Scottish Court of Session Decisions

This appeal arises in the course of an action which is being prosecuted by the present appellant in the Sheriff Court in Aberdeen and which seeks reparation for injury suffered by him in an accident which occurred while he was working on a drilling rig in the North Sea on 22 August 1995.

There are currently three defending parties (the fourth defenders having been assoilzied, by consent, on 6 October 1997), all of whom are respondents to the appeal. The first defenders are averred and admitted to be the pursuer's employers; the second defenders are averred by the pursuer to have been the operators of the rig; and the third defenders are averred by the pursuer to have owned the rig. The third defenders admit that ownership. The first defenders and the second defenders are jointly represented in the proceedings and tender joint answers. It may be commented that in those answers they say that the identities of the operators and the owners of the rig are "not known and not admitted", albeit that they make other averments and admissions difficult to reconcile with that averment.

The pursuer avers that his employment with the first defenders was as a roustabout and that his employers had hired his services to the second defenders to work on the rig. He admits that he was required to work under their direction and that his employers were essentially an employment agency providing labour to work offshore. The pursuer further avers that on the date in question

The circumstances of the particular activity in the course of which the pursuer was admittedly injured are averred by the pursuer in Article 3 of the Condescendence in these terms:

Against that background of averment the pursuer makes a case of fault at common law against his employers (the first defenders). He avers that they owed him a duty to take reasonable care for his safety while working in the course of his employment. Put shortly, he further avers that, among other duties, it was the first defenders' duty to take reasonable care to acquaint themselves with the conditions in which their employees, such as he, were expected to work; to acquaint themselves with the equipment with which employees such as he were expected to work; and to take reasonable care to devise, institute and maintain a safe system of work for the particular activity in question. He avers that they failed in those duties.

As against both the second defenders and the third defenders the pursuer relies upon the provisions of the Offshore Installations (Operational Safety, Health and Welfare) Regulations 1976, and in particular Regulation 5(1) and Regulation 10 which are respectively in these terms:

The defenders sought to debate certain aspects of the relevancy of the pleadings for the pursuer and having heard that debate the sheriff upheld the defence submissions in three principal respects. In summary, first, he deleted the whole of the averments of fault directed against the first defenders (the employers) and dismissed the action so far as laid against them. Secondly, he removed from the cases against the second and the third defenders respectively the averments invoking Regulation 5(1). And thirdly, he withheld from probation the averments contained in Article 6 of the Condescendence of the initial writ. For the rest he allowed a proof before answer respecting the remaining case against the second and third defenders - that is to say, the case based on Regulation 10 of the 1976 Regulations. The present appeal is taken by the pursuer against the interlocutor whereby the sheriff gave formal effect to the decision which we have just summarised.

It is convenient to deal at the outset with the last branch of the sheriff's decision - the deletion of Article 6, which contained averments to the effect that the second defenders had pled guilty to a contravention of sections 3(1) and 33(1) of the Health and Safety at Work etc. Act 1974, as applied by the Health and Safety at Work etc Act 1974 (Application outside Great Britain) Order 1995. In the course of the discussion before us counsel for the second respondents intimated without ado that he could not oppose the appeal as respects that branch of the decision of the sheriff, the averments contained in Article 6 being made for their evidential value in terms of the admission of guilt involved in the plea to the summary complaint, and not for the purposes of claiming any civil responsibility arising from that contravention.

We advert now to the first branch of the sheriff's decision - the dismissal of the case against the pursuer's employers. Counsel for the pursuer and appellant submitted that the sheriff was wrong not to allow a proof before answer on the case against the employers. His submission was that the duties of an employer to take reasonable care for the safety of his employees, including the duty to devise, institute and maintain safe working systems, were regarded as "non-delegable" and an employer could not escape those responsibilities merely because the employee had been hired to work on a project of someone else. The primary, "non-delegable" duty being on the employer it would be for an employer to show that there were particular facts or circumstances which demonstrated that, in the circumstances of the employee working on that other project, he had done all that he could reasonably do to perform those duties. Counsel for the pursuer referred to a tract of authority on the "non-delegable" nature of the employers' duty, namely Bain v. Fife Coal Company Limited 1935 S.C. 681; Wilsons and Clyde Coal Company v. English 1938 AC 57 (but also reported as English v. Wilsons and Clyde Coal Company 1937 S.C. (H.L.) 46); Davie v. New Merton Board Mills Limited [1959] A.C. 604 and culminating in the decision of the House of Lords in McDermid v. Nash Dredging Limited [1987] AC 906. Counsel for the pursuer and appellant further referred us to the Outer House decision in Crombie v. McDermott Scotland Limited 1996 S.L.T. 1238; to Johnson v. Coventry Churchill International Ltd [1992] 3 All E.R. 14 and to Morris v. Breaveglen Ltd [1993] I.C.R. 766. Counsel for the pursuer and appellant then took us to Cook v. Square D Limited [1992] I.C.R. 262 which he said might be distinguished on the basis that it involved an accident resulting from a transitory defect in the state of the premises of a third party in which the plaintiff had been employed to carry out work. It was not a case in which there was an allegation of any failure to provide a safe system of work. The present case was not concerned with the state of the premises on which the pursuer was engaged in the course of his employment. It was concerned with what he had to do. At the very least the sheriff should not have dismissed the action so far as directed against the employers without an enquiry in to the particular facts.

In his response to this branch of the argument counsel for the employers accepted that there was a general duty incumbent upon an employer which could not be passed to others. However, said counsel, the scope or extent of that duty might be circumscribed or restricted by the particular circumstances of the case. He referred to McQuilter v. Gillander 1951 S.L.T. (Notes) 74. Under reference to the cases of Cook v. Square D Limited; Crombie v. McDermott Scotland Limited, Johnson v. Coventry Churchill International Ltd and Morris v. Breaveglen Ltd, counsel for the first defenders submitted that, where an employee is working away from his employers' premises, responsibility for injury suffered in the course of that activity was dependent on there being averment and proof on behalf of the injured party that the employers had actual knowledge, control, or supervision of the activity in issue. In the present case, the employers were not averred to be directing or controlling the particular operation being conducted on the rig on the date in question. Therefore, said counsel, the employers could not be liable for anything that went wrong in the course of an operation admitted by the pursuer not to have been subject to that immediate control.

The argument thus presented to us by counsel for the first defenders - which in large measure replicates the argument presented to the sheriff - appears in its essentials to be that, since it is not positively averred by the pursuer that the first defenders had actual direction and control of the details of this particular operation on the rig, they must therefore be absolved from all responsibility for what happened.

In light of the whole argument presented to us we are not persuaded that it was appropriate for the sheriff to have disposed of the claim against the employers on that basis and without an enquiry into the particular facts as they might duly emerge in the evidence.

The thrust of the submissions which appear to have found favour with the sheriff was that there was no averment by the pursuer that his employers knew of the actual circumstances of the accident or could have foreseen those particular circumstances arising and there was no averment by the pursuer that the employers had anyone present on the rig in a supervisory capacity. The contention that the absence of de facto knowledge, supervision and control of the immediate events necessarily results in the absolution of responsibility on the part of the employers is one which is difficult to reconcile with the authorities to which we were referred, including, in particular, McDermid v. Nash Dredging. In that case the plaintiff suffered injury while working with, and subject to the direction of, an employee of a third party with whom he had been hired to work. In his speech (at 919B) Lord Brandon of Oakbrook said this, respecting the employers' duty of care:

It is thus evident to us that the core duty of the employer to take reasonable care for his employees' safety during the course of his working activity is not readily elided by the fact that the employee may have been sent to work with others in a project or operation over which the employer has no actual immediate control. In the case of Cook v. Square D Limited, whereon the sheriff appears to have placed some reliance, the Court of Appeal sought to distinguish the case before them on the basis of its facts compared with their particular view of the facts in McDermid v. Nash Dredging. As counsel for the appellant pointed out, the former case was concerned with a transitory deficiency in the state of the premises of a third party rather than the conduct of the particular work in question. Whether there may be factual grounds for drawing a distinction between McDermid v. Nash Dredging and the present case, and also the issues relating to the precise scope of the employers' duties in the circumstances of this case, are matters which in our view should properly await the establishment of the whole factual circumstances surrounding the accident to the pursuer and his employment on the rig.

The other question for our consideration concerns the sheriff's decision to exclude from probation the averments relating to Regulation 5(1) of the 1976 Regulations. Counsel for the respondents, particularly Mr. Clancy for the third defenders, whose argument was effectively adopted in advance by counsel for the second defenders, contended that the case was really about using two items of incompatible equipment. That being so, it could not found any breach of the Regulation which was related solely to lack of maintenance. The duty to maintain comprised, in his submission, - "the repair or replacement of defective equipment or components and work required to prevent equipment from predictably falling into a defective state". Mr. Clancy further founded on the fact that it was not averred that the reamer was supplied along with the pin, or had previously been used in conjunction with the particular pin in question.

In relation to this branch of the argument counsel were at times of varying views as to the extent of the assistance, if any, to be derived from Bruce v. Ben Odeco Limited 1996 S.L.T. 1315. We were also taken to Hamilton v. N.C.B. 1960 S.C. (H.L.) 1.

It is, in our view, undesirable to endeavour to decide upon the competing contentions respecting this branch of the case in advance of the enquiry which it was agreed before both us and the sheriff would be required in relation to the remainder of the case against the second and the third defenders. Our impression was that, while generally presented as an argument concerning the proper interpretation of the Regulation, the discussion proceeded largely on the basis of differing constructions of the terms of the pleadings, particularly in so far as relating to the original and intended relationship of the reamer and the pin. We are conscious that the pursuer makes averments to the effect that the reamer was not maintained in its initial state and by inference was intended to meet a particular pin. It is averred that the reamer was thereafter altered. That alteration rendered it unfit to marry with the selected pin. The contention of the pursuer is that it was thus not maintained in a state suitable for it to meet the intended pin. There is in our view a penumbra of uncertainty concerning the practical import of the parties' averments in those respects. In these circumstances we are of the opinion that a decision on the relevancy of the pursuer's reliance on Regulation 5(1) should await the factual enquiry into the circumstances of the accident - an enquiry which will by concession of both the second and third defenders need to take place on any view.

For all of these reasons we have decided to recall the interlocutor of the sheriff of 28 July 1998 and to allow a proof before answer on the pleadings as a whole.