This proposition was also reflected in the pursuer's evidence. However, the pursuer accepted, in ~~his~~ evidence in chief ~~the pursuer accepted knowing~~, that he knew the vehicle had been comprehensively tested following his accident and was found to have no defect which could have contributed to the operation or effectiveness of the braking system. Mr Ivey asked him if he could offer any explanation as to why the brakes did not operate in response to the acts which he described. The pursuer offered no explanation and said he had no knowledge as to why this would happen.

[9 ] In the aftermath of the pursuer's accident he was able to obtain the assistance of various colleagues. An ambulance attended, as did two police officers. At the proof the pursuer led the evidence of a work colleague, Mr John Lessells and the evidence of one of the attending police officers, Constable Alan Dunlop. Both of these witnesses spoke to accounts of the accident given to them by the pursuer prior to him being removed from the premises by ambulance.

[10 ] Mr Lessels, who was 61 years old, was a man who had some difficulty in expressing himself. He gave his testimony in a somewhat garbled fashion and was not always easy to follow. He explained that he was told that the pursuer had sustained an accident. He spoke to the pursuer and asked him what happened, to which the pursuer responded that he got his foot crushed between the forklift and the wall. Mr Lessels asked the pursuer how this had happened to which the pursuer gave an answer.

[11 ] As best as I could understand Mr Lessels in evidence he explained that the pursuer told him that he was going to step off the fork lift truck but the motor kept going and he hit the wall. When pushed a little further on this by Mr Ivey he seemed to say that the pursuer had told him that he was going to step off and he took his foot off the button which ought to have stopped the vehicle right away but it didn't. ~~There was no mention of~~Mr Lessels did not give evidence to the effect that the pursuer had told him off applying the brake pedal ~~in this account.~~. In fairness to Mr Lessels he was being asked to recall the terms of a short conversation which took place almost four years previously. However I did not find the evidence of Mr Lessels to be ofoff much assistance in arriving at a resolution of the matters before me. The evidence of Constable Dunlop was of a different quality. He too had asked the pursuer for an account of what had happened. Helpfully, he had noted the response in his police notebook. At proof he read the terms of the pursuer's response as noted at the time. The accuracy of this note was not challenged. His note was in the following terms:

"I tried to slow down but it wouldn't. I took my foot off the safety button and put it down the side of the fork lift truck which thinking now was silly. It still would not stop and the truck hit the wall trapping my foot. I have not had problems before with that truck".

These witnesses concluded the evidence for the pursuer as to the circumstances of the accident.

[12 ] The pursuer also led the evidence of Mr Lenford Greasley. Mr Greasley was led as an expert witness and spoke to a report, number 6/15 of process, which he had prepared on the instructions of the pursuer's solicitors. Mr Greasley, who was aged 60, was a director of a firm of consulting engineers. He had been a member of the Health and Safety Inspectorate for two to three years in his late twenties. Thereafter he returned to industry and also obtained a degree in law and a diploma in safety and hygiene. He had attended at the defenders' premises and had been given an opportunity of observing the function and operation of the vehicle the pursuer had been operating on the day of his accident. He was given an operator's manual for this model of vehicle. He had also been provided with an account from the pursuer of how his accident occurred, and various other documents, including number 7/10 of process. This appeared to be a file record on the defenders' notepaper. It recorded the fact of the pursuer attending for interview on 25 September 2002 and noted that he had presented "in house" licenses for the use of both Reach and Counterbalance trucks. It also included the comment "Observed Mr Kenny removing one pallet from rack and locating one pallet".

[13 ] Mr Greasley's report expressed his opinion that the pursuer's state of competence and training at the time of his employment by the defenders was insufficient for safe operation of the ~~Reach Truck~~reach truck in that he did not appreciate or understand basic operation of controls on the machine. In his opinion the defenders were in breach of Regulation 9 of the Provision and Use of Work Equipment Regulations 1998 by virtue of failing to provide the pursuer with adequate training. In giving his evidence he referred to the terms of production 6/17, the Health and Safety Executive Code of Practice "Rider-operated lift trucks: Operator training", which came into force in October 1999. In evidence Mr Greasley explained the emphasis within the Code of Practice on the need to provide employees with training. He was taken through paragraphs 33-35 of the Code, covering the need for and extent of basic training. He was taken through the passages of the Code dealing with the need for specific job training and through the passages dealing with the need for familiarisation training, under the guidance of a supervisor. He was also taken through the passages of the Code dealing with the need for refresher training and conversion training, as found in paragraphs 47 and 48 of the Code. He was also take to paragraph 30 of the Code which provides guidance as to how employers ought to react to claims of experience made by employees. It emphasises the responsibility placed on the employer to satisfy himself as to the extent and relevance of any such experience. In Mr Greasley's view the defender's practices, as he understood them, failed to conform to the sort of guidance found in the Code of Practice.

Evidence for the Defenders

[14 ] The defenders led the evidence of Paul Cook and David Fernie. Mr Cook had been in their employment for a period of eleven years up until about May of 2006. He had spent his entire working life operating and working with forklift trucks. At the time of the pursuer's employment he had been the warehouse supervisor, with responsibility for five warehousemen, including the pursuer. Mr Cook explained that when the company was seeking to recruit a new fork lift tuck driver it was his responsibility to assess the applicant's competence. The applicant would be interviewed initially by Helen Innes, who would then bring the individual down to the warehouse to be introduced to him. Mr Cook would then have a discussion with the applicant about his abilities and experience following which he would ask the applicant to demonstrate his competence by driving a the forklift truck and removing and replacing a number of pallets on and off ~~and onto~~ the ~~racking~~raking system. He reported his view as to the applicant's capabilities back to Mrs Innes. Over his years with the defenders he had assessed the competence of applicants for around ten positions. with the defenders. On a number of occasions he had required to report back that a particular applicant was incapable of operating the vehicle adequately.

[15 ] Mr Cook's evidence was that he had been at the premises on the day of the pursuer's interview. He recalled Mrs Innes bringing him down to be introduced in the warehouse area. He recalled having a discussion with the pursuer concerning his experience. The pursuer confirmed that he understood how to operate the Reach Truck. Mr Cook explained that he then asked him to demonstrate his competence by driving the Reach Truck around and by loading and unloading a number of pallets. He left the pursuer with the Reach Truck for about half an hour to spend time getting used to it. He explained that the pursuer was comfortable and confident with the machine and performed all of the set tasks well. Mr Cook's account was that he then told the pursuer that the job was his if he wanted it and passed that message on to Helen Innes. Mr Cook rejected the suggestion that it was in fact Mrs Innes who had assessed the pursuer within the warehouse. He pointed out that she had no experience of the warehouse operations. Mr Cook was also asked to comment on the content of production number 7/10. His response to this was to observe that the pursuer had done a lot more than remove and locate one pallet and that he would have been unable to assess his competence on such a limited exercise. He stated that he had no idea where ~~the~~ that information ~~within production number 7/10~~ had come from.

[16 ] After the pursuer commenced work with the defenders he worked the same 7am to 7pm shift as Mr Cook. Throughout this period he supervised the pursuer and was able to assess his level of competence. Mr Cook's account was that the pursuer was a good worker whom he liked. At no time did the pursuer ever report or mention any difficulty in operating the vehicle. On the day of the pursuer's accident Mr Cook tested the vehicle concerned in the presence of the police. He drove it in both directions and checked the operation of the foot brake. All functions tested were operating correctly. ~~All functions tested were operating correctly.~~

[17 ] Mr David Fernie was the after marketing manager for Lansing Linde, the manufactures of the Reach Truck concerned. The defenders had a contract hire agreement with his employers in relation to the Reach Truck concerned in the accident, as well as others. Servicing and repair was part of the agreement. As a consequence Mr Fernie inspected the vehicles every three months. He was a qualified fork lift truck engineer. He spoke in evidence to the service records of the particular vehicle and to attending at the defenders' premises on the day after the accident. He performed an examination and test of the vehicle as recorded in production 7/5. The purpose of the test was to ensure that the vehicle was safe to put back to work. He concluded that the vehicle was mechanically sound and had properly functioning brakes. None of this evidence was challenged.

Pursuer's Submissions

[18 ] The pursuer's case on record was based upon breaches of Regulations 4(3), 5, 8 and 9 of the Provision and Use of Work Equipment Regulations 1998. In submissions Mr Ivey restricted himself to an argument under reference to Regulation 9(1), acknowledging, as he put it, that the other references in the pleadings had fallen by the wayside.

[19 ] Regulation 9 is in the following terms:

"9 Training

(1) 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."

Mr Ivey's introduction was to submit that the pursuer's accident occurred as a consequence of two operator errors. The first being an apparent failure to operate the foot brake effectively and the second being a misunderstanding as to the effect of taking his foot off the interlock pedal in trying to retrieve the situation brought about by the first error. On this analysis the first error was significantly compounded by the second in that it was the second error which caused the pursuer's foot to go outwith the confines of the truck. This second error he submitted occurred ~~because~~ as a consequence of inadequate training provided by the defenders and in consequence there was a breach of Regulation 9. Mr Ivey acknowledged that even if this analysis was accepted the question of contributory negligence would arise for consideration.

[20 ] In discussing the evidence Mr Ivey first advanced submissions as to how I should see the factual circumstances surrounding the pursuer's accident and then moved on to present submissions as to the way in which he said a breach of Regulation 9 had occurred.

[21 ] Mr Ivey began by acknowledging that no defect was present in the operation of the Reach Truck such as to cause a failure of the braking system. He invited me to reach the conclusion that the brakes had not been operated effectively by the pursuer and invited me to accept the pursuer's evidence that he thought in removing his foot from the interlock pedal the vehicle would come to an immediate halt. The basis of this understanding he said being his previous experience in driving a different model of Reach Truck.

[22 ] In seeking to support his submission that it was an the error in understanding the function of the interlock pedal which caused the pursuer's foot to go outside the truck Mr Ivey invited me to view this act as occurring in a classic heat of the moment situation. He invited me to accept that the pursuer was describing a rapid movement in the course of an emergency during which his foot was placed outwith the protection of the cab. Mr Ivey submitted that this was not a conscious or deliberate act and that one could not criticise him for not weighing up where to place his foot. Mr Ivey's contention was that on the evidence, had the pursuer known the true function of the interlock pedal he would have kept his foot on it. Mr Ivey also invited me to see in the statement which the pursuer gave to Police Constable Dunlop an account which was, at least to an extent, consistent with the pursuer's account in evidence. His submission was that in that statement the pursuer had referred to taking his foot off expecting something to happen which did not, rather than an attempt to disembark from the vehicle.

[23 ] In explaining the way in which he said that breach of Regulation 9 had occurred Mr Ivey relied on the evidence of the pursuer and on the evidence given by Mr Greasley, as taken along with the terms of the Code of Practice to which he had referred. Mr Ivey's submission was that the defenders had failed to properly satisfy themselves as to the pursuer's experience and ability by relying on ~~elderly~~dated certificates and inadequate assessment. This he submitted failed to comply with the provisions of paragraph 30 of the Code of Conduct. Further, he submitted that the defenders had failed to provide any basic training or conversion training, the necessity for which was set out in paragraphs 33, 35, 48 and 50 of the Code of Practice. Had they done so, he submitted, the pursuer would have been aware of the proper function of the interlock pedal. Although the Code of Practice did not have statutory authority it was clear, said Mr Ivey, that its purpose was to give guidance to the industry on what was necessary in order to comply with their statutory requirements. He ~~submitted~~ argued that the two errors which ~~he argued~~ combined to cause the pursuer's accident arose on account of the failures which he had specified~~.The~~ and the defenders were accordingly in breach of their responsibilities in terms of the statutory provision. In these circumstances Mr Ivey moved me to find for the pursuer.

Defenders' Submissions

[24 ] For the defenders Mr Murphy's essential submission was that the pursuer had failed to establish the cause of his accident as averred and as advanced by him in evidence. He submitted that the pursuer's entire case depended upon his account that the brakes failed to operate. He submitted that the contention advanced on the pursuer's behalf, to the effect that he panicked and as a consequence of inadequate training failed to react appropriately, was inextricably linked to the contention that the brakes were operated but failed. His submission was that this contention was not tenable in the absence of credible and reliable evidence that the panic arose as a consequence of a failure in the braking system. Mr Murphy invited me to reject the pursuer's evidence on this matter and to hold that the accident was caused by the pursuer's failure to apply the foot brake and therefore by his own failure to take reasonable care for his own safety.

[25 ] Mr Murphy also reminded me that not only was the factual basis of the pursuer's case on record that he applied the brakes and they failed to operate, but that failure was linked to the way in which legal liability was said to arise. According to the record, in Statement VI, legal liability arose in these circumstances by virtue of breach of Regulations 4(3), 5, 8 and 9 of the Provision and Use of Work Regulations. Mr Murphy drew my attention to the terms of Regulations 4(3) and (5), which relate respectively to the suitability of equipment provided for the use to which it is put and to the need to maintain equipment in good repair and in efficient working order. Regulation 8 relates to the need to provide employees with adequate health and safety information pertaining to the use of equipment used by them.

[26 ] Mr Murphy noted that breach of Regulation 8 had been departed from and submitted that a breach of Regulation 9 was only a relevant consideration for me if the pursuer established that a breach of Regulations 4 or 5 had also been established. The reason for this, he said, was that in the absence of any breach of the other Regulations the pursuer was simply saying that an accident occurred involving a person who had not received adequate training, without considering the question of any causative connection.

[27 ] If I was not with him on his principal submission Mr Murphy invited me to hold that the pursuer was himself negligent in failing to keep his foot within the confines of the vehicle. He pointed out that the need for a driver to keep his entire body within the cab was one that arose in an emergency situation, such as if the vehicle tipped over. He submitted that this was a basic rule known to all fork lift truck drivers and reminded me that the pursuer himself acknowledged this in evidence. Mr Murphy submitted that since in the present case the vehicle was said to have been travelling at no more than walking pace, even if liability was established, the pursuer's own blameworthiness was such that a finding of contributory negligence at a level of between eighty to one hundred per cent ~~should~~could be made.

[28 ] In referring to the evidence Mr Murphy invited me to see the pursuer as an experienced fork lift truck driver. In this regard he mentioned his previous experience and his trouble free time with the defenders up until his accident. In conjunction with this submission he referred me to the evidence of Mr Cook who had worked with the pursuer throughout the relevant period and thought of him as a very good and competent operator. Mr Murphy invited me to reject the pursuer's evidence that he had applied the brakes to no effect. He suggested that this account was inconsistent with what the pursuer had said in the aftermath and was in any event contradicted by the unchallenged evidence of Mr Cook and Mr Fernie. He submitted that this evidence demonstrated that brake failure was not an issue which contributed to the occurrence of an accident.

[29 ] Mr Murphy also invited me to view the pursuer's account that he had not previously experienced the effect of lifting his foot off the interlock pedal as lacking credibility. He invited me to this view in light of the evidence that he had been driving this particular vehicle for two to three hours a day, five days a week throughout a period of eight weeks.

[30 ] On the matter of assessing the pursuer's suitability for employment, again Mr Murphy invited me to reject the pursuer's account and to prefer the evidence of Mr Cook. In this regard he submitted that the defenders had been looking for an experienced fork lift truck driver. The pursuer presented himself as such, provided certificates to vouch his experience and underwent practical assessment. In addition, he was then under the supervision of Mr Cook for the period of time up until his accident. He submitted that there had been no challenge to the evidence that the pursuer was observed by, and under the supervision of, Mr Cook, during his trial period. In ~~all of~~ these circumstances Mr Murphy submitted that ~~there~~the defenders had ~~been no breach of~~ complied with any requirement for training imposed by Regulation 9 ~~by the defenders~~.

Discussion

[31 ] It was clear in my opinion that the pursuer thought of himself as a competent and experienced fork lift truck driver. I was satisfied that he presented himself as such at his interview on 25 September 2002. On the dispute as to who assessed the pursuer's competence I had little difficulty in accepting the account given by Mr Cook. I found him straightforward in all aspects of his testimony. He was the warehouse supervisor and normally had responsibility for assessing the competence of applicants. Had there been a different arrangement for the pursuer I would have expected Mr Cook to have remembered this. On the contrary he was able to recollect aspects of his discussion with the pursuer. I also accepted his testimony as to the tasks which the pursuer was asked to perform and how long this took. Accordingly I found that the terms of production 7/10 were inaccurate. I was satisfied that the pursuer was able to demonstrate his ability to operate the R14 Reach Truck both during his assessment and throughout his trial period. I was satisfied that he was a competent and experienced operator who was familiar with the correct operation of this vehicle.

[32 ] In giving the evidence which he did, Mr Greasley had made certain assumptions. One was that the particular Reach Truck operated by the pursuer had an alternative braking system, known as regenerative braking. As he understood it, this operated through changing the direction of the vehicle's electric motor. One of the factors which contributed to his assessment that the pursuer had not been provided with adequate training was that the pursuer had not been instructed in the operation and function of this system. As it transpired however, the R14 model was not fitted with regenerative braking. The further assumptions which underpinned Mr Greasley's opinion were:

i. that production 7/10 correctly reflected the level of assessment undergone by the pursuer,

ii. that the pursuer did not understand the effect of removing his foot from the interlock pedal and

iii. that the pursuer removed his foot from this pedal in a panic as a result of the foot brake failing to operate.

In the end of the day I did not find that any of these assumptions were warranted. Accordingly Mr Greasley's evidence turned out to be of little value.

[33 ] In light of the compelling and uncontested evidence as to the condition of the vehicle in which the pursuer had his accident, I was unable to accept his evidence that he had applied the brake pedal. Had the brake been applied it is clear that the vehicle would have been halted. I should of course recognise that I was not invited to accept this part of ~~the pursuer's~~ his testimony by Mr Ivey. ~~His~~ Counsel for the pursuer's submission was that his case did not depend on the pursuer having in fact applied the brake. He submitted that it would be sufficient if I were to hold that the pursuer was under the impression that he had done so. I could find no basis in the evidence for understanding how such an impression could have been formed despite the brakes not in fact being applied. No such explanation was offered by the pursuer, or by Counsel on his behalf. Accordingly, the clear conclusion which I reached was that the pursuer chose to take his foot of the interlock pedal without making any effort to apply the foot brake. Why he did this is not entirely clear. A number of suggestions were canvassed in evidence but it did not seem to me necessary to come to a concluded view on that matter. I should note however that I did not find the pursuer credible in his evidence that he was unaware of the effect of doing so. I was not able to accept that in the period of time during which he had operated the vehicle he had not previously performed this action.

[34 ] Having arrived at these conclusions it is clear, as Mr Murphy submitted, that the pursuer has failed to prove the basis of his claim. The efforts made on his behalf to submit that the he took his foot off the interlock pedal and moved it out of the cab in the heat off the moment were all interlinked with the submission that he thought the brakes had failed. Since I rejected the submission that the pursuer thought he had applied the brakes there is no context for the second error advanced by Mr Ivey. I accepted Mr Murphy's submission that the contention advanced on behalf of the pursuer was not tenable in the absence of credible and reliable evidence that panic arose as a consequence of a failure in the braking system. In consequence I further agreed with Mr Murphy that the accident was caused by the pursuer's failure to apply the foot brake and therefore by his failure to take reasonable care for his own safety. It follows that no causative connection between the pursuer's accident and any deficiency in the provision of training has been established.

[35 ] In light of the view which I arrived at as to the level of the pursuer's experience and competence I was in any event satisfied that the defenders had not been in breach of the terms of Regulation 9. I was satisfied that the ~~presentation of certificates, the~~ discussion which the pursuer had with Mr Cook on the day of his interview, the formal assessment carried out that day and the ongoing supervision provided by Mr Cook~~, all combined~~ was sufficient to ~~provide sufficient compliance~~comply with the need to test an operator's experience and ability as described in paragraph 30 of the Code of Practice. On the evidence led the pursuer did not require the sort of basic training or conversion training described in paragraphs 33, 35, 48 and 50 of the Code of Practice. The pursuer was well aware of how to operate the relevant vehicles and was familiar with safety considerations arising therefrom. In particular, as he acknowledged, he was well aware of the need to keep his body within the confines of the vehicle whilst it was in motion.

[36 ] In the circumstances explained above I will refuse the pursuer's motion for decree in the agreed sum and I will grant the defenders' motion for decree of absolvitor.

~~[36~~] In the circumstances explained above I will refuse the pursuer's motion for decree in the agreed sum and I will grant the defenders' motion for decree of absolvitor.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE]
	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kelly v Pollock (Scotrans) Ltd [2007] ScotCS CSOH_27 (13 February 2007) URL: https://www.bailii.org/scot/cases/ScotCS/2007/CSOH_27.html Cite as: [2007] CSOH 27, [2007] ScotCS CSOH_27

Scottish Court of Session Decisions

Defenders - Murphy, Q.C.; HBM Sayers.

Introduction

The Use of the Reach Truck

The Pursuer's Employment

The Pursuer's Accident

Evidence for the Defenders

Pursuer's Submissions

Defenders' Submissions

Discussion