Scottish Sheriff Court Decisions

Case Reference No: A3867/04

 

JUDGMENT BY SHERIFF MHAIRI M STEPHEN

 

in the case of

 

IAN ALEXANDER FRASER,

 

PURSUER

 

against

 

THE ROYAL MAIL GROUP,

 

DEFENDERS

 

 

 

 

 

 

Act: Stead, Solicitor

Alt: Hancock, Solicitor

 

 

EDINBURGH, 5 April 2006

 

The Sheriff, having resumed consideration of the cause, repels the first plea-in-law for the defenders, thereafter, before answer, allows the parties a proof of their respective averments on a date or dates to be afterwards fixed; finds the defenders liable to the pursuer in the expenses occasioned by the debate.

 

 

 

 

NOTE:-

 

In this action the pursuer claims damages from the defenders, his employers, in respect of injury sustained to his left elbow and to the middle finger of his left hand following upon an accident in the course of his employment on or about 6 October 2001 at the defenders' sorting office at Peebles.

 

The pursuer says he was making deliveries using a 600 van which had a hydraulically operated tailgate at the rear. The tailgate, when unfolded into the horizontal position forms a bridge or ramp between the platform of the van and the loading bay. Apparently, the hydraulic operation of the tailgate is to raise or lower the tailgate to the correct level to link with the loading bay, no doubt as the height of loading bays vary from place to place. Once at the correct level the driver/operator requires to manually open the tailgate "by unfolding it outwards. It requires to be moved from a vertical to a horizontal position."

 

The pursuer's averments relating to the mechanics of his accident and resulting injury are found in condescendence 2 as follows:-

 

"At the material time the pursuer was in the process of closing the tailgate, having completed his delivery. As he was folding over the tailgate from a horizontal to vertical level suddenly, and without warning, the middle fingers on the pursuer's left hand became trapped between the folded flaps of the tailgate. The pursuer immediately pulled his left-hand arm backwards in effort to release his finger. As he did so his left elbow struck a York container positioned behind him. The pursuer suffered the loss, injury and damage hereinafter condescended upon."

 

The pursuer expands upon his loss and injury in condescendence 6.

 

In condescendence 5 the pursuer avers that the closure of the tailgate was a manual handling operation within the meaning of regulation 4 of the Manual Handling Operations Regulations 1992.

 

The defenders direct their criticism of the pursuer's case against them on these averments as follows:-

 

1. The duties being undertaken by the pursuer on the date of the accident not being a manual handling operation within the meaning of the Manual Handling Operations Regulations 1992, the pursuer's fifth article of condescendence is irrelevant and should not be admitted to probation.

 

2. In any event the losses claimed by the pursuer are too remote and accordingly decree should not be granted as craved.

 

I will deal with these criticisms in turn.

 

1. MANUAL HANDLING OPERATIONS REGULATIONS 1992

 

Regulation 4 provides:

 

"(1) Each employer shall .....

 

(a) so far as is reasonably practicable avoid the need for his employers 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, having regard to the factors which are specified in Column 1 of Schedule 1 to these Regulations and considering the questions which are specified in the corresponding entry in Column 2 of that Schedule.

 

ii take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operation to the lowest level reasonably practicable ......"

 

Regulation 2 provides:

 

(1) In these Regulations, unless the context otherwise requires -

 

"injury" does not include injury caused by any toxic or corrosive substance which -

 

(a) has leaked or spilled from a load;

(b) is present on the surface of a load but has not leaked or spilled from it; or

(c) is a constituent part of a load;

and

"injured" shall be construed accordingly;

"load" includes any person and any animal;

"manual handling operations" means any transporting or supporting of a load (including the lifting, putting down, pushing, pulling, carrying or moving thereof) by hand or by bodily force.

 

Mr Hancock, for the defenders, asked me to sustain his first plea-in-law by finding the averments relating to breach of the Manual Handling Operations Regulations 1992 irrelevant and striking them from the pleadings.

 

Firstly it was the defenders' submissions that the pursuer's pleadings did not disclose the use of a "load" as defined in the Manual Handling Operations Regulations.

 

I was referred to the guidance notes issued by the Health and Safety Executive relating to the 1992 regulations where "load" is defined in paragraph 23:

 

"23. A load in this context must be a discrete moveable object. This includes, for example, not only packages and boxes but also a patient receiving medical attention, 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, fire hose or breathing apparatus is not considered to be a load when in use for its intended purpose."

 

His submission in essence was that the tailgate which was being closed at the time of the injury was not a load as defined in the Regulations, as it was hinged to a 6 tonne vehicle. The Regulations, in his submission, contemplate injuries as a result of handling a discrete moveable object which this was not.

 

I was referred to various authorities which are binding. McIntosh -v- City of Edinburgh Council, 2003 SLT 827; King -v- ~Carron Phoenix, Opinion of Lord Kingarth 26 January 1999; and Divit -v- British Telecommunications plc, Opinion of Lord Cameron of Lochbroom, unreported, 20 February 1997.

 

Lord McEwan in McIntosh held that a "ladder" which had been used to gain access to a roof in need of repair could also be a "load" when being handled and dismantled. "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.": at page 830, para [22].

 

Lord Kingarth in King - after proof before answer dealing with a claim for damages for tennis elbow allegedly caused by repeated use of a spanner to tighten and loosen nuts - states at page 6 - "In my view as a matter of ordinary language, and in the context of the regulations, although the pursuer was no doubt involved in pushing and pulling when working with the spanner, it could not be said that he was involved in the transporting or supporting of a load."

 

However Mr Hancock accepted that the authority on the Regulations which at first blush may appear closest to the circumstances of this case was Divit -v- British Telecommunications plc decided by Lord Cameron of Lochbroom in February 1997. In that case, the pursuer in the course of his employment, was effecting a repair in a telephone box - replacing a door closer. He required to open and close a hinged flap to do so. As he closed the flap he lacerated his hand on the edge of the flap which was razor sharp.

 

In dealing with the defenders' submission that there were insufficient averments of fact to hold that this was a manual handling operation Lord Cameron held at page 5 "I do see why a "load" could not comprehend something which was secured by a hinge to another thing, but which could be, and was to be pushed, pulled or moved by hand or bodily force from one position to another around the hinge, which movement could constitute the action of transporting or supporting as defined in Regulation 2(1). Equally I do not consider that the defenders' submission that the injury must arise immediately and directly in relation to the strain or force involved in the handling of the load is consistent with the terms of the Regulations."

 

However I was asked to distinguish Lord Cameron's decision in Divit for a number of reasons - (one) he had not been directed to the guidelines; (two) the nature of the injury - in Divit a cutting injury, here a slamming injury to the fingers resulting in an elbow injury. These consequences being outwith the mischief sought to be addressed in the Regulations; (three) The concession which might disapply the Regulations stated on page 6 of Lord Cameron's Opinion. "On the other hand it may be that the cause of the injuries were wholly unrelated to the course of the handling operation itself notwithstanding that at the time the worker is engaged upon it as was held in Cullen, so as to take the accident outside the ambit of the Regulations."

 

I was urged to prefer the decision in King -v- Carron Phoenix as being truly closer in nature to the mechanics of this injury. It was accepted that I should adopt a broad commonsense interpretation favoured by Lord McEwan in McIntosh and Lord Kingarth in King and as suggested in the guidance notes which were not cited in Divit.

 

The second part of the defenders' submission on the Regulations and why they should be disapplied here related to the "risk of injury". It was submitted that here there was no foreseeable risk. I was referred to Cullen -v- North Lanarkshire Council, 1998 SC 451. It was submitted that there was no foreseeable risk of the particular injury sustained by the pursuer from the operation upon which he was engaged.

 

In reply, Mr Stead, for the pursuer, accepted that before the Regulations could apply the tailgate had to be a "load" which the pursuer was transporting or supporting.

 

I was reminded that the pursuer avers that the pursuer is required to manually open and close the tailgate and that the pursuer's averment of fact support this being a load.

 

Mr Stead pointed out that the guidance notes are demonstrative but not binding as are the Outer House decisions.

 

It was submitted on behalf of the pursuer that the dicta of Lord Cameron of Lochbroom in Divit was in point and that I should come to the same view and allow a proof before answer. It was submitted that King -v- Carron Phoenix was special on its own facts relating as it did to, effectively, a repetitive strain injury over a period of employment.

 

Dealing with the risk of injury it was submitted on behalf of the pursuer that the defenders' own answer 3 states "The defenders carried out risk assessments in relation to the vehicle and the tailgates. The risk assessments provided that the vehicle and tailgate was low risk provided that the employees operating them followed training given." These risk assessments related to the risks to employees' health and safety.

 

I was reminded that in Cullen -v- North Lanarkshire Council the Court approved the Opinion of Lord McFadyen in Anderson -v- Lothian Health Board "For there to be a risk of injury, injury need be no more than a foreseeable possibility; it need not be a probability." I was also reminded that the risk of injury does not require to arise from the imposition of a load simply from the mere undertaking of the manual handling operation. In these circumstances commonsense would indicate that closing one piece of metal on to another clearly involves a risk of injury.

 

In conclusion Mr Stead submitted that the pursuer had sufficiently averred facts to place this operation and subsequent injury within the ambit of the 1992 Regulations and that the defenders' first preliminary plea should be repelled and a proof before answer allowed on the remaining pleas.

 

DECISION

 

Having considered the Regulations it seems clear that in order for the pursuer to establish that the defenders were in breach of their statutory duty in terms of Regulation 4(1) of the Manual Handling Operations 1992, the pursuer requires to satisfy a two stage test - (one) that the operation undertaken by the pursuer is a manual handling operation in terms of the definition and (two) that the operation involved a risk of the pursuer being injured.

 

Brief consideration of the title of the Regulations in itself gives some assistance. These are not manual lifting regulations, but manual handling operations regulations. This would indicate that the legislation is designed to cover a much wider range of hazards arising in the course of employment, and not merely designed to deal with the mischief of lifting heavy or hazardous loads. It is interesting to consider Regulation 2 which deals with definition. The terms "injury" encompasses all types of injury with only certain exceptions which are enumerated, otherwise injury seems to be unlimited.

 

"Manual Handling Operations" means any transporting or supporting of a load (including the lifting, putting down, pushing, pulling, carrying or moving thereof) by hand or by bodily force. That definition points to the interpretation of the word "load" as being of crucial importance. Some assistance is given in that definition, other assistance can be drawn from the authorities to which I was referred and of course there are guidance notes.

 

I have set out what the guidance notes say about a load. I think it is of considerable importance to look at the last sentence which states, in effect, that an implement, tool or machine is not a load "when in use for its intended purpose".

 

That seems to be echoed in Lord McEwan's decision in McIntosh at page 830, paragraph [22] "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 did not seem to me to matter. A Manual Handling Operation is relevantly averred".

 

Earlier in the same paragraph his Lordship states: "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."

 

Therefore, clearly, the meaning of Regulation 2 shows that the definition of "load" and "Manual Handling Operation" gives examples by using the words "includes" and "including".

 

It is not difficult to find in the pursuer's averments of fact support for this being a Manual Handling Operation - such as the pursuer folding over the tailgate from a horizontal to a vertical level. The requirement to move the tailgate from a vertical to a horizontal position (and vice versa) - the requirement to fold and enfold two hinged pieces of metal.

 

Likewise it is not difficult to see that this case, and the circumstances of the accident averred, come to rest within Divit territory. Lord Cameron rejected the submission that for the purposes of the regulations a load could only be something that was free to move without any attachment or connection to some other thing. He considered that a "load" could comprehend something which was secured by a hinge to another thing but which could be and was to be pushed, pulled or moved by hand or bodily force from one position to another around the hinge.

 

The position adopted by Lord Cameron seems entirely in point here and I agree that the movement and task described by the pursuer in his second condescendence could constitute the act of transporting or supporting a load as defined in Regulation 2(1) such as to place the task within the ambit of the Manual Handling Operations Regulations 1992. Accordingly I find that the pursuer has relevantly averred facts which could constitute a Manual Handling Operation. Obviously that can be best determined after the pursuer's averments of fact are put to proof.

 

The second hurdle or test which the pursuer requires to overcome in order to plead a relevant case under the Regulations is in respect of the risk of injuries. There has to be a foreseeable possibility of injury, not a probability. In my view it would be restrictive and naïve to suggest that the manoeuvring of a tailgate on a 6 tonne vehicle through 90° could be without a foreseeable risk of injury. The tailgate being two pieces of metal connected by a hinge.

 

In these circumstances I consider that the pursuer is entitled to a proof before answer in respect of his case against the defenders based upon the 1992 Regulations.

 

REMOTENESS OF DAMAGE

 

The second attack on the pursuer's pleadings related to the averments in condescendence 6 relating to the injury sustained by the pursuer to his left elbow. It is averred in condescendence 2 that that injury occurred when the pursuer pulled his left-hand arm backwards to release his finger which was about to be trapped and the pursuer goes on to state "as he did so he (his) left elbow struck a York container positioned behind him". The pursuer goes on to aver his loss and injury in condescendence 6. It is clear that the significant injury relates to his left elbow.

 

Mr Hancock, for the defenders, referred me to the well known authority of Allan -v- Barclay, (1864) 2M 873. He referred to the well known passage from Lord Kinloch's Opinion at page 874 "The grand rule on the subject of damages is, that none can be claimed except such as naturally and directly arise out of the wrong done; and such, therefore, as may reasonably be supposed to have been in the view of the wrong-doer. Tried by this test the present claim appears to fail. The personal injuries of the individual himself will be properly held to have been in the contemplation of the wrong-doer. But he cannot be held bound to have surmised the secondary injuries done to all holding relations with the individual, whether that of a master or any other." The question of remoteness of damage is returned to in the case of Cowan and Others -v- NCB, 1958 SLT (Notes) 19. The rather tragic circumstances of that case involved a workman sustaining an injury to his left eye in the course of his employment with the defenders. The deceased sustained an injury to his eye and subsequently developed a depressive condition to such an extent that he committed suicide some three and a half months later. The widow sought to hold the employer responsible for his death resulting in a lengthy discussion of whether the death of the workman was a foreseeable consequence of the accident causing the injury to his eye. It was held that the defenders could only be responsible for the natural and direct consequences of the original injury.

 

That, of course, is a rather extreme case. Mr Hancock submitted that this case should have a similar result, namely that the pursuer's act of striking his left elbow on the York container was in effect a "novus actus".

 

As the pursuer does not say that the injury to his left elbow was a foreseeable consequence of the original accident therefore the averments of the injury to the elbow fall to be struck out.

 

The injury to the left elbow should, in effect, be construed as a second accident and if the pursuer seeks to recover damages from the defender he requires to set out separately the circumstances which he considers point to the defenders being at fault for that second accident as the pursuer's pleadings are deficient in that regard the averments relating to the injury to the elbow or the lateral epicondyle and should be taken out and not remitted to probation.

 

In support of his submissions I was also referred to the Stair Encyclopaedia and McKew -v- Holland and Hannan and Cubitts (Scotland) Ltd, 1970 SC (HL) 20 - Lord Reid at page 25 "A defender is not liable for a consequence of a kind which is not foreseeable. But it does not follow that he is liable for every consequence which a reasonable man could foresee. What can be foreseen depends almost entirely on the facts of the case, and it is often easy to foresee unreasonable conduct or some other novus actus actus interveniens as being quite likely. But that does not mean that the defender must pay for damage caused by the novus actus.

 

In reply Mr Stead referred to the same authorities and also Kelvin Shipping Co -v- Canadian Pacific Railway Co, 1928 SC (HL) 21.

 

It was submitted on behalf of the pursuer that what was averred on his behalf amounted to one episode with the injury arising in two stages, the initial injury and further injury when the pursuer reasonably sought to avoid more severe injury to his fingers when they became trapped.

 

Again the pursuer submitted that it was not proper to look at the averments of fact at this stage without hearing evidence and that the test of reasonable foreseeability could only be applied in the circumstances of this case after enquiry. Reading from the Stair Encyclopaedia "In respect of the cases where the injured person responds at some point to a physical defect which constitutes the initial item of harm, there is liability on the part of the defender for further harm caused by the pursuer's response unless the pursuer's conduct amounts to a novus actus interveniens. In cases where the pursuer is further injured in his immediate response to an accident brought about by the defenders' negligence, as in a case of a ship or other collision, there appears to be a presumption that the defender is liable for further damage arising from the pursuer's response. If the pursuer's subsequent conduct is reasonable then because such conduct forms part of the ordinary course of things it will not constitute a novus actus interveniens." According to Mr Stead that is exactly what occurred here and that if the pursuer pleads he has acted reasonably the defender is responsible or liable.

 

This is also a case where the pursuer's immediate response caused further injury for which the defenders ought to be liable.

 

My view on the issue of remoteness is that the pursuer's averments relating to the mechanics of injury are such that if proved appear to form a continuous and immediate chain of events. The circumstances averred appear to me to be an immediate reaction to an accident or injury whereby the pursuer says that his fingers were trapped or at risk of being trapped between a heavy hinged metal tailgate. The pursuer's reaction to withdraw his hand, even with some force, seems entirely within the range of the actions which one would expect from a reasonable employee faced with that situation. I have little difficulty in holding that this injury to the left elbow fell within the immediate ambit of the original allegedly negligent act. That being the case there is no need for the pursuer to make out a separate case in negligence against the defenders, the compounding injury to the left elbow simply being a further consequence of the original act of negligence. Again this has to be looked at from a commonsense point of view and the facts averred are so close in time to the original act of negligence averred that it would be improper to prevent the pursuer bringing evidence to Court to seek to prove that these indeed were the foreseeable consequences of an employee, acting reasonably.

 

It would be unduly restrictive to disbar a pursuer in these circumstances from seeking to prove that the subsequent injury was brought about by the original act of negligence and was an immediate reasonable reaction to the original wrong-doing.

 

To decide this issue any other way would be both unnatural and prejudicial to this pursuer and to any other pursuer placed in a situation where he is facing actual or imminent danger or injury. For instance, if an employee came into contact with a very hot surface and drew his hand backwards quickly and struck a metal pillar damaging his wrist or encountered an explosion, and turning quickly to flee tripped over another piece of equipment, it would be wrong to hold that these injuries constituted a novus actus interveniens and therefore not the consequence of the original burning injury or explosion, at least without enquiry into the facts.

 

In this case the pursuer is entitled to the opportunity of proving or demonstrating to the Court that his reaction was a reasonable reaction to the original harm caused to him.

 

The authorities cited are old, well respected and binding authorities on the question of foreseeability and remoteness of damage. I am reminded of the well known principles on foreseeability. However it is difficult to see in the averments of fact a novus actus interveniens but should I be mistaken about that it is also, in my view, premature to disallow the pursuer the opportunity to prove, before answer, that his actings and reactions were reasonable and that the injuries which befell him arose from the alleged negligent act and were, or ought to have been reasonably foreseeable to his employers, the defenders. Accordingly, in my view, the proper course is to allow a proof before answer on the pleadings as they currently stand.

 

I will therefore repel the first plea-in-law for the defenders being a preliminary plea. I will allow a proof before answer. I note from the interlocutor following the Options Hearing that the pursuer offered a proof before answer and that the defenders have insisted on debating their preliminary plea. In these circumstances the defenders having failed to persuade me that any part of the pursuer's pleadings should not be remitted to probation I will allow the pursuer the expenses of the debate he having retained his pleadings intact for a proof before answer.