Scottish Court of Session Decisions

At procedure roll the pursuer sought issues. The defenders proposed a proof before answer and invited me to sustain their first plea-in-law to the effect that there was special cause why issues should not be allowed. Although, in support of that plea, I was addressed on the relevancy of, and lack of specification in, certain averments, I was not invited to sustain the defenders' second plea-in-law to the relevancy of the action to any extent, but was invited to leave it outstanding for the proof before answer.

At the outset Mr Primrose for the pursuer tendered a Minute of Amendment deleting a case under Section 14 of the Factories Act 1961, giving certain specification to supplement the case in Article 6 of breaches of the Provision and Use of Equipment Regulations 1992, and giving further specification in respect of quantum. At the end of his submissions in response to those for the defenders Mr Primrose indicated that he wished to adjust the minute to include therein the deletion of two specific common law cases of fault from Article 5 and to slightly adjust his additional specification in the 1992 Regulations case. Mr Bowie for the defenders did not oppose the lodging of the minute or the adjustment thereof, and did not seek time to answer. The discussion took account of the pursuer's pleadings as they would be following that amendment. At the close of submissions I allowed amendment in terms of the adjusted minute.

The action is for reparation for an industrial injury sustained on 14 March 1996. The defenders are manufacturers of waterproof textiles. The pursuer was part of a squad which was responsible for cleaning a proofing machine after it had been used for a production run and for thereafter setting it up for the next production run by inter alia passing new cloth through rollers. Certain of the rollers were located within a tank into which the pursuer avers that he climbed in order to carry out the task of feeding the new run of material into the machine. He fed the material through rollers at the bottom of the tank and stretched upwards with the material to pass it to a colleague, who, he claims, should have been there to pull it through the next set of pressurised rollers. The colleague did not respond. The pressurised rollers suddenly started to rotate and jerked the material through the rollers pulling the pursuer's hand with it. The pursuer makes various averments about the steps he took to ensure that the rollers were off when he entered the tank, and he states plainly that the machine was not moving when he did enter the tank. His common law case is res ipsa loquitur - that safe plant and equipment supplied in implementation of an employer's duty to his employees does not just suddenly start up without warning. In addition he avers breaches of Regulations 5 and 6 of the Provision and Use of Equipment Regulations 1992. The damages claimed by the pursuer include prescription charges and loss of pension benefits.

Mr Bowie for the defenders advanced four factors which each individually, and together cumulatively, amounted in his submission to special cause for not allowing issues.

So far as relevant Regulations 5 and 6 of the Provision and Use of Equipment Regulations 1992 are in the following terms:

Mr Bowie's first submission was that any res ipsa loquitur case is unsuitable for trial by jury because it involves potentially difficult questions relating to the standard and onus of proof. He made no specific submission in relation to the standard of proof, but submitted that the principle of res ipsa loquitur involved the onus of proof shifting from one party to the other and possibly back again in the course of proof. He made reference to O'Hara v Central SMT Co 1941 S.C. 363, at 390 -391, Devine v Colvilles Ltd 1969 S.C. (H.L.) 67, at 80-81, Inglis v L.M.S. Railway Co 1941 S.C 551, at 561, and Crawford v Peter McAinsh Ltd 1962 S.L.T. (N) 26.

While questions of shifting onus may arise in cases where it is sought to assert res ipsa loquitur, no such question could arise in this case. The defenders' answer to the pursuer's case, which I have summarised above, is twofold, viz that the job the pursuer was doing was a two man job and he had not alerted his colleague, and that the rollers had in any event been left running and were not stationary as the pursuer claimed. The pursuer does not dispute that the job was a two man job; that part of the case was not identified by Mr Bowie as one where any difficulty in relation to the shifting of the onus would arise. The fundamental point at issue between the parties is whether the rollers were running when the pursuer went into the tank. Mr Primrose acknowledged that the pursuer's common law case would fail unless he proved that the rollers were stationary when he entered the tank. That was something he had to prove. There was no question of the onus shifting to the defenders to prove the contrary. It was in that connection that Mr Primrose conceded that the additional specific common law cases based on the defender's failure to provide an audible warning mechanism and an accessible emergency stop device added nothing to the pursuer's case. The absence of either or both safety devices might have resulted in more extensive injury to the pursuer than would otherwise have been the case. However, neither could be described as a causa causans of the accident. In my opinion that is clearly the case. These subsidiary common law cases were predicated upon the sudden and unannounced starting up of the machine which was unexplained and for which these two alleged failures in duty did not offer an explanation. In the end Mr Bowie could not point to any issue of fact on which the onus could in this case pass to the defenders, far less point to one where the passing of the onus would cause complexity. While I imagine that there will be cases where res ipsa loquitur is pled in which the onus of proof may pass in a way which is complex for a jury to follow, that cannot be said of the present case. Special cause can only be said to arise out of the specific features of the case under consideration. I could not find any feature of this case, arising out of the fact that the common law case depends on the maxim res ipsa loquitur, that would constitute special cause for refusing issues.

Mr Bowie's second submission was made under reference to Fleming & CO v C & W West 1976 S.L.T. (N) 36 and the reference therein to "the complexities of the concept of res ipsa loquitur". He submitted that the complexities of res ipsa loquitur were such that it would not be possible for a jury to understand them, particularly when they would be invited to apply the test of strict liability to the cases under the 1992 Regulations and the ordinary test for negligence in respect of the two common law cases of specific breach of duty. The removal of these cases did not in Mr Bowie's submission resolve the difficulty, which was essentially one of the complexity of res ipsa loquitur compounded by its juxtaposition with cases of strict liability.

I agreed with the submission of Mr Primrose in reply that the application of the maxim res ipsa loquitur in this case is not complex. The pursuer simply says that a safe proofing machine adequate for the job, provided in terms of the defenders' duty to take reasonable care for the safety of their employees, would not simply start up without explanation, and if it did the defenders were at fault. That case can easily be explained in directions to a jury. I can see no reason why a jury would not readily understand that test and equally readily understand the application of a strict liability test under the 1992 Regulations. The question for them under the Regulations is whether the defenders failed to ensure certain factors in relation to the machine. It is not a complex matter to have to deal with these two concepts in the context of the simple factual background in this case. Mr Primrose made a submission, which, on the basis of recent authority appears to be controversial, that, since juries in criminal trials deal daily with cases involving a number of issues, including charges in the alternative and a series of possible verdicts particularly in cases involving violence, the application of two different tests to the facts could not be said to amount to special cause for refusing issues. He referred to the contrasting opinions in Meechan v McFarlane 1996 S.L.T. 208 at 209D, Currie v Strathclyde Regional Fire Brigade 1999 S.L.T. 62 at 63F and Dunn v Rigblast Energy Services Ltd 1999 S.L.T. 532 at 533. While I am inclined to the view expressed by Lord Eassie in Dunn that the analogy with the daily task of criminal juries is apt, it is unnecessary for me to consider the position in criminal cases on any view of the material features of the present case. I was entirely satisfied that a jury will have no difficulty in comprehending the distinction between the tests to be applied for the common law and statutory cases remaining. The features of res ipsa loquitur and the relationship between it and the concept of strict liability do not in this case give rise to special cause for refusing issues.

The defenders' third submission was that special cause existed in the difficulties of applying the cases under the 1992 Regulations. A jury would require to consider the meaning of the terms used in the Regulations against judicial authorities and the relevant rules of construction, and that task would be made much more complex because the Regulations emanate from an EU directive which itself is founded on a treaty. The jury would therefore require to be referred to both the directive and the treaty under which it was made. In addition the jury would have to have regard to the decisions of the European Court on the construction of all of these documents. From all of that material the jury would have to extract an overall purpose to give a purposive construction to the Regulations. This submission was based largely on the Opinion of Lord Reed in English v North Lanarkshire Council 1999 S.C.L.R. 310 at 319-321. When asked, Mr Bowie was unable to identify any particular point of difficulty in the interpretation of either Regulation founded upon.

While his submission may well be a correct academic analysis of the legal theory to be applied to the interpretation of the Regulations, no point has been identified in the present case as likely to cause difficulty for the jury. It will be for the trial judge to direct the jury on the interpretation of the Regulations after resolving any problem, as yet unidentified, which may arise. There is no basis for saying that the interpretation of either Regulation is likely to give rise to any difficulty for the jury in their task as masters of the facts - cf. McIntosh v Commissioners of Lochgelly (1897) 25 R 32 at 34.

Mr Bowie also submitted that the averments relating to the breaches of Regulations 5 and 6 of the 1992 Regulations were not sufficiently specific to be relevant for trial or proof and were at the very least of doubtful relevancy such as to give rise to special cause for refusing issues. In relation to Regulation 5, which requires an employer to ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided and to ensure that work equipment is used only for operations for which, and under conditions for which, it is suitable, he maintained that the pursuer was bound to aver a failure on the part of the defenders which could amount to a breach of that Regulation. It was not sufficient for the pursuer to aver as he proposed in the Minute of Amendment tendered at the outset of the debate:

In my opinion that averment, when taken along with the factual averments which I have summarised at the outset of this Opinion, provides adequate specification of the case that the defenders failed to comply with Regulation 5. Regulation 5(1) obliged the defenders to ensure that the machine was so constructed or adapted as to be suitable for the purpose for which it was used or provided. That purpose was the proofing of material which, as an integral part of the exercise, involved the presence of the pursuer within the tank. In terms of Regulation 5(3) the defenders were bound to ensure that the machine was used only for operations for which, and under conditions for which, it was suitable. Again the defenders' operation and the conditions under which the operation was carried out involved the presence of the pursuer in the tank of the machine. In terms of Regulation 5(4) the word "suitable" is defined as meaning "suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person." Against that legal framework the pursuer's averments in Article 5 are in my opinion sufficient.

A similar point was made by Mr Bowie in relation to Regulation 6 which obliges an employer to ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair. In Mr Bowie's submission it was necessary for the pursuer to aver, as a matter of inference by the use of the formula "believed and averred", that the proofing machine was not so maintained, and to have sufficient averments to justify that inference. He maintained that to make a case under Regulation 6 it was necessary to make averments of some fault in the defenders' maintenance of the proofing machine. For that submission he relied on Millar v Galashiels Gas Co 1949 S.C. (H.L.) 31.

In my opinion, Millar, far from supporting the defenders' submission, undermines it completely. It was there decided that the obligation under Section 22(1) of the Factories Act 1937 to ensure that a hoist or lift was properly maintained in an efficient state, in efficient working order, and in good repair was breached when it was shown that on a particular occasion the mechanism did not work in spite of the fact that there was no explanation for its failure to work and it worked properly both before and after the accident. It follows that all that is required by way of averment for a case of failure to comply with the duty under Regulation 6 is that the proofing machine did not work properly. There are in my opinion adequate averments of that and the circumstances in which that occurred to entitle the pursuer to maintain a case of breach of Regulation 6.

For these reasons I did not find special cause for withholding the action from a jury in the averments relating to Regulations 5 and 6 or in any difficulty of interpretation of these Regulations.

Mr Bowie's final submission concerned the lack of specification in a number of areas of the Record which he submitted led to averments being of doubtful relevancy. His submissions in relation to averments on the merits concerned the specific common law cases which Mr Primrose was allowed to delete. The submissions relating to quantum were twofold.

Mr Bowie first submitted that the averment, "The pursuer has incurred prescription costs, details of which will be produced in process to follow hereon", was so lacking in specification as to be of doubtful relevancy. It gave no fair notice to the defenders of the costs involved.

I did not agree. It is clearly stated that the claim is for prescription costs. An undertaking is given to reproduce details in process. Mr Primrose explained that these details would be lodged timeously before the trial. In my opinion the pursuer has provided adequate specification. If the defenders wish more information now, then they can ask for it or take other steps such as by commission and diligence to recover it. No such steps have been taken.

The second submission proceeded on a misunderstanding of the pursuer's averments about pension loss. On that subject the pursuer avers:

Mr Bowie initially based his submission on the contention that the calculation would be extremely complex, involving making allowance for any pension the pursuer would receive in any future employment or ought to be receiving if he had obtained alternative light work for which the defenders maintained he had been fit since May 1998. However, these averments do not relate to the future. They are confined to the period between the accident and the trial. Mr Primrose confirmed that the pursuer was not making any claim for pension loss beyond that date. In light of that, Mr Bowie's modified submission was that the issue was still too complex for a jury because it involved an assessment based on whether the pursuer should have been back in work prior to the trial and thus in receipt of pension benefits in a new employment which would have to be set off against his claim. In any event, any pension loss calculation would require evidence from actuaries, accountants and the like and that alone would cause difficulty for the jury.

I considered the pension loss claim in this case to be a relatively simple one. I viewed the pursuer's submission as coming close to saying that no case involving a pension loss claim could be said to be suitable for jury trial. I did not accept that proposition. The answer to the question whether issues should be allowed must always be found in the particular circumstances of the case. In this case I could see no particular complexity in arriving at a figure for compensation for pension loss that would amount to special cause for denying the pursuer issues. In my opinion a jury is perfectly capable of evaluating the evidence of the professional witnesses referred to and coming to a conclusion based on their confidence in particular witnesses or their own assessment of the appropriate figure in the light of the evidence given by all the expert witnesses led.

I accordingly concluded that neither in any individual factor identified by Mr Bowie, nor in any combination of them, is there special cause in this case for refusing issues. I was satisfied that the pursuer's pleadings are relevant and give fair notice of the case to be made in all its aspects. I therefore repelled the first and second pleas-in-law for the defenders and allowed issues.

Since the result of the debate was that the pursuer amended in a fairly significant way and the issues for trial were thus better focused, I did not consider that it would be just to find the defenders liable in the expenses of the procedure roll hearing, albeit the pursuer was substantially successful. I found the pursuer liable to the defenders in the expenses occasioned by the amendment procedure, and in relation to the procedure roll hearing found the expenses to be expenses in the cause as I was moved to do by the defenders.