Scottish Court of Session Decisions

[1] This case called before me on procedure roll in respect of two applications on behalf of the defenders, firstly for dismissal of the action on the grounds of relevancy and lack of specification and second, in relation to an application for a preliminary proof in relation to time bar. I accepted the defenders' position on the latter point and ordered a preliminary proof in respect of their second plea-in-law and the pursuer's third plea-in-law. I understand that the pursuer acquiesces in that order.

[2] The pursuer's averments disclose that he was working in the laundry of a hospital operated by the defenders loading a washing machine which had large doors which he avers were heavy and difficult to operate. He goes on: "In the course of attempting to move one of the doors the pursuer was pulling said door when suddenly said door jammed, causing the pursuer to jerk his back".

[3] In the averments of loss in condescendence 4 the pursuer makes various averments about suffering pain and goes on to claim damages in respect of that and subsequent psychological injury.

[4] The defenders' position in relation to relevancy was that the pursuer had not given sufficient specification or indeed made any attempt at all to aver what risk the defenders should have foreseen from the apparent tendency of the doors to jam that would be liable to cause injury. There was also a complaint that the pursuer had inadequately averred the mechanics of his injury to the extent that there was no proper base for asserting a traumatic injury leading to psychological damage.

[5] The pursuer's averments are sparse. I do not consider that they are insufficient to allow inquiry into the issue of whether or not given the apparent tendency of the doors to jam there was a risk that such traumatic movement might cause an injury when the pursuer in general terms offers to prove prior knowledge of the problem in the mind of the employer. Nor do I consider it essential, although it would have been desirable, for the pursuer to aver the medical diagnosis that is associated with the pain that he apparently suffered immediately after what he alleges to be the accident.

[6] For these simple reasons I do not consider that these pleadings are irrelevant against the test that the pursuer is bound to fail. I accordingly would have ordered a proof before answer apart from the fact that I have ordered a preliminary proof into the separate question of time bar.