Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Forey v. RHI Refractories (UK) [2004] ScotCS 59 (09 March 2004)
URL: http://www.bailii.org/scot/cases/ScotCS/2004/59.html
Cite as: [2004] ScotCS 59

[New search] [Help]

Forey v. RHI Refractories (UK) [2004] ScotCS 59 (09 March 2004)

OUTER HOUSE, COURT OF SESSION

A248/03

OPINION OF T G COUTTS, QC

Sitting as a Temporary Judge

in the cause

JOHN WALKER FOREY

Pursuer;

against

RHI REFRACTORIES (UK) LTD

Defenders:

________________

Pursuer: Allardyce; Thompsons

Defenders: Duncan; Simpson & Marwick, W.S.

9 March 2004

[1] On 29 January 200, while working as a process worker in the defenders' premises at Clydebank the pursuer heard a loud bang, and saw a large cloud of back smoke and dust. The explosion occurred in the defenders' mixing plant which was about 100 yards from the pursuer. He avers that he heard and felt the shockwave of a blast on his body and in his ears; that there was general panic and the pursuer and others rushed outside. Windows in the vicinity of where he was working were blown out and, in short, the pursuer avers that he was "caught up in the blast". He avers that he suffered psychiatric damage and a moderately severe panic disorder. There was no physical injury.

[2] As part of his narration the pursuer avers that he witnessed colleagues with blackened faces and one with serious burns being taken out. It was in particular that averment which the defenders founded upon as creating difficult questions of law in the cause.

[3] The pursuer sought issues in the case. The defenders argued that special cause existed due to doubtful relevancy and because difficult legal principles which could apply for withholding the cause from jury trial.

[4] The defenders' counsel in a helpful review of the authorities acknowledged the pursuer's statutory right to jury trial and accepted that the onus of persuading the Court that the cause should be withheld from a jury lay upon him. He discussed the progression of authority in relation to "primary" and "secondary" victims. He referred to Alcock v Chief Constable of South Yorkshire 1992 1 AC; Paige v Smith 1996 AC 155; White v Chief Constable of South Yorkshire 1999 2 AC 455 and the leading Scottish authority, Robertson & Rough v Forth Road Bridge Joint Board 1995 SC 364.

[5] In relation to the necessity for clear pleading he referred to Moore v Alexander Stephen & Sons Limited 1954 SC 331. As an illustration of considerations for withholding the cause from a jury trial; reference was made to Bromham v Highland Regional Council 1997 SLT 1137 and to O'Malley v Multiflex UK Inc 1995 SCLR 1143. For reviews of the authorities in relation to primary and secondary victims, Campbell v North Lanarkshire Council 2000 SCLR 373; Keen v Tayside Contracts 2003 SLT 500; Salter v UB Frozen and Chilled Foods 2003 SLT 1011 were cited.

[6] He argued that it was unclear whether the pursuer was a primary or secondary victim. That constituted the major difficult question which could only be answered after inquiry. In such a case jury trial was unsuitable.

[7] For the pursuer, cases were cited to indicate that a question of law was not special cause. So stated that must be correct. It was urged that the proper approach was that adopted by O'Malley v Multiflex where Lord Gill said at page 1145,

"The useful test in these cases is to consider whether on the pursuer's pleadings an adequate and effective direction could be given to, and applied by, the jury on the contentious question."

Lord Gill went on to say that counsel for the pursuer had difficult in that case in suggesting a form of direction which would explain to a jury on the basis of the pursuer's pleadings how they should calculate two heads of claim. That appeared to weigh with the Lord Ordinary.

[8] In the present case counsel for the pursuer specifically stated to the Court that the sole question for the jury was whether the pursuer was to be regarded as a primary victim; that there was no question of the pursuer putting forward any case of being a rescuer or being closely connected with any victim, nor indeed of any suggestion of the pursuer being a participant. The only question was whether he was caught up in the explosion or not and the averment quoted above was pled on background only and was not intended to give rise to a secondary victim claim. The present case is very similar to that set out in Campbell v North Lanarkshire Council, counsel claimed.

Decision
[9] The authorities on primary and secondary victims have been extensively reviewed. Lord Reed in Campbell and Lady Paton in Keen have fully reviewed the current state of the authorities as did Temporary Judge Reid in Salter. I see no reason to add to the jurisprudence in this regard. I would, however, observe on consideration of Salter that the rubric indicating that the temporary judge had specifically not followed Campbell is not warranted. The considerations were different and, for my part, I can see no flaw in the reasoning in Campbell. The temporary judge in Salter was considering a somewhat different matter. None of above the judges was considering the question of proof or jury trial and mode of inquiry.

[10] I adopt and accept what was said by Lord Gill in O'Malley. Looking at this case as it stands at present; an adequate direction can be given. I should add, however, that I was strongly influenced by the specific undertaking and his limitation of the extent of the evidence and proof that is to be led which was given by counsel for the pursuer. Counsel having accepted that he has to prove that the pursuer was a primary victim, a jury can be directed accordingly and instructed that if they do not accept that the pursuer was "caught up in" the explosion and was in danger, or in reasonable apprehension of danger himself the case must fail. It is on the understanding that the averments about injured employees are intended to demonstrate the violence of the explosion and that alone, that the case can be allowed to go to jury trial. I should add that the defenders have admitted liability for the explosion itself and accordingly there is little difficulty or prospect confusion in relation to the merits.

[11] I would add that the defenders did, somewhat faintly, argue that there was difficulty in the question of whether or not the pursuer had a predisposition to psychiatric damage. That is not in my view sufficient cause for withholding the case from jury trial either on its own or allied to the other matters.

[12] At the end of the debate I indicated that my decision was to repel the defenders' plea and allow issues but that I required to write on the matter in order that the concession upon which that decision was based could be fully recorded. Thereafter counsel presented arguments on expenses. I shall repel the defenders' preliminary pleas 1 and 2; repel the pursuer's third plea-in-law and allow issues and find no expenses due to or by either party in relation to the procedure roll discussion thereby reflecting the necessity for the defenders to have the pursuer's position made clear at procedure roll in relation to the matter of primary and secondary victims.