[2009] CSOH 9



in the cause







Pursuer: McNaughtan, Advocate; Digby Brown SSC

Defender: Kennedy, Advocate; Gillespie MacAndrew LLP

28 January 2008

[1] This is an action for damages for personal injuries which the pursuer suffered in the course of his employment with the defenders. Parties have agreed the quantification of the pursuer's claim for damages in a joint minute. Accordingly the only issue on which parties sought the court's determination was whether and to what extent the defenders were liable in negligence or as a result of breach of statutory duty for the injury which the pursuer sustained.

Factual background
[2] The pursuer is forty-two years old. He is employed by the defenders as a waste management worker. In 2004 the defenders employed him as a gardener. He then left their employment for a while but returned in January 2005 to work for the defenders as a gardener. In April 2005 the defenders decided to employ him as a driver of a triple mower, which I describe in paragraphs 3 and 4 below, to cut large areas of grass on their housing estates in Dundee. In order to prepare him to carry out that work the defenders arranged for him to undergo training in the operation of triple mowers. I describe that training in paragraphs 6-13 below. Having completed that training the pursuer worked as a driver of a triple mower and on 20 May 2005 suffered a significant injury to his right hand when he attempted to clear a blockage in the central cutter of the mower. That injury gave rise to this action.

The Ransomes Jacobsen Highway 2130 triple mower
[3] The triple mower with which the defenders provided the pursuer was manufactured by Ransomes Jacobsen Limited and was called a Highway 2130. It was a four-wheeled machine and had two cylindrical cutters ("the side cutters"), which were located in front of the front wheels of the mower and extended at each side beyond the length of the front axle, and a slightly smaller central cylindrical cutter ("the central cutter") which was located beneath the vehicle below the driver's seat and between the front and rear wheels. Thus the machine had three cutters, namely the two side cutters and the central cutter, which could be operated simultaneously and thus enable the operator to cut a wide strip of grass. The driver operated the machine from his seat, steering it with a steering wheel and controlling the cutters by controls located close to his seat. From there he was able to raise or lower the cutters or reverse the cutters by operating the controls. It is significant to this case that the cylindrical cutters were powered by hydraulic pressure. As a result, when a cylindrical cutter became blocked by grass or some other obstruction, it was possible for energy to be retained in the drive and for that energy to cause the cylindrical cutter to kick or partially rotate when the blockage was released.

[4] The side cutters of the triple mower could be raised into a vertical alignment immediately in front of the front wheels. This reduced the width of the machine and assisted the driver to drive the machine on the roads from site to site. It also made it easier for the driver to clear any blockages in the side cutters as he could have easy access to them while standing beside the machine. By contrast, if the central cutter became blocked, it could be raised by only 4 to 5 inches underneath the machine and the driver would require to obtain access to the central cutter from close to the ground, either from behind the machine and between the rear wheels or from the side between the front and rear wheels.

[5] Ransomes Jacobsen Limited provided a safety and operation manual with their triple mowers and the defenders had copies of the manual. Paragraph 3.1 of the manual advised that the instructions should be read and understood and that no person should be allowed to operate the machine unless he was fully acquainted with all the controls and the safety procedures. Paragraph 3.8 of the manual contained the following advice in relation to blocked cutting cylinders:

"Stop the engine and make sure all moving parts are stationary.

Apply brakes and disengage all drives.

Release blockages with care. Keep all parts of the body away from the cutting edge.

Beware of energy in the drive which can cause rotation when the blockage is cleared. ..."

The pursuer's training
[6] When in April 2005 the pursuer was instructed to work as a driver of a triple mower, he was trained to do so by another employee of the defenders, Mr Darren Taylor, who was also employed as a gardener and who had considerable experience in operating triple mowers. The pursuer's training appears to have lasted from 12 to 21 April 2005. It consisted of an initial training day on 12 April 2005. On the days which followed, the training involved the pursuer working as a team with Mr Taylor on grass cutting jobs in order that Mr Taylor could demonstrate procedures and assist him whenever he required advice. I describe the training in more detail in paragraphs 8 to 13.

[7] There were discrepancies between the evidence of the pursuer and that of Mr Taylor on the extent and content of the training. Those discrepancies are however not material to the determination of this case. I found Mr Taylor's evidence to be more reliable than that of the pursuer in this matter as I formed the view that the pursuer in his evidence tended to play down the extent of his training. I also formed the view that Mr Taylor was an honest witness who did his best to recall what had occurred in this case and what his usual practice had been when training drivers of triple mowers. In particular I do not accept the pursuer's evidence that he was not told to keep his hands away from the cutting blades nor do I accept his evidence that Mr Taylor did not demonstrate to him how to clear blockages in the central cutter during the period of familiarisation training in the days which followed the initial training on 12 April 2005.

[8] The defenders' time sheets supported the view that Mr Taylor had spent seventeen hours in training the pursuer in addition to the time he spent working with him between 12 and 21 April 2005. But it was clear that the recorded times were no more than broad estimates. The training comprised the initial training session on the morning of 12 April 2005 at the defenders' depot at Summerfield Avenue in which Mr Taylor demonstrated the controls of the machine and explained to him how to operate the machine, maintain it and clear blockages in the cutters. The pursuer estimated that this stage of the training took about forty-five minutes while Mr Taylor suggested that it took about three hours. But Mr Taylor also suggested that some of the time when he was training the pursuer may have been spent "blethering". The pursuer said that he had been shown how to release blockages in the front cutters but Mr Taylor gave evidence that he had also discussed how to clear blockages in the central cutter. I prefer Mr Taylor's evidence on this matter. After this introductory training Mr Taylor supervised the pursuer driving the machine in the yard in order to allow him to become familiar with its rear wheel steering and in the afternoon he watched him cut grass nearby and advised him on good practice. On the following days the pursuer accompanied Mr Taylor when cutting grass. Each operated a triple mower and the pursuer was instructed to ask questions if he had any problems. Mr Taylor was confident that the pursuer would have seen him unblocking the central cutter of his machine on several occasions during the time when the pursuer was shadowing him. I accept Mr Taylor's evidence on this as well.

[9] The substance of the instructions which Mr Taylor gave the pursuer on the clearing of blocked cutters was as follows. When a blockage occurred the driver was to switch off the power. If the blockage was in the front cutters he would first raise the cutters into a vertical alignment to facilitate clearing. If the blockage was in the central cutter the driver would first raise the cutter a few inches off the ground to facilitate access to it. The driver would then use a crowbar which was kept on the back of each triple mower to release the blockage. He could use the crowbar to apply leverage from the central spindle of the cutter to move the cutter in a reverse direction and thus release the blockage. Mr Taylor also suggested that he could use the crowbar to scrape grass away from the cutter. He explained that the driver should not in any circumstance place his hands near the cutting blades. It was Mr Taylor's practice to lie on his back or on his side beside the mower and reach in under the machine between the front and rear wheels in order to use the crowbar to apply leverage to the blades of the central cutter to move them in a reverse direction. I am satisfied that the pursuer observed him doing so. Mr Taylor's instruction was that if a driver could not clear the blockage with the crowbar he should then adjust the height of the cutting blades to lift them away from the sole plate.

[10] The defenders' system of in house training by an experienced operator who was designated to train new drivers by passing on his knowledge had significant advantages as the new driver was able to obtain a practical training from the operator. The weakness of that system however was that if the trainer were unaware of a material risk, the person whom he trained would also be ignorant of that risk. The defenders had prepared a risk assessment dated 26 September 2002 of the task of riding on triple mowers, which stated that operators were to be trained in the safe use of the mowers and that hands and feet were to be kept away from rotating blades. But that assessment did not refer to the danger of stored energy in the cutter when there was a blockage and after the machine had been switched off. There was no checklist to assist the trainer to warn the trainee of all material risks. The defenders kept a copy of the manufacturer's safety & operation manual (referred to in paragraph 5 above) and the risk assessment in a locked cupboard in the Summerfield bothy and each of the other bothies in which triple mowers were stored. But while Mr Taylor had a key to the cupboard at the Summerfield bothy, no-one had issued a key to the pursuer nor had he been instructed to read the manual.

[11] What Mr Taylor did not know at the time and what he did not explain to the pursuer was that when a cutter became blocked it was possible for hydraulic pressure to be retained in the pipes so that on release of the blockage the cutter could partially rotate under that pressure. Mr Taylor explained that he first learned of this fact after the pursuer's accident and he was not shaken from that stance by the questions of the defenders' counsel. Mr Taylor also confirmed the pursuer's evidence that he had not shown the pursuer the safety and operation manual referred to in paragraph 5 above. In the light of this evidence Mr Kennedy conceded in his submissions that the defenders had breached regulations 8(1) and 9(1) of the Provision and Use of Work Equipment Regulations 1998 and regulation 3(1) of the Management of Health and Safety at Work Regulations 1999. See paragraph 23 below.

[12] The pursuer also received instruction from Mr Ian Bridges of Ransomes Jacobsen Limited on 29 April 2005. The instruction related to the setting of the cutter blades and "backlapping" the machine, which is a process for sharpening the blades of the cutters. The process involved applying abrasive material to the blades, setting them so that they touched the sole plate on rotation and then reversing the cutter at a slow speed so as to sharpen the blades by the abrasion between the blades and the sole plate. In his instruction Mr Bridges emphasised that operators should keep their hands away from the cutters in all circumstances and that those who did so would retain their ten fingers.

[13] Accordingly, although the pursuer denied this, I am satisfied that both Mr Taylor and Mr Bridges had advised him, before he suffered the accident, to keep his hands away from the cutting blades in all circumstances.

The circumstances of the pursuer's accident
[14] On the morning of 20 May 2005 the pursuer was working with Mr Taylor at Maybole Place, Whitfield, Dundee. It had been raining and drizzle fell intermittently. The grass which the pursuer and Mr Taylor had to cut was wet and in places it was quite long. As a result the grass blocked the cutters of the pursuer's mower on a number of occasions and the pursuer had to stop his machine to clear the blockages. On the last occasion the central cutter of the pursuer's machine became blocked. The pursuer raised the cutter a few inches off the grass, switched off the engine, and, having taken the crowbar, lay on his back on the right hand side of the machine with his head and shoulders under the machine. The crowbar was approximately 18 inches long. He held the crowbar in a roughly horizontal alignment above him in the cramped space available to him and inserted the crowbar between the cylindrical cutter and the sole plate of the central cutter in order to clear away the grass. He had two hands on the crowbar, with his right hand close to the end of the crowbar beside cutter blades and his left hand further away from the cutter. He was, as was his normal practice, wearing latex gloves which the defenders had provided in order to keep his hands clean. Both the crowbar and the gloves were wet. While he was attempting to release the blockage the crowbar fell out of his hands at about the same time as the blockage was released. As a result the index finger and thumb of his right hand, which had been gripping the crowbar, came into contact with the rotating cutter and were trapped between the cutter and the sole plate. The pursuer used his left hand to pick up and manipulate the crowbar to release his right hand from the cutter. He got up, placed the crowbar in the back of the machine and, on removing his glove, discovered that he was bleeding heavily from an injury to his index finger.

[15] The pursuer called on Mr Taylor to assist him. Mr Taylor summoned an ambulance. While waiting for the ambulance to arrive, the pursuer said to Mr Taylor that he (the pursuer) should not have been so stupid. Mr Taylor was concerned for the pursuer's welfare. He covered the pursuer's hand with his hat and raised his right arm in an attempt to stanch the bleeding. He recorded in his report that the pursuer had told him that the central cutter had moved round when he was attempting to clear a blockage and had trapped his finger and thumb. He saw the crowbar on top of the pursuer's mower.

[16] The defenders challenged the pursuer's account of the accident, suggesting that he had not worn gloves and that he had not used the crowbar. Mr Kennedy in cross-examination suggested to the pursuer that he had used his bare hands in an attempt to release the blockage but the pursuer denied this. I accept the pursuer's account of the accident. While the pursuer did not mention to the medical staff in Ninewells Hospital, Dundee when he was admitted for treatment that he had worn gloves, he told his supervisor, Mrs Mustard, that he had done so. She noted his account of the accident and prepared an accident report dated 24 May 2005, recording that he had been wearing gloves at the time of the accident. I am satisfied with his evidence that he did wear gloves in accordance with his normal practice. Mr Andrew Wilmshurst, a consultant plastic and hand surgeon at Ninewells Hospital, explained that the injury to the index finger, which involved a partial amputation of the finger, was probably the result of blunt force and was a crushing injury. He suggested, contrary to the view of Mr Alistair Raeburn (to whom I refer in paragraph 21 below), that such an injury might be consistent with the latex glove not having been damaged. The glove in question was not produced. If the glove was not damaged, I do not consider that that weakens the reliability of the pursuer's account of what he did.

[17] The nature of the injuries to the pursuer's thumb and index finger is as consistent with the pursuer having held the crowbar close to the cutting blades immediately before the injury as it is with the pursuer having gripped the grass around the cutter or a cutting blade with his right hand. Again the pursuer informed Mrs Mustard that he had used the crowbar and she recorded that in her accident report. I accept that the pursuer was not precise in his evidence as to the mechanism by which the blockage was released and as to what caused him to drop the crowbar. But I would not have expected a person who suffered a traumatic accident necessarily to remember the precise mechanisms which led to his injury. He reported to Mrs Mustard shortly after the accident that he did not know how it occurred.

[18] Mr Taylor in his evidence about the accident, apart from stating that he was working closer to the pursuer than the pursuer had suggested when the accident occurred, did not contradict the pursuer's account. He did not see the accident occur and was alerted by the pursuer's shouting. While, as Mr Alistair Raeburn pointed out, it is not clear how the pursuer dislodged the blockage by running the crowbar between the cutting blades and the sole plate and there is no explanation of the mechanism which caused him to drop the crowbar, those considerations do not persuade me that the pursuer's account of his accident is materially inaccurate.

[19] The defenders also attacked the pursuer's credibility on the ground that he had misled officials when seeking a jobseeker's allowance by suggesting that his employment by the defenders as a gardener had been temporary and had come to an end, whereas the truth was that he had quarrelled with Mrs Mustard and had resigned. The pursuer when questioned on this issue accepted that he might have said that and that it was untrue. This incident however did not alter my assessment of the pursuer. While he was unreliable as to the details of his training and he did not give a clear account of the precise mechanism by which he lost control of the crowbar and his hands came into contact with the cutter, I accept that he was attempting to tell the truth about the accident and that his account of the accident is generally reliable. There was no factual evidence which pointed strongly to an alternative explanation of the accident. The pursuer's account in evidence was consistent with the account which he gave to Mrs Mustard shortly after the accident which she recorded in her accident report. Both then and in his evidence the pursuer did not claim to know precisely how the accident happened.

Expert evidence
[20] The pursuer called Mr Ian Garry, a chartered mechanical engineer, to give expert evidence both on the mechanism by which the hydraulic system retained pressure on a cutter in the event of a blockage and also on the alleged failures of the defenders in their statutory duties. The defenders did not challenge his description of the means by which the mower had this stored energy in the cutters: the hydraulic system had non-return valves which preserved the pressure in the hydraulic pipes against the cutters. On release of the blockage there would be some movement of the cutters until the stored energy was dissipated. He opined that where sufficient energy was stored in the hydraulic system it was foreseeable that amputation injuries could occur if an operator's hands came into contact with the moving blades. He also expressed certain views on the legal duties owed by the defenders but recognised that those legal issues were for the court rather than an expert witness to determine.

[21] The defenders called Mr Alistair Raeburn, an occupational health and safety consultant, to give expert evidence. He gave a description of the hydraulic system of the machine which was similar to Mr Garry's account. He had been informed by the defenders that the primary method of clearing blockages of the central cutter was for the operator while remaining on his seat to use his controls to put the cutter into reverse. Some operators whom the defenders employed may have used that method but Mr Taylor disapproved of this action which he said could damage the machine. Accordingly the pursuer had not been taught to do so. Mr Raeburn's understanding of the defenders' fall-back method of clearing blockages in the central cutter involved the operator lying down at the rear of the machine and inserting the crowbar into the back of the central cutter in order to apply downward leverage on the blades to move them in a reverse direction and so remove a blockage. This method, which removed the risk of the operator's hand being caught between the blades and the sole plate, differed from that which Mr Taylor had taught the pursuer. Accordingly the information which the defenders' officials gave Mr Raeburn differed from the factual evidence of the pursuer and Mr Taylor. Nor was Mr Raeburn aware when he wrote his report of the defenders' failure to warn the pursuer of the risk of stored energy in the cutters. He also expressed views in his report on various grounds of liability, which were legal matters for the court, but his views fall to be considered in the light of the factual findings which are at variance with what he had been told.

[22] I have accepted the pursuer's evidence as to what he had been doing when the accident occurred. As I also accept his evidence that if he had known of the risk of the cutter blades kicking or partially rotating on the release of stored energy he would have been more apprehensive, I am satisfied that there is a causal link between the defenders' admitted breaches of statutory duty and the pursuer's loss. I am also persuaded that the defenders were in breach of their common law duty of care to the pursuer. At the same time, I am satisfied that the pursuer was guilty of contributory negligence. I deal with each in turn.

Breach of statutory duty
[23] I consider that Mr Kennedy was correct in his concession that the defenders were in breach of regulations 8(1) and 9(1) of the Provision and Use of Work Equipment Regulations 1998 and regulation 3(1) of the Management of Health and Safety at Work Regulations 1999. In relation to regulation 8(1) of the 1998 Regulations I am satisfied that the defenders did not provide the pursuer with adequate health and safety information in relation to the triple mower. I am not convinced that it was necessary for the defenders to give the pursuer written instructions but their reliance on in house training by an experienced operator without providing him with a check list left them at risk of important hazards being overlooked if the trainer were not aware of or had forgotten about the particular risks. For the same reasons I am satisfied that the defenders were in breach of regulation 9(1) of the 1998 Regulations as they did not provide adequate training for the purposes of health and safety to the pursuer who used work equipment. I am also persuaded that the defenders were in breach of regulation 3(1) of the 1999 Regulations because they did not make a suitable and sufficient assessment of the risks to the health and safety of their triple mower drivers to which they were exposed when operating the mowers. While the inadequacy of the risk assessment may not have mattered if the pursuer had otherwise been warned of the danger of stored energy in the cutters, the absence of such warning means that there was a causal connection between the inadequate risk assessment and the accident.

[24] I am not persuaded that the defenders were guilty of a breach of statutory duty under regulation 4 of the 1998 Regulations in providing (a) the triple mower for the use to which it was put and (b) the crowbar for clearing blockages in the cutters. I consider that both were suitable for the purposes for which they were used. In reaching this view I have taken account of not only the suitability of the mower for cutting grass but also its suitability for the incidental task of clearing blockages of the cutters: English v North Lanarkshire Council 1999 SCLR 310, Robb v Salamis (M & I) Limited 2007 SC (HL) 71. Mr McNaughtan did not challenge Mr Raeburn's evidence that the triple mower conformed to the Supply of Machinery (Safety) Regulations 1992 in relation to the essential health and safety requirements in Schedule 3 of those Regulations and had an EC declaration of conformity. He argued that the triple mower was dangerous when used to cut long grass in wet weather because of the propensity of the central cutter to become blocked when so used. I am not persuaded that that is so. While blockages of the cutters and in particular the central cutter may occur frequently when the mower is used in such conditions, the proper use of the crowbar provided or a similar instrument such as a wooden baton or shortened brush handle would enable an operator to release blockages without exposing himself to material risk. There appears to have been no significant danger in using the crowbar on the side cutters when they were raised and I see no significant problem in the proper use of the crowbar on the central cutter particularly if the operator gains access to the cutter from the rear of the machine. While an employer must allow for the careless or inattentive worker (Robb v Salamis above), I am not persuaded that the work equipment provided was unsuitable for use in wet weather if the defenders had complied with regulations 8 and 9 of the 1998 Regulations.

[25] I am also not persuaded that the defenders have breached regulation 7(2) of the 1998 Regulations. While the pursuer's counsel submitted that this regulation had been breached on the basis that the defenders had not given the pursuer adequate information, instruction and training, I am satisfied that the regulation refers to training in relation to the repair, modification, maintenance or servicing of work equipment and not in relation to incidental activity when using the equipment, such as clearing a blockage. Similarly I am satisfied that the defenders were not in breach of regulation 22 of those Regulations as the work which the pursuer was carrying out was not a maintenance operation in terms of those Regulations. See regulation 5 of those Regulations.

[26] I am also not persuaded that the defenders were in breach of regulation 11 of the 1998 Regulations which requires employers to ensure that measures are taken which are effective to prevent access to any dangerous part of machinery or stop the movement of that dangerous part before any part of a person enters a danger zone. I note, as Mr McNaughtan pointed out, that one of the methods of avoiding the mischief in regulation 11(1) is the provision of information and training and the guidance accompanying the regulation suggests that the risk assessment should identify the relevant hazards. But, while the defenders' risk assessment was defective as I have said, the inclusion of a warning about stored energy would not have resulted in a restriction of access to the central cutter nor would it have stopped its movement. The inadequacy of the risk assessment is accordingly not a breach of regulation 11(1).

[27] Finally in relation to statutory duties, I record that Mr McNaughtan did not seek to argue that the defenders had been in breach of regulations 4, 5 or 10(1) of the 1999 Regulations as asserted in the Summons.

(ii) The defenders' breach of their duty of care
[28] I am satisfied that in their failure to alert the pursuer to the danger posed by the stored energy in the hydraulic system and the resulting propensity of the cutter to kick or partially rotate the defenders failed in their duty of care to the pursuer. I have accepted that the defenders and Mr Bridges emphasised the importance of keeping hands away from the cutting blades in all circumstances, but, significantly, the defenders did not alert the pursuer to the danger of serious injury from the rotation of the cutter when the engine was switched off. He should have been told not only that when he used the crowbar he should keep his hands as far away from the blades as possible but also of the risk which he faced if he did not do so. He was not so advised. As a result the pursuer was exposed to the risk of a significantly more serious injury than that which he could reasonably have foreseen. He should have foreseen that he might suffer serious cuts on his hands if he sought to place his hands close to or against sharp blades. But on the information which the defenders had given him, he had no reason to foresee the possibility of a serious crushing injury resulting in the amputation or partial amputation of a finger. Had he known of the risk, I accept his evidence that he would have been more careful. The defenders were or should have been aware of that risk as they knew or should have known the terms of the manufacturer's safety and operation manual. Even if it was rare for a cutter to rotate significantly on the release of a blockage, the risk of serious injury was significant. The manufacturer had seen fit to warn of the danger and the defenders should have alerted the pursuer to it. Accordingly they failed in their duty of care.

(iii) Contributory negligence
[29] I consider also that the pursuer was guilty of contributory negligence. He held the crowbar in such a way that his right hand was in very close proximity to the cutting blades while he tried to clear the blockage. He ought reasonably to have foreseen that he might suffer serious cuts on his fingers or other parts of his hand if his hand were to slip. He had been instructed to keep his hands well clear of the cutting blades at all times. I infer from his comment after the accident about his stupidity that he recalled those instructions and recognised that he had contributed to his injury. But the primary blame for the accident in my opinion must fall on the defenders as his employers in their failure to alert him to a significant risk of very serious injury. While a person may be guilty of contributory negligence if he fails to take account of the possibility of others being careless (Jones v Livox Quarries Limited [1952] 2 QB 608, Denning LJ at 615), an employee is normally entitled to assume that his employer has complied with his statutory duties: Westwood v Post Office [1974] AC 1, Lord Kilbrandon at 16-17. In this case the defenders had not and so exposed the pursuer to a serious risk of which he was unaware. An employer in carrying out his statutory duties and in the exercise of his common law duty of care towards his employees must recognise that an employee may not act with care at all times: Smith v Chesterfield and District Co‑operative Society Limited [1953] 1 WLR 370, General Cleaning Contractors Limited v Christmas [1953] AC 180, 189. In the circumstances I assess the pursuer's share in the responsibility for the injury which he sustained through contributory negligence at twenty per cent.

Quantification of loss
[30] The parties agreed the quantification of the pursuer's claim in their joint minute as follows:

Solatium £11,500 (inclusive of interest to 25 November 2008)

Past wage loss £1,430 (inclusive of interest to 25 November 2008)

Future loss of

employability £2,500

Services (ss. 8 & 9

of 1982 Act) £1,000 (inclusive of interest to 25 November 2008)

Further, they agreed that interest was to run on the total of £16,430 at the rate of 4 per cent per year from 25 November 2008 until the date of decree and thereafter at 8 per cent per year.

[31] I have merely to apply to the agreed figure the deduction of twenty per cent for the pursuer's contributory negligence.

[32] I therefore pronounce decree against the defenders for payment to the pursuer of £13,144 with interest thereon from 25 November 2008 at the rate of four per cent per year until today and thereafter at the rate of eight per cent per year until payment.