[2010] CSOH 91



in the cause







Pursuer: Caldwell QC, McCaffrey; Bonnar & Co

Defender: Revie; HBM Sayers

13 July 2010

[1] This is an action for reparation following an accident at work. Quantum was agreed at £45,000 net of any recoupment in terms of the Social Security (Recovery of Benefits) Act 1997 and subject to any finding of contributory negligence.

[2] The pursuer's date of birth is 7 March 1947. He worked for the defenders as an HGV driver until the date of the accident on 18 August 2008. He was dismissed from his employment about one month later following disciplinary procedure. The pursuer obtained an HGV licence when he was 21 and so at the date of the accident had been driving lorries for about 40 years. The defenders took over a company known as "Hannay" for whom the pursuer worked. He and other workers were transferred to the defenders. When working for Hannay, the pursuer drove a type of lorry known as "Roll On Roll Off" or as a "RORO". The pursuer continued to drive ROROs after the transfer. About four weeks before the accident the pursuer was taken off driving ROROs and put on to driving skip lorries. Skip lorries, sometimes known as bucket lorries, carried a skip on the bed of the lorry, held in place by chains. The pursuer's job in connection with the skip lorry was to drive the lorry with an empty skip to a client and collect waste. He then had to drive it back to the defenders' depot where the skip was emptied. The skip was covered by a net when full. The purpose of the net was to keep the waste in the skip. The net had to be removed before the skip could be emptied. The dispute in this case revolved around the procedure undertaken by the pursuer to take the net off the skip at the defenders' depot at Blochairn in Glasgow.

[3] The pursuer gave evidence to the effect that the net over the skip had to be pulled taut and secured by tiers at the front, sides or back of the skip. When unloading the tiers had to be loosened and the net removed. This process was known as 'de netting'. Unloading at Blochairn was done in an area know as the tipping bay in the tipping hall. A diagram of the depot was produced which showed that the lorries entered the depot and drove round the office block to an area marked "De Net" and known as the de netting area. At that area the skips were lowered to the ground and the nets removed. Thereafter the skips were returned to the lorries and the lorry proceeded to the tipping bay. The depot was usually busy and drivers often had to queue for up to about fifteen minutes to get to the de netting area. The pursuer said that it was common for drivers to release the tiers on the net while waiting to get to the de netting area. To do so saved a little time. The pursuer said that he was always under pressure of time as he was given many runs to do each day. Therefore, he said, if he was held in a queue waiting to get to the de netting area he would go up onto the back of the lorry and untie the tiers while he waited. The bed of the lorry was about five feet from the ground and access could be gained by means of a ladder fixed to the side of the lorry.

[4] On the day of the accident the pursuer had been waiting to get to the de netting area. He decided to untie the tiers and to do so he used the controls within the cab of the lorry to move the skip back towards the end of the lorry thereby creating some space on the lorry. He then climbed up the ladder onto the lorry and loosened the tiers at the front of the skip. He turned round and caught his foot in a space created by the movement of the hydraulic ram on the lorry, and fell off. He sustained injuries.

[5] The pursuer said that he had never been told that he should not climb up onto the lorry. He said that other people often did so. The de netting area was in front of the office and managers working for the defenders were often in the office or outside in the de netting area. They must have seen others climbing up onto the lorries. He was surprised when he was dismissed for climbing up on the lorry because he did not know that he was doing anything wrong.

[6] The pursuer described his training in driving skip lorries. It consisted of going out on a skip lorry for four days with another driver known to the pursuer as "Malcolm". During the four days the pursuer observed him at work and had an opportunity to operate the controls of the lorry. According to the pursuer, Malcolm did not tell him not to climb on the lorry. Malcolm had no qualifications as a trainer. The pursuer had been given some paperwork when he started with the defenders. He accepted that his signature appeared on 7/3 of process which is a single sheet of paper headed "Induction for Risk Assessments". Thereafter the pursuer's name appears as does the location of Blochairn. There follows a line saying "This induction will cover risk assessment" and then there is a list of thirty four items. At the foot of the page there is a declaration in the following terms "Employees declare that he/she have read and understood the above documents." The document is signed by the pursuer and by a manager, on 22 January 2007. He said that he was told to sign 7/3 and he did so. He accepted that he was given some manuals to read. He said that he read those relating to ROROs, being the vehicle on which he was then working. He was adamant that no one went over the content of any of the company rules of procedure either when he started with the defenders or when he started to drive the skip lorries. He was adamant that he had never been told not to climb on the lorries and that he had often seen other people do so at the Blocharin depot. He was asked in cross-examination if someone by the name of Denise had given him training. He said that he recognised that name as one of the managers but said that he had simply been given the paperwork and told to sign for it. He had received no more detailed training.

[7] Robert Murray, now unemployed but previously a driver with the defenders, gave evidence for the pursuer. He said that lorries had to queue to de net and to tip. Nearly every day he would see a driver climbing up onto the lorry to loosen the tiers. In cross-examination he said that he had been told by other drivers not to climb up on the lorries but that it was common place to see people doing so. Dougie Galbraith, also a lorry driver, gave evidence. He too had previously worked for the defenders. He said that it was common at Blochairn to see people climbing up onto lorries and that managers must have seen people doing so. He said that he had not had any training but had been handed paperwork by a manager. He had been disciplined for climbing up onto a skip. He agreed in cross-examination that it was common knowledge that drivers should not climb onto skips but denied any such knowledge regarding lorries. It was suggested to Mr Galbraith in cross-examination that he had no love for the defenders, having been dismissed. He accepted that he had been dismissed but said that he was not biased either in favour of or against the defenders.

[8] Counsel for the defenders called Mr Chris Quinn, a lorry driver employed by them. He had worked for another company which had been taken over by the defenders. He said that there had been induction training for the men from that company, although he personally missed it because he was on holiday. He did not know if the men from Hannay had been given induction training. In any event he thought that it was clear that you should not climb up onto a lorry and he thought that all drivers knew that. He said that he had not seen anyone from the defenders doing so at Blochairn. If anyone had done so he agreed they would be in full view of people in the office and his position was that drivers knew that they should not do that and did not do it. He said that he had seen drivers from other sub-contractors doing so.

[9] The pursuer led Mr John Stewart as an expert witness. He spoke to the terms of his report and supplementary report. Mr Stewart has a degree in chemistry, chartered membership of the Institution of Occupational Safety and Health, membership of the International Institute of Risk and Safety Management and is a chartered safety practitioner. He has 40 years of experience in a wide variety of industrial situations and has given advice to industrial and commercial undertakings on their responsibilities under workplace, work equipment, manual handling and lifting operations legislation.

[10] Mr Stewart's evidence was to the effect that he understood that witnesses had said that drivers would use a ladder to climb up on to the lorry in order to undo the ropes holding the net on the skip. They would do so in the yard at Blochairn. If they were correct in that then it seemed that the defenders tolerated this practice. He noted from the defender's Driver Safety Rules that the defender's policy was for all skips to be lowered to the ground for sheeting and un-sheeting and that the driver should remain on the ground. He noted that they had a risk assessment which on the subject of sheeting and un-sheeting dealt with various aspects of the operation where the controls referred to were automatic sheeting systems, dropping skips to the ground to de net and access and egress to vehicles. In the Blochairn depot the system which existed was to lower a skip to the ground and remove the netting manually. Mr Stewart commented that if that was the system and if the information he had was correct then the system appeared not to have been implemented at the locus and the pursuer and others developed a system of their own.

[11] He gave evidence about training. Mr Stewart's position was that if the pursuer was correct in his evidence about training then he has been trained on the use of skip lorries partly by going out with another driver. Mr Stewart thought that to be an inadequate system as bad habits or shortcuts may be demonstrated. In evidence Mr Stewart said that it was not satisfactory to hand paperwork to drivers and tell them to go away and read it in their own time. He was of the view that it was necessary to go over with the drivers the risk assessments and explain to them the controls which had been devised to cover the risks which had been identified. He said that it was necessary to do so, in work time, with a small group of people and with the paperwork in front of them. Mr Stewart noted that the defender's paperwork was in any event confusing. In it the defenders seemed to acknowledge that the tiers of the net may be tied to the lorry and they give no guidance as to how they should be removed in those circumstances. Mr Stewart was of the view that if the information put before him was correct the defenders had failed to instruct drivers in the procedures that they had set up and had failed to monitor compliance and thus had failed to enforce the system.

[12] In cross-examination Mr Stewart was asked if the object of the exercise in training was to "get the message across". He agreed and agreed with counsel that the method of so doing might vary. He did not accept that giving drivers manuals to take away and read would suffice.

[13] Counsel for the defenders sought to call a witness, Gail Orr, who was not on his list. He explained that the witness was not on the list because the necessity of calling her had only become apparent at the pre-trial meeting when the subject of the defenders' knowledge or lack of it and about any practice of the drivers climbing onto lorries was discussed. Counsel told me that the name of the witness had been given to the pursuer's agents shortly thereafter and he understood that attempts at precognition had been made but had not been achieved. He said that the witness was present in the building and he proposed that the court might adjourn early for the day in order that she be precognosed. Counsel for the pursuer objected to the witness being called. She argued that the question of knowledge should have been obvious in time for the witness to have been put on the list. She explained that when the name of the witness had been given to the pursuer's agents requests for precognition were made and refused. I decided not to allow the defenders to call the witness. It seemed to me that there was no good reason why she had not been included timeously. Further, it having been appreciated that the pursuer's agents would wish a precognition it seemed that the defender's agents had declined to allow this or at least had not facilitated it. It did not seem to me reasonable in these circumstances to ask the court to adjourn in order that this be done.


[14] I found the pursuer and his witnesses credible. I accepted that the pursuer had been handed company manuals and risk assessments without anyone going over them with him. I accepted that no one had told him directly that he should not climb onto the lorry. I accepted that it was common practice amongst lorry drivers using the Blochairn depot, both those driving for the defenders and those driving for sub-contractors, to do so. Mr Murray, Mr Galbraith and Mr Quinn all gave evidence which in different ways supported the evidence of the pursuer. Mr Galbraith spoke of drivers climbing onto lorries and there being no rule against it. Mr Murray said that other drivers did do it but he acknowledged that some drivers had told him not to. Mr Quinn said that drivers from sub-contractors did it but that drivers from the defenders did not. Mr Quinn thought that everyone knew that it should not be done, which he said was the position now and that it was different from years ago. I did not accept Mr Quinn's evidence that everyone, including the pursuer, must have known that this should not be done. I took the view that Mr Quinn was sure in his own mind that it should not be done but nothing that he said persuaded me that the pursuer was lying when he said he did not know this. So far as training is concerned I accepted the pursuer's evidence that he was simply given paperwork and told to go away and read it. Mr Quinn's evidence to the effect that he had missed the induction training because he was on holiday was eloquent of the defenders' attitude towards training. I accepted Mr Stewart's opinion evidence on the necessity of going over manuals with the drivers.

[15] Counsel for the pursuer argued that the defenders were in breach of various Regulations and had also breached their common law duty to the pursuer. She argued that the defenders had breached Regulations 4, 8 and 9 of the Provision and Use of Work Equipment Regulations 1998. She argued that the skip lorry was work equipment and that by climbing up onto the lorry the pursuer was using the equipment. Thus the defenders were in breach of Regulation 4(3) which requires every employer to ensure that work equipment is used only for operations for which and under conditions for which it is suitable. She argued that the defenders had breached their duties under Regulation 8 which requires that an employer ensures that all persons who use work equipment have available to them adequate health and safety information and, where appropriate, written instructions pertaining to the use of the work equipment,. Regulation 9 is to the effect that every employer shall ensure that all persons who use work equipment have received adequate training for purposes of health and safety including training in the methods which may be adopted when using the work equipment, any risks which such use may entail and precautions to be taken. Counsel argued that the defenders had not done enough to fulfil the requirements of these Regulations. She argued also that the defenders had breached Regulation 13 of the Management of Health and Safety at Work Regulations 1999 which provides that employers shall ensure that employees are provided with adequate health and safety training on their being recruited into the employers undertaking, on their being transferred or given a change of responsibility within the employers undertaking and that the training should be repeated periodically where appropriate and should take place during working hours. Counsel argued that the defenders had failed in all of these requirements. Counsel also argued that the defenders had failed to observe the provisions of Regulations 4 and 6 of the Work at Height Regulations 2005. Regulation 4(3) provides that every employer shall ensure that work at height is properly planned, appropriately supervised, and carried out in a manner which is so far as is reasonably practicable safe and that its planning includes the selection of work equipment in accordance with Regulation 7. Regulation 6(2) provides that every employer shall ensure that work is not carried out at height where it is reasonably practicable to carry out the work safely otherwise than at height. Counsel argued that the defenders breached these Regulations. Counsel also argued that the defenders had failed in their common law duty of devising and implementing a safe system of work for the pursuer.

[16] Counsel for the defender did not argue that the Regulations did not apply nor that on the pursuer's version of events that they had not been breached. He accepted that there was also a breach of common law duties if the pursuer's version of events was correct. He submitted that I should not accept the pursuer's version of events and instead should accept Mr Quinn's evidence. He invited me to find the pursuer lacking in credibility and reliability on the basis that Mr Quinn's evidence which he said was given in a straightforward manner contradicted the pursuer; further the pursuer was an experienced lorry driver and it should have been obvious that climbing onto the back of the lorry was not safe; and lastly counsel referred to the pleadings. He noted that in the record as finally amended the pursuer's averments were different from those in an earlier record. In number 10 of process, a record prior to amendment, at 6A the pursuer averred as follows:-

"Prior to unloading the skip he required to free a rope which had caught between the front edge of the skip and the rear of the cab of the vehicle. In order to access the rope he required to ascend a ladder attached to the side of the vehicle leading up to the rear flat bed."

In the record as amended the averments do not refer to any rope being caught. It is said at page 6A that the tiers were secured at the front, sides and rear of the skip. At letter C it is said that it was common practice for lorry drivers to release the tiers securing the net whilst waiting to reach the de netting area. At letter E it is averred as follows:-

"In accordance with normal practice the pursuer climbed onto the rear of the lorry to loosen the tiers. He loosened the tier at the front of the skip."

Counsel argued that the difference in these averments showed that the pursuer's evidence should not be accepted as credible and reliable.

[17] I took the view that the pursuer was both credible and reliable. The question of the difference in averments had not been raised with him. I was therefore not in a position to know why there was any difference and I was not prepared to assume that the difference was due to the pursuer having told differing stories in the past. I took the view that if the matter was important to the defenders they should have asked the pursuer for any explanation he might have.

[18] I am of the view that the defenders were in breach of all of the statutory provisions referred to by counsel and in breach of their duty at common law.

[19] Counsel for the defenders moved me to find that the pursuer failed to take due care for his own safety and had thereby contributed to his injury. He submitted that the percentage should be 50% to 75%. It must have been clear to the pursuer that he might fall if he climbed onto the back of the lorry. He was a very experienced driver. He did so in order to save a few minutes. The matter was one of impression but other cases may be helpful. Counsel referred to the case of Robb v Salamis 2007 S.C. (H.L.)71 in which the Inner House had found the pursuer 50% to blame, when he had used a ladder he knew might not have been properly put in place, without checking. In Gillanders v Arthur Bell (Scotch Tweeds) Ltd 2005 Rep. L.R. 81 Lord Brodie had assoilzed the defenders but had given an opinion on contributory negligence. The pursuer had climbed up a ladder he knew not to be entirely secure, while carrying a load of bobbins. The contribution had been assessed at 75%. In the case of Ashbridge v Christian Salvesen Plc 2006 S.L.T. 697 Lord Glennie had made a finding of 50% contributory negligence where the pursuer opened a tank preparatory to cleaning it without taking any precautions to check if it was empty.

[20] Counsel for the pursuer argued that there should be no deduction. The pursuer had not been challenged in evidence. It had not been suggested to him that he failed to mind where he was putting his feet, or acted in some other way which failed to pay attention to his own safety. In the event that a finding should be made, it should be no more than 10%.

[21] In my opinion the pursuer did fail have due regard to his own safety by climbing up onto the lorry. It must have been obvious to him that he might fall, whereas if he waited until the skip was on the ground he could loosen tiers with no such danger. He chose to go up onto the lorry to save some time. He knew that it was a confined space. He moved the skip forward to create some room, and he knew that in doing so the ram on the lorry moved. It was clear from his evidence that he had fallen because he did not take enough care where he put his feet. I assess his contribution at 20%. I therefore grant decree for the agreed sum of damages less 20%, being £36000.

[22] I was not addressed on expenses.