WRULD Claims heard in England, Scotland and Wales
References to and/or interpretations of Health and Safety Regulations - McFarlane -v- Ferguson Shipbuilders Ltd
| Manual Handling Operations Regulations 1992 | |
|---|---|
| Regulation 4 | Contextual Commentary | McFarlane -v- Ferguson Shipbuilders Ltd | Find Other Cases |
In paragraph 5 of the Judgment of the Outer House, Court of Session on the 16th March 2004, Lady Smith says:
Parties were, however, in agreement that the pursuer's case was founded on an allegation that the defenders required him to work in a manner that involved repeated loading of the soft tissues of his forearm with such force as was liable to cause injury, in breach of their common law duty to take reasonable care, in breach of their obligations under regulation 4 of the Provision and Use of Work Equipment Regulations 1998 and in breach of their obligations under regulation 4 of the Manual Handling Operations Regulations 1992. They were also, ultimately, in agreement that, contrary to what might have been thought from the averments on record, the pursuer sought damages only in respect of the exacerbation of a pre-existing tennis elbow.
Then, in paragraphs 35 to 40, Lady Smith says:
Regulation 4(1)(a) of these regulations requires each employer, so far as is 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".
Regulation 2 defines manual handling operations as being:
"any transporting or supporting of a load (including the lifting, putting down, pushing, pulling, carrying or moving thereof ( by hand or bodily force)".
"Load" is said to "include any person and any animal" but is otherwise undefined in the regulations.
It was the pursuer's contention that the use of the grinder involved pushing and transporting a load. Reliance was placed on the cases of Divit v British Telecommunications PLC unrepd 20 February 1997 and McIntosh v City of Edinburgh Council 2003 SLT 827. The pursuer also submitted that, for there to be a risk of injury in terms of the regulations, injury needed to be no more than a foreseeable possibility (Cullen v North Lanarkshire Council 1998 SC 451; Taylor v City of Glasgow Council 2002 SC 364). Senior counsel did not invite me to adopt the approach adopted by Lord Carloway in Taylor to the question of whether or not the risk referred to in regulation 4(1) requires to be foreseeable or not. Rather, he accepted that there required to be a foreseeable risk of injury to the pursuer before liability under the regulations could arise. Further, he accepted that the regulations would not apply in this case unless the pursuer were to be regarded as having established that he had had to use the grinder with repeated excessive force. He submitted, however, that the pursuer had proved that such a risk arose in this case in respect that he had had to use force whilst grinding and also in respect that doing so put him at particular risk of injury. His pre-existing condition was such that there would, he said, be continuing injury with cumulative rupturing of the fibres in the tendon. In short, his case was that the risk arose from the particular condition of the pursuer who had a pre-existing condition which made him vulnerable to further injury.
Counsel for the defenders submitted that these regulations did not apply. The grinder was a tool that was being put to normal use at the relevant time. It was not a load that was covered by the regulations. The circumstances of McIntosh could be distinguished and the cases of Mitchell v Inverclyde District Council unrepd 31.07.1997, and King v Carron Phoenix Ltd 1999 RepLR 51 involved comparable examples of circumstances in which the regulations were held not to apply. The pursuer conceded that he had to rely on cumulative use of the grinder and on an "eggshell skull" approach. This showed that his case fell outwith the ambit of the regulations. Further, even if the pursuer could rely on the regulations in circumstances where the injury had arisen from a pre-existing condition, the defenders would have to have had some knowledge of it. There was no evidence of any prior knowledge of the pursuers pre-existing tennis elbow on the part of the defenders.
I have reached the view that these regulations do not apply in the circumstances of this case. I agree that the use of the grinder does not fall to be regarded as the transportation or supporting of a load. I disregard the pursuer's suggestion that it falls into that category because the pursuer had to lift it in the course of his work because his complaint was not, as I have already indicated, that he found any difficulty in lifting it. That leaves for consideration the question of whether or not the pushing of the grinder over a surface could be so regarded. I do not see that it can. The use of the expression "load" connotes something that is to be conveyed. The expressions "transporting", "supporting", "lifting", "putting down", "pushing", "pulling", "carrying", and "moving" are all descriptive of different activities involved in the conveyance of a load. The activity being carried out by the pursuer when he was grinding was, however, nothing to do with the conveyance of a load. It may have involved pushing but that was not for the purpose of moving the grinder from one place to another. It was for the purpose of producing a particular effect on the surface over which it was being pushed. I agree that the circumstances can be regarded as comparable to those surrounding the use of the lawn mower in Mitchell.
Further and in any event, the pursuer failed to establish, on the evidence, that the defenders had any knowledge that he was particularly vulnerable to injury because of his pre-existing tennis elbow. In these circumstances and on the approach that was adopted by the pursuer in the end of the day, the case under these regulations would have failed in respect of his not having established that there was a foreseeable risk of his being injured as a result of forceful use of the grinder.
V1.01
| Provision and Use of Work Equipment Regulations 1998 | |
|---|---|
| Regulation 4 | McFarlane -v- Ferguson Shipbuilders Ltd | Find Other Cases |
In paragraph 5 of the Judgment of the Outer House, Court of Session on the 16th March 2004, Lady Smith says:
Parties were, however, in agreement that the pursuer's case was founded on an allegation that the defenders required him to work in a manner that involved repeated loading of the soft tissues of his forearm with such force as was liable to cause injury, in breach of their common law duty to take reasonable care, in breach of their obligations under regulation 4 of the Provision and Use of Work Equipment Regulations 1998 and in breach of their obligations under regulation 4 of the Manual Handling Operations Regulations 1992. They were also, ultimately, in agreement that, contrary to what might have been thought from the averments on record, the pursuer sought damages only in respect of the exacerbation of a pre-existing tennis elbow.
Then, in paragraphs 31 to 34, Lady Smith says:
Regulation 4 of the regulations provides:
"(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......
(3) Every employer shall ensure that work equipment is only used for operations for which, an under conditions for which, it is suitable".
The pursuer's case was not to the effect that there was anything intrinsically unsuitable about the grinder that was provided to the pursuer to carry out his work. The problem was, according to the submissions of his senior counsel, the period of time over which he was required to use it. That period was one of the "conditions" in which it was used and so the regulation applied.
Counsel for the defenders submitted that the case was not, even if the pursuer's assertions of fact were accepted, covered by the regulations. He referred to the guidance notes promulgated by the Health and Safety Executive. In particular, he referred to the notes applicable to regulation 4(3) which give as examples of unsuitability the use of a circular saw in circumstances where a spindle moulding machine would be safer since it could be guarded and of the use of a knife with an unprotected blade in circumstances where scissors would be safer. As these examples showed, he said, the reference in regulation 4(3) to conditions referred to the factual conditions surrounding the use of the tool.
Had I found that the pursuer had had to use to grinder for an excessive length of time and had the pursuer's case been simply to the effect that prolonged use of the grinder was liable to cause injury (which it was not) I would not have been persuaded that such use amounted to a breach of regulation 4(3). The regulations seek to protect employees from equipment which could injure them. "Suitable" in terms of the regulations means suitable "in any respect which it is reasonably foreseeable will affect the health or safety of any person". Accordingly, the obligation on the employer is to ensure that work equipment is only used under conditions which do not involve a reasonably foreseeable risk of the employee being injured by the equipment, as is exemplified in the guidance notes to which reference was made. Even on the hypothesis that prolonged use of an otherwise safe grinder could lead to injury, the pursuer's case under these regulations would, in my opinion, have been bound to fail since the causation of injury by prolonged use of a piece of equipment does not infer the causation of injury by the equipment itself. The problem would not have lain in the provision for that job of that piece of equipment and so would not have been one to which the regulations were directed.
V1.01
Last updated: 14/05/2013