Scottish Court of Session Decisions

Cronk v. Morrison Construction Ltd & Anor [2003] ScotCS 121 (25 April 2003)

OUTER HOUSE, COURT OF SESSION
A756/96	OPINION OF T.G. COUTTS, Q.C. (Sitting as a Temporary Judge) in the cause MARTIN CRONK Pursuer; against MORRISON CONSTRUCTION LTD and ANOTHER Defenders:   ________________

 

Pursuer: Smart; Biggart Baillie

First Defender: Arthurson; Simpson & Marwick, W.S.

Second Defender: Balfour & Manson

25 April 2003

Background

1. The pursuer alleges that he sustained an accident at Greenock on 10 June 1993 in premises which did not belong to but were occupied by the now first defenders,. His action was signetted on 6 June 1996. It would appear, at that stage, to have been directed against a multiplicity of defenders and to have been sisted from time to time. The pursuer's then agents withdrew on 9 April 1999. The case was again sisted and in March 2002 amended to involve the then second and fourth defenders, who appear now as first and second defenders in the pleadings as they stood at procedure roll. The second defenders , who were alleged to be the pursuer's employers, were content with a proof before answer. The first defenders against whom cases were pled at common law directly, as vicariously liable for the actings of their foreman, and under the Occupier's Liability (Scotland) Act 1960 sought dismissal of the action at procedure roll.
2. The pursuer's averments seem unnecessarily complicated diverse and prolix. Pursuer's counsel sought to amend at the Bar but the amendment was sufficiently substantial to require to be reduced to writing.
3. When that minute of amendment was submitted, it appeared to me that it did nothing to deal with some of the essential irrelevancies which had been discussed and I put the case out By Order so that the pursuer, if so advised, could consider a more substantial minute of amendment.
4. That amendment was duly made. The first defenders did not seek to answer it, contending that, even as amended by that amendment, the pleadings were such as to warrant dismissal. Accordingly this decision is based upon the argument put forward at procedure roll but with the pleadings as subsequently amended.

The Facts of the Case

5. The pursuer's pleadings are somewhat difficult to disentangle but the essential facts would appear to be that he was working either as an employee of, or as a subcontractor with the second defenders. The second defenders were subcontracted to a subcontractor of the first defenders. The first defenders, it is averred, were "head" contractors for the works. Accordingly the pursuer was neither an employee of nor contracted to the first defender. The dispute between the second defenders and the pursuer about the nature of his engagement will proceed to proof. The pursuer avers that the first defenders were responsible for power and lighting at the site and through their foreman for procuring that polythene coverings had been put over drains to prevent floor covering material from entering and contaminating them. The contract made provision for the installation of insulation cubicles into a larger empty space within part of the factory premises. Before the pursuer or the second defender were involved in the works, some initial work had been carried out including the layout of the floor surface. Although not located clearly, it is stated that there were U-shaped drains installed in the floor to aid cleaning and drainage "when the cubicles would be in use". These were about 6 feet in length and 6 inches wide. There is no averment about their depth.
6. The pursuer's job was to install the insulation cubicles on to wall bases which had been previously constructed. Those cubicles would be completely enclosed when constructed. The pursuer avers that as the works progressed the effect of the presence of the insulation cubicles was to create a series of enclosures without natural light; this was particularly the case within the cubicles.
7. The pursuer nowhere avers the stage the work had reached when his accident happened. It may be that the cubicles had in fact been completed apart from the doors but that is not stated. Nowhere is it specified where the said drains were located. The floors of the cubicles "when complete would have had a slight contour to aid flow towards the drains".
8. The first defender's site foreman asked the pursuer, and others, to move some unhung cubicle doors to enable floor layers to do work. He asked the pursuer to move the doors into one of the cubicles out of the main corridor area. The pursuer's averments continue "at that time the inadequacy of the lighting was self-evident". However, later in Condescendence 4 the pursuer states that he and his colleagues entered one of the cubicles carrying a door. The pursuer did not see the drain or its covering, and placed his foot over the drain and covering. The polythene gave way and he fell and twisted his knee.
9. On those facts the pursuer proceeded to construct three cases against the first defenders. The first was based on alleged duties at common law, the second on the fault and negligence of the foreman and the third under Section 2 of the Occupiers Liability (Scotland) Act.
10. There are also elaborate averments about the capacity of generators and the like. The essence of the pursuer's case, it appears to me, is that he was asked to move the door into a dark cubicle.

The pursuer's averments of fault

11. The pursuer pleads that the defenders were at fault at common law. This appears to be based on the proposition that they were "head" contractors and responsible in terms of the contract for certain facilities. He says that they were occupiers of the site and had procured all works being carried out and responsible for monitoring progress and safety. As a result he avers that had they fulfilled their duties they would have supplied "adequate power and light and prevented or removed the inadequate drain covering".
12. The case against the foreman is now that he asked the pursuer, in circumstances when he knew that the pursuer would not or could not refuse, to move a door into a dark cubicle in which, to the foreman's knowledge, there was a drain with a polythene cover.
13. The case under the Occupiers Liability Act is virtually a repetition of the case pled at common law which when amended, averred that the premises were unsafe in that that the cold rooms were not properly lit and that there was a polythene cover over drains. Reasonable care, it is said, would have necessitated providing "adequate light in the cold rooms "and to provide a generator with sufficient power therefor and, until such lighting had been provided, to prohibit any work being carried out within the cold rooms and cubicles and further, not to cover drains with plastic sheeting.

Defenders Argument

14. The defenders attacked the pursuer's averments on the basis that there was no proper specification of what was said to be adequate lighting, no averments of awareness and that there was no separate common law case which applied to an occupier of premises.

The Pursuer's Response

15. The pursuer contended that there could be a case based upon a contractor's responsibility for the site in addition to an Occupier's Liability Act case. Counsel cited Savory v Holland Hannen & Cubitts (Southern) Ltd, 1964 3 AER 18 and Ferguson v Welsh 1987 3 AER 777. In the latter case the head note states that in special circumstances where the occupier knew or had reason to suspect the contractor was using an unsafe system of work, it might well be reasonable for the occupier to require the safe system be used. Two of their Lordships said that liability could only be as a joint tortfeasor with the contractor and not merely as occupier.
16. The pursuer sought a proof before answer on the whole matter.

Decision

17. Whatever may be the position in England, where the Occupiers Liability Act is not in identical terms with that of Scotland in that it contains, in particular, special provision about independent contractors, it is, necessary to concentrate upon Scottish authority and the Scottish Act. The position was summarised in Wallace v City of Glasgow District Council 1985 SLT 23 by the court stating:

"Under Section 1 of the Act it is enacted that the provisions of Sections 1 and 2 take the place of the common law for the purpose of determining the car which a person occupying or having control of land or other premises has to exercise towards persons entering on the premises in respect of dangers which are due to the state of the premises".

Questions of liability, the Court continued, are accordingly confined to and regulated by these two sections of the Act. In particular the question of legal duties is comprehended in Section 2. The standard is of reasonable care in all the circumstances and the pursuer has to aver and prove that the danger was one of which the occupier knew or ought to have been aware and why and what steps were open to the occupier but not taken by him to remove the danger before the accident occurred.

18. Accordingly in my view, there is no room for a case to be pled both at common law and under the statute. It requires to be pled under the statute here. The mere fact that the first defenders were the principal contractors is not apt to infer liability for an employee of a sub-contractor or for a sub-contractor of that sub-contractor and certainly does not do so by virtue of occupation of the premises by the main contractor.
19. There is a fundamental error in the pursuer's approach. He has, it is true, adequately averred, that he was asked to do something by someone who should have known better but there are no averments nor any inference from averments that the pursuer was required to work in a dark cubicle by the first defenders at the time in question nor, accordingly that there was any duty on them as occupier of the premises to light that cubicle or indeed any cubicle where no work was being carried out. Further, the matter of the drain covering has no relevance to the pursuer's accident other than it was a sine qua non. If it would make no difference whether there was a covering, no covering or inadequate covering, the pursuer did not see where he was going and the cause of his accident was that. In my opinion, there has not been relevantly averred any case against the first defenders directly and the case pled at common law is, in any event, irrelevant.
20. I cannot hold that the case based on vicarious liability is irrelevant however. There are adequate averments of the foreman's knowledge of the particular situation and of the particular circumstances in which he asked the pursuer to assist in the one-off operation involved. There are, sufficient averments to show that the foreman stood in sufficient proximity to the pursuer in this matter to fix upon him the duty of reasonable care which would be to see that this request did not involve stumbling about in a dark cubicle where there was an uneven floor.
21. It follows that the case against the defenders cannot be totally dismissed at this stage. The question of the adequacy or otherwise of the lighting is a matter of fact which is in issue with the accused defenders. The polythene cover on the drain is an irrelevance in so far as it was sought to make it a matter of a failure in duty. That is manifestly not so. The stage of the work which involved resined floor laying was such that any permanent protective covering for the drain was neither required nor appropriate.

Future Progress

22. Since there remains alive a case against the pursuer's employers and also against the first defenders' foreman, it would be inappropriate to delete any of the apparently superfluous averments in the condescendences of fact. In order however to direct the proof, it is appropriate to dismiss as irrelevant the Common Law and Occupiers Liability Act cases against the first defenders and that may be done by their deletion. Accordingly I shall refuse to remit Condescendences 5 and 7 to probation and accordingly sustain the first defenders' first plea-in-law to the extent of dismissing the action so far as laid against the first defenders personally and quoad ultra allow a proof before answer.