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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Slater v Fife Primary Care NHS Trust [2000] ScotCS 125 (17 May 2000)
URL: http://www.bailii.org/scot/cases/ScotCS/2000/125.html
Cite as: [2000] ScotCS 125
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OUTER HOUSE, COURT OF SESSION |
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O1323/5/99
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OPINION OF LORD MARNOCH in the cause MARGARET SLATER Pursuer; against FIFE PRIMARY CARE NHS TRUST Defenders:
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Pursuer: Cherry; Thompsons
Defenders: Fitzpatrick, Mackenzie; R F Macdonald
17 May 2000
[1] In this case the pursuer, who is a nursing auxiliary, seeks damages in respect of an alleged exacerbation of a pre-existing degenerative back condition which, it is averred, to the knowledge of the defenders had already given rise to sciatica and back problems in the recent past. The exacerbation took place, it is alleged, when the pursuer was moved from Ward 1 of Glenrothes Hospital to Ward 2 where it is said that the volume of heavy duties confronting her was greater. The case of fault is that in the circumstances she should not have been exposed to that additional volume of heavy duties.
[2] Mr Fitzpatrick, for the defenders, sought dismissal of the action and in doing so at one point summarised his argument as follows:
"In order to aver a relevant common law case the pursuer had to establish that the change in duties carried a reasonably foreseeable risk of injury. Such a risk was not foreseeable just because the pursuer asserted to the defenders that it existed or because the pursuer subjectively believed that there was such a risk. Instead there had to be an objective risk of injury. It was not enough simply to aver that the pursuer had a degenerative back because that, in a sense, could be said to be true of most, if not all, adults. The defenders had to be able to assess what increase in duties would be unreasonable and in that connection that was no reason to assume that the pursuer was already at the limit of her capabilities."
[3] For much the same reasons Mr Fitzpatrick submitted that the pursuer had failed relevantly to aver circumstances in which a risk could be said to have arisen for purposes of the statutory case pled under Regulation 4(1)(a) of the Manual Handling Operations Regulations 1992. In that connection Mr Fitzpatrick made reference to Taylor v City of Glasgow Council 3 August 1999 (unreported) and Easson v Dundee Teaching Hospitals NHS Trust 2000 S.L.T. 345.
[4] In reply, Miss Cherry, for the pursuer, submitted that this was a relatively straightforward case. The defenders, according to the averments, were fixed with knowledge not only that the pursuer had a degenerative back condition but that that condition had given rise to back problems and sciatica in the recent past, thus indicating that she was already at, or at least near, the limit of her capabilities. It was also averred that the defenders knew, or ought to have known, that the heavy tasks on Ward 2 would be of greater volume than those to which she had already been subjected in Ward 1. In these circumstances it was clearly foreseeable that by moving the pursuer to Ward 2 they were subjecting her to a risk of injury. In that connection Miss Cherry reminded the court that the duty of care owed by employers is owed by them to each employee as an individual. Miss Cherry accepted that it was necessary for a pursuer to set out an objective risk of injury, but submitted that the averments of past problems taken along with an averment that an occupational health assessment carried out by the defenders on the pursuer had "endorsed her concerns" was sufficient to meet that test. Again, much the same arguments applied to the statutory case and these, so far as the pursuer was concerned, were conveniently summarised at page 18D-E of the Closed Record. It could, indeed, be argued that this was a case where the risk in question was in any event an obvious one.
[5] In my opinion Miss Cherry's arguments must prevail. It is perhaps unfortunate that the fault condescendence is framed in terms more appropriate to an accident at work rather than to the exacerbation of a medical condition already said to have be known to the defenders. However, when the case on Record is reduced to its "essence" I am satisfied that enough remains to go to proof before answer. That is the course which Miss Cherry urged me to take and the one which I will follow.