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Cite as: [2004] ScotCS 87
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Harte v. Dalkeith Demolitions Ltd [2004] ScotCS 87 (02 April 2004)
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OUTER HOUSE, COURT OF SESSION |
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A1101/03 |
OPINION OF M G. THOMSON, Q.C. (Sitting as a Temporary Judge) in the cause ANNE HARTE Pursuer; against DALKEITH DEMOLITIONS LIMITED Defender:
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Pursuer: E MacKenzie; Allan McDougall
Defenders: R. N. Thomson; Simpson & Marwick, W.S.
2 April 2004
Introduction
[1] In this action the pursuer seeks damages in respect of the death on 19 April 2000 of her cohabitee ("the deceased") from his employers. The pursuer and the deceased are averred to have lived together as husband and wife for 17 years immediately prior to his death. [2] The circumstances of the deceased's fatal accident are averred by the pursuer in Article 2 of Condescendence as follows:"On or about 19 April 2000, the deceased was working in the course of his employment as a labourer with the defenders. He was working at the defenders' scrap yard at Mayfield, Dalkeith. His duties included using cutting and burning equipment to dismantle scrap metal. Also on site that day was Allan Waugh of William Waugh Edinburgh Limited, scrap metal suppliers. He was removing and bailing scrap metal. There was on site a 360 degree track excavator in a dilapidated condition. It was scrap metal. It was in the way of Mr Waugh's work. Mr Waugh had told the defenders that it was in the way. He was told by the defenders that it would be dealt with. These matters were discussed at the defenders' site office. The deceased was cutting and dismantling said excavator at the time of his death. He was used to working under his own initiative. In these circumstances it is believed and averred that the deceased was aware of the need to dismantle the excavator and had either been instructed by the defenders to do so or, alternatively, had done so using his own initiative. The excavator was sitting at an angle on a slope. The deceased was cutting parts off the excavator. He using an oxypropane torch. When part of the boom was cut, what remained of it fell and struck the deceased. He was crushed between the boom and the excavator. He sustained fatal crush injuries to his chest. The police and the emergency services attended the scene of the accident. The accident was investigated by members of the Health and safety Executive, Belford House, 59 Belford Road, Edinburgh. They issued an Improvement Notice to the defenders."
"The deceased had previously been employed by the defenders as a machine operator. He was also a foreman. Approximately a year prior to the accident, he suffered a heart attack. He had thereafter been allocated light duties. On the day of the accident, the deceased had been working in a shed at the scrap yard. He had been sorting out non-ferrous scrap metal. The deceased was not instructed to cut up the excavator. He took it upon himself to do so. The defenders had no reason to believe that the deceased would attempt to cut up the excavator. They had no reason to believe that the deceased would do anything other than the light duties allocated to him. The excavator had been on site for some months prior to the accident. As at the date of the accident, there was no need for the excavator to be cut up."
"With reference to the averments in answer, not known and not admitted that Mr Waugh and Gary Ryan moved the excavator prior to the accident. Not known and not admitted that upon the excavator being moved it did not interfere with Mr Waugh's work. Not known and not admitted that on the day of the accident the deceased had been working in a shed at the scrap yard. Not known and not admitted that he had been sorting out non-ferrous scrap metal Quoad ultra the averments in answers are denied save insofar as coinciding herewith".
"Cutting an excavator is a potentially hazardous job. It is more hazardous if the excavator is unstable due to being on a slope. It is important that parts of the excavator which might move during cutting and hence cause death or injury are adequately supported to stop them from falling. The operation in which the deceased was engaged at the time of the accident should have been the subject of a risk assessment in terms of the defenders' obligations under the Management of Health and Safety at Work Regulations 1999. Had the defenders been taking reasonable care for the safety of their employees, they would have carried out such an assessment. Had they carried out such an assessment, the risk of an accident such as that which befell the deceased would have been readily apparent."
"The accident was caused by the fault of the defenders. It was their duty to take reasonable care for the health and safety of their employees, including the deceased, and to avoid exposing them to unnecessary risks to their health and safety. It was their duty to take reasonable care to provide their employees with a safe place of work. It was their duty to take reasonable care to devise, institute and enforce a safe system at work. In the circumstances, it was their duty to take reasonable care to have the excavator moved to level ground before the cutting operation began. It was their duty to take reasonable care to check that parts of the excavator which might move during cutting and hence cause death or injury were adequately supported to stop them from falling. In each and all of these duties the defenders failed and by their failure caused the accident. They knew, or ought to have known, that if they failed in these duties an accident such as that hereinbefore condescended upon would be likely to occur. Had they duly performed the duties incumbent upon them, the accident would not have occurred and the deceased would not have been killed."
In answer, the defenders plead a case of contributory negligence based inter alia on the averment that it was the deceased's duty not to attempt to cut up the excavator.
[7] The pursuer then pleads two statutory cases. The first alleges a breach by the defenders of Regulation 13 of the Workplace (Health, Safety and Welfare) Regulations 1992 which provides:"(1) So far as is reasonably practicable, suitable and effective measures shall be taken to prevent any event specified in paragraph (3).
(2) So far as is reasonably practical, the measures required by paragraph (1) shall be measures other than the provision of personal protective equipment, information, instruction, training or supervision.
(3) The events specified in this paragraph are - (b) any person being struck by a falling object likely to cause personal injury."
In response, the defenders aver that it was not reasonably practicable for them to take the measures otherwise required in terms of the Regulation because they did not know, nor could they reasonably have anticipated, that the deceased intended to attempt to cut up the excavator.
[8] Secondly, the pursuer avers breaches by the defenders of Regulations 8 and 9 of the Provision and Use of Work Equipment Regulations 1998. Regulation 8 provides:"(1) Every employer shall ensure that all persons who use work equipment have available to them adequate health and safety information and, where appropriate, written instructions pertaining to the use of the equipment.
(3) Without prejudice to the generality of paragraphs (1) and (2) the information and instructions as required by either of those paragraphs shall include information and, where appropriate, written instructions on - (a) the conditions in which and the methods by which the work equipment may be used;
(b) foreseeable abnormal situations and the action to be taken if such a situation were to occur;
(c) any conclusions to be drawn from experience in using the work equipment."
Regulation 9 provides:
"(1) Every employer shall ensure that all persons who use work equipment have received adequate training for purposes of health and safety, including training in the method which may be adopted when using the work equipment, any risks which such use may entail and precautions to be taken."
"The oxypropane torch which the deceased used to cut the excavator was work equipment. The defenders did not provide the deceased with adequate health and safety information pertaining to its use. The defenders did not ensure that the deceased had received adequate training for the purposes of health and safety. The deceased did not receive information, nor was he trained, regarding the circumstances in which the said torch could be used for cutting operations. He was not provided with adequate health and safety information on the safe use of burning equipment when cutting up large machines. He was not provided with adequate training on the safe use of burning equipment when cutting up large machines."
"The pursuer is retired. She was supported by the earnings the pursuer (sic) received from his employment with the defenders. The deceased earned £10,400 net a year at the time of the accident. 70% of his earnings were used to support the pursuer. She has thus suffered and will continue to suffer loss of support. The deceased had intended to work until the normal retirement age of 65."
The pursuer also claims loss of the deceased's services under reference to Section 9 of the Administration of Justice Act 1982. She avers:
"The deceased was in the habit of rendering services to the pursuer. He undertook all the gardening and DIY at their house. The pursuer seeks reasonable remuneration in respect of such services. .......The pursuer had paid a landscape gardener £500 to rearrange the garden to make it more manageable. She pays the Council to cut the grass two days per month for six months of the year at a cost of about £25 per day. She required to pay for a decorator to carry out home decoration."
Submissions for defenders
[12] Counsel for the defenders submitted that the pursuer's pleadings were irrelevant and that the action should be dismissed. If, contrary to his principal submission, they were not irrelevant, then special cause in the form of dubious relevancy, existed to withhold the case from jury trial. Counsel cited three decisions as examples of the proper approach to the test of special cause: Keane v Walker Contracts (Scotland) Limited (12 February 1999, a decision of Lord Osborne), Cassidy v Argyll and Clyde Health Board 1997 SLT 934, and Higgins v DHL International (UK) Limited, 2003 SLT 1301. Counsel adopted the formulation of Lord Osborne in Keane and submitted that the proper approach was that jury trial was appropriate only where the pursuer's pleadings were relevant and specific on all material points. In the present case there were insufficient averments of the imputed knowledge on the part of the defenders. The knowledge in question being whether the defenders should have foreseen that the deceased would attempt to cut up the excavator on the day of the accident. In Cassidy a proof before answer had been allowed rather than a jury trial because of an absence of averments of reasonable foreseeability. Higgins was a decision of Lady Paton on the new rules of court, namely chapter 43 of the Rules of the Court of Session. Lady Paton found that even under the new rules, which do not apply to the present action, a special cause to withhold a case from jury trial existed where there was an absence of factual averments from which any inference of reasonably foreseeability of injury at common law could be drawn. [13] Counsel for the defenders did not submit that his criticism of the pursuer's pleadings on quantum alone would constitute special cause, but rather that as one of a number of cumulative factors it contributed towards special cause. In this context counsel referred to Stark v Ford, 1995 SLT 69, and Bromham v Highland Regional Council, 1997 SLT 1137. In the former case Lord Johnston held that averments in support of a services claim had to be clear, precise and defined to an obvious basis before the case should be considered by a jury. In the latter case Lady Cosgrove allowed a proof before answer where some of the averments in respect of a services claim were of doubtful relevancy. [14] Counsel's attack on the pursuer's pleadings focused on the averments in Article 2 of Condescendence. He submitted that what was critically missing was an averment of actual knowledge on the part of the defenders that the deceased was likely to be doing this particular type of work on his own initiative, namely using an oxypropane torch to dismantle the particular excavator. The pursuer was unable to aver that the deceased had been instructed to do this work. Accordingly the relevancy of the pleadings fell to be tested by reference to the weaker alternative which he offered to prove which was that he had done so using his own initiative. Counsel submitted that the absence of an averment that it was reasonably foreseeable that the deceased would act in this way was fatal to both the common law and statutory cases. [15] Counsel then addressed the three ways in which the pursuer attempted to overcome this difficulty. First she averred that his duties included using cutting and burning equipment. That, he submitted, was insufficient in the absence of any averments that the use of cutting and burning equipment extended to the dismantling of large machinery. Secondly, the pursuer averred that the deceased was used to working under his own initiative, although she denied the defenders averments that he was a foreman. The pursuer was attempting to conflate the averment of working under his own initiative with the notion that he was expected to do anything. He submitted again that prior use of burning and cutting equipment was not sufficient for foresight on the part of the defenders of this particular use of that equipment. [16] Thirdly, the pursuer averred that there was some need to deal with the excavator as an obstacle to Mr Waugh's work. Counsel submitted that the pursuer did not aver that there was, at the time of the accident, any need to move the excavator or to dismantle it. He submitted that the averments did not begin to assert an obstacle case. He pointed out that the pursuer did not know or admit that the excavator had been moved before the accident occurred. Accordingly she could not say that the defenders should have foreseen that the deceased would attempt to cut up the excavator. It was not averred that the only manner in which the excavator could be removed from the way of Mr Waugh's work was to dismantle it. It was not even averred that the reason the deceased was cutting up the excavator was to get it out of Mr Waugh's way. Furthermore, even if the defenders had been told that the excavator was an obstacle to Mr Waugh's work, there was no inference reasonably to be drawn as to the anticipated actings of the deceased. There were no proper averments as to the sequence of events and in particular as to whether the alleged discussion at the defenders' site office came before the deceased commenced cutting up the excavator. Nor was there any averment of the time opportunity for the defenders to act to prevent the accident once they allegedly knew what the deceased intended to do. Accordingly none of the three things which the pursuer prays in aid to impute foreseeability of the accident bore close scrutiny and the weaker alternative of the pursuer's case, that the defender was using his own initiative, was irrelevant. [17] Counsel further submitted that the pursuer's pleadings were based on a false syllogism. It did not follow that because the deceased's duties included using cutting and burning equipment to dismantle scrap metal and the excavator was scrap metal, that the deceased's duties included using cutting and burning equipment to dismantle this particular excavator. The inference which the pursuer sought to draw by means of her "believed and averred averments" were similarly unsound. [18] Counsel for the defender then addressed the remaining Articles of Condescendence. He submitted that the defenders could not be expected to carry out a risk assessment if it was not foreseeable that the deceased would attempt a particular task and if he had not been instructed to do so. The purpose of the risk assessment was to determine whether risk of injury was foreseeable if a particular task was attempted. It was not relevant to the foreseeability of whether the task would be attempted at all. The pursuer's common law case of fault was concerned with the later stage of organising a safe means of dismantling the excavator rather than the earlier stage of whether it was foreseeable that the deceased would attempt to dismantle the excavator. Counsel recognised that the statutory case under Regulation 13 was more difficult for the defenders because it was for them to plead, as they had done, the defence of reasonable practicability. Here again the issue was the same namely foreseeability. [19] With regard to the statutory cases under Regulations 8 and 9, counsel submitted that both of these regulations must be subject to reasonable foreseeabilty of the particular use. It would not be realistic to expect each of these Regulations to apply to any imaginable use of the oxypropane torch. It would only be reasonable to apply them to uses to which the defenders ought reasonably to have foreseen that the deceased would put the equipment. [20] Counsel for the defenders criticised the pursuer's lack of candour in answering the defenders averments in Answer 2. While he accepted that certain aspects of events surrounding the accident to the deceased might have been outwith her direct knowledge, other aspects of the deceased's life, such as whether or not he had suffered a heart attack approximately a year prior to the accident, must have been within her direct knowledge, yet they were covered by a blanket denial. Finally on the merits, counsel criticised the pursuer for not making clear in her pleadings what her position would be if, on the evidence, she failed to establish foreseeability on the part of defenders that the deceased would attempt to dismantle the excavator in the manner and at the time which he did. Would she maintain that the defenders were nonetheless liable to the pursuer? [21] Counsel then mounted a criticism of the pursuer's averments in support of her loss of services claim. Her averments were brief and confusing. There were no adequate averments of times or rates for the services and the concern that the references to grass cutting and home decoration might not be exclusive of the services to be claimed. Because the deceased was not yet 65 years of age at the date of his death, this was not a particularly minor head of claim.Submissions for pursuer
[22] Counsel for the pursuer submitted that when one read all the pursuer's averments in a fair way, her case was relevant. It could not be said that it must necessarily fail, nor was there sufficient reason for not allowing issues. The central issue was one of disputed liability. The pursuer avers that the deceased was working in the course of his employment at the time of his accident and avers specific duties which the defenders are said to have breached. The defenders say that the deceased was solely at fault. That was a simple jury question. Counsel then considered what was meant by "doubtful relevancy". He referred to the decision of Lord Macfadyen in Gillies v Lynch, 2002 S.L.T.1420 at 1422L-1423B. Counsel adopted Lord Macfadyen's explanation:"It is as well, in my view, to recall what is meant by the convenient, but shorthand, phrase 'doubtful relevancy'. Averments are not of doubtful relevancy because one party maintains that they are relevant and the other maintains that they are irrelevant. In the face of such a dispute, the court may hold either that the averments are relevant, or that they are irrelevant. In the former case, the plea to relevancy will be repelled, and either the case will be remitted to proof, or (in the absence of any special cause for not doing so) issues will be allowed. It is only if the court takes the view that it cannot be satisfactorily determined whether the averments are relevant or irrelevant without first hearing evidence that the averments can properly be described as of doubtful relevancy. In that event, inquiry must be by proof before answer, and the possibility of jury trial is excluded".
"If the worker is doing the employer's work, he does not cease to be acting in the course of his employment by the fact that he is working in a place where he is forbidden to go, even by statutory orders".
The decision in National Coal Board v England took the matter one step further and vouched the proposition (also in para.4.35):
"Likewise, disobedience to orders does not necessarily mean that the worker has moved out of the course of the employment".
In the present case the deceased did not cease to be working in the course of his employment merely because he was working on his own initiative.
[26] Counsel for the pursuer then addressed the challenge to the specification of the loss of support and of services claims. He cited Stark v Ford (No.2) 1996 S.L.T.1329 as an example of a case where a loss of services claim was regarded as a claim of the kind which defied precise quantification and accordingly as being one which a jury was in as good, or even better, a position than a judge to make the assessment. He then cited Smith's Executrix v J Smart (Contractors) PLC, 2002 S.L.T.779 as an example of a loss of support claim, which was said to be less specific than the averments in the present case, but where the averments of loss were remitted to probation. [27] Finally, in moving the Court to repel the defenders' preliminary plea and allow issues, counsel referred to the dictum of Lord Fleming in Gardner v Hastie, 1928 S.L.T.497 at 499:"I have come to the conclusion, however, that there is no sufficient reason for withdrawing this case from the ordinary tribunal. It may be a sufficient reason for sending a case, otherwise suitable for jury trial, for proof before a judge that a legal question of special difficulty is involved, but it is not an adequate reason for withdrawing a case from a jury that a legal question may arise at the trial on which it may be necessary for the judge to give directions to the jury. The statutes regulating jury trials in Scotland contemplate that this may happen and give the parties a right to take exception to the judge's direction. It was decided in the case of Mackintosh v Commissioners of Lochgelly (1897, 25 R.32) that the fact that a case involved a difficult question of statutory construction was not a sufficient reason for refusing to send it to jury trial."
Response for defenders
[28] Counsel for the defenders submitted that, in order to plead a relevant case, the pursuer would have to aver either that the deceased's duties included cutting and burning everything in the defenders' scrapyard that was scrap metal, or alternatively that the excavator was in a category of scrap metal which it was the deceased's duty to dismantle, using cutting and burning equipment. The pursuer's pleadings failed to aver either of these states of affairs. He submitted that she was unable to do so. With regard to the pursuer's submission based on the passages in Monkman op cit, counsel submitted that it would not suffice for the pursuer to aver general duties owed by the defenders to the deceased. She required to aver the particular duties related to the dismantling of the excavator and that she could not relevantly do because she was unable to aver the necessary foreseeability on the part of the defenders. The pursuer's pleadings in Article 2 constituted a structure of inferences, some express and some implied, built one upon another. Even the implied inferences explained by counsel for the pursuer would not work because of the failure to aver a satisfactory chronology of events.Decision
[29] The first question is whether the pursuer's pleadings are sufficiently relevant to proceed to inquiry. With some hesitation, I conclude that the pursuer's pleadings in support of the common law case are relevant. While I accept that there is considerable force in counsel for the defenders' attack on the pursuer's averments in Article 2 of Condescendence, I am unable to hold that the pursuer must necessarily fail in her common law case of fault even if all her averments are proved. [30] The pursuer does not have the benefit of the evidence of the deceased. For that reason she has to rely on a number of inferences. If she was able to aver that the deceased had been instructed by the defenders to dismantle the excavator, foreseeability would not be a problem for her. She is only able to aver, however, either that the deceased was so instructed or alternatively that he proceeded to dismantle the excavator using his own initiative. The relevancy of her pleadings must be tested by reference to the weaker of these alternatives, namely that the deceased was working on his own initiative. Her averment that the deceased was aware of the need to dismantle the excavator is also an inference, drawn from the fact of the alleged discussion at the defenders' site office regarding the excavator being in the way of Mr Waugh's work and the fact that at the time of the accident the deceased was using the oxypropane torch to cut up the excavator. The further, unstated inference is that he was either party to, or at least aware of, the discussion at the site office before he began to dismantle the excavator. [31] The precise sequence of events may well be important, as would be the circumstances surrounding the alleged discussion at the site office and whether the deceased was a party to it. The evidence would be important even if the defenders were not also offering to prove additional facts which might affect the inferences which it would be appropriate and proper to draw as to the reason for the deceased's actings and the foreseeability of them to the defenders. [32] I accept, on the authority of the cases cited in Monkman, that the defenders may have owed a general duty of care to the deceased, even if he was using his own initiative at the time of his death and was working contrary to their expectations that he would be performing "light duties", but that, in my opinion, would not relieve the pursuer of the need to establish breaches of the particular common law duties owed by the defenders to the deceased associated with the cutting up of the excavator. Whether or not those specific duties were owed and breached would depend upon whether, from their knowledge of the deceased's practice of working on his own initiative, they should have foreseen that he would use an oxypropane torch to cut up the excavator as he was doing at the time of his accident. That in turn will depend upon the evidence led in support of the existing averments. [33] I regarded as unsatisfactory that the pursuer should use her ignorance of facts within the direct knowledge of the deceased to justify her offer to prove those facts by way of inference, some of which are drawn from other inferences, while at the same time not answering the defenders' averment regarding the deceased's alleged heart attack approximately a year prior to the accident. The significance of that averment is that it is the reason for the defenders' subsequent averment that the deceased had thereafter been allocated light duties and hence that they had no reason to believe that he would attempt to cut up the excavator. [34] The pursuer's statutory case under the 1998 Regulations is, in my opinion, relevant for the same reasons as the common law case. The case under Regulation 13 of the 1992 Regulations is easier for the pursuer to plead relevantly because the onus is on the defenders to plead lack of foreseeability as a defence of reasonable practicability. Accordingly, I would have allowed inquiry of this latter statutory case even if I had held the pursuer's other cases of fault to be irrelevant. [35] I turn now to the question of the appropriate mode of inquiry. In my opinion the proper approach was expressed by Lord Justice-Clerk Thomson in Boyle v Glasgow Corporation 1949 S.C.254 at 261:"Where a case is to go to proof before a Judge there is perhaps no great necessity for over-strictness. The Judge can always allow a certain latitude, and when his patience is exhausted he can indicate that an amendment is desirable and, if the amendment is of a substantial character, there is room for adjournment or for facilities for allowing further evidence. But, when a case is remitted from the Sheriff Court to this Court for jury trial, very different considerations obtain. A properly drawn record is essential in a jury trial, and the points at issue ought to be clearly focused. One wants to avoid wrangling as to the admissibility of evidence. That is undesirable in itself and sometimes operates prejudicially against the party taking objection. In jury trials there is little scope for amendment and none for adjournment. Mistakes may be fatal. It seems to me that it is in the interests of all parties that the relevant substantial points should be stated and clearly stated in the record, and that the facts relied on, the grounds of action and the pleas-in-law should be adequately presented. Now that juries have returned, it is of the first importance that, when a case is remitted for jury trial, it should have a proper record. In recent months we have seen a number of Sheriff Court records in this Court which for slipshodness would be difficult to beat. There is no difficulty about drawing a record, especially in an accident case. The function of a record is to convey what the case is about and to make the legal issues clear, and it is really intolerable that it should be left to the Court, with the assistance of counsel, to try to extricate from the averments what the points in a case are".
Result
[39] I shall refuse the pursuer's motion to allow issues, reserve the defenders' first plea-in-law and allow a proof before answer.