Scottish Court of Session Decisions

Furnival & Ors v. J.K. Investments & Ors [2003] ScotCS 71 (14 March 2003)

OUTER HOUSE, COURT OF SESSION
A481/98	OPINION OF T. G. COUTTS, Q.C. SITTING AS A TEMPORARY JUDGE in the cause KAREN FURNIVAL or STUPART & OTHERS Pursuers; against J. K. INVESTMENTS LIMITED & OTHERS Defenders:   ________________

 

 

Pursuers: Henderson; Morisons

Defenders: Maguire, Q.C.; Simpson & Marwick, W.S.

14 March 2003

1. In this action the pursuers seek reparation for the death of a husband and father. The pursuers originally pled cases against three defenders. The first were the deceased's employers, the second were contractors engaged by the first defenders to modify their hoist and the third were other defenders whose employee did certain work on the hoist machinery. The hoist had been sold by the third defenders to the first defenders. Decree in absence was obtained by the pursuers against the first and second defenders on 21 May 1998.
2. The pursuers pled three cases against the remaining "third" defenders. They are accused of failure in duties at common law, failure to comply with statutory regulations and of being vicariously liable for the negligent actings of their employee, John McFarlane.
3. The pleadings though prolix were attacked both on the grounds of lack of relevance and lack of specification. To an extent they may be summarised as follows. The deceased was working for the first defenders at a building site in Dundee on Monday 17 April 1995. He was struck and killed by a gate which fell from a hoist. That hoist had been bought from the third defenders by the first defenders and the third defenders' employee, McFarlane, was asked to fit a new rope, service the engine and check all moving parts on the hoist. The pursuers have a general denial of the third defenders' averments, two of which are that no plant safety certificate was issued in terms of the regulations and that McFarlane was not a competent person in terms of the regulations to issue such a certificate. Nevertheless, in Condescendence 7 it is averred by the pursuers that the third defenders owed a duty to warn the first defenders not to use the machine until it had been tested properly by a suitably qualified person, and in Condescendence 8 it is averred that McFarlane had a duty towards the first defenders not to use the hoist until tested.
4. It can be taken from Condescendence 7 that the pursuers admit that McFarlane was not a person suitably qualified to test and certify the machine for use.
5. The pursuer in the factual Condescendence 2 avers that the hoists were goods within the meaning of the Sale of Goods Act 1979 and that there was accordingly an implied term that the goods were of satisfactory quality and safe. That averment was attacked as irrelevant. It is irrelevant. The sale was between the third defenders and the first defenders. The duties imposed by that statute in relation to that contract lie between the first defenders and the third defenders. In any event, even if the Sale of Goods Act had any relevance in an action such as this when a third party was injured by the goods, there are no adequate or sufficient averments to state that in the circumstances the goods were not of a satisfactory quality for the purposes for which they were acquired at the price at which they were acquired having regard to the intentions of the parties in relation to their use. There are no averments about the description of the goods when sold, in short, and no averment which could justify any term as to safety being implied into the contract. Accordingly on any view the averments relating to the Sale of Goods Act require to be deleted.
6. The defenders' attack went further. In order that any of the statutory duties averred in Condescendence 9 can be invoked it is necessary to establish that the third defenders were contractors who erected, installed, worked or used the plant and equipment in terms both of the Construction Workplaces Regulations 1966 and the Construction Lifting Operations Regulations 1961. The applicable regulation is 3A in each of the above. The defenders said that there were no relevant averments to show that the third defenders did erect, install, work or use the plant.
7. The only averments in that regard are to be found at page 9 of the record. They are "the hoist was taken to the first defenders' site and erected". It is not said by whom. They also say that the first defenders instructed the third defenders "to install a new rope, service the engine and check all moving parts of the hoist before it was used". The pursuers go on "accordingly the defenders received clear instructions to prepare the hoist for use". Non sequitur. Those parts are not the whole hoist. It cannot be inferred from the pursuers' averments as a whole that the third defenders did receive "clear instructions" to prepare the hoist for use let alone to erect or install it. All that the third defenders were asked to do was to put in a new rope, service the engine and check moving parts. Those instructions carry no inference that after they were completed the hoist could be used or even that it was ready for use nor even that it was in a state to obtain certification.
8. Those statutory cases pled against the third defenders were said to be irrelevant. I agree.
9. There followed cases against the third defenders personally and as vicariously liable for Mr McFarlane's alleged omissions. The pursuers aver as follows. On 14 April Mr McFarlane visited the site and carried out a service. He removed hoist gates and fitted a rope. He tested the running of the hoist without the gates in place. He expressed no other concerns. He did not warn anyone not to use the hoist following his visit and made no comment on the fixing of the gates. At 10B they aver that he "did not conduct a test of the safe operation of the hoist as he had been asked". There are, however, no averments that McFarlane was asked by anyone to conduct a test of the safe operation of the hoist, nor is that averment followed up in Condescendence 8. The pursuers also aver that he took no steps to disable the engine or to place the starting handle of the hoist under lock and key. "Strict instructions ought to have been given", the pursuers say, "that the machine was not to be used until tested and provision should have been made for warning signs". They also say "In any event the third defenders ought to have a system of work in place to provide that the said McFarlane did these things."
10. It was argued that such averments are disingenuous and insufficient to establish any liability or any duty on the third defenders in the circumstances. I agree.
11. The pursuers' position quoad the third defenders is vitiated in my view by the fact that the second defenders were instructed to modify the gates on the hoist. They carried out miscellaneous welding operations and relocated the gates. No means was devised for preventing the accidental displacement of gates in the event of their being moved upwards. Further, the second defenders, although they had begun their work on the same day, presumably after McFarlane had left the site, had not completed it. It had been their intention to complete the said work on the following Monday, ie. the day of the deceased's death. It is averred that those defenders gave no warning that the hoist was not to be used until the said work had been completed. It was said that it ought to have been obvious to the employees of all three defenders on site that in the event of the hoist being used, upward movement of the gates would result in an accident of the nature which befell the deceased.
12. Once again nothing is said by the pursuers about the necessary certification procedure before a hoist is brought into use. It is admitted that the third defenders were not present on site on 17 April. The accident happened when the hoist was being lowered on that date.
13. It is accordingly apparent that those defenders who were dealing with the gates on the hoist were working on them on 14 April and had not completed their work but were to do that on the following Monday. These works were in relation to the gates which fell off. The pursuer does not sufficiently aver that the third defenders' employee was the person who had last contact with the hoist or that he had any duties in regard to the making available of the hoist for use as opposed to servicing it.
14. The pursuers' averments in Condescendence 7 are also misconceived in that they desiderate various matters which are not, on the averments, the duty of the third defenders. They are alleged to have failed to test the machine properly. There is no averment that they had to do so. They are alleged to have owed a duty to instruct McFarlane to provide a full and proper test of the hoist as desiderated by the first defenders. Again, that is not averred as a matter of fact nor is it said what a "full and proper" test of the hoist was or would have achieved. They, it is said, owed a duty to warn the first defenders that no full test was to be carried out and that the scope of the employee's actings was restricted. It is pled that they owed a duty to carry out a proper service on the machine; to see that it was working properly; to warn the first defenders that a full service had not been carried out and that the machine was dangerous if the arrangement for fixing doors remained the same; and also to warn the first defenders not to use the machine until it had been tested properly by a suitably qualified person, to place warning notices on the machine and to immobilise the machine until it had been properly tested.
15. In my view none of these duties is relevantly averred and none applied on 17 April. The pursuers' own averments exclude immobilisation on that day by the third defenders because the second defenders were or were to be working on the machine. A "full service" of the machine is irrelevant in respect that the machine could not lawfully be used unless it had been certified by a properly qualified person. It was not, it seems to me, the third defenders' duty to warn the first defenders of their statutory duties. As pled there is no relevant case made against the third defenders personally.
16. Turning to the case based on the vicarious responsibility for the actings of McFarlane it is said, "He owed a duty to carry out a full service in accordance with the instructions of the first defenders." There were no such instructions and in any event a "full service" did not mean ensuring that the hoist was ready for the necessary certification. It is alleged also that he had a duty to warn the first defenders not to use the hoist until tested. Again it was the first defenders' statutory duty not to use the hoist until tested and certified. Accordingly warning from Mr McFarlane is of no consequence. So far as the alleged duty to immobilise the engine pending tests for the safety of the hoist and the fixing of gates and cages is concerned, since the second defenders were engaged in these operations during and after Mr McFarlane's visit to the site, it is fanciful to suggest a duty in those terms. Mr McFarlane having done his service work was not responsible at any stage after his departure. Immobilising the engine was no part of his duty and would have defeated the purpose of the necessary testing of the hoist itself.
17. In this unfortunate case the pursuers have not pled a relevant case against the third defenders in any of the cases they tabled for want of essential specification of the facts and circumstances which might infer liability. This is not a case in which the well known dicta in Jamieson v Jamieson could be prayed in aid to rescue the pursuers from defective pleadings. I should note that the pursuers' counsel cited Hayman v City Property Investment Trustees 1929 S.C. (H.L.) 65. That case does not assist him. It was wholly different on its facts. It is plain from the speech of the Lord Chancellor that there was sufficient averment to entitle enquiry. In my view that is not the case in the present action. I shall accordingly sustain the first plea-in-law for the third defenders and dismiss the action.