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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hurley v William Muir (Bond 9) Ltd [2000] ScotCS 15 (18 January 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/15.html Cite as: [2000] ScotCS 15

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In this action the pursuer sues for damages in respect of personal injuries which she suffered in an accident which happened on 6 February 1996 while she was working as a bottling operative in the employment of the defenders in the bottling hall of their premises at Elbe Street, Leith. The parties are agreed that, on the basis of full liability on the defenders' part, the loss, injury and damages which the pursuer suffered as a result of the accident should be assessed at £35,000. The issues which were contested in the course of the proof which I heard were whether the accident had happened in the way described in the pursuer's pleadings, and whether or not it was caused b y negligence on the part of the defenders or breach by them of their duty under regulation 5 of the Provision and Use of Work Equipment Regulations 1992. Although the defenders pled contributory negligence, that plea was not ultimately maintained.

On the day of the accident the pursuer was working at a labelling machine which automatically applied a series of labels to bottles of whisky. It was part of the machinery in line 5 in the bottling hall. Bottles for labelling entered the machine on a conveyor and passed in turn through four labelling stations, at each of which a different label would be applied (although at any given time fewer than four stations might be in operation). There were four possible positions on the bottles to which labels might be applied, which may be described as "front", "back", "collar" and "neck". The four labelling stations were numbered 1 to 4, and there was some uncertainty in the evidence about which station was concerned with which label position. As a bottle passed through a station, adhesive gum would first be applied, and the appropriate label would then be pressed into position on the bottle. The parts of the labelling machine which applied the gum and the labels were contained within a glass (or perspex) screen. Some of the ancillary equipment, however, was situated outside the main body of the machine. In particular, the reservoirs of gum were plastic tubs which stood outside, but close to, the machine. The pump which fed the gum from the reservoir into the machine sat on top of the tub. There was a tube from the reservoir to the machine through which the gum was fed into the machine, and another tube for returning excess gum to the reservoir. The pump was driven by compressed air, and there was a compressed air line from the machine to the pump. On the casing of the machine there was a switch or stop-cock which controlled the supply of compressed air, and thus controlled the operation of the pump.

The defenders' premises in Elbe Street are no longer in operation as a bottling hall. The machinery which was formerly housed in the bottling hall at Elbe Street is now housed in premises at Salamander Place, Leith. There were lodged in process five photographs (No. 6/4 of process) showing the labelling machine and its associated equipment, and apart from a number of matters of detail (to which, so far as material, I shall return) it was accepted that the photographs, although taken by the pursuer's expert witness, Mr John Stewart, in the Salamander Place premises in August 1999, accurately represented the appearance of the machine as it had been in Elbe Street at the time of the accident. The measurements given in the following description of the machine and its associated equipment are taken from undisputed evidence given by Mr Stewart. In photograph 1, the glass and metal enclosure in the background of the left side of the photograph is the main body of the labelling machine. The horizontal metal beam, supported on metal stanchions, which enters the main body of the machine from the right side of the photograph is the conveyor on which bottles travel into the labelling machine. Projecting from the main body of the machine for some 600 mm along the conveyor is a tunnel-shaped guard, made of metal-edged glass sheets, which guards on each side and from above the point at which the conveyor enters the main body of the machine. The side pieces of the guard come some distance lower than the underside of the main beam of the conveyor. Their lower edge is some 740 mm above floor level. To take photograph 1, Mr Stewart stood on the side of the conveyor opposite that on which operators would work when tending the machine. For ease of future reference, I shall call the side of the conveyor from which photograph 1 was taken "side A", and the side of the conveyor on which operators worked "side B". Photograph 2 was taken from side B. It shows the conveyor on the left of the photograph, and the main body of the machine on the right. Immediately to the right of the conveyor guard, above the left hand set of red and green buttons, is station 1 of the labelling machine. At the time when the photographs were taken, no gum reservoir was in position at station 1. To the extreme right of photograph 2 (and also shown in close-up in photograph 3) is station 2 (above the right hand set of red and green buttons), with its label magazines full. The white tub in the foreground of the right side of photograph 2 (and in the foreground of photograph 3) is the gum reservoir for station 2, with its pump mounted on top of it. The compressed air line from the machine to the pump is the curled orange tube. Photograph 4 is a close up of station 1, showing at the right edge of the photograph the reservoir for station 2, and in the centre of the photograph a white tub positioned to indicate the approximate position that the reservoir for station 1 would have occupied if it had been present. Photograph 5 is a close-up of part of the casing of the machine below the point at which the conveyor enters the machine (also visible from different angles in photographs 1, 2 and 4). On the casing there are a number of controls, partly obscured from sight in photograph 5 by the last stanchion of the conveyor. To the left of the conveyor stanchion a curled orange tube, which is the compressed air line for the pump at station 1, enters the casing. What appears to be a small black switch or stop-cock is mounted just above the point where the airline enters the casing. That switch is some 320 mm above floor level and 230 mm in from the side of the machine (on side A).

Before turning to the evidence about the occurrence of the accident, it is convenient to note the positions which the parties ultimately adopted in their pleadings. The pursuer averred that prior to the day of the accident she had not used the machine while station 1 was in operation. On that day the defenders' bottling manager, Mr Whyte, had informed her that the gum was to be switched off before all rest breaks. The point at which the gum supply for station 1 was turned off was situated "under said machine and was very difficult to reach". She had not previously had to switch gum off or on at station 1. At about 2.50 p.m. the pursuer, while positioned on the work station side of the machine [i.e. side B] reached under the machine to put off the gum. The method she adopted was in accordance with that which she had been shown by her supervisor when she first started working at the machine, and which she had seen others adopt without reprimand from the defenders or any suggestion that it was unsafe. The averments about the occurrence of the accident continue:

On those averments of fact the pursuer alleges (without further specification of the grounds of fault, since the action is brought under the optional procedure) that the accident was the result of common law negligence on the part of the defenders, and also breach of their duty under regulation 5 of the Provision and Use of Work Equipment Regulations 1992.

The defenders' position in their pleadings is that the accident did not happen until about 4.45 p.m. The gum switch was easily accessible from the pursuer's workstation, and it was normal practice to switch it off from that side [side B]. As an experienced operator who had worked in the bottling hall for some seven years, had been trained in the use of the machine when she began, had switched the gum off on many occasions, and had trained others in the use of the machine, the pursuer knew or ought to have known that that was the correct method of turning the gum off. Instead she attempted to switch the gum off from the side opposite her station [side A]. That required the unnecessary and obviously more difficult manoeuvre of stretching below the conveyor belt and the perspex guard. On that basis the defenders contended that the pursuer was herself wholly, or at least partly, to blame for the accident.

The pursuer had been working for the defenders in the bottling hall for over six years before the accident. She was a grade 6 operator, which meant that she was sufficiently experienced to take over a supervisor's duties if necessary. Her normal hours of work were from 7.30 a.m. until 5.00 p.m. (15 minutes longer at each end of the day than other operators, because as a grade 6 she helped to set up the line). There were short breaks morning and afternoon, and a lunch break of half an hour at noon. In the course of the day the pursuer and the other operators undertook a rotation of tasks. After lunch on the day of the accident the pursuer's task was to attend to the labelling machine. It was not normal for the gum supply to the machine to be switched off during the lunch break, but that day the gum had "mushroomed" (i.e. welled up too copiously and caused a mess that required to be cleaned up) and as a result instructions had been issued that the gum supply was to be switched off at each break. The afternoon break began at 2.50 or 2.55 p.m. When the hooter signalling the break sounded, the pursuer said, she switched off the gum supply to station 2, then turned her attention to switching off the gum supply for station 1. Initially her evidence was that station 1 applied either the collar or front label, but as her evidence proceeded she became firmer in identifying station 1 with the collar label. At all events, her evidence was that station 1 was not normally in use, and she had never previously had occasion to switch off the gum supply to it, although she had seen the supervisor, William Urquhart, do so. Normally, she said, the gum supply was switched off at the end of the shift by the engineer. To switch off the gum supply to station 1, the pursuer explained, she had to crouch facing the main body of the machine with the gum tub immediately in front of her and with her left side towards the conveyor, and reach forward and to her left under the conveyor, using her left hand to operate the switch, which was at the very limit of her reach. That route was in part dictated by the presence of a piece of apparatus called an ink jet coder, which was situated against the casing of the machine between stations 1 and 2 (where the yellow notice is in photograph 4, reaching to about the height of the black handle also shown in that photograph) and ruled out the possibility of reaching between the gum tub and the front of the machine. The pursuer was vague as to the precise position of the switch, thinking that it had been moved after the accident, but it is clear from the evidence of other witnesses that the switch has always been at the point where the air line enters the casing of the machine. When the pursuer had turned the switch, she moved to her right and stood up. As she put it, she did not go far enough to the side, and when she stood up her shoulder hit the bottom edge of the conveyor guard. Her evidence was that the guard came lower at the time of the accident than it does in the photographs, and that it did not have the metal edge shown in the photographs, but I consider that she was mistaken about those details. The other evidence was that the machine had not been altered.

At the time of the accident, the pursuer said, Gladys Paterson was working on the A side of the conveyor in a position just off the right edge of photograph 1, and Myra Halliday was behind Gladys Paterson, working with her back to the machine. According to the pursuer, when she struck her shoulder she exclaimed "Oh! That was bloody sore"; and Myra Halliday turned and asked her if she was all right, to which she replied "Yes". The pursuer also said that William Urquhart came past at that stage, remarked "It's not that easy, is it?" and laughed. According to the pursuer she then went for her tea break, and subsequently completed the shift. Although she made no formal report of the accident at the time, she sat beside Olive Barclay, the first aider, during the tea break, and told her what had happened. She did not, she said, speak that day to Charles Moncrieff, the team leader. She conceded that she might have spoken to him at another time, but said that she could not remember what she said to him if she did. She denied saying to him that she had switched off the gum from the wrong side [side A]. In cross examination she said that she could not recall speaking to him after the accident.

According to the pursuer she did not return to work the next day. She later spoke to Philip Whyte, the bottling hall manager, on an occasion when she went in to the defenders' premises to hand in a sick line, and he made an entry in the accident book in her presence. In evidence she said that the account of the accident which she gave to Mr Whyte was the same as she gave in evidence. She said that she remarked that it would have been easier to turn the gum off from the "other" side of the conveyor. At that, Mr Whyte, without giving her a chance to explain more fully, said "Oh, the wrong side of the machine" and walked away. It was a matter of formal agreement between the parties that no entry was made in the defenders' accident book in respect of the pursuer's accident. There was produced a "Report of an injury or dangerous occurrence" made by the defenders to the Health and Safety Executive (No. 6/12 of process). It was completed by Mr Whyte and dated 30 April 1996, i.e. almost twelve weeks after the accident. I shall return in due course to Mr Whyte's evidence about that document. The pursuer said that it was not the document that Mr Whyte wrote in her presence, which she described as a "book". She said, however, that the text written in Part G of the form was an accurate summary of what she told Mr Whyte. That text is in the following terms:

In cross examination, it was put to the pursuer that she told Mr Whyte that she had left her work place at the end of the shift, forgetting to switch off the gum; that by the time she realised she had done so she had got round to the other side [side A] of the line; that she therefore went back on the wrong side [side A], reached in under the conveyor to switch off the gum, stood up too soon, and struck her shoulder on the guard. Her response was to point out that to switch the gum off from side A with her left hand, she would have required to have her back to the machine. She maintained firmly that she did not give Mr Whyte the account put to her, and did not tell him that she had switched the gum off from side A.

Although the matter was not put to the pursuer when she was giving evidence, it emerged in the course of the evidence of the expert witness, Mr Stewart, that at the time of his inspection in August 1999 he had obtained from the pursuer a description of her approach to the gum switch which appeared to be different from the one which she gave in evidence. The matter was first touched upon in examination in chief, when Mr Stewart said, with reference to photograph 4, that the pursuer had indicated to him that she had stretched in on the right hand side of the drum (i.e. the unattached tub placed to indicate where the reservoir for station 1 had been). He added, "I don't think she was too certain herself". At that stage it was put to him that it would be reasonable to reach round the left hand side of the tub if the ink jet coder was where the pursuer said it was, and his evidence proceeded to deal with that hypothesis. Mr Stewart's report (No. 6/3 of process) contains no reference to the ink jet coder, however, and its presence does not appear to have been mentioned to him at the time of his inspection or considered by him before he gave evidence. In cross examination Mr Stewart indicated that the position of the unattached tub in photograph 4 was designed to give an impression of the position occupied by the station 1 reservoir at the time of the accident, and that his understanding of its position had been derived from the pursuer herself. He understood from her that she had approached the switch from between the two tubs [i.e. the station 1 tub and the station 2 tub], but did not know which hand she had used. He repeated that he had found it difficult to get a clear impression of the pursuer's position at the time she was injured.

Gladys Paterson's recollection of the day of the pursuer's accident was that at the end of the shift at 4.45 p.m., when she went to wash parts of the machine that required to be washed, she found the pursuer in a distressed state, asked her what had happened, and was told by the pursuer that she had banged her shoulder. She assumed that it had happened then, at the end of the shift. She did not witness the accident. Ms Paterson was a grade 2 operator, but she said that she had switched off the gum for station 1 on numerous occasions. Her recollection was that station 1 applied the front label. She described crouching down, putting her left arm under the conveyor at full stretch and turning off the switch. She had no recollection of ever injuring herself while doing so. When asked if it was difficult to get in to the switch, she said that it was "not so much difficult as just a bit awkward". In cross examination, she said that it was no harder and no easier than switching off a gas fire or gas cooker.

Margaret Swan was working on the day of the accident, and confirmed the occurrence of the incident in which the gum "mushroomed" and the resultant instruction that the gum supply had to be switched off at each break. She said that she, because of her short stature, found switching off the gum at station 1 "a bit of a stretch"; she felt the switch was too far away, with the gum tub in the way. It was the presence of the gum tub that made the operation awkward. She always used her left arm to reach the switch, stretching under the guard. She had, on a number of occasions, bumped her shoulder, but had never reported it. She was unable to say whether the occasions on which she bumped herself were before or after the pursuer's accident. She did not hear about the accident until the next day. She said that she and the pursuer both operated station 1 regularly. She thought, but was not completely sure, that station 1 applied the front label.

Mrs Elizabeth Ireland was not at work on the day of the accident, but had experience of operating the labelling machine. She found station 1 very awkward, because she had to go right down near to the floor. She said that if you came up too quickly, you could knock your shoulder on the label magazine or on the guard. Although it was averred by the pursuer that Mrs Ireland had struck her arm or shoulder while switching off the gum, Mrs Ireland's evidence was that the one occasion on which she had reported an accident related not to switching off the gum but to banging her shoulder on the label magazine when she got up from retrieving labels which she had dropped. So far as switching off the gum for station 1 was concerned, she said that she had experience of that operation, but described a rather different technique, reaching in with her right arm.

Although at the start of the proof Miss Caldwell, for the pursuer, moved successfully to add Myra Halliday to the pursuer's list of witnesses, and although the pursuer in her evidence described Myra Halliday as asking her if she was all right when she cried out when the accident happened, Myra Halliday was not in the event offered as a witness. Nor were two others mentioned by the pursuer, namely William Urquhart, whom she mentioned as having come past immediately after the accident and having made a remark about its not being "that easy", and Olive Barclay, the first aider, to whom the pursuer said she mentioned the accident at the tea break.

At the time of the accident, Charles Moncrieff was employed by the defenders as a team leader, i.e. one rank above a supervisor. His service with the defenders had, however, been relatively short. He joined them only in April 1995, and was trained by the pursuer. He is no longer employed by the defenders or their successors. His evidence was that at the end of the shift on the day of the accident he was at line 5, on side A. He was completing production sheets. The pursuer came up the line towards him, and spoke as she passed, saying that she had not turned the gum taps off. Shortly afterwards he heard her give a cry, which he rendered as "Oh ya!", and looked up to see the pursuer kneeling beside the conveyor. She was on side A of the conveyor, kneeling on one knee facing away from the machine with her left shoulder towards the guard of the conveyor. He said that he went across to speak to her, and asked what she had done. She said that she had hurt her left shoulder on the guard, and that she had been trying to turn the gum pump off. She then went away. Mr Moncrieff spoke to Mr Whyte and told him that the pursuer had hurt her shoulder and might not be in the next day. She did, however, to his surprise, come in the next day, and Mr Whyte called her into his office.

Although at the beginning of cross examination, Mr Moncrieff correctly identified the position of the station 1 switch at the machine end of the orange air line, at other stages of his evidence he appeared to think that the gum supply required to be switched off by means of a switch at the pump mounted on top of the gum tub. He said, however, that his duties did not involve switching the gum off and on, and that he would defer to others more familiar with the operation. He acknowledged that, wherever the switch for the pump for station 1 was, the pursuer could not, from the position in which he described seeing her, reach the switch for station 2. He confirmed that his evidence was that she had said in passing that she had not switched off the pumps (plural). In light of those points it was suggested to him that he might be mistaken in what he thought he saw happening and what the pursuer said. His response was:

He acknowledged that he did not see the accident happening, and that it was possible that the injury might have occurred earlier. It was never suggested to him that he was lying in his description of what the pursuer said or did.

(e) Philip Whyte's Evidence
Mr Whyte's evidence was that he heard about the pursuer's injury at the end of the day from Charles Moncrieff. He explained that from Moncrieff's description it sounded like an accident, and he wanted to judge for himself how serious it was. At that stage of his evidence he was at some pains to parade his concern for safety, in a way that did not impress me favourably. At all events, he said that he spoke to the pursuer the next day, asked her how she had injured her shoulder, and got her to give him a demonstration. His recollection, he said, was that she had finished washing up, had realised that the pump was still on, and had returned to the line, but instead of going round to side B had leant under the conveyor from side A with her left arm. When she made to get up, her shoulder caught the bottom of the guard. In giving that evidence, Mr Whyte demonstrated a very awkward-looking gesture, reaching to the left at full stretch, with the hand turned to the rear. Objection was taken by Miss Caldwell to elaboration of the evidence about a demonstration by the pursuer to Mr Whyte, on the ground that the matter had not been put to the pursuer. I allowed the line of evidence to be pursued, under reservation of its competency and relevancy. My view now is that the evidence is admissible. Although it is a matter of legitimate comment that Mr Whyte's allegation about the demonstration was not put to the pursuer in cross examination, the main substance of Mr Whyte's version of what the pursuer said to him was so put. Mr Whyte went on, following the objection, to reiterate that he understood from the pursuer that once she realised she had forgotten to switch the gum off, she did not walk back round the line, but crouched under from side A, put her left arm under the conveyor, and switched the pump off with her left hand. He maintained that that required obvious over-stretching. In cross examination Mr Whyte, although acknowledging that some operators might find it awkward, said that from side B the operator could bend over to switch the gum off from a standing position; it would not be necessary to have a shoulder under the guard; there was room on that side to do it without crouching.

Mr Whyte gave evidence about the reporting procedures normally, and in this case, followed in respect of accidents. It was normal, he said, for an entry to me made in the accident book only if the injured person required first aid. He did not in respect of the pursuer's accident make an entry in the accident book. At first he said that he made no subsequent report, but when shown No. 6/12 of process acknowledged that it was written and signed by him. When asked about its content, he said that he did not remember the date of the accident, and suspected that he got it from the accident book. The source of the description in Part G, he said, was what the pursuer told him when he spoke to her on the only occasion he did so, namely the day after the accident. He did not know where he got the information that the accident happened at 2.50 - 2.55 p.m. In cross examination, he said that he made no notes when he spoke to the pursuer. Her evidence that he made notes was wrong. The description of the accident in No. 6/12 of process was, he said, from memory. It was no part of his responsibility to make sure that an accident was reported in the accident book. He did not think it was relevant to give further detail in No. 6/12 to the effect that the pursuer had been approaching the task from the wrong side of the conveyor. It was his recollection that the accident happened at the end of the day. The entry "2.50 - 2.55 p.m." in No. 6/12 of process did not, he said, come from the pursuer - it may have come from the accident book. When informed that it was a matter of admission that there was no entry in the accident book relative to the accident, he acknowledged that the only possible source of the information about the time of the accident was the pursuer.

6. Discussion

The pursuer's case depends on her establishing that she injured her shoulder while switching off the supply of gum to station 1 from side B. If the proper conclusion from the evidence is that she switched off the gum supply from side A, as the defenders contend, the pursuer has no case that in that event the accident was nevertheless the fault of the defenders. Indeed it is clear to me (contrary to the contention put forward in the defenders' pleadings and maintained by Mr Whyte in evidence) that there was no danger in switching the station 1 gum supply off from side A. From that side, given the measurements spoken to by Mr Stewart and the lay-out clearly to be seen in photographs 1 and 5, there would, in my opinion, have been no difficulty in reaching and operating the switch without any risk of injury. The pursuer can succeed, therefore, only if it is accepted that she approached the switch from side B, and the competing evidence suggesting that she approached it from side A is rejected. Miss Caldwell presented the matter as a stark choice between the evidence of the pursuer on the one hand, and that of Mr Moncrieff and Mr Whyte on the other. Her submission was that the pursuer was a credible witness whose evidence made logical sense and was given moderately and without exaggeration. Although it was recognised that in some details her recollection differed from that of other witnesses, it was submitted that the differences were not significant. Mr Moncrieff, on the other hand, was lying in what he said about the pursuer returning to side A and what he then described as happening, as was Mr Whyte in relation to the narrative and demonstration which he attributed to the pursuer. For the defenders, Mr Moynihan accepted that there was a major issue of credibility between the pursuer, on the one hand, and Mr Moncrieff and Mr Whyte on the other. He began his submissions, however, by identifying a number of aspects of the pursuer's evidence which, he said, gave rise to doubts about her reliability. Those, he submitted, were sufficient to stand in the way of a finding in her favour. He submitted further that Mr Moncrieff and Mr Whyte were credible and reliable witnesses, who could not in the circumstances be dismissed as liars. Without outright rejection of their evidence, the pursuer could not succeed. It is necessary to examine the issues raised in those submissions in more detail.

It is not disputed that on the day of the accident at some stage of the afternoon, while switching off the air supply powering the pump attached to the gum reservoir for station 1 of the labelling machine in line 5, the pursuer struck her left shoulder on the bottom edge of the guard at the machine end of the conveyor, causing the injury in respect of which she brings this action. At the time when she gave it in evidence, her account of the manner in which she reached in to the switch seemed coherent and readily understandable. The mechanism of her striking her left shoulder on the guard as a result of standing upright before she had moved far enough to her right to bring her shoulder clear of the guard was clear. Moreover, her colleagues (with the exception of Mrs Ireland) described a similar approach to switching off the gum at station 1. On the other hand, there were details in the pursuer's evidence which I am satisfied were wrong. For example, she initially maintained that at the time of the accident the switch was mounted, not at the machine end of the air line, but further towards side B, under the grey box with the dial that can be seen in photograph 5; and she maintained that at the time of the accident the guard on the conveyor came closer to the ground than it now does, and did not have a metal rim on its lower edge as it now does. Those are details which I would not be inclined to regard as, by themselves, casting any real doubt on the pursuer's reliability, but I think it appropriate to keep them in mind when assessing an attack on her reliability presented on other grounds.

The first of Mr Moynihan's grounds of attack on the pursuer's reliability was founded on the evidence of Mr Stewart. It was plain from Mr Stewart's report (No. 6/3 of process) that he was under the impression that in order to reach the switch the pursuer stretched in between the gum tub for station 1 and the gum tub for station 2; that is why he was at pains to estimate the size of the gap between the two tubs (page 3, first paragraph). In evidence he confirmed that that was the impression the pursuer had given him at the time of his inspection. He also conveyed an impression of uncertainty on the pursuer's part. The presence of the ink jet coder seemed to play no part in the pursuer's account to him, although in her evidence the pursuer referred to it as ruling out the line of approach which Mr Stewart had understood that she adopted. Under cross examination, Mr Stewart appeared to have difficulty explaining how the pursuer could, if reaching between the two tubs and then towards the switch, have succeeded in bringing her left shoulder under the guard. Mr Moynihan contrasted the vague and unsatisfactory impression of the accident conveyed by the pursuer to Mr Stewart with the fully detailed and coherent description which she gave in evidence, in which she described her arm passing between the station 1 gum tub and the support of the conveyor, and her feet being up against the station 1 gum tub. If she was as uncertain in August as Mr Stewart's evidence indicated, how could the different and more precise account given in evidence in October be accepted as reliable? There is, in my view, considerable force in this point.

Mr Moynihan's next point about the pursuer's reliability related to the frequency with which station 1 was in operation. Her position on record was that she had never before operated the machine while station 1 was in use, and had never required to switch the gum off or on at that station (Record (as amended) pages 5C and 6A). In evidence she maintained that position, and said that station 1 had only ever been used the week before the accident, when she was working on another line. The other operators, however, all said that station 1 was in regular use, and that they had experience of switching the gum supply off there: Margaret Swan said that she and the pursuer both operated station 1 regularly. Irregular use of station 1 might be more understandable if its purpose was to apply the relatively rare collar label, but implausible if it was concerned with the front label. Gladys Paterson and Margaret Swan both thought that station 1 applied the front label, and even the pursuer herself at first said that she thought "collar or front". In my view the weight of the evidence is against the pursuer on this point. While it is conceivable (bearing in mind the evidence that the engineer sometimes attended to switching the gum off) that, notwithstanding the length of her experience, as an accident of rotation of tasks the pursuer had never previously had occasion to switch off the gum at station 1, that does not seem very likely to have been the case, and I am of opinion that her evidence about the rarity of use of station 1 in general was not reliable.

The timing of the accident is an issue which arises primarily in the context of the competition between the pursuer's evidence and that of the defenders' witnesses, but it is convenient to note at this stage that Gladys Paterson's impression was that it had happened at the end of the shift, not at the tea break. Gladys Paterson, according to the pursuer's evidence, was working in a position where she might have been expected to have her attention attracted when the pursuer cried out on striking her shoulder, but it was implicit in her evidence that she heard no such cry, either at 2.50 or at 4.45. The other employees of the defenders who, according to the pursuer, spoke to her or were spoken to by her at or immediately after the time of the accident, namely Myra Halliday, William Urquhart and Olive Barclay, did not give evidence and there was, accordingly, no support for her account from them. The time of 2.50 is supported by the terms of the report No. 6/12 of process. I shall return to an examination of the weight which can be accorded to that document in the context of examining the evidence of Mr Whyte, but it seems to me to afford confirmation that at the time she spoke to Mr Whyte (whenever that was) the pursuer identified 2.50 as the time of the accident.

There is a point of overlap between the evidence of Mr Moncrieff and Mr Whyte, in that both said that on the day of the accident the former mentioned its occurrence to the latter, and that the latter spoke to the pursuer on the day after the accident (although there was documentary evidence that the day after the accident was the first day of the pursuer's sickness absence). I propose to consider Mr Whyte's evidence first. For a number of reasons, some of which I have already mentioned, I did not find his evidence impressive. There seemed to me to be a clear inconsistency between the pains to which he went to stress his concern for matters of safety and on the other hand his denial of any involvement or interest in securing that a record of the accident was made in the accident book. His evidence about the report which he signed, No. 6/12 of process, changed as it went along. At first, he said he had made no report. Then he acknowledged that he had written and signed No 6/12 of process nearly three months after the accident, although he had no explanation for the delay. Before being faced with the fact that there was, as was agreed between the parties, no accident book entry relating to the accident, he attributed both the date and the time stated in No. 6/12 to that non-existent source. Eventually he recognised that there could have been no other source than the pursuer, but nevertheless maintained inconsistently that his recollection was that she told him the accident happened at the end of the day. His evidence that he drew the substance of Part G of No. 6/12 from recollection of what the pursuer had told him the day after the accident was not, to my mind, credible in view of the twelve weeks interval. On that account, I was inclined to disbelieve either his evidence that (contrary to what the pursuer said) he wrote nothing down when he spoke to her or his evidence that his interview with the pursuer took place the day after the accident. Nor, when the whole thrust of his evidence was that the pursuer had confessed to him that she had approached the switch from the "wrong" side of the conveyor, does his explanation for not mentioning that in No. 6/12 - that he did not regard it as relevant - make sense. The content of Part G of No. 6/12 is neutral as to the approach which the pursuer had adopted to the switch. If, as he maintained, Mr Whyte discovered that the pursuer had been injured because instead of approaching from side B, which he regarded as safe, she had approached from side A, which he regarded as dangerous, I do not believe that he would have failed to record that fact. In his evidence about the two routes of approach to the switch, he maintained a position which Miss Caldwell described as perverse, and which I am unable to accept. On the one hand, he adamantly maintained that to switch off the gum from side A involved obvious over-stretching, and illustrated his evidence with an exaggerated and strained gesture, when the measurements given by Mr Stewart and the photographs show quite clearly that the switch could be easily reached from side A. On the other hand, he over-stated the ease with which the switch could be reached from side B, suggesting (contrary to the evidence of all who had occasion to undertake the task) that it was only necessary to bend forward, and not necessary to crouch or stretch under the conveyor guard. He had no personal experience of the operation. Had I been faced with a simple choice between the evidence of the pursuer and the evidence of Mr Whyte, I would have been inclined to prefer the evidence of the pursuer, and regard Mr Whyte's evidence either as simply untrue or, more charitably, as an edifice of speculation erected upon a misunderstanding. Mr Moynihan suggested that to describe side A of the conveyor as the "wrong" side was not a natural use of language, but it seems to me that there is ample scope for misunderstanding of

The issue of credibility does not present itself, however, as a choice between the pursuer and Mr Whyte. It is necessary to consider also the evidence of Mr Moncrieff. Although Miss Caldwell's submission was that Mr Moncrieff was lying, that was not put to Mr Moncrieff in cross examination. What was put to him was that he was mistaken, and Mr Moynihan laid considerable stress on the way in which he reacted to that suggestion. Mr Moncrieff did not really go beyond four main points in his evidence. One was that his encounter with the pursuer took place at the end of the shift. The second was that the pursuer, as she passed him, said that she had not turned the gum taps off. The third was that he heard her call out, looked up, and saw her kneeling beside the conveyor on side A with her left side towards the conveyor. The fourth was that she then said she had hurt her shoulder on the guard trying to turn the gum pump off. While his own mental picture of what the pursuer was trying to do may have been distorted by a misunderstanding on his part about where the switch was, that does not seem to me to affect what he said he heard and saw. He remained unshaken in cross examination on those points. It is not clear why, if his observation is correct, the pursuer should have reached for the switch with her left hand, rather than her right, but apart from that I see no great implausibility in the scene which Mr Moncrieff described. As Mr Moynihan submitted, Mr Moncrieff's concession that it was possible that in saying that she had hurt her shoulder on the guard the pursuer was talking about something that had happened earlier showed that he was not motivated by animosity towards her. The pursuer's own evidence, however, contained no support for explaining Mr Moncrieff's evidence away on the basis that she was telling him about an injury suffered at an earlier stage of the afternoon. More generally, Mr Moncrieff had no reason for animosity against the pursuer. He had been trained by her. There was no question of his being blamed by the pursuer. He was no longer employed by the defenders, and therefore had no motive for slanting his evidence in their favour. In all the circumstances, I am not persuaded that there is a proper basis for a conclusion that Mr Moncrieff was lying.

In light of the view which I have taken of Mr Moncrieff's evidence, it is possible to reappraise Mr Whyte's evidence. On one view the fact that the account which Mr Whyte claims the pursuer gave to him coheres with Mr Moncrieff's evidence might suggest that, whatever its other defects may be, there is a core of truth in Mr Whyte's evidence about what the pursuer told him. Another possibility, however, is that Mr Whyte's evidence remains a speculation, but one built upon what Mr Moncrieff told him, rather than on a misunderstanding of what the pursuer told him. The difficulty for the pursuer, however, is that, even leaving Mr Whyte's evidence out of account, as I regard it as appropriate to do, there is a substantial conflict between her evidence and that of Mr Moncrieff. I do not consider that the attack on the credibility of Mr Moncrieff's evidence (the only basis on which it was suggested that his evidence should be rejected) was well founded. On the other hand, I do consider that there is force in the various points which were taken against the reliability of the pursuer's own evidence. In the result, I come to the conclusion that I would not be justified in holding that the pursuer has proved that her injury occurred while she was switching the gum off from side B. For that reason I consider that the pursuer's case fails.

Since the pursuer's case proceeds on the factual basis that she approached the switch from side B, and since I have held that she has failed to prove that she did so, the question of fault does not arise. It is, however, appropriate that I should deal briefly with the conclusions which I would have reached on the grounds of fault if I had held that the pursuer's averments of fact had been proved.

The pursuer's common law case and her case under regulation 5 of the Provision and Use of Work Equipment Regulations seem to me to raise substantially the same question. Although the common law case is stated only in the most general terms in the pursuer's pleadings, the proposition which was elaborated in submission was that, because of the position of the switch in relation to the rest of the machinery and equipment, the operation of switching off the gum supply was awkward and dangerous, presenting a reasonably foreseeable likelihood of injury. The only case made under the Regulations was founded on regulation 5 (a reference in Mr Stewart's report to regulation 17 being neither reflected in the pleadings nor relied upon in submission). Regulation 5 provides as follows:

Miss Caldwell's submission was that regulation 5, read as a whole, meant that if it was reasonably foreseeable that use of the switch would result in injury, the defenders were in breach of their duty thereunder (c.f. English v North Lanarkshire Council 1999 SCLR 310). Miss Caldwell submitted that on the evidence I should hold that injury in the course of using the switch to turn off the gum supply at station 1 was reasonably foreseeable, and that I should therefore hold the defenders liable for the accident both at common law and under regulation 5.

Mr Moynihan submitted that there was no evidence that operation of the switch at station 1 had ever previously caused injury. It was, he submitted, with the benefit of hindsight rather than reasonable foresight that the risk of injury of the sort alleged by the pursuer could be identified. The position of the switch might be regarded as making its use awkward, but not dangerous. I should treat with caution Mr Stewart's evidence, because his view was formed originally upon a different understanding of the circumstances from the one advanced by the pursuer in evidence. Mr Stewart's suggestion that the switch could be relocated was undermined by his acceptance that he had not been asked to examine the machine internally with a view to comment on the practicability of relocation, and by the consideration that the relocated switch might itself be a source of possible injury.

In my opinion, regulation 5 falls to be construed in light of the Directive 89/655/EEC in the manner discussed by Lord Reed in English v North Lanarkshire Council at 320A-F. It follows, in my opinion, that Miss Caldwell was correct in her submission that if it was reasonably foreseeable that an operator using the switch would be injured in the way that the pursuer was, there would be a breach of the regulation.

I am not satisfied that on the evidence which I heard it would be proper to conclude that the defenders ought reasonably to have foreseen that injury of the sort suffered by the pursuer would result from use of the switch. Mr Moynihan accepted that the evidence showed that there was a degree of awkwardness in using the switch because of the constraints imposed by the positions of the gum tub and other pieces of equipment and because of the need to reach in under the conveyor guard. He was, in my view right to do so. Awkwardness is, however, a matter of degree and not necessarily sufficient to make injury reasonably foreseeable. In his report, Mr Stewart said: "From an ergonomic point of view, the placing of the shut-off [switch] is bad". That too, in my view, falls short of showing that injury was a reasonably foreseeable result of the position of the switch. If there had been an established history of previous incidents of injury, that might well have shown that injury was reasonably foreseeable. I do not consider, however, that the evidence established such a history. Mrs Ireland's injury occurred in different circumstances, which had nothing to do with the position of the switch. Margaret Swan's evidence of having "bumped" herself seemed to me to relate to trivial incidents which would not point to a risk of material injury, and in any event those incidents were not brought to the defenders' attention. The pursuer herself said that at the time of the accident she had not heard of any previous injury. Mr Whyte gave evidence to the same effect. In the absence of such a history, I am of opinion that a reasonable employer applying his mind to the safety of the labelling machine and its associated equipment would not have identified the position of the station 1 gum switch as a matter requiring attention.

Accordingly, had I been satisfied that the accident happened in the way alleged by the pursuer, I would have held that she had failed to prove that it was caused by negligence or breach of regulation 5 on the defenders' part.

I shall accordingly repel the pursuer's first plea-in-law, sustain the defenders' second and third pleas-in-law, and grant decree of absolvitor.