Elizabeth Gilchrist Against Asda Stores Limited
| Jurisdiction | Scotland |
| Judge | Lady Stacey |
| Neutral Citation | [2015] CSOH 77 |
| Court | Court of Session |
| Published date | 17 June 2015 |
| Year | 2015 |
| Date | 17 June 2015 |
| Docket Number | PD1336/14 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 77
PD1336/14
OPINION OF LADY STACEY
In the cause
ELIZABETH GILCHRIST
Pursuer;
against
ASDA STORES LIMITED
Defenders:
Pursuer: Galbraith; Digby Brown LLP
Defenders: Thomson; BLM
17 June 2015
[1] This is an action for damages following personal injury. Quantum has been agreed at £14,000. The pursuer is Mrs Elizabeth Gilchrist. The defenders are Asda Stores Ltd. Ms Galbraith appeared for the pursuer and Mr Thomson for the defenders.
[2] The pursuer’s pleadings are to the effect the pursuer was employed by the defenders as a shop assistant in their store in Coatbridge. She was instructed to hang clothing up in the shop. The defenders provided her with a dalek style footstool to allow her to reach high racks. It was of circular construction, 18 inches in height. It has a single step located in the middle and a flat surface on top. The top surface of the dalek was not large enough to allow tasks of work where foot movement was required. The pursuer was standing on the dalek to hang clothes on hooks which were approximately 7 feet off the floor. She was 5 feet tall. The pursuer had to raise both arms to hang clothing, described as “an awkward manoeuvre”. It was stated that:
“Whilst the pursuer was standing on the footstool she lost her balance and fell backwards”.
Further:
“It was reasonably foreseeable that employees such as the pursuer could become unbalanced and fall when required to undertake a manual handling task and move around while standing on top of the platform”.
The pursuer’s averments were adjusted prior to the proof by deleting the following:
“Whilst the pursuer was standing on the footstool and reaching to hang items of clothing she lost her balance and fell backwards”.
In substitution the following was inserted:
“Whilst the pursuer was standing on the footstool she lost her balance and fell backwards”.
In the averments of duty it is stated:
“They [the defenders] knew or ought to have known that manual handling at height will require movement which will increase the risk of injury. They knew or ought to have known that requiring employees to stand on a dalek platform to carry out the manual handling task of hanging clothes presented a risk of falling. They knew or ought to have known that the pursuer was only 5 feet tall, and would have to raise her arms above her and reach to hang clothing, which may cause her to lose her balance”.
[3] The averments of fault are that the defenders had to provide the pursuer with safe working equipment. They knew or ought to have known that manual handling at height will require movement which will increase the risk of injury. They knew or ought to have known that requiring employees to stand on a platform to carry out manual handling tasks presents a risk of falling. They knew that she was 5 feet tall and that she would have to raise her hands above her head which may cause her to lose her balance. They should have provided safer access to shelving with sound foot and hand holds. An adequate risk assessment would have highlighted these risks.
[4] The defenders’ averments admitted that the pursuer was provided with a dalek stool, which it was claimed was suitable for the task in hand. It is averred that the pursuer was stepping off the stool when she tripped on her feet and fell catching her ankle. The pursuer is called on to aver if she was moving her feet when she fell, and if she was carrying any clothing.
[5] The only witness was the pursuer. Her evidence was that on 3 December 2013 at around 11a.m. she was working at her job as an assistant in the clothes department of the defenders’ shop in Coatbridge. She had been told take packets of clothing from the store room and hang the packets up on racks in the public part of the shop. This was a task she had performed many times. The defenders provided the pursuer with a dalek stool to enable her to reach the racks on which the clothes were hung for display. She described it as set out in her pleadings, of circular construction and approximately 18 inches high. It has a single step located in the middle of the footstool and a flat surface on top. The top surface was not large enough to allow her to move around. It was usually referred to as a “dalek”, a name used because of its shape which is reminiscent of the robot known as a dalek in the well-known television programme.
[6] The pursuer was standing on the flat top surface of the footstool to hang clothing on hooks located at a height of approximately 7 feet from the ground. She is 5 feet in height. When she had finished hanging the clothes she stepped off the stool, and fell backwards while doing so. She said that somehow she caught her foot. There was no handrail that she could grab to save herself from falling. The pursuer thought that she had several seconds when she knew she was falling; it was suggested to her in cross examination that her fall must have taken place in a second, not several seconds. She did not agree. I accept the pursuer as a credible witness who did her best to tell the truth in a straight forward way; however I do not accept that the pursuer is reliable in thinking that several seconds passed between her losing her footing and landing on the ground. I find that it must have happened in the space of about one second. The pursuer thought that had there been a hand rail she could have grabbed it and saved herself from falling. When she fell she had completed her task of hanging the clothes up, and so her hands were empty. The pursuer told a supervisor that she was stepping off a footstool when she tripped on her feet and fell off catching her ankle.
[7] The evidence of the pursuer was clear to the effect that the fall was nothing to do with her having to reach above her head to put clothes onto racks. She had completed that work before she fell. Her fall happened when she was stepping backwards off the stool and she fell for no reason she could explain; it was just an accident in which she lost her footing.
[8] The parties entered into a joint minute which agreed evidence about medical records and wage records, and also agreed that a photograph of a dalek stool similar to the one off which the pursuer fell is shown in a report lodged for the pursuer. In the same report another photograph shows a set of airport steps, provided by the defenders in the grocery department of the shop. The significance of the photographs is that the dalek has no handrail whereas the airport steps, which are much bigger than the dalek, comprises three steps and an upright frame which rises from the bottom of the structure, set back from the first and second step, and touching the third step. The defenders lodged a number of productions comprising an accident report, risk assessments and training records which were not referred to in the joint minute, but which were spoken to by the pursuer and no objection was taken to the implication that they were what they bear to be.
Risk Assessments
[9] The pursuer looked at risk assessments lodged by the defenders. The first was a general risk assessment for work at height. It noted that the “Work at Height Regulations” apply to any level above ground where there is a risk of a fall liable to cause injury. It provided that working at height was to be avoided where possible. It stated that all colleagues are to receive training on the safe use of airport ladders and foot stools. Both airport ladders and daleks were referred to, and it was noted that they must be adequate in number; purchased from an approved supplier; must not be stood on top of other pieces of equipment; must be properly stored. There is a provision that ‘stock must not be lifted onto, or from, racks in the warehouse above head height other than by using the airport style step ladder.’ The second risk assessment was another general risk assessment for working at height. The pursuer was not aware of these risk assessments before her accident. She was asked to sign an assessment after her accident which include the following:-
“Colleagues must not have to over- reach to carry out their tasks on the shop floor or in the back- up. If this is the case the access method or the location of the task must be reviewed, for instance:-
Use of higher platform steps
Replacement of kick stool with platform steps
Use of stepped merchandising trolley
Lower the stock
(See also ‘Working at Height Risk Assessment’)”
The pursuer said that she signed the assessment without reading it.
[10] Counsel for the pursuer submitted that the inference to be drawn from the risk assessments was that there was no task specific assessment of hanging clothes on racks. Thus there was no system. She argued that the defenders had failed to provide a safe system of work and had failed to assess properly the risks inherent in hanging clothes at height. These failures had led to a failure to provide the most suitable equipment and to train the pursuer on using it.
[11] Counsel for the pursuer argued that the pursuer was a clear and straight forward witness. She accepted that she had used the dalek many times over the 13 years in which she had been employed. She accepted she was not over reaching when she fell.
[12] Counsel argued that the defenders were liable at common law. She submitted that the pursuer was required to work at height in order to hang clothes on the racks. She had to carry a pile of clothing in packs with hanger attached in her arms, then once on the dalek, reach forward to hang the packs up. There was a risk of her ‘overbalancing’ or losing her footing while doing that task. The defenders could have provided airport style steps, which unlike the dalek, had a handrail. The pursuer could have grabbed the handrail and saved herself from falling.
[13] Counsel argued that in the face of foreseeable risk of injury, the defenders failed to take reasonable care for the pursuer’s safety. She referred...
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