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Cite as: [2003] ScotCS 154

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Warnock &Ors v. Clark Contracts [2003] ScotCS 154 (22 May 2003)

OUTER HOUSE, COURT OF SESSION

A320/02

OPINION OF LORD McCLUSKEY

in the cause

MARY LOUISE WARNOCK and OTHERS (ASSISTED PERSONS)

Pursuers;

against

CLARK CONTRACTS LIMITED

Defenders:

________________

Pursuers: J G Thomson; Russell Jones & Walker (for Russells Gibson

McCaffrey, Solicitors, Glasgow)

Defenders: Hofford, H B M Sayers

22 May 2003

[1] This case called before me on the Procedure Roll in respect of the second plea-in-law for the defenders. Before asking me to sustain that plea, Mr Hofford, who appeared for the defenders, invited the Court to repel the first plea-in-law for the defenders namely the general plea to the relevancy. He accepted that in these circumstances the words "before answer" fell to be deleted from the second plea-in-law. In the result, therefore, he argued only that the case was unsuitable for jury trial, that Issues should be refused, and a Proof allowed.

[2] The pleadings themselves, albeit there are one or two minor errors within them, make it very clear that this is a straightforward type of case. The deceased was sent by the defenders, his employers, to work on a roof. It is averred that he was not provided with crawling boards or scaffolding. While working on the roof, he fell through some fragile roofing material onto which he had stepped and sustained fatal injuries. The defenders make a number of averments pointing to the deceased's responsibility for the accident; and invite the Court to acquit them of negligence because he was the author of his own misfortune or alternatively to hold that he was partly responsible and that therefore there should be an apportionment of responsibility.

[3] The defenders have submitted a note of argument which concisely and clearly states what the submissions were to be. I shall, however, refer to my notes of what was submitted to me in argument rather than go through that document paragraph by paragraph. I simply pause to say that, in the first paragraph, the second sentence, having referred to alleged difficult questions of fact of law that might arise particularly in relation to there being a common law case on the statutory case, says, "In these circumstances it is difficult for any judge to direct a jury upon which, if any, of the two cases are made out in fact in law". I do not think that is a correct formulation of the judge's duty in a matter of this kind. The judge does not have to tell the jury which, if any, of the two cases are made out. That is ultimately a matter for the jury to determine. The duty of the judge, in the light of the evidence and the pleadings, is to direct the jury what the law is, to explain what case has been pled by the pursuer, and to assist them, if appropriate, to apply the law to the facts as determined by them.

[4] The first matter which was dealt with in argument related to the terms of the conclusions. In the event, Mr Thomson, who appeared for the pursuers, accepted that the conclusions were not in the correct form. He sought a short adjournment and produced a Minute of Amendment which, after further amendment at the Bar, was duly allowed. I took the view that answers were extremely unlikely to be required. However, counsel for the defenders while ultimately not opposing the amendment, reserved his position about answering, and I fully respect that. If, on reconsideration he finds that it is necessary to produce averments, or indeed pleas-in-law relating to that amendment, the Court would obviously be strongly inclined to treat any amendment from him for that purpose as being the equivalent of Answers to the current Minute of Amendment. However, the Court will allow the Record to be amended now as proposed in the amended Minute of Amendment. Why the Instance is framed as it is was not made clear; but it should not result in problems at the trial.

[5] I now turn to the other arguments which were advanced. In the first place it was submitted that there was a significant contradiction between different parts of the pursuers' averments of fact. In particular, the pursuers averred that, "The site had been visited by a representative of the defenders on or about 19 January 1999 in order that a risk assessment would be carried out at the site." That it was submitted was difficult to read alongside the averment at page 10A which reads "Risk assessments should have been carried out and all necessary safety equipment made available to the employees attending the site." Mr Thomson, however, also drew my attention to the further averment at page 8D reading:

"Any proper assessment of the risk would have identified that a scaffolding should have been erected beneath the Perspex sheeting, and that crawling boards should have been provided."

In these circumstances, it appears to me that what the pursuer avers is fairly straightforward. She is averring that the site was indeed visited for the purpose of carrying out a risk assessment. That is admitted by the defenders in Answer 2. The pursuer does not however aver that an adequate risk assessment was in fact carried out. This is not a fact within her knowledge. She does make appropriate averments about what a proper assessment of the risk would have discovered. This appears to be a series of averments which are straightforward and which relate to foreseeability of the accident which occurred. They are also linked to her other averments of negligent deficiencies. It appears to me that no difficulty would be presented to the trial judge in directing the jury on this matter.

[6] It was also submitted that there was a contradiction between the pursuer's averments about scaffolding. The pursuer alleges that scaffolding should have been provided, but at one point avers, "Scaffolding would not have prevented the accident happening." However I think that, properly read, it is clear that what the pursuer is desiderating is scaffolding that would have been erected beneath the perspex sheeting through which the deceased fell. The averment that scaffolding would not have prevented the accident happening, appears in the pursuer's response to the defenders' averments of contributory negligence. Those averments were to the effect that

"The employees were instructed that all scaffolding and roof edge protection must be built to comply with current legislation, if scaffolding/roof edge protection was not provided, harnesses were to be worn and if ankle points were not available, employees were instructed to contact their supervisor."

Thus it is clear that what the pursuer is averring is that the defenders should have erected scaffolding beneath the perspex sheeting. (That indeed is exactly how the duties formulated in Article 3 of the Condescendence). The reference at page 10A to scaffolding that would not have prevented the accident happening appears to relate to external scaffolding that might have been erected on the exterior of the building and the roof edge.

[7] Mr Hofford also submitted that because parties were in dispute about scaffolding, about crawling boards and the like, expert evidence would require to be led on both sides. The jury would be "submerged", to use his word, by evidence of this kind and that was a factor pointing to this being an unduly complicated case to go before the jury. [He made a point in relation to the averment that the defenders had pled guilty to a charge under the Health & Safety at Work Act 1974, but he did not persist with that argument]. Next he pointed to the fact that there were averments of contributory negligence and this feature in the case introduced complications which the jury would have to consider. Furthermore, the fact that the pursuer had both a common law case and a statutory case led to further complications and this was a matter to be taken into account. He was not submitting that any one of these individual points would itself determine that special cause had been shown. His submission was that these matters, taken along with problems in relation to damages, were likely to make the case unduly complicated; and, therefore, special cause could be said to exist in relation to this particular case. In relation to damages he suggested there were a number of disputes of fact giving rise to difficulties, for example, in relation to the likelihood that the deceased would have been promoted. More importantly, given that there were damages to be awarded in respect of several different payments, namely to the widow herself and to each of the three children, there would have to be a number of different Ogden Tables examined and possibly different multiplicands considered and applied in order to assess the damages. There was also a problem in relation to apportioning the loss of support claim among children of different ages.

[8] Mr Thomson accepted the general principle that, albeit each individual point was not in itself sufficient to constitute special cause nonetheless a number of smaller matters could cumulatively add up to special cause. However, he submitted the individual parts would require to have some weight before in total they could be regarded as having sufficient weight to constitute special cause in the particular case. In this case the separate points had little relevant weight, if any. He dealt with the averments about the assessment of risk and I have already referred to that issue. I accept his submissions in relation to that and need say no more about it. Similarly, in relation to the apparent contradiction in relation to scaffolding, there is nothing I need add to what I had already said. It appears to me that the trial judge would have had no difficulty in directing the jury in relation to these matters.

[9] So far as the damages point was concerned, I did not require to hear him in relation to the alleged complications of fact, such as the possibilities of promotion of the deceased. These appear to be matters of a kind that are commonly discussed in a case of this kind and juries are well accustomed to dealing with such matters. In relation to the general points about damages, I was referred to two cases, Robertson v Smith 2000 S.C. 591 and Jane McCue Reid & Others v B P Oil Grangemouth Refinery Ltd 8 May 2001. What these cases illustrate is that the mere fact that the Ogden Tables require to be looked at, even in the case of several pursuers with distinct claims or several claimants with distinct claims, does not off itself create special cause. Mr Hofford did not argue otherwise. He indicated, however, that in his submission this was a factor which had to be taken into account and he pointed to the fact that in the Reid case the only issue was one of quantum of damages. By contrast, the present case was one in which there were issues of fact and difficulties in applying the law in regard to liability.

[10] It appears to me that, so far as the quantification of damages is concerned there is no very great distinction between the principles applicable to the present case and the principles that were applied in the two cases to which reference has been made.

[11] On the whole matter, it is, in my opinion, quite clear that this is a straightforward case of a kind that over the years has been dealt with by juries without apparent difficulty. I do not foresee that the trial judge would have any difficulty in instructing the jury about the application of the common law case or the statutory case. In my opinion, the observations that I made in the Reid case about the jury's capacity to handle evidence in relation to damages, including evidence from actuaries or others about how the Ogden Tables would fall to be applied in different situations, are applicable to the present case. I refer to para.[7] of the opinion in the Reid case. In all the circumstances, I am satisfied that the submission which Mr Hofford has advanced fails. In the circumstances I shall repel his second plea-in-law in addition to the first plea-in-law, and I shall allow Issues.

[12] After I announced my decision, counsel for the pursuer invited me to award the pursuer the expenses of today's debate. Mr Hofford invited me to award the defenders the expenses of today's debate. The only point in respect of which the defenders succeeded was the point in relation to the formulation of the conclusions. As Mr Thomson pointed out, however, that was not a matter which was raised in the Note of Argument. Para.4 of the Note of Argument refers to the conclusions but only with a view to illustrating that complexities would arise because of the number of conclusions and the numbers of different sums of money which were sought. That was not the point which was taken in argument in relation to the matter that resulted in amendment. I also observe that had there been, or indeed had there remained a conflict between the conclusions and the averments, that would have been a point of relevancy, Mr Hofford, at the start of the debate as I already noted, indicated that he was not insisting upon his first plea. I take the view that the pursuers having come to the court to seek Issues have had substantial success. I should have been inclined to make some deduction from the award of expenses in favour of the pursuers, on the basis that it was necessary to make the amendment, but as that amendment was effectively made at the Bar, and it caused no extra time to be spent and certainly no extra expense, I take the view that expenses should follow the pursuer's substantial success on all the points set forth in the Note of Argument. In these circumstances, I shall exceed to Mr Thomson's motion and grant the expenses of this Procedure Roll against the defenders. Insofar as there are any expenses in respect of the Minute of Amendment, it appears to me that the appropriate course is to find the pursuers liable to the defenders in any such expenses, as taxed.