John Strange V. Wincanton Logistics Limited
| Jurisdiction | Scotland |
| Judge | Lord Eassie,Lord Wheatley,Lord Brodie |
| Neutral Citation | [2011] CSIH 65A |
| Court | Court of Session |
| Published date | 26 October 2011 |
| Year | 2011 |
| Date | 26 October 2011 |
| Docket Number | XA92/10 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Eassie Lord Brodie Lord Wheatley | [2011] CSIH 65A XA92/10 OPINION OF THE COURT delivered by LORD BRODIE in appeal by JOHN STRANGE Pursuer and Appellant; against WINCANTON LOGISTICS LIMITED Defenders and Respondents: _______ |
Alt: B. Smith; Brodies
26 October 2011
Introduction
[1] The pursuer and appellant is John Strange. His date of birth is 4 July 1965. In this action, raised in the Sheriff Court of Lothian and Borders at Livingston, he sues his former employer, Wincanton Logistics Limited, the defenders and respondents, for reparation for personal injury sustained when moving and stacking wooden pallets while working in the course of his employment at the respondents' warehouse premises at Pyramids Business Park Bathgate on 5 February 2007. As presented to the sheriff, the appellant's case was one of negligence at common law and breach of the duties imposed by regulation 4(1)(a) or, alternatively, regulation 4(1)(b) of the Manual Handling Operations Regulations 1992. After proof the sheriff made the following findings in fact and law:
"1 The task of stacking pallets on which the pursuer was engaged on the day in question was a Manual Handling Operation which involved a risk of injury.
2 It was not reasonably practicable for the defenders to have eliminated Manual Handling as a method of removing and stacking pallets.
3 The defenders reduced the risks involved in the task of removing and stacking pallets to the lowest level reasonably practicable by assessing the risks of the task and instructing the pursuer in safe lifting techniques and safe methods of work.
4 The pursuer's loss injury and damage was not caused by fault on the part of the defenders or by any breach of statutory duty."
[2] The sheriff therefore assoilzied the respondents in terms of his interlocutor of 2 June 2010. The appellant now appeals. He no longer insists on his case of negligence. Accordingly, as far as liability is concerned he takes issue with the sheriff's second and third findings in fact and law and his fourth finding in fact and law but only in so far as it relates to breach of statutory duty. The appellant also has grounds of appeal directed at questions of medical causation and quantification of damages.
Manual Handling Operations Regulations 1992, regulation 4
[3] Regulation 4 of the Manual Handling Operations Regulations 1992 provides:
"4.- Duties of employers
(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 -
(i) make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them, having regard to the factors which are specified in column 1 of Schedule 1 to these Regulations and considering the questions which are specified I the corresponding entry in column 2 of that Schedule,
(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."
Circumstances in which the appellant sustained injury
[4] The circumstances in which the appellant sustained injury are disclosed in the following findings in fact by the sheriff, none of which we would understand now to be controversial:
"2 The defenders are a National Warehousing and Logistics Company, the second largest in the UK with approximately three million square metres of warehouse space. The defenders operate, inter alia, warehouses and distribution centres for Asda, Tesco, Morrisons, Somerfield and B&Q.
3 On 5 February 2007 the pursuer was employed by the defenders as a labourer at their warehouse at the Pyramids Business Park, Bathgate.
4 At the relevant time, the defenders operated a warehouse at Pyramids Business Park for Morrisons supermarkets. The warehouse was set out as shown in a plan number 6/4/1 of process. The warehouse was of a standard layout and design with a number of aisles containing storage racking.
5 Goods were delivered to the warehouse on pallets and placed on the racking using high reach fork lift trucks. Moving full pallets of goods was the principal function of fork lift trucks in the warehouse. Goods were collected from different places where they were stored on the racking by 'pickers' who had the task of making up orders of goods according to a computerised order sheet. Pickers used motorised 'pick trucks' to transport the goods which they had collected, and these pick trucks were capable of carrying two pallets.
6 The pursuer's principal duties included keeping the warehouse clean and free from debris, litter and spillages, in order to maintain a safe working environment. In particular, it was a routine part of the pursuer's job to collect empty pallets from ground floor locations and to remove these to the loading bay where the pallets were stored in order to be re-used.
7 The pursuer started his shift on the night in question at 8.00pm. His supervisor, George Stewart asked him to remove empty blue pallets from an aisle known as the "BA aisle" to another part of the warehouse. There were around forty blue pallets which required to be moved. They were lying on the ground underneath the warehouse racking.
8 Each pallet measured around 1 metre by 1.2 two metres and weighed around 23.5 kilograms. They were made of wood.
9 The pursuer asked George Stewart for assistance with the task of removing the pallets, but no assistance was made available. The pursuer then asked that a fork lift truck operator should be assigned to remove the pallets, but this request was also denied.
10 In order to remove the empty pallets the pursuer made use of a hydraulic pallet truck. His intention was to stack the pallets five high on the pallet truck and then use the truck to remove the pallets to another part of the warehouse. The pursuer was aware that pallets should not be stacked by hand to a height of more than five high.
11 On the night in question the pursuer used the pallet truck to remove the first pallet from underneath the racking. He positioned the first empty pallet on the forks of the pallet truck, and moved the empty pallet out from under the racking, and then parked the truck as close as possible to the racking to allow room for other warehouse vehicles to pass in the aisle. For each of the subsequent four pallets which were to be placed on the pallet truck he dragged the pallet out from under the racking by hand, and then manipulated it on to the stack of pallets.
12 The pursuer was placing a fifth pallet on top of four which he had already stacked on the pallet truck when he felt a terrific pain in his back, and he then collapsed on the ground. A security guard who heard him cry out in pain came to see what had happened. He fetched George Stewart. George Stewart found the pursuer still in the BA aisle he was gasping and in pain. George Stewart gave him an ice pack and arranged for him to go to hospital. The pursuer had twisted his body as he placed the last pallet on the stack."
The manual handling operation
[5] As appears from his first finding in fact and law, the sheriff held that the task of stacking pallets on which the appellant was engaged when he sustained injury was a manual handling operation which involved a risk of injury. The sheriff made the following findings in fact about that manual handling operation and the system of work adopted to carry it out:
"15 There were two approved methods of manually removing pallets from the ground floor locations at the defenders warehouse at Pyramids Business Park. The first method is shown being demonstrated in a video no 6/4/3 of process. The second method is described in the Safe System of Work Statement no 5/2/9 of process. The first method was the commonly used, accepted and approved method of manually removing pallets from ground floor locations at the defenders' warehouse. This method could be performed safely by one man.
16 The pursuer was familiar with the method of stacking of pallets as demonstrated in the video no 6/4/3 of process. On the day in question it was essentially that method which he used, with the exception that as he lifted the fifth pallet he twisted or turned his body in the direction of the pallet truck. He did not use the method as outlined in the Safe System as (sic) Work Statement no 5/2/9 of process. The method used by the pursuer is a Manual Handling Operation within the meaning of the regulations.
17 The method used by the pursuer involved part of the pallet being in contact with either the ground or another pallet on the stack at all times. Consequently, the pursuer never required to bear the full weight of the pallet. The weight he had to bear was about half of the full weight of the pallet. At all times the pursuer was using approved lifting techniques.
18 Stacking pallets to a height of five high had always been regarded as a one man job within the Pyramids Warehouse and within the warehousing industry in general.
19 The pursuer had received comprehensive training from the defenders, which included Health and Safety induction, Manual Handling Training, and Training in Approved Lifting Techniques.
20 There were no space constraints or other factors which might have prevented the pursuer removing the pallets by an approved method. The aisle which the pursuer was working at the relevant time was of a standard size in common with the majority of aisles in the defender's warehouse.
21 The defenders had carried out a risk assessment of the Manual Handling Task associated with the handling and stacking of pallets. In addition to the Risk Assessment, the defenders had devised two...
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