Steven Edward Mcintosh V. The City Of Edinburgh Council
| Jurisdiction | Scotland |
| Judge | Lord McEwan |
| Date | 18 June 2003 |
| Docket Number | A349/02 |
| Court | Court of Session |
| Published date | 18 June 2003 |
| OUTER HOUSE, COURT OF SESSION | |
| A349/02
| OPINION OF LORD McEWAN in the cause STEVEN EDWARD McINTOSH Pursuer; against THE CITY OF EDINBURGH COUNCIL Defenders: ________________ |
Pursuer: Lloyd, Thompsons
Defenders: Dunlop; E. Bain,
Solicitor for City of Edinburgh Council
18 June 2003
[1]This case is all about a ladder. At first blush it all appears very simple. In March 1999 the roof at Moredun Park Grove Children's Centre was leaking. The pursuer is a slater. He works for the defenders. He was sent to repair the roof. He got a line from his supervisor to obtain a ladder from the depot. He was told to get a three piece ladder and did so. That proved to be a big ladder. It weighed 50kg. The pursuer took the ladder to the site in a van, assembled it, went up, did the job, came down, lowered the sections then lifted it up to return it to the van. Unfortunately one of the feet of the ladder had stuck in the grass and when it was lifted the ladder suddenly came free. The pursuer lost control of it, lost his balance and fell. He injured his knee. He avers it was normal practice for one person to lift a ladder. He has now sued his employees for breach of statutory duty and all simplicity disappears from the case.
[2]The Manual Handling Operations Regulations 1992 provide inter alia:-
"4.-(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;
(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 -
(i) make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them .....
(ii) take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operations to the lowest level reasonably practicable ....".
[3]I was referred in detail to a number of authorities, viz Mitchell v Inverclyde District Council 31st July 1997 (unreported); King v Carron Phoenix Ltd 1999 Rep.L.R.51; Cullen v North Lanarkshire Council 1998 S.C.451; Taylor v City of Glasgow Council 2000 S.L.T.670 and 2002 S.C.364; McGhee v Strathclyde Fire Brigade 2002 S.L.T.680; Easson v Dundee Teaching Hospitals NHS Trust 2000 S.L.T.345; Robb v Dundee District Council 1980 S.L.T.(Notes) 91; Nisbet v Orr 20th March 2003 (unreported); Divit v British Telecom 20th February 1997 (unreported); Logan v Strathclyde Fire Board 12th January 1999 (unreported). Two other well known cases were referred to in passing as the argument will show.
[4]Mr Dunlop, appearing for the defenders asked me to sustain his first plea-in-law and dismiss the action. He gave me two distinct arguments.
[5]Firstly, he said, the pleadings did not disclose the use of a load in terms of the Regulations. He referred me to the Guidance Notes for these Regulations which under the word "Load" say this ".... A load in this context must be a discrete moveable object. This includes, for example, a human patient receiving medical attention or an animal during husbandry or undergoing veterinary treatment, and material supported on a shovel or fork. An implement, tool or machine - such as a chainsaw - is not considered to constitute a load while in use for its intended purpose....".
[6]I was referred to the Oxford English Dictionary. A load was something to be transported or supported by bodily force. He referred me to Mitchell at page 5 (the rotary lawnmower) and the Schedule I to the 1992 Regulations Factor 2 and to King (the spanner case). In the present case, at all times, the ladder was being used for its purpose. He referred me to Cullen. The risk of injury need be no more than a foreseeable possibility.
[7]His second argument concerned the relevancy and specification of the risk of injury. There had to be a manual handling operation involving risk. In Cullen the risk was standing on fencing. Here there was no foreseeable risk. He referred me to various passages in Taylor, McGhee and Easson. In the pleadings there was no differentiation between the narrative and what was foreseeability. How could the employer foresee it would stick. The Regulations imposed a duty to avoid the risk altogether and only if that could not be done to make an assessment. What should be foreseeable; the way it was held, why it sank, whether it was too heavy? The common law cases which referred to probability had to be used with caution. Robb was referred to at page 92 and Nisbet at page 5.
[8]In reply Mr Lloyd asked me before answer to allow a proof.
[9]He said that he had relevantly averred that a manual handling operation was in progress and he had given fair notice to the defenders. It was plain the pursuer was lifting the ladder to his van. The word "load" should be given a wide interpretation. In the context of European Directives a purposive interpretation to improve safety should be given.
[10]What was involved here was a 50kg load which (O.E.D.) was "....laid upon a person to be carried ....". There was no reason why it could not be a load and a tool in use. The pursuer had ceased to use the ladder as a ladder, i.e. to go up and down. That meant it ceased to be a tool and reverted to being a load. There was no dichotomy and tool and load were not mutually exclusive. It could be both at the same time. The defenders could not avoid the pursuer lifting it. The purpose of a ladder was not to be carried.
[11]Mitchell was an unsatisfactory case and should not be followed. King was a case at the margins but here the pursuer was clearly lifting a load. Divit was consistent with King and Logan showed almost an identical set of facts. Common sense showed that this was a load.
[12]As to specification all the pursuer had to aver was a risk of injury and aver on record matters capable of allowing the court to draw the inference of foreseeable risk of injury. A foreseeable possibility is not a high standard.
[13]The common law was of no assistance. These Regulations were brought in to improve matters over the common law. Robb and Nisbet were thus not relevant. Taylor was the case in point. Counsel referred me to a passage at H3-202 in Volume 4 of Sweet & Maxwell's Encyclopaedia of Health and Safety at Work and the ergonomic chart....
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