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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McDougall v. Spiers (t/a Duncan Removals) [2003] ScotCS 59 (25 February 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/59.html Cite as: [2003] ScotCS 59

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McDougall v. Spiers (t/a Duncan Removals) [2003] ScotCS 59 (25 February 2003)

FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lady Cosgrove Lord Carloway	A2323/01 OPINION OF THE COURT delivered by LORD CARLOWAY in RECLAIMING MOTION in the cause ANDREW PURVES McDOUGALL, Pursuer and Respondent against GORDON SPIERS, trading as Duncan Removals Defender and Reclaimer _______

 

Act: Moynihan QC, EG Mackenzie; Allan McDougall & Co SSC (Pursuer and Respondent)

Alt: Shand; Simpson & Marwick WS (Defender and Reclaimer)

25 February 2003

1. This is a reclaiming motion by the defender from an interlocutor of the Lord Ordinary dated 11 April 2002 allowing a proof before answer. The pursuer's averments upon record outline a relatively straightforward set of facts. On 24 June 1988, the pursuer was part of a team of four removal men in the employment of the defenders. He was required to move a piano from a house at 5 Crarae Avenue, Ravelston Dykes, Edinburgh. Part of this operation involved the manoeuvring of the piano down a set of steps which ran down from the house in a curve. On the inside of the curve there was a rail, whilst on the outside there were stones covered in foliage growing out from a shrub border. The top surfaces of the stones were a few inches higher than the levels of both the border and the steps. The existence of the stones was obscured by the foliage and that foliage also made their surfaces slippery. The pursuer was walking backwards, holding part of the front of the piano. Because of the presence of the rail, the pursuer had to move further to his left hand side to enable the co-employee nearest to the rail sufficient space. The averments continue :

"The pursuer thought he was stepping onto the shrub border but in fact he stepped onto one of the stones, slipped, lost his footing on the stone and twisted his ankle. As a result he suffered the loss, injury and damage hereinafter condescended upon."

2. The pursuer's case is based initially upon an alleged breach of Regulation 4(1)(a) of the Manual Handling Operations Regulations 1992, namely that the defender failed to "avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured". There then follows an esto case based upon Regulation 4(1)(b), which proceeds upon the hypothesis that it was not reasonably practicable to avoid that need. Having referred to the defender's practice of sending out an estimator to assess the job in advance and, in due course, provide the porters with instructions, the pursuer makes the following averments in support of the Regulation 4(1)(a) case :

"It was a foreseeable possibility that a porter would sustain injury while carrying out the operation of carrying a piano. In particular, it was a foreseeable possibility that a porter would slip in the course of the operation, lose his footing and thereby sustain injury. It was obvious that a large heavy item such as the piano would be required to be carried by four men. It was foreseeable that because of the restricted space due to the presence of the rail, at least one of the men carrying the piano would have to move to his left off the steps to create sufficient room. It was a foreseeable possibility that, having moved off the steps, he would be placing his feet in an area which was not part of the access to the house and did not provide sure footing and as a result he would lose his footing and fall, thereby sustaining injury."

The pursuer offers to prove that there was a foreseeable possibility of injury being involved in a manual handling operation. In that regard he no doubt has in mind the explanation by Lord Macfadyen of the meaning of "risk" of injury in Regulation 4(1)(a) in Anderson v Lothian Health Board 1996 SCLR 1068 (at page 1070), quoted in Cullen v North Lanarkshire Council 1998 SC 451 (per Lord Justice-Clerk (Cullen) at page 455), and repeated in Hall v City of Edinburgh Council 1999 SLT 744 (at page 746) and Easson v Dundee Teaching Hospitals NHS Trust 2000 SLT 345 at page 347). This was also followed by the Temporary Lord Ordinary (Coutts QC) in the Outer House proceedings in Taylor v Glasgow City Council 2000 SLT 670 (at page 672).

3. The import of the dicta in these cases was brought to the attention of the Lord Ordinary in the present case when it was submitted on Procedure Roll that the case ought to be dismissed upon the basis that there were no relevant and specific averments of "risk" of injury; that is to say the existence of a foreseeable possibility of injury. However, the Lord Ordinary rejected that submission. Rather, she was of the opinion that :

"[21] ...the pursuer has sufficiently averred a foreseeable risk of injury involved in this manual handling operation, arising from the type of item being carried, the number of men required to carry it, the restriction in space at the curve on the steps, the necessity for one of the men to move off the steps onto adjacent terrain, the different level and slippery nature of that terrain and the fact that foliage was obscuring it, thus making it difficult for a removal man to see what he was stepping onto."

4. Before this Court, counsel for the defender submitted that the Lord Ordinary had erred in reaching the conclusion she did. The submission ran along similar lines to that presented to the Lord Ordinary, supplemented by reference to the opinion of Lord Reed in the Inner House decision in Taylor v City of Glasgow Council 2002 SC 364 (at pages 368-371) and to the views of Aldous LJ in Hawkes v London Borough of Southwark, Court of Appeal, 20 February 1998, unreported ([1998] EWCA Civ 310). It was, in essence, that the pursuer could not establish a foreseeable possibility of injury where he himself had averred that the stones, which caused him to slip and lose his footing, were obscured by the foliage. The hazard could not be seen and, therefore, no injury could have been foreseen. It was also said that the pursuer could not found upon any failure by the estimator to notice the hazard, since the requirement of assessment only arose once the risk of injury arose. It was not enough to say that a risk of some form of injury might arise from the carrying of a piano where the pursuer was founding upon the existence of a specific hidden hazard; in this case the slippery stones.
5. For the reasons given by the Lord Ordinary as quoted above, we are of the view that the pursuer has averred a relevant case of a breach of Regulation 4(1)(a). It is not disputed that, in order to bring himself within the ambit of Regulation 4(1)(a), a pursuer requires to aver, and ultimately prove, that the operation upon which he was engaged was a manual handling one involving "a risk" of his being injured. Proceeding for present purposes upon the basis that the word "risk" presupposes the existence of a "foreseeable possibility" of injury, the pursuer has averred sufficient specific facts and circumstances as to the existence of such a foreseeable possibility, and indeed one relating to the particular accident which allegedly occurred. He avers that he was engaged in what may well be seen, depending upon the precise nature of the evidence ultimately adduced in support of the averments, as a difficult operation, namely the transportation of a heavy and awkward object down a restricted and curving mode of egress. He avers the necessity of one of the porters (i.e. himself) having to move off the steps onto a piece of ground not designed to be walked upon, namely a garden border, containing slippery foliage and different ground levels, the surface of which was not readily visible to a porter bearing part of the load and having to walk backwards down steps. In these circumstances, it cannot be said that, if the pursuer were to succeed in proving all of these averments, he is nevertheless bound to fail. On the contrary, proof of these averments may well entitle a court to hold that such a breach has been established. We therefore refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary.