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Cite as: [2004] ScotCS 65

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Skinner v. Scottish Ambulance Service [2004] ScotCS 65 (12 March 2004)

OUTER HOUSE, COURT OF SESSION

A324/03

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

sitting as a Temporary Judge

in the cause

IAIN HENRY SKINNER

Pursuer;

against

SCOTTISH AMBULANCE SERVICE

Defenders:

________________

Pursuer: Dorrian, Q.C., Cherry; Thompsons

Defenders: Peoples, Q.C., A.F. Stewart; R F Macdonald, Solicitor, Scottish Health Board

12 March 2004

[1] On 1 April 2000 the pursuer, an ambulance technician employed by the defenders, had to assist in attending to an unconscious man lying in the kitchen of a house. Attempts had been made to revive him by dousing him with cold water, thus making the floor wet. The pursuer was asked to assist his colleague in gaining intravenous access into a vein of the unconscious man. The pursuer was asked to apply pressure to the end of the canula, the device used in conjunction with a needle for gaining access to the vein. The pursuer avers that the pressure he applied increased the risk of a needlestick injury. He also avers that a system which did not require pressure to be applied in such a way would have prevented his injury.

[2] While the pursuer's colleague was removing the end cap from the needle to apply it to the canula as a seal, he slipped and jabbed the needle into the pursuer's left thumb.

[3] The pursuer avers that the needle was contaminated with the blood of the unconscious person who, he was advised, was a homosexual poly-drug user. Accordingly he was a potential carrier of a multiplicity of untreatable infections.

[4] The pursuer avers that the type of canula used, a "venflon", which involved exposure of the needle on withdrawal from the vein carried an obvious risk of injury in operations in such environments. He avers that an alternative type of canula which did not carry the same risk of injury could have been used. Thus the pursuer avers that the provision of a different type of canula would have avoided the pursuer's accident at (9A-B). He also avers that a system of work which did not require the technician to put pressure on the canula would have prevented the injury. In one of the condescendences of fault the pursuer again avers "there was an alternative type of canula that could have been used, which did not carry the same risk of injury, but these were not available to him at the material time."

[5] In response, the defenders aver that the type of canula desiderated by the pursuer had not been properly evaluated but, in particular -

"Further explained and averred that a needle and syringe, of the type used by the defenders at the material time, cost approximately five pence each. A syringe and 'safety' needle of the type desiderated by the pursuer, whereby the needle withdraws completely into a plastic covering, would cost approximately 26.45 pence each. To switch to such needles would therefore lead to a substantial increase in the defenders' costs."

and, further, at p.19: "Any alternative would still present a risk to employees. Any alternative would lead to substantially higher costs." Issue is joined as to the suitability of the needle in question.

[6] The short point taken at procedure roll was that while sending the case to a proof before answer (inevitably, due to the above quoted inconsistent averments of fact and fault in relation to the prevention of the accident), the court should at this stage uphold the pursuer's third plea-in-law, which was in the following terms: "The defenders' averments anent the cost of a safer device being irrelevant should not be admitted to probation."

[7] The pursuer argued that no enquiry into the cost benefit analysis of the alternative provision was relevant in terms of his statutory case.

[8] That statutory case was pled under Regulation 4 of the Provision and Use of Work Equipment Regulations 1998. The pursuer pled as follows:

"Further and in any event, the accident was caused by the defenders' breach of statutory duty incumbent upon them by virtue of the Provision and Use of Work Equipment Regulations 1998. Regulation 4 thereof provides inter alia that:

'(1) Every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided.

(2) In selecting work equipment, every employer shall have regard to the working conditions and to the risks to the health and safety of persons which exist in the premises or undertaking in which that work equipment is to be used and any additional risk posed by the use of that work equipment.

(3) Every employer shall ensure that work equipment is used only for operations for which, and under conditions for which, it is suitable.

(4) In this regulation "suitable"... means suitable in any respect which it is reasonably foreseeable will affect the health and safety of any person.'"

[9] Those Regulations were enacted in purported implement of Council Directives, viz. 89/391/EEC, the Framework Directive and the daughter Work Equipment Directive of 30 November 1989, 89/955/EEC as amended by 95/63/EEC.

[10] In the preamble to the Framework Directive, it is stated:

"Whereas the improvement of workers' safety, hygiene and health and work is an objective which should not be subordinated to purely economic considerations."

[11] By Article 6, thereof general obligations are put on employers on the basis of general principles, which include avoiding risks, evaluating risks which cannot be avoided, and replacing the dangerous by the non-dangerous or the less dangerous.

[12] The Work Equipment Directive notes that directives must avoid imposing administrative financial and legal constraints in a way which would hold back the creation and development of small and medium sized undertakings. It provides by Article 3, that:

"General obligations

1 The employer shall take the measures necessary to ensure that the work equipment made available to workers in the undertaking and/or establishment is suitable for work to be carried out or properly adapted for that purpose and may be used by workers without impairment to their safety or health.

In selecting the work equipment which he proposes to use, the employer shall pay attention to the specific working conditions and characteristics and to the hazards which exist in the undertaking and/or establishment, in particular at the workplace, for the safety and health of workers, and/or any additional hazards posed by the use of work equipment in question.

2 Where it is not possible fully so to ensure that work equipment can be used by workers without risk to their safety or health, the employer shall take appropriate measures to minimise the risks."

Argued for the pursuer
[13] The duty on the employer by Regulation 4, is not qualified by reasonable practicability and, accordingly, the cost benefit analysis sought to be embarked upon by the defenders is not relevant. The duty which is imposed on employers is to provide suitable equipment and that must be done regardless of cost. The absence of any qualification on the duty such as the requirement of reasonable practicability found elsewhere in the statutory regime, means that there is no defence of that order open. The pursuer, however, conceded that the averments about the absence of clinical trials might be relevant when considering suitability.

[14] There was cited to me the following passage from the 13^th edition of Munkman on Employer's Liability at para.13.11:

"The burden imposed by this regulation on an employer is a heavy one: wherever the use of a machine is capable of giving rise to a risk of injury it is deemed to be unsuitable and whenever injury arises out of such use the employer will be strictly liable."

That passage is not necessarily appropriate when considering equipment as opposed to a machine but is, in any event, in my opinion, too widely stated if it was intended to convey that injury arising from the use of a machine or of equipment involves strict liability.

Argued for the defenders
[15] It cannot be said without enquiry whether the cost of any device said to be safer is an irrelevant factor. The cost of the alternative suggested by the pursuer was five times greater than that supplied and it cannot be determined without enquiry whether suitability of the needle provided was a matter of generality, or whether the duty extended to only one particular set of circumstances which could possibly arise. Suitable does not mean faultless, and the most that the pursuer can say in the present case is that in the particular circumstances there would have been some diminution of risk. The pursuer does not say that the type of needle supplied was unsuitable, merely that a different type of needle, costing five times as much, would have reduced the risk of injury in the circumstances condescended on. It could not be said at this stage without enquiry that the costs between one suitable needle and another might not be relevant to provision. Suitability depends on the foreseeability of risk and, since that is a matter of degree, the question of cost can enter into it and is not precluded by the terms of the EC Directive.

Decision
[16] I consider the point to be a narrow one, which would be better determined after an enquiry into the whole facts. Although reasonable practicability does not in so many words form part of the regulations, there are features in the regulations themselves which do not amount to a duty of insurance. In my opinion, suitability in this case requires to be evaluated and as between two potentially suitable pieces of equipment, I do not think that it can be said, as a matter of strict law, that a piece of equipment which might reduce risk must be provided whatever the cost. Suppose the alternative cost £1,000 as opposed to 5p.

[17] Such an approach would not follow the terms of the Directive which carefully states that improvement to health should not be subordinated to purely economic considerations. The use of the word "purely" is, in my opinion, significant. Had it been intended wholly to exclude cost, then that word would be an unnecessary addition to the Directive.

[18] When these Directives were translated into the domestic regulations, one does find qualifying phrases, even if the words "reasonably practicable" are not used. In the selection of equipment an employer "shall have regard to" the working conditions and to the risks, and the equipment has to be used under conditions for which it is suitable. Little assistance is gained from the definition of suitable in the regulation where it is explained, as being suitable in any respect, which it is reasonably foreseeable will affect the health or safety of any person. To define "suitable" as being suitable, in any respect is not illuminating. It would appear that there is a margin of appreciation, not only with regard to risks, but also with regard to the suitability of equipment. Economic considerations might only be ignored if there was an unsuitable dangerous piece of equipment when an alternative must be found. That one is said to be safer than another might not make that other unsuitable in all the circumstances. Cost may be an element, but its significance has to be assessed in light of the statutory provisions.

[19] It is for these reasons that it is not appropriate to sustain the pursuer's third plea-in-law at this stage. I propose to allow the whole case to go to a proof before answer and, since the pursuer's plea is one directed towards exclusion from probation of the averments above quoted, it requires to be repelled.