Cullen v North Lanarkshire Council
| Jurisdiction | Scotland |
| Judgment Date | 06 February 1998 |
| Date | 06 February 1998 |
| Docket Number | No 47 |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION
Lord Johnston
ReparationNegligenceEmployers' liabilityBreach of statutory dutyManual handling operationsDuty to avoid need to undertake manual handlingRisk of injuryWhether pursuer had to show risk of injury arose from imposition of loadManual Handling Operations Regulations 1992 (SI 1992/2793), reg 4(1)1
Regulation 4(1) of the Manual Handling Operations Regulations 1992 provides, inter alia, that each employer shall (a) so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured; or (b) where that is not reasonably practicable, he shall make a suitable and sufficient assessment of all such manual handling operations to be undertaken by his employees.
The pursuer was injured whilst working at the defenders' depot. He was unloading pieces of fencing from the back of a pick-up truck while standing on top of the fencing. When he was holding a section of fencing above his head in order to throw it into a skip, he caught his heel on some of the fencing material and fell backwards. There was no suggestion that the section of fencing which the pursuer was holding above his head was of excessive weight either in itself or when taken with other ergonomic factors. The Lord Ordinary (Johnston) rejected the pursuer's case under reg 4(1) on the ground that the work in which the pursuer was engaged did not give rise to a risk of injury from the imposition of a load. The Lord Ordinary also observed that even if the risk of injury had been established, the pursuer's case would have failed for want of a sufficient risk requiring a risk assessment to be carried out by the defenders. The pursuer reclaimed.
Held (rev judgment of Lord Johnston) that in order to establish a duty under reg 4(1) it was not necessary for the pursuer to show that the risk of injury was a risk arising from the imposition of a load; and reclaiming motion allowed.
Observed (1) that for there to be a risk of injury, injury need not be more than a foreseeable possibility; and (2) a duty to make a risk assessment would only have arisen if the defenders had demonstrated that it was not reasonably practicable for them to avoid the need for the pursuer to undertake the manual handling operation.
Garry Stewart Cullen brought an action against his employers, who were the defenders' statutory predecessors, in which he claimed damages arising from an accident which he sustained whilst acting in the course of his employment with them. The grounds of fault included,inter alia, a breach of reg 4(1) of the Manual Handling Operations Regulations 1992.
The cause called for proof before answer before the Lord Ordinary (Johnston).
At advising, the Lord Ordinary assoilzied the defenders.
The pursuer reclaimed.
Case referred to:
Anderson v Lothian Health Board 1996 RepLR 88
The cause called before the Second Division, comprising the Lord Justice-Clerk (Cullen), Lord Coulsfield and Lord Wylie, for a hearing on the summar roll.
At advising, on 6 February 1998, the opinion of the court was delivered by the Lord Justice-Clerk (Cullen).
Opinion of the CourtOn or about 3 August 1983 the pursuer sustained an accident in the course of his employment with Motherwell District Council, the defenders' statutory predecessors, at a depot at Range Road, Motherwell.
The facts of the case are in short compass. The pursuer, whose account was accepted by the Lord Ordinary as substantially accurate, gave evidence that he was employed as a fencer, working in various estates of his employers repairing and replacing garden and other fencing. At the time of the accident he was working on the back of a pick-up truck, which was an open platform surrounded by capes and the tailgate, each of which was capable of being lowered. The base of the platform was about three feet above ground level; and the top of the cape about five feet. The truck had been used to bring old fencing to the depot. The fencing consisted of slats of wood three inches apart with wires between them...
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