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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Moohan v. City Glasgow Council [2003] ScotCS 64 (11 March 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/64.html Cite as: [2003] ScotCS 64, 2003 SCLR 367

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Moohan v. City Glasgow Council [2003] ScotCS 64 (11 March 2003)

OUTER HOUSE, COURT OF SESSION
A155/00	OPINION OF LORD BRODIE in the cause PATRICK MOOHAN Pursuer; against CITY OF GLASGOW COUNCIL Defender:   ________________

 

Pursuer: Christine; Thompsons,

Defenders: Erroch; Edward Bain

11 March 2003

Introduction

1. In this action the pursuer sues for damages in respect of personal injuries which he suffered while working in the course of his employment with the defenders as part of a team of workmen who were installing playground equipment at Greenfield Park, Glasgow on 6 March 1997. He avers that his injuries were caused by the breach by the defenders of the duties imposed upon them in terms of the Provision and Use of Work Equipment Regulations 1992 and, in particular, Regulation 5 of these Regulations. He advances no other case of fault or breach of statutory duty. A case of contributory negligence is pled but it was not insisted upon. The sum sued for is £30,000.
2. I heard proof on 7 January 2003 and subsequent days. Mr Christine appeared for the pursuer. Mr Erroch appeared for the defenders. In addition to the pursuer, the following witnesses were led on his behalf: Mr John McCaig and Mr David Spence, the two fellow employees who had been working with him at Greenfield Park on 6 March 1997; Mr Samuel Cairns, who had been the manager of the defenders' Blacksmith Department on 6 March 1997; Mr Kenneth McDougall, a chartered engineer who was led as an expert witness; and Professor Gordon Waddell, a consultant orthopaedic surgeon. The witnesses led on behalf of the defenders were: Mr Ian Mackay, a consultant orthopaedic surgeon; Mr Clive Andrews, an expert in ergonomics; and Mr William Duncan, who was employed by the defenders as a Senior Training Instructor. Further evidence was put before me by way of a Joint Minute, No.21 of process.

The circumstances in which the pursuer sustained injury

3. The pursuer's date of birth is 16 August 1953. As at 6 March 1997, the pursuer was employed by the defenders as a hammerman. It is the job of a hammerman, such as the pursuer, to assist tradesman blacksmiths with their work. The pursuer had been so employed by the defenders since 1979. On 6 March 1997 the pursuer was working in the course of his employment, as part of a team of three, installing playground equipment at Greenfield Park, Glasgow. The other two members of the team were Mr John McCaig and Mr David Spence. Both Mr McCaig and Mr Spence were tradesman blacksmiths employed by the defenders. Mr Spence was the charge-hand.
4. The playground equipment which was being installed at Greenfield Park on 6 March 1997 is illustrated in Production 7/4. Production 7/4 is an engineering drawing, numbered PZW102. This drawing shows a composite structure including platforms, a fireman's pole, a slide, a ladder and a scramble net. The installation of this equipment required the fixing of metal uprights into concrete foundations. That, in turn, required the digging of a number of holes to a depth of 500mm below what would be the surface of the play area. Once holes were dug, the metal uprights could be placed in their respective holes and concrete could be poured into the holes, so forming foundations. The relative position of these holes is shown in plan on Production 7/4. An example of one of the holes is shown in section. That section shows a concrete foundation 400mm in depth. Superimposed upon the foundation is a 100mm layer described in the drawing as "safety tiles or wet pour".
5. At Greenfield Park the play area upon which the playground equipment was to be installed had been landscaped prior to 6 March 1997 by another department of the defenders. A surface had been created out of compacted "type 1" hardcore to a depth of about 400mm. The hardcore was made up of pieces of rock of various sizes up to about 2 or 2 1/2 inches in their largest dimension. It would have been compacted using either a mechanical roller or a vibrating plate. On top of the hardcore was a layer of pea gravel less than 100mm deep. As I understood it, at least once the playground equipment was installed, the play area would be surfaced with safety matting laid on the pea gravel. The pea gravel and safety matting would then together form a surface about 100mm deep.
6. On the morning of 6 March 1997 the pursuer's instructions were to dig a hole in the surface of the play area. This required that he dig down into the compacted hardcore to a distance of at least 400mm. In order to do so he was provided with three tools: a spade, a metal pinch bar and a pick. The technique which he was expected to follow, and did follow, was to loosen the hard core by stabbing (in evidence described as "ramming") downwards with the pinch bar, then, using the pinch bar, to pry loose the hardcore and then to scoop or shovel the loosened hardcore away using the spade. When using the pinch bar to loosen hardcore an operator stands erect, the stabbing movement coming from the shoulder. "Shovelling" is not a word which was used by the witnesses. They talked about "scooping" or "spooning", but "shovelling" seems to me best to describe the action of removing loosened hardcore from what, as the hardcore was removed, became a hole. A video film taken by Mr Andrews at Greenfield Park was shown in court. This film showed a workman employing the technique of loosening ground with a pinch bar and shovelling the loosened material. However, what was loosened and shovelled in the film had the appearance of an area of previously dug soil (the pursuer used the expression "urban soil" when referring to it and Mr Andrews described it as "normal earth which was soft") rather than hardcore. The pursuer explained that, in contrast to what might be done when digging urban soil, it was impossible for him to dig with his spade vertically into hardcore. A difficulty which is encountered when digging a hole in hardcore using a pinch bar and spade is that one cannot cut a sharp vertical side to the hole which will maintain its integrity. Rather, as a workman digs, hardcore will fall (or "crumble") into the hole. In the result the hole will become bigger than is intended. If small holes for foundations are to be situated close together it may accordingly become more convenient to dig one large hole rather than a number of smaller holes. According to the pursuer, should a workman be standing within the hole that he is digging, his feet may become trapped by reason of limited space and by hardcore falling back into the hole. A spadeful of hardcore might weigh up to about 5 kilograms or 11 pounds.
7. The pursuer began work on 6 March 1997 at about 8.00am. Later that morning he had taken the hole down to about knee level (as he stood in the hole). He was standing in the hole. He was shovelling with the spade. He was in what he described as a stooped position when his back "became trapped". It "seized up". He explained that he was frozen in position with the pain. He required to lean over and then to roll out of the hole. He called out and Mr Spence and Mr McCaig, both of whom had been working in the vicinity, came over. The pursuer had to sit down until the pain abated. He decided he could not go on working that day. He returned to the defenders' workshop at Paton Street, Glasgow where he reported the accident at about 12.15pm to a manager, Mr Stein. Production 6/1 is a defenders' Incident Report form documenting the pursuer's report of the accident. In that report form the time of the incident is given as 11.45am on 6 March 1997. Although it was not reported directly to him, Mr Cairns became aware of the pursuer's accident on the day it occurred. He investigated the circumstances by speaking to Mr McCaig and Mr Spence. They confirmed to him the account noted by Mr Stein in the Incident Report.
8. As appears from the pursuer's training record, Production 7/1, and the Manual Handling Course documentation, Production 7/2, the pursuer attended a Manual Handling Course on 14 December 1995. He had had distributed to him a Health and Safety Employee Handbook, Production 7/6. The Handbook contains a section entitled "Good Handling Techniques". While it was suggested to the pursuer in cross-examination that the principles taught in the Manual Handling Course would also apply to the task of digging, the pursuer was unable to confirm that. He had never received any specific instruction or training in digging since beginning work with the defenders in 1979. When asked about the content of the December 1995 course, the pursuer replied that basic lifting techniques were all that he could recall being discussed. He had, however, dug several hundred holes in the eighteen years or so during which he worked with the defenders as a hammerman. He had done so using a pinch bar and a spade without any previous untoward incident. He could not recall ever feeling a strain. He had previously dug holes in hardcore but more often he had dug holes in yielding soil. He regarded digging into hardcore as a strenuous job and had "moaned" about it to his fellow employees. He had not made what he described as a "formal complaint" but he had mentioned the heavy nature of the work of digging to his brother, Kevin Moohan, who was an employees' representative on the safety committee. That other employees of the defenders considered the digging of holes using a pinch bar and shovel to be heavy work which might be better done using mechanical means, was supported by the evidence of Mr Cairns, who accepted that some members of the workforce had approached him with requests for mechanical assistance. This was in order to make the job of digging easier. The pursuer accepted in cross-examination that he had never refused to dig holes in hardcore using a pinch bar and spade and that he had not thought that digging in hardcore was a dangerous activity.
9. There was no evidence to indicate what the pursuer might have learned from formal instruction or training in digging which would have been additional to what he had learned from the practical experience he had gained in digging some hundreds of holes.
10. Mr McCaig, although a tradesman blacksmith, had experience of digging holes using a pinch bar and spade, both before and after March 1997. When he was asked during his evidence in chief whether digging into hardcore had, in his experience, given rise to problems, he gave the instance of finding brick (by which I understood him to mean a large piece of brick) in the hole. He gave no other instance of a problem but did explain that on some occasions he had encountered the difficulty, which the pursuer had described, of material falling back into the hole. In cross-examination he accepted that a spade and pinch bar were perfectly appropriate tools to use for digging holes. Mr Spence also had experience of digging holes in hardcore. He too had experienced material falling back into the hole as it was dug. He had on occasion refused to do jobs which he considered to be dangerous but he had never refused to dig a hole with a spade and pinch bar. He qualified that by explaining that had he known a mechanical excavator had been available on 6 March 1997 he would have asked that it be used because it would have made the job easier. However, he accepted that there was nothing inappropriate in the pursuer having been asked to dig a hole in the hardcore surface of the play area of Greenfield Park on 6 March 1997.
11. In 1995 the defenders carried out a Health & Safety Risk Assessment. Part of the report on that Risk Assessment which relates to the work of blacksmiths and hammermen, was produced as Production 7/3. Mr Cairns described it as a generic risk assessment by which I understood him to mean that it looked at types of activity rather than more specific tasks. As it was put in a question to Mr Cairns during his evidence in chief, the Risk Assessment looked at "the whole activity of digging." The report is presented in tabular form. The table has seven columns, headed, respectively: Activity, Potential Injury/Damage, Causes, Degree of Risk, Persons at Risk, Current Preventative and Protective Measures, and Non-Compliance/Action. One activity which is reported upon is "Digging". The entry for the corresponding Potential Injury/Damage column is "Back injury, Body Strains/Sprains"; that for Causes is "Incorrect working method. Over stretching, excessive bending"; that for Degree of Risk is "Medium"; that for Persons at Risk is "Employee"; that for Current Preventative and Protective Measures is "Lifting & Handling Training Provided HSM No 14. Use of mechanical aids where practicable. CHSWS on Buried Services"; and that for Non-Compliance is "Supervisor must monitor handling techniques". Mr Christine, on behalf of the pursuer, put it to Mr Cairns that the report on the Risk Assessment recognised that the generic activity of digging involved risk. Mr Cairns responded that this was the reason for carrying out a risk assessment but that there were hazards in any operation. He accepted that the relevant risk was risk of back injury or strain. Mr Cairns was not aware of any employee of the defenders injuring his back when digging using a pinch bar and spade prior to 6 March 1997. The pursuer's remained the only such accident that he knew of. When asked by Mr Erroch, for the defenders, whether use of a pinch bar and spade was likely to cause injury to the workman using the tools, Mr Cairns replied that he just did not understand that. Day and daily, it was part of many employees' work to dig holes using these tools. They were eminently suitable for the purpose. This was taken up by Mr Christine in his re-examination of Mr Cairns. Mr Cairns at first resisted agreeing with counsel that these tools were only suitable in a technical sense, but he did come to concede that their use "might" involve a risk of injury when used to dig in a play area surfaced with hardcore. Counsel followed up that concession by putting it to Mr Cairns that that is why the risk associated with digging is stated as being "medium" in the Risk Assessment. Mr Cairns's response was that personally he would say it was a low risk rather than a medium risk but that he had not been a member of the committee which had carried out the assessment. He accepted, however, that a pinch bar and spade would not be suitable for digging into every surface. They could not, for example, be used to dig into concrete.
12. No mechanical means of digging holes was available at Greenfield Park on 6 March 1997. It would, however, have been practical to do part of the work of digging the necessary holes mechanically. Use could have been made of a small mobile mechanical excavator, such as the machine referred to in evidence as a "Bobcat". Mr Cairns thought that the reason that a Bobcat was not used on sites such as Greenfield Park was that it would damage the surface, but this view was not shared by the pursuer, Mr Spence or Mr McDougall. However, had a mechanical excavator been used to dig the holes necessary for the installation of the playground equipment, it would have been necessary for a workman such as the pursuer to complete the work using a spade in that the shovel of such a mechanical excavator cannot clear all the debris from a hole which has been dug into hard core.
13. No assessment was carried out as to the risk of injury associated with digging holes using a pinch bar and spade which either was specific to Greenfield Park or was specific to playground sites as opposed to other sorts of site.

The consequences of the pursuer's injury and its likely mechanism

14. Having reported the accident, the pursuer went home. He did not think his condition was serious enough to justify attending hospital but he was in pain. The pain was localised in his lower back. As soon as it was convenient, he telephoned his general medical practitioner, Dr Angela Dingwall. She advised him to take painkillers and to rest in bed until he felt able to attend her surgery. He attended the surgery on 12 March 1997. He was treated with analgesic and anti-inflammatory medication. He was referred for physiotherapy by the defenders' occupational health advisers. The pursuer explained that he wanted his employer to know that he had taken every step to promote his return to work. He had had physiotherapy some years before. Then it had been successful in ameliorating his symptoms but this time it did not appear to help. Rather, it appeared to the pursuer to make his symptoms worse. The pursuer was examined by Mr Kumar, orthopaedic surgeon, on 9 October 1997. Mr Kumar's letter to the pursuer's general practitioner, dated 9 October 1997, states that x-rays of the pursuer's lumbo-sacral spine showed evidence of narrowing of the disc spaces in the lower part of the lumber spine, but no other problems. Mr MacKay reviewed the same x-rays prior to preparing his report of 23 August 2002, Production 7/5B. He described them as showing minimal degenerative changes with quite well preserved disc spaces. According to Mr MacKay, there was normal alignment of the spine, lumbar lordosis being well maintained. In his letter of 9 October 1997 Mr Kumar describes the pursuer's symptoms as mechanical backache with referred pain down the legs. According to the pursuer, Mr Kumar advised him to look for a lighter job. That is not stated in terms in Mr Kumar's letter to the general practitioner but it is not inconsistent with what appears in the letter and I have no reason to disbelieve the pursuer on this matter. According to the pursuer his back was not getting better in 1997. He had received no advice from the defenders' occupational health advisers. He did not feel capable of returning to work, at least in a capacity such as hammerman where he would have to carry out heavy labour. He continued to take painkillers and to rest. He discussed his progress on a three monthly basis with representatives of the defenders. His condition did improve progressively during the course of 1998. He eventually returned to work in March 1999. On his return to work he was initially designated as "Gardener 1". To begin with, he returned to work on a part-time basis carrying out light duties. His medical process was monitored by the defenders' occupational health advisers. Limits were set on what he could do and he built up from there. After about nine months he was able to carry out all the duties of his new position. However, he has not returned to the heavier job of hammerman. Had the alternative position designated as Gardener 1 been offered to him perhaps six months previously to March 1999, the pursuer considered that he would have been able to do that work, but that offer had not been made. He has not required to take time off work since March 1999.
15. The pursuer accepted that he had suffered from lower back problems prior to the accident. He described his condition as sciatica. He had taken some time off work in 1996 but immediately prior to the accident on 6 March 1997 he had been symptom free and able to carry out the arduous work of a hammerman. He described himself as quite happy with the condition of his back as at the date of the proof. He now suffered only occasional pain. He required no treatment beyond exercise.
16. The pursuer was examined by Professor Waddell on 26 July 1999. Professor Waddell's report following upon that examination is Production 6/4. In that report he records the pursuer as saying that his back did not bother him "in any great sense". He did not describe actual pain in the back. His problem was "basically constant sciatica" radiating from the right buttock to the right heel. The pursuer was coping with his job. He had no restrictions around the house or in his leisure activities. On examination he was found to move freely with full and normal pain-free movements. There were no signs of nerve irritation and no motor, sensory or reflex loss. There was no evidence of nerve dysfunction in the legs. Professor Waddell examined the pursuer again on 3 December 2002. His report on that examination is Production 6/5. Essentially, that confirms the findings at the first examination. Professor Waddell concludes that there was no objective evidence of any permanent damage or incapacity for work resulting from what had occurred on 6 March 1997.
17. Mr Mackay examined the pursuer on 17 January 2002. His report on that examination is Production 7/5A. He provided a supplementary report, dated 23 August 2002, having had a sight of x-rays and more complete general practitioner records than had been available to him previously. That supplementary report is Production 7/5B.
18. Both Professor Waddell and Mr Mackay considered that the pursuer had probably sustained a lower back strain on 6 March 1997. As appears from Professor Waddell's report dated 26 July 1999, 6/4 of process, the pursuer stated to Professor Waddell that in the accident he had twisted himself and felt pain and "locking in" in his lower back and right hip. Professor Waddell considered a lower back strain to be consistent with such a mechanism. Mr Mackay described the injury suffered by the pursuer as a minor back strain. Professor Waddell explained that by using the word "strain" he was describing a mechanism of injury rather than a particular kind of injury in the sense of a particular pathology, but he supposed that there had been some damage to soft tissue or joints or ligaments consequential either upon external or internal forces. Having regard to all the evidence but, in particular, to the evidence of the pursuer and Professor Waddell, I find it proved that the pursuer suffered damage to soft tissue or joints or ligaments, productive of the symptoms complained of by him, which was caused by a stretching or twisting movement of his lower back while he was engaged in shovelling hardcore from the hole which he was in the process of digging on 6 March 1997.
19. Professor Waddell saw what had occurred as a recurrence or aggravation of a pre-existing condition which had manifested itself in similar recurrent problems since about 1990. Both Professor Waddell and Mr Mackay would have expected the pursuer to have been fit for at least light work after a matter of weeks or, at most, a few months (about 3 months, according to Professor Waddell and 4 to 5 months at the most, according to Mr Mackay), rather than the eighteen months (that is until about September 1998) spoken to by the pursuer. Professor Waddell offered the opinion that any present or future low back symptoms which may be suffered by the pursuer will, on the balance of probabilities, be attributable to the pre-existing condition of his back. There is no medical basis for expecting any future complications, osteoarthritis or spondylosis, serious deterioration or restriction of future employability attributable to the accident of 6 March 1997. Mr Mackay agreed with this assessment.
20. Parties were agreed that Production 6/2 was a true and accurate statement of the wages, benefits and allowances of the pursuer for the periods to which it related. They were agreed that in the event of the defender being found liable to make reparation to the pursuer in respect to the accident referred to on Record, his net loss or earnings from the date of the accident until 4 March 1999 was £17,444.37, inclusive of interest up to the date of proof. In the event that I should hold that wage loss was recoverable in respect of a shorter period, parties were agreed that Production 6/2 should be used to calculate the wage loss over the relevant period. The parties were further agreed that if it be the case that the pursuer was incapacitated for the period between 6 March 1997 and 4 March 1999, necessary services in terms of sections 8 and 9 of the Administration of Justice Act 1982 are fairly quantified at the sum of £375 and that should it be held that he was incapacitated for a shorter period then these services are fairly quantified in the sum of £16 per month from 6 March 1997 until the date of his recovery.

Liability

The Relevant Statutory Provision

21. The sole issue in relation to liability is whether the defenders were in breach of the duties imposed upon it by Regulation 5 of the Provision and Use of Work Equipment Regulations 1992. Regulation 5 of the Provision and Use of Work Equipment Regulations 1992 provides:

"Suitability of work equipment
   5. -(1)  Every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided.
    (2)  In selecting work equipment, every employer shall have regard to the working conditions and to the risks to the health and safety of persons which exist in the premises or undertaking in which that work equipment is to be used and any additional risk posed by the use of that work equipment.
(3)  Every employer shall ensure that work equipment is used only for operations for which, and under conditions for which, it is suitable.
(4)  In this regulation suitable means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person."

The Submissions of Counsel

22. Mr Christine, on behalf of the pursuer, submitted that, on the evidence, the use of a spade to dig into and scoop away rubble and rock while the person using the spade was standing in a hole, was a task which involved stretching, twisting and bending and which carried with it the risk of injury, as had been recognised by the defenders in their Risk Assessment, 7/3 of process. In Mr Christine's submission it appeared from the Risk Assessment that the action of digging in general carried a foreseeable risk of injury. Mr Christine submitted that digging in hardcore carried a further risk. He referred me to the evidence of Mr McDougall. I shall return to the passage in the evidence of Mr McDougall which was relied on by Mr Christine at paragraph [32] below. Mr Christine reminded me that all the witnesses who were asked about it, other than Mr Andrews, had accepted that it was more difficult to break up compacted hardcore than to break up soil. It was digging in soil which was what was shown being done on the video. Different materials present different problems. Mr Christine referred to the resistance hardcore presents to being broken up and its nature when broken up. He referred, in particular, to its tendency to fall back into the hole when a hole was being dug. Mr Christine submitted that in selecting a spade to carry out this particular operation, the defenders had failed to have regard to the circumstances in which it would require to be used. In the result, the spade was an item of work equipment which was used for an operation for which it was not suitable and accordingly the defenders were in breach of Regulation 5(3). Suitability was not to be determined by whether a tool could do the work in a technical sense but, rather, whether or not the operator, in using the tool to carry out the operation, ran a risk of injury as a result of this use. The effect of Regulation 5, read as a whole, was that if it was reasonably foreseeable that the use of the spade in digging into and clearing out compacted hardcore would result in an injury to the pursuer through his use of the spade, then the defenders were in breach of duty. Mr Christine referred me to the passage in the Opinion of Lord Reed in English v North Lanarkshire Council 1999 SCLR 310 at 320 F where Lord Reed, having drawn attention to the fact that the 1992 Regulations are intended to give effect to Council Directive 89/655/EEC, states that Article 3(1) of the Directive requires not only that equipment "be suitable for the work to be carried out" but also that it "may be used by workers without impairment to their safety or health". The approach taken by Lord Reed had been approved by Lord Macfadyen in Hurley v William Muir (Bond 9) Limited (unreported), 18 January 2000. Mr Christine also referred me to Munkman, Employers' Liability (13^th edition.) paragraph 13.11 where, in relation to Regulation 4 of the Provision and Use of Work Equipment Regulations 1998 (which replaces Regulation 5 of the 1992 Regulations but which is in precisely the same terms as Regulation 5) it is said:

".....the burden imposed by this Regulation upon employers is a heavy one: wherever the use of a machine is capable of giving rise to a risk of injury it is deemed to be unsuitable and whenever injury arises out of such use the employer will be strictly liable."

23. Mr Christine submitted that the risk of injury associated with the use of the spade could have been considerably reduced had a mechanical excavator been used. He accepted that it still would have been necessary to use a spade to scoop or shovel away hardcore but there would have been less to shovel and the task would have been completed over a shorter period of time. The conclusion was that in the sense which is relevant to Regulation 5 of the Regulations, a spade was not a suitable item of work equipment for digging this particular hole in this particular material.
24. In responding on behalf of the defenders, Mr Erroch accepted that the Risk Assessment carried out by the defenders had identified a risk of back injury associated with digging operations but it had also identified that this risk could be addressed by training and manual handling techniques and the provision of mechanised equipment where practicable. It was disputed that scooping or shovelling hardcore was more difficult than scooping or shovelling earth or that it involved an attendant foreseeable risk of injury. He reminded me of the evidence of Mr Andrews to the effect that scooping hardcore from a hole involved the same physical mechanism as scooping soil from a hole. He also reminded me that the pursuer had sustained his injury not while digging into hardcore but while removing hardcore from the hole. Of the witnesses who had given evidence, only Mr McDougall had spoken to the operation which the pursuer was required to carry out as involving a foreseeable risk of injury. Mr Erroch then turned to Regulation 5(2). The obligation placed on the defenders was only to have regard to the risks to the health and safety of persons existing in the premises or undertaking in which an item of work equipment was to be used and any additional risk posed by the use of the work equipment. The defenders had fulfilled their obligation by carrying out the Risk Assessment which was reported in No.7/2 of process. In order to determine whether there had been a breach of Regulation 5(3) it was necessary to look to the terms of Regulation 5(4). According to Mr Erroch, Regulation 5(4) required the court to look at what he described as the "common law approach to foreseeability". In order to find that the spade had been used for an operation for which it was not suitable, the court must be satisfied that back injury was a reasonably foreseeable consequence of the spade's use. Here there was no evidence that such injury was reasonably foreseeable. The pursuer had carried out similar operations for a period of eighteen years without incident. Mr Cairns knew of no blacksmith or hammerman who had suffered injury when engaged on work such as was being done by the pursuer on 6 March 1997. In order for the court to determine that there had been a reasonably foreseeable risk of injury it might not be necessary for the pursuer to lead evidence of an injury having previously occurred, but it would have been necessary to lead evidence of complaints. The closest the pursuer had come to doing that was the reference to what he claimed to have said to his brother. In looking to whether injury was reasonably foreseeable, the court should have regard to the weight which the pursuer would require to lift. According to Mr Andrews and Mr Cairns it would be no more than about 11lbs. That pointed away from a risk of injury. Having regard to the evidence of Professor Waddell, Mr Mackay and Mr Andrews, Mr Erroch submitted that had it not been for his previous back complaints, the pursuer's injury would not have occurred. Mr Erroch accepted that the question was what was the proper interpretation of the 1992 Regulations, but it would be artificial to consider the Regulations in the abstract. Here the pursuer had been carrying out similar tasks without incident for eighteen years. The equipment provided, being a spade, was admittedly suitably constructed for the purpose for which it was used. The pursuer was lifting a modest weight on the spade. He was carrying out an activity which, according to Mr Andrews, presented no identifiable ergonomic risk. Thus, what had occurred was an accident plain and simple. The pursuer was unfortunate in that he had a pre-existing condition of his back pre-disposing him to injury. Were the court to find the submission made on behalf of the pursuer to be well founded, the result would be that an employer who was using inherently safe equipment in an environment in which it was commonly used and in a way which was not unsafe would be found in breach of statutory duty merely because an employee had sustained an accident. This would be to take the protective intent of the Regulations too far.

Decision

25. In short summary, the submission on behalf of the pursuer is that the spade, pinch bar and pick provided to the pursuer were work equipment which, on the occasion that the pursuer sustained injury were being used for an operation or under conditions (digging a hole in hardcore in the manner described above) for which they were not suitable, that this constituted a breach of Regulation 5 (3) of the 1992 Regulations, and that this breach caused the pursuer to sustain injury (in that in carrying out the operation using this work equipment he over-stretched or twisted his back).
26. I immediately accept that the three tools were work equipment. I have found it to have been proved that the pursuer sustained his injury by reason of his stretching or twisting his lower back while using one of these tools, namely the spade. The spade was not the direct instrument of that injury, as it might have been, for example, had the spade struck pursuer's foot, but that is not of critical importance. As Mr Christine put it, it was the use of the tool which got him into that position. I accept that if use of an item of work equipment requires the operator to adopt a particular body posture or move in a particular way and the result of adopting that body posture or moving in that way is that the operator suffers injury, then it is correct to regard that injury as having been caused by use of the tool. I did not understand Mr Erroch to suggest otherwise, although, as I have previously indicated, in submission he reminded me that the injury had occurred not while the pursuer was digging into hardcore but while he was removing hardcore from the hole by shovelling it (the evidence being that the action used by an operator in shovelling hardcore was the same as when he was shovelling other material and that the weight of a spadeful of hardcore was much the same as the weight of a spadeful of earth). I therefore proceed upon the basis that the pursuer's injury was caused by use of the work equipment with which he had been provided. However, allowing for the fact that the pursuer was standing in a small hole and that there was loose hardcore underfoot, I do not find it to have been proved that there was any causal significance in the fact that the work equipment was being used to make a hole in hardcore rather than in earth or other similar material. I heard a certain amount of evidence as to the practicality of using a Bobcat mechanical excavator as an alternative means of digging holes. As I have indicated, I have found that it would have been practical to use a Bobcat, although use of a Bobcat would not have obviated the need also to use a spade. It might not have obviated all risk of injury, to judge by the evidence of Mr McDougall, who volunteered that he had given evidence in two other court cases where an employee had suffered injury while driving a Bobcat. I am not, however, satisfied that that is relevant. The issue comes to be whether the work equipment actually provided (here, the spade, pinch bar and pick) was suitable for the operation for which that equipment was used. That there exists or that there does not exist alternative work equipment which would be suitable for a particular operation or under particular conditions does not bear directly on that issue. If the work equipment actually used is suitable, then there is no breach of the regulation. If it is not suitable, even if there is no available alternative to that work equipment, then there is a breach of the regulation.
27. At first blush, the proposition that a spade was not a suitable piece of equipment with which to dig a hole, or, more precisely, to shovel loosened material in order to make and then enlarge a hole, is a little surprising. Whether or not the spade is, as it was described by Mr Andrews, almost the oldest tool used by man, I accepted his evidence that it was a well used tool, by which I understood him to mean a very frequently used tool, to carry out tasks very similar if not identical to that upon which the pursuer was engaged. The pursuer, Mr McCaig and Mr Spence had all used a pinch bar and spade to dig holes in hardcore on occasions prior to 6 March 1997. However, as Mr Christine correctly submitted, the concept of suitability for the purposes of the 1992 Regulations goes beyond what Mr Christine described as technical suitability (by technical suitability I understood Mr Christine to mean having the characteristics necessary effectively to carry out the relevant work). As Mr Christine pointed out, Council Directive 89/655/EEC requires not only that equipment "be suitable for the work to be carried out" but also that it "may be used by workers without impairment to their safety or health". That is reflected in the terms of regulation 5 (4) which defines "suitable" as meaning "suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person". Moreover, as the evidence before me indicated, even as a matter of technical suitability, spade, pinch bar and pick will not always be effective tools with which to dig a hole. Mr Cairns gave the instance of making a hole in concrete, where spade, pinch bar and pick would clearly be insufficient. In such a case, he envisaged it as being necessary to use a pneumatic or hydraulic jack hammer, albeit that, as Mr Cairns explained, use of that tool also carried with it the risk of injury (Mr Cairns had in mind vibration induced disease of the peripheral circulation).
28. The expression "reasonably foreseeable" is familiar, if somewhat elastic. I was referred generally to Council Directive 89/655/EEC but it was not suggested by counsel that the terms of the Directive required the expression to be construed in a particular way or that the Directive otherwise afforded assistance in understanding the meaning and effect of regulation 5 (3) and (4). There was no suggestion that the pursuer relied upon the Directive as having direct effect. I bear in mind, however, that a purpose of the Directive is to guarantee a better standard of safety and health in the use of work equipment. I therefore approach the Regulations with the expectation that they will provide a greater degree of protection to workers than common law or, indeed, previously enacted domestic statutory provisions. I accordingly respectfully agree with the approach to interpretation identified by Lord Hamilton in McGhee v Strathclyde Fire Brigade 2002 SLT 680 at 683F-I, but, in accordance with that approach, I take as my starting point the wording of regulation 5 (3) and (4).
29. For something to be "reasonably foreseeable" it need not be probable in the sense of being more likely to occur than not on any particular occasion, but I take reasonable foreseeability to connote a greater measure of foreseeability than mere possibility. What is reasonably foreseeable is what, in the opinion of the court, will be foreseen by the reasonable man with all the information available to him which is, or should be available to the relevant party. The reasonable man is not over-confident but neither is he over apprehensive. What is reasonably to be foreseen in terms of regulation 5 of the 1992 Regulations is something which will affect the health or safety of any person. Given the purpose of the Regulations, what is relevant must be adverse affect. Thus, suitability, in terms of regulation 5 (3), depends upon the absence of reasonably foreseeable risk of material harm. By material harm I mean harm to any person which is more than de minimis. As I have indicated above, Mr Christine cited to me a passage from Munkman, Employers' Liability (13^th edition) at paragraph 13.11where it is stated that:

"... wherever the use of a machine is capable of giving rise to a risk of injury it is deemed to be unsuitable and whenever injury arises out of such use the employer will be strictly liable."

With all respect, I can agree with that statement if, but only if, by "risk" the author means "reasonably foreseeable risk. The expression "risk" may be used to comprehend a quite remote prospect of adverse affect. As Lord Macfadyen said in Anderson v Lothian Health Board 1996 SCLR 1068 at 1070B (approved in Cullen v North Lanarkshire Council 1998 SC 451 at 455): "for there to be a risk of injury, injury need be no more than a foreseeable possibility; it need not be a probability". As I have indicated, in my opinion, for a risk to be reasonably foreseeable it need not be a probability but it must be more than merely a foreseeable possibility.

30. In seeking to persuade me that it was reasonably foreseeable that the pursuer would sustain injury from using a pinch bar and spade, Mr Christine reminded me of the defenders' Risk Assessment. I agree that where an employer has carried out a risk assessment, in attempting to discharge its obligations under regulation 5 (2) of the Regulations, the result of that risk assessment is relevant to the question of whether an adverse affect on the health or safety of workmen consequent upon the use of particular work equipment was reasonably foreseeable. I heard no evidence from anyone who took part in the Risk Assessment. In that state of the evidence, where, albeit in relation to the wide range of activities that may be described as "Digging", a risk of injury is identified by the Risk Assessment, I do not consider that the defenders can be heard to say that an adverse affect on health or safety was not foreseeable. Mr Erroch, on behalf of the defenders, accepted that the Risk Assessment pointed to an appreciation that there was a risk of injury, but argued that I should interpret Production 7/3 as reflecting a judgement that the risk would be avoided by adopting what are described in Production 7/3 as the Current Preventative and Protective Measures, namely training and the use of mechanical aids where practicable. I have difficulty with that submission, at least as it applies to the present case. The pursuer received no training in digging. Therefore, if the Risk Assessment applied to all workers employed by the defenders, and there is no indication that it did not, then the risk of injury which applied in relation to the pursuer was not avoided by training because he was not trained. Nor was it avoided by the provision of mechanical aids because they were not provided. I would also observe that if, as Mr Erroch submitted, the Risk Assessment was to be read as reflecting a judgement that the identified risk could indeed by avoided by training, further preventative or protective measures in the form of the use of mechanical aids would appear to be unnecessary. In the absence of any evidence as to what precisely should be made of the Production 7/3, which is the defenders' document and therefore for the defenders to explain if it is to be construed other than according to its ex facie meaning, I prefer to interpret it as reflecting a judgement that the identified risk could be reduced, but not necessarily avoided, by the measures listed in the Current Preventative and Protective Measures column. In the result, I accept that the Risk Assessment provides the pursuer with evidence of a foreseeable risk of adverse affect upon health or safety consequent upon digging other than by mechanical means. I therefore must take that evidence into account.
31. Mr Christine then pointed me to the evidence of all the witnesses, with the exception of Mr Andrews, to the effect that breaking up compacted hardcore was a more difficult task than breaking up soil in the way demonstrated in the video. I accept that that was the evidence and I accept that that is so. I accordingly bear it in mind, but I do not find, as Mr Christine urged me to find, that the conclusion that I should come to from a consideration of that evidence is that digging in hardcore presents a greater risk than that identified by the Risk Assessment in relation to what was described as the generic activity of digging. That a task is more difficult or more arduous than another task does not necessarily mean that it presents a greater risk of physical injury than does the other task.
32. Mr Christine also relied on the evidence of Mr McDougall as pointing to a risk of injury associated with digging a hole in hardcore. Mr McDougall is a chartered engineer, a European engineer, a Fellow of the Institute of Mechanical Engineers, a Fellow of the Chartered Institute of Building Services Engineers and an Associate of the Institute of Chartered Arbitrators. He holds the degree of BSc. He first qualified in 1972. He has experience since qualifying in acting as a consulting engineer, a resident engineer, a site agent and a project manager. He has acted as an expert witness since 1998 both in England and in Scotland. He has, for example, given evidence in two cases where workmen suffered injury driving a Bobcat. He was present in court during the evidence of all the pursuer's witnesses other than Professor Waddell. He was asked during his evidence in chief whether, on the basis of the evidence that he had heard, the task on which the pursuer was engaged would give rise to a foreseeable risk of injury. He said that it would. In cross-examination he agreed that any manual work must involve a risk of injury. These answers were not elaborated in any way. I therefore do not know what mental process was involved in Mr McDougall giving the answers which he did. He may have experience of workmen being injured when using a pinch bar, pick and spade, as he has experience of workmen being injured when using a Bobcat. He may know of many such instances. He may know of only a few. He may know of none. I simply do not know. It is therefore difficult for me to give much content, let alone weight, to the answers Mr McDougall gave to the questions that he was asked. I would add this. I do not question Mr McDougall's expertise within his field of civil engineering. I do question upon what basis he was qualified to offer opinion evidence, if that is what it was, in answer to the above question asked during his evidence in chief.
33. The defenders also led an expert witness, in the person of Mr Clive Andrews. Mr Andrews satisfied me that he was well qualified and well experienced in the field of ergonomics. Ergonomics, Mr Andrews explained, is the science of understanding what human beings are capable of doing, physiologically and psychologically, and understanding how that ability may be affected by variables in their environment. As well as having a training in physiology and psychology, the ergonomist requires to be trained in anatomy, physics and chemistry. At one point in his cross-examination Mr Andrews offered the view that there was no possibility of injury, certainly not to the back, arising from use of a pinch bar and spade. At another point he described the risk as "non-existent". Taking these answers in isolation does not, however, properly reflect Mr Andrews's evidence on the risks associated with making a hole in hardcore using these tools. Mr Andrews recognised the risk of injury to the back associated with twisting and bending. He gave the instance of back injury being sustained by simply bending over to pick something up from the floor. That acknowledged, he described the task of shovelling with a spade as involving a very low level of stress to the back when carried out with the spade held close to the body, avoiding sudden movements. What led him to his trenchant rejection of the proposition that digging with a pinch bar and spade involved a material risk of injury was the absence of any history of injury of persons carrying out this task when employed by the defenders. It therefore did not appear to me that Mr Andrews was relying on his undoubted expertise when answering questions about the foreseeability of adverse affect on health or safety associated with the use by the pursuer of the particular work equipment with which he was provided. Rather, he was drawing upon what had been spoken to by the pursuer, Mr McCaig, Mr Spence and Mr Cairns: digging holes in hardcore with pinch bar, pick and spade was the method usually employed by employees of the defenders, it was regarded as arduous work which it was preferable to avoid by using a mechanical excavator but it was not regarded as dangerous, and it was not associated with complaints of previous injury.
34. Having regard to all the evidence, I have come to be quite clearly of the opinion that the pursuer's use of pinch bar, pick and spade for the operation on which he was engaged on 6 March 1997 did not involve a reasonably foreseeable adverse affect upon the health or safety of the pursuer or any other person. The work equipment used by the pursuer on that date was therefore suitable in terms of regulation 5 of the Regulations. I therefore find that the defenders were not in breach of their statutory duties. The defenders therefore fall to be assoilzied.

Damages

35. I have found that the pursuer sustained injury, as described above, while shovelling hardcore on 6 March 1997. Although my decision is to assoilzie the defenders, I must nevertheless assess the damages which I would have awarded in respect of that injury, had I found in his favour on the question of liability.
36. Mr Christine submitted that I should accept the evidence of the pursuer as to the duration and the nature of the pain he had suffered. He submitted that I should find that the pursuer had sustained an injury to his lower back aggravating a pre-existing condition. The injury was of such severity that he was unable to work. It should be accepted that the pursuer had continued to experience pain for a period of two years. Professor Waddell had not found that surprising. The controversial issue was the length of the period or the time during which the pursuer had been absent from work. Mr Christine accepted that Professor Waddell and Mr Mackay would have expected the pursuer to have returned to work earlier than he did but the experience of pain is personal and individual. The evidence of the pursuer was that he continued to have pain over the period of his absence from work, albeit that it had diminished in severity. The pursuer had accepted that he would have been able to return to work in about October 1998 but the delay until March 1999 was not of the pursuer's making. The defenders had taken time to find a suitable position for him in its organisation. Neither of the consultant surgeons had found the pursuer to be incredible or exaggerating his symptoms. Mr Mackay, admittedly, was somewhat concerned about the pursuer's vagueness, but the information the pursuer provided was accurate when checked against the medical records. If the pursuer were to be accepted as credible, the court should award damages in respect of his wage loss for all or a substantial part of the period when he was absent from work. Mr Christine accepted that on the evidence, by July 1999 any pain suffered by the pursuer was not attributable to his accident.
37. Mr Christine suggested an award of solatium at a figure in the order of £4,000 to £5,000. In that connection he referred me to the decision of Lord Osborne in Graham v Marshall Food Group Limited 1998 S.L.T. 1448. The whole of the solatium award should be attributed to the past.
38. Mr Erroch accepted that if the pursuer was to be regarded as credible and reliable, the figure suggested by Mr Christine for solatium was not unreasonable. However, in Mr Erroch's submission, the credibility of the pursuer was open to question. The pursuer's evidence differed from the averments on Record. It was averred that he had been instructed to dig a whole of specified dimensions, whereas it appeared from the evidence he had been given no such specific instruction. It is averred on Record that he had complained to the Health and Safety Committee whereas the evidence was that no formal complaint had been made. The averment of continuing pain was not spoken to by the pursuer. In Mr Erroch's submission, the pursuer had made out the task upon which he was engaged to be more arduous than in fact it was. He claimed that his feet had been trapped by hardcore in the hole. This version of events had not been supported by either Mr Spence or Mr McCaig. Similarly, his account of having had to roll out of the hole was not supported by his fellow employees. He had originally stated in evidence in chief that he did not have a training manual whereas he later accepted that he did. This was an attempt to increase the apparent culpability of the defenders. He had been reluctant to disclose information about his previous back condition to Mr Mackay. If, as Mr Erroch submitted I should, I found that the pursuer's pain subsisted for three or four months at most, I should assess solatium at a figure of the order of the £1,750 assessed by Lord MacLean in Gibson v Pickfords Removals Limited 2000 R.L.R. 90.
39. Had I been awarding damages, having regard to the authorities to which I was referred and what was said by counsel, I would have assessed the appropriate amount for solatium at £4000 with interest on the whole of that sum at the rate of 4 per cent from the date of the accident until 6 July 1999 and at 8 per cent thereafter until payment. I would have assessed wage loss together with interest to 7 January 2003, at £17,444.37. That is the figure which appears at paragraph 4 of the Joint Minute. It would have carried interest at the rate of 8 per cent from the date of decree until payment. I would have assessed the claim under reference to sections 8 and 9 of the Administration of Justice Act 1982 at £288, with interest at the rate of 4 per cent from the date of the accident until 6 September 1998 and at 8 per cent thereafter until payment.
40. The above assessments of the appropriate quantum of the three heads of damages reflect my acceptance of the pursuer's evidence that, following upon his accident on 6 March 1997, he experienced lower back pain radiating into the leg, that these symptoms disabled him from his former work as a hammerman, and that they persisted throughout 1997 but improved during 1998 until by September of that year he would have been able to return to light work had it been made available to him. They also reflect the acceptance by pursuer's counsel that any symptoms experienced by the pursuer after July 1999 do not relate to his accident. I formed the view that the pursuer was a credible witness. He was very economical in his description of his symptoms. In his report dated 3 December 2002, Production 6/5, Professor Waddell concludes in these terms:

"Mr Moohan recounted his history in a straightforward and unemotional manner and there is no evidence of any psychological overlay nor of any attempt to magnify or exaggerate his present symptoms or disability."

I would respectfully agree with that as an assessment of the pursuer. I have had regard to Mr Erroch's criticisms of the pursuer's evidence and his submission that the pursuer's credibility was open to question. Mr Erroch correctly identified discrepancies as between the pursuer's evidence and the terms of his Record. No doubt in some cases discrepancies between a party's evidence and the pleadings on his behalf might allow an adverse conclusion to be reached as to that party's credibility. This is not such a case. I do not find the discrepancies to be very material but, more importantly, I do not consider that they yield the necessary inference that the pursuer was other than frank in giving his evidence or, indeed, when being precognosced. It is the pleader who is responsible for the precise terms of the pursuer's pleadings, not the pursuer. I would expect the pleader to reflect as closely as he can in the pleadings the information available to him. I would expect that information to include a precognition or precognitions of the pursuer, but a precognition may be misleading or incomplete through no fault of the pursuer. The pleader may misunderstand or not give proper weight to what appears in a precognition. Felicity in expression may elude the pleader. He may be tempted to take his pleadings a little further than is strictly justified on the information before him, on the more or less reasonable expectation, or even hope, that the evidence will come up to what is pled. I should stress that I have found nothing which I would seek to criticise in the pleadings in the present case and I intend no criticism whatsoever of Mr Christine or those who instruct him. I merely wish to underline that I do not regard it as reason to find the pursuer untrustworthy that his pleadings go somewhat further than his evidence. It is true, as Mr Erroch said, that the pursuer's account of his feet having been trapped by hardcore in the hole and his having to roll out were not supported by either Mr Spence or Mr McCaig. I would admit that initially I had some difficulty in understanding just how an event as described by the pursuer had come about. However, that neither Mr Spence nor Mr McCaig saw this happening is understandable if their attention was elsewhere and the pursuer only called to them once he had got out of the hole. Further, given that the pursuer felt that he was frozen in position with pain while standing in a small knee-deep hole with fragments of hardcore falling back down over his feet, I accept that he indeed might feel trapped and obliged to roll over in order to extricate himself.

41. In that Mr Erroch accepted that if the pursuer was to be regarded as credible and reliable, the figure suggested by Mr Christine for solatium was not unreasonable, and that I have found the pursuer to be credible and reliable in relation to his account of the consequences of his injury, I have taken £4000 to £5000 to be the appropriate range for an award of solatium in this case. In contrast to the pursuer in Graham v Marshall Food Group Ltd supra, the pursuer in the present case does not having continuing disability or persisting symptoms attributable to the accident. I accordingly regard the consequences of the injury to the pursuer in Graham to have been more serious than the consequences of the injury to the pursuer in the present case. I bear in mind the date of the decision in Graham, but applying the guidance available from that case and the common approach of counsel and having regard to all the circumstances, I would have taken £4000 to be appropriate figure.
42. As I have previously indicated, I would have awarded £17,444.37 in respect of wage loss. This is the sum agreed in the Joint Minute as representing the whole of the shortfall as between what the pursuer would have been paid in the period from the date of the accident until the date of his return to work and what he actually was paid. Now, it is clear from the evidence and indeed conceded by the pursuer and on his behalf by counsel, that he was not disabled from working throughout that whole period. Further, both the orthopaedic surgeons who gave evidence agreed that the great majority of persons suffering equivalent injury to that suffered by the pursuer would have been able to return to their usual activities after a few months rather than the eighteen months indicated by the pursuer's acceptance that he was fit for light work by September 1998. I do not find that to be crucial. The relevant questions, in my opinion, are whether this pursuer has suffered a loss of wages as a result of being injured on 6 March 1997 and, if so, what is that loss. The pursuer gave evidence that he felt unable to return even to light work until September 1998. I heard no evidence to the effect that he was in fact able to return to work earlier than that date or that anyone had suggested that he should attempt to return to work earlier than that date, notwithstanding the fact that he was in contact with the defenders' occupational health advisers. I have found the pursuer to be a credible witness. I have no reason to doubt his assessment of his condition. I must therefore conclude that this falls within the minority of cases of persons suffering similar injury to that which he suffered who are unable to return to their normal activities after a few months, it being remembered that his was a more than usually arduous employment. Whereas the pursuer assessed himself as fit to return to light work in September 1998, on the evidence, no such work was made available to him. Had it been made available, I understood him to say that he would have taken it up. There was no evidence and no suggestion that the pursuer failed to mitigate his damages or otherwise acted unreasonably or contrary to proper advice. It is agreed that by reason of his absence from work he lost wages which, with interest, amount to £17,444.37. There being no evidence that that absence from work, which was initiated by the injury, was in any way prolonged by the pursuer misrepresenting or exaggerating his symptoms or otherwise acting improperly or unreasonably, I would have found that the whole of the pursuer's wage loss was caused directly by the injury which he suffered on 6 March 1997 and its sequelae.

Disposal

43. I shall repel the pursuer's first plea-in-law. I shall uphold the defenders' second and third pleas-in-law. I shall accordingly assoilzie the defenders from the conclusions of the Summons. In the meantime I reserve all questions relating to expenses.