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Campbell v. East Renfrewshire Council [2004] ScotCS 81 (31 March 2004)
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OUTER HOUSE, COURT OF SESSION |
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A3090/01
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OPINION OF R F MACDONALD QC (Sitting as a Temporary Judge) in the cause RAYMOND CAMPBELL Pursuer; against EAST RENFREWSHIRE COUNCIL Defenders:
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Pursuer: R.G. Milligan; Digby Brown, SSC
Defenders: Miss A. E. Smart; Reid Cooper Partnership
31 March 2004
Introduction
[1] In this action of damages for personal injuries the pursuer, who was born on 8 September 1961, sues his employers for injuries which, he avers, he sustained in the course of his employment on or about 10 January 2000. The averments in condescendence 2 relating to the circumstances of the accident are as follows:"On or about 10 January 2000 the pursuer was working in the course of his employment with the defenders as a Groundsman. He was working with Pat Gallagher, the supervisor, Thomas Pendergast, the chargehand and Alan Bruce. They were all working on an embankment at the roundabout at Arthurlie Street, Barrhead. The embankment was the pursuer's workplace in terms of Regulation 2(1) of the Workplace (Health, Safety and Welfare) Regulations 1992. The embankment was very steep. It had been raining heavily all day. The weather was wet and windy. The embankment was saturated, making it very slippery. At about 1.45pm, the pursuer was pulling shrubs out of the embankment. He was working near the top of the embankment. As he pulled one of the shrubs, he lost his footing in the mud. He fell about 20 feet to the bottom of the embankment, causing the loss, injury and damage hereinafter condescended upon. The pursuer reported the accident to the defenders. On 10 January 2001 Pat Gallagher completed and internal Accident/Incident Report Form in which he described the accident in the following terms: 'When he was digging out shrubs from the banking he slipped and fell down the banking injuring his left knee'. At the end of that form, under the section relating to prevention of recurrences of such accidents, it was recommended that employees should be advised to assess site conditions before carrying out any work. On 12 January 2001 Stephen Thain completed the defenders' HSE Report of an injury or dangerous occurrence in which he described the accident in the following terms: 'When Raymond was digging out shrubs from the soil, he slipped and rolled down the banking injuring his right knee'."
An averment by the defenders in answer that the pursuer had been issued with protective footwear for use in such circumstances is admitted by the pursuer, under explanation that he was wearing the footwear at the time of the accident.
[2] A case of common law fault is pleaded by the pursuer in condescendence 3 and a case of breach of statutory duty is pleaded by him condescendence 4. The case of breach of statutory duty is based upon Regulations 12 and 13 of the Workplace (Health, Safety and Welfare) Regulations 1992. These Regulations, so far as relevant, provide as follows:"12.-(1) 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.
(2) Without prejudice to the generality of paragraph (1), the requirements in that paragraph shall include requirements that -
(a) the floor or surface of the traffic route shall have no hole or slope, or be uneven or slippery so as, in each case, to expose any person to a risk to his health or safety; and
(b) every such floor shall have effective means of drainage where necessary.
(3) So far as is reasonably practicable, every floor in a workplace and the surface of every traffic route in a workplace shall be kept free from obstructions and from any article or substance which may cause a person to slip, trip or fall.
13.-(1) So far as is reasonably practicable, suitable and effective measures shall be taken to prevent any event specified in paragraph (3).
(3) The events specified in this paragraph are -
(a) any person falling a distance likely to cause personal injury; and
(b) any person being struck by a falling object likely to cause personal injury."
The pursuer avers that the defenders were in breach of Regulation 12 because the floor of the workplace had a slope and was slippery so as to expose him to a risk to his health or safety, and the defenders did not take all reasonably practicable measures to keep the floor of the workplace free from mud, which was a substance likely to cause a person to slip. So far as Regulation 13 is concerned, he avers that the defenders did not take all reasonably practicable measures to prevent any person falling a distance likely to cause personal injury. In answer the defenders aver that the embankment was not a floor in a workplace and that in any event, if it was, it was not reasonably practicable for the defenders to keep the surface of the embankment free from substances likely to cause a person to slip or for them to take measures to prevent his fall.
[3] When the case called before me on procedure roll Miss Smart, for the defenders, moved me to sustain the defenders' first plea-in-law (a general plea to the relevancy) by withholding the pursuer's statutory case in condescendence 4 from probation. She intimated that no challenge was being made to the common law case of fault in condescendence 3.Submissions for the Defenders
[4] Miss Smart began her submissions by accepting that a workplace could be out of doors. Regulation 2(1) provided that "workplace" meant any premises or part of premises which are not domestic premises and are made available to any person as a place of work. "Premises" meant any place , including an outdoor place: see Sections 52 and 53 of the Health and Safety at Work Etc Act 1974 ("the 1974 Act"). The question which arose in this action, said Miss Smart, was whether the workplace in which the pursuer was working could be said to have a floor. She submitted that Regulations 12 and 13 were not applicable in this case as the embankment was not a floor. She pointed out that Regulation 12(1) provided that every floor in a workplace "shall be of a construction such that the floor is suitable for the purpose for which it is used", and submitted that the phrase "shall be of a construction" connoted that a floor had to be a manmade structure. The use of the word "construction" connoted some human intervention in the constructing of a floor. The word "floor" did not apply to mother earth or the natural features of the landscape. Regulation 12 referred to "every floor in a workplace and the surface of every traffic route in a workplace". The expression "every floor in a workplace" was not synonymous with the expression "the surface of every traffic route", and, if the word "floor" included the ground, the latter expression was otiose. The Guidance Notes to the Regulations referred to floors and traffic routes being of sound construction and having adequate strength and stability, taking account of the loads placed on them and the traffic passing over them (Note 89) and to the surfaces of floors and traffic routes being free from any hole, slope, or uneven or slippery surface (Note 90). It was also permissible to have regard to the Directive which the Regulations implemented. The Directive in question was the Workplace Directive 89/654/EEC. So far as floors were concerned, Sections 9.1 and 9.2 of Annex 1 of the Directive provided as follows:"9.1 The floors of rooms must have no dangerous bumps, holes or slopes and must be fixed, stable and not slippery ...
9.2 The surfaces of floors, walls and ceilings in rooms must be such that they can be cleaned or refurbished to an appropriate standard of hygiene."
Miss Smart underlined that Section 9.1 dealt only with "the floors of rooms". So far as traffic routes were concerned, Section 12.1 of Annex 1 provided as follows:
"Traffic routes, including stairs, fixed ladders and loading bays and ramps, must be located and dimensioned to ensure easy, safe and appropriate access for pedestrians or vehicles in such a way as not to endanger workers employed in the vicinity of these traffic routes."
Section 21 of Annex 1 contained special provisions relating to outdoor workplaces and, so far as relevant, was in the following terms:
"21.1 Workstations, traffic routes and other areas or installations outdoors which are used or occupied by the workers in the course of their activity must be organised in such a way that pedestrians and vehicles can circulate safely ... Section 12 is also applicable to outdoor workplaces.
21.3 When workers are employed at workstations outdoors, such workstations must as far as possible be arranged so that workers ... (d) cannot slip or fall."
Miss Smart pointed out that the pursuer was not at the material time working at a workstation, and that Section 21 did not cover people who were simply going from place to place outdoors.
[5] Miss Smart next considered the dictionary meaning of the word "floor". She referred to the Oxford English Dictionary (2nd Ed, 1989) at pages 1077-1078. The first meaning of the word, which Miss Smart submitted was its normal meaning, was "the layer of boards, brick, stone etc. in an apartment, on which people tread; the under surface of the interior of a room". It was only when it came to give a seventh meaning for the word "floor" that the Oxford English Dictionary provided the synonym "the ground". Two instances of this meaning were given, one of which was obsolete in dialect, and the other of which was colloquial in the context of cricket. Miss Smart submitted that when Parliament used the word "floor" in the Regulations it did not intend to refer to "the ground". [6] Miss Smart thereafter went on to consider the judicial construction of the word "floor" in the cases under the Factories Acts. Before she embarked on this exercise she referred me to two statements of judicial disapproval (both in the Outer House) of such an approach to the construction of the Regulations. [7] In English v North Lanarkshire Council 1999 S.C.L.R. 310 Lord Reed had to consider a case based on alleged breach of certain of the Provision and Use of Work Equipment Regulations 1992 and, in particular Regulations 5, 8, 9 and 11 thereof. His Lordship expressed the view that the interpretation of those Regulations had to be approached in the context of the relevant Framework Directive and in light of the general guidance given by the European Court of Justice and by national courts both in the United Kingdom and in other jurisdictions within the European Union, and that an approach based on the Factories Act was fundamentally misconceived and also potentially misleading: see page 319C-E. Further, in McGhee v Strathclyde Fire Brigade 2002 S.L.T. 680 Lord Hamilton, at page 683, paragraph 9, commented as follows on the views of Lord Reed:"Although the European provisions envisage an improvement in existing standards in member states, the task of interpretation is not, in my view, assisted, at least in the first instance, by considering the terms (as domestically interpreted) of previous and now repealed UK health and safety provisions. In English v North Lanarkshire Council, Lord Reed at 1999 SCLR, p 319, expressed the view that an approach to interpretation of the regulations which was based on the Factories Act 1961 was 'fundamentally misconceived'. Counsel of the pursuer submitted that that view was mistaken since (1) the directive envisaged that the system to be implemented would be an improvement on the old system and the latter was accordingly an appropriate starting point, and (2) that some of the words and expressions used in the new were the same as those in earlier provisions interpreted by the courts (as, for example, in Millar v Galashiels Gas Co) and accordingly ought to be interpreted to the same effect. I agree with Lord Reed to this extent. In my view the proper approach to such regulations is in the first instance to approach them untrammelled by superseded legislation and any interpretation of it. If, however, the result of that approach is to produce a situation in which the health and safety of workers appears to be less well provided for than under earlier equivalent provisions, this may cause the court to reconsider its initial interpretation. But, if on further consideration the initial interpretation continues to appear correct, it will fall to be applied even if a less advantageous system is the consequence. I also agree with Lord Reed's view that, for the reasons he gives, an approach to interpretation based on the Factories Acts is, or at least may be, misleading."
Miss Smart said that she was undertaking the exercise of referring to cases under the Factories Acts only for the purpose of looking at the meaning of an ordinary word of the English language.
[8] In Newberry v Joseph Westood & Co Ltd [1960] 2 Ll. L. R. 37 Donovan J held that mother earth was not a floor within the meaning of Section 25(1) of the Factories Act 1937. [9] In Sullivan v Hall Russell & Co Ltd 1964 S.L.T. 192 Lord Kissen held that the unmade earthen surface of an open air woodyard was not a floor within the meaning of Section 25(1) of the Factories Act 1937 as amended. In sustaining the defenders' pleas to the relevancy and dismissing the action, his Lordship stated as follows at page 193:"The basis of the argument for dismissal was that, on the pursuer's pleadings, the earth surface of the woodyard was not a 'floor' in terms of the said statutory provisions, which, therefore, did not apply and could not be invoked. The basis of his alternative argument was that the pursuer's averments regarding the precautions which the defenders could have taken were of doubtful relevancy.
It is clear that the question of the application of the statutory provisions in section 25 of the Factories Act 1937, as amended by section 4 of the Factories Act 1959, to the present case can be decided on the pleadings. The crucial question is whether the unmade earthen surface of the open air yard can be a 'floor' for the purpose of the said statutory provisions. There is no definition of floor in the Acts but the meaning of the word, as used in the said Acts, has been considered in several English cases. None of these cases, except one, is directly in point but there are useful observations and criteria in the opinions in the other cases. Some assistance can also be obtained from the relevant provisions of the said Factories Acts which detail the duties to be observed in regard to floors.
I think that the normal and ordinary meaning of a floor is the lower surface of an enclosed space, such as a room or similar place. It can, in ordinary usage of language, also be used to describe certain surfaces on which people walk or stand or on which objects are placed and which are designed or constructed or adapted for people to walk or stand on or to have objects placed thereon. Before there can be a 'floor', which is not in an enclosed space, I think that its surface must be constructed or adapted for people to walk or stand on or to hold objects. A natural cave may have a floor, although no work of construction or adaptation has been done to its lower surface. A floor can be constructed in the open air, but it will depend on the whole circumstances whether floor is an apt word to describe a constructed surface in the open air. I do not think that, in its ordinary meaning, the unmade earthen surface of an open yard can be a floor. It is not in an enclosed space within walls and is not specially constructed for any purpose. It was argued for the pursuer, however, that the Factories Acts made it clear that all such surfaces inside a factory were floors for the purposes of the said Acts. Reliance was placed on section 151(7) of the Act of 1937 which provides that premises shall not be excluded from the definition of a factory by reason only that they are open air premises. There is no dispute that the whole premises of which the woodyard formed part was a factory. I do not think, however, that this subsection assists the pursuer. It seems to me that more assistance, in ascertaining the meaning of floor for the purposes of the Acts, is to be obtained from section 25 of the Act of 1937. The other words used in conjunction with 'floors' in section 25(1) of the Act of 1937 all refer to something made or constructed or designed for a particular use. The duties imposed by the first part of section 25(1), that is, that the floors and other places mentioned there are to be 'of sound construction and properly maintained', are only apt if the floors and other places mentioned are constructed or, in some way, specially adapted for a specific purpose. 'Sound construction' is an unusual phrase to apply to an earthen surface on which no work had been done to adapt it for a particular use. 'Properly maintained' is an equally incongruous phrase, especially as 'maintained' is defined in section 152 of the 1937 Act as meaning 'maintained in an efficient state, in efficient working order, and in good repair'. On that reasoning, I do not think that the unmade earthen surface of the woodyard which, on the pleadings, had nothing done to it to adapt it for any specific use, can be said to be a 'floor' for the purpose of the Acts. If it were a floor, any field or waste ground, which was inside a factory, would be a floor for the purpose of the Factories Acts. I cannot read such an extended meaning into the wording used in the said Acts. Counsel for the pursuer suggested that it was difficult to see why unmade earthen surfaces should be excluded from these safety provisions and that, therefore, the intention must have been to include them as floors or other places to which the said statutory provisions applied. He suggested that because the word factory has been given a specialised meaning in the Acts, I should give a wider and specialised meaning to floors as used in the Acts. I can only do so if the wording of the Acts permits me to do so and, for the reasons which I have stated, I cannot find any basis for such a wide and unusual meaning. Whatever other essentials may be required before a surface can be a floor for the purpose of the said statutory provisions, I think that one essential is that some work of construction or adaptation must first be done, if the surface is not within walls or enclosed.
I think that support for this view can be obtained in the opinions in the reported cases. There is no case where an earthen surface, on which no work has been done and which is in the open air has been held to be a floor. I was referred to the cases of Tate v Swan Hunter [1958] 1 W.L.R. 39 and Newberry v Westwood [1960] 2 Lloyd's Rep. 37 by counsel for the defenders. The facts in the former case are unlike those in the present case but the opinions are in favour of the views which I have expressed. The latter case was somewhat similar to the present case and it was there held that 'mother earth' could not be a floor. I do not think that any support for counsel for the purser's submissions could be found in the cases to which he referred me. The case of Taylor v R.H. Green & Silley Weir Ltd (1950) 84 Lloyd's List Reports 564 and [1951] 1 Lloyd's Rep. 345 relates to a constructed sill round the inside of a dry dock and Harrison v Metropolitan-Vickers Electrical Co Ltd [1954] 1 All E.R. 404 relates to the sand bed of a foundry. The surfaces which were held to be floors in these cases were constructed or made for specific purposes. This differentiates them from the present case and, if anything, supports the conclusion which I reached."
"... it is, I think, vitally important to look, not only at the single subsection which is invoked by the pursuer, but to the terms of the section as a whole. When one does so it will be seen that the section has regard to floors, steps, stairs, passageways and gangways and it deals with the construction, maintenance and the preservation of a safe surface. It also deals with handrails, staircases and guards to staircases and the provision of ladders. It therefore appears to me that Parliament, in passing this section, had regard to 'floors' in their ordinary sense as providing means of access which would normally be used by people in the factory in the course of their ordinary and daily employment ...
I was referred to certain cases in which the question of whether or not a particular area should be regarded as a 'floor' has been raised. From these cases one, I think, can derive only this assistance, that one approaches the problem in common sense way, using the word 'floor' in its ordinary meaning and not in some strange and unusual connotation."
"These regulations impose requirements with respect to ...
(j) Protection from falling objects and persons falling from a height, or falling into a dangerous substance (Regulation 13)."
Finally, Miss Smart drew attention to Sections 12.5 and 14.3 of Annex 1, which, she submitted, supported her approach to the interpretation of Regulation 13(3).
Submissions for the Pursuer
[13] In reply Mr Milligan submitted that it was important to appreciate how much wider than the Factories Act the terms of the Regulations were. "Floor" in the Factories Act was used in a more limited way than it was used in the Regulations. The word "workplace" in the Regulations was wider than the expression "place of work" in the Factories Act. In Gallacher v Kleinwort Benson (Trustees) Ltd and Others (unreported, 12 March 2003) Lord Reed placed in context his earlier remarks in English v North Lanarkshire Council. At paragraph 43 his Lordship stated as follows:"In considering these submissions, it may be helpful to begin by discussing the somewhat complex history of the relevant legislation. In that regard, I should place in context an observation which I made in English v North Lanarkshire Council, 1999 SCLR 310, to the effect that an approach to the interpretation of the Provision and Use of Work Equipment Regulations 1998 (SI 1998 No. 2306) which was based on the Factories Acts was misconceived. That case was concerned with regulations which, like the Workplace Regulations, were intended to implement a European directive; and they adopted an approach, and language, which differed in a number of important respects from the earlier legislation under the Factories Acts which they replaced. The submissions made by counsel in that case however relied entirely on authorities concerned with the Factories Acts, and ignored the European law dimension. My observation was made in that context. It is plainly necessary to take account of the European law dimension in the interpretation and application of such regulations; for EC law may require a departure from the approach adopted under the Factories Acts (even, possibly, where language identical to that of the Factories Acts is employed). It is therefore necessary to approach the interpretation of such regulations without any assumption that the approach adopted under the Factories Acts continues to apply. On the other hand, where the new regulations adopt the language used in the older regulations under the Factories Acts, or a fortiori, where the new regulations refer expressly to provisions of the Factories Acts, authorities on the interpretation of the Factories Acts may continue to be relevant. The observation made in English v North Lanarkshire Council was not intended to suggest the contrary."
Mr Milligan underlined that the word "premises" was of very wide connotation as it included any place: see Section 53(1) of the 1974 Act. He also drew attention to Regulation 3(4), which begins with the words "As respects any workplace which is in fields", and submitted that it was therefore at least envisaged that Regulation 12 could apply to a field. His short point was that the embankment in this case was a "floor". He pointed to meaning 2a for the word "floor" in the Oxford English Dictionary, which is "the framework or structure of joists etc. supporting the flooring of a room". He submitted that the construction referred to a state, not an action, and that there was no requirement for manmade construction in order that something could constitute a "floor". He accepted the primary definition of "floor" in its everyday sense was an artificial structure, but submitted that at the very least it could mean "ground". Just as the word "workplace" was to be given a wide definition, so also was the word "floor". I had to be satisfied that the statutory case was clearly irrelevant before I was entitled to dismiss it. Sections 12 and 21 of Annex 1 to the Directive were clearly not confined to the interior of rooms. He accepted that Lord Kissen's approach in Sullivan v Hall Russell & Co was that, for a surface which is not within walls or enclosed to be a "floor", some work of construction or adaptation had first to be done. The Regulations had clearly gone beyond Section 9 of Annex 1 to the Directive, which related only to "the floors of rooms". In the present action it was averred in Answer 2 by the defenders that there was a honeycombed patterned base beneath the soil on the embankment which provided additional grip underfoot. It would be a bizzare result if Regulation 12 did not apply in this case. In response to a question from me Mr Milligan accepted that, if I were to accede to his submission, this would be the first case in which it had been held that an earthen surface in the open air on which no work had been done would be held to have been a "floor".
[14] Turning to Regulation 13, Mr Milligan stated that the pursuer offered to prove that he was at the top of a very steep embankment, that he slipped and that he fell 20 feet to the bottom of it. The question was whether he had fallen a distance likely to cause personal injury. The steepness of the embankment was a material question of fact. The pursuer had ended up at a level lower than that at which he had been. The defenders in their submission were seeking to read into the Regulation words which were not there. He accepted that in this case various synonyms could be used for the word "fall", such as "slid", "tumbled" or "rolled". He drew attention to the meanings given for the noun and verb "fall" and the adjective "falling" in the Oxford English Dictionary. The court had to treat the issue raised under Regulation 13 as a mixed question of fact and law, and at the very least he was therefore entitled to a Proof before Answer.Discussion
[15] The word "floor" is an ordinary word of the English language which is common in everyday use. Generally speaking, it has no technical or abstruse meaning. It is not disputed in this action that the embankment on which the pursuer was working constituted a "workplace" within the meaning of Regulation 12(1). The issue which I have to decide is therefore whether the word "floor" as used in that Regulation is apt to cover the embankment. [16] Having regard to the observations of Lord Reed in English v North Lanarkshire Council and Gallagher v Kleinwort Benson (Trustees) Ltd and Others I am of the opinion that, when a question of construction of the Regulations, which were intended to implement a European Directive, arises the first step should be to consider the question solely within the European Law dimension. If such an approach does not provide an answer to the question raised it is, in my opinion, then permissible to consider other sources which may be of assistance in the task of construction. These sources can include previous judicial decisions construing the word or expression under consideration or dictionary meanings. If regard is had to previous decisions construing the word as used in a different statutory provision it will, of course, be necessary to exercise considerable caution. [17] Adopting that approach in this case, I begin by considering the European Law dimension. When I do so, I obtain no assistance, for the simple reason that the Regulations are wider than the Directive which they implement. The Directive deals only with "the floors of rooms", whereas Regulation 12 applies to "every floor in a workplace", and it is accepted that a "workplace" can be out of doors (Regulation 2(1) and Section 53(1) of the 1974 Act). The embankment is plainly not covered by the terms of the Directive itself, for on no possible view could it be argued to constitute the floor of a room. [18] I therefore consider that it is necessary, while exercising due caution, to search for assistance in previous judicial interpretations of the word "floor" in statutory provisions dealing with health and safety at work. On undertaking that exercise I derive considerable assistance from the approaches taken by Donovan J in Newberry v Joseph Westwood & Co Ltd and Lord Kissen in Sullivan v Hall Russell & Co Ltd. The general approach of the former was that mother earth was not a "floor". The meaning of the word "floor" was considered in much more detail by Lord Kissen in Sullivan v Hall Russell & Co Ltd. I agree with him that the normal and ordinary meaning of a floor is the lower surface of an enclosed space, such as a room or similar space, and that it can also be used to describe certain surfaces on which people walk or stand or on which objects are placed and which are designed or constructed or adapted for people to walk or stand on or to have objects placed thereon. I further agree with him that, before there can be a "floor" which is not in an enclosed space the surface must be constructed or adapted for people to walk or stand on or to hold objects. I also agree with him that a floor can be constructed in the open air, but that it will depend on the whole circumstances whether, "floor" is an apt word to describe a constructed surface in the open air, and that, in its ordinary meaning, the unmade earthen surface of an open yard cannot be a floor as it is not in an enclosed space within walls and is not specially constructed for any purpose. Lord Kissen pointed out that the other words used in conjunction with "floors" in Section 25(1) of the 1937 Act, such as "of sound construction and properly maintained", all referred to something made or constructed or designed for a particular use. As he put it, whatever other essentials may be required before a surface can be a floor for the purpose of the statutory provisions, one essential was that some work of construction or adaptation must first be done, if the surface is not within walls or enclosed. The exact words in Section 25(1) of the 1937 Act to which he referred are not repeated in Regulation 12, but Regulation 12 does require every floor in a workplace to be of a construction such that it is suitable for the purpose for which it is used. It accordingly seems to me that, while there is a difference in wording between Section 25(1) of the 1937 Act and Regulation 12, the substantive approach taken by Lord Kissen to the meaning of the word "floor" in the former provision is equally applicable to the latter. In a telling sentence in his opinion Lord Kissen remarked:"There is no case where an earthen surface, on which no work has been done and which is in the open air, has been held to be a floor."
That statement remains as true today as it was when Lord Kissen made it in 1964.
[19] Further, I am of the opinion that the dictionary definitions of the word "floor" to which I was referred support the approach for which the defenders contend. Put shortly, the primary and ordinary meaning of the word "floor" is the lower surface of the interior of a room or building. While the word "floor" is no doubt often used to mean "the ground" in dialect, particularly in certain parts of England, I do not think, and it was never argued, that Parliament can be taken to have used the word in the sense in which it is normally used in a dialect. [20] In summary, I am satisfied that the embankment upon which the pursuer avers that he was working at the material time cannot on any possible view be held to constitute a "floor" within the meaning of Regulation 12(1). It had not been constructed in any way and, that being so, the words in Regulation 12(1) "shall be of a construction" cannot apply. The embankment was an earthen surface in the open air on which no work had been done. The word "floor" when used in any statutory provision dealing with health and safety at work has never been held to apply to such a surface. I can find no reason why the word "floor" as used in Regulation 12(1) should now be held to apply to such a surface. I am therefore of the view that the case based upon breach of Regulation 12 is irrelevant. [21] So far as concerns Regulation 13, which deals not only with falls but also with falling objects, it seems to me that the question which arises for decision is whether the words in Regulation 13(3)(a) "any person falling a distance likely to cause personal injury" are apt to cover what is averred to have occurred in this case. The pursuer has averred that, as he pulled out a shrub, he lost his footing in the mud and then fell about 20 feet to the bottom of the embankment. In other words, what happened was that he fell to the ground and then rolled or tumbled to the bottom of the embankment. In seeking to construe the expression "falling a distance likely to cause personal injury" I can derive no assistance from the Directive, the terms of which are much more limited than the Regulations in this context. Regulation 13(3)(a) has been judicially construed only by Sheriff Small in the case of Martin v Koko's. I agree with him that the mischief at which this provision is directed is that of persons falling from a height, or, put another way, from one surface onto a different surface. The only fall which the pursuer avers occurred was onto the ground on which he was standing. He clearly rolled or tumbled down the embankment thereafter and ended up at a lower altitude than that at which he had fallen, tripped or slipped, but he remained throughout on the same surface namely, the surface of the embankment. In my view, Regulation 13(3)(a) is designed to cover only falls from a height in the sense of a fall which results in the person ending up on a surface which is at a lower height than the surface upon which he initially stood, so that it can be said that a fall from the higher to the lower surface is, by reason of the distance between them, likely to cause personal injury. I am accordingly of the view that Regulation 13(3)(a) cannot possibly apply to the circumstances of the pursuer's accident as averred on Record and that his case based on breach of that Regulation is irrelevant.Decision
[22] For the reasons given above, I am satisfied that the cases of breach of statutory duty pleaded by the pursuer in condescendence 4 are both irrelevant. I shall therefore sustain a plea-in-law 1 for the defenders to the extent of withholding the cases of breach of statutory duty from probation by deleting the averments in condescendence 4.