Ross Fairweather

In July 2018, the pursuer was working in the course of his employment as a barman with Forth Boat Tours. The defender provides pleasure cruises out of Port Edgar Marina, South Queensferry.

The pursuer was tasked with using a marina trolley to transport bar stock from the defender’s office at the quayside, to the defender’s boat, which was moored to a floating pontoon in the marina. A large ramp connected the quayside level to the pontoon level.

The pursuer positioned himself in front of the trolley, and began walking backwards down the ramp while holding onto the front end of the trolley. The trolley was heavy and it began to gather momentum. Fearing the trolley would run him over, the pursuer jumped on top of the trolley. The trolley (and the pursuer) continued down the ramp and rolled off the pontoon into the water. The pursuer suffered an injury to his hand as a result.

Summary of claim

The pursuer claimed that he had not received training and instruction on how to load the trolley and on how to manually handle the loaded trolley. The pursuer also claimed that the trolley was unsuitable as it had not been fitted with brakes. The pursuer claimed that the defender’s failure to provide him with training and a trolley with brakes amounted to a breach of their common law duty to take reasonable care for the pursuer’s safety.

The defender’s position was that they had conducted a risk assessment which prescribed the manner in which the task was to be carried out: employees were not to overload the trolley; employees were to position themselves behind the trolley, and push the trolley forwards down the ramp, and; if the ramp was at a steep angle as a result of the tide being out, employees were to seek assistance from a colleague. The defender’s position was that this risk assessment had been explained to the pursuer 3 months earlier during his induction in April 2018. The pursuer had also shadowed more experience colleagues on how to load and manoeuvre the trolley down the ramp. On the question of the suitability of the trolley, the defender’ position was that the tilting mechanism of the two wheeled trolley, allowed the trolley to be slowed and brought to a stop. The trolley was a standard marina trolley which had been used without incident for years by the defender, and other businesses that operated at the marina.

Quantum was agreed at £4,000, and the matter proceeded to a three-day proof on liability on 12 January 2021.

Judgment

Sheriff McGowan was satisfied that the pursuer had been taken through the risk assessment during his induction, and that he had shadowed another colleague on the task of loading and manoeuvring the trolley. His Lordship therefore concluded that the pursuer had received adequate training for the task. The pursuer was aware of the system of the work, and the reasons for the control measures. Despite this, he attempted to move a trolley which he knew was overloaded and too heavy, and failed to seek assistance from a colleague before descending the ramp.

His Lordship was also satisfied that the trolley did have a braking mechanism (albeit a simple one) but that, in any event, the pursuer had not led any evidence as to what an alternative braking system might look like and why, on the balance on probabilities, that might have prevented the occurrence of the accident. It was also significant that the trolley in question was of a type that was used in marinas throughout the UK and Europe and that, in the 14 years that the defender had operated its business, there had been no other accidents involving the trolley.

Significance

Although the facts of the case are relatively straightforward, practitioners will note that the judgment provides a useful reminder on how to plead a case which is based on a breach of an employer’s statutory duties.

The pursuer’s case on Record was that, “The pursuer’s claim is based on the defender’s breach of its common law duty to take reasonable care.” No reference whatsoever was made to any Health and Safety Regulations. However, on the morning of the proof, the pursuer made a motion to lodge HSE Approved Codes of Practice on the Provision and Use of Work Equipment Regulations 1998 and on the Manual Handling Operations Regulations 1992. The pursuer’s intention was to try to establish a breach of these Regulations. The pursuer submitted that, although it was usual and good practice to plead reference to the Regulations being relied upon, it was not necessary. The pursuer submitted that he was entitled to rely on certain Health & Safety regulations for the purpose of “informing” the common law duty of care and that in deciding the case, it was open to the court to take account of them.

Sheriff McGowan refused the pursuer’s motion. His Lordship held that, where a pursuer proposes to rely on Health and Safety Regulations for the purpose of evidencing the standard incumbent upon a defender in the fulfilment of its common law duty to take reasonable care, the defender requires fair notice of that. There had been no such notice in this case. To allow the pursuer to introduce a case based on a breach of the Health and Safety Regulations would be highly prejudicial to the defender. Accordingly, the pursuer was not permitted to lead any evidence or make any submissions in respect of the Health and Safety Regulations.

It should be noted that, even had there been a relevantly pled case, the court would still have refused the late lodging of the HSE Approved Codes of Practice. This was on the basis that, in lodging these documents (which run to over 250 pages) shortly before the commencement of the proof, the defender is deprived of any opportunity to consider them and, as such, would be prejudiced. It did not matter that the documents are in the public domain or that the defender’s witnesses may have had actual or constructive knowledge of them. Fair notice was still required.

• Ross Fairweather is an associate at Clyde & Co.