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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Shields v. Jarvis Hotels Plc & Anor [2004] ScotCS 26 (06 February 2004)
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Cite as: [2004] ScotCS 26
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Shields v. Jarvis Hotels Plc & Anor [2004] ScotCS 26 (06 February 2004)
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OUTER HOUSE, COURT OF SESSION |
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A110/03
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OPINION OF LORD WHEATLEY in the cause LINDA SHIELDS Pursuer; against JARVIS HOTELS PLC Defenders; and EDINBURGH LEISURE Third Party: ________________ |
Pursuer: No appearance
Defenders: Love; Simpson & Marwick, W.S.
Thirty Party: Khurana; Dundas & Wilson, C.S.
6 February 2004
[1] In this case the pursuer has raised an action of damages against her then employers as a result of an injury which she says she suffered when on a course arranged for her by the defenders and organised by the third party. The third party, as the organisers, have been brought into the action by the defenders. [2] The circumstances of the pursuer's action, as she avers them, are as follows. On 15 October 2001 she was undertaking a course to complete her National Lifeguard qualification at the Commonwealth Pool in Edinburgh. The pursuer was required to undertake a number of tasks which involved frequent and prolonged physical effort, such as lifting persons and dummies out of the pool. In addition she required to repeatedly lift herself from the pool. The course lasted six days. Against that background she indicates that at one point, while assisting an adult from the pool, she suffered an injury to her back. [3] The defenders' response is that they are unaware of the circumstances of the accident, that the course was organised by the third party, and further that the pursuer suffered no injury. [4] The pursuer's case against the defender is exclusively based on a statutory duty in terms of Regulation 4(1) of the Manual Handling Operations Regulations 1992. Regulation 4(1) provides in essence that each employer shall avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured. There is no common law case of fault against the defenders. In response to this part of the case the defenders (in Answer 3) claim that it was not reasonably practicable to avoid the task of lifting people out of the pool. The defenders then go on to aver a case against the third defenders on the basis that esto the task could reasonably have been avoided, the accident was caused by the fault and negligence of the third party. The defenders argue that, as organisers of the course, the third party had a duty to take reasonable care for the safety of the participants, to avoid exposing them unnecessarily to the risk of injury, and in particular to take reasonable care to avoid the need for the pursuer to undertake tasks which involved a foreseeable risk of injury. Further, the defenders say it was the duty of the third party to train the pursuer how to remove persons from the pool in a safe manner. [5] In these circumstances, counsel for the third party submitted at debate that the defenders' averments and their case of fault against the third party were irrelevant. The defenders' case proceeded exclusively on the basis that the pursuer was injured lifting someone out of the pool. However, the pursuer, in her own averments, says that it was a combination of factors that caused her injury, including the lifting of dummies out of the pool, and also lifting herself out of the pool. Accordingly, counsel suggested, the defenders' case against the third party proceeded on a different factual basis from the pursuer's case against the defender. It was impossible for the court, or the defenders at this stage, to distinguish between these various factors, and therefore there was no basis in the pleadings to justify the averments of fault against the third party. The defenders, for example, had not adopted the pursuer's averments, or case of fault. [6] In response, defenders' counsel sought a proof before answer. Counsel submitted that the defenders had no knowledge of the pursuer's accident; they had merely sent her on a course organised by the third party and were therefore entitled to say that any accident that happened was the fault of the third party. The pursuer's averments against the defender, while perhaps slightly unclear, were undoubtedly sufficiently specific to go to enquiry. The defenders were unable to plead the regulations cited by the pursuer against the third party, because the third party was not the employer of the pursuer. The third party's pleadings clearly indicated that they had extensive knowledge of what had happened, and they make a series of detailed averments about the pursuer's accident. In these circumstances, the only course open to the defenders was the one they had adopted in Answer 3. Assuming their substantive defence to the pursuer's claim (that it could not be avoided) was unsuccessful, then the defenders would be entitled to look to the organisers of the course to establish their responsibility for what happened. There is a plea of apportionment should both the defenders and third party be found responsible in some measure for the pursuer's accident. The factual basis for the defenders' case against the third party is therefore simply reflected in the averment that the course had been organised by the third party. [7] Clearly the point raised by Mr Khurana, for the third party, was of some significance. The fact that the pursuer avers a series of causes which appear to have culminated in her accident, then suggests that her ground of action is based simply on a statutory regulation covering one of those activities, may well pose difficulties for her at proof. Equally, I think counsel was justified in claiming that those difficulties would be transferred to the third party for the same reasons. But while I can sympathise with the predicament the third party is placed in, I also agree with the view expressed by Mr Love for the defenders that the pursuer's averments, however unsatisfactorily expressed, would not justify dismissal of her action at this stage. It cannot be said here that even if all of the relevant averments involving the third party are proved, that the defenders cannot possibly succeed in their claim against the third party. In these circumstances, I have come to the conclusion that the subject matter of this dispute can only be settled at enquiry. I therefore propose to allow a proof before answer on the merits. [8] Counsel for the third party also raised a technical matter which had come to his attention somewhat late in the day. This is that there are no averments tabled by the defenders designing the third party, and the standard averments establishing jurisdiction are absent. Counsel for the defenders in answer submitted that there was a description of the third party in the instance which indicated that it was a company limited by guarantee with an office in Scotland. Standing the fact that counsel had submitted answers on behalf of the third party, and had appeared in this process, any technical shortcomings in this area could be ignored. [9] With some hesitation, I again agree with the position taken by defenders' counsel. Clearly, the third party would require to appear in this process in order to make any plea based on the competency of the action. However, in the absence of any formal opposition or objection, or plea to the competency of the action, I propose to conclude that the description of the third party in the instance is sufficient to justify the inference that jurisdiction exists against the third party in the present case. [10] In all the circumstances I shall remit the matter to enquiry with all pleas standing.