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Hamilton v. Seamark Systems Ltd [2004] ScotCS 48 (26 February 2004)

OUTER HOUSE, COURT OF SESSION

PD221/03

OPINION OF LADY PATON

in the cause

DAVID JOHN HAMILTON

Pursuer;

against

SEAMARK SYSTEMS LIMITED

Defenders:

________________

Pursuer: Arthurson; Thompsons

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

26 February 2004

New personal injuries rules: proof or proof before answer
[1] The pursuer was injured on 14 March 2001 when his foot became trapped between two heavy steel moulds. He brought an action for damages in the Court of Session.

[2] The action was raised after 1 April 2003. New rules of court accordingly apply, namely Chapter 43 of the Rules of the Court of Session, as substituted by the Act of Sederunt (Rules of the Court of Session Amendment No. 2) (Personal Injuries Actions) 2002, S.S.I. 2002 No. 570.

[3] The pursuer enrolled a motion in terms of rule 43.6(5)(b) "to repel the defenders' first plea-in-law, and to allow a proof of 4 days duration". The defenders opposed the motion. Initially, they took the view that they were not obliged to provide the pursuer with written reasons for their opposition. Ultimately, after a hearing on the motion roll, the defenders lodged a note outlining the basis of their opposition, thus complying with rule 43.6(6). The matter was argued before me at a continued motion roll hearing.

[4] The defenders' position was that their first plea-in-law challenged the relevancy and specification of the pursuer's pleadings. They wished to retain that plea-in-law and five further pleas-in-law (including pleas relating to sole fault and contributory negligence) with a view to making submissions in law once the evidence had been elicited. They accordingly sought a proof before answer.

The pleadings
[5] The pursuer's averments describe a heavy steel mould which had been flipped upside-down for cleaning purposes. Two crane chain-hooks had been inserted into lugs on one side of the mould in order to flip it over. The hooks were upside-down, and one had become jammed. A partial lifting manoeuvre was attempted in order to free the jammed hook.

[6] The hooks were not safety hooks. They had no hinged section which could be locked shut. The pursuer avers that the defenders had in the past provided safety hooks, but had then discontinued their use.

[7] During the lifting manoeuvre, the hook which was not jammed escaped from its lug, causing the mould to swing towards the pursuer. The mould caught his right foot and trapped it against another mould. The pursuer suffered a fracture of the os calcis.

[8] The pursuer founds on regulation 4 of the Provision and Use of Work Equipment Regulations 1998 and regulations 6 and 8 of the Lifting Operations and Lifting Equipment Regulations 1998. In compliance with the new personal injuries rules, the pursuer makes reference to the regulations, but gives no further detail about any failure in duty.

[9] The defenders' pleadings admit certain facts, but not the averments relating to safety hooks. The defenders aver that the pursuer was a senior operative who had responsibility for his team's safety. It was his job to check that "any requisite hooks [were] in place, and that the load [was] ready to be lifted" before giving the order to lift. The pursuer carried out ten such lifts each day. The defenders aver that the pursuer should not have ordered the mould to be lifted unless it was safe to proceed. They attribute the accident to the pursuer's fault.

Submissions for the pursuer
[10] Mr Arthurson, for the pursuer, submitted that the court should repel the defenders' first plea-in-law. A proof simpliciter should be allowed. The pursuer's pleadings complied with Form 43.2-A. The case was founded solely on statutory provisions. The applicability of the statutory regulations was obvious. The defenders therefore had fair notice of the case made against them. Higgins v DHL International (UK) Ltd 2003 S.L.T. 1301, could be distinguished, as in that case it had not been clear upon which part of regulation 4 of the Manual Handling Operations Regulations 1992 the pursuer relied.

[11] Rule 43.6(5) set out the orders which the court could make when fixing further procedure. There was no reference to a proof before answer, although the terms of rule 43.6(5)(d) were presumably wide enough to include such an order. The new rules therefore envisaged that the majority of cases would go to proof. The defenders had no absolute right to a proof before answer. They had to make out a case for such a procedure, as in the sheriff court: Macphail, Sheriff Court Practice, paragraph 8.42.

Submissions for the defenders
[12] Miss Hawthorne, for the defenders, moved the court to allow a proof before answer. The defenders did not seek a procedure roll, but wished to be able to address the court on any matters of law arising after evidence had been led. For example, it was not clear which part of regulation 4 of the Provision and Use of Work Equipment Regulations 1998 the pursuer founded on - construction, risk assessment, or working conditions. As for regulation 6 of the Lifting Operations and Lifting Equipment Regulations 1998, certain parts of that regulation seemed inapplicable to the pursuer's case.

[13] If the pursuer's position was that the defenders' points of law would be better dealt with at a procedure roll, then the defenders wished to insist upon their preliminary plea, and to have a procedure roll. But their primary position was that the appropriate way forward was a proof before answer. The facts could then be elicited prior to any decision about relevancy and the applicability of the regulations. Counsel referred to Maclaren, Practice in the Court of Session, pages 263-264.

Opinion
[14] One of the major innovations introduced by the new personal injuries rules has been the abolition of a party's automatic entitlement to a procedure roll debate. Under the new procedure, a party seeking anything other than a proof or jury trial must give written notice of the alternative order sought and the reasons therefor.

[15] As the Practice Note No 2 of 2003 (14 March 2003) "Personal injuries actions" observes: "A motion for procedure roll will not be granted lightly"; see too the views of the Coulsfield Working Party in their Report:

"It is inherent in the proposals that there should not be any room for a debate in the bulk of cases. There may remain a need for debate in some exceptional cases ...".

[16] A much reduced number of procedure roll debates is accordingly one of the hallmarks of the new procedure, which aims to expedite the proper resolution of personal injuries claims without unnecessary delay or expense.

[17] Thus criticisms relating to lack of specification in the pleadings are to be set out in full in a party's motion (or in the grounds of opposition). The other party then has an opportunity to respond by giving the further specification required without the need for a debate. Any remaining complaints about lack of specification are likely to be dealt with by the court ordaining a party to aver such further detail as is necessary, and putting the case out By Order to ensure that the court's order has been obeyed.

[18] Nevertheless, as was recognised by the Coulsfield Working Party, there may be exceptional cases where a legal debate is still appropriate. For example, matters of fundamental relevancy, which could bring the litigation to an end without the need for proof of the facts averred, may merit a procedure roll. In terms of rule 43.2(1)(a) and paragraph 4 of the style of summons in Form 43.2-A, a pursuer must state briefly the "facts necessary to establish the claim". There may be cases where the facts averred are patently insufficient to establish liability on the part of a defender, despite references to common law and/or statute. In such circumstances a court may be persuaded to allow a legal debate before any evidence is led, with a view to saving time and expense. Similarly a court may be persuaded to allow a debate where one outcome might be a significant limitation in the extent of the proof.

[19] Counsel for the defenders did not suggest that the present case fell into such a category. She accordingly did not seek a debate. But it does not follow that the defenders must proceed to a proof simpliciter. On the contrary, one consequence of the concise pleadings advocated by the new personal injuries rules may be that the brief statement of facts with brief references to common law and/or statute gives rise to questions of law which can only be properly resolved after evidence has been led. In such circumstances, parties should in my view be entitled to address the court on the law once the evidence has been led.

[20] The new rules have been inserted as chapter 43 of the existing Rules of the Court of Session 1994. In chapter 1 of those rules, rule 1.3 defines the word "proof" as including a proof before answer. Accordingly the word "proof" in the new rule 43.6(5)(b) in my opinion includes a proof before answer.

[21] In the present case, having considered the pleadings, the statutory regulations relied upon, the defenders' written "Note of basis of opposition to the pursuer's motion", and the submissions of counsel, I am satisfied that the pleadings raise some questions of law which should properly be addressed and resolved after the facts have been elicited. Put another way, I consider this to be a case where "it cannot be said in advance of the leading of the evidence whether the facts averred are sufficient to support the legal conclusion which the pursuer requires for success": Moore v Stephen & Sons 1954 S.C. 331, at page 335 (cited at page 264 of Macphail, op. cit.).

Conclusion
[22] I shall allow a proof before answer, all pleas standing. I reserve the question of the expenses of the continued motion roll hearing before me to enable parties to address me on that matter.

[23] I would add, obiter, that in practice there may be little difference between the allowance of a proof and the allowance of a proof before answer in the context of the new personal injuries rules. If defences contain no pleas-in-law and if a proof is allowed in terms of rule 43.6(5)(b), it is envisaged that parties may make submissions about points of law or mixed fact and law arising from the evidence: see the definition of "proof" in rule 1.3; and paragraph 28.1.6 of the commentary on the Rules of the Court of Session by Sheriff N.M.P. Morrison, Q.C. Accordingly, a diet of proof allowed under the new personal injuries procedure may in practice be indistinguishable from a proof before answer. Questions of fair notice may arise at the proof and will be dealt with according to the circumstances of each case. The pre-proof meeting offers an ideal opportunity for all parties to be forthcoming about any points likely to be taken.

[24] Until there has been clarification - possibly by further Act of Sederunt - of the appropriateness or otherwise of pleas-in-law in defences under the new personal injuries procedure, defenders who continue to add pleas-in-law to their defences (as in the present case) will strictly speaking have to seek a proof before answer, unless the relevant pleas-in-law have been repelled by the court. Those defenders should also comply with the requirements of rule 43.6(6), and give notice of their grounds for seeking an order other than a proof or jury trial.