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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mcdougall v. Gordon Spiers (t/a John Duncam Removals) [2002] ScotCS 105 (11th April, 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/105.html Cite as: [2002] ScotCS 105

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Mcdougall v. Gordon Spiers (t/a John Duncam Removals) [2002] ScotCS 105 (11th April, 2002)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LADY PATON in the cause ANDREW PURVES McDOUGALL Pursuer; against GORDON SPIERS trading as JOHN DUNCAN REMOVALS Defender:   ________________

Pursuer: A. J. Carmichael, Advocate; Allan McDougall & Co., S.S.C.

Defender: Shand, Advocate; Simpson & Marwick, W.S.

11 April 2002

1. The pursuer, a furniture porter, sues his employer in respect of an injury to his foot, suffered when he and three other porters were carrying a piano. He alleges a breach of the Manual Handling Operations Regulations 1992. At a debate, counsel for the defender invited me to dismiss the action, arguing that the pursuer's case as pled was irrelevant.

Pursuer's averments

2. In Article 2 of Condescendence, the pursuer avers:

"On about 24 June 1998 the pursuer was working in the course of his employment with the defender as a furniture porter. The pursuer was part of a team of porters sent to remove a piano from a house at 5 Crarae Avenue, Ravelston Dykes, Edinburgh. The piano had to be carried down a set of steps from the house by four men. The steps ran down from the house in a curve. On the inside of the curve was a rail. On the outside of the curve were stones which were covered in foliage growing out from a shrub border. The top surfaces of the stones were a few inches higher than the border and the steps. The foliage obscured the stones from view and made them slippery. The pursuer was holding the piano at the front and was therefore moving backwards down the steps. Because of the presence of the rail, the pursuer had to move to his left to create sufficient room for his colleague Alexander Sweeney, who was closest to the rail. The pursuer thought that 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 left ankle. As a result, he suffered the loss, injury and damage hereinafter condescended upon. With reference to the defender's averments in answer, admitted that the pursuer was part of a team of porters transferring furniture from the house to one of the defender's removal vans. Admitted that the pursuer was an experienced porter, having been employed by the defender for about fifteen years. Quoad ultra the defender's averments in answer are denied except insofar as coinciding herewith. Explained and averred that, as was the standard practice of the defender, an estimator employed by him had attended at the house prior to the removal in order to assess the job, provide the customer with a quote and to draw up an instruction sheet for the porters who would do the job. The estimator could readily have assessed the adequacy of the access to the house, having regard to the type and size of items being removed. 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 require 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."

3. In Article 3 of Condescendence, the pursuer refers to Regulation 4(1) of the Manual Handling Operations Regulations 1992 and sets out the alleged breaches of those regulations.
4. In Article 4 of Condescendence, the pursuer gives details of the injury suffered.

Defender's submissions

5. Counsel for the defender submitted that there were no relevant averments sufficient to make the 1992 Regulations applicable in the circumstances. The pursuer averred that he thought that he was stepping onto shrubbery: yet his injury was caused by a hidden hazard, namely stones, which were hidden from view by the shrubbery and were presumably made slippery by it. That being the case, the pursuer had not averred that there was a "risk of injury" in terms of the 1992 Regulations as that term had been construed by the authorities.
6. Five propositions could be extracted from the authorities: (1) The pursuer must establish that he was engaged in a manual handling operation. (2) The pursuer must establish that the operation gave rise to a foreseeable risk of injury: Anderson v Lothian Health Board, 1996 S.C.L.R. 1068; Taylor v City of Glasgow Council, 2000 S.L.T. 670; Easson v Dundee Teaching Hospitals NHS Trust, 2000 S.L.T. 345; and obiter dicta in Cullen v North Lanarkshire Council, 1998 S.C. 451. (3) The Regulations did not warrant the imposition of liability merely if injury occurred and something was being handled manually: Taylor v City of Glasgow Council, Easson v Dundee Teaching Hospitals NHS Trust. (4) It was not enough for a relevant case that there was a mere possibility of injury: Taylor, Easson, and obiter dicta in Cullen v North Lanarkshire Council. (5) A bare assertion in pleadings that there existed a risk of injury was not sufficient without some factual foundation in the averments supporting that assertion: Taylor and Easson.
7. Counsel contended that the pursuer must aver facts showing a risk of injury which the defender should have foreseen. The issue was whether there was a foreseeable possibility of the pursuer's being injured. The test was less stringent than the common law test, but nevertheless something more than a bare possibility was required. In the present case, nothing disclosed a foreseeable possibility of injury. There was nothing to indicate that the defender should be any more aware than the pursuer that the foliage hid some hazard. The pursuer did not aver that there was a possibility of some other form of injury (such as a back or neck injury), or some form of injury in the abstract. The pursuer's case was that the foot injury was a reasonably foreseeable possibility, yet there were no facts averred giving factual foundation for that bald assertion. Even if the pursuer proved every fact averred by him, he was bound to fail (Jamieson v Jamieson, 1952 S.C. (H.L.) 44). The case of Koonjul v Thameslink Healthcare Services [2000] P.I.Q.R. P123 illustrated a situation where the court held that Regulation 4(1) of the 1992 Regulations did not apply as there was no significant risk of injury. The pursuer in the present case had not even averred a foreseeable possibility of injury, such as a back injury. It was not enough simply to aver that "injury was foreseeable from carrying a piano". The pursuer was relying upon a hidden hazard, which on the averments was unknown, and therefore unforeseen.
8. At page 6B-C, the pursuer averred that:

"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."

While it might have been foreseeable that one of the removers might have to move to the left off the steps, it did not follow that there was a foreseeable risk of injury. The reference to an area "which was not part of the access to the house and did not provide sure footing" was simply an assertion and added nothing to the case. There were no facts averred making it a real risk that an accident would happen. The pursuer himself had no cause to anticipate any hazard under the shrubbery. The pursuer had not therefore averred sufficient relevant facts which would render the regulations applicable.

9. The pursuer would no doubt seek a proof before answer, relying upon Jamieson v Jamieson. But a proof would add nothing. If there were other facts which were not averred on record, and from which a real risk of injury might arise, the pursuer should aver these facts. If there were no such other facts, the facts averred were insufficient. The defender's first plea-in-law should be sustained, and the action dismissed.
10. Even if the pursuer could say that carrying a piano meant that it was conceivable that there might be some risk of injury, the case of Koonjul demonstrated that any assessment of a general nature would have to disclose this particular type of risk. But the matter could not be dealt with in the abstract. In the present case, the pursuer was not suggesting that any assessment should have included looking around in the foliage to see what was there. The pursuer simply asserted in the abstract that carrying a piano gave rise to a risk of injury. The pursuer had failed to aver any foreseeable risk of injury.

Pursuer's submissions

11. Counsel for the pursuer sought a proof before answer, all pleas standing. Counsel accepted the five propositions put forward by the defender. However she submitted that the pursuer had sufficient averments disclosing that the operation gave rise to a foreseeable risk of injury. The averments described a curved path, with a set of steps. On the outer edge of the curve were projecting stones. The pursuer had been moving backwards down the steps. He had put his foot in a particular position, stepped on a stone, and slipped. He could not have known precisely where he was putting his foot. The defender's estimator had been sent to assess the job and to provide a quote. It was part of his job to assess the access. Counsel argued that with four men and a large object such as a piano on a suburban path, it was clear that the access route would be crowded, particularly if there was a rail restricting space at one side of the path. It was therefore foreseeable that one of the removers would have to go off the path.
12. The pursuer's averments met the test set out in Easson. It certainly could not be said that the pursuer was bound to fail. The case of Taylor turned on its own facts, which were very different from those averred in the present case. The nature of the object to be carried, and the environment in which the manoeuvre was to take place, had to be taken into account. The pursuer had adequately identified the particular factors giving rise to risk of injury. In any event, Taylor was being reclaimed. As Koonjul made clear, it was necessary to take into account the context in which the manual handling operation was to be carried out. The context included factors such as the physical layout of the environment. It was unrealistic to leave environment out of account.
13. Where removal men such as the pursuer were carrying out manual handling operations, some such operations would give rise to a foreseeable risk of possible injury, in some cases, by reason of the nature of what they were carrying; in some cases by reason of the location in which they were carrying out the job; and in some cases by reason of a combination of these two factors. The pursuer's position was that the combination of the averments relating to "task" and "environment" in the present case gave sufficient notice of the pursuer's case.

Defender's reply

14. Counsel for the defender renewed her motion that the case be dismissed. It was still not clear what factors were relied upon by the pursuer. The fact that a piano was to be carried by four men was not a sufficient averment in the context of foreseeable risk of real injury. If the hazard was hidden, it was not foreseeable. If the hazard was not hidden, what then was the hazard. When the estimator came to evaluate the job, what was it that he should have seen which gave rise to the foreseeability of a real risk of injury.
15. Counsel for the defender summarised the position as follows: (a) Prima facie, the accident arose from a hidden hazard. The defender could not be aware of such a hazard. (b) If the accident arose from a hazard which was not hidden, the pursuer should aver what that hazard was. (c) If the cause of the accident was a slippery stone, the defender had not been aware of the stone. Why should an estimator visiting the premises to evaluate the job have been aware of that factor. Counsel submitted that, even bearing in mind Jamieson v Jamieson, if the pursuer proved no more than the specific facts averred, he was bound to fail. The action should be dismissed.

Opinion

16. It is a question of degree in every case whether there are relevant averments of a manual handling operation giving rise to a foreseeable risk of injury: cf. Taylor v City of Glasgow Council, 2000 S.L.T. 670; Easson v Dundee Teaching Hospitals NHS Trust, 2000 S.L.T. 345. Further, as Hale L.J. pointed out in Koonjul v Thameslink Healthcare Services [2000] P.I.Q.R. P123, at P126-7:

"...what does involve a risk of injury must be context-based. One is therefore looking at this particular operation in the context of this particular place of employment and also the particular employees involved."

17. In the present case, the pursuer offers to prove that it was foreseeable that one of the removal men carrying the piano would have to move off the access steps because of the size of the item being carried, the number of men carrying it, the layout of the access and the restricted space available on the steps (aggravated by the railing on the inside curve). Thus a removal man such as the pursuer would have to place his foot or feet in an area which was not part of the access to the house, and which did not provide sure footing. As a result, he would lose his footing and fall, thereby sustaining injury.
18. At page 5A-C of the Closed Record, the pursuer avers that:

"On the outside of the curve [of the access steps] were stones which were covered in foliage growing out from a shrub border. The top surfaces of the stones were a few inches higher than the border and the steps. The foliage obscured the stones from view and made them slippery [italics added]."

19. Thus the pursuer not only offers to prove that it was foreseeable that a removal man would have to move off the steps at the curve, but also that the terrain at that point was at a different level from the steps, was obscured by foliage, and was a slippery stone surface.
20. Accordingly if, as the pursuer avers, it was foreseeable that one of the removal men, assisting in carrying a large and bulky item such as a piano, would have to move off the access steps at the outside of the curve, then there is at least a stateable case that anyone assessing the task, such as the estimator visiting the premises before the removal, ought to have appreciated this fact, and ought therefore to have checked the nature of the terrain adjacent to the outside curve of the steps, and its suitability or otherwise underfoot for a remover assisting in carrying a heavy, bulky object: cf. the pursuer's averments in Articles 2 and 3 of Condescendence.
21. In these circumstances it seems to me that 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. The pursuer has in my view has made averments about "some particular difficulty or awkwardness, some particular characteristic" of the manual handling operation, giving rise to the foreseeable possibility of a removal man such as the pursuer losing his footing and suffering injury: cf. dicta in Taylor v City of Glasgow Council, 2000 S.L.T. 670, at page 673C.

Conclusion

22. For the reasons given above, I shall allow a proof before answer, all pleas standing.