Margaret Hughes V. Grampian Country Food Group Limited
| Jurisdiction | Scotland |
| Judge | Lord President,Lord Philip,Lord Eassie |
| Neutral Citation | [2007] CSIH 32 |
| Date | 18 May 2007 |
| Docket Number | A887/03 |
| Court | Court of Session |
| Published date | 18 May 2007 |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lord Philip Lord Eassie | [2007] CSIH 32 A887/03 OPINION OF THE LORD PRESIDENT in RECLAIMING MOTION in the cause MARGARET HUGHES Pursuer and Reclaimer; against GRAMPIAN COUNTRY FOOD GROUP LIMITED Defenders and Respondents _______ |
Act: Campbell, Q.C., Heaney; Thompsons
Alt: A. Smith, Q.C., Duncan; Simpson & Marwick
18 May 2007
[1] The reclaimer has, since about 1991, been employed by the respondents as a process worker at their factory premises at Cambuslang. Her work involves her in a variety of activities, including trussing the wings and legs of chicken carcasses using elastic strings. In about 2000 she developed carpal tunnel syndrome in her left wrist which was aggravated by her work conditions. She seeks damages for personal injuries from the respondents in respect of this aggravation.
[2] The Lord Ordinary assoilzied the respondents but expressed a view on the value of the claim. He found that the aggravation of symptoms was relatively short lived: it commenced at about the beginning of December 2000, involved a first visit to the reclaimer's doctor on 22 January 2001 and was resolved by a successful operation as a day patient on 24 March 2001. The Lord Ordinary assessed solatium at £900, inclusive of interest. He also assessed damages for loss of earnings and for necessary services in modest amounts - £563 and £300 respectively.
[3] The reclaimer's case in her pleadings proceeds upon both common law and upon an alleged breach of statutory duty under Regulation 4 of the Manual Handling Operations Regulations 1992. Before the Lord Ordinary her claim, in so far as based at common law, was abandoned. The Lord Ordinary held that her case under the Regulations was not established. Against the decree of absolvitor consequentially pronounced this reclaiming motion has been taken.
[4] As part of her proof the reclaimer put in evidence a video recording (No. 6/1 of process). Although this recording was made on 21 November 2003 and showed another employee working at the trussing line, the reclaimer stated without elaboration in evidence that this was the way she worked and that the video accurately showed how she trussed chicken carcasses. The Lord Ordinary accepted that statement as accurate. In his Opinion (at paragraph [35]) he describes what is shown on the recording as follows:
"The video initially shows the employee picking up a carcass from the work bench beside her and placing it on the work bench in front of her. While the carcass is on the work bench in front of her, she manipulates the legs and wings of the carcass, and then applies elasticised string around the carcass before tossing it onto a moving conveyor belt. After the first four chicken carcasses, which appear to have been picked up by the employee from the work bench beside her, she begins to lift carcasses from shackles on a conveyor belt at approximately head height above the work bench and take each carcass in turn to manipulate and truss it on the work bench in front of her. From taking the carcass from the work bench or from the shackle, through the process of manipulation and to the point at which the trussed carcass is thrown onto the lower conveyor belt takes approximately 11 or 12 seconds per carcass. Of this time it appears that less than one second is taken in lifting the carcass from the shackle to the work bench, and only a fraction of a second is taken in throwing the trussed carcass onto the conveyor belt. While the carcass is being manipulated and trussed, the employee is working on it while the carcass is on the work bench, or picks it up for a moment to apply the trussing string around it before placing it back on the work bench".
[5] The Lord Ordinary found that there was a sufficient causal link between the reclaimer's work (the manipulation of chicken carcasses) and the exacerbation of her symptoms. At the proof it was conceded by counsel for the respondents that there was a reasonably foreseeable risk of injury. The remaining issue between the parties was whether the Regulations applied to the work on which the reclaimer was engaged.
[6] The Regulations (1992 SI 2793) were made under powers conferred under the Health and Safety at Work etc. Act 1974. They were devised with a view to implementation of the United Kingdom's obligations under various European Directives to which I shall return.
[7] Regulation 2 provides that
"'load' includes any person and any animal"
and that
"'manual handling operations' means any transporting or supporting of a load (including the lifting, putting down, pushing, pulling, carrying or moving thereof) by hand or by bodily force".
Regulation 4 provides:
"(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 handling operations at work which involve a risk of their being injured; -
[take certain steps including the making of an assessment and the taking of steps to reduce the risk of injury]."
In making an assessment an employer is required to have regard to the factors specified in column 1 of Schedule 1 to the Regulations and to consider the questions specified in the corresponding entry in column 2 of that Schedule. Schedule 1 is in the following terms:
| "Column 1 Factors | Column 2 Questions |
| 1. The tasks | Do they involve: -holding or manipulating loads at distance from trunk? -unsatisfactory bodily movement or posture, especially: -twisting the trunk? -stooping? -reaching upwards? -excess movement of loads, especially: -excessive lifting or lowering distances? -excessive carrying distances? -excessive pushing or pulling of loads? -risk of sudden movement of loads? -frequent or prolonged physical effort? -insufficient rest or recovery periods? -a rate of work imposed by a process? |
| 2. The loads | Are they: -heavy? -bulky or unwieldy? -difficult to grasp? -unstable, or with contents likely to shift? -sharp, hot or otherwise potentially damaging? |
| 3. The working environment | Are there: -space constraints preventing good posture? -uneven, slippery or unstable floors? -variations in level of floors or work surfaces? -extremes of temperature or humidity? -conditions causing ventilation problems or gusts of wind? -poor lighting conditions? |
| 4. Individual capability 5. Other factors | Does the job: -require unusual strength, height, etc? -create a hazard to those who might reasonably be considered to be pregnant or to have a health problem? -require special information or training for its safe performance? Is movement or posture hindered by personal protective equipment or by clothing?" |
[8] Having reviewed the statutory provisions and referred to certain decisions in the Outer House, the Lord Ordinary observed at paragraph [39]:
"In the present case, on the basis of the video evidence, it appears that the removal of a chicken carcass from the upper shackle to the work bench might be categorised as a manual handling operation, involving as it does both elements of transporting and supporting of a load. It may also be that the action of throwing the trussed carcass onto the lower conveyor belt can be categorised as transporting or supporting of a load by hand or by bodily force. However, there is no suggestion that the pursuer sustained any injury or exacerbation of symptoms as a result of either of these steps. Her complaint was focused on the repetitive movements of the wrist, hands and fingers in the manipulation of the chicken carcass, by tucking in the legs and wings and tying it with elasticated trussing string. While this manipulation was being performed, there was no transporting or supporting of a load".
[9] He then noted that counsel then appearing for the reclaimer had attempted to characterise the activity on the trussing line as one single operation, involving the transporting and supporting of the chicken carcass from its initial position on the upper shackle via the work bench to the lower conveyor belt. The Lord Ordinary rejected that characterisation observing that a task cannot be transformed into a manual handling operation by looking at the surrounding context.
[10] The approach adopted on the reclaimer's behalf in the Outer House was expressly departed from before us by Mr. Campbell. He invited us to hold that throughout the reclaimer's activity with any chicken carcass there was but one short time (about two seconds - while she stretched and retrieved an elastic band, the carcass then resting on the work surface) when her actions did not constitute manual handling as envisaged by the Regulations. At all other times in the course of a trussing cycle she was "supporting" the carcass by hand or by bodily force. Arrangements were made for us to view the video recording in the course of the reclaiming motion. Mr. Campbell invited us, on the basis of our observations of it, to conclude that the Lord Ordinary had erred in the factual conclusions which he had drawn. In particular, he challenged the Lord Ordinary's conclusion at the end of paragraph [39] that, while the manipulation (the repetitive movements of the wrists, hands and fingers in manipulation of the chicken carcass, by tucking in the legs and wings and tying it with elasticated trussing string) was being performed, "there was no transporting or supporting of a load". I shall in due course return to consider whether it is in the circumstances open to this court to review that finding. First, however, it is appropriate to address the interpretation of the Regulations.
[11] By Directive 89/391/EEC ("the Framework Directive") the Council of the European Communities addressed the Member States on the introduction of measures to encourage improvements in the...
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