Patrick Moohan V. City Of Glasgow Council
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Date | 11 March 2003 |
| Docket Number | A155/00 |
| Court | Court of Session |
| Published date | 11 March 2003 |
| OUTER HOUSE, COURT OF SESSION | |
| A155/00
| OPINION OF LORD BRODIE in the cause PATRICK MOOHAN Pursuer; against CITY OF GLASGOW COUNCIL Defender: ________________ |
Pursuer: Christine; Thompsons,
Defenders: Erroch; Edward Bain
11 March 2003
Introduction
[1]In this action the pursuer sues for damages in respect of personal injuries which he suffered while working in the course of his employment with the defenders as part of a team of workmen who were installing playground equipment at Greenfield Park, Glasgow on 6 March 1997. He avers that his injuries were caused by the breach by the defenders of the duties imposed upon them in terms of the Provision and Use of Work Equipment Regulations 1992 and, in particular, Regulation 5 of these Regulations. He advances no other case of fault or breach of statutory duty. A case of contributory negligence is pled but it was not insisted upon. The sum sued for is £30,000.
[2] I heard proof on 7 January 2003 and subsequent days. Mr Christine appeared for the pursuer. Mr Erroch appeared for the defenders. In addition to the pursuer, the following witnesses were led on his behalf: Mr John McCaig and Mr David Spence, the two fellow employees who had been working with him at Greenfield Park on 6 March 1997; Mr Samuel Cairns, who had been the manager of the defenders' Blacksmith Department on 6 March 1997; Mr Kenneth McDougall, a chartered engineer who was led as an expert witness; and Professor Gordon Waddell, a consultant orthopaedic surgeon. The witnesses led on behalf of the defenders were: Mr Ian Mackay, a consultant orthopaedic surgeon; Mr Clive Andrews, an expert in ergonomics; and Mr William Duncan, who was employed by the defenders as a Senior Training Instructor. Further evidence was put before me by way of a Joint Minute, No.21 of process.
The circumstances in which the pursuer sustained injury
[3]The pursuer's date of birth is 16 August 1953. As at 6 March 1997, the pursuer was employed by the defenders as a hammerman. It is the job of a hammerman, such as the pursuer, to assist tradesman blacksmiths with their work. The pursuer had been so employed by the defenders since 1979. On 6 March 1997 the pursuer was working in the course of his employment, as part of a team of three, installing playground equipment at Greenfield Park, Glasgow. The other two members of the team were Mr John McCaig and Mr David Spence. Both Mr McCaig and Mr Spence were tradesman blacksmiths employed by the defenders. Mr Spence was the charge-hand.
[4] The playground equipment which was being installed at Greenfield Park on 6 March 1997 is illustrated in Production 7/4. Production 7/4 is an engineering drawing, numbered PZW102. This drawing shows a composite structure including platforms, a fireman's pole, a slide, a ladder and a scramble net. The installation of this equipment required the fixing of metal uprights into concrete foundations. That, in turn, required the digging of a number of holes to a depth of 500mm below what would be the surface of the play area. Once holes were dug, the metal uprights could be placed in their respective holes and concrete could be poured into the holes, so forming foundations. The relative position of these holes is shown in plan on Production 7/4. An example of one of the holes is shown in section. That section shows a concrete foundation 400mm in depth. Superimposed upon the foundation is a 100mm layer described in the drawing as "safety tiles or wet pour".
[5] At Greenfield Park the play area upon which the playground equipment was to be installed had been landscaped prior to 6 March 1997 by another department of the defenders. A surface had been created out of compacted "type 1" hardcore to a depth of about 400mm. The hardcore was made up of pieces of rock of various sizes up to about 2 or 2 1/2 inches in their largest dimension. It would have been compacted using either a mechanical roller or a vibrating plate. On top of the hardcore was a layer of pea gravel less than 100mm deep. As I understood it, at least once the playground equipment was installed, the play area would be surfaced with safety matting laid on the pea gravel. The pea gravel and safety matting would then together form a surface about 100mm deep.
[6] On the morning of 6 March 1997 the pursuer's instructions were to dig a hole in the surface of the play area. This required that he dig down into the compacted hardcore to a distance of at least 400mm. In order to do so he was provided with three tools: a spade, a metal pinch bar and a pick. The technique which he was expected to follow, and did follow, was to loosen the hard core by stabbing (in evidence described as "ramming") downwards with the pinch bar, then, using the pinch bar, to pry loose the hardcore and then to scoop or shovel the loosened hardcore away using the spade. When using the pinch bar to loosen hardcore an operator stands erect, the stabbing movement coming from the shoulder. "Shovelling" is not a word which was used by the witnesses. They talked about "scooping" or "spooning", but "shovelling" seems to me best to describe the action of removing loosened hardcore from what, as the hardcore was removed, became a hole. A video film taken by Mr Andrews at Greenfield Park was shown in court. This film showed a workman employing the technique of loosening ground with a pinch bar and shovelling the loosened material. However, what was loosened and shovelled in the film had the appearance of an area of previously dug soil (the pursuer used the expression "urban soil" when referring to it and Mr Andrews described it as "normal earth which was soft") rather than hardcore. The pursuer explained that, in contrast to what might be done when digging urban soil, it was impossible for him to dig with his spade vertically into hardcore. A difficulty which is encountered when digging a hole in hardcore using a pinch bar and spade is that one cannot cut a sharp vertical side to the hole which will maintain its integrity. Rather, as a workman digs, hardcore will fall (or "crumble") into the hole. In the result the hole will become bigger than is intended. If small holes for foundations are to be situated close together it may accordingly become more convenient to dig one large hole rather than a number of smaller holes. According to the pursuer, should a workman be standing within the hole that he is digging, his feet may become trapped by reason of limited space and by hardcore falling back into the hole. A spadeful of hardcore might weigh up to about 5 kilograms or 11 pounds.
[7] The pursuer began work on 6 March 1997 at about 8.00am. Later that morning he had taken the hole down to about knee level (as he stood in the hole). He was standing in the hole. He was shovelling with the spade. He was in what he described as a stooped position when his back "became trapped". It "seized up". He explained that he was frozen in position with the pain. He required to lean over and then to roll out of the hole. He called out and Mr Spence and Mr McCaig, both of whom had been working in the vicinity, came over. The pursuer had to sit down until the pain abated. He decided he could not go on working that day. He returned to the defenders' workshop at Paton Street, Glasgow where he reported the accident at about 12.15pm to a manager, Mr Stein. Production 6/1 is a defenders' Incident Report form documenting the pursuer's report of the accident. In that report form the time of the incident is given as 11.45am on 6 March 1997. Although it was not reported directly to him, Mr Cairns became aware of the pursuer's accident on the day it occurred. He investigated the circumstances by speaking to Mr McCaig and Mr Spence. They confirmed to him the account noted by Mr Stein in the Incident Report.
[8] As appears from the pursuer's training record, Production 7/1, and the Manual Handling Course documentation, Production 7/2, the pursuer attended a Manual Handling Course on 14 December 1995. He had had distributed to him a Health and Safety Employee Handbook, Production 7/6. The Handbook contains a section entitled "Good Handling Techniques". While it was suggested to the pursuer in cross-examination that the principles taught in the Manual Handling Course would also apply to the task of digging, the pursuer was unable to confirm that. He had never received any specific instruction or training in digging since beginning work with the defenders in 1979. When asked about the content of the December 1995 course, the pursuer replied that basic lifting techniques were all that he could recall being discussed. He had, however, dug several hundred holes in the eighteen years or so during which he worked with the defenders as a hammerman. He had done so using a pinch bar and a spade without any previous untoward incident. He could not recall ever feeling a strain. He had previously dug holes in hardcore but more often he had dug holes in yielding soil. He regarded digging into hardcore as a strenuous job and had "moaned" about it to his fellow employees. He had not made what he described as a "formal complaint" but he had mentioned the heavy nature of the work of digging to his brother, Kevin Moohan, who was an employees' representative on the safety committee. That other employees of the defenders considered the digging of holes using a pinch bar and shovel to be heavy work which might be better done using mechanical means, was supported by the evidence of Mr Cairns, who accepted that some members of the workforce had approached him with requests for mechanical assistance. This was in order to make the job of digging easier. The pursuer accepted in cross-examination that he had never refused to dig holes in hardcore using a pinch bar and spade and that he had not thought that digging in hardcore was a dangerous activity.
[9]There was no evidence to indicate what the pursuer might have learned from formal instruction or training in digging...
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