Scottish Court of Session Decisions

8 November 2001

[1] Alexander Rae ("the deceased") fell to his death on 26 January 1997 as a result of the movement of the grid panel upon which he was working in the first defenders' premises at Longannett, Fife. The said panel was at a height of about 20 metres from the concrete floor. The deceased was an employee of the second defenders. The second defenders were the sub-contractors to Mitsui Babcock Limited ("Babcock") who had been engaged by the first defenders to carry out work in relation to the installation of a new gas burning plant at the power station. The second defenders were Babcock's scaffolding sub-contractors in relation to certain works within Babcock's contract.

[2] The pursuers seek reparation from the first and second defenders for the damage sustained by them as a result of the deceased's death. The third parties were convened into the process by the first defenders in April 2000 (over three years after the death) and the pursuers have not attempted to raise any action against Babcock who were in overall change of the work.

[3] The pursuers plead only statutory cases against both defenders in terms of the Workplace (Health Safety and Welfare) Regulations 1992 and the Construction (Health Safety and Welfare) Regulations 1996. This opinion relates only to the action between the pursuer and the first and second defenders. The first defenders contended that there were no sufficient relevant averments to make a case against them under the 1996 Regulations and the second defenders contended that there were no relevant averments to entitle the pursuer to bring a case against them under the 1992 Regulations. The first defenders accepted that there could be duties incumbent upon them under the 1992 Regulations and the second defenders accepted that there could be duties incumbent upon them under the 1996 Regulations and both defenders accepted that a proof before answer would be appropriate in relation to the applicability of the accepted regulations against them.

[4] The pursuers' averments are not easy to summarise. Condescendence 2 extends to eight pages of the closed record and has many diverse strands. Elegance of pleading might have indicated that separate condescendences dealing with the locus, the contracts and the accident would have been of assistance to the Court.

[5] The arguments for the defenders were each directed towards the applicability of the two sets of regulations. The paragraphs which impose duties under the said regulations are as follows.

1. 1992 Regulations

2. 1996 Regulations

[6] The applicability of the regulations, it is apparent, depends upon the control exercised by each defender in relation to the workplace and in relation to the way in which work is carried out. The averments upon which the pursuer relies against the first defenders having any duty under the 1996 Regulations were in substance added by minute of amendment, allowed on the morning of the debate. They are, in essence, that the first defenders employed a safety officer. It was averred that his remit included the overseeing the safety of the work of contractors on the site and liaising with the contractors' own safety officers; that contractors were required by the first defenders to give "tool box talks" on site and that work orders or permits to work were issued by the first defenders to contractors on a daily basis giving an indication of the type of work to be carried out. The work to which the work orders or permits to work related were discussed, it is averred, between a senior employee of the first defenders and "the contractor". In this context the "contractor" could only be Babcock. The first defenders, it is said, were aware of the sub-contract with the second defenders and had issued them with a permit to work. It was argued by the first defenders and I agree, that there are no sufficient averments to indicate that the first defenders had control over the way in which the work was carried out. The first defenders' position was no different from any other person who contracts with a firm to have work done and there is no averment sufficient to indicate that the first defenders played any part in the way in which the work was carried out. In any event, it was not they who had control over that matter but either Babcock or the second defenders. It is also to be noted that in terms of the 1996 Regulations the word used is "control" whereas in the 1992 Regulations the words used are "control to any extent". On the averments the first defenders were not in my view in control of the way in which the work was carried out and accordingly I will refuse to remit to probation the case against the first defenders so far as brought under the 1996 Regulations.

[7] The position of the second defenders in regard to the 1992 Regulations is not as simple or straightforward. The second defenders' attack was that there were no specific averments that the second defenders had control of the workplace so far as it concerned the deceased. The deceased's workplace, it was said, at the time when the accident occurred was the grid 4. That was not under the control of the second defenders since the pursuer specifically averred that removal of the grid 4 was no part of the second defenders' contract with Babcock.

[8] The pursuer avers that the second defenders were requested to bring men into work on the scaffolding sub-contract on 25 January and their task was to be erecting scaffolding around certain columns. Some work had been done. However Babcock told the second defenders that they would arrange for their own men, i.e. Babcock's men to lift the panel which formed part of the work to be done. It was necessary for those panels to be lifted in order that the scaffolding work could take place. The second defenders had erected a barrier consisting of a toolboard and handrail around the area of gridded floor where the work was to be carried out. The pursuer argued that that was sufficient to indicate that the second defenders had control of the whole area, at least to some extent, and within that area was the place at which the pursuer was to be working. I consider that the pursuer has averred sufficient to bring the second defenders within the ambit of the 1992 Regulations. It is certainly maintainable that the workplace was in and around the gridded area and work had been done by the second defenders there on 25 January. For them to do work there they must, to some extent, have had control of the place, although it may well be that various others also had control of that place including the first defenders and Babcock.

[9] Accordingly I shall decline to accede to the second defenders' motion to exclude the case under the 1996 Regulations against them from probation.

[10] This decision does not depend upon any discussion of the somewhat vague consequences of an ambiguous averment made by the pursuer at 14E reading "accordingly Babcock's site manager agreed that the deceased and his squad should uplift said panels". It was upon that somewhat odd averment that a debate took place between the third party and the first defenders as a result of which the first defenders sought leave to amend.

[11] I should record the cases of Murray v Edinburgh District Council 1981 S.L.T. 253 and an unreported decision of Lord Eassie in Hawkins v Northern Marine Management Ltd. (23.9.97) were cited to me. Both these cases were cited for the purpose of the views expressed therein about control although I was somewhat at a loss to understand the relevance of Lord Eassie's opinion which had to do with who could be considered to be in charge of a ship in the harbour of Peterhead. In their case the first defenders were the employers of the pursuer and the master of the vessel, the second defenders were the operator of the vessel, who had entered into an operational agreement with the third party. Proof before answer was allowed on what control the second defender exercised, his Lordship taking the view that he could not say that the case against the second defenders would necessarily fail. That case concerned wholly different circumstances and regulations. It depended entirely on its own particular facts, contained no general principle of law and for that reason it is unsurprising that it has not been reported.

[12] Control, to some extent, of premises and control simpliciter of the way in which work is carried out are two entirely different concepts.

[13] On the whole matter therefore I will refuse to allow to go to probation the pursuers' case against the first defenders as based on the 1996 Regulations since it will necessarily fail and quoad ultra allow a proof before answer between the pursuer and the first and second defenders.