Taylor v City of Glasgow Council
| Jurisdiction | Scotland |
| Judgment Date | 30 April 2002 |
| Date | 30 April 2002 |
| Docket Number | No 30 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION
Temporary Judge TG Coutts QC
European lawEmployers' liabilityBreach of statutory dutyManual handling operationWhether risk of injury requires risk to be foreseeable-Manual Handling Operations Regulations 1992 (SI 1992/2793)Management of Health and Safety at Work Regulations 1992(SI 1992/2051)EEC Council Directive 89/391EEC Council Directive 90/2691
ProcessPleadingsRelevancyWhether sufficient averments to show that operation gave rise to risk of injury
Council Directive 89/391 (the Framework Directive) concerns measures intended to encourage improvements in the safety and health of workers at work. Council Directive 90/269 (the Manual Handling Directive) is one of a number of daughter directives adopted to address specific areas. Both the Framework Directive and the Manual Handling Directive require, as a generality, that risks should be avoided where possible; that they should be assessed where they cannot be avoided; and that steps should be taken to reduce risks which cannot be avoided. In order to satisfy its obligations under the directives, the United Kingdom made inter alia the Manual Handling Operations Regulations 1992 and the Management of Health and Safety at Work Regulations 1992. Regulation 4(1) of the Manual Handling Operations Regulations provides: 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. Regulation 4(1)(b) requires the employer, where it is not reasonably practicable to avoid the need for the operations, to assess the risk of injury and take appropriate steps to reduce it. The Management of Health and Safety at Work Regulations 1992 require employers to make an assessment of the risks to which employees are exposed at work and to identify any measures required under relevant statutory provisions. Breach of the Management of Health and Safety at Work Regulations does not impose civil liability.
The pursuer was employed as a school janitor by the defenders. He averred that he had sustained a back injury when he was required, together with two other employees, to lift a cupboard up two flights of steps. He averred that the cupboard weighed about 35 kilograms and was about two metres high. He did not specify any particular aspect of the task, such as his share of the load, which gave rise to a risk of injury. He founded on reg 4(1)(a) and (b). The defenders admitted that the pursuer had been engaged in the operation and had complained of pain in the course of it. They did not aver that it was not reasonably practicable to avoid the need for the operation. After debate the Temporary Judge (Coutts) dismissed the action. He held that although the regulations did not specify that risk of injury should be a foreseeable possibility, a pursuer had to aver sufficiently the facts and circumstances which gave rise to his contention that there was such a risk, in order to give the defenders fair notice; and that on the facts averred, as a matter of practical common sense, there was no risk of injury to the pursuer in carrying out the operation. The pursuer reclaimed. He contended that all he had to aver was that a risk existed. It did not have to be a foreseeable risk. Even if it did, his
averments were sufficient. The Temporary Judge had erred in considering only the particular task being carried out by the pursuer, and not the general task of moving furniture up stepsHeld (1) in particular circumstances of this case, proof before answer should be allowed on the reg 4(1)(a) claim (p 367A, 372A, 381B); (2) that the averments directed towards reg 4(1)(b) did not proceed on the alternative basis that avoidance of the operation was not reasonably practicable, and were accordingly irrelevant (pp 366GH, 369I371B, 378G380A); and reclaiming motion granted, and proof before answer allowed under deletion of the case under reg 4(1)(b).
Opinion (per Lord Carloway) that reg 4(1)(a) imposes a general duty to avoid the need for all manual handling carrying with it a risk of inquiry; where a pursuer is injured as a result of a manual handling operation, the employer's liability is only avoided if the employer has relevantly pled the defence of lack of reasonable practicability in respect of the operation being carried out by the pursuer (p 380I to 381A); opinions contra per Lord Marnoch and Lord Reed that reg 4(1)(a) refers to manual handling operations at work which involve a foreseeable risk of injury (p 366GH, 368F369H).
David Taylor brought an action in the Court of Session against his employers, City of Glasgow Council, for damages arising from an accident he sustained on 14 May 1995 while working in the course of his employment as a school janitor.
The cause came before the Temporary Judge (Coutts) on 18 June 1999 on procedure roll. The defenders moved for dismissal, on the grounds of irrelevancy and lack of specification of factors from which it could be deduced that a forseeable possibility of injury arose from the work being carried out by the pursuer.
At advising, on 3 August 1999, the Temporary Judge dismissed the action (Taylor v Glasgow City Council 2000 SLT 670).
The pursuer reclaimed.
Cases referred to:
Anderson v Lothian Health BoardUNK 1996 SCLR 1068
Avery v Hew Park School for Boys 1949 SLT (N) 6
Cullen v North Lanarkshire CouncilSC 1998 SC 451
Easson v Dundee Teaching Hospitals NHS Trust 2000 SLT 345
Fleming v Stirling Council 2001 SLT 123
Hall v City of Edinburgh Council 1999 SLT 744
Hawkes London Borough of SouthwarkUNK unreported 20 February 1998
Jamieson v JamiesonSC 1952 SC (HL) 44
Koonjul v Thameslink Healthcare ServicesUNK [2001] PIQR 123
McGhee v Strathclyde Fire Brigade 2002 SLT 680
McMenemy v James Dougal and Sons 1960 SLT 84
Mains v Uniroyal Engelbert TyresSC 1995 SC 518
Marleasing SA v La Comercial Internacional de Alimentacion SA [1990] ECR 1-4135
Miller v South of Scotland Electricity BoardSC 1958 SC (HL) 20
Nimmo v Alexander Cowan and SonsSC 1967 SC (HL) 79
Purdie v City of Glasgow CouncilUNK unreported 21 December 2001
Roe v Ministry of HealthELR [1954] 2 QB 66
Wardlaw v Bonnington CastingsSC 1956 SC (HL) 26
Textbooks, etc referred to
Chambers Dictionary, p 1486
Munkman, Employers' Liability (13th ed) paras 14.17 - 20
Shorter Oxford English Dictionary, p 987
The cause called before an Extra Division comprising Lord Marnoch, Lord Reed and Lord Carloway for a hearing on the summar roll on 5,6 and 7 March 2002.
At advising, on 30 April 2002
LORD MARNOCH[1] I have had the advantage of reading in advance the opinion about to be delivered by Lord Carloway and I agree that this reclaiming motion should be allowed and the matter disposed of in the manner proposed by him.
[2] The short ground on which I base my own opinion is that, in common with both of your Lordships, I consider that even on the Lord Ordinary's own approach (with which I, myself, happen to agree), if account is taken of the ergonomics of the manoeuvre on which the pursuer was engaged, it cannot be said that the pursuer's averments do not warrant at least a proof before answer on the question of whether that manoeuvre involved a foreseeable risk of injury and thus fell within the ambit of reg 4(1)(a) of the Manual Handling Regulations 1992.
[3] As to the wider issues canvassed in the course of the reclaiming motion I am indebted to Lord Carloway for setting out so clearly the background to the legislation with which we are concerned in this case. In the result, it seems to me beyond question that reg 4 of the Manual Handling Regulations 1992 envisages that employers should draw up some sort of scheme or system of work which is designed to avoid, failing which minimise, the risk of injury from manual handling operations. In terms, therefore, of the duties arising under reg 4(1)(a) I agree with Lord Carloway that the regulation cannot always be applied, as it were, directly to the particular circumstances in which injury from a manual handling operation is sustained. Of course, if an employee is injured while engaged on an operation or in a manner which should have been, but which was not, specifically prevented by the scheme, the causal link between breach of duty and injury will clearly be established. Where, however, the employee is injured while engaged on an operation arising casually in the course of general labouring duties, then it seems to me that the particular operation or method employed can only fall within a genus of operation or method which it is claimed should have been so prevented. In the present case, for example, had the question arisen, I would have been satisfied that the moving of furniture was clearly a type of operation which should have been foreseen as likely to occur and as involving a risk of injury with the result that it should have been guarded against in the sort of scheme which I have envisaged. Lord Carloway takes the view that risk of injury, in this context, entails little more than the factual occurrence of an injury. I well understand the desirability of this approach since it is otherwise arguable that the effect of these and comparable regulations will be to reduce, rather than increase, the protection previously afforded to the workforce, eg by sec 29(1) of the Factories Act 1961 and by other similarly expressed statutory provisions. However, with all due respect to his Lordship, I doubt whether the legislation here in question will bear that construction. The effect of such a construction, it seems to me, would be to read the phrase which involve a risk of their being injured, where it appears in reg 4(1)(a) of the regulations, as if it were synonymous with which result in their being injured, a meaning which would deprive the words used of any real effect. More importantly, precisely the same phrase is used in reg 4(1)(b) where it seems to me even clearer that only...
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