An Open & Shut Case
HEATHER HODGKINSON v RENFREWSHIRE COUNCIL – 2011 CSOH 142
We acted for Renfrewshire Council and successfully defended this Court of Session action
Ms Hodgkinson made a claim for personal injury after being hit in the face when she opened a gate which had a lug attached to ensure that it did not swing beyond the gatepost into the street. Her Solicitors argued that a risk assessment should have been carried out on the operation as it was necessary as part of her work as a Gardener.
However, on 23 August 2011, Morag Wise, QC found in favour of Renfrewshire Council on the basis that Ms Hodgkinson had failed to prove that the construction of the gate gave rise to more than a mere possibility of injury of opened carelessly. In her Judgment she commented that 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. There was nothing to suggest it posed a risk of harm to employees.
Ms Hodgkinson raised the Personal Injuries Action after she was hit in the face by the gate whilst opening it. She alleged that Regulation 4 of the Provision and Use of Work Equipment Regulations 1998 and Regulation 18 of the Workplace (Health, Safety and Welfare) Regulations 1992 had been breached. She also alleged that 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 had been breached. 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”.
The claim failed in all respects. It was found the Pursuer stood too close to the gate when opening it and pulled it into her face.
With regard to the first two Regulations, Morag Wise, QC stated that “Whilst both Regulations imposed an absolute duty, suitability is defined in both as suitable in any respect which is reasonably foreseeable will affect the health or safety of any person. 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.”
Ms Wise, QC stated, “There is a relationship between Regulation 4 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 and 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”.
With regard to causation and contribution, Ms Wise QC stated, “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 their statutory duties in any 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.”