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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Purdie v City Of Glasgow Council [2001] ScotCS 302 (21 December 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/302.html Cite as: [2001] ScotCS 302

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[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" but his averments of fact, far from supporting such an assertion, tended to contradict it. There was no question of the pursuer having been instructed to stand on or to clamber over piles of wet magazines or if it having been necessary for him to do so. If there was any risk, it was that of a magazine being blown off the pile and being stood on. But the pursuer had himself averred that, prior to commencing the removal of the magazines, he had made sure that there was nothing under his feet. He had not himself foreseen any risk of a magazine being blown off a pile in the course of his removal of the magazines and of him then inadvertently standing on it. There was no basis on which it could be said that such an event and resultant risk (caused by an adventitious gust of wind) were foreseeable by the defenders. There was no basis on averment for any experience of magazines being blown from where they had been placed or of any prior accidents due to slipping on such items. It was evident that the defenders did not know that the pursuer (as distinct from the JCB and its driver alone) was to be involved in the activity which led to his accident. On any view the pursuer's averments were lacking in the specification necessary to focus any relevant risk. The Court should scrutinise with particular care averments seeking to found on the Manual Handling Regulations in circumstances where factors other than the imposition of a load were said to give rise to a foreseeable possibility of injury. It was quite a different thing to ask an employer to anticipate and to guard against the risks of an employee moving a heavy bag than of the movement by a gust of wind of a slippery item from a pile to a place at which an employee might immediately put his foot on it. If the pursuer's case based on the Manual Handling Regulations was irrelevant or lacking in necessary specification on the ground that injury was not a foreseeable possibility, then his case at common law (which necessarily turned on there being a foreseeable probability of injury) necessarily also must fail.

[4] Miss Springham for the pursuer, in response to Mr Bell's initial submission that there were no relevant averments of a manual handling operation, referred to Cullen v North Lanarkshire Council and cited additionally Divit v British Telecommunications plc (20 February 1997, Lord Cameron of Lochbroom, unreported) and King v RCO Support Services Ltd [2001] ICR 608. There were, she submitted, sufficient averments to bring the circumstances of this case within the scope of the Regulations. In any event it was inappropriate to determine that issue without exploring the whole circumstances more fully at proof. The relevant test of foreseeability (as approved in Cullen v North Lanarkshire Council) was that of a foreseeable possibility of injury. In that connection regard should be had to the circumstances (1) that a number of magazines were accumulated in a pile on the ground, (2) that these were wet from being exposed outside, (3) that the magazines were difficult to remove, (4) that the pursuer required to carry out a turning movement while removing magazines and (5) that the wind had blown some magazines about such that the pursuer might stand on one, as he had. Reference was made to Schedule I to the Regulations and to Easson v Dundee Teaching Hospital NHS Trust. It was unnecessary that there should be a foreseeable possibility of the occurrence of the particular injury which was sustained. If there was any foreseeable risk of injury the employer was under Regulation 4(1)(a) obliged, subject to any issue of reasonable practicability (which had not been raised by the defenders), to avoid the need for employees to undertake any manual handling operations at work. As to the defenders' challenge to the pursuer's case at common law, this had not been intimated in their Note of Argument and in any event was without substance. Although proceeding on the same factual basis as the case under the Regulations, the case at common law was concerned with a different legal basis, namely, the duties to take reasonable care to provide a safe place of work and to devise, institute and maintain a safe system of work.

[5] Against Mr Bell's concession, after amendment of the pursuer's pleadings had been allowed, that there were relevant averments that at the material time the pursuer was engaged in a manual handling operation, the issue for determination on the pursuer's statutory case is whether the pursuer has averred a relevant and sufficiently specific basis for the proposition that that operation was one which involved a risk of him being injured. As Regulation 4(1) has hitherto been interpreted, it is sufficient that there was a foreseeable possibility of injury. It was not suggested that in this case I should adopt any other interpretative approach to the Regulations. Nor is it necessary at this stage to discuss the content of the defenders' obligation in the event that the operation did involve a risk of the pursuer being injured.

[6] In the course of the discussion Miss Springham submitted that it was unnecessary that there should be a foreseeable possibility of the injury which occurred, the employers' duty, if there was any risk of injury, being (subject only to any question of reasonable practicability) to avoid the need for his employees to undertake the operation. If that proposition goes so far as to import that an employee may recover damages for breach of Regulation 4(1)(a) in circumstances where the only foreseeable risk of injury in the carrying out of the operation was of quite a different kind than the event which gave rise to his accident, I have very serious doubts about its soundness. But that issue does not arise for determination here.

[7] In my view the pursuer has made sufficiently relevant and specific averments to allow his case under the Manual Handling Regulations to proceed to a proof before answer. On a fair reading of those averments the pursuer was engaged at the material time as part of the duties of his employment in assisting in the removal of magazines which had been piled in the vicinity of a receptacle. This was, so far as he was concerned, an operation involving manual handling and, insofar as it formed part of his duties, was an operation which the defenders in furtherance of their obligations under Regulation 4(1) required to address. Such magazines had been and were exposed to the weather, including the effects of rain and of wind. The circumstance that at some stage wind might blow away a magazine or magazines from the pile on the ground and present a surface on which a person might slip and injure himself cannot at least at this stage be regarded as beyond the sphere of the foreseeable. The pursuer avers that the magazines "had become wet and were difficult to remove" (from the pile). Even if that may suggest that the magazines tended to adhere to each other (and thus be less susceptible to being moved by a gust of wind), mutual adherence and susceptibility to movement by wind are not necessarily inconsistent - particularly in a context where deliberate steps were being taken manually to reduce the pile. The pursuer's averment that prior to commencing the removal of magazines he had made sure that there was nothing under his feet suggests an appreciation (at least by him) of the risk of a blown or fallen item presenting a hazard. If it was foreseeable by him, it is difficult to see that the risk was not foreseeable by the defenders who on the relevant hypothesis had set the pursuer upon this task. The fact, if it be a fact, that the wet magazine on which the pursuer alleges he slipped had been blown down to its ultimate position while the pursuer was in the course of clearing magazines is not, in my view, so clearly beyond the sphere of giving rise to a foreseeable possibility of injury as to justify denial of inquiry. The risk of injury was also the greater in circumstances in which the employee was making a turning movement while committed to the act of transferring a shovel-load of magazines from one place to another.

[8] While the pursuer's averments might have been fuller and better focused, they are in my view sufficient, if proved, to justify an inference that, even in the absence of any prior incident of this kind, the defenders as employers, if properly addressing the risks incidental to the operation on which the pursuer was engaged, would have recognised as a foreseeable possibility of injury an accident of the kind which in fact occurred. While in a sense the load-bearing aspect of this incident is less prominent than in some cases, I do not accept Mr Bell's submission that a higher standard of specification is required in such a case than in one in which movement of a load is the most prominent feature. Once an operation falls within the scope of a manual handling operation all the foreseeable possibilities of injury incidental to such an operation require to be addressed by the employer.

[9] As I am satisfied that the operation on which the pursuer was engaged did on his averments present a foreseeable possibility of injury being sustained in the manner alleged, the pursuer's common law case cannot be dismissed on the basis of such disposal being inevitably consequential on the disposal of the statutory case. I was not invited to dispose of the common law case on any other basis.

[10] In the whole circumstances I shall allow to parties a proof before answer of their whole respective averments on record.