Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 77

PD1336/14

 

OPINION OF LADY STACEY

In the cause

ELIZABETH GILCHRIST

Pursuer;

against

ASDA STORES LIMITED

Defenders:

Pursuer:  Galbraith;  Digby Brown LLP

Defenders:  Thomson;  BLM

17 June 2015

 

[1]        This is an action for damages following personal injury.  Quantum has been agreed at £14,000.  The pursuer is Mrs Elizabeth Gilchrist.  The defenders are Asda Stores Ltd.  Ms Galbraith appeared for the pursuer and Mr Thomson for the defenders.

[2]        The pursuer’s pleadings are to the effect the pursuer was employed by the defenders as a shop assistant in their store in Coatbridge. She was instructed to hang clothing up in the shop.  The defenders provided her with a dalek style footstool to allow her to reach high racks.  It was of circular construction, 18 inches in height.  It has a single step located in the middle and a flat surface on top.  The top surface of the dalek was not large enough to allow tasks of work where foot movement was required.  The pursuer was standing on the dalek to hang clothes on hooks which were approximately 7 feet off the floor.  She was 5 feet tall. The pursuer had to raise both arms to hang clothing, described as “an awkward manoeuvre”.  It was stated that:

“Whilst the pursuer was standing on the footstool she lost her balance and fell backwards”.

 

Further:

“It was reasonably foreseeable that employees such as the pursuer could become unbalanced and fall when required to undertake a manual handling task and move around while standing on top of the platform”.

 

The pursuer’s averments were adjusted prior to the proof by deleting the following:

“Whilst the pursuer was standing on the footstool and reaching to hang items of clothing she lost her balance and fell backwards”.

 

In substitution the following was inserted:

“Whilst the pursuer was standing on the footstool she lost her balance and fell backwards”.

 

In the averments of duty it is stated:

“They [the defenders] knew or ought to have known that manual handling at height will require movement which will increase the risk of injury. They knew or ought to have known that requiring employees to stand on a dalek platform to carry out the manual handling task of hanging clothes presented a risk of falling. They knew or ought to have known that the pursuer was only 5 feet tall, and would have to raise her arms above her and reach to hang clothing, which may cause her to lose her balance”.

 

[3]        The averments of fault are that the defenders had to provide the pursuer with safe working equipment.  They knew or ought to have known that manual handling at height will require movement which will increase the risk of injury.  They knew or ought to have known that requiring employees to stand on a platform to carry out manual handling tasks presents a risk of falling.  They knew that she was 5 feet tall and that she would have to raise her hands above her head which may cause her to lose her balance.  They should have provided safer access to shelving with sound foot and hand holds.  An adequate risk assessment would have highlighted these risks.

[4]        The defenders’ averments admitted that the pursuer was provided with a dalek stool, which it was claimed was suitable for the task in hand. It is averred that the pursuer was stepping off the stool when she tripped on her feet and fell catching her ankle.  The pursuer is called on to aver if she was moving her feet when she fell, and if she was carrying any clothing.

[5]        The only witness was the pursuer. Her evidence was that on 3 December 2013 at around 11a.m. she was working at her job as an assistant in the clothes department of the defenders’ shop in Coatbridge.  She had been told take packets of clothing from the store room and hang the packets up on racks in the public part of the shop.  This was a task she had performed many times.  The defenders provided the pursuer with a dalek stool to enable her to reach the racks on which the clothes were hung for display.  She described it as set out in her pleadings, of circular construction and approximately 18 inches high.  It has a single step located in the middle of the footstool and a flat surface on top.  The top surface was not large enough to allow her to move around. It was usually referred to as a “dalek”, a name used because of its shape which is reminiscent of the robot known as a dalek in the well-known television programme.

[6]        The pursuer was standing on the flat top surface of the footstool to hang clothing on hooks located at a height of approximately 7 feet from the ground.  She is 5 feet in height.  When she had finished hanging the clothes she stepped off the stool, and fell backwards while doing so.  She said that somehow she caught her foot. There was no handrail that she could grab to save herself from falling.  The pursuer thought that she had several seconds when she knew she was falling; it was suggested to her in cross examination that her fall must have taken place in a second, not several seconds.  She did not agree.  I accept the pursuer as a credible witness who did her best to tell the truth in a straight forward way; however I do not accept that the pursuer is reliable in thinking that several seconds passed between her losing her footing and landing on the ground.  I find that it must have happened in the space of about one second.  The pursuer thought that had there been a hand rail she could have grabbed it and saved herself from falling.  When she fell she had completed her task of hanging the clothes up, and so her hands were empty.  The pursuer told a supervisor that she was stepping off a footstool when she tripped on her feet and fell off catching her ankle.

[7]        The evidence of the pursuer was clear to the effect that the fall was nothing to do with her having to reach above her head to put clothes onto racks.  She had completed that work before she fell.  Her fall happened when she was stepping backwards off the stool and she fell for no reason she could explain; it was just an accident in which she lost her footing.

[8]        The parties entered into a joint minute which agreed evidence about medical records and wage records, and also agreed that a photograph of a dalek stool similar to the one off which the pursuer fell is shown in a report lodged for the pursuer.  In the same report another photograph shows a set of airport steps, provided by the defenders in the grocery department of the shop.  The significance of the photographs is that the dalek has no handrail whereas the airport steps, which are much bigger than the dalek, comprises three steps and an upright frame which rises from the bottom of the structure, set back from the first and second step, and touching the third step.  The defenders lodged a number of productions comprising an accident report, risk assessments and training records which were not referred to in the joint minute, but which were spoken to by the pursuer and no objection was taken to the implication that they were what they bear to be.

 

Risk Assessments

[9]        The pursuer looked at risk assessments lodged by the defenders.  The first was a general risk assessment for work at height.  It noted that the “Work at Height Regulations” apply to any level above ground where there is a risk of a fall liable to cause injury.  It provided that working at height was to be avoided where possible.  It stated that all colleagues are to receive training on the safe use of airport ladders and foot stools.  Both airport ladders and daleks were referred to, and it was noted that they must be adequate in number; purchased from an approved supplier; must not be stood on top of other pieces of equipment; must be properly stored.  There is a provision that ‘stock must not be lifted onto, or from, racks in the warehouse above head height other than by using the airport style step ladder.’  The second risk assessment was another general risk assessment for working at height.  The pursuer was not aware of these risk assessments before her accident.  She was asked to sign an assessment after her accident which include the following:-

“Colleagues must not have to over- reach to carry out their tasks on the shop floor or in the back- up. If this is the case the access method or the location of the task must be reviewed, for instance:-

Use of higher platform steps

Replacement of kick stool with platform steps

Use of stepped merchandising trolley

Lower the stock

(See also ‘Working at Height Risk Assessment’)”

 

The pursuer said that she signed the assessment without reading it.

[10]      Counsel for the pursuer submitted that the inference to be drawn from the risk assessments was that there was no task specific assessment of hanging clothes on racks. Thus there was no system.  She argued that the defenders had failed to provide a safe system of work and had failed to assess properly the risks inherent in hanging clothes at height.  These failures had led to a failure to provide the most suitable equipment and to train the pursuer on using it.

[11]      Counsel for the pursuer argued that the pursuer was a clear and straight forward witness.  She accepted that she had used the dalek many times over the 13 years in which she had been employed.  She accepted she was not over reaching when she fell.

[12]      Counsel argued that the defenders were liable at common law.  She submitted that the pursuer was required to work at height in order to hang clothes on the racks.  She had to carry a pile of clothing in packs with hanger attached in her arms, then once on the dalek, reach forward to hang the packs up.  There was a risk of her ‘overbalancing’ or losing her footing while doing that task.  The defenders could have provided airport style steps, which unlike the dalek, had a handrail.  The pursuer could have grabbed the handrail and saved herself from falling.

[13]      Counsel argued that in the face of foreseeable risk of injury, the defenders failed to take reasonable care for the pursuer’s safety.  She referred to Munkman at p.140, paragraphs 4.49 to 4.51, where the author refers to the existence of duties on the employer

“to take reasonable care, and to use reasonable skill, first, to provide and maintain proper machinery, plant appliances and works; secondly to select properly skilled persons to manage and superintend the  business and thirdly to provide a proper system of working”

 

as set out in the well-known case of Wilsons and Clyde Coal 1938 AC 57 and asserts that there are four elements in the duty of an employer being plant, premises, staff and system of work.

[14]      The Enterprise and Regulatory Reform Act 2013 (the 2013 Act) by s.69 amended the Health and Safety at Work etc Act 1974 s.47 in so far as it relates to civil liability.  The section now provides the breach of a duty imposed by a statutory instrument containing health and safety regulations shall not be actionable except so far as regulations made under the 2013 Act so provide.  Counsel submitted that employers remain under a statutory duty to comply with health and safety regulations, as the duties set out in statutory instruments made prior to the 2013 Act inform and may define the scope of duties at common law.  She made reference to a ministerial statement in the House of Lords in which a government spokesman stated that the act did not undermine core health and safety standards and that employers’ statutory duties would remain relevant as evidence of standards expected of employers in civil cases.  She argued that an employer who breached a regulation and was thereby committing an offence could hardly argue that he was acting reasonably.  She referred to Munkman p. 668, Charlesworth & Percy para 12 -73 and Robb v Salamis 2007 SC (HL) 71.  Counsel argued that the existence of a regulation demonstrates that harm is foreseeable, under reference to Boyle v Kodak [1969] 1 WLR 661 in which Lord Reid said

“Employers are bound to know their statutory duty and to take all reasonable steps to prevent their men from committing breaches”.

 

In support of her argument counsel referred to Griffiths v Vauxhall Motors Ltd [2003] EWCA Civ 412, to Buck v Nottinghamshire NHS Trust [2006 ] EWCA 1576, to Spencer v Boots the Chemist [2002] EWCA Civ 1691 and to Baker v Quantum Clothing Group [2011] 1WLR 1003.  She argued under reference to the case of Hide v Steeplechase Co (Cheltenham) Ltd [2013] EWCA Civ 545 that if a regulation applied, then an employer may still avoid liability if what happened was due to unusual and unforeseen circumstances beyond the employer’s control; or if the cause was some exceptional event the consequence of which could not have been avoided despite the exercise of all due care.  Otherwise an employer was liable for injury caused by foreseeable risk.  That case had been approved in Scotland in the case of Kennedy v Chivas Brothers Ltd 2013 SLT 981.  The court approved the dicta of Longmore LJ in the case of Hide to the following effect:

‘Once, therefore the claimant shows that he has suffered injury as a result of contact with a piece of work equipment which is (or may be) unsuitable, it will be for the defendant to show that the accident was due to unforeseeable circumstances beyond his control or to exceptional events the consequences of which could not be avoided in spite of the exercise of all due care on his part.  The fact that an injury occurs in an unexpected way will not excuse the defendant unless he can show further that the circumstances were ‘unforeseeable’ or ‘exceptional' in the sense given to those words in the Directive.’

 

[15]      With regard to the effect of the 2013 Act, counsel for the defender submitted that the section must have some content but did not expand on his argument.  I am prepared to accept counsel for the pursuer’s argument, no contrary submission being made.

[16]      Counsel referred to the Management of Health and Safety at Work Regulations 1999, reg.3, which is to the effect an employer must carry out a risk assessment then implement the findings of the assessment.  She argued that the only assessment was that an alternative to a dalek should be used if the employee had to over-reach; but that had not been implemented.

[17]      Turning to the Work at Height Regulations 2005, counsel submitted that the dalek was a place from which a person could fall a distance liable to cause personal injury.  She adopted what is said in Munkman at p.662,

“Similarly, a fall from a library footstool or any similar equipment would amount to a fall from height”.

 

Therefore, she argued, the use of the dalek should have been subject to the requirement in the regulations to have a risk assessment, and most importantly, the provisions of regulation 7 of the Work at Height Regulations applied; so the employer had to select the most suitable equipment with regard to the risk of falling.  “Suitable” falls to be construed in any respects which it is reasonably foreseeable will affect the safety of any person.

[18]      Counsel also argued that the Provision and Use of Work Equipment Regulations 1998 applied.  Therefore the employers were obliged to select work equipment suitable for the purpose for which it is provided, having regard to risks to health and safety in the work to be done.  Information, instructions and training all had to be provided.  It was reasonably foreseeable that the pursuer could fall from the footstool given the lack of handrail; it was reasonably foreseeable that the pursuer could become unbalanced and fall if required to undertake a manual handling task and move around while standing on the top of the platform.  There are airport style steps with a handrail available to employees in other departments.  Such steps, with a handrail, would enable employees to steady themselves while at height.  A reasonable employer would have provided a risk assessment regarding the footstool which would have highlighted the dangers of falling off and the suitability of airport style steps which had a handrail.

[19]      Counsel submitted that there was no risk assessment in relation to the task of hanging items at height and in any event, the only assessment that was done was not implemented as the pursuer did not know that she could ask for an alternative access method if she had to overreach.  She emphasised that it was not sufficient for a risk assessment simply to be devised as it must thereafter be implemented.  She referred to the case of Steven McKeown v Inverclyde Council 2013 CSOH 141.

[20]      In her submissions about the application of law to the circumstances, counsel argued that as a general proposition, when anyone is required to work at height, there will be an associated risk of falling and the most basic step that ought to be taken by an employer is to consider how support can be provided in the circumstances.  She went on to say that the ever present risk of falling while working at height may be increased depending on the task to be carried out.  She argued that the pursuer had to carry bulky items, move around and reach out.  She argued that a reasonable employer ought to have considered that risk and taken reasonable steps to address it.  She argued that the pursuer’s evidence was that she had to carry numerous garments at any one time and she had to use both hands for the task and so did not have a hand free to support herself. 

[21]      Counsel argued that the defenders had breached regulation 3 because a proper assessment would have identified that the pursuer, who was five feet tall was at risk of overreaching and overbalancing while working on the dalek footstool.  That risk ought to have been reduced by the provision of airport steps.  With reference to regulation 7 of the Work at Height Regulations 2005, counsel submitted that the equipment suitability ought to be determined by the risk of falling.  She said that the evidence was that the defenders had two options in terms of equipment:  the dalek or the steps but there was no evidence that they ever considered which was more suitable.  They simply provided the daleks with no option being afforded to their staff.

[22]      Counsel for the defenders argued that the pursuer said she was stepping off the footstool when she tripped on her feet and fell catching her ankle.  She made no mention of any manual handling action being awkward, or of losing her balance due to reaching up.  Separately, even if she did fall while actively engaged in the hanging of items of clothing, the accident was not caused by the fault of the defenders or the breach of any statutory duty.  The defenders carried out a risk assessment sufficient for the straightforward task of using a footstool.  This footstool was the most suitable work equipment for the task of moving along the line of merchandise.  The accident happened because the pursuer failed to take care when stepping down from the footstool.

[23]      Counsel argued that there was no liability on the defender.  The dalek footstool is in common usage and has been for many years.  There was no evidence that it was inherently unsafe or that it had caused accidents.  He submitted that the pursuer had finished the task of hanging up the clothes and she started to step down from the dalek and then fell.  Thus the fall was not caused either by the task or by the provision of the dalek.  The fall was caused by the pursuer making a mistake as to her footing. 

[24]      Counsel argued that the pursuer’s evidence was perfectly plain that she was coming off the step when she somehow lost her footing or caught her ankle and fell.  That was backed up by what she told the manager who asked her what had happened and filled in the accident form.  It is also what she told the consultant surgeon, as could be seen from a medical report agreed between the parties.  In contrast, the summons had stated the following:

“Whilst the pursuer was standing on the footstool and reaching to hang items of clothing she lost her balance and fell backwards.”

 

Those pleadings had been adjusted to read as follows:

“While the pursuer was standing on the footstool she lost her balance and fell backwards.”

 

[25]      Counsel submitted that the question for the court was as follows:  “As a matter of law was the defender under a duty to provide airport style steps?”  He argued that when the alleged negligence was a matter for omission it was necessary that proof of fault of omission should be one of two kinds either to show that the thing which the defender did not do was a thing which was commonly done by other people in like circumstances or to show that it was a thing which was so obvious they wanted that it would be folly on anyone to neglect to provide it, on the authority of Morton v William Dickson Ltd 1909 SC 807 at 809.  He pointed out that in this case there is no averment suggesting it was common practice to provide airport style steps.  There was certainly no evidence to that effect.  There was no suggestion that the dalek was an obvious danger.  He argued that the pursuer’s core case was that the defender could have provided airport style steps but the legal test for a breach of duty is not what could have been done but what should have been done.

 

Decision

[26]      The pursuer did not give evidence to support her case on record.  The fall did not happen because her hands were full with packets of clothing, or because she had to reach above her head on a stool which was of a design which made such a movement dangerous. All that has been proved is that the pursuer fell when coming down from the dalek.  I accept that she was working at height.  However, it was not argued that the dalek was unsafe.  Counsel specifically stated that it was safe equipment for use for example in a library, where a person might step on it to retrieve or replace a book on a shelf, and then step off it.  She accepted that there would be no breach by an employer requiring an employee to do that.  Her case was that the dalek was unsafe for the particular task that the pursuer had to perform.  There is no evidence to support that contention, in that the pursuer did not fall because she had to carry out any manual handling task.  Thus the pursuer did not prove the case on record.  She had no pleadings for any case that the dalek was in itself unsafe, and she made no submission to that effect. 

[27]      I accept the argument put before me by counsel of the pursuer about the applicability of the regulations.  I accept that the employers were under a duty to carry out a risk assessment of the use of the dalek.  I find that they did so.  It was accepted by the pursuer that the dalek could safely be used in certain circumstances.  There was no case put that it was not a suitable piece of equipment for use in getting access to a rack.  This is a case where an accident happened which was not caused by breach of any duty by the employer.  The facts which I find proved do not show that the dalek footstool was not suitable for standing on.  It seems from the pleadings that at some stage it had been averred that the pursuer fell because she had to reach up and that action caused her to lose her balance.  Those averments were removed, no doubt following clarification of what the pursuer claimed had happened.  At the proof, the pursuer’s evidence was clear, as noted above.  All that could be said was that she had to stand on a stool to do her work.  It was accepted that the stool was suitable for the task for which it is often used in a library.  That being so, it has not been shown that the accident happened as a result of any use of the stool in breach of the employer’s duties.

[28]      I therefore grant decree of absolvitor.