to agree with Mr. Bathgate that, having regard to the case as pled, the only argument he could advance related to the state of the workplace.

He then referred me to paragraph 20 of the Approved Code of Practice relating to the Regulations which states that "efficient" in this context means efficient from the view of health, safety and welfare (not productivity or economy). I confess to some difficulty, particularly where it is plain from the use of the imperative "shall" that Regulation 5(1) creates an absolute duty, and where, therefore the terms of the Regulation require to be construed strictly, in concluding that a dangerously located bracket, esto the bracket is dangerously located, even where the bracket is serving no useful purpose, renders a particular workplace "inefficient," even from the point of view of health, safety and welfare. In my opinion, the concept of inefficiency in this context requires evidence of malfunctioning the consequence of which is to render a workplace less healthy or safe than it ought to be. The Code of Practice gives the example of a sanitary convenience with a defective flushing mechanism which would patently be inefficient by rendering a workplace less healthy. There was nothing wrong with the operation of this bracket.

Mr. Bathgate submitted that Regulation 5(1) repealed and replaced Sections 28 and 29 of the Factories Act, 1961. It is certainly true that sections 28 and 29 of the 1961 Act are repealed by these Regulations, as set out in Schedule 2, but which regulation, if any, directly replaces either section 28 or 29 is not specified and I was not directed to any further commentary or authority on the point. Sections 28 and 29 were each fruitful sources of litigation for more than thirty years. Neither of these sections imposed strict liability. Both sections were, in their own respective ways, much more specific than the wide terms of Regulation 5. I am very far from being convinced that any authority turning on either sections 28 or 29 can be prayed effectively in aid in relation to the interpretation of Regulation 5. In support, as I understood him, of this submission, Mr. Bathgate referred me to page 308 of Munkman on Employers' Laibility, 12^th. edition and to the case of Geddes v United Wires Limited 1974 SLT 170, therein referred to but this was a case relating to an unsafe ladder and the analogy with an unfortunately located bracket is, I regret, not immediately obvious to me. However, at page 172/173 of the judgment, the learned Lord Ordinary discusses the then existing law and the meaning to be attached to the word "maintain" which may be of some relevance to the present circumstances, when he concluded that to "maintain" involved the concept of being under a continuing duty - as opposed to being involved in the active process of carrying out an act of maintenance.

One very evident distinction between the Regulations and the Factories Act, 1961 is that the Regulations apply to all workplaces as defined by the Regulations and, accordingly, their application is not confined to a particular type of workplace such as a factory or an office. As the learned authors of Munkman put it at page 190:-

" The regulations employ substantially different language to the legislation they replace. It would be speculative at this stage to attempt to anticipate how the courts will approach the regulations, and how much reliance will be placed on the authorities decided under the old law."

I respectfully concur with that statement; indeed I would go further and suggest that authorities under the old law have to be considered with extreme care and diffidence so far as concerns possible applicability to the new Regulations. For the sake of completeness, I should record that, under this point, Mr. Bathgate also referred me to the judgment in Levesley v Thomas Firth & John Brown Limited [1953] 2 All ER 866; [1953] 1 WLR 1206, but this is a case which has been the subject of criticism and appears to me in any event to be susceptible to the same considerations as apply to all cases under the 1961 Act as aids to interpretation of the Regulations.

Turning back to the terms of Regulation 5(1), it was Mr. Bathgate's submission that the word "maintain" was synonymous in this context with the word "keep." The obligation imposed under the Regulation was to keep the workplace in an efficient state, in efficient working order and in good repair. The presence of a bracket in a dangerous location constituted a failure to maintain the workplace in an efficient state. In this context, he directed me to the decision of Lord Hardie in McLaughlin v East & Midlothian NHS Trust, a decision issued on 9^th. May, 2000 in the Outer House of the Court of Session and in particular to page 6, para.6 thereof. It is to be observed that His Lordship was dealing with an argument on relevancy and specification on Procedure Roll, not on the basis of evidence following proof, and for traditional reasons properly did not elaborate on his reasons for rejecting the defenders' submissions that the pursuer's statutory cases were irrelevant. In any event, I confess to some difficulty with the notion that when a curtain rail surrounding a patient's bed in a hospital falls on top of a member of the ward staff that indicates that the "equipment was not in efficient working order," though it may say something about whether it was in a good state of repair, which would certainly be a basis upon which that case could properly proceed to proof. By inference, however, Lord Hardie does seem to accept that "maintain" and "keep" are synonymous in this context and that certainly lends weight to Mr. Bathgate's argument in that respect. Against the backdrop of the terms of Lord Hardie's judgment, Mr. Bathgate formulated the proposition that if something in a workplace is a danger then that workplace is not in an efficient state. That, it seems to me, involves the suggestion that "dangerous" and "inefficient" are synonymous in this context, a suggestion with which I have some difficulty, notwithstanding the terms of Paragraph 20 of the Approved Code of Practice. I cannot help but draw the comparison with Section 29 of the Factories Act which specifically uses the word "safe," a word which the legislature could easily have preferred to "efficient" if a lack of danger was the concept they were seeking to legislate for.

For completeness, Mr. Bathgate referred me to the judgment in Millar v Galashiels Gas Company 1939 SC (HL) 31. That case concerned a fatal accident caused by the failure of the braking mechanism in a hoist. There was no apparent explanation for the occurrence and the hoist concerned had been in good working order both immediately before and immediately after the accident. A case was brought by the widow under Section 22 of the Factories Act, 1937, which provides that "Every hoist or lift shall be of good mechanical construction, sound material and adequate strength, and be properly maintained." Section 152 of the 1937 Act defined "maintained" as meaning "maintained in an efficient state, in efficient working order, and in good repair." At page 36 of the judgment of the House of Lords, Lord Morton of Henryton said, in terms, that section 22 in the light of the definition of "maintained" in section 152, imposed a continuous obligation on the employers. The employers argued that no breach of statutory duty had been proved. They contended that their statutory duty was to take such active steps as would ensure that the lift was in efficient working order, and that the widow could not succeed unless she could point to some particular step which the employers had omitted to take which would have prevented the accident. It was conceded that the widow could not do that and could not point to any specific cause for the failure of the hoist brake. However, it was concluded, initially by the Lord Ordinary, but supported by the House of Lords, that the statute imposed on the defenders an absolute and continuing obligation binding upon them which is not discharged if at any time the lift mechanism, including the brake, is not maintained in an efficient state, in efficient working order, and in good repair, the words of the section being imperative and without any qualification. All that an injured workman required to prove was that the mechanism failed to work efficiently and that that failure caused the accident. Lord MacDermott at page 39 put it thus:-

" If this means that every lift shall be kept continuously - or at least while it is available for use as a lift - in efficient working order the nature of the obligation is clear. It then falls into a category long recognised and firmly established by authority; it is a strict or absolute duty and neither intention nor lack of care need be shown in order to prove a breach of it."

Interestingly, he went on to say that the word " maintain," when used in relation to the state or condition of things is not always used in the same sense. " It may be used to indicate the continuance of a particular state or condition, as when one says of someone that 'he maintains his buildings just as they were.' But on occasion it takes colour from the work of maintenance and is used in reference to the acts done or requisite to be done in the course of maintenance, as when one says of another that 'he maintains his buildings methodically.' This latter use gives the word 'maintained' in relation to machinery rather the meaning of 'serviced' or 'looked after' or 'attended to' - I doubt if there is an exact synonym- and it was in this sense, according to the appellant's argument, that the word ought to be read in section 22(1). If that argument prevails the appeal should succeed, as the Lord Ordinary has found that the appellants took 'every practical step to ensure that the lift mechanism worked properly and was safe to use' and, again, that 'the failure of the brake was one which, apparently, nobody could have anticipated or, after the event, explain.'

Had the Legislature thought fit not to define 'maintained' Mr. Guest's submission on this aspect of the case would have encountered less difficulty. But, when the terms of the definition are regarded, the meaning for which he has contended is, in my opinion, at once displaced. To my mind they indicate conclusively that in section 22(1) 'maintained' is employed to denote the continuance of a state of working efficiency. In the ordinary use of language one cannot be said to maintain a piece of machinery in efficient working order over a given period if, on occasion within that period, the machinery, whatever the reason, is not in efficient working order. In short, the definition describes a result to be achieved rather than the means of achieving it."

It is to be observed that the wording of Regulation 5(1) of the Workplace (Health, Safety and Welfare) Regulations, 1992 replicates the terms of the definition of "maintained" contained in section 152 of the Factories Act, 1937, which was, in turn, replicated in section 176 of the 1961 Act. It is therefore a reasonable assumption that the legislature intended those words to have substantially the same meaning and effect in this slightly different context as the effect where the use of the word "maintain" arose in the 1937 and 1961 Acts. That would mean, as Lord MacDermott put it, that the concern should be with the result rather than the means of achieving it and that what was required was a continuing state of affairs in which the workplace was maintained in an efficient state, in efficient working order and in good repair. The remaining difficulty for me is that these phrases seem to me to be more apt to the state of machinery or equipment than to a workplace as such.

Recognising that difficulty, Mr. Bathgate directed me to the terms of the Approved Code of Practice and, in particular, to paragraph 20 thereof. Inter alia, this proclaims that "efficient" in this context means efficient from the view of health, safety and welfare (not productivity or economy). The word "efficient" is not however defined by the Regulations and, applying the normal rules of construction, should therefore be given its ordinary meaning, namely "functioning or producing effectively and with the least waste of effort; competent." Given that definition, I find it hard to understand the basis for the purported definition in paragraph 20, for the foregoing definition has nothing to do with health, safety or welfare; indeed it is conceivable that an efficient workplace might be one fraught with danger. Mr. Bathgate properly recognised that the Code of Practice did not have legislative force.

Turning to the evidence, Mr. Bathgate submitted that what had taken place was that the pursuer had gone through the cradle area to retrieve the product reel which had rolled away from its intended location in the cradle, had succeeded in rolling it back into its proper location pending use in the tyre manufacturing process and then, on his return journey to his fork lift truck, walking into the miscreant bracket. He submitted that I should accept on the evidence that the pursuer did not know --in effect, had never been told - that he was not permitted to walk in that area. There was no instruction given, no prohibiting sign and while the cradle was empty, no obvious danger. The cradle area was a workplace. If there were any doubt about that, it was removed by the terms of the decision in Scott v EDC Pipework Services Limited 1995 SLT 561. Standing the definition in Regulation 2, I cannot see any scope for doubting that both the factory and the cradle area fall within the definition of workplace. There was no question of the pursuer being "effectively forbidden" from the cradle area, as that expression had been utilised by Lord Marnoch in the Scott case.

The pursuer was carrying out his work in his workplace when he collided with the bracket. The bracket was not serving any useful purpose. It was redundant. The bracket per se was a hazard and an obstruction. Mr. Heslip, the safety officer who gave evidence for the defenders, had accepted as much in his evidence, albeit while maintaining that no employee should have been walking in the area. In Mr. Bathgate's submission, the presence of a bracket which was redundant and a hazard and obstruction meant that that part of the workplace where it was located was not in an efficient state. He was, however, plainly regarding efficient as synonymous with safe. Because the continued presence of the bracket rendered the workplace unsafe, there was a breach of Regulation 5(1) which had caused the injury to the pursuer and he was accordingly entitled to damages.

There was, on the other hand, no causal link between the pursuer's driving and depositing of the product reel, esto he had been negligent in either or both of those activities and the accident. He could not in either of those respects be said to have caused or materially contributed to the accident and the injury he sustained. On the other hand, Mr. Bathgate accepted that it was at least a stateable proposition that the pursuer should have seen the bracket into which he walked if he had been exercising reasonable care for his own safety and that in that respect, he recognised at least the possibility of contributory fault on the part of the pursuer. Properly he said that was a matter for the discretion of the court on the evidence accepted by the court, but that the degree of contribution should not be more than 50%, having regard, inter alia, to the absolute nature of the duty breached.

Insofar as there was some circumstantial evidence that the accident might have occurred in a manner different to the account given in evidence by the pursuer, I should disregard that evidence and prefer his credible and consistent account. There was no other direct eye witness; there was no contrary inference which could be drawn from the medical evidence. The fact that ex post facto other people might not have either understood or properly recorded the circumstances of the accident did not detract from the pursuer's clear account. The evidence of Mr. Chalmers, while it was after the event, included his being first on the scene immediately after the event, and what he described was consistent with the pursuer's account. That was to be contrasted with Mr. Gordon's evidence that the pursuer had been walking backwards when the accident occurred, which was a misunderstanding of what had been described to him and was entirely inconsistent with the medical evidence which demonstrated an injury to the front of the pursuer's upper arm at the shoulder joint.

I should believe the pursuer, hold that the defenders were in breach of Regulation 5(1), hold that that breach had caused the accident and the pursuer's ensuing loss and damage and find in his favour. In particular, I should sustain the pursuer's first plea-in-law amended to restrict it to the breach of statutory duty and the second, subject to the agreement on quantum. I should repel all of the defenders' pleas-in-law, again subject to the agreement on quantum.

Mr. McEachern, for the defenders, submitted that, in considering Regulation 5, we were sailing into largely uncharted waters. To assist me set the course, he referred me to the timely admonition from Lord Dunedin in Plumb v Cobden Flour Mills Co. [1914]A.C. 62 at page 65 (quoted with approval by Lord Thankerton in Slavin v A.M. Carmichael & Company Limited 1945 SLT 210 at page 215) when he said:-

" It is well, I think, in considering the cases, which are numerous, to keep steadily in mind that the question to be answered is always the question arising upon the very words of the statute. It is often useful in striving to test the facts of a particular case to express the test in various phrases. But such phrases are merely aids to solving the original question, and must not be allowed to dislodge the original words. Most of the erroneous arguments which are put before the courts in this branch of the law will be found to depend on disregarding this salutary rule."

Mr. MacEachern submitted that there were difficulties in placing reliance on judgments in cases determined prior to the commencement of these particular Regulations, especially those decided under reference to sections of the Factories Acts. As the foregoing admonition enjoined, the real question was what is the nature and import of Regulation 5(1). For what it was worth, he directed me to what might not unreasonably be described as the circular nature of the definition in Regulation 5(3) of the expression, "equipment, devices and systems."

Turning to the wording of Regulation 5(1), it was his submission that if I were to take his opponent's submission to its logical conclusion, then the only way in which a claim that employment in a particular workspace could be said not to be a breach of the Regulation, by being inefficient and therefore dangerous, would be if the operation were wholly discontinued. I think, perhaps, that involves just a little over-egging of the pudding, but it is difficult not to have some degree of sympathy for that response. In effect, he said, putting a gloss on his opponent's submission, it amounted to if it's broke, you're liable. In this context, he referred me to Stark v Post Office Corporation, for which he offered no further citation, in which, he said, the application of the Regulation was argued where a post-person suffered injury when a bicycle clip broke. I regret that, if he told me the outcome of that case, then I have failed to note it.

On his opponent's approach, any injury in the workplace would lead to liability being established, leaving quantum as the only issue. That seemed inconsistent with what he

described as Parliament's long held view that no fault liability should be resisted. A cynic, of course, might put that down to the success and influence of the insurance lobby. He submitted that absolute duties were "restricted to well defined circumstances." He did not attempt to catalogue these, however.

If the expression "efficient state" were to be interpreted so as to amount to "giving rise to no risk of injury," that would, in effect, be introducing no-fault compensation. That was not the intention of the legislature.

In the Galashiels case, the equipment had obviously failed. In the present case, there was no equipment failure and on this obvious basis the case could be distinguished.

So what did the phrase "in an efficient state" mean ? Mr. MacEachern felt obliged to have regard to the definition of "efficient" contained in Paragraph 20 of the Approved Code of Practice and to the definition of "maintained" contained in section 176 of the Factories Act, 1961 which was replicated in the words used in Regulation 5(1). But, he argued, if the expression "in an efficient state" when applied to a workplace meant the same as "maintained" in the Galashiels case there would be no requirement for sub-paragraphs (2) and (3) of Regulation (5). They would be unnecessary surplusage.

If that was correct, Mr. MacEachern submitted that brought him back to where he came in, namely, that we were entering uncharted waters. He argued that his opponent's submission would do away with any meaning for the word "maintained." The evidence in the present case described an operation that was carried out many times. There had been no previous similar accident. The evidence was that the production workers in this area were the most vociferous when it came to raising safety issues, but the process of transporting and depositing the product reels had not been the subject of any complaint. It could not be said to be the law merely because an isolated accident had occurred that the workspace was not in an efficient state. In any event, if the workspace had, in effect, as appeared to be being submitted, to be in an efficient state at all times, what was to be made of the word "maintained ?" Efficiency should be viewed objectively having regard to the normal use of the workspace and not ex post facto a particular accident.

Much should also turn, he submitted, on what view the court took about the level of instruction and training that the pursuer had received from the defenders and what his level of appreciation should have been as to how he ought to have retrieved the runaway reel. It was a reasonable inference from the evidence that there had been negligence on the part of the pursuer in his attempt to locate the reel. This was an operation repeated over and over and there should have been no difficulty in locating the reel in such a manner that it did not roll away. Had that been achieved, of course, the pursuer would not have required to dismount from his fork lift truck and walk in the cradle area at all. He was accordingly the author of his own misfortune.

Further, if he had followed instruction about only walking in designated safe walking routes, he would not have entered the cradle space and would not have encountered the bracket and sustained this injury.

Further, and in any event, the bracket was there to be seen and, if the pursuer had been exercising reasonable care for his own safety and maintaining a proper look-out, he would have seen the bracket and not walked into it causing himself injury.

At the very least, the foregoing failures by the pursuer all raised issues of contributory fault on his part. Both individually and in combination, these failures could properly be described as substantially, possibly meriting a finding of 100% contribution.

In a brief response, Mr. Bathgate referred me to the terms of the Council Directive 89/654 of 30^th. November, 1989, which was the Directive giving rise to the Regulations. The Directive was made under Article 118A of the Treaty of Rome, as amended, which permits the introduction of pan-EC health and safety provisions by qualified majority voting. It has, of course, been held that the provisions of European Directives are directly enforceable (cf. Marshall v South West Hampshire Health Authority [1986]Q.B. 401; Foster v British Gas Corporation [1991]I.C.R. 84. Similarly, in construing national legislation, the court is to consider the purpose of the Directive - cf Litster v Forth Dry Dock and Engineering Co. Ltd [1989] ICR 341. In this respect, Article 6 of the Directive is most instructive. It provides:-

" To safeguard the safety and health of workers, the employer shall see to it that:

I see nothing in Article 6 in particular, nor in the rest of the Directive or the two Annexes referred to, that leads me to the conclusion that it would be appropriate to regard the expression "maintained in an efficient state" as requiring to be construed in such a way as to mean "kept safe at all times," which would be necessary if Mr. Bathgate's submission were to be followed.

In my opinion, the intention of Regulation 5 is to achieve what is required by Article 6 of the Directive namely to require an employer to see to it that technical maintenance of the workplace is carried out, at appropriate intervals to a standard which eliminates fault. That is, for all practical purposes, the same standard as was held to apply in respect of the hoist in the Galashiels case which was the cause of the fatal accident, notwithstanding that no criticism could be directed to the quality of maintenance or recent operation of the hoist. Despite all the dangers inherent in adopting an interpretation which pre-dates the introduction of the Regulations, the use of the similar words in the Regulation as was used in the definition of "maintained" in both the 1937 and 1961 Acts, which cannot be merely coincidental, suggests to me that, at least so far as concerns equipment and devices, Regulation 5 intends that the standard i.e.an absolute duty of compliance, applies. But as Mr. MacEachern said, the Galashiels case is distinguishable on that very ground that it involves equipment. In my opinion, that submission gains strength from the use of the words "technical maintenance" in Article 6 of the Directive. One cannot technically maintain a bracket, except, perhaps, insofar as it may become loose and threaten to fall and cause injury if not tightened or, more to the point, cause what it is supporting to fall and cause injury. In the present case, the bracket was not supporting anything, nor, patently, was it loose.

I have little doubt that the bracket was a hazard and should have been recognised as such by an employer or occupier of premises exercising reasonable care to employees or persons who might reasonably be on the premises. A properly pled case at common law or under the Occupiers' Liability (Scotland) Act, 1960 might have been difficult to resist. However, the pursuer has chosen to peril his success in this litigation on the sole ground that there has been a breach of the statutory duty imposed upon his employers by Regulation 5(1). While I accept that the duty imposed by that Regulation is an absolute duty, I do not consider that a duty which requires that a workplace, which the location of the accident undoubtedly was, to be maintained in an efficient state, in efficient working order and in good repair is breached when an employer removes a shelf but does not also remove the redundant bracket which formerly supported that shelf. The presence of the bracket or the failure to remove it does not affect the efficiency of the state or working order of the workplace nor does it render it in a state of disrepair. As I say, I have little doubt that the bracket was a hazard, located as it was between four and a half and five feet above ground level in an area where employees such as the pursuer would only be walking occasionally, such as would render the workplace unsafe, but that is a different

For the avoidance of doubt, I should make it clear that I wholly discount any proposition that the pursuer was the author of his own misfortune either in respect of any negligence in locating the product reel or in not adhering to a designated walkway to achieve its recovery. I do not accept on the evidence that it is demonstrated on a balance of probabilities that the pursuer was negligent in depositing the reel in such a way that it ran away. This was a tricky operation - in respect of which I have little doubt that a much better and safer system could be designed by these employers with a little thought - and no matter how familiar the pursuer might be with it, that does not mean that the opportunity for occasional error or inaccuracy can be discounted or, worse still, inferred to amount to negligence. In any event, even supposing the act of deposit could be said to have been carried out in a negligent manner, I do not consider that any such negligence was causative of the accident in the direct way necessary for it to affect the outcome. Employers must have regard to the possibility that their employers may occasionally act negligently and still not create traps which will cause them injuries. Whether the pursuer lost the reel negligently or accidentally, the evidence was that he would be expected to retrieve it, and the danger only arose in the context of that act of retrieval.

Similarly, with regard to the use of walkways, I entirely accept that in a manufacturing unit where major industrial operations are taking place, it would normally be a strong indication of negligence if an employee, particularly one of long standing familiar with the rules applied on the premises, was casually wandering around the premises ignoring the designated walkways but that is so far removed from the situation here as to be wholly discountable. The pursuer walked where he did as it was the shortest and most direct route to the reel which had rolled away from the position in which he had intended to locate it. By definition, the place where it should have been was empty. There was no evident risk associated with venturing there at that time. He was the only fork lift driver who was going to try to deposit anything there. And so he did the natural thing.

Had I favoured the submission on behalf of the pursuer, I would have considered that there had been a degree of contributory fault in his failure to observe the presence of the bracket especially given that it was close to eye level. I accept that the pursuer was distracted by the whole incident, which, sadly, he was thinking he had successfully righted, and that he had to squeeze past the recovered reel to get back to his fork lift truck. Nonetheless, I think he is to a small extent, which I would assess at no greater than 25%, to blame for failing to observe the hazard. Were I otherwise able to find in his favour, I would have found him at fault to that extent.

I have indicated at the outset the agreement happily concluded by parties on quantum and need say nothing further on the topic.

Finally, I have reserved all questions of expenses arising out of these proceedings to enable

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	Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> RONALD McNAUGHTON v. MICHELIN TYRE PLC [2001] ScotSC 2 (19th January, 2001) URL: http://www.bailii.org/scot/cases/ScotSC/2001/2.html Cite as: [2001] ScotSC 2

Scottish Sheriff Court Decisions

RONALD McNAUGHTON v. MICHELIN TYRE PLC [2001] ScotSC 2 (19th January, 2001)