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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hughes v. Grampian Country Food Group Ltd [2007] ScotCS CSIH_32 (18 May 2007) URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSIH_32.html Cite as: [2007] ScotCS CSIH_32, [2007] CSIH 32 |
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
|
Lord PresidentLord PhilipLord Eassie |
[2007] CSIH 32A887/03 OPINION OF THE LORD PRESIDENT in RECLAIMING MOTION in the cause MARGARET HUGHES Pursuer and Reclaimer; against GRAMPIAN COUNTRY FOOD
GROUP LIMITED Defenders and Respondents _______ |
Act: Campbell, Q.C., Heaney; Thompsons
Alt: A. Smith, Q.C., Duncan; Simpson &
Marwick
18 May 2007
[2] The Lord
Ordinary assoilzied the respondents but expressed a view on the value of the
claim. He found that the aggravation of
symptoms was relatively short lived: it
commenced at about the beginning of December 2000, involved a first visit to
the reclaimer's doctor on
[4] As part of
her proof the reclaimer put in evidence a video recording (No. 6/1 of process). Although this recording was made on
"The video initially shows the
employee picking up a carcass from the work bench beside her and placing it on
the work bench in front of her. While
the carcass is on the work bench in front of her, she manipulates the legs and
wings of the carcass, and then applies elasticised string around the carcass before
tossing it onto a moving conveyor belt.
After the first four chicken carcasses, which appear to have been picked
up by the employee from the work bench beside her, she begins to lift carcasses
from shackles on a conveyor belt at approximately head height above the work
bench and take each carcass in turn to manipulate and truss it on the work
bench in front of her. From taking the
carcass from the work bench or from the shackle, through the process of
manipulation and to the point at which the trussed carcass is thrown onto the
lower conveyor belt takes approximately 11 or 12 seconds per carcass. Of this time it appears that less than one
second is taken in lifting the carcass from the shackle to the work bench, and
only a fraction of a second is taken in throwing the trussed carcass onto the
conveyor belt. While the carcass is
being manipulated and trussed, the employee is working on it while the carcass
is on the work bench, or picks it up for a moment to apply the trussing string
around it before placing it back on the work bench".
[6] The
Regulations (1992 SI 2793) were made under powers conferred under the Health and
Safety at Work etc. Act 1974. They were devised with a view to
implementation of the
[7] Regulation 2
provides that
"'load'
includes any person and any animal"
and that
"'manual handling operations' means
any transporting or supporting of a load (including the lifting, putting down,
pushing, pulling, carrying or moving thereof) by hand or by bodily force".
Regulation 4 provides:
"(1) Each employer shall -
(a) so far as is reasonably practicable,
avoid the need for his employees to
undertake any manual handling operations at
work which involve a risk of their being injured; or
(b) where it is not reasonably practicable to avoid the need for
his
employees to undertake any manual handling
operations at work which involve a risk of their being injured; -
[take
certain steps including the making of an assessment and the taking of steps to
reduce the risk of injury]."
In making an assessment an employer is required to have
regard to the factors specified in column 1 of Schedule 1 to the Regulations
and to consider the questions specified in the corresponding entry in column 2
of that Schedule. Schedule 1 is in the
following terms:
"Column 1 Factors |
Column 2 Questions |
1. The tasks |
Do they involve: -holding or manipulating
loads at distance from trunk? -unsatisfactory bodily
movement or posture, especially: -twisting the trunk? -stooping? -reaching upwards? -excess movement of loads,
especially: -excessive lifting or
lowering distances? -excessive carrying
distances? -excessive pushing or
pulling of loads? -risk of sudden movement of
loads? -frequent or prolonged
physical effort? -insufficient rest or
recovery periods? -a rate of work imposed by
a process? |
2. The loads |
Are they: -heavy? -bulky or unwieldy? -difficult to grasp? -unstable, or with contents
likely to shift? -sharp, hot or otherwise
potentially damaging? |
3. The working environment |
Are there: -space constraints
preventing good posture? -uneven, slippery or
unstable floors? -variations in level of
floors or work surfaces? -extremes of temperature or
humidity? -conditions causing
ventilation problems or gusts of wind? -poor lighting conditions? |
4. Individual capability 5. Other factors |
Does the job: -require unusual strength,
height, etc? -create a hazard to those
who might reasonably be considered to be pregnant or to have a health
problem? -require special
information or training for its safe performance? Is movement or posture hindered by personal
protective equipment or by clothing?" |
|
|
"In the present case, on the basis of
the video evidence, it appears that the removal of a chicken carcass from the
upper shackle to the work bench might be categorised as a manual handling
operation, involving as it does both elements of transporting and supporting of
a load. It may also be that the action
of throwing the trussed carcass onto the lower conveyor belt can be categorised
as transporting or supporting of a load by hand or by bodily force. However, there is no suggestion that the
pursuer sustained any injury or exacerbation of symptoms as a result of either
of these steps. Her complaint was
focused on the repetitive movements of the wrist, hands and fingers in the
manipulation of the chicken carcass, by tucking in the legs and wings and tying
it with elasticated trussing string.
While this manipulation was being performed, there was no transporting
or supporting of a load".
"1. The
object of this Directive is to introduce measures to encourage improvements in
the safety and health of workers at work.
2. To
that end it contains general principles concerning the prevention of
occupational risks, the protection of safety and health, the elimination of
risk and accident factors, the informing, consultation, balanced participation
in accordance with national laws and/or practices and training of workers and
their representatives, as well as general guidelines for the implementation of
the said principles.
3. This
Directive shall be without prejudice to existing or future national and
Community provisions which are more favourable to protection of the safety and
health of workers at work".
Article 5.1 imposed a duty on employers to ensure the safety
and health of workers in every aspect related to the work. Article 6 provided:
"1. Within
the context of his responsibilities, the employer shall take the measures
necessary for the safety and health protection of workers, including prevention
of occupational risks and provision of information and training, as well as
provision of the necessary organization and means.
The
employer shall be alert to the need to adjust these measures to take account of
changing circumstances and aim to improve existing situations.
2. The
employer shall implement the measures referred to in the first subparagraph of
paragraph 1 on the basis of the following general principles of prevention:
(a) avoiding risks;
(b) evaluating the risks which cannot be avoided;
(c) combating the risks at source;
... ".
Article 16.1 provided that the Council should adopt
individual Directives, inter alia, in
the areas listed in the Annex. Among the
areas so listed was "Handling of heavy loads involving risk of back
injury". Article 16.3 provided that the
Directive should apply in full to all the areas covered by the individual Directives,
without prejudice to more stringent and/or specific provisions contained in
these individual Directives.
"1. This
Directive, which is the fourth individual Directive within the meaning of
Article 16(1) of Directive 89/391/EEC, lays down minimum health and safety
requirements for the manual handling of loads where there is a risk
particularly of back injury to workers.
2. The provisions of Directive 89/391/EEC shall be fully
applicable to the whole sphere referred to in paragraph 1, without prejudice to
more restrictive and/or specific provisions contained in this Directive."
Article 2 provided:
"For the purposes of this Directive,
'manual handling of loads' means any transporting or supporting of a load by
one or more workers, including lifting, putting down, pushing, pulling,
carrying or moving of a load which, by reason of its characteristics or of
unfavourable ergonomics conditions, involves a risk particularly of back injury
to workers".
Article 3 provided:
"1. The
employer shall take appropriate organizational measures, or shall use the
appropriate means, in particular mechanical equipment, in order to avoid the
need for the manual handling of loads by workers.
2. Where
the need for manual handling of loads by workers cannot be avoided, the
employer shall take the appropriate organizational measures, use the
appropriate means or provide workers with such means in order to reduce the
risk involved in the manual handling of such loads, having regard to Annex 1".
Annex 1 provided the following reference factors:
"1. Characteristics
of the load
The manual handling of a load may
present a risk particularly of back injury if it is:
-too heavy or too large,
-unwieldy or difficult to grasp,
-unstable or has contents likely to
shift,
-positioned in a manner requiring it
to be held or manipulated at a distance from the trunk, or with a bending or
twisting of the trunk,
-likely, because of
its contours and/or consistency, to result in injury to workers, particularly
in the event of a collision.
2. Physical
effort required
A physical effort may present a risk
particularly of back injury if it is:
-too strenuous,
-only achieved by a twisting movement
of the trunk,
-likely to result in a sudden
movement of the load,
-made with the body in an unstable
posture.
3. Characteristics
of the working environment
The characteristics of the work
environment may increase a risk particularly of back injury if:
-there is not enough room, in
particular vertically, to carry out the activity,
-the floor is uneven, thus presenting
tripping hazards, or is slippery in relation to the worker's footwear,
-the place of work or the working
environment prevents the handling of loads at a safe height or with good
posture by the worker,
-there are variations in the level of
the floor or the working surface, requiring the load to be manipulated on
different levels,
-the floor or foot rest is unstable,
-the temperature, humidity or
ventilation is unsuitable.
4. Requirements
of the activity
The activity may present a risk
particularly of back injury if it entails one or more of the following
requirements:
-over-frequent or over-prolonged
physical effort involving in particular the spine,
-an insufficient bodily rest or
recovery period,
-excessive lifting, lowering or
carrying distances,
-a rate of work imposed by a process
which cannot be altered by the worker".
[13] Mr. Campbell
submitted that the Framework Directive set a "goal setting" objective to be
achieved with reference to the health and safety of workers. It was to be given a purposive
construction. The circumstance that that
Directive envisaged work dealing with the handling of heavy loads involving a
risk of back injury did not restrict the scope of the "daughter" Directive or
of national regulations made in furtherance of it to "heavy" loads or to the
risk of "back injury". The Manual
Handling Directive referred to "particularly of back injury", pointing to
injury of that kind not being its exclusive scope. The national Regulations went further. Schedule 1 included questions such as
"Are [the loads] sharp, hot or otherwise potentially damaging", which went
beyond any risk occasioned by the bearing of weight. The Regulations should be given a broad and
purposive construction consistent with the objective of protecting employees
from harm; the
intention was to heighten the obligation on the employer beyond the duty at
common law of reasonable care (Mains v
Uniroyal Englbert Tyres Limited 1995
SC 518, especially per Lord Sutherland at page 531D and Lord Johnston at page
535G). An ergonomic approach was
required (Taylor v City of Glasgow Council 2002 SC 364, per
Lord Reed at page 371D-H; reference was
also made to Lord Marnoch at page 366 and Lord Carloway at pages 372-4 and
378-9). A similar purposive approach to
parallel regulations could be seen in Robb
v
[14] Mr. Smith for
the respondents submitted that the case now advanced by the reclaimer was that,
if there were some elements of pushing or pulling of the carcasses in the
course of trussing them and if such trussing involved some foreseeable
possibility of injury, the respondents were liable in damages. The respondents' position had always been
that this was not a manual handling operation.
They adhered to that position.
Having regard to well-known principles of review (Thomas v Thomas), it
could not be said that any basis for opening up the Lord Ordinary's factual
conclusions had been demonstrated. The
Lord Ordinary had seen and heard the evidence, including seeing the video, with
such commentary as the reclaimer's expert witnesses had offered to it. It was inconsistent with established
principles that the Inner House should be asked to view the video and reach its
own independent factual conclusions on it.
One could not have a trial by video.
It was clear from the Lord Ordinary's Opinion that he had not regarded
the reclaimer as wholly reliable.
Moreover, the reclaimer's experts had not in evidence focused upon those
aspects (pulling, pushing and supporting of the carcasses) upon which reliance
was being placed in the reclaiming motion.
It could not be said that the Lord Ordinary had gone plainly wrong in
the factual conclusions at which he had arrived. It was accepted that the Regulations should
be given a purposive construction but an interpretation which led to an absurd
result should be rejected. Commonsense
should be applied. It was not contended
that the Regulations only extended to back injury cases but the type of injury
which they were directed against was that caused by an excessive load or
repeated loads. There were two questions
to be asked in a case of this kind, namely, (1) whether the activity was a
"manual handling operation" and (2) whether it gave rise to a foreseeable risk
of injury, which need not itself arise directly from the load-bearing (Cullen v North Lanarkshire Council, where it had been conceded that (1) was
satisfied). It was not contended that Cullen had been wrongly decided but the
court might entertain some doubts about the soundness of the concession. But the answer to (2) might inform the answer
to (1). The notion of risk of injury ran
through the Regulations. In the present
case any load-bearing was purely incidental to the trussing. In King
v RCO Support Services Limited
the employee had been carrying and spreading grit; that was clearly manual handling, albeit the
risk of injury was presented by the icy surface of the yard. The purpose of the Regulations was the
avoidance of risk through the bearing of a load (a single heavy load or a
repeated sequence of load-bearing). As
to the evidence in the case, the reclaimer had not been taken through her work
pattern on a step-by-step basis and asked to compare it with what was to be
seen on the video recording. The experts
in commenting on the video recording had not suggested that there was
significance in any weight-bearing involved in the trussing of the
carcasses. Their focus had been on the
manipulation with the fingers, hands and wrists. The Guidance Note issued by the Health &
Safety Executive had no legal status. King v Carron Phoenix Limited and McFarlane
v Ferguson Shipbuilders Limited
had been correctly decided. Lord Brodie's use of the parallel Regulations in McFarlane v Corus Construction and Industrial at para. [51] had been legitimate;
it was not, however, legitimate to argue that because the situation did
not appear to fall within any other Regulations, it must fall within the Manual
Handling Regulations. In Purdie v Glasgow District Council it had in effect been conceded that the
Manual Handling Regulations applied. The
reclaiming motion should be refused.
[16] It is common
ground that the Regulations were made in furtherance of the obligations
incumbent on the
"any
transporting or supporting of a load, by one or more workers, including
lifting, putting down, pushing, pulling, carrying or moving of a load, which,
by reason of its characteristics or of unfavourable ergonomic conditions,
involves a risk particularly of back injury to workers".
It dispensed with the concept of "heavy" loads and, while
identifying the risk of back injury as being of particular concern, did not
limit the scope of the protection to operations which gave rise to the risk of
that specific injury. It identified the
type of load which would give rise to a "manual handling of loads" as being that
which "by reason of its characteristics or unfavourable ergonomic conditions"
involved the risk in question. The
reference factors set out in Annex 1 to that Directive elaborated upon the
characteristics of a load, or the unfavourable ergonomic conditions in relation
to its transportation or support, which were regarded as relevant. All of these point to an activity which by
its intrinsic characteristics or its positional or similar circumstances, gives
rise to a risk of injury by reason of the transporting or supporting of a load
as that term would be understood in ordinary parlance.
[21] Accordingly,
although it may be difficult to define with exactness the scope of the
Regulations, in any particular case their applicability or otherwise must be
determined as a practical exercise by the use of commonsense. It may be that in some circumstances the
purpose for which the item in question is being used may be of some assistance
(see Lady Smith's approach in McFarlane v
Ferguson Shipbuilders Limited) -
though I would not regard the purpose of the activity as a conclusive
test. I agree with Lord McEwan in McIntosh v City of Edinburgh Council that a heavy object may be a load,
notwithstanding that at it may also be a tool.
In so far as the Guidance issued by the Health and Safety Executive
suggests the contrary, I have serious doubts as to its soundness; but it is
unnecessary for present purposes to express any concluded view on that
matter. I agree with the conclusions
reached by Lord Cameron of Lochbroom in Mitchell
v Inverclyde District Council and
by Lord Kingarth in King v Carron Phoenix
Limited in the circumstances of these respective cases.
[24] Before us, the
video recording was played and much reliance was put upon what, it was claimed,
was evident from a simple viewing of it.
We were not addressed on any authority as to the use which a
fact-finding body may properly make of such material in the absence of focussed
commentary on it by a witness. In the
criminal field there is a line of authority on this matter - Steele v H.M. Advocate 1992 SCCR 30, Gray
v H.M. Advocate 1999 SCCR 24 and Donnelly v H.M. Advocate 2000 SCCR 861.
That line suggests, at least in relation to crucial matters of fact, a
somewhat restrictive approach to what may be taken by the decision-maker from
unassisted observation. I find it
unnecessary and, in the absence of the benefit of argument, inappropriate to
express a view as to the use of video recorded evidence in civil proceedings.
[26] For these
reasons I move your Lordships to refuse this reclaiming motion.
FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
|
Lord PresidentLord PhilipLord Eassie |
[2007] CSIH 32A887/03OPINION OF LORD PHILIP in RECLAIMING MOTION in the cause MARGARET HUGHES Pursuer and Reclaimer; against GRAMPIAN COUNTRY FOOD
GROUP LIMITED Defenders and Respondents _______ |
Act: Campbell, Q.C., Heaney; Thompsons
Alt: A. Smith, Q.C.,
18 May 2007
FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
|
Lord PresidentLord PhilipLord Eassie |
[2007] CSIH 32A887/03OPINION OF LORD EASSIE in RECLAIMING MOTION in the cause MARGARET HUGHES Pursuer and Reclaimer; against GRAMPIAN COUNTRY FOOD
GROUP LIMITED Defenders and Respondents _______ |
Act: Campbell, Q.C., Heaney; Thompsons
Alt: A. Smith, Q.C.,
18 May 2007
"alive and well". I agree that an interpretation of a statutory
provision which produces absurd results is obviously to be avoided. It is in my view wholly improbable that the
promulgator of the Regulations intended them to apply to virtually the universality
of human activity in the workplace. Had
that been the intention there would have been no need to employ the adjectival
qualification of "manual handling" to the operations in Regulation 4 and
hence no need for a definition of those words along the lines of that given in
the Regulations. There would have been
no call for a catalogue of factors as contained in Schedule 1 to the
Regulations. In this context it is also
appropriate to bear in mind the wider obligations imposed on employers in the over-arching
Management of Health and Safety at Work Regulations 1999, implementing the
Framework Directive. Further, while I
fully recognise that in implementing the daughter Directive, Member States were
not only free to impose higher standards of worker protection than required by
the Directive, but were also enjoined not to reduce existing standards, it
nonetheless remains the case, in my view, that the European legislative texts,
which the domestic legislative body seeks to implement, are a factor which may
be relevant to the legislative intent of the domestic legislative
instrument. The provisions of those
texts relevant to the present case do not, to my mind, give support for the
submission of counsel for the reclaimer to the effect that virtually everything
done in the workplace constitutes a manual handling operation. They are directed to a particular problem,
namely the risk of injury while handling heavy loads and particularly the risk
of back injury. I find it difficult to
believe that the framer of the Regulations intended dramatically to expand the
field of application of the Manual Handling Directive in its implementation in
the