[2007] CSIH 32
We represented the defenders in this case in which the Appeal
Court in the Court of Session handed down its judgement on 18 May
2007. Albeit the case concerned the rather unusual and unenviable
task of trussing the wings and legs of chickens with elastic bands,
the judgement is significant in determining the scope of the term
"manual handling operations" (MHO) within the Manual Handling
Operations Regulations 1992. The Regulations define an MHO as "any
transporting or supporting of a load (including lifting, putting
down, pushing, pulling, carrying or moving thereof) by hand or
bodily force".
When the case was originally heard before Lord Menzies, he found
that Mrs Hughes' condition of carpal tunnel syndrome had been
exacerbated by the actual task of trussing. The Court heard
evidence that she required to remove the chicken from a shackle,
put it onto her work bench, truss it and then place it onto a
conveyor belt. Lord Menzies held that the trussing task was not an
MHO as it would be "straining the ordinary language to describe
this manipulation as the transporting or supporting of a load"
and found in favour of the defenders.
On appeal, the Appeal Court unanimously rejected Mrs Hughes'
argument that there was clear evidence she had been engaged in an
operation which involved supporting and moving chicken carcasses
which fell within the definition of an MHO. In the wider sense the
Court also rejected Mrs Hughes' argument for a broad and purposive
construction of the Regulations such that the definition of an MHO
should include the moving of any object manually, for instance a
seamstress lifting and replacing a needle, a librarian turning the
page of a book and an employee switching an electrical switch on
and off. In the leading speech, the Lord President stated "I am
disposed to reject [the pursuer's] construction which would appear
to make virtually every human activity, other than the purely
cerebral, one of manual handling". The Court considered that
such a wide construction would lead to absurd results and
recommended that the applicability of the Regulations should be
determined by common sense. Helpfully the Court also endorsed the
judgements previously handed down in the cases of King v Carron
Phoenix Limited 1999 Rep LR 51 and McFarlane v Ferguson
Shipbuilders Limited 2004 Rep LR 78. A full copy of the
judgement can be found at www.scotscourts.gov.uk/opinions/2007CSIH32.html
The decision is a very welcome triumph of common sense over
nonsense!
Tanya Gordon