Scottish Court of Session Decisions

Weir v. CSC Forest Products [2002] ScotCS 253 (5 September 2002)

OUTER HOUSE, COURT OF SESSION
A3363/01	OPINION OF LORD CLARKE in the cause WILLIAM WEIR Pursuer; against CSC FOREST PRODUCTS LIMITED Defenders:   ________________

 

 

Pursuer: Allardice; Thompsons

Defender: Thomson; Simpson & Marwick, W.S.

5 September 2002

1. In this action the pursuer, who is a fireman, sues for damages in respect of injuries he alleges he sustained while carrying out fire-fighting duties at the defender's premises at Station Road, Cowie, Stirlingshire, on 20 May 1998. He pleads a case based on the Occupiers' Liability (Scotland) Act 1960, and a case based on breaches of the Workplace (Health, Safety and Welfare) Regulations 1992.
2. The matter came before me for discussion on the procedure roll, on the defenders' preliminary plea as to the relevancy and specification of the pursuer's averments. Counsel for the defenders' primary position, at the commencement of his submissions, was that the action should be dismissed as being wholly irrelevant. Ultimately, however, his position was that the case based on the 1992 Regulations was suitable for proof before answer, provided certain averments were deleted from the pursuer's pleadings.
3. The nature of the accident, which occurred to the pursuer, at the defenders' premises, as averred by him in Article 2 of Condescendence, is that as he was stepping over some pipes which ran along the floor of the premises "his foot went down into an uncovered pit of some 90 cm in depth causing him to fall forward". It is also averred by the pursuer, in Article 2 of Condescendence, that "no attempt had been made by the defenders to cover, guard or otherwise warn persons of the presence of said pit". Elsewhere in Article 2, the pursuer avers that the floor was covered in water from the ongoing fire-fighting operations and that "the said pit was filled with water from the fire-fighting operations that were taking place at the time of the accident". It is, furthermore, averred by the pursuer that "the fire was caused by the spontaneous combustion of large quantities of MDF sawdust that the defenders had allowed to accumulate at the roof level of said premises".
4. In Article 3 of Condescendence, the pursuer makes various averments to the effect that the defenders knew, or ought to have known, that there was an accumulation of large quantities of sawdust in their premises, which they ought to have known presented a fire hazard and that if the sawdust was ignited it would be likely that fire officers, such as the pursuer, would require to attend at the premises. The pursuer also avers that the defenders knew, or ought to have known, that "if they left said pit on the floor of the premises uncovered or unguarded that it posed an obvious and material risk to persons moving around said premises, including fire-fighters engaged in fire-fighting duties". In the foregoing circumstances the pursuer avers that the defenders had a duty not to allow a build-up of sawdust at the roof level and a duty not to leave the pit uncovered, in both of which duties, the pursuer avers the defenders failed.
5. Article 4 of Condescendence, in setting out the case based on the 1992 Regulations, contains averment that the breach of these Regulations arose from the presence of the pit which the pursuer avers meant that, in terms of the Regulations, the "workplace was therefore not maintained in an efficient state".
6. Counsel for the defenders, in the first place, submitted that the pursuer's averments regarding the outbreak of the fire were irrelevant, because the fire was not the cause of the alleged injuries to the pursuer. The alleged injuries were caused by his fall. The averments regarding the cause of the fire should, therefore, be deleted. He, furthermore, submitted that these averments were irrelevant because the injuries were not a reasonably foreseeable consequence of the fire. His next submission was that the pursuer's averments relating to the pit were lacking in specification, regarding the size, characteristics and location of the pit and, accordingly, there was no proper factual basis averred to support the case of fault set out in Article 3 of Condescendence. In what I understood to be a related point, counsel submitted that, in any event, the pursuer's averments regarding the pit were lacking in specification because of lack of notice of the nature of what was described as "the obvious and material risk" it posed. Article 3 should, accordingly, be deleted for that reason also. Counsel for the defenders also submitted that it was reasonably clear from the pursuer's averments in Article 2 that the pursuer was seeking to make out that the danger in question came from the presence of water on the floor and in the pit. Yet in Article 3 the pursuer did not make any reference to the defenders having any duties in respect of the presence of the water, far less any breach of any such duties. This was yet another reason for deleting Article 3 of Condescendence as being irrelevant.
7. The last attack made by counsel for the defenders, on the pursuer's case of fault, set out in Article 3 of Condescendence, was that it was irrelevant because it confused duties owed to employees, with duties owed to persons such as the pursuer.
8. As far as the pursuer's case, set out in Article 4 of Condescendence was concerned, counsel for the defenders initially contended that it was irrelevant because it failed to specify the hazard, falling under the defenders' responsibilities within the terms of the relevant Regulations.
9. At the very least, counsel for the defenders contended, the court should not admit to probation the averments in Article 2, page 6B to the effect "the fire was caused by the spontaneous combustion of large quantities of MDF sawdust that the defenders had allowed to accumulate at the roof level of said premises", together with the associated averments of fault in Article 3 of Condescendence to the effect:

"they knew or ought to have known that there was a build-up of MDF sawdust at the roof level in said premises. They knew or ought to have known that the said build-up of large quantities of said sawdust in the workplace was a patent fire hazard. They knew or ought to have known that if said sawdust ignited, as it in fact did, that the fire would be such that it would be likely to require the attendance of the fire brigade thereat. ... In these circumstances, it was their duty to take reasonable care not to allow said build-up of said dust at the roof level".

Those averments should come out because it had not been averred that the fire had caused the injuries, nor were the injuries in question a reasonably foreseeable result of the fire. This submission was made under reference to the cases of Crossley v Rawlinson (1981) 3 All E.R. 674, Baker v Hopkirk (1959) 1 WLR 966, Hyett v Great Western Railway Co. (1948) 1 K.B. 345 and Ogwo v Taylor (1988) 1 A.C. 431. In support of his submission that the purser had, in Article 3 of Condescendence, confused duties owed to employees, on the one hand, and duties owed to persons like the pursuer on the other, counsel referred me to the case Bermingham v Sher Bros. 1980 SC (HL) 67 where, Lord Fraser at page 72, said, in the context of the facts of that case, "It is therefore very unlikely that the duty of care owed by the occupier to workers is the same as that owed to firemen".

10. Under questioning from the court, in relation to the case averred in Article 4, counsel for the defenders did not seek to take his stance on the basis that Regulations could never support a case in favour of persons like the pursuer, who were not employees of the defenders. He informed me that there were conflicting sheriff court decisions on the scope of the Regulations, in this respect, but he was content to accept that, in principle, the Regulations might be prayed in aid by a person such as the pursuer. His attack on the Article 4 case was simply with regard to matters of specification.
11. In reply counsel for the pursuer reminded me, under reference to the dicta of their Lordships in the case of Miller v South of Scotland Electricity Board 1958 S.C. (H.L.) 20 that it is only rarely that a case of damages for personal injuries should be dismissed, without enquiry. The case of Ogwo had established that there was no principle which precluded professional firemen from recovering damages, from a person who by his negligent act, had started a fire, in respect of injuries received as a result of fighting the fire. The pursuer, in this case, was simply averring that the fire had been caused by a negligent accumulation by the defenders of the sawdust which was a fire hazard. That was a link in the causal chain leading to the accident to the pursuer. The averments regarding the water accumulation were not made in support of the pursuer's positive case of fault. They were, in part, a reply to averments of the defenders regarding contributory negligence. It was the pursuer's position that the depth of the pit was obscured by the presence of the water.
12. As far as the defenders' criticisms regarding the lack of specification in relation to the size, characteristics and location of the pit were concerned, it was noteworthy that the defenders did not take issue with these matters in their pleadings by, for example, putting on calls in relation to them. In any event, these were matters that would, or ought to have been, within the knowledge of the defenders themselves.
13. In reply counsel for the defenders altered his previous position somewhat. He accepted that the case of fault based on the breach of statutory regulations, in Article 4, was sufficient to allow the pursuer a proof before answer on that matter. He maintained, however, that the Article 3 case was irrelevant, firstly in respect of the averments of fault regarding the outbreak of the fire itself, and secondly because of the lack of sufficiently specific averments supporting the case regarding the unguarded pit. I had some difficulty in understanding how the defenders could accept that the Article 4 case was supported by sufficient specific averments to go to enquiry, whereas the Article 3 case regarding the unguarded pit did not. I have, in any event, reached the conclusion that since the defenders concede that a proof before answer is required in this case in relation to the Article 4 case, the proper course to follow is to allow a proof before answer allowing all averments and pleas to remain standing. While I see some force in the defenders' attack on the pursuer's case insofar as it seems, in Article 3, on one reading at least, to seek to set out a separate case of fault regarding the accumulations of the sawdust which does not, on the face of things, come home to linking that separate case with the injuries caused, I, nevertheless, consider that the factual averments regarding the cause of the fire, while they might not, standing alone, be instructive of a case of fault sounding in damages, can be seen as part of the relevant history of the accident and, indeed, as part of the causa sine qua non of that accident. Similarly the averments in relation to the accumulation of the water on the floor can, in my view, be seen as part of the factual description of the conditions at the locus of the accident and not irrelevant as such. I do not accept the defenders' attack on the pursuer's Article 3 case to the effect that it confuses duties owed to persons such as the pursuer, on the one hand, and to employees on the other. The case regarding the unguarded pit is pled under the Occupiers' Liability (Scotland) Act and that Act imposes duties on occupiers to prevent hazards on their premises which may cause injuries to persons on those premises whether they are employees or not. The dictum of Lord Fraser in the Bermingham case, cited above, has to be read and understood in the context of the facts and circumstances and the arguments in that case.
14. I am also not satisfied that a failure by the pursuer to aver more precisely the location of the pit and any other characteristics of it, other than its depth, makes the Article 3 case irrelevant. The defenders, as I have said, ultimately accepted that the averments regarding the unguarded pit are sufficiently specific for the purpose of an enquiry into the case averred in Article 4 of Condescendence. I can see no good reason for differentiating the position, in that respect, with regard to the Article 3 case and no basis for such differentiation was advanced by counsel for the defenders. I am, accordingly, not prepared to accede to the defenders' motion to make the deletions from the pursuer's pleadings which they sought. I shall allow a proof before answer on the pleadings as they presently stand.