A process worker trussing chicken carcasses was not performing a manual handling operation for the purposes of the Manual Handling Operations Regulations (SI 1992 No 2793).

The First Division of the Inner House of the Court of Session so held, refusing a reclaiming motion by Margaret Hughes against a decision of the Lord Ordinary (Lord Menzies)(2006 SCLR 682) that she was not entitled to damages for personal injury caused by breach of statutory duty by Grampian Country Food Group Ltd. Mr Hugh Campbell, QC and Mr Bryan Heaney for Ms Hughes; Mr Andrew Smith, QC and Mr Alastair Duncan for Grampian Country Food Group.

THE LORD PRESIDENT said that the pursuer’s work included trussing the wings and legs of chickens using elastic string. The manipulation of chicken carcasses had caused an exacerbation of her symptoms of carpal tunnel syndrome.

The term “manual handling operation” was defined in regulation 2 as “any transporting or supporting of a load”. It was a term which was open to more than one interpretation but an interpretation which led to absurd results was to be avoided.

It would offend against common sense to suppose that the framers of the regulations intended to bring within its scope the activities of the seamstress lifting and replacing her needle, the librarian turning the pages of a book or the employee throwing an electrical switch. It would only be in the absence any tenable alternative that the appellant’s submission could be accepted.

It was a familiar rule that the domestic court had to seek to interpret national law to achieve the same result as was intended by the relevant provision of EU law, where it was reasonably possible to do so: see Robb v Salamis (M and I) Ltd ( The Times December 22, 2006; [2007] ICR 175; 2007 SLT 158).

It was plain from the context of the Framework Directive 89/391/EEC (OJ 1989 No L183/1) that the loads which were contemplated were burdens which by their weight, in the ordinary rather than in any scientific sense, presented a risk to humans handling them.

The Manual Handling Directive 90/269/EEC (OJ 1990 No L156/9), dispensed with the concept of heavy loads and identified the type of load which would give rise to manual handling of loads as being that which “by reason of its characteristics or unfavourable ergonomic conditions” involved the risk of injury.

In the 1992 Regulations, the concept of risk was transferred out of the definition of the operation into the terms of the obligation imposed on the employer.

A definition of “load” was provided, but only to the extent of making it plain that animate as well as inanimate objects might be a load. The differences were not such as to point to the regulations having a radically different scope from the Directives in implement of which they were made.

None of the contexts in which the expression was used supported the concept that “load” was used in a scientific as distinct from an ordinary sense.

It was difficult to define with exactness the scope of the regulations. Their applicability in any particular case had to be determined as a practical exercise by the use of common sense.

The purpose for which the item in question was being used might be of some assistance: see McFarlane v Ferguson Shipbuilders Ltd (2004 Rep LR 78). A heavy object might be a load, notwithstanding that it might also be a tool: see McIntosh v City of Edinburgh Council (2003 SLT 827).

In so far as the guidance issued by the Health and Safety Executive suggested the contrary its soundness was doubtful.

The Lord Ordinary had been shown a video-recording of the task. He said that what he saw of the operation was the employee working on it while the carcass was on the work bench, or picking it up for a moment to apply the trussing string around it before placing it back on the work bench.

He concluded that while that manipulation was being performed, there was no transporting or supporting of a load. He was entitled to conclude as he did.

Lord Phillip agreed with the Lord President and Lord Eassie delivered a concurring judgment. Law Agents: Thompsons, Edinburgh; Simpson & Marwick, Edinburgh.

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