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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McErlean v J & B Scotland Ltd [1999] ScotCS 102 (27 April 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/102.html Cite as: [1999] ScotCS 102

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In 1992, the pursuer Mrs. McErlean was employed by the defenders as a machine operator at a bottling plant in Dumbarton. In the present action, the pursuer claims damages from the defenders in respect of an injury sustained at work, which she attributes to their fault. By interlocutor dated 9 January 1997, the Lord Ordinary, after proof, assoilzied the defenders, and by further interlocutors of 23 January, he found the pursuer liable in certain expenses and granted decree against her accordingly. The pursuer reclaims, submitting that we should recall these interlocutors, sustain the first plea-in-law for the pursuer and repel the defenders' pleas, and grant decree for damages and interest.

The pursuer worked on a production line where boxes were filled with bottles, and then closed and sealed. The pursuer was responsible for the packing machine, the sealing machine and associated conveyors. The machinery was enclosed by perspex guards, and the pursuer's function was largely supervisory. However, sometimes a box would become jammed, and the pursuer's job included trying to clear such jams. Putting matters shortly, at this stage, the Lord Ordinary has held that the pursuer sustained injury by striking her right wrist against part of the machinery, while trying to move a box which had jammed. He has not, however, accepted that the injury was caused by fault on the part of the defenders.

In terms of the pursuer's pleadings, fault is alleged on a number of different bases, but only one remains in point. It is no longer contended that there was a breach of the duty to provide and maintain safe plant and equipment. And in terms of a duty to devise, institute and maintain a safe system of work, expressed as a number of duties to instruct operators or provide assistance in various ways, the only duty now founded upon is a duty "to instruct that (and enforce such instructions) operators were not to attempt to remove jammed cases by themselves if they could not be freed easily". Even this duty is not founded upon as it stands in the pleadings: in the course of the submissions for the pursuer and reclaimer it became evident that the duty which she asserts, and claims was breached, was a duty to instruct operators not to attempt to remove jammed cases by themselves if they could not be freed "safely" - rather than "easily". As was pointed out by counsel for the defenders and respondents, this is not merely different from what is pled: while the evidence understandably opened up questions of safety, the "safety" case now relied upon was not what was being put to witnesses, nor what was submitted to the Lord Ordinary. (One may add that the Grounds of Appeal do not appear to focus at all clearly on this particular duty, in either form). However, we were not asked to refuse to hear the submissions based on this altered version of the duty which was pled, notwithstanding any problems that might arise, resulting from the change.

Before coming to the questions of duty and breach, it is convenient to consider in rather more detail what exactly appears to have happened on this occasion. The pursuer, who was accepted by the Lord Ordinary as having been straightforward and fair, credible and reliable, was the only witness who could speak to the immediate facts. A case became jammed in the sealing machine. She opened a door in the surrounding perspex guard, so bringing the machine to a halt. She attempted to free the case, without success. According to the Lord Ordinary's narrative,

While some aspects of this sequence of events will require closer scrutiny, the contention advanced on behalf of the pursuer and reclaimer was to the effect that after the first attempt to free the case, without success, the stage had been reached at which the jammed case "could not be freed safely"; that it was for this reason that the pursuer had looked to see if anyone such as a line engineer was at hand (to help); and that if the defenders had given the appropriate instruction, that operators were not to attempt to remove jammed cases by themselves in these circumstances, the pursuer would have known not to make the second attempt, and the accident would not have occurred. (In referring to the stage at which the jammed case "could not be freed safely", counsel for the pursuer and reclaimer acknowledged that this must in practical terms mean the stage at which, in the judgment of the operator concerned, the case could not be freed safely: the instruction to operators not to attempt to remove jammed cases by themselves would come into play when they personally considered that a particular case could not be freed safely).

In considering what instructions had been given, or what operators understood to be expected of them, counsel for the pursuer and reclaimer referred us to quite substantial tracts of evidence. There does not appear to be any real dispute that at the initial stage, after a jam, individual operators were instructed or expected to try to free it, and to do so, at least if need be, by pulling "really hard" or "as hard as you could". While a significant degree of force might on occasion be required, and while there could be problems of accessibility which (as on this occasion) meant that "it was the position that the case was in that made it difficult to clear" it does not appear that there was anything particularly complicated in jams, or releasing them. The words quoted were used by the pursuer in rejecting the suggestion that on this occasion it was "a serious jam"; and when it was suggested immediately thereafter that it was a jam which was difficult to clear because it was in a very inaccessible place, her reply was "No, it wasn't...the most difficult that I have seen. I did clear the jam that day. I put the machine on and got back to my work and never gave it a lot of thought". It does not, however, appear from the evidence that any clear indication was given to operators as to when or upon what basis they should desist from personal effort and seek help. It appears to have been the practice to seek help from other operators, and to have been appreciated that if a case had not been freed by individual effort, there would come a point at which it was appropriate to seek help from a line engineer. But neither the "safety" criterion ("stop if you think it is unsafe") nor any other criterion (such as that which is pled on record, to the effect that operators should stop if they thought they could not free the jam "easily") appears to have been specifically adopted or laid down. It can therefore be said on behalf of the pursuer and reclaimer that the instruction desiderated was not in fact given. It is, however, to be noted that the pursuer has not established that help was not, in a general sense, available; and although there was evidence demonstrating the kind of pressure which can be felt by an operator, to keep the line moving, it was not established that such pressure was felt to a significant degree either at all times, or on this occasion. Furthermore, it was not established that there had been any instruction to continue with individual attempts when the operator regarded that as unsafe, although counsel for the pursuer and reclaimer founded on a particular passage in evidence (to which we shall return) as indicating that that was what the defenders expected of operators.

Because matters were presented to the Lord Ordinary on a somewhat different basis, consideration of his findings and reasoning contributes to an understanding of the issue between the parties as it emerged before this court - but inevitably leaves certain aspects of that issue undiscussed. Before the Lord Ordinary, the essence of the pursuer's case was, as he puts it, that she was compelled to continue to try to clear the jam, after looking for assistance and finding none. "The defenders should not have had a system which required employees such as the pursuer to clear a jam at all: or alternatively, they should have had assistance readily available for her". Taking the proper approach to be one of simply asking whether the employers in all the circumstances failed to take reasonable care, the Lord Ordinary mentions as circumstances to be taken into account the magnitude of the risk, the seriousness of any injury which might result, and the difficulty and practicability of any measures required to eliminate it. Acknowledging that there was a risk of minor injury (minor bruising and the like) the Lord Ordinary said that he did not think that it could be said that the risk was of such a character that the employers should have refrained from requiring, or expecting, machine operators such as the pursuer to make any attempt to clear a jam, nor that they should have had a line engineer, or other employee, immediately available to assist a machine operator at all times. He held that assistance was available, when required, if the pursuer had gone to look for it; and that the evidence did not establish that the delay thereby occasioned would have been unacceptable to the defenders. Coming closer to the type of case presented on behalf of the pursuer in the reclaiming motion, the Lord Ordinary refers to a suggestion, made by the pursuer herself, to the effect that the employees "should have been told to seek help" whenever a jam occurred. In dealing with that suggestion, the Lord Ordinary says that in his view it would go well beyond what was reasonable. "Many jams were obviously cleared without difficulty, and the employees knew that help could be obtained, if necessary". In the end, therefore, in his Lordship's view, the pursuer's case failed because she was unable to point to any precaution which the defenders were bound to put into practice in the exercise of reasonable care and which would have prevented the accident occurring.

Counsel for the pursuer and reclaimer acknowledged that there was no finding by the Lord Ordinary to the effect that the desiderated instruction had not been given. Moreover, he acknowledged that he could not properly say that this was an "omission" by the Lord Ordinary, since there was uncertainty as to whether it had ever really been put to him. But he submitted that on the evidence it was clear that such an instruction had not been given, and contended that in the interests of justice we should proceed upon that basis in dealing with the reclaiming motion. Turning to the events immediately preceding the pursuer's accident, counsel emphasised that before making her second attempt to free the box, the pursuer had "looked up to see if anyone, such as a line engineer, was at hand" and had only embarked on her second attempt on seeing no one. On that basis, it was submitted that one could and should draw the inference that the pursuer was looking for help because she thought it necessary - and necessary for reasons of safety: extra force was seen as required, which showed that the pursuer had reached the limits of what she could safely do herself. Not having seen anyone, she had carried on herself; and counsel in that connection founded upon the passage which we have already mentioned, where the pursuer was asked (in cross-examination) "Are you saying to me then that regardless of consequences and regardless of your fear of injury, you were required to seek to clear the box in those circumstances?" and she replied "That's what I was told, that's practice". While that passage is not directly related to what the pursuer was thinking on the day in question, it was submitted that this general position demonstrated that the pursuer felt obliged, regardless of safety, to make a second attempt, such as was made on this occasion, if help was looked for but not found. In making her second attempt one should infer that she was acting regardless of perceived risk. Moreover, although there perhaps appeared to have been a variation in what different operators actually did, there had been no suggestion that the pursuer had been positively instructed to leave her post and go and look for help, rather than simply look from where she was, as she had done on this occasion. As the matter emerged at the very end of her re-examination, on being asked whether she was ever told that if she took the view that it was not something she could do safely, she should just not have done it, her reply was "No, that was never said". It was submitted that the instruction had clearly not been given, and that the pursuer's actions resulted from its not having been given, and led to her acting in circumstances which she regarded as unsafe.

Turning to consider whether the failure to give the appropriate instruction was negligent, counsel submitted that since one was dealing with a question of instructions, one should note that an appropriate instruction would cost nothing, would be a regular form of procedure, and would apparently have been in no way unreasonable or impracticable. The desiderated instruction was not just some general exhortation (like "take care"). There was a foreseeable risk of at least minor injury, and although employees were expected to run that risk on the initial attempt, it would nonetheless be reasonable for the employers both to have provision for assistance, and to issue proper instructions as to what would be seen as justifying calling for assistance. That being so, it would be reasonable for the employers to say that assistance should be called for, and that the operator should not proceed with an individual attempt, once risk was involved in the eyes of the operator. In the absence of clear instructions on these lines, the notional availability of help could not be seen as an adequate or reasonable precaution against operators who might continue when safety suggested that they should not. If there had been such an instruction, it was clear that this pursuer would have followed it, and would have refrained from further individual attempts until help was available in real terms. Counsel for the pursuer and reclaimer acknowledged that there was no real indication in the evidence that on her second attempt the pursuer had used any greater force, or done anything less safe, than on the first occasion. But the desiderated instruction was not one concerned only with risks higher than those inherent in first attempts. Even if the level of risk was not increased, the fact that there was always some risk constituted a basis for saying that an employer should not reasonably expect an operator to have "another go". If there was an obvious risk of injury, the employer must not leave it to the employee to continue, thinking that they were obliged to have another go. On the whole matter, it was submitted that in not giving the desiderated instruction, the defenders had been negligent, and had caused the pursuer's accident.

On behalf of the defenders and respondents, counsel submitted that it could not reasonably be said that there was a duty on the employer to issue the desiderated instruction. It meant that once one reached the hypothetical stage where an operator was aware of risks in attempting to move a jammed box, there was to be a prohibition against doing anything further at all. It was submitted that this could not be the duty. The instruction left it to the operator to assess whether further attempts would be "unsafe". If the operator was sufficiently adult and reliable to make that crucial assessment, why should they be treated as children, and subjected to an absolute veto against doing anything at all? Such situations were not black and white: the employee could be trusted in both respects, and effectively left to tailor action to take account of those dangers which the employee had assessed as unacceptable. Putting the matter another way, if one considered what it was that the operator must not do, the answer must surely be that they must not do that which they thought unsafe. There was no reason for forbidding them to do what they thought to be safe. A second attempt might take a form which the operator saw as safe, or at least as involving no greater risk than had been involved in the first attempt. Even if there was no evidently higher risk in any particular subsequent attempt, there might be situations in which repetition itself could be perceived as producing increased risk: but that again was a matter which could be left to the operator, who ex hypothesi was a person judging whether a further attempt was unacceptably unsafe. An instruction not to do what was perceived as unsafe might make some sense; but that was not the instruction desiderated. The alleged duty did not exist.

Even if one were to assume that the desiderated duty existed, it was submitted that there were real problems flowing from the change of approach since the matter was before the Lord Ordinary, and the absence of appropriate findings as a foundation for the case now made. Even if one wished not to be over-technical, the fact was that the focus at and after proof had been throughout upon the issues of availability, and on questions of difficulty rather than safety. The somewhat extreme suggestion that operators should not free jams at all had not been related to problems of safety, but to questions of difficulty. And even in that connection, in the passage immediately preceding the reference to clearing a box "regardless of consequences and regardless of your fear of injury", it was evident that the pursuer was aware of what she ought to do. ("If I were to put it to you that the standard practice which was instructed at J. & B. was that the machine operator was to examine the jam, make a first attempt to clear the jam but if that proved unsuccessful, to seek the assistance of a line engineer; are you telling me that I would wrong? - I wouldn't say you were wrong, no, but it is never just black and white like that. Theoretically speaking you are speaking, you know, practice can be a different thing. You act on the moment when you are there. You take things as they come and you are supposed to get on with it if there's no help available; it is expected of you"). It was submitted that upon the evidence, one should conclude that the pursuer was told, and was aware, that when she judged it to be necessary, she should go and get help. The pursuer herself had said that if a jam came, and jammed another part of the machine or the like, "Of course I would go and get an engineer". Because of the change of approach, there were gaps in the evidence, and one should be careful not to infer failure where the duty itself had not been focused in evidence. But overall, there was no basis for inferring such failure.

Finally, however, it was submitted that the matter really turned on causation. It had simply not been established that the stage which was crucial to the pursuer's case had ever been reached. When giving evidence about this particular occasion, the pursuer had said that she had tried to clear the jam, and was asked whether she had got to the stage "of thinking you might have to ask for a line engineer". She replied that she did. And when asked whether she recalled looking around for a line engineer, because she considered that this jam had merited his assistance, her reply was "I thought it might do, aye". This did not justify any inference that she saw further steps as unsafe. Moreover, the further step which she took was not the application of greater force or the like with such possible risks as that might involve. What she had done was to approach the box from a different angle. Particularly with the box in a somewhat inaccessible position, that was an obvious alternative to adopt, simply as a part of what one could call the ordinary initial attempt to shift the box. That remained true, notwithstanding that there had been preliminary thoughts that the jam might merit the assistance of a line engineer, and looking up to see if any such person was at hand. Moreover, it had worked - the jam had been freed, and the pursuer thought nothing of it. That remained true, notwithstanding the unfortunate injury to her hand. It was submitted that at the highest the pursuer had reached a stage of some difficulty (if even that). There was no basis for inferring that the pursuer saw herself as having reached a stage which was unsafe, or as doing anything which was unsafe.

We are satisfied that the submissions advanced on behalf of the defenders and respondents are sound. In particular, we can find no sufficient basis for the inferences which are crucial to the pursuer and reclaimer's case on causation. The pursuer's attempt to shift the box, by approaching it from a different angle, seems to us to be the kind of thing which an operator could reasonably be expected to do as part of the initial and individual attempt to clear a jam. We see no reason why those initial efforts should be arbitrarily restricted to one specific pull or push. And the pursuer's evidence as to what she thought and did, in relation to getting help from a line engineer, does not appear to us to detract from that, or to indicate that she had moved on, before her second attempt, to some new and different assessment of safety. In addition, however, it does not appear to us that of the various duties which might apply in such circumstances, that which was eventually adopted and founded upon on behalf of the pursuer and reclaimer can be regarded as incumbent on an employer in such circumstances. The submissions advanced on behalf of the defenders and respondents appear to us to be sound in this respect also. And while it is difficult to work upon the hypothesis that such a duty was incumbent upon them, we are not persuaded that the evidence demonstrates a breach of the duty. That is no doubt partly because of the change of focus, but in any event it appears to us that upon the evidence available, the pursuer was indeed working upon the basis that if she saw help as necessary, it was available, and she could go and get it. The necessity might no doubt arise in terms of difficulty, or safety, or some combination of circumstances. But overall we are satisfied that the pursuer knew that she could have recourse to help, and we see no sound basis for saying that the defenders were in breach of duty.

In these circumstances, the reclaiming motion is refused.