Charles Ashbridge V. Christian Salvesen Plc
| Jurisdiction | Scotland |
| Judge | Lord Glennie |
| Neutral Citation | [2006] CSOH 79 |
| Date | 18 May 2006 |
| Docket Number | PD185/05 |
| Court | Court of Session |
| Published date | 18 May 2006 |
| 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: ________________ |
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 £12,500, 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 85°C. 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 85°C. 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....
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