Jane Elphinstone V. Shetland Islands Council
| Jurisdiction | Scotland |
| Judge | Lord Stewart |
| Neutral Citation | [2013] CSOH 96 |
| Court | Court of Session |
| Docket Number | PD1682/09 |
| Published date | 18 June 2013 |
| Date | 18 June 2013 |
| Year | 2013 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 96 | ||
| PD1682/09 | OPINION OF LORD STEWART in the cause JANE PETERSON ELPHINSTONE Pursuer against SHETLAND ISLANDS COUNCIL Defenders ________________ |
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Pursuer: Pilkington; Lefevre Litigation, Solicitors
Defenders: P Milligan; Ledingham Chalmers LLP (Aberdeen)
18 June 2013
[1] This is a personal injuries case about a back injury. The pursuer claims to have sustained the injury while working as a senior social care worker at the Nordalea Care Centre, Unst, Shetland Islands. That was almost seven years ago, on 11 July 2006. The pursuer blames her former employers Shetland Islands Council for the injury. Full liability damages are agreed in the sum of £20,000 inclusive of interest to the first day of the proof with interest on the whole amount thereafter until payment. I heard witness evidence on liability over eleven days on 15, 16, 17, 18, 22, 23, 24 and 25 November 2011 continuing on 10, 11 and 12 January 2012 with oral submissions on the evidence following after a ten month interval on 2 November 2012. Counsel produced typed submissions, 46 pages single-spaced for the pursuer and 64 pages double-spaced for the defenders, in advance of the oral presentation on 2 November 2012. I reserved a number of objections taken by counsel during the proof: none of the reserved objections was insisted on at the end of the day. I had the strong impression that defenders' counsel led evidence, without objection or comment, on a number of points that had not been put to the pursuer or her witnesses. Pursuer's counsel did not share my impression and I have therefore ignored that issue. Having made avizandum I have reached the conclusion that the pursuer has not established liability on the part of her employers and is not entitled to damages.
[2] The pursuer's written pleadings state that on 11 July 2006 the pursuer had to undertake twenty toileting transfers of a 58-year old [sic] female care home resident, AH, in the absence of a suitable mechanical hoist and sling. The transfers were from wheelchair (or mobile shower chair) to toilet in the en suite shower room adjacent to the resident's bedroom. There was a toileting sling (with cut out) for the Arjo Opera mobile hoist but the hoist itself had been sent away for repair; the other suitable mobile device, a Wispa hoist, which was available on the premises, did not have a toileting sling; and the fixed tracking hoist in the main bathroom could not be used, at least without some improvisation, because AH's head contacted the sling spreader bar. (AH suffered from a progressive neurological disorder and her neck muscles were wasted meaning that her head was bowed.) It is averred that: "The pursuer suffered an injury to her lower back whilst engaged in manual handling AH." It is averred that, notwithstanding the known non-availability of a suitable mechanical lifting aid and the pursuer's complaint that she was feeling "physically strained as a result of manually handling AH", the pursuer was told to carry on with her work. The pursuer's shift that day started at about 08.00 after an overnight sleep-over and finished sometime after 14.30.
[3] The pursuer's claim is founded on alleged non-compliance by her employers with the Manual Handling Operations Regulations 1992 (as amended), regulation 4(1)(a) (duty so far as reasonably practicable to avoid manual handling), regulation 4(1)(b)(i) (duty insofar as manual handling cannot be avoided to undertake a suitable and sufficient assessment of manual handling operations) and regulation 4(1)(b)(ii) (duty to reduce the risk of injury from manual handling to the lowest level reasonably practicable by, in this case, instructing the use of a mechanical aid and making a suitable mechanical aid available). In terms of regulation 4(3)(a) the defenders had a duty to take into account the suitability of individual workers including the pursuer for the manual handling operation in question. The claim is also founded on an alleged breach of the Provision and Use of Work Equipment Regulations 1998, regulation 4 (duty to ensure that work equipment is suitable for the purpose for which it is provided).
[4] My conclusion on the Provision and Use of Work Equipment Regulations case is that there was no breach and no breach that caused injury. Those regulations are about the suitability of equipment provided. Equipment that causes injury to workers is not suitable. In this case the claimed injury was not caused by unsuitable equipment. The injury is claimed to have been caused by the failure to provide equipment to minimise the risk of injury or alternatively, in the absence of appropriate equipment, the failure to withdraw the worker from the operation that involved a risk of injury. I do not need to say more about that case. My conclusions on the Manual Handling Regulations case, which will be explained in detail, are that the claimed injury was not caused by manual handling; that, up to a certain point in time, by which time the claimed injury had been sustained, there was no breach; and that after that point in time there was a breach, but the breach was not causative of any injury to the pursuer.
Nordalea Care Centre and its staff
[5] Nordalea Care Centre is likely to be the most northerly care centre in the British Isles. It is located at Baltasound on the island of Unst in the Shetland archipelago. The journey between Nordalea and Lerwick, the principal town situated on Shetland Island, involves two ferry crossings and, on the evidence, a road journey of 25 to 30 miles. The care centre is a purpose-built facility that was opened in 2001. Until 1 April 2005 the facility was managed by the Shetland Welfare Trust. It was then transferred to Shetland Islands Council. All employees were transferred. Making the best of the evidence that was offered I have the impression that the centre had accommodation for four or five long-term residents and one short-stay resident. At the time there were four long-term residents and AH. Each of the residents' bedrooms had an en suite toilet and shower room. There was one bathroom for the use of residents which I shall call "the bathroom". There was a toilet in the bathroom but no shower. I gathered that the centre had a lounge and dining room. The centre also provided day care and outreach facilities including home help and "meals on wheels". There were 25 to 30 staff including relief workers. Care for the residents was provided by social care workers and senior social care workers. The evidence left me unclear as to the number of staff who normally cared for residents during the day shifts. Overnight the normal arrangement was that one care worker was on duty while another slept on the premises and was on call. The evidence suggested that the care centre worked closely with the defenders' social services and human resources departments and received collaborative specialist support and equipment from the National Health Service.
[6] The Nordalea staff who gave evidence were the pursuer, Janet Seery, Colva Peterson, Jacqueline Chiplin and Angela Thomson. Janet Seery (now Janet Owers) was the manager of the unit. She told me that she was the inaugural manager and had been in post for five years at the time of the incident involving the pursuer. I gathered that she was essentially an administrator: but she clearly involved herself in the care of residents when required. She had her own office. Colva Peterson was a senior social care worker. She had previously had experience caring for children and young adults with special needs. She was recruited to Nordalea as a residents' carer when the centre opened in 2001. In 2005 she became the senior care-at-home worker. Ms Peterson was a manual handling trainer certified by the Royal Society for the Prevention of Accidents [ROSPA], known at the centre as "the ROSPA trainer". She trained all staff in handling techniques. She worked from the general office in the centre. Colva Peterson was a good witness.
[7] The pursuer was recruited as a senior social care worker in 2001. Ms Seery described her relations with the pursuer as "tricky". The pursuer had qualified as a state enrolled nurse in 1977. She then worked as a laboratory technician for an oil company and took time off to have a family till 1989 when she returned to nursing. For seven years until 1996 she nursed young chronic sick and disabled patients and orthopaedic patients, work that involved manual handling. For five years until 2001, while employed by Aberdeen Council Social Work Department during weekdays, she also worked as an agency nurse after hours and at weekends, work which involved some manual handling. While working at Nordalea the pursuer had a poor sickness record. Her sickness absences were caused by among other things, back problems and glandular fever. She had a phased return to work in 2005. The pursuer was unusually well-experienced and she well understood the challenges of handling individuals with disabilities and mobility issues. Dr Andrew Hamilton, the local general practitioner, had a high regard for the pursuer's skills.
[8] The pursuer was the lead care worker for health and safety issues relating to staff and residents until that role was taken over by another senior social care worker, Jacqueline Chiplin. The pursuer said this happened in 2004. Jacqueline Chiplin said it happened after the 2006 incident. Jacqueline Chiplin had previously been employed in England as a social support worker. According to the pursuer, Jacqueline Chiplin had never seen a hoist before 11 July 2006; and when the pursuer gave Ms Chiplin a "guided tour" of the centre's hoists, the latter asked: "What are they used for?". According to the pursuer Ms Chiplin was unwilling to use hoists, her attitude being "if you could manage without a hoist you should". Jacqueline Chiplin's evidence was that she did know what the hoists were used for and that she...
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...duty in Regulation 12 is regarding the suitability of work equipment provided. As in the case of Elphinstone v Shetland Islands Council [2013] CSOH 96 the pursuer’s accident was not caused by work equipment which was not suitable but by the failure to provide the equipment. [33] I was refer......