On 26 October 2011 the Inner House (Court of Appeal) issued its Opinion in the case of Strange v Wincanton Logistics Limited (2011 CSIH 64A).
This Action started in Livingston Sheriff Court where the Pursuer, John Strange, sued Wincanton Logistics Limited, the Defenders. He had been employed by them when he suffered an injury on 5 February 2007.
His case was based on fault at common law and breaches of the Manual Handling Operations Regulations 1992. The Pursuer had been moving and stacking empty wooden pallets in a warehouse and suffered a back injury as a result.
It was admitted that the task of moving the pallets was a manual handling operation involving a risk of injury under the 1992 Regulations.
Evidence was led and the Sheriff Court Decision was to the effect that it wasn’t reasonably practicable for the Defenders to have eliminated manual handling. In addition, the Court found that the Defenders had reduced the risks to the employee to the lowest reasonably practicable level. As a result of these findings, the Defenders were absolved from any liability.
The Pursuer appealed the Decision. The Appeal Court considered reasonable practicability in terms of the 1992 Regulations. “Reasonably practicable” was agreed as being defined in Edwards v NCB 1949 1KB 704 where Asquith L J said:
“Reasonably practicable is a narrower term than physically possible and seems to me to imply that a computation must be made by the owner, in which the quantum of risk is placed on one scale and the sacrifice involved in that measures necessary for averting the risk (whether in money, time or trouble) is placed in the other, and that, if it be shown that there is a gross disproportion between them – the risk being insignificant in relation to the sacrifice – the Defendants discharge the onus on them. Moreover, this computation falls to be made by the owner at the point of time anterior to the accident.”
The Court also considered the Supreme Court case of Baker v Quantum Clothing Group 2011 1WLR 1003 and placed considerable weight on the fact that the job the Pursuer had been carrying out had been done without any problem by the Pursuer and other employees for many years. In addition, the method of operation was universal practice in the warehousing industry.
The Appeal Court held that where an employer followed a general practice in the industry, that was a significant factor in terms of the Edward v NCB balance.
There was some discussion over whether or not a second man should have been provided to assist with the task and there had been some evidence at Proof in the Sheriff Court about the Pursuer’s wages but the Appeal Court said that the Sheriff had been entitled to find that the cost of using an additional employee with a view to applying a small additional element of safety to reduce an already very small risk, “was sufficiently large to be disproportionate.” Accordingly, using a second employee was not reasonably practicable.