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Cite as: [2004] ScotCS 46

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Sayers v. Loganair Ltd [2004] ScotCS 46 (26 February 2004)

OUTER HOUSE, COURT OF SESSION

A1993/02

OPINION OF T. G. COUTTS, Q.C.

Sitting as a Temporary Judge

in the cause

ANDREW SAYERS

Pursuer;

against

LOGANAIR LIMITED

Defenders:

________________

Pursuer: Guinnane; Thompsons

Defenders: Haldane; Dundas & Wilson, C.S.

26 February 2004

Introduction
[1] The pursuer's action alleges that an injury he describes as "irritable airways syndrome" was induced by the defenders having exposed him to toxic fumes. He asserts that this injury arose as the consequence of being splashed in the open air with a dilute disinfectant known as Fam30. He tabled cases at common law against the defenders, both directly and as vicariously liable for the actings of two separate employees and also tabled two statutory cases, one involving the Workplace (Health, Safety and Welfare) Regulations and the other the Control of Substances Hazardous to Health Regulations.

The facts averred by the pursuer
[2] The pursuer's averments may be summarised as follows. In March 2001, when the anxieties about foot and mouth disease in cattle in Scotland were prevalent and at a high level, Captain Watt, the defenders' employee in charge of operations at Shetland Airport, instigated foot and mouth precautions by placing disinfected mats at various locations in the airport. He purchased Fam30 disinfectant and instructed the Base Aircraft Engineer, John Owara to assist in mixing and applying the disinfectant to the mats. The pursuer avers that a dilution rate of 1:180 was instructed by Captain Watt and a total of eight gallons of dilute disinfectant was applied to the mats. He does not aver how many mats there were, nor what quantities of disinfectant were applied to each. He was required to walk through the mats twice going to and from his aircraft. As he was walking towards his aircraft at the airfield gate, a baggage truck approached at an unspecified speed. When the pursuer stepped aside he was splashed by disinfectant, said to be "a large quantity" affecting his shoes, socks, trousers and jackets (sic). He does not aver when that occurred but states that at about 8.30 a.m. he set off for Fair Isle in an aircraft owned and operated by the defenders. A heater was in operation in the cockpit and disinfectant came into contact with heat. He says that he noticed a quantity, unspecified, of disinfectant solution on the floor of the aircraft. He completed that flight and the return flight but felt unwell and nauseous (sic). He avers that the use (sic) of said disinfectant in the environment of an aluminium aircraft was unsafe and hazardous. There is no specification of why there was any significance in the aircraft being of aluminium nor what "use" disinfectant was put to in the cockpit.

Fam30 disinfectant
[3] The pursuer avers that the dilution rate adopted, 1:180, was contrary to the manufacturer's instructions pertaining to the conditions on Shetland on the outside of the containers of the disinfectant. There are no averments about the content of those instructions in the pleadings spelt out nor are they incorporated therein. The pursuer goes on to aver the following about that disinfectant:

"In terms of the manufacturers' Product Safety Data Sheet, said Fam30 is an extremely powerful Ministry Approved iodophor based disinfectant approved for dairy and animal health use. It can be used as a disinfectant and detergent sanitiser in all types of animal housing e.g. poultry sheds, calf housing, abutters and piggeries. It is approved under all 5 parts of the Disease of Animals Order. Said Product Safety Data Sheet recommends that said Fam30 be used according to the dilution rates approved by the Ministry of Agriculture, Fisheries and Food. It is effective in preventing the spread of certain animal diseases at certain dilution rates i.e. rabies at a dilution rate of 1:125 and Blue Ear Pig Disease at a dilution rate of 1:180. For general sanitising it recommends dilution rates of 50ml to 20 litres of water. With the use of wheel and foot baths it recommends dilution rates with said Fam30 of 1:180 with water and to be renewed daily if said containers are heavily soiled. At the material time, no General Orders were in force at said Airport or on Shetland. No Foot and Mouth Disease Orders were in force either. Said dilution rates used by said John Owara were neither safe nor suitable as hereinafter condescended upon. If either said John Owara or said Captain Eddie Watt had read the outside of said containers of disinfectant they would have been aware of this."

[4] The only matter "hereinafter condescended on" in relation to safety and suitability is at page 8E:

"The pursuer had inhaled FAM30 disinfectant and was thereby exposed to chemical fumes. Said fumes contained, inter alia sulphuric and phosphoric acids and iodine and were substances which were hazardous to health in terms of the Control of Substances Hazardous to health Regulations (hereinafter referred to as 'the COSHH Regulations') 1999. As a result of his exposure to said substances, he was poisoned and developed symptoms as hereinafter condescended upon."

The pursuer then goes on to aver that an assessment should have been made to meet the requirements of the said COSHH Regulations.

[5] These would appear to be the only circumstances founded upon in order to attribute to the defenders or their employees the knowledge or assumed knowledge of any risk.

The common law cases
[6] Condescendence 3 is a case based on alleged fault of John Owara causing the pursuer to be sprayed at the mat because he drove without due care and attention. There are no averments to indicate any basis upon which the driver knew or ought to have known either that a splash with the dilute disinfectant was dangerous, or that the pursuer would be exposed to fumes, at some later unspecified time, in a heated aluminium cockpit.

[7] A case is pled against Captain Watt on the basis that he knew or ought to have known that in the quantities and in the dilution rate used, the disinfectant was unsafe and hazardous.

[8] A case is pled against the defenders allegedly failing to provide the pursuer with a safe place of work, failing to monitor the pursuer's exposure to "said substances" failing to give information, training etc., all echoes of the case later pled under the COSHH Regulations. Again there are no averments from which the defenders could be inferred as knowing or being under the duty to know what the risks involved with dilute disinfectant were.

[9] In connection with those cases, the defenders pled irrelevance and lack of specification. There was no suggestion that the disinfectant was not appropriate for use in the circumstances or how the actions taken by the employees were contrary to instructions, nor does the pursuer offer to prove what the correct rate of dilution was. There are no sufficient averments from which it can be asserted that the pursuer's injury ought to have been foreseeable by the defenders' employees.

[10] No use of disinfectant was made in the environment of an aluminium aircraft; that was simply the location where the pursuer began to feel the effects of the alleged exposure in the circumstances there pertaining. It would follow that exposure would not have been hazardous without those particular circumstances.

Decision on relevance of the cases at common law
[11] I consider that the defenders' criticism of the pursuer's pleadings as being fundamentally irrelevant from want of proper specification is well founded. The pursuer avers that an approved disinfectant was used and that dilutions were made in accordance with instructions for the use of disinfectant in wheel and foot baths. It is essential that the disinfectant be applied to the footwear and wheels for it to be effective. There would require, in my view, to be substantial and specific averments to show that at common law the defenders and their employees were at fault in utilising a Ministry approved disinfectant at a recommended dilution, or knew or ought to have known of any risk therefrom. Further, the concatenation of circumstances under which the pursuer suffered, in order to be foreseeable, would require to have been clearly spelled out. There is no reason why John Owara should be taken to have knowledge that if he drove too quickly through a puddle and splashed the pursuer with dilute disinfectant, that the pursuer would suffer the effects of fumes where he operated at some unspecified later time in a heated aluminium cockpit. Without that latter circumstance, nothing would have happened since the disinfectant was used in the open air.

[12] There cannot be said to be anything unsafe in the averred circumstances in the use of disinfectant in the open air.

[13] The pursuer has not made sufficiently relevant or specific averments to instruct any case at common law. In the context of common law liability, risk assessments under regulations play no part.

The first statutory case
[14] A case was pled under Regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 which requires that every floor in a workplace and the surface of every traffic route in a workplace shall be of a construction such that the floor or surface of the traffic route is suitable for the purpose for which it is used. The pursuer asserts that his route was a traffic route, that the mat was the surface of the traffic route and that it was not suitable by virtue of the presence of disinfectant.

[15] This was attacked on the basis that the Regulation was directed towards construction and this was not such a case. Even if the route was a traffic route, the pursuer avers that he stood aside and not on the mat in question. This Regulation is not directed towards a casual splash from a puddle; that would not of itself make the surface of a traffic route unsuitable.

[16] I accept the argument of the defenders that this Regulation has no application to the circumstances of the pursuer's accident. There are no relevant averments about defective construction. In any event, the surface of the pursuer's traffic route has nothing to do with his inhalation of fumes.

The case under the COSHH Regulations
[17] The pursuer pled a breach on the narration of fact above quoted. The averments are that the defenders did not comply with Regulation 6, which is in the following terms:

"... an employer shall not carry on any work which is liable to expose any employees to any substance hazardous to health unless he had made a suitable and sufficient assessment of the risks created by that work to the health of those employees and of the steps that need to be taken to meet the requirements of these Regulations."

He also pled a case under Regulation 7, imperfectly quoted on the pleadings, which reads:

"Every employer shall ensure that the exposure of his employees to substances hazardous to health is either prevented or, where this is not reasonably practicable, adequately controlled."

The defenders, it is said, failed to ensure either prevention or adequate control.

[18] Further cases are made under Regulation 10, which provides for monitoring, and Regulation 11, for health surveillance, and Regulation 12, for the provision of information, instruction and training about risks to health created by exposure and the precautions which should be taken.

[19] The defenders attacked the cases under Regulations 10, 11 and 12 on the basis that there was no indication of what suitable surveillance or information and training could or should have been given. More fundamentally, the defenders argued that the pursuer failed to aver how any breach was causative of injury. The presence or absence of an assessment does not create liability, and it is not averred what an assessment ought to have identified or what steps would have been brought out by it to comply with the Regulations.

[20] In relation to Regulation 7, no indication is given as to how the splashing could have been prevented by the defenders, which was the sine quo non of the pursuer's case.

[21] In response, the pursuer sought support from two Outer House decisions: Bilton v Fastnet Highlands Ltd 1988 S.L.T. 1323, and Williams v Farne Salmon & Trout Ltd 1988 S.L.T. 1329.

[22] It was contended citing these cases that the duty was absolute and that it is enough to demonstrate exposure, leaving it to the defenders to aver reasonable practicability.

The decision on COSHH case
[23] The pursuer in the present action, by deliberate amendment in the course of the proof, sought to plead that Regulation 2(a) of the said Regulations was the one applicable. It is one of a series of Regulations identifying the substances with which the Regulation is concerned. Sub-paragraph (a) specifies a substance which is listed in Part I of the Approved Supply List as dangerous for supply within the meaning of the Chemicals (Hazard Information and Packaging for Supply) Regulations 1994 and for which an indication of danger specified for the substance in Part V of that List is very toxic, toxic, harmful, corrosive or irritant. It should be said that the court was not provided with any material from which it could discern whether the three substances specified did fall within any list. Nor was the court referred to the "Approved Supply List". It appears that that means a list entitled "Information Approved for the Classification and Labelling of Substances and Preparations Dangerous for Supply (2^nd Edition)", approved by the Health and Safety Commission on 18 October 1994. From the said 1994 Regulations it would appear that a variety of circumstances may apply to the substances in question as to whether they fall within any definition, but counsel was unable to direct me to that Approved Supply List, detail of which was absent from the pleadings and, for that reason alone, inadequate notice has been given of the case pled. That view was fortified by the terms of the pursuer's own averments. What the court is dealing with is Fam30 disinfectant. The pursuer avers that that disinfectant contained, amongst other things, three substances which it is suggested fall within the terms of the Regulations. Without more, I do not think fair notice has been provided for a case which depends on specific detail of substances and the requisite circumstances. These defenders are not manufacturers or transporters of chemicals, they are simply a company who bought an approved disinfectant for reasons which no doubt seemed sensible at the time. It stretches inference too far in my view to say that the defenders, on the present averments, were "using" the substances specified. They were using dilute disinfectant. Further, and in any event, sulphuric acid exists in several forms. Patently, any sulphuric acid as was present had been diluted by at least 180 parts of water and, for aught seen, that may not bring it within the Regulations. Further, iodine could be considered as a substance which is beneficial to health. It is used as an additive to salt for health purposes, it is used as a substance to assist in the disinfection of wounds and, further, is not found in an uncombined state in nature. Whether and to what extent the combination of the two acids averred and the element iodine reacted together and with the "other substances" in the disinfectant requires, in the interests of fair notice, to be spelled out. In sum it is not averred adequately that dilute Fam30 disinfectant by virtue of containing these substances was hazardous to health. The effect of holding that one constituent among many of a substance brought regulations into play would be reasonably far-reaching. There is no averment that any of the substances specified existed other than as a constituent of or recipe for a compound. Particularly in the case of iodine, that seems unlikely. On the pleadings the pursuer cannot be said to bring himself within the Regulations.

[24] I would agree with Lord Nimmo Smith's opinion in Williams, which was a case involving said sub-paragraph (a), (the other cited case Bilton being entirely different) that foreseeability is not essential when pleading a case under the Regulations. Exposure by itself would be enough. But I also, with respect, do not think that it is helpful to describe the duty under the Regulations as an absolute duty, qualified as it is by reasonable practicability and by other indefinite words such as suitable and sufficient. In the present case, I would consider that the defenders' averments in Answer 2 are sufficient to allow a defence of reasonable practicability to be maintained. It is the essence of a disinfectant that persons and objects are exposed to it and it might quite reasonably be said that the first part of Regulation 7 has no application to the circumstances here present. In any event, an absolute duty using ordinary language cannot be qualified. To describe a duty to which there is a defence of reasonable practicability is absolute seems to me inappropriate.

Further contentions for the defenders
[25] The defenders also contended that the averments of loss were irrelevant for want of specification in respect that there was no indication of how the pursuer was to be disadvantaged, how he was unable to participate or teach in sports, what wage loss he is claiming nor what content should be given to the averment that his intention to pursue a career in aerial architecture affects wage loss. The averment about relocation at 20D was also irrelevant in that it is unquantified. Had I been allowing enquiry, I would have deleted that averment for want of specification, but otherwise would have allowed enquiry on the remaining averments of loss with some reservations.

Conclusion
[26] In the event, however, I sustain the defenders' first plea-in-law and dismiss the action.