in fact are not in dispute.

"17. The defenders had three methods of dealing with waste material. These were the use of empty octobins, the use of plastic bags, and the use of pallets. There were no empty octobins available to the pursuer on the day of the said accident. The waste material from the TFT machine was too sharp to make the use of plastic bags advisable. The material was too bulky and unstable to attach it to the top of an empty pallet.

18. When there were insufficient octobins available for the amount of waste material which had to be cleared away it was not unusual for someone to climb into the top of an octobin in order to try to tramp down the waste and thereby free some space at the top of the octobin. The said practice was known to the senior management of the defenders' factory in Montrose."

and at the end of the day the important evidence focused on by counsel for the appellant, apart from that of the pursuer himself, was that of George Nicol, Mrs. Cowley and Mark Simpson. He also made references to the defenders' witnesses Mrs. Hartup, Chris Dennis and Kenneth Smith.

"Cond. 3 The said accident was caused by the fault and negligence of the defenders. It was their duty to take reasonable care for the safety of their employees including the pursuer. It was their duty to take reasonable care to devise, implement and maintain a safe system of work for all tasks which their employees required to carry out. In particular, it was their duty to take reasonable care for devise, implement and maintain a safe system of work for the disposal of waste materials. It was their duty to take reasonable care to devise, implement and maintain a system of work for the disposal of waste materials which did not require employees, such as the pursuer, to step into octobins. It was their duty to take reasonable care to devise, implement and maintain a safe system of work for the disposal of waste materials which did not require employees, such as the pursuer, to step into unsupported octobins. In their performance of each and all of the said duties the defenders failed. But for their said failures the said accident would not have happened. A safe system of work for the disposal of waste materials would not have required employees to step into unsupported octobins. The defenders knew or ought reasonably to have known that a failure by them in the performance of all or any of the said duties could give rise to an accident of the sort which did, in fact, happen. In particular they knew or ought reasonably to have known that a failure by them to take reasonable care for the safety of all of their employees, including the pursuer could result in him being the victim of an accident whilst at work. They knew or ought reasonably to have known that a failure by them to take reasonable care to devise, implement and maintain a safe system of work for all tasks which their employees required to carry out could result in injury to one or more of their employees. They knew or ought reasonably to have known that a failure by them to take reasonable care to devise, implement and maintain a safe system of work for the disposal of waste materials could result in an accident in the course of disposing of waste materials. They knew or ought to reasonably have known that a failure by them to take reasonable care to devise, implement and maintain a system of work for the disposal of waste materials which did not require employees, such as the pursuer, to step into octobins could result in an accident of the sort which did, in fact happen. They knew or ought reasonably to have known that a failure by them to take reasonable care to devise, implement and maintain a safe system of work for the disposal of waste materials which did not require employees, such as the pursuer, to step into unsupported octobins could result in an accident of the sort which did in fact happen. With reference to the defenders' averments in answer, it is admitted that the pursuer was subject to certain duties of reasonable care for his own safety under explanation that he duly fulfilled all such duties incumbent upon him. Quoad ultra the defenders'

averments in answer are denied except in so far as coinciding herewith.

Cond. 4 Separatim, the said accident was caused by the breach of statutory duty of the defenders. The said octobin was work equipment within the meaning of the Provision and Use of Work Equipment Regulations 1998. Regulation 2 thereof provides:-

'(1) In these Regulations, unless the context otherwise requires - "use" in relation to work equipment means any activity involving work equipment and includes starting, stopping, programming, setting, transporting, repairing, modifying, maintaining, servicing and cleaning;

"work equipment" means any machinery, appliance, apparatus, tool or installation for use at work (whether exclusively or not).'

When the pursuer was tramping down the contents of the octobin he was using the work equipment within the terms of the said Regulations. Regulation 4 of the said Regulations provides:-

"(2) In selecting work equipment, every employer shall have regard

to the working conditions and to the risks to the health and safety of persons which exist in the premises or undertaking in which that work equipment is to be used and any additional risk posed by the use of that equipment.

(3) Every employer shall ensure that work equipment is used only

for operations for which, and under conditions for which, it is suitable.

(4) In this Regulation 'suitable' means suitable in any respect

which it is reasonably foreseeable will affect the health or safety of any person."

The defenders breached the duties which the said Regulation placed upon them. The said octobin was not suitable for use by someone standing inside it whilst it was sitting on a pallet. The defenders did not have regard to the risk to the pursuer of the octobin falling over whilst the pursuer was standing in it. Regulation 20 of the said Regulations provides:-

"Every employer shall ensure that work equipment ... is stabilised by clamping or otherwise where necessary for the purposes of health and safety."

The defenders breached the said Regulation and so caused the said accident. But for the breach of the said Regulation the said accident would not have occurred. The defenders did not ensure that the octobin was stabilised by clamping or otherwise. The defenders' averments in answer are denied except insofar as coinciding herewith."

"In my opinion the pursuer fails to prove his case. It seems to me that there was a safe system of work (a) for all tasks which the employees of the defenders required to carry out; (b) for the disposal of waste materials; (c) that did not require employees such as the pursuer to step into the octobins and (d) which did not require employees such as the pursuer to step into unsupported octobins. To say that the fact that there had been what, at most, can be described as a handful of incidents in the past meant that there was not a safe system of work does not stand up to scrutiny. More than one witness stated that in his or her opinion it was common sense not to climb into the octobin and, indeed, to do so was inherently dangerous. The terms of the internal memo by Mr. Dennis refer to a verbal instruction relating to this practice being given some eighteen months prior to the pursuer's accident. That memo makes it quite clear that instructions had been given to supervisors and team leaders in all departments. Again, more than one witness stated that it was a Health and Safety issue. Indeed, the fact that there has been only the occasional incident of this nature seems to me to indicate that a mixture of plain common sense and an awareness that this was a practice which was not allowed, existed.

As far as the breach of duty of care owed in terms of the Provision & Use of Work Equipment Regulations 1998, Regulations 2, 4 and 20 is concerned, it is eminently obvious that the octobin was not suitable for use by the pursuer standing inside it. As far as the terms of Regulation 4 are concerned, it seems to me that the defenders did their best to ensure that the work equipment, namely the octobins, were used only for operations for which or under conditions for which they were suitable, that suitability being any respect which it is reasonably foreseeable will affect the health or safety of any person. In my opinion this is precisely the reason why Mr. Dennis had, some 18 months earlier, instructed the supervisors and team leaders to make it clear to all employees that climbing in and out of the octobins had to cease immediately. As far as the alleged breach of Regulation 20 is concerned, the said Regulation provides, the pursuer did not lead any evidence to prove that stabilising the octobin by clamping it or otherwise would have prevented the accident."

leaders to make it clear to all employees that the practice had to cease.

More importantly, there is in our view no support at all in the evidence for the respondents' having known of or condoned those instances. With the possible exception of the pursuer, all of the relevant employees who gave evidence stated - naturally in different formulations - that they regarded climbing into an octobin to be obviously dangerous; and they were equally clear that if a worker were to be found indulging in that practice, their expectation - again naturally expressed in words of differing colourfulness - was that the individual concerned would be reprimanded or disciplined. This negatives any case based on want of instruction, since there is no duty to instruct somebody in respect of some danger of which he is or should be aware and when the practice which gives rise to the danger is forbidden. In essence, therefore, we would conclude that the pursuer's case at common law fails on fact, contrary to the submissions of counsel for the appellant.

"1. The employer shall take the measures necessary to ensure that the work equipment made available to workers in the undertaking and/or establishment is suitable for the work to be carried out or properly adapted for that purpose and may be used by workers without impairment to their safety or health. In selecting the work equipment which he proposes to use, the employer shall pay attention to the specific working conditions and characteristics and to the hazards which exist in the undertaking and/or establishment, in particular at the workplace, for the safety and health of the workers, and/or any additional hazards posed by the use of work equipment in question.

2. Where it is not possible fully so to ensure that work equipment can be used by workers without risk to their safety or health, the employer shall take appropriate measures to minimise the risks."

"The quantum aspect having been agreed, it seemed to me that the Proof was not of such complexity that required Counsel and could have been conducted by a Solicitor".

Counsel for the appellant informed us that he had been employed at an earlier stage at which there were some difficult issues respecting quantum of damages. He had been very participant in their resolution, shortly before the proof. In these circumstances we consider that the sheriff has misdirected herself in law in as much as she applied the question of propriety and necessity of employing counsel as to the circumstances obtaining at the start of the proof. This is not the appropriate time to consider the matter, which has to be assessed when counsel is first instructed. In this case this was some time before the proof when, quite apart from issues of liability, difficult questions of damages appeared to exist. Given those facts and the fact that the sum of money involved was substantial we consider that the instruction of counsel in this case was entirely appropriate. We therefore allow the appeal in this respect and hold that the cause should have been certified as suitable for the employment of counsel.