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HEATHER HODGKINSON v. RENFREWSHIRE COUNCIL


Submitted: 23 August 2011

OUTER HOUSE, COURT OF SESSION

[2011] CSOH 142

PD721/10

OPINION OF MORAG WISE QC

Sitting as a Temporary Judge

in the cause

HEATHER HODGKINSON

Pursuer;

against

RENFREWSHIRE COUNCIL

Defenders:

___________

Pursuer: Hofford QC, Hastie; Digby Brown LLP

Defenders: Middleton; Reid Cooper

23 August 2011

Introduction and agreed facts
[1] This is a personal injuries action arising out of an accident claimed to have occurred on 24 June 2007 when the pursuer was working in the course of her employment with the defenders as a gardener at the their premises at Robertson Park, Renfrew. By the time of proof, quantum had been agreed by the parties and the matter was contested on liability only. A number of facts were also agreed in a Joint Minute No 18 of process. In particular, the following facts were agreed:-

  • That as part of her duties on 24 June 2007 the pursuer had to open the gates to the park.
  • That the gate at the Ferguson Street/Donaldson Drive entrance to the park ("the gate") is fitted with a lug.
  • That the lug was fitted to the gate to prevent the gate swinging past the gatepost and into the street.
  • That the lug was a metal plate and measured approximately 31/2 inches square. The lug was situated on the side of the gate opposite the hinges and was approximately 5 feet from ground level.
  • That as at 24 June 2007 the lug was painted green, the same colour as the rest of the gate.
  • That in order to open the gate the pursuer had to unlock a padlock and pull the gate towards her.
  • That prior to 24 June 2007 the pursuer had in the course of her employment opened the gate.
  • That following the pursuer's accident the defenders painted the lug yellow.
  • That subsequent to that the defenders removed the lug from the gate.
  • That other gates within the park had the lug fitted towards ground level.
  • That as at 24 June 2007 the park was the pursuer's "workplace" within the meaning of the Workplace (Health Safety and Welfare) Regulations 1992.
  • That the gate is "work equipment ... for use at work" within the meaning of the Provision and Use of Work Equipment Regulations 1998.
  • That the defender did not, at any time prior to the pursuer's accident on 24 June 2007, carry out a risk assessment in relation to the construction of the gate and the lug on which the pursuer alleges she was injured.

It was also agreed that the photograph No 6/5/1 of process was a photograph of the gate after the lug had been painted yellow and that No 7/3 of process is a letter from Digby Brown, Solicitors, to the defenders dated 21 September 2009. The accident details completed by the defenders' employee Colin McClelland (No 6/6 of process) was also agreed.

Evidence in the pursuer's case
[2] The pursuer is 35 years old and has been employed as a gardener by the defenders for some years. On Sunday 24 June 2007 she was working overtime. This involved attending to the nature corner in Robertson Park. She required to feed the animals there in the morning. She was to work a split shift, the second part of which was in the afternoon. Her morning duties started at 8.00am. She required to open the gates to the park of which there were 6 in total at the various entrances. These were pedestrian access gates which are padlocked overnight. In her evidence the pursuer said that when she went to open the gate at the Donaldson Drive entrance to the park there were people waiting outside. One gentleman in particular was impatient to enter the park and was abusive and somewhat aggressive to her. She said that she was trying to calm him down and to talk to him and she was looking at him as she opened the gate. The padlock on the gate was on a hasp which she required to slide along to open the gate. The pursuer said that she took the padlock off and slid the hasp. As she did so the blockplate (the "lug") "came and hit me in the face". The pursuer confirmed that the lug in question was at eye level. She spoke to the photographs at No 6/5 of process which were taken of the gate involved. She confirmed that the gate in question was in a tree covered, shaded area of the park. She explained that having been struck on the face she sorted herself out, made the gate safe by pinning it back and got on with her work that day. She did not report the incident officially that day but she did tell the chargehand, Stephen McIntyre, who was looking after her dog while she worked. She also reported it to Mr Polson. When the description of the accident in the Accident Book, No 6/6 of process, which states "one gate swung quickly and hit Heather on face/nose" was put to the pursuer she said that she did not know who gave that information to Mr McClelland whose signature appeared on the report. The pursuer confirmed that she had attended at her general practitioner after the incident who had recorded that she had fractured her nose.

[3] While the lug involved in the incident was painted yellow in the photographs shown to the pursuer she confirmed that at the time in 2007 was painted green. She recollected that the colour of paint was changed from green to yellow about 12 days after the incident. She was present at the time. Mr McClelland was asked by the Health and Safety Officer to spray paint the lug to make it more obvious. Then in 2009 the lug was removed altogether. Other gates in the park were fitted with lugs but these tended to be at the base of the gate below a crossbar about a foot from the bottom. Those lugs protruded in the same way that the lug at head height did.

[4] Under cross-examination the pursuer confirmed that she had worked as a gardener in Renfrewshire for about 6 years but had only worked at Robertson Park for about a year at the time of the accident. She thought she had only opened the gates about 2 or 3 times before the incident. Certain payslips Nos 6/9 of process were put to the pursuer for a period between March and June 2007. Those payslips indicated that there were at least 7 occasions when the pursuer had been working overtime during that period, although she said that it would not always be part of her duties to open all of the gates. She only required to do so if she was working overtime at the nature corner of the park. The pursuer confirmed that she knew that the lug was on the gate before the date of the accident. She agreed that the incident had taken place on a June morning when it was light and there was no problem seeing the lug. She understood that the lug was there to stop the gate swinging into the public area and that it was a safety feature. She accepted that it may be problematic for there to be no lug on the gate but she said that she thought it should have been fitted at the bottom of the gate rather than at eye level. She confirmed that all of the gates in the park had either a lug or some other form of safety catch. The pursuer agreed that she must have been standing fairly close to the gate for it to have made contact with her as she was opening it, although she said that she would step back to open it fully. She agreed that she was focusing on the man on other side of the gate and keeping her eye on him and she said that she was a bit flustered because he really was quite aggressive and that she did not know how he was going to act. When it was put to the pursuer that if the lug had not been there she would in any event have pulled the gate into her face she disputed that and said her foot was in the way and the gate would have missed her face, hitting her foot first. She did not dispute that if the lug was 31/2 inches square her nose must have been less than 31/2 inches from the gate when she opened it. She thought it definitely was the lug rather than the upright of the gate that struck her although it had all happened very quickly. The pursuer agreed that because the lug was at a high level she could generally see it and take steps to avoid it. The pursuer accepted that during the course of her claim she had given different accounts of the accident at different times. She had initially said that the accident happened on 24 July although she said she was simply mistaken about that. When the letter, No 7/3 of process, from her solicitors to the defenders dated September 2009 was put to her the pursuer agreed that that letter was written after she had first been put in touch with solicitors by her union and given a statement. The date of the incident given in that letter was 23 June 2007. The pursuer agreed that that was the date she had initially told her solicitors the incident had occurred. However, as she knew the incident has taken place on a Sunday she later realised that 23 June must be wrong because it had been a Saturday. The defender's accident form, No 7/1 of process was put to the pursuer. There the date was given as 24 June for the incident but the time was 5.00pm. On this form also the description of the accident was "... one gate swung quickly when pulled and hit Heather on face/nose". The pursuer could not explain why the author of the form had inserted 5.00pm as the time. She confirmed the incident had occurred at 8.00am, that she was not still working at 5.00pm on the day in question. She could not explain why in this report and in the report to the Health and Safety Inspectorate, No 7/2 of process, the time of the incident was given as 5.00pm. The pursuer said there was no-one to report the incident to on the Sunday as she did not have the telephone number of a supervisor. Certain entries from the pursuer's medical records, No 6/2 of process, were put to her. She agreed that she had a number of health problems although some of these had occurred during the last year. On page 2 of the hospital records there was a letter of 26 September 2008 to an ENT Registrar where a neurologist had made a reference to the pursuer's "facial trauma in May 2007". The pursuer could not explain why the date of May 2007 appeared in that letter. She accepted that not all of the people filling in forms and writing letters could have got the date wrong but she could not explain why other dates for the incident had appeared. She confirmed that on 25 June 2007 she had attended at an accident and emergency department when she was told her nose was fractured. When it was put to her that she had in fact not attended hospital until 26 June 2007, she agreed with that. She was asked to describe what exactly had happened to her nose at the time of the accident and the pursuer said that there had been no blood. She felt a crack in her nose at the side and there was bruising. She did not realise her nose was broken. She accepted that her first attendance at her general practitioner in relation to the incident appeared to be on 10 July when her medical records, No 6/1 of process, at page 11 refer to an attendance that date when surgery to the nose the previous week is noted. The pursuer agreed that she had gone straight to hospital and accepted, under cross-examination, that that had not been until 26 June 2007 after 1.00pm according to the records. It was put to the pursuer that she had not attended at the hospital immediately because her nose may have been broken in an unrelated assault. The pursuer denied that. Page 50 of her medical records, No 6/1 of process, was put to the pursuer. There is an entry of 4 September 2007 where the GP records seeing the pursuer about the possibility of surgery following a recent assault. The pursuer said she had no idea why her doctor would have used the word assault. Page 48 of the same medical records was put to her where the clinical history was again described as "previous assault". The pursuer retorted that the assault was the assault of the gate on the day in question. When a third reference to an assault at page 28 of the records was put to the pursuer she said that she had told her doctor that she was hit by this gate but had not used the word assault. She denied having been involved in any assault. The pursuer accepted that she had a number of medical problems including a pulmonary embolism that had kept her from work. It was put to her that she had taken advantage of any illnesses to secure extra time away from work. In particular, page 9 of the medical records was put to her. That was an entry of 31 October 2008 where her general practitioner had recorded that having given the pursuer a sickness certificate on 10 August for sore throat symptoms for one week the pursuer had told her that she did not return to work after that date because she "didn't feel like it". The GP had recorded that she had advised the pursuer that this was abusing the medical certificate system. The pursuer denied recalling her general practitioner saying that and maintained that she did not feel well enough to return to work at that time. When it was specifically put to the pursuer that the accident occurred because she simply pulled the gate into her own face the pursuer said that she had not done so and that it would be crazy to do that.

[5] In re-examination the pursuer confirmed that she did not usually work overtime during the week, usually at the weekend although she would sometimes work overtime on a Friday which was a short day. The payslips that had been put to her in cross-examination could, she said, have referred to Friday overtime. The pursuer said that when the lug had been removed from the gate the situation was worse and that the gate was now secured by a chain to stop it swinging into pedestrians. When asked what the pace had been at the time she opened the gate on the day in question, the pursuer said that she had been talking to the gentleman on the other side of the gate, she had pulled the padlock and was then opening the gate. She maintained she was not in a rush just to get it open. The pursuer agreed that she had no input into the forms that had been completed giving different dates or times for the incident. On the references to assault in the medical records she said that she had never been in a fight in her life. She agreed that the reference to "industrial injury" in October 2008 in the GP records referred to something that had happened to work.

[6] Stephen McIntyre, a 52 year old employee of the defenders, was also called as a witness in the pursuer's case. Mr McIntyre had worked in a number of positions for the Council including as a gardener, a chargehand, a foreman and a squad leader. He is based at Robertson Park in Renfrew. He knew the pursuer but she had not worked in his squad. He recalled the day in question in June 2007 because the pursuer had brought her dog down to him to look after. She had gone to work after depositing the dog with him and then returned for a coffee in between jobs. Mr McIntyre was at his father's house that day and that was where the pursuer had dropped the dog off between 7.00 and 8.00am. When she came in for a coffee between 11.00 and 12.00pm he noticed that her face was swollen and bruised. Mr McIntyre said that the pursuer had told him that when she had to open the gates that morning she had hurt herself when the "keeper" had caught her on the side of her nose. He said she was slightly disorientated, had a coffee and then returned to work. The keeper ("lug") on the gate was described by Mr McIntyre as a green metal plate. There were several on the gates in the park, some where at the bottom but this one was at the top of the gate and stopped it swinging. When the pursuer returned to collect her dog at about 4.00pm on the day in question Mr McIntyre felt that the pursuer required some assistance and he called on his daughter as he did not feel the pursuer should go home by herself. The incident was again discussed and the pursuer said that when she was opening the gate she was being harassed by a member of the public. Mr McIntyre saw bruising under her eye. He knew that only the keeper or lug at the Donaldson Drive entrance was at face height, the others had all been at ankle level. Mr McIntyre recalled that initially there had been a chain padlock to hold the gate open and stop it swinging but that about 10 years previously when a new fence was erected the keeper or lug had been added to it. Mr McIntyre had been involved in taking the pursuer to the hospital. At first he said that was on the Monday but then agreed it might have been on the Tuesday. He had argued with the pursuer as he felt it was important that her injury should be checked out but the pursuer was resisting. Mr McIntyre recalled speaking with Colin McClelland on the Monday and subsequently seeing Stephen Fanning the Safety Officer. They had all attended at the gate and Mr Fanning had asked for it to be highlighted in yellow. Either Mr McIntyre or Mr McClelland painted the lug. There was some sort of discussion about removing the lug altogether but Mr McIntyre recalled that had taken some time. Mr McIntyre had always felt that it would have been better to have a chain rather than a lug on the gate.

[7] Under cross-examination Mr McIntyre agreed that it was obvious, with the benefit of hindsight, to say that the lug should be taken off although it had been the only gate that had opened with the lug at the top at the time. When it was put to him that the accident to the pursuer had been "just one of those things ..." he said "yes - accidents happen". He agreed that the pursuer had pulled the gate into her face. He had laughed when she first told him what had occurred. However, he maintained that if the lug had been at the bottom it would have caught her shins rather than her nose. He agreed that the rationale for removing the lug after the accident would be that the Council could face criticism or be in trouble if they did not do so after an incident had occurred. That was why Mr McIntyre was surprised that there had been a delay in removing the lug. Mr McIntyre could not recall exactly when the fencing had been changed and the lug attached to the gate but accepted it could have been in about 1995 as part of the "Renfrew 600 Celebration". He thought that the pursuer could have opened the gates in question about once or twice a month perhaps even more. It depended who was working at Pets Corner but he thought that as the pursuer had been there for some years that she would have opened the gates a number of times although he could not be specific as to how many. On the issue of the pursuer having been harassed at the time of the incident, Mr McIntyre recalled that she had said that the gentleman on the other side of the gate had been harassing her about the time she was taking to open the gates. Mr McIntyre was quite clear that one could never have predicted or imagined that the accident would happen and he agreed with the description of it as a "daft freak accident". He agreed that when he saw her after the incident she had said that she had heard her nose crack but she did not think it was broken. The reason she had not attended the hospital on the day of the incident was because he was at his father's house and could not assist. It was his daughter who had taken the pursuer home.

[8] In re-examination Mr McIntyre said he could not dispute that the pursuer had only opened the gate 2 or 3 times before the accident if that is what she had said. He did not organise that part of the park.

[9] Robert Connell, a 51 year old gardener employed by the defenders, was also called as a witness for the pursuer. Mr Connell looks after the animals in "Pets Corner" in the park. He has been employed in that capacity from about 1996. He had been engaged in other gardening duties from time to time but had returned to work in the Pets Corner full time. During the summer his shift commences at 7.00am and finishes at 4.00pm. He works for 5 days a week and there is a rota system in terms of which overtime is paid for working on Saturday or Sunday. His duties used to include opening the gates at 7.00am. He would open all the gates in the park other than the 2 large gates which were only opened on special occasions. There were 6 gates in all to open daily. Mr Connell was aware of the accident involving the pursuer. He recalled that it was a summer weekend but not the date. He recalled finding out about the incident on the Monday. He knew it had happened at the weekend. He learned that because the pursuer was off work as a result of the accident. The foreman had told him on the Monday that there had been an accident and the pursuer had hit herself with a gate. Mr Connell recognised the gate involved in the incident in the photographs, No 6/5 of process. He described the lug or keeper as a "bracket" and confirmed it was in place to stop the gate swinging out into Donaldson Drive. He said that 3 of the gates in the park had such a lug or bracket fitted but the others had it fitted at the bottom. When Mr Connell was asked what procedure he used to open the gate in question he said that it would normally be the fifth gate he would open and he would do so from the inside. He then started opening gates from outside the park because he was always doubling back on himself and it was quicker to open it from the outside. To open the gate he would unlock the padlock and pull the bar across. The padlock had a slide bar on it which he would pull. He would stand by the slide bar and pull the gate towards him. When asked if the metal plate came near him as he was opening the gate he said that it came out towards the opener of the gate but did not go past him. Mr Connell recalled that the metal plate had been sprayed yellow shortly after the incident. When asked whether he thought the gate was dangerous Mr Connell said "not at that particular time". While the gate had swung into him a few times he thought it better to open it from the outside. The reason for him changing the method of opening the gates was to save a 5 minute walk and because it was easier to do so, he just had to push it. When specifically asked whether the bracket had ever been a concern, Mr Connell said that in the dark he could not see it and it had once touched him on the nose during the winter time on a windy day.

[10] Under cross-examination Mr Connell agreed that he was principally responsible for Pets Corner, but that from time to time the pursuer would fulfil his duties. He thought she had been working in the park for 6 months prior to the accident although he was not sure. He thought that the pursuer would require the open the gates once every 4 weeks as there were 4 people on the rota but that she would require to do so on both Saturdays and Sundays if she was working those days. Mr Connell thought that the gate in question had been installed about 10-11 years ago although he confirmed that the Renfrew 600 Celebrations had been in 1992 when he secured his job with the defenders. He recalled that the bracket or lug had been put on as a safety feature which stopped the gate swinging into pedestrians. Mr Connell confirmed that when he was opening the gate he allowed himself enough room to manoeuvre and that other than when it was dark there was no difficulty in allowing sufficient clearance.

[11] In re-examination Mr Connell was asked to explain why he had said that in the dark he could not be sure where the gate was. He said that when he first started he could not see the gate properly because it was winter and it was dark in the morning and there were no lights shining in the area. However in June it would be getting light at 7.00am.

Evidence led in the defenders' case
[12] The defenders led only one witness, Colin McClelland, an Amenity Supervisor employed by the defenders in their Department of Environmental Services. Mr McClelland is 52 years old. His responsibilities in working for the defenders include grounds maintenance, street cleaning and horticultural activities. He is responsible for maintenance of soft and hard areas. These include Robertson Park and its fences and gates. Mr McClelland was the pursuer's supervisor at the time of the incident. He recalled being told in about 2005 or 2006 that the pursuer had some health condition that rendered her unfit for working machinery so she was transferred from grass cutting to her other duties in the park. So far as the gates in Robertson Park were concerned, Mr McClelland recalled work being done in the mid-1990s in conjunction with the Renfrew 600 Celebrations and thought there were changes to the system of gates and fencing at that time.

[13] In relation to the pursuer's accident, Mr McClelland knew that the pursuer alleged that the lug welded to the top of the gate had struck her in the face. He confirmed the purpose of the lug was to stop the gate swinging 180 degrees which would hurt or damage people. He thought the lug was visible at the time of the accident. Between the mid-1990s and the date of the pursuer's incident the gate in question had been opened on a daily basis, well over 1,000 times during that period. He was unaware of any record of any prior incidents involving the gate during that whole period. Mr McClelland was asked whether the Council carried out a risk assessment and he confirmed that they did and that he was trained in that matter. When asked why no risk assessment had been carried out in relation to the gate or the lug, he said that perhaps the risk element was slight and there was no reason to provide one. In his experience the purpose of a risk assessment was where something had happened in the past or it was perceived that there might be a risk of it happening in the future. Then a risk assessment would be done. He agreed that one could not just wait for accidents to happen and that the Council's view was that if something was perceived to be a risk they would carry out an assessment. While Mr McClelland was involved in assessing risk daily he could not assess every duty although it was common to assess how an employee should carry out their job. Had he been assessing any risk associated with opening the gate prior to the incident Mr McClelland was clear that he would have suggested nothing be done. He thought there existed a safe means of access and egress to the park. When asked if he knew how often the pursuer would have required to open the gates in the park prior to the incident, Mr McClelland said he thought she would have done so half a dozen to a dozen times although he could not say exactly. He confirmed that after the incident he painted the lug yellow. If the Council did not act after an accident they would be seen to be at fault and so he thought he should do something. The lug was painted within a day or 2 of the accident. At that time the Council's Health and Safety Officer, Mr Fanning, suggested that the lug be removed. That was not done for some time. Mr McClelland had not perceived any risk from the lug, it was Mr Fanning's decision to remove it. The pursuer's accident was reported to Mr McClelland by Mr Paton who gave him the details for the accident form. He was told that the pursuer pulled the gate into her face. Mr McClelland provided the information in the accident form and report, Nos 7/1 and 7/2 of process. The forms were completed almost simultaneously. The information about the date and time of the incident came from Mr Paton. He confirmed that the information given in the reports was that given to him including the time of the accident being 5.00pm. He agreed that No 6/6 of process was an extract from the accident book. That had been completed within a day or 2 of the accident on information given by Stephen McIntyre.

[14] Under cross-examination Mr McClelland confirmed that the metal plate on the gate had been there since at least the time of the Renfrew 600 Celebrations when the entire fencing and gates were erected. It was not added at a later stage. He agreed that the purpose of a risk assessment would normally be pre-emptive although he thought it could be done after an accident to see whether it could have been avoided. He agreed that sometimes one needed to assess whether there was a danger by carrying out a risk assessment on something that may not be a concern. He could not disagree with the pursuer's evidence if she said that she had opened the gate only 2 to 3 times before the date of the incident without checking the time sheets. He disputed that Mr Fanning had had any involvement in the decision to spray paint the lug after the accident. That was Mr McClelland's decision. When asked why it had taken so long to remove the lug after Mr Fanning took the decision that it should be so removed, Mr McClelland indicated that given the workload they had it was not always possible to undertake tasks quickly. He agreed that he had been reliant on Mr Paton's information in completing the forms Nos 7/1 and 7/2 of process and that the most contemporaneous account of the accident was the extract from the accident book, No 6/6 of process, which he had signed on 25 June 2007. Mr McClelland was unaware of the reason for Mr Connell opening the gate sometimes by approaching it from Donaldson Drive. He was unaware of any incident where Mr Connell's face might have been touched by the gate. Mr Connell had not brought that to his attention. It had certainly never been reported to him that there was any danger involved in opening the gate or that Mr Connell perceived there to be such a danger. Mr McClelland was of the view that after the lug was removed there was a danger of the gate swinging and so it was restrained by tying it with a chain.

[15] In re-examination Mr McClelland explained that the Council have a scoring system for dealing with repairs and maintenance ranging from situations where an immediate reaction is required at one end to the least important at the other. When asked about whether he would defer to Mr Connell if Mr Connell had thought there was a danger with the gate, Mr McClelland explained that every employee has a duty of care. If he perceived a danger in any area of their work it should be brought to Mr McClelland's attention. If any potential danger is reported to him he reacts to it. Mr McClelland felt there was a risk in everything that one creates but if the lug was a risk then he would still perceive it as a low risk.

Submissions for the pursuer
[16] In moving for decree in favour of the pursuer in the agreed sum of damages (£12,858 with interest) Mr Hofford tendered detailed written submissions. He confirmed that while the case was pled at common law and under the Workplace (Health, Safety and Welfare) Regulations 1992 and the Provision and Use of Work Equipment Regulations 1998 he was not insisting in his common law case, he relied only on the regulations. Reference was made to the Joint Minute agreeing large parts of the narrative including that the park was a workplace and the gate was work equipment. It was not in dispute that an accident had been reported as narrated in the extract from the accident book, No 6/6 of process.

[17] It was submitted that there was no real controversy about most of the circumstances of the pursuer's accident including the details of her employment, the fact that she was working overtime on 24 June 2007, the requirement that she open the gates, the location of the particular gate in question and the fact that a lug was fitted to the upper left side of it. It was also not in dispute that other gates were fitted with lugs towards the bottom end of the gate close to ground level. The pursuer was hurt when opening the gate at a time when she was responding to a member of the public outside the gate. After her accident the lug was painted luminous yellow by Mr McClelland and was eventually removed entirely. The issues of fact that appear to be in dispute included to some extent the date and time of the accident, whether the injuries were caused by contact with the lug, the gate, or from a physical assault. There also appeared to be a dispute about the number of times the pursuer opened the gate, whether it would have made any difference if the lug had been close to ground level and the level of health risk presented by a high level lug.

[18] Mr Hofford submitted that all of the pursuer's witnesses were credible and reliable but that Mr McClelland's evidence for the defenders should be treated with caution. Mr McClelland had been responsible for their being no risk assessment and was said by Mr Hofford to be defensive after the event. An assessment of any risk from the lug being "low risk" must be seen as the very lowest.

[19] On the issue of the date and time of the accident Mr Hofford submitted that taking the evidence of the pursuer, Stephen McIntyre and Mr McClelland together, particularly the concession made by Mr McClelland in relation to No 6/6 of process the conclusion should be that the accident occurred at 8.00am on 24 June 2007. He also contended that the evidence suggested it was the lug rather than the gate that had made contact with the pursuer and Mr McIntyre to whom the pursuer spoke fairly soon afterwards had understood it was the lug. There was no acceptable evidence of assault which the pursuer had in any event denied. Accordingly, I should conclude that the injuries to the pursuer were caused by contact with the lug.

[20] So far as the extent to which the pursuer was tasked with opening the gate prior to the accident, none of the witnesses McIntyre, Connell or McClelland could really contradict the pursuer's evidence that she had opened it on only about 2 or 3 occasions previously. So far as there might be any dispute about the photographs No 6/5 of process, Mr Hofford submitted that the evidence showed clearly these were all of the same gate. One of the main issues was whether it would have made any difference to the outcome if the lug had been closer to the ground. The pursuer and Stephen McIntyre had said that if the lug had been at the bottom of the gate it would have caused less damage perhaps hitting the shin. It could be concluded then that had the lug been at low level it may have caused injury but not the serious type caused at face level.

[21] The central factor in the dispute was the level of health risk (if any) presented by the presence of the high level lug. The pursuer's evidence was that she was aware of the lug and that it was the same colour as the gate in an area of the park shaded by overhanging trees. Mr McIntyre had said that the lug would "do less damage" at low level which suggested that even at low level there was a risk of injury albeit less serious. The evidence of Mr Connell that the lug had "touched him on the nose" when he was pulling the gate towards him which led to his opening the gate from the public side suggested that he perceived a danger from the lug and was sufficiently cautious to walk round and open the gate from that side to avoid having to pull it towards him. Even Mr McClelland considered that the lug presented a "low level risk". According to Mr Hofford the best conclusion for the defenders was that there was a low level risk of serious injury from the lug and that the immediate steps taken following the accident to paint it and to decide on its removal all pointed to the presence of a reasonably foreseeable, significant risk of serious injury which would have been picked up by a risk assessment had one been done as required.

[22] Reference was made to the backdrop to the regulations referred to above. The regulations had been made pursuant to the Health and Safety Directive 89/391/EEC, the Workplace Directive 89/654/EEC and the Work Equipment Directive 89/655/EEC. Reference was also made to the dicta of Lord Reed in Lilian Smith English v North Lanarkshire Council 1999 RepLP 53. In dealing with regulations 5, 8, 9 and 11 of the provision and use of Work Equipment Regulations 1992 (the 1988 regulation replaced regulation 5 of the 1992 regulations with regulation 4) the basis of the regulations being Article 3 of Directive 89/655/EEC was confirmed and his Lordship opined "In the light of Article 3, regulation 5 should not be interpreted narrowly in a way which would fail to implement the directive fully". Mr Hofford also referred to Stark v The Post Office [2001] ICR 1013 where it was said that the purpose of the Directive (89/655/EEC) was to improve standards of health and safety for employees beyond where they already stood in individual member states.

[23] The first two provisions on which the pursuer sought to rely were regulation 4 of the Provision and Use of Work Equipment Regulations 1998 and regulation 18 of the Workplace (Health, Safety and Welfare) Regulations 1992. These required, first, that every employer had to ensure that work equipment was constructed or adapted so as to be suitable for the purpose for which it was used or provided and, secondly, that any doors and gates must be suitably constructed (including being fitted with any necessary safety devices). These regulations were said to provide an absolute and continuing duty and were not tempered by reasonableness or reasonable practicability. However, "suitable" was defined in regulation 4(4) of the 1998 regulations as "suitable in any respect which it is reasonably foreseeable will affect the health and safety of any person". In Moohan v Glasgow City Council 2003 RepLR 46 it was said that the risk of injury in terms of what is now regulation 4 of 1998 Regulations had to be reasonably foreseeable in that there had to be a greater measure of foreseeability than a mere possibility but the risk of injury does not require to be anything approaching a probability. In Robb v Salamis (M & I) Ltd 2007 SC(HL) 71 there was an authoritative discussion of regulation 4 of the 1998 regulations. Lord Hope there expressed the view that in assessing the risks to which his employees may be exposed when using equipment that he provides for them to work with, an employer must consider not only the skilful and careful man who never relaxes his vigilance but must also take into consideration "the contingency of carelessness on the part of the workman in charge of it and the frequency with which that contingency is likely to arise". His Lordship also confirmed (at paragraph 24) the context of foreseeability under the regulations that the obligation was to anticipate situations which may give rise to accidents. The employer is not permitted to wait for them to happen. Accordingly, there should be a risk assessment to uncover what steps require to be taken to avoid an accident. Mr Hofford also referred to Beck v United Closures & Plastics plc 2002 SLT 1299. That was a case in which an engineer sustained injuries when his hand was trapped as he was shutting two heavy doors at the defenders' premises. Regulation 18 of the 1992 regulations was found to have been breached as the position of the handles on the doors in question illustrated that they were not suitably constructed. Reference was also made to Jacek Swilas v Clyde Pumps Ltd an unreported decision of Sheriff Farrell sitting as a temporary Sheriff Principal dated 29 September 2010. In accepting an argument that the gates to a factory ought to be regarded as both work equipment and a workplace structure in terms of the regulations the view was there expressed that:

"it would be non-sensical therefore for Parliament to purport to provide workers with regulations to prevent foreseeable harm coming to employees which carried the caveat that the regulations might be incapable of implementation".

By analogy the suitability test in relation to floors was referred to and the case of McGhee v Strathclyde Fire Brigade 2002 RepLP 29. In that case it was held that for a floor to be "suitable" in terms of the regulations it required to present no real risk of slipping and injuring oneself. Accordingly there was said to be a very low threshold in terms of what was required to breach the regulations. In summary, on the first 2 provisions relied upon, Mr Hofford submitted that a broad interpretation was required, that the approach under the EEC directives was to enhance the existing protection of employees. He submitted that the gate in the present case was "work equipment" and that the park in which the gate was situated was clearly the pursuer's "workplace". Accordingly the gate was being used by the pursuer as part of her work and was present at her workplace. It was further submitted that it was reasonably foreseeable that there was a risk of injury to her from the protruding lug which was more than a mere possibility and that accordingly the defenders were in breach of their duty under regulations 4(1) and 18 of the 1992 and 1998 regulations respectively. Those breaches resulted in the pursuer's injury.

[24] Turning to the second group of regulations relied upon, Mr Hofford referred to regulation 5 of the Provision and Use of Work Equipment Regulations 1998 and regulation 5(1) of the Workplace (Health, Safety and Welfare) Regulations 1992. Those require every employer to ensure that work equipment was maintained in an efficient state, in efficient working order and in good repair, the latter regulations referring to the workplace and the equipment devices and systems rather than just work equipment. However the wording of the two regulations was very similar and sought to prevent work equipment or hazards of the workplace impairing the health or safety of employees. Again the regulations impose an absolute and continuing duty and are not tempered by reasonableness or reasonable practicability. The issue that arose was the interpretation of "efficient" therein. In Stark v The Post Office [2000] ICR 1013 where the stirrup of a bicycle broke, that was sufficient to establish a breach of the absolute obligation to maintain the bicycle in an efficient condition. The same position was adopted in Hislop v Lynx Express Parcels 2003 SCLR 441 where the failure of equipment signified inefficiency. Further, in Delaney v Beechwood Nurseries Ltd, an unreported decision of Lord Kingarth dated 20 February 2004, liability was established under regulation 5 of the 1992 regulations in a situation where the pursuer had fallen when descending an internal staircase at her place of work. It was established that the condition of the lighting on the staircase, together with the dark coloured carpet, created a real risk of injury to persons using it and that liability under the regulations followed. In summary, Mr Hofford submitted that "efficiency" was to be measured in this case by whether or not there was a real risk of injury as a result of the protruding lug. If I was satisfied that the gate was inefficient from the viewpoint of risking safety and that the risk was a real risk in the sense of being more than a mere possibility then the defenders were in breach of the regulations. It was further submitted that the risk of injury had been established as something more than a mere possibility and that liability accordingly attached.

[25] Submissions for the pursuer concluded by Mr Hofford making remarks about contributory negligence. He contended that a finding of contributory negligence would only be appropriate if the pursuer had failed to take reasonable care for her own safety and that failure had materially contributed to the accident or the injury sustained. The onus was clearly on the defenders to show that she had so failed. Normally thoughtlessness or momentary inadvertence did not amount to contributory negligence and, at worse for the pursuer, this was in that category. What was put to the pursuer was that accidents happened and that she had pulled the gate into her face while standing too close to it. It was not specifically put to her that she was truly blameworthy on either account. Accordingly, I should be slow to make any finding of contributory negligence. Mr Hofford moved for decree in terms of the agreed sum in the Joint Minute and suggested that expenses should follow success.

Submissions for the defenders
[26] Mr Middleton moved for decree of absolivitor with expenses in favour of the defenders. The first chapter of his submissions related to the evidence. It was said that there were a number of areas where the evidence about the alleged accident and other related matters were unsatisfactory. These included the various different dates and times of the accident, the failure to report the accident the day it occurred, the failure to seek immediate medical attention, the possibility of an assault and the pursuer's abuse of the GP's medical certificate system. On the issue of the different dates and times of the accident it was said that five different dates and times had been given in total including those in the documentation spoken to at proof. It was submitted that the different versions in the hospital and accident records can only have come from the pursuer herself. Even if she was simply mistaken in some of her accounts, that reflected badly on the pursuer's reliability. It was submitted that it was not clear that the pursuer knew that she had sustained a serious injury at the time of the incident. She was not bleeding but said that she heard her nose "crack" when struck by the gate. It was said that agents and counsel had noted the pursuer's evidence as being that she realised she had broken her nose. In any event, she must have known that "crack" signified a serious injury. If so, the pursuer would surely have taken herself off to the hospital that day. She did not in fact attend at the hospital until two days after the incident and did not see her general practitioner until 10 July 2007. So far as the three separate references in the medical records to "an assault" were concerned, it was submitted that such an expression was quite different to "being hit by a gate" or even "facial trauma". It was suggested that it was unlikely that these notes could be explained away by the inattentive actings of the note taker. Quite apart from that it was suggested there was evidence of bad faith and dishonesty on the part of the pursuer. She was reprimanded by her general practitioner for "abusing the medical certificate system" having failed to return to work in October 2008, not because she was unfit but because she "didn't feel like it".

[27] Mr Middleton accepted that, assuming the court was satisfied that the pursuer had an accident as averred, there were a number of relevant issues that were uncontentious having been agreed in the joint minute. He also submitted that the lug was, itself, a safety device, to prevent the gate swinging into Donaldson Drive into the path of passers-by. That was uncontentious and established in the evidence. Further, the gate was erected in the mid-1990's, the lug had been in place at that time and those were in the same condition in 2007 as they were when first installed. There was no suggestion of interim deterioration or alteration having been carried out to them. It was also not in dispute that the gate had been opened by an employee of the defenders every day for the 12 years prior to June 2007, amounting to about 4,380 times, perhaps slightly less excluding Christmas Day and any other closures. There was no record of any similar prior accidents during that 12 year period. Further, it was said that the evidence clearly established that the pursuer was aware of the presence of the lug, that it was light at the time of her accident and that she had no problem seeing the gate or the lug. There was no evidence of any other accidents involving the gate or lug after the pursuer's accident and prior to removal.

[28] On the more contentious issues, Mr Middleton submitted that the two main areas of dispute on the evidence were the number of times that the pursuer had opened the gate prior to the accident and the incidence of risk and risk assessment. On the first of these it was submitted that taking the evidence as a whole the pursuer may have opened the gate more than the "two or three times" before the accident that she gave evidence about. However, the relevant fact that had been established was that she was familiar with the task and was aware of and could see the lug. As far as the incidence and assessment of risk was concerned, the defenders' awareness of that was critical to the statutory cases regarding the "suitability" of the gate's construction relied upon by the pursuer. It was said that while the incidence of risk was ultimately an objective matter for the court, its view could be informed by the evidence of those who used the gate on a regular basis. The straightforward proposition was made that, standing back, from an objective standpoint and without the benefit of hindsight, the construction and opening of the gate posed no reasonably foreseeable risk of injury at all. It was said that it was hard to think of a more straightforward or less risky work task. The pursuer had accepted in cross-examination that, positioned where it was, the lug was there to be seen at eye level. While she did say that painting the lug after the accident made it "more visible" that suggested that it was visible at the time of the accident. Mr Middleton placed some reliance on the evidence of Mr McIntyre who had quite openly said that when the pursuer told him what had happened he had laughed, in a manner that suggested he thought the pursuer had done something rather foolish. His statement that one could never have imagined that the accident would or could have happened was as clear a statement as one would ever hope to obtain that the task of opening the gate was not in the slightest bit risky or that an accident of this type ought ever to have been in the contemplation of the defenders when constructing the gate, even taking careless misuse into account. Mr McIntyre had accepted that his view that the lug ought to be removed had been reached with the benefit of hindsight. Mr McIntyre seemed to have accepted that accidents just happened and that no-one is to blame. He accepted that this was the case with the pursuer. Mr Middleton also relied on the evidence of Mr Connell who had answered a question about whether he considered the gate to be dangerous by saying "No, not at that particular time". While Mr Connell had also said that the lug had touched his face once, it was not clear when that was and there was no suggestion that he had made the defenders aware of it. Mr Connell used to open the gate from the outside principally because it saved time. Thus Mr Middleton submitted the net effect of the evidence of the two men who regularly opened the gate was that prior to the date of the pursuer's accident there was no appreciable or foreseeable risk of any sort of injury from the gate or lug and certainly no knowledge on the part of the defenders of any risk.

[29] Mr Middleton also relied on the evidence of Mr McClelland, the supervisor who was familiar with the park and its gate and the nature and purpose of risk assessments. He said that one does not risk assess every minute detail of a person's job. Had he risk assessed the gate immediately prior to the accident, he would not have suggested that anything be done to alter its construction. His opinion was that the gate was not risk assessed because any risk was "perceived as very very slight". While Mr Middleton accepted that Mr McClelland also said that there was a "low" risk of injury from the lug, it was submitted that that evidence had to be read in the context of Mr McClelland's evidence as a whole. It was clear that Mr McClelland regarded the risk as negligible and no more than the risk in anything that man created. Mr Middleton noted that it was no part of the pursuer's case that there had been any other similar prior incidents or any report of those to the defenders. There was no notice of any other incidents and the objection that had been made to Mr Connell's evidence about an episode when the gate touched his face should be deemed inadmissible. In any event, Mr Connell's evidence was that any problems he had encountered was when it was dark. This would also be inadmissible as it was no part of the pursuer's case that there were any problems with light or visibility. Finally on that point Mr Connell's own perception was clearly subjective and the court would only be interested in the objective view. I should not be satisfied on a balance of probabilities that the construction or opening of the gate was objectively risky. It was said to be quite the opposite.

[30] Mr Middleton submitted that there were issues about how any accident to the pursuer actually happened. She had said in evidence that there were a group of people waiting outside the park and that one man in particular was shouting abuse and pressurising her. He was "bolshie" and she was "flustered". It was significant according to Mr Middleton that the pursuer had said she focussed on the man outside the gate and tried to maintain eye contact. She was "in a hurry". She had accepted that she was standing close to the gate and did not disagree with the suggestion that of the 31/2 inch square lug caught her nose then her face must have been closer than that to the gate proper. She had certainly not held it at arms length. Mr Connell on the other hand opened the gate at arms length making sure there was sufficient clearance between him and the gate. It was clear that the pursuer had not stood sufficiently to the side of the gate, had pulled it and struck her own nose. Even on the pursuer's own account Mr Middleton suggested that it was clear that she was distracted and hurried and paying attention to the man outside and not to the gate. In trying to open the gate as quickly as possible she pulled it into her own face. That was all that had happened. It was suggested that the case was not about the gate at all but was about the circumstances in which and how the pursuer handled the gate. The accident arose because of the pursuer's actings, not because of the gate. In any event the court could not be satisfied that it was only the lug that had struck the pursuer in then nose. She could not say that with any certainty. Although she initially said that it was "definitely the lug" she then said she was "pretty sure it was the lug". She was hesitant in her evidence which was not surprising as the incident was over so quickly.

[31] Turning to the relevant regulations relied upon, Mr Middleton submitted that the pursuer had failed to prove any breach of duty. If she had established that she was struck by the lug alone, then regulations 4 and 5 of the Provision and Use of Work Equipment Regulations 1998 were relevant. Further, as it had to be accepted that the gate was "work equipment" in terms of the regulations, the issues were whether the gate was constructed/adapted so as to be suitable for its intended purpose and whether it was properly maintained in an efficient state, in efficient working order and in good repair. This was not a case about the operation or the working conditions under which the gate was used. There was no question of it being defective due to a lack of proper maintenance. It was not broken and had not deteriorated. If anything, it was a regulation 4(1) case concerning the suitability of its mode of construction or adaptation. In that case, "suitability" had to be expressly measured against the reasonably foreseeable risk to health and safety according to regulation 4(4)(a). Accordingly, a gate would not be suitable if its constructional state gave rise to a reasonably foreseeable risk of injury. Conversely, if an injury occurred as a result of the use of a gate, but the risk of injury could not reasonably have been foreseen, then it could not be said that the gate was not suitable in terms of regulation 4(1). It was submitted that the pursuer's case was in the latter category. Mr Middleton also referred to Robb v Salamis (M & I) Ltd 2007 SC (HL) 71. There Lords Hope of Craighead and Rodger of Earlsferry had had reinforced the position that the obligation under regulation 4 is (1) not to foresee the precise way in which an injury might occur, but to look at the matter in the round, to anticipate the range of risks that might arise from the use of the equipment and (2) not only to consider use by the skilled and careful employee but also to take account of (a) the contingency of carelessness and (b) the probably frequency of such careless use, not waiting for an accident to occur before addressing any risk. It was submitted that these factors made clear that it was an objective, impersonal but contextual test. The question was whether the nature and characteristics of the equipment were such that danger might reasonably be anticipated from its use by both careful and careless employees alike. The employer's duty was limited by the eventuation of risks that are beyond the range of reasonable foreseeability. There was no duty to anticipate any risk created by careless use which is only a "mere possibility" - Lord Brodie in Moohan v Glasgow City Council 2003 SCLR 367 at 378. Reference was also made to Johnstone v AMEC Construction Ltd 2010 Rep. LR 96 where an Extra Division of the Inner House made clear that employers must "... look broadly at the whole gamut of risks that might be anticipated". In the present case, Mr Middleton submitted that taking the reasonably anticipated conduct of both the prudent and careless employee into account, the risk of injury from the gate fell outwith the range of reasonable foreseeability. The risk of injury which eventuated was only a "mere possibility", if that. The pursuer pulling the gate or lug into her own face did not fall within the "gamut of risks" which the defenders ought reasonably to have assessed and foreseen. Accordingly, there was no need for them to construct the gate differently, it was "suitable" as it was. The case could be contrasted with the risk of injury from a moveable ladder which was not replaced properly (Robb v Salamis), from a piece of fencing that was not secured in windy conditions (Johnstone v AMEC Construction Ltd), from cleaning the exposed blade of a meat slicing machine (English v North Lanarkshire Council). It was all so easy to see how an unfenced piece of dangerous machinery or an unguarded circular saw was not "suitably constructed". However, when constructing this particular gate, the risk of injurious contact with the user's face could not reasonably have been foreseeable at the time. While Johnstone v AMEC Construction Ltd shows that the risk assessment process could form a valuable part of the decision making process when selecting and construction a piece of work equipment, there was no liability for a simple failure to risk assess. Reference was made in that context to an unreported decision of Lord Eassie in Logan v Strathclyde Fire Board (12 January 1999). In any event, there was no hazard that ought reasonably to have featured in any risk assessment had it been done. It was trivial.

[32] It was submitted that there was no reasonably foreseeable need for the defenders to carry out a risk assessment in relation to the gate. There simply wasn't a "mischief" that could have been foreseen. It could not be said that there was a duty to risk assess every minute detail of an employer's undertaking or an employer's duties. Reference was made to Munkman on Employer's Liability (15th Ed 2010) paras. 10.20 and 23.53 and Threlfall v Kingston upon Hull City Council [2001] ICR 209. These supported the contention that insignificant risks can be ignored and any assessment must be appropriate to the nature of the work. It was reiterated that there had been no reported similar incidents involving the gate in the 12 or so years that it had been there and opened daily by various employees. It was said while an ordinary door or gate user might conceivably injure himself on an innocuous piece of door furniture such as a handle or a hook, that did not render the door or gate unsuitable as a whole under the objective and holistic approach to suitability demanded by the House of Lords in Robb v Salamis. It should not be ignored that the lug itself formed an important safety function to prevent the gate from swinging out beyond the gatepost and into the street possibly injuring passers-by. Ultimately this was an unfortunate freak accident and there was no difference between it and a user closing a door or gate too quickly with his hand around the edge of the door and injuring it between the door and the frame. The case of Beck v United Closures & Plastics Ltd 2001 SLT 1299 was one where there was a defective and loose door bracket or hinge. An engineer had trapped his right hand between the two heavy doors in question. As the door handles were too close together, at the wrong angle, too close to the inside edge of the doors and required the use of some force to close them, this made the possibility of trapped fingers entirely foreseeable and the door not suitable. It was submitted that the pursuer was not in the same territory. Further, mere occurrence of the accident did not render the gate automatically unsuitable as breaching regulation 4. Reference was made in that context to Reid v Sundolitt Ltd 2008 SC 49 at paras. 23-25. There was no absolute liability under regulation 4 and no absolute guarantee of protection. If it were otherwise any accident involving the gate would render the defenders liable and that is not what the provision demands.

[33] The post-accident alterations in terms of painting the lug yellow and ultimately removing it did not, according to Mr Middleton, evidence a lack of suitability at the time of the accident. By that time someone had in fact injured themselves on the gate. Had the defenders left the lug in place and someone had hurt themselves again then it would have to be accepted that there would have been reasonable foresight. Hindsight is not the test. It was also submitted that painting the lug a different colour was in any event irrelevant as the pursuer had used the gates before and knew the lug was there and could see it. It was submitted that it was arguably safer to have had the lug at eye level visible to the user rather than at foot level. In any event, the gate had to be judged by its own state at the time of the accident and not by reference to any safer alternative if there was one.

[34] Counsel for the defenders accepted that the EU Framework Directive and the Work Equipment Directive were intended to introduce a minimum level of safety for employees. However the 1998 regulations ought not to be applied to a de minimis situation in such a way as to give rise to an absurd result. In Hughes v Grampian Country Food Group Ltd 2007 SLT 635 a commonsense approach was adopted to the application of the Manual Handling Operations Regulations 1992, to exclude the trussing of chicken wings and legs from the scope of its provisions. To have done otherwise would have been to classify every non-cerebral human activity as a "manual handling operation" which would have led to a clearly absurd result. It was suggested that to hold there has been a breach of regulation 4 in this case would impose a similarly absurd and unjust liability on the defenders. It was submitted that regulation 5 does not apply to the circumstances of the pursuer's case as there had been no failure in the defenders' system of maintenance work to preserve the gate in its intended state of construction and no resultant defect or mechanical failure. Nothing positive had been done to the gate. There was no lack of maintenance in the sense of a failure to do something to preserve the gate. It was in the same state as it had been when it was erected. It had not deteriorated due to any lack of maintenance. If however the view was taken that "maintained" in regulation 5 simply meant "kept" or "secured", but that the gate was "suitable" in terms of regulation 4 when erected, then it cannot have become unsuitable due to any deterioration in its as-built condition. On the other hand, if it was found that the gate was not "suitable" when first erected in breach of regulation 4 and that this was a maintenance case, then it was accepted that there might also be a breach of regulation 5 although it was suggested that resort to that provision was unnecessary. Regulation 4(1) was the key provision.

[35] In relation to a case on which reliance was placed by the pursuer, Hislop v Links Express Parcels 2003 SLT 785, that was a clear case of an obvious failure to maintain. A radiator cap blew off, scalding the pursuer without any human interaction being involved. Here there was no mechanical failure of the gate and the accident happened entirely because of the pursuer's interaction with it. Thus Hislop was wholly distinguishable. Similarly, in Beck, Lord McEwan held that the doors were not "suitable" under the old regulation 5 (now regulation 4) and thus held that they had also not been properly "maintained in an efficient state" under the old regulation 6 (now regulation 5). It was not explained in the decision why the second of these findings had been made. It was submitted that in the present case there has been no breach of the 1998 regulations.

[36] Turning to the cases under regulations 5 and 18 of the Workplace (Health Safety and Welfare) Regulations 1992, it was submitted that this is not a regulation 5 case. The gate was certainly not the pursuer's "workplace". The park was the pursuer's workplace and there no question arises as to the safety of the park itself. The case is about the suitability of the gate which was not "premises or part of premises... made available as a place of work". The gate was a means of access to the place of work and the definition of "workplace" in regulation 2 meant actual voluminous areas or spaces within premises. Reference was made to Lewis v Avidan [2006] P.I.Q.R. 6. If the approach contended for by the pursuer were correct, that would mean that every workplace accident could be prosecuted under regulation 5 whatever the case and that could not be correct. Mr Middleton referred in this context to Spencer-Franks v Kellogg Brown & Root Ltd 2008 SC (HL) 159 where a faulty door closer mechanism case was purely a work equipment case not a maintenance case under regulation 5. In any event, it was said that the gate was not the sort of "equipment or device" to which regulation 5 applied. There was no fault in the gate arising from any sort of mechanical failure or defect through lack of maintenance. In any event, it was submitted that even if regulation 5 was potentially engaged, this was not a maintenance case. The real issue under the 1992 regulations was said to be regulation 18 which again dealt with the suitability of the construction of doors and gates including being fitted with any necessary safety devices. Doors and gates must be suitable from the perspective of health and safety, that was what the regulations were all about - see Marks & Spencer Plc v Palmer [2001] EWCA Civ. 1528 where the Court of Appeal considered similar wording in relation to floors and traffic routes. By analogy, the constructional state of the gate must, in some way, have been unsafe for the pursuer to establish liability.

[37] Regulation 18 did not provide a pursuer with an absolute guarantee that under no circumstances would it ever cause injury. Again the fact that the accident happened does not automatically mean that the gate was unsuitable. In McGee v Strathclyde Fire Brigade 2002 LR 29 Lord Hamilton had held in relation to a question of "suitably" constructed floors, there had to be a foreseeable or real risk of injury, that the mere occurrence of an accident did not breach the regulation and that the punctum temporis for assessing suitability is a time in advance of any accident. In that case Lord Hamilton also distinguished the case of Mains v Uniroyal Englebert Tyres Ltd 1995 SC 518 on the basis that it had been concerned with the interpretation of the word "safe" not "suitable". Under the 1992 regulations the pursuer could not succeed by simply proving that her accident was in some way related to gate, she must prove that it occurred by some unsuitable feature thereof. In any event, the test of whether safety devices were required was that of "necessity". Here the lug was a necessary safety device which does involve an assessment of reasonable foreseeability. To that extent the suitability of any safety device such as the lug is informed by the reasonable foresight in safety context and here it could not be said that the risk was foreseeable. While some types and styles of door carried inherent risks of injury, such as powered doors, regulation 18 does not obviously apply to conventional doors and gates with conventional features. Again the case of Beck v United Closures & Plastics Plc could be distinguished because it involved a defective door hinge in the positioning of the handles rendering the doors unsuitable. A commonsense approach required to be taken in the application of regulation 18. Finally in this context reference was made to Hurd v Stirling Group Plc [1999] EWCA Civ. 1487 where a spring-loaded door had swung back on the female plaintiff. The door had been used for years without incident and the Court of Appeal took the view that the accident was simply unfortunate and that the employer was not to blame.

[38] Mr Middleton made a separate submission in relation to causation. First, he argued that even if the gate and lug arrangement could be said to be not suitable or safe, the pursuer was being pressurised by an eager member of the public to get into the park and that was what caused her to rush things resulting in the accident. While carelessness was to be anticipated and accounted for, the pursuer's reaction to the conduct of an unconnected third party took the situation outwith the realms of causation. Secondly, it is clear that if there had been no lug on the gate the manner in which the accident occurred suggested that the pursuer would have pulled the gate proper into her face anyway. She was standing too close to it. Thus she would still have been injured even if there had been no lug - see McWilliams v Sir William Arrol & Co Ltd 1962 SC (HL) 70 at 82. Finally, the pursuer could, rather like Mr Connell, have opened the gate from the other side by pushing rather than pulling it in which case the lug would never come into play.

[39] On the issue of contributory negligence, it was suggested that even if the pursuer proved a causative breach of duty, there had been a very high degree of contributory negligence. It was contended that the pursuer was responsible for the "lion's share" of the blame. Any causative breach on the defender's part paled into insignificance compared to the pursuer's own negligence which ought to be assessed at 90%. In Swilas v Clyde Pumps Ltd the pursuer was found to have contributed to the accident to the extent of 75% and the present pursuer was more culpable than that. It was not necessary to put the legal test to the pursuer, only to challenge her on the facts of how the accident happened.

[40] In conclusion Mr Middleton renewed his motion for absolivitor. He indicated that if there was to be any finding in favour of the pursuer to any degree, then there would require to be a discussion on expenses. There may be a motion for expenses on a scale other than that of the Court of Session.

Reply on behalf of the pursuer
[41] In reply Mr Hofford argued that the question and answer to Mr Connell about his previous experience in opening the gate should be allowed, it had not been designed to elicit any case not on record. In relation to the use of the word "maintenance" in the Regulations, this should not be understood as a question of maintenance in the traditional sense. The lug would only have been in an efficient state if it did not present a risk of injury to the pursuer. In Robb v Salamis the employer had not taken into account the circumstances in which the ladder was to be used, it was not a case of defective construction. Both Moohan v Glasgow City Council and Hurd v Stirling Group plc had been decided before Robb v Salamis which had changed the approach to such cases.

Discussion
[42] Having considered the evidence, I am satisfied that the Pursuer sustained an injury on 24 June 2007 as a result of an incident that morning when she was opening a gate at the Donaldson Drive entrance to Robertson Park in Renfrew in the course of her employment. While a number of issues were raised in relation to the different dates and times given for the accident, the pursuer herself was not the author of the documents where different dates had been given. She did seem a little confused when giving evidence about dates, but she knew the accident had occurred on a Sunday when she was working overtime. The medical records indicate that she attended hospital two days later. The date of the accident and the pursuer's delay in seeking medical treatment were corroborated by Stephen McIntyre. While, as I explain below, I have reservations about the pursuer's credibility and reliability I do not think she fabricated the whole incident and I accept her evidence and that of Mr McIntyre in relation to the timing of the accident and her attendance at Mr McIntyre's home later that morning. I do not find any other cause of the pursuer's injury established. The references in the medical records to "assault" and "facial trauma" are on one view not inconsistent with an inanimate object having struck the pursuer and a medical professional using ambiguous terms to record that.

[43] However, I am less satisfied in relation to how exactly the accident happened. The pursuer was undertaking a task that she had undertaken before. On the basis of the evidence of how often she had worked overtime and the initial responses of others when asked how many times she would have opened the gates previously, I consider that the pursuer understated the frequency with which she had performed this task prior to the day of the accident. Mr McIntyre and Mr Connell were not prepared to dispute the pursuer's evidence when told that her position was that she had opened the gates only two or three times previously but their initial view was that it would have been more than that. In any event, the task was something that she was familiar with and she knew of and saw the lug that was fitted to the gate. Accordingly, I am of the view that the colour of the lug and its position are of no direct relevance in trying to understand how the accident occurred. On the pursuer's own evidence she was distracted by a gentleman outside the park and tried to open the gate as quickly as possible. She was standing close to the gate and opened it into herself. She was not looking at the gate and the incident was over very quickly. The initial reports of the accident, (Nos 6/6 and 7/2 of Process) do not mention the lug at all, only that the "... gate swung quickly when pulled and hit Heather on face/nose." I agree with Mr Middleton that the pursuer was hesitant when cross examined about this, I formed the impression that she was uncomfortable being questioned on the precise circumstances of the accident. Of course, the fact that the lug was protruding and at eye level renders it more likely that it would be that part that would hit the pursuer first when she pulled the gate into herself. I accept also that the lug was identified as being involved in the accident soon afterwards and that it was the focus of discussion about what, if anything should be done in light of what had happened to the pursuer. I have concluded that, on balance, it is more likely than not that the lug was involved in the accident as it was the part of the gate that hit the pursuer first. However, I am completely satisfied on the account given in evidence that, had the lug not been present, the gate would have made contact with the pursuer to her injury. Similarly, had it been fitted at a lower level, it would have caused some other injury to her had she pulled the gate into herself. The mechanism of the accident was that the pursuer stood too close to a gate when opening it and pulled it into her face. She failed to give herself the clearance required when opening a gate by pulling it towards her. In my view, it is not the presence or absence of the lug that explains the accident; it is the actions of the pursuer.

[44] In reaching this conclusion I have considered the credibility and reliability of each of the witnesses. As indicated I had reservations about the pursuer's credibility and reliability. She was a little evasive when questioned directly and had to be pressed into accepting matters less favourable to her case, such as the two day delay in attending at the hospital and the extent to which she was distracted when opening the gate. I was concerned that there was a clear record of her having been challenged by her General Practitioner for attempting to abuse the medical certificate system by failing to return to work when not unwell but seeking certification. Her demeanour in the witness box was defensive. While I had fewer reservations about Mr McIntyre, I was not entirely satisfied that he was a completely reliable witness. He was clearly supportive of the pursuer and had formed a view, with the benefit of hindsight, that the lug on the gate posed a risk. His recollection that the pursuer had told him that the lug had struck her did not sit well with the account that he was involved in giving for the completion of the initial accident report. However, his willingness to accept that the accident could not have been predicted and was "... just one of those things" bolstered his credibility and he did not appear to be trying to answer only in a way that would assist the pursuer. There was no suggestion that Mr McIntyre was involved in assessing risk of any duties performed by Council employees. I place no reliance on his opinion of the risk posed by the lug. However, as indicated, I have accepted his corroboration of the timing and report to him of the accident as I consider that he was giving a clear and honest recollection of that. I had no difficulty accepting as credible the evidence of Mr Connell, the employee who had opened the gates daily for some years. He seemed to be a cautious individual, who thought about how best to carry out his duties. Despite being encouraged by certain questions to look upon the lug of the gate as a danger, he did not support that claim and was clear that time efficiency was behind his decision to open the gate from the outside in his task to open each of the park gates, rather than any concern for his safety. While the lug had "touched his face" once in the dark when he could not see clearly, that incident did not merit a report to his employers. The date, circumstances and cause of that incident were not fully explored and I have ignored that evidence in reaching my decision. It was not and cannot be characterised as an accident. In any event the pursuer has no case based on a lack of visibility and I regard the evidence as inadmissible on that basis. Taking his evidence as a whole, I consider that Mr Connell did nothing to assist the pursuer's case. It seemed to me that any concerns he had probably post dated the pursuer's accident and that when he said he didn't regard the lug as a danger "at that particular time" he was referring to the time of the incident in 2007. I found Mr McClelland, the amenity supervisor employer by the defenders, to be a credible and reliable witness. I do not accept the contention that he was "defensive after the event" because he had not carried out a risk assessment on the gate. He gave his evidence in a calm and measured fashion. It was clear that he took seriously his responsibilities in terms of assessing risk in the workplace. He could not speak to the circumstances of the accident other than as reported to him. He took such action thereafter as was required, given that an accident had occurred and the Council would be criticised if they did nothing.

[45] The common law case pled by the pursuer was not insisted in. Reliance was placed on two "groups" of Regulations. The first of these groups included two provisions; (i) Regulation 4 of the Provision & Use of Work Equipment Regulations 1998 and (ii) Regulation 18 of the Workplace (Health, Safety and Welfare) Regulations 1992. These provisions seek to prevent work equipment impairing the health or safety of an employee. Regulation 18(1) requires doors and gates to be "suitably constructed" including being fitted with any necessary safety devices. While both Regulations impose an absolute duty, suitability is defined in both as "... suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person." In Moohan v Glasgow City Council 2003 Rep LR 46 Lord Brodie expressed the view there had to be "... a greater measure of foreseeability than mere possibility" and that for work equipment to be suitable there had to be an absence of reasonably foreseeable risk of material ( more than de minimis) harm. In that case, the pursuer's use of a pinch bar, pick and spade to dig a hole in a play area was found not to involve such a reasonably foreseeable risk of harm. On the evidence led in this case, I do not consider that opening the gate in question, fitted as it was with the safety device of a lug involved anything more than a mere possibility of injury or harm to the pursuer. The particular gate in question, fitted with the lug at eye level, had been opened each day for many years without any incident taking place to the defender's knowledge. In my view there was nothing to suggest it posed a risk of harm to employees. There was no evidence to suggest there was any defect in the gate or the lug or with the mechanism for opening the gate, in contrast with the type of situations that arose in Beck v United Closures and Plastics plc 2002 SLT 1299 and Swilas v Clyde Pumps Ltd ( Temp Sheriff Principal Farrell, 29 October 2010, unreported). It is clear from the authoritative dicta in Robb v Salamis (M&I) Ltd 2001 SC (HL) 71 that the risk of injury must take account of the contingency of carelessness on the part of the employee. However, the context of the following dicta of Lord Hope in that case {at para [8]} is important:-

"The accident was caused by the fact that the ladder was not fixed in position when the pursuer tried to use it to descend from his bunk. It had not been replaced properly when it was last removed from the metal retaining brackets. This was due, no doubt, to the carelessness of the person who last handled it. No one has suggested that this was done deliberately. When an employer is assessing the risks to which his employees may be exposed when using equipment that he provides for them to work with, he must consider not only the skilled and careful man who never relaxes his vigilance. He must take into consideration 'the contingency of carelessness on the part of the workman in charge of it and the frequency with which that contingency is likely to arise' (Hindle v Birtwhistle, per Wills J, p195; Summers & Sons Ltd v Frost, per Lord Reid, p765). The ladder was not suitable for the purpose for which it was used and provided because a person replacing it might not replace it properly due to carelessness, and because a fall from a ladder which had not been replaced properly was likely to cause injury. That risk could have been avoided by screwing the ladder to the side of the bunks, as was done after the accident."

[46] In my view there is a distinction to be drawn between a situation where a safer, alternative means of using equipment should have been considered and acted upon and one where part of the equipment in question was itself a safety device that was properly secured. The moveable unsecured ladder presented a foreseeable risk of injury in certain circumstances in a way that a permanently secured ladder would not. The pursuer's case is not that there was an alternative method of avoiding the gate swinging. Her case is that the very presence of the lug presented a foreseeable risk of injury. I find that it did not. The pursuer's accident was not one that could have been anticipated and was caused by her own action of standing too close to a gate that she was pulling towards her. There is nothing in the regulations or in the authorities cited to me to support the proposition that liability attaches in such a situation. There was nothing unsuitable about the gate and the lug fitted to it for safety reasons.

[47] Much was made of the fact that the defenders had not carried out a risk assessment in relation to the gate. It is clearly not realistic to expect an employer to risk assess every single detail of an employee's work. I accept without hesitation Mr McClelland's evidence on this matter. The way in which he spoke of the gate and its lug in the context of risk made clear that when he used the word "low" he meant that any risk was so slight, so negligible that there was no need for a risk assessment. He was very clear in his view that had he been assessing risk in relation to the gate prior to the accident he would have recommended that nothing be done. As he put it "... there is a risk in everything that one creates ..." thus one had to identify situations where a risk could be perceived before undertaking a risk assessment. After the accident he had to accept the recommendation of Mr Fannig that it be removed but Mr McClelland did not perceive the gate and its lug to be a risk at that point either. Accordingly I do not consider that in the particular circumstances of this case the lack of a risk assessment gives rise to liability on the part of the defenders. I agree with Counsel for the defenders that the sort of accident in which the pursuer was involved was akin to someone shutting a door with their hand around its edge and injuring it between the door and the frame. No alteration to work equipment could avoid such an unexpected event, thus the notion of trying to find an alternative (safer) means of achieving the same end does not arise.

[48] The second group of Regulations relied on involved (i) Regulation 5 of the Provision & Use of Work Equipment Regulations 1998 and (ii) Regulation 5(1) of the Workplace (Health, Safety and Welfare) Regulations 1992. These require all work equipment (and devices and systems under the 1992 Regulations) to be "... maintained in an efficient state, in efficient working order and in good repair". Again the duty is an absolute one and efficiency has to be interpreted from the viewpoint of health, safety and welfare - English v North Lanarkshire Council 1999 Rep LR 53. I do not consider that the cases of Stark v Post Office [2001] ICR 1013 and Hislop v Lynx Express Parcels 2003 SCLR 441 assist the pursuer in this case. Both involved some failure in equipment or its working. In Stark the stirrup of a bicycle broke and in Hislop an HGV radiator cap blew off. In those situations it is easy to see how the equipment was found to be either not properly maintained or not in efficient working order. The case of Delaney v Beechwood Nurseries Ltd (Lord Kingarth, unreported, 20 February 2004) is a less obvious case of "inefficient" work equipment and thus of more interest given the circumstance of the pursuer's accident. In Delaney the pursuer misjudged a step near the foot of a flight of stairs, slipping and falling to the ground. Her evidence was that the lighting was very poor and the carpet dark in colour, making it difficult to see and judge where the edges of the treads were. Liability was established under Regulation 5(1) of the 1992 Regulations, although the provision of poor lighting was sufficient to establish liability under Regulations 8(1) of the same Regulations. Lord Kingarth expressed some unease in relation to the use of the words "... in an efficient state" when dealing with questions of whether a place of work was unsafe. However, he accepted that the poor lighting and dark coloured carpet created a real risk of injury to those using the staircase and liability was established. The difficulty that faces the pursuer is this case is that she cannot point to anything that has not been properly maintained or is in some other way defective or that there was any real risk of injury. I agree entirely with the submission of Mr Middleton that there is a relationship between Regulation 4 (relied on in the first "group" of Regulations) and Regulation 5 in that, as I have found that the gate was suitable in terms of Regulation 4, it cannot have become either inefficient or unsuitable due to deterioration in condition. There was no evidence to support any such deterioration or any inference of a lack of maintenance. I conclude that this case is not one where any maintenance issue arises in terms of the relevant Regulations.

[48] In my view, the pursuer could only succeed on the facts of this case if liability attached to the employer whenever an accident occurred regardless of its cause. While I accept that the Regulations, based as they are on European Directives, should not be interpreted narrowly and that the threshold for the pursuer in proving "unsuitability" on "inefficiency "is a low one, there is, nonetheless, a requirement for a risk of injury that was simply not present in this case. It is important in this context that the punctum temporis for assessing suitability (or efficiency) in terms of the Regulations is at a time in advance of the accident - per Lord Hamilton in McGhee v Strathclyde Fire Brigade 2002 Rep LR 29 at para 10. The decisions that were taken in relation to the lug after the event are not indicative of the presence of risk immediately before it. The uneventful opening of the gate over many years prior to the incident, fitted as it always was with a lug to stop it swinging, is a persuasive fact supportive of an absence of risk at the material time.

[49] Had I been satisfied that there had been any breach of any of the Regulations referred to, I would in any event have concluded that any such breach was not causative of loss in this case. I have found that the accident occurred because of the manner in which the pursuer pulled the gate into her face. That is what caused her injury, not the position of the lug. In the absence of any breach of duty resulting in injury and the pursuer being the sole author of her misfortune, no issue of contributory negligence arises. Had I found that the defenders were in breach of the their statutory duties in a way that was causative of the injury sustained by the pursuer, I would in any event have found her to have been contributorily negligent to the extent of 90% in light of the way in which the accident occurred.

[50] For the reasons explained above, I find that the defenders were not in breach of their statutory duties and I shall grant decree of absolvitor. Both sides accepted that in the event of complete success for one party, expenses should follow. Accordingly I shall also find the pursuer liable in expenses.