Scottish Court of Session Decisions

Dunn v. Solaglass Limited & Anor [2002] ScotCS 149 (24th May, 2002)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LORD CARLOWAY in the cause IAN DUNN Pursuer; against (1) SOLAGLASS LTD and (2) TIBBETT & BRITTEN UK PLC Defenders:   ________________

 

 

Pursuer: Campbell QC; Thompsons

First Defenders: Bowen; Simpson & Marwick, W.S.,

Second Defenders : Hofford; HBM Sayers

24 May 2002

1. The Pleadings

(a) THE PURSUER'S CASE

The pursuer avers that he was involved in an accident at about 5.45 a.m. on 16 September 1998 while employed as a dispatch worker with the first defenders at their premises in Bellshill. His averments on the merits are that he was in some way involved with another employee, namely Pat Kennedy, in the loading of a Volvo Heavy Goods Vehicle. The Volvo had a folding tarpaulin roof running over a metal frame which was opened and closed using a rope. His short averments of fact on the merits are :

"said Kennedy proceed (sic) to walk towards the front of said vehicle pulling said rope. The said roof did not fold back but fell down on to the pursuer."

The pursuer then narrates that the Volvo had previously been owned and operated by the first defenders but, several months prior to the accident, the first defenders had "contracted" with the second defenders to carry out the maintenance and servicing of their vehicles. The first defenders' drivers, but not loaders such as the pursuer, were transferred into the employment of the second defenders. One of the first defenders' staff, a Julie Cleary, was seconded to the second defenders and put in charge of their operations at the premises. She was based in a Portacabin in the premises. The folding roof had been reported as faulty to both defenders. The drivers had done so to the second defenders on the second defenders' vehicle defect sheets but nothing had been done about these. The pursuer and his co-employees had complained to the first defenders' chargehand, who had passed them on to Ms. Cleary. The pursuer was unaware of and did not condescend upon any precise contractual arrangements regarding the repair of vehicles entered into by the defenders.

On the strength of his averments of fact, the pursuer founds solely upon statutory cases against the defenders. The first is under the Provision and Use of Work Equipment Regulations 1992 (SI 1992 No. 2932). It is prefaced by averments that the defenders :

"were each the providers of, or in control to a material extent of the provision and use of, the vehicle, including the roof mechanism. Each of them had control, to a material extent, of the workplace which the vehicle comprised"

The obligations under these Regulations fall upon, amongst others: (i) employers in respect of work equipment provided for use or used by any of their employees who are at work; and (ii) any person who has control, to any extent, of a place of work in respect of work equipment used in that place (see regulation 4). The pursuer founds upon the obligations upon such persons that they shall ensure that :

"5 ....work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided

6 ...work equipment is maintained in an efficient state, in efficient working order and in good repair.

12(1) ...the exposure of a person using work equipment to any risk to his health and safety from any hazard specified in paragraph (3) is...prevented...

(3) The hazards referred to in paragraph (1) are -

(a) any article ...falling...from work equipment"

"Work equipment" is defined (regulation 2) as meaning :

"any machinery, appliance, apparatus or tool and any assembly of components which, in order to achieve a common end, are arranged and controlled so that they function as a whole."

The averments which develop from the statutory provisions suggest that the pleader is not at all certain whether he is maintaining that it is the roof, its mechanism, the vehicle or a combination of all three that constitutes the work equipment. Alternatively, he is deliberately refraining from defining it. These averments are that:

"The roof was not so adapted as to be suitable for the purpose for which it was provided. The roof mechanism was not maintained in an efficient state ...No measures were taken such as to prevent the fall from the vehicle of the roof thereof."

On the other hand he is pinning his colours well and truly to the mast in averring that it was the vehicle which was the workplace and in that regard may even be maintaining in part that the vehicle is both the workplace and the work equipment!

The second statutory case is under the Workplace (Health, Safety and Welfare) Regulations 1992 (SI 1992 No. 3004) which impose obligations broadly on employers having "control" of a workplace in respect of their own employees and on others having control "to any extent" of a workplace in respect of that workplace and matters within his control (regulation 4). The pursuer relies on regulation 13 which provides :

"(1)... suitable and effective measures shall be taken to prevent any event specified in paragraph (3)...

(3) The events specified in this paragraph are -...

(b) any person being struck by a falling object likely to cause personal injury."

I should also pause to observe that the regulations apply to "every workplace" (regulation 3) and not to events occurring outside one.

(b) THE DEFENDERS' CASES

The first defenders admit much of what the pursuer avers in relation to the practical workings on the premises. They then aver that they had no control over the maintenance of the vehicles, which were supplied and maintained by the second defenders. The first defenders say that the second defenders had purported to repair the roof on the day before the accident. They make reference to an Agreement for Transport and Distribution Services dated 27 April 1994 and an Amending Agreement dated 20 December 1995 and incorporate these Agreements into the pleadings. These documents were first lodged in process on the morning of the Procedure Roll diet and seem to constitute an agreement between "Solaglas Limited" and an entity called "Tibbett & Britten Limited" (T & B). The first defenders aver that these documents constituted a contract between the defenders which governed their relationship at the time of the accident. The contract essentially transferred Solaglas' transport operations to T & B. Clauses 8 and 9 of the Agreement are not specifically relied upon in the pleadings but seem to impose an obligation on T & B to comply with certain health and safety standards and to obtain insurance in respect of personal injury claims. Under a heading labelled "10. Liability for loss or damage", again not specifically referred to on record but this time founded upon by the first defenders in argument, having stated that T & B are liable for losses to stock in the vehicles or in transit, the Agreement continues :

"10.2 Notwithstanding any other term of this Agreement, neither party shall be liable to the other for loss of profits or other consequential loss howsoever caused except to the extent that such loss results in death or personal injury caused by the negligence of the party in breach or its servants or agents."

In the Amending Agreement, under a heading "5. Plant and Equipment", T & B were authorised to acquire other vehicles to be used to perform the contract under certain terms and conditions including :

"5.3 ...T & B will be responsible for repairing or replacing at its own expense any of the [vehicles]...which are lost or damaged in circumstances and to the extent that T & B would normally receive indemnity from insurers whether or not such insurance has in fact been effected by T & B.

5.4 T & B warrants that so far as reasonably practicable the [vehicles] will at all times be properly maintained cared for and kept in a roadworthy condition and will...indemnify Solaglas in respect of any and all costs incurred by Solaglas in repairing or making roadworthy any [vehicle] where this is required as a result of the negligence of T & B, its employees...prior to the delivery of such [vehicles] to Solaglas."

The position of the first defenders in relation to their having transferred the maintenance of their vehicles to the second defenders is not to introduce a case shifting fault solely onto the second defenders. Rather they simply plead apportionment of damages between themselves and the second defenders in the event of their being held liable to the pursuer and go on to found upon the contractual terms. They do this by claiming that any defect in the Volvo would have constituted a breach of clause 5.4 (plea-in-law 5) and therefore :

"6. Separatim, esto the pursuer has pursuer has suffered loss, injury and damage through the statutory negligence (sic) on the part of the first defenders (which is denied) the first defenders are entitled to be indemnified by the second defenders in terms of the contract condescended upon."

The second defenders' response to the detail of the first defenders' averments against them is generally one of bald denial but they too plead apportionment.

2. Submissions

(a) THE FIRST DEFENDERS

(i) Against the Pursuer's Case

The first defenders moved the Court to sustain their general relevancy plea against the pursuer and dismiss the cause. In support of that plea, the first defenders developed an argument, contained largely in the first paragraph of their Note of Argument, that the pursuer's account of the accident lacked the requisite degree of specification in that it did not give the first defenders fair notice of the factual case against them. In the Note, this seemed to be in connection with whether the whole of the roof or only part of it had struck the pursuer but this was extended into a criticism that the pursuer had not said where he had been when he was struck.

The next contention was that the pursuer's case under the Provision and Use of Work Equipment Regulations was irrelevant (no criticism was made of the case under the Workplace (Health, Safety and Welfare) Regulations). The argument was that, standing the definition, it was the roof that was the work equipment and therefore the pursuer could not found upon regulation 12(3)(a) as that applied to articles falling from work equipment and nothing had fallen from the roof. If anything, it was said, the pursuer ought to be founding upon regulation 12(3)(b) which relates to the "rupture or disintegration of parts of work equipment".

I should record here that the first defenders did not press any argument based upon paragraph 2 of the Note, given that the pursuer proposed an amendment whereby "plate" at page 14 A-B of the Closed Record was to be deleted and "roof" substituted. The first defenders did not argue the point raised in paragraph 4. In relation to paragraph 5, it was agreed that the pursuer's fourth plea-in-law should be repelled, the first defenders having proposed an amendment whereby "and not liable to make reparation to the pursuer" at 16 A-B were deleted.

(ii) Against the Second Defenders' Case

The first defenders' complaint against the second defenders, contained in the sixth and final paragraph of the Note, was that their responses to the first defenders' case based upon the contractual terms were skeleton. In order to give practical effect to that criticism, they had a preliminary plea which sought decree in terms of their fifth and sixth pleas. In effect, they asked the Court to declare that, if the pursuer had been injured in the manner he claimed, it was the second defenders who would be liable in terms of the contract. The terms founded upon were clauses 10.2, 5.3 and 5.4 which, it was said, amounted to an indemnity in favour of the first defenders. Reference was made to Hawkins v Northern Marine Management 1998 SLT 1107 OH (Lord Osborne at 111 referring to Lord Fraser in Smith v UMB Chrysler (Scotland) 1978 SC (HL) 1 at 11-12) and to a passage in Lord Hoffman's speech in Investors Compensation Scheme v West Bromwich Building Society [1998] 1 All ER 98 where (at 115) he made the interesting observation that: "The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words". The first defenders maintained that the second defenders' averments were purely skeletal and maintained that in these circumstances, the second defenders should not be permitted to argue any points regarding the relevancy of these averments after a proof but solely whether in fact the contractual terms had been breached (i.e.the facts as averred by the first defenders quoad the existence contractual terms should be taken as proved and the first defenders' argument on their import sustained).

(b) THE SECOND DEFENDERS

(i) Against the Pursuer's Case

The second defenders moved that their first plea-in-law, directed at the relevancy of the pursuer's case, be sustained and the action dismissed against them. Under reference to the first paragraph of their Note of Argument, they too criticised the failure of the pursuer to say where he was when the accident occurred. However, the central point of their argument (paragraphs 2 and 3 of the Note) focused upon the case under both sets of Regulations and the pursuer maintaining that the Volvo was both the workplace and the equipment over which it was averred the second defenders exercised control. The second defenders did not employ the pursuer and it was therefore incumbent upon the pursuer to specify the nature of their alleged control of the Volvo. They had not done so. The pursuer, it was argued, relied primarily on the contract to establish control by the second defenders but the contract, as it was referred to by the first defenders, was one with T & B and not, ex facie, the second defenders. The second defenders did not argue the point in paragraph 4 of their Note.

(ii) Against the First Defenders' Case

The second defenders also moved that their second plea-in-law, directed towards the first defenders' case against them based on indemnity, ought to be sustained and the averments of fact in that regard excluded from probation. In response to the first defenders' submissions against them, the second defenders maintained that a bald denial was an appropriate response where they denied, as they did, that the contract produced (apparently by the second defenders) did not apply to them. In so far as reliance was placed on the contract in the pleadings, no specific reference had been made to clause 10.2. Only clause 5.4 was relied on but it did not appear to constitute an indemnity. However, the second defenders accepted that if it was wide enough to do so then the appropriate course was a proof before answer.

(c) THE PURSUER

(i) Against the First Defenders' Case

The pursuer moved for a proof before answer. There was sufficient specification of the accident. On the question of the failure to specify where the pursuer was, it was submitted that it did not matter where the pursuer was provided

that the accident had been caused by a breach of the Regulations. The pursuer could still succeed even if he had not been in the workplace (e.g. standing outside of the Volvo). However, no point of this nature had been taken in either of the Notes of Argument.

The first defenders, as well as the second defenders, had received complaints about the state of the Volvo. Their way of dealing with them was to pass them to the second defenders but it was clear that both defenders were working "hand in glove" with each other as regards the use of the vehicles and both exercised control over them. The case was also correctly pled under regulation 12(3)(a) as whether the roof was a separate part of the work equipment or not, it could still be said to be an article falling from work equipment (e.g. the rest of the Volvo).

(ii) Against the Second Defenders' Case

The pursuer said that he was not relying on the terms of any contract to demonstrate control. He was saying that there had been repeated problems with the roof and these had been reported to the second defenders on their vehicle defect forms. It would appear that they were the parties having the responsibility to repair any defects. They were thus in control of the state of the vehicles, including the Volvo, and that was sufficient for the purpose of the regulations.

3. Decision

(a) THE PURSUER'S CASE AGAINST THE DEFENDERS

The pursuer sets out the facts of his accident in a sufficiently specific manner so as to give the defenders fair notice of what he intends to prove. He has given the date and time, where he was working in general terms (i.e. somewhere in the vicinity of the Volvo), what he was doing at the time, who was with him and what happened to him. It is true that he has not said whether the whole or part of the roof became detached but he may not know this and I do not consider that it impairs the relevancy of his case. Of more significance, the pursuer does not state where precisely he was at the time the roof fell upon him and, in particular, whether he was inside or outside the Volvo. This is perhaps regrettable because I do think that ultimately this could, on the current pleadings, be an important point in relation to the liability of the different defenders under the separate statutory cases. This is because I do not consider that the various obligations under these regulations always and necessarily cover events occurring to a person outwith a workplace. Although the situation under the Provision and Use of Work Equipment Regulations will differ in certain respects especially in the case of the employer, the Workplace (Health, Safety and Welfare) Regulations do appear to apply to events in "workplaces". However, this point is not of the essence of the defenders' complaint and it was not argued that this failure per se rendered a particular statutory case irrelevant. Rather, the complaint was directed towards fair notice of the facts of the accident. I do not consider that there is any substance in such a point. Defenders are, of course, capable of carrying out their own investigations into the facts of an accident and the pursuer has provided them with sufficient notice of the circumstances of his case to enable them to do so and to respond appropriately.

In relation to the case under the Provision and Use of Work Equipment Regulations, the pursuer's failure to specify just what he maintains is the work equipment may again be regrettable but I do not consider that it renders his case under regulation 12(1) and (3)(a) irrelevant. The definition of "work equipment" is such that it might be taken to apply to a complete vehicle (with or without a roof) or separate parts of its mechanism, including that designed to permit its adjustment or removal. It might also apply to the "roof" itself as an apparatus. One approach is that since it is the roof that is the falling article, therefore the work equipment must be the rest of the Volvo from which it has fallen. However, I do not think that that is the only approach. In particular, if the Volvo (including the roof) is the work equipment, I do not think that the roof is excluded from being classified as an article falling merely because it originally formed an integral part of the equipment. In such circumstances, I consider that, despite its deficiencies, the case under these Regulations is relevantly pled.

So far as the sufficiency of the averments of control in relation to both sets of Regulations is concerned, I consider that the pursuer has set out a relevant case against the second defenders in relation to their control of the Volvo, its roof and mechanisms. Contrary to the pursuer's submission, the basis of this does appear to be whatever contractual relationship happened to exist between the defenders. The pursuer does not know and need not know the detail of that relationship. He is able to plead that the responsibility for repairing reported defects in the vehicles rested as a matter of fact with the second defenders, whose reporting and repairing system appeared to be in force. They had that much of a control over the vehicles. They also seemed to have a presence on site in the form of the seconded employee Ms. Cleary. Since the level of control appears to be only "to any extent" in respect of both sets of Regulations, the pursuer has averred enough to merit an enquiry on this aspect of the case also. In these circumstances a proof before answer is appropriate in respect of the pursuer's cases against each defender.

(b) THE DEFENDERS' CASES INTER SE

Since I have determined that the pursuer has a relevant case against both defenders and each defender has a plea of apportionment against the other in terms of the Law Reform (Miscellaneous Provisions) Act 1940, the case ought to proceed to a proof before answer against both defenders at least on that basis. The first defenders' case against the second defenders based upon contract is, however, not easy to follow as currently pled. During the debate, clause 10.2 was founded upon but it is difficult to regard this provision as imposing any obligation on either party. Rather, this clause purports to be an exclusion clause in respect of certain consequential losses, including loss of profits, apparently as an adjunct to a provision dealing with losses of or damage to stock in the vehicles or in transit. The reference to personal injury to servants appears as an exception to the general provision concerning loss and damage and, as such, I am at a loss to see what it has to do with the present case.

The particular clause founded upon on record is 5.4. It certainly commences with a general provision imposing an obligation on T & B to maintain the vehicles. But this is in the context of an obligation due by T & B to Solaglas to keep the vehicles roadworthy. It is because of this obligation that the clause goes on to provide that T & B will indemnify Solaglas in respect of any costs incurred by them in having to repair the vehicles in order to make them roadworthy. It is not, ex facie, concerned with indemnification in respect of third party liabilities including injuries to employees caused by vehicle defects. I am generally of the view that the clauses specifically founded upon by the first defenders in their argument and pleadings against the second defenders are not directly in point. Quantum valeat, I would have thought that clause 8 would have rather more of a bearing on the case. However, should the contract turn out to be applicable, as the first defenders maintain, its terms and how they operated in practical terms may well be of relevance on the question of apportionment. Furthermore, despite my comments on the clauses specifically referred to by the first defenders, within the contract (and it is incorporated as a whole) there are obligations imposed upon T & B especially in respect of health and safety which may ultimately provide the first defenders with a valid contractual claim in the nature of an indemnity, if that word is not looked upon in too technical a sense, against the second defenders. To that extent I regard the averments incorporating the contract as potentially relevant to support some form of indemnity which might underpin the first defenders' fifth and sixth pleas-in-law. I do not therefore consider that these averments should be excluded from probation or the relative pleas-in-law repelled on grounds of irrelevancy. The second defenders meet the first defenders' case with a bald denial because, it is said, the contract was not applicable. That is an appropriate response if (but perhaps only if) that is the true factual position. In that context, I cannot regard the second defenders' answers as inappropriately skeletal. In all these circumstances, I am of the view that I should leave all the contractual averments and relative pleas-in-law standing and allow a proof before answer on this part of the case also.

I will accordingly: (i) allow the closed record to be amended by deleting "place" at page 14 A-B and substituting "roof" therefore and deleting "and are not liable to make reparation to the pursuer" at 16 A-B; (ii) of consent repel the pursuer's fourth plea-in-law; and (iii) quoad ultra allow a proof before answer.