Robert Purdie V. City Of Glasgow Council
| Jurisdiction | Scotland |
| Judge | Lord Hamilton |
| Date | 21 December 2001 |
| Court | Court of Session |
| Published date | 21 December 2001 |
| OUTER HOUSE, COURT OF SESSION | |
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| OPINION OF LORD HAMILTON in the cause ROBERT PURDIE Pursuer; against CITY OF GLASGOW COUNCIL Defenders: ________________ |
Pursuer: Springham, Digby Brown, SSC
Defenders: S A Bell; E Bain
21 December 2001
[1]On 23 November 1997 the pursuer
was working in the course of his employment with the defenders in their Cleansing Department at the Dawsholm Complex, Glasgow. Within the yard at that Complex were receptacles for clothes, plastic bottles, magazines and paper brought there, it appears, by members of the public. The pursuer avers that the receptacle designed to hold magazines, which was full, had not been emptied for months, that the defenders permitted members of the public to leave magazines next to it and that an overflow pile of magazines and papers had started to accumulate at the side of the receptacle. On 23 November, he avers, he and the driver of a JCB with a large shovel were, in furtherance of arrangements made by the defenders, engaged in clearing magazines next to the receptacle. These magazines had become wet and were difficult to remove. The pursuer was equipped with a hand shovel which he used to put magazines into the JCB's shovel. In the course of clearing the magazines the wind had blown some of them down from the pile. As he turned with a shovel loaded with magazines to transfer that load to the JCB's shovel he slipped on a wet magazine and fell sustaining certain loss, injury and damage in respect of which he sues the defenders in this action for damages. (The averment that the pursuer's shovel was at the material time loaded with magazines was added by amendment in the course of the debate).
[2]The pursuer's case is laid on alleged breaches of duties of care owed at common law and on alleged breaches of (a) certain provisions of the Workplace (Health, Safety and Welfare) Regulations 1992 and (b) the Manual Handling Operations Regulations 1992. The defenders are content that the action, insofar as laid on the Workplace Regulations, should proceed to a proof before answer. The action was, however, sent on their motion to procedure roll in respect of their first and second pleas-in-law (respectively a general plea to the relevancy and a specific plea to the relevancy of the pursuer's case laid on the Manual Handling Regulations). The Note of Argument subsequently lodged challenged only the relevancy and specification of the case laid on the Manual Handling Regulations. At the discussion Mr Bell for the defenders moved me to exclude from probation not only that case but also the pursuer's case at common law on the basis that in the circumstances of this action exclusion of the latter followed logically upon exclusion of the former.
[3]Mr Bell in opening his submissions observed that the circumstances of the present case were closer to a "slipping" than to a "manual handling" case but acknowledged that it was not essential to the application of the Regulations that the risk of injury was a risk arising from the imposition of a load (Cullen v North Lanarkshire Council 1998 SC 451). However, it remained necessary, he submitted, for a pursuer to aver and prove (1) that he had sustained injury in the course of a manual handling operation as defined and (2) that that operation involved a risk of injury in the sense of a foreseeable possibility of such injury (Anderson v Lothian Health Board 1996 SCLR 1068, approved obiter in Cullen v North Lanarkshire Council at p. 455). Reference was also made in this context to Hall v City of Edinburgh Council 1999 SLT 744, Taylor v City of Glasgow Council 2000 SLT 670, Easson v Dundee Teaching Hospitals NHS Trust 2000 SLT 345, Fleming v Stirling Council 2001 SLT 123, King v Carron Phoenix Limited, 1999 Rep. L.R. 51 and Mitchell v Inverclyde District Council, 31 July 1997, Lord Cameron of Lochbroom, unreported). In view of the amendment referred to above Mr Bell did not press his argument that there were no relevant averments of a manual handling operation but he maintained that there were no relevant averments of a foreseeable possibility of injury. The pursuer had an averment (in Article 5 of the Condescendence) that the operation upon which he was engaged was a manual handling operation which involved a risk of injury "in respect that the pursuer required to manhandle wet magazines and papers whilst standing on such items"...
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