EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Osborne Lord Wheatley Lord Drummond Young	[2010] CSIH 39 XA32/09 OPINION OF THE COURT delivered by LORD WHEATLEY in the appeal of JANE McDONALD Pursuer and Appellant; against J. SAINSBURY PLC Defender and Respondent: _______

Act: Milligan QC; Allan McDougall

Alt: Watson, solicitor advocate; Simpson & Marwick

5 May 2010

[1] The pursuer seeks damages against her employers for injuries which she says she received at work on 19 April 2007. She was employed by the respondents at a retail park in Kirkcaldy. Her job was to load pieces of cardboard from the floor, or from roll cages, into a baler. It is said that there were a number of cages in the area which left only a restricted space in which the pursuer had to work. The pursuer maintains that she required to lift the cardboard above shoulder level and place it in the baler. To do so she lifted a bundle of cardboard with one hand on top and the other underneath. She was 5 foot 2 inches in height. The pursuer's description of how the accident happened is critical; she says that, as she carried out this task, "one large piece of cardboard rebounded off the front edge of the baler colliding with another piece of packaging which struck the pursuer's left eye.

[2] In these circumstances the pursuer initially pled three sets of duties of care, which the defenders were said to have breached. First, there were their duties of care at common law; secondly, duties under the Manual Handling Operation Regulations 1992 (and particularly regulation 4), and thirdly, duties under the Workplace (Health, Safety and Welfare) Regulations 1992, (regulations 5 and 10). Having heard argument on the relevancy of these pleadings at debate, the sheriff sustained the defender's first plea-in-law in respect of each of the cases pled and dismissed the action. In the appeal before this court, counsel for the appellant indicated that he did not intend to challenge the dismissal of the common law case or that under the Workplace (Health, Safety and Welfare) Regulations, but attempted to have retained the appellant's second case under the Manual Handling Operation Regulations.

[3] Before the sheriff, the relevant discussion for present purposes was in the first place concerned with how the accident happened. The sheriff concluded from an examination of the pleadings, and on the basis of the submissions made to him, that the pursuer had not given adequate specification of the accident. In particular (at para. 22 of his judgment), he found it unclear how the piece of packaging described in condescendence 2 came into contact with the pursuer's eye. He could not determine where the piece of packaging was prior to the pursuer approaching the baler with the bundle of cardboard, or how, and at what point, it came to strike the pursuer. He concluded that the failure adequately to specify how the accident happened was fatal to the pursuer's common law case, because without an understanding of the way in which the pursuer came by her injury, it was impossible to hold that the accident was foreseeable, or to engage any duties of care on the part of the defenders. He accordingly dismissed the pursuer's action.

[4] Before us, counsel for the appellant submitted that the sheriff had erred in treating the test of foreseeability under the Manual Handling Operation Regulations in the same way as it applied to a case based on duties of care at common law or under the Workplace (Health, Safety and Welfare) Regulations. In the context of common law duties of care, the test was one of reasonable foreseeability, whereas in the context of regulation 4 of the Manual Handling Operation Regulations the test was whether there was a foreseeable possibility of injury. The former test contains an element of probability; the latter requires a lower threshold of foreseeability. It was argued that the sheriff had not apprehended the essential difference between these two tests and had thus applied the wrong test to the facts of the case. This, it was said, had led him into error; he had stated (at para. 28 of his judgment) that there was nothing foreseeably risky in lifting cardboard and putting it into a baler. He had thus wrongly determined an issue of fact under the impression that he was applying a question of law. Reference was made inter alia to Muir v Glasgow Corporation 1943 SC (HL) 3; Bolton v Stone [1951] AC 850; and Taylor v City of Glasgow Council 2002 SC 364 per Lord Reed at paras. [3], [7], [9], [16] and [17]. While not taking issue with any of the authorities cited by the appellant, the solicitor advocate for the respondent maintained that the sheriff's understanding of the averments and his conclusions on the correct legal tests to be applied disclosed no error. He accepted that regulation 4 of the 1992 Regulations required that the pursuer should demonstrate that there was a foreseeable possibility of injury, but maintained that test did not go beyond that.

[5] We are not satisfied that the sheriff has erred in law on the basis of the submissions put before him. That he has not distinguished, in his careful and well-ordered judgment, the test of foreseeability as it applies to common law duties of care from the lower threshold that is applied to the Manual Handling Operation Regulations is readily explained by the fact that this was not part of the debate before him. He concluded, on the basis of the facts as averred, or as they were explained to him at debate, that the question of foreseeability did not arise at all. But we have, no doubt because the factual element in this case has been presented to us in a materially different way, come to a rather more specific view of the way in which the accident happened.

[6] As we have indicated, the key factual averments are found in Article 2 of condescendence. There is no doubt that these averments are not happily phrased. But what we understand from these crucial averments is that the pursuer, working in a restricted space, attempted to lift a bundle of various pieces of cardboard in order to put them into a baler at about eye level, bearing in mind that she was 5 foot 2 inches in height. One part of the bundle of cardboard rebounded off the front edge of the baler, colliding with another part of the packaging in the same bundle, which then struck the pursuer in the eye. It is unfortunate that the second piece of cardboard is referred to as "packaging"; but the reference to one piece of cardboard striking the front of the baler and thus causing another piece of material to come into contact with the pursuer is the only practical reading of the averments which to us makes any sense. There is no other realistic explanation which satisfactorily indicates where the other piece of packaging could have been. Once that is accepted, then we have little difficulty in regarding the pursuer's account of the accident as demonstrating a foreseeable possibility of injury in terms of regulation 4 of the Manual Handling Operation Regulations 1992. This being so we conclude that the pursuer has done just enough to aver a case of sufficient relevance to go to inquiry. We therefore recall the sheriff's interlocutor of 29 December 2008 and allow a proof before answer in relation to that part of her case.

[7] We wish to add two things. Firstly, we consider it lamentable that in a relatively simple accident such as the present it was not possible to draft the pleadings with a reasonable degree of clarity and precision which would have avoided the necessity for any debate or appeal. The failure to do so is the direct cause of the considerable amount of delay in processing the pursuer's claim. For that the pursuer's original legal advisors must accept the responsibility. The defender's position before the sheriff, and also before this court, could not be criticised; submissions on each occasion were plainly justified on one reading of the averments and were prompted by the confusion in the pursuer's pleadings. Secondly, we were reluctant to reverse a judgment by the sheriff which was clear and well though out, and which accurately recorded and dealt with the case as it was presented to him. Any error, such as his conclusion that the exercise in which the pursuer was engaged, as he understood it, was not foreseeably risky, was in the circumstances a minor one. It may be that the crucial difference between the two debates was the effective way in which counsel for the appellant presented the facts as disclosed by the averments. In any event, we have concluded in the circumstances that, it would be unfair to exclude the pursuer from the opportunity of having her claim considered, and so we have sent the case to enquiry.