David Taylor V. City Of Glasgow Council
| Jurisdiction | Scotland |
| Judge | Lord Marnoch,Lord Reed,Lord Carloway |
| Date | 30 April 2002 |
| Docket Number | A2077/01 |
| Court | Court of Session |
| Published date | 20 May 2002 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Marnoch Lord Reed Lord Carloway
| A2077/01 OPINION OF LORD MARNOCH in RECLAIMING MOTION in the cause DAVID TAYLOR Pursuer and Reclaimer; against CITY OF GLASGOW COUNCIL Defenders and Respondents: _______ |
Act: Mackay QC, RG Milligan; Digby Brown SSC (Pursuer and Reclaimer)
Alt: Ivey QC, Lloyd; HBM (Defenders and Respondents)
30 April 2002
[1]I have had the advantage of reading in advance the Opinion about to be delivered by Lord Carloway and I agree that this Reclaiming Motion should be allowed and the matter disposed of in the manner proposed by him.
[2]The short ground on which I base my own opinion is that, in common with both of your Lordships, I consider that even on the Lord Ordinary's own approach (with which I, myself, happen to agree), if account is taken of the ergonomics of the manoeuvre on which the pursuer was engaged, it cannot be said that the pursuer's averments do not warrant at least a proof before answer on the question of whether that manoeuvre involved a foreseeable risk of injury and thus fell within the ambit of Regulation 4(1)(a) of the Manual Handling Regulations 1992.
[3]As to the wider issues canvassed in the course of the Reclaiming Motion I am indebted to Lord Carloway for setting out so clearly the background to the legislation with which we are concerned in this case. In the result, it seems to me beyond question that Regulation 4 of the Manual Handling Regulations 1992 envisages that employers should draw up some sort of scheme or system of work which is designed to avoid, failing which minimise, the risk of injury from manual handling operations. In terms, therefore, of the duties arising under Regulation 4(1)(a) I agree with Lord Carloway that the Regulation cannot always be applied, as it were, directly to the particular circumstances in which injury from a manual handling operation is sustained. Of course, if an employee is injured while engaged on an operation or in a manner which should have been, but which was not, specifically prevented by the scheme, the causal link between breach of duty and injury will clearly be established. Where, however, the employee is injured while engaged on an operation arising casually in the course of general labouring duties, then it seems to me that the particular operation or method employed can only fall within a genus of operation or method which it is claimed should have been so prevented. In the present case, for example, had the question arisen, I would have been satisfied that the moving of furniture was clearly a type of operation which should have been foreseen as likely to occur and as involving a risk of injury with the result that it should have been guarded against in the sort of scheme which I have envisaged. Lord Carloway takes the view that "risk of injury", in this context, entails little more than the factual occurrence of an injury. I well understand the desirability of this approach since it is otherwise arguable that the effect of these and comparable Regulations will be to reduce, rather than increase, the protection previously afforded to the workforce, e.g. by Section 29(1) of the Factories Act 1961 and by other similarly expressed statutory provisions. However, with all due respect to his Lordship, I doubt whether the legislation here in question will bear that construction. The effect of such a construction, it seems to me, would be to read the phrase "which involve a risk of their being injured", where it appears in Regulation 4(1)(a) of the Regulations, as if it were synonymous with "which result in their being injured", a meaning which would deprive the words used of any real effect. More importantly, precisely the same phrase is used in Regulation 4(1)(b) where it seems to me even clearer that only a prospective meaning can be intended. In that respect I respectfully agree with all that is said by Lord Reed.
[4]It has been necessary for me to set out the foregoing views because, as a Court, we are divided on what seems to be the proper construction of Regulation 4(1)(a) and, in particular, on the question of how far, if at all, it involves actual foreseeability on the part of the employer. It is, however, of some comfort that, despite differences in our reasoning, we are agreed as to the proper outcome of this Reclaiming Motion.
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Marnoch Lord Reed Lord Carloway
| A2077/01 OPINION OF LORD REED in RECLAIMING MOTION in the cause DAVID TAYLOR Pursuer and Reclaimer; against CITY OF GLASGOW COUNCIL Defenders and Respondents: _______ |
Act: Mackay QC, RG Milligan; Digby Brown SSC (Pursuer and Reclaimer)
Alt: Ivey QC, Lloyd; HBM (Defenders and Respondents)
30 April 2002
[1]The background to the present reclaiming motion, and the legislation with which it is concerned, are set out in the Opinion about to be delivered by Lord Carloway. I gratefully adopt his account of those matters. As appears from that account, the pursuer in the present case is seeking to establish a case against the defenders under regulation 4(1)(a) of the Manual Handling Operations Regulations 1992. It may be convenient if I quote at the outset the terms of regulation 4(1):
"4.-(1)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 it is not reasonably practicable to avoid the need for his employees to undertake any manual 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 operations to the lowest level reasonably practicable, and
(iii)take appropriate steps to provide any of those employees who are undertaking any such manual handling operations with general indications and, where it is reasonably practicable to do so, precise information on -
(aa)the weight of each load, and
(bb)the heaviest side of any load whose centre of gravity is not positioned centrally."
[2]In the present case, the pursuer offers to prove that he was injured while undertaking a manual handling operation at work, and that his injury was caused by the defenders' breach of regulation 4(1). It is conceded by the defenders that the pursuer does not require to offer to prove that it was reasonably practicable for his employer to avoid the need for employees to undertake that operation: the issue of reasonable practicability is accepted to be one which it is for the employer to raise, if appropriate, by way of a defence to an action based on regulation 4(1)(a). No such defence is raised in this action. The central issue at this stage of the present case is therefore what, if anything, the pursuer has to offer to prove in order to establish that the employer was in breach of his duty, so far as 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. The Temporary Judge dismissed the action on the ground that the pursuer's pleadings did not specify any matters on the basis of which it might be established that there was a foreseeable possibility of the pursuer's being injured while undertaking the particular operation in the course of which he claims to have been injured. The discussion before this court focused on the question whether a "risk" had to be a foreseeable possibility, and, if so, the further question whether the foreseeability of injury had to be assessed in relation to the specific circumstances of the operation being undertaken at the time when an injury is said to have occurred.
[3]Regulation 4(1)(a) has a deceptive air of simplicity. Giving the word "risk" its ordinary meaning, it generally means a hazard or danger. A risk, as it seems to me, can be either foreseeable or unforeseeable. Some risks can be appreciated in advance; others are only apparent with the benefit of hindsight. This is familiar enough in such fields as product liability and medical law (see e.g. the well-known case of Roe v Minister of Health [1954] 2 Q.B. 66 for an illustration). Unless giving the word "risk" its ordinary meaning were to lead to a difficulty in the context of the regulation, I would incline to the view that it ought to be given its ordinary meaning, without reading in "foreseeable". If one were to adopt that approach, then the words "operations at work which involve a risk of being injured" would apply whenever a risk of injury was inherent in an operation undertaken at work: if a risk were inherent in an operation, then the operation must "involve" that risk. Following that approach, if an employee were actually injured in the course of undertaking an operation, then that very fact would usually demonstrate that there was indeed a risk of injury involved in the operation, unless the injury were due not to a risk involved in the operation itself but to some extraneous circumstance.
[4]The approach which I have summarised appears to me to have certain attractions. It would give the word "risk" what I would be inclined to regard as its ordinary meaning. It would give regulation 4(1)(a) a meaning and effect which were relatively straightforward, "risk" being something which would usually be capable of being inferred from the occurrence of injury. It would not, however, render the employer an insurer, inevitably liable whenever an injury occurred, since his duty would be only to avoid operations involving risk "so far as reasonably...
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