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Cite as: [2005] ScotCS CSOH_18, [2005] CSOH 18

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Stephen Tierney v. Biffa Waste Services Ltd+Mark Fotheringham [2005] ScotCS CSOH_18 (02 February 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 18

PD758/03

OPINION OF R F MACDONALD QC

(Sitting as a Temporary Judge)

in the cause

STEPHEN TIERNEY

Pursuer

against

BIFFA WASTE SERVICES LTD

Defenders

and

MARK FOTHERINGHAM

Third Party

________________

Pursuer: No Appearance

Defenders: Stewart QC, Arthurson; HBM Sayers

Third Party: Peoples QC, Dawson; Anderson Strathern

2 February 2005

Introduction
[1] On 8 January 2001 the pursuer, who was then twenty years old, suffered injuries rendering him paraplegic when he fell into a rubbish pit at the rubbish dump at Castlehill, Carluke. He brought the present action against the defenders as the operators of the site. The sole question raised at the proof which took place was whether the defenders are entitled to a contribution from the third party. The defenders led evidence from the third party and the pursuer. No evidence was led by the third party.

The Evidence of the Third Party
[2] The third party, Mark Fortheringham, deponed that he was now twenty two years old and lived at 5 Wide Close, Lanark. The Market Bar at 7 Wide Close is owned by his father and he was employed there by his father on 8 January 2001. On that date, in the course of working for his father, he took rubbish from the public house and also, he thought, a bath in a Transit van to the rubbish dump at Castlehill in Carluke. He asked the pursuer, who was a friend, to help him take the rubbish and dump it. The pursuer was not employed by the third party's father at the time and would not have received any money for helping the third party. The pursuer just went along to provide company. The third party knew that if he were dumping commercial rubbish he had to pay and that there was a drop of about three to four metres from the platform to the base of the rubbish pit.

[3] The usual practice was that the gateman at the rubbish dump asked a customer if he had domestic or commercial rubbish. Sometimes the customer did not get stopped. On 8 January 2001 he thought that the gateman asked him what was in the van and he told him that he had bags of rubbish from the pub. He was unable to remember the conversation. The gateman told him to go ahead. He did not require to pay.

[4] He then drove to the disposal bay. He explained that customers entered at a higher level and tipped or threw the rubbish into the lower section. The customer section consisted of five bays. There were two domestic bays at each end and three commercial bays in between them. The doors to the different types of bays were of a different height and it was possible to reverse further into the two domestic bays, which had a fence between where the customer stood and the rubbish pit. He was directed into one of the commercial bays. It was possible to reverse the vehicle right up to the drop into the rubbish pit and the edge of the pit was unprotected. There was a parapet wall roughly thirty centimetres (one foot) high. He reversed into the bay and stopped roughly a foot or two feet from the parapet wall. He left enough room for someone to get round the back of the van. He accepted that he could have stopped at the entrance to the bay and carried the rubbish from the van to the pit. He also accepted that it was possible to stand with one foot on the back of his van and one on the parapet wall. The reason he went so close to the rubbish pit was so that he would not have to carry any of the rubbish. In response to leading questions put to him he accepted that it would have been much safer to park further away from the pit and that he put the convenience of not having to carry the rubbish before the issue of safety. His van had a sliding side door and two hinged back doors. He could not remember which door opened first. He did not remember the doors being opened. The back doors were opened so that it was possible simply to throw the rubbish over into the pit without carrying it from the van.

[5] The pursuer got round to the back of the van to help him dump his father's rubbish. The pursuer was helping him to empty the van by flinging rubbish over the parapet wall into the pit. He never noticed at the time that there was obviously no protection for the pursuer. In answer to a leading question he accepted that he should have thought about it when he backed the van up to the edge of the pit. He also accepted that the pursuer would not have been there at all if he had not taken him to the rubbish dump from his father's business. He (the third party) had loaded the van and had been to the dump several times before. He knew the layout of the commercial bays and that there was no protection at the edge of the pit. He also knew that he could reverse his vehicle right up to the parapet wall, where there was no protection for anyone who stumbled. If there had been a fence up that would have protected the pursuer. At the time there was nothing to prevent him falling over the edge. He did not tell the pursuer not to go round to the back of the van. It suited him that the pursuer did so.

[6] In cross examination by his own counsel the third party stated that he and the pursuer had been friends for a long time and knew each other pretty well. He had been to the rubbish dump maybe about thirty times previously and also previously used one of the commercial bays for rubbish from the pub. He had also used the domestic bays. He had been told where to go by "the guy that worked at the foot" (the gateman). He had previously been directed to one of the commercial bays by the gateman. It would have been obvious to anyone that in a commercial bay there was a three or four metre drop into the rubbish pit if it were empty. In the domestic bays there was a fence to waist height between the customer and the bay and the customer therefore had to fling the rubbish over the fence. In the commercial bays there was no protection apart from the low parapet wall. He had never seen any gates within the commercial bays. On previous visits he had seen cars, vans and refuse lorries use the commercial bays. They had gone fairly close to the rubbish pit, as he did on this occasion. In a commercial bay the items to be dumped would require to be taken to the edge of the pit even if they were carried there from a vehicle. There was always a risk of falling if the customer were near the parapet wall.

[7] He did not see the pursuer fall into the rubbish pit. He did not know how the pursuer came to fall. He (the third party) was inside the van at the time and when he turned round the pursuer "just wasn't there". He had his back to the pursuer when the pursuer fell. He did not tell the pursuer what to do or how to throw the rubbish. It would have been obvious to the pursuer that there was a drop into the rubbish pit without his telling the pursuer that. He had not been told by the gateman to go into one of the domestic bays: he had been told to go into one of the commercial bays.

[8] In re-examination the third party accepted that closed gates would have provided protection for someone on the ground. If there had been gates there he would not have been able to open the rear doors of his van without being one to two metres away from the gates. He did not see the pursuer with his back to the edge of the rubbish pit. The pursuer could have been side on to the rubbish pit. There were no items of rubbish which required two people to throw them into the pit. He decided where to park the van but he did not tell the pursuer what to do or not to do.

Evidence of the Pursuer
[9] The pursuer said that he had his accident on 8 January 2001 when he fell over the edge into the rubbish pit at Castlehill dump. The van was not too close to the edge. It was probably a foot from the wall. He recalled unloading rubbish. He had his back to the pit. He was manhandling rubbish and tried to get it into the pit in one go. There was no protection if he stumbled. In response to a leading question he accepted that he had the accident with his back to the drop when he slipped, overbalanced or tumbled. He was not cross-examined by counsel for the third party.

Submissions for the Defenders
[10] Mr Stewart moved that I should find that the accident to the pursuer was caused solely by the fault of the third party and find him liable to contribute to the extent of one hundred percent, failing which to a substantial extent. He had five propositions to make. First, the third party asked the pursuer to help him come to unload rubbish at the dump. Secondly, the third party was very familiar with the layout of the dump, having visited about thirty times, and was well aware of the unguarded drop of about three to four metres in the commercial bays. Thirdly, the third party made the decision to reverse the van up to the unguarded drop with the purpose of having rubbish unloaded from the rear of the van with minimum effort. Fourthly, the third party knew or ought to have known that if the pursuer lost his footing for any reason while unloading rubbish from the rear of the van he was at risk of falling over the unguarded edge. Fifthly, if the third party had stopped the van away from the edge the risk of falling over the edge would not have materialised. In light of these propositions, it was submitted that there was no evidence to hold that there was fault on the part of the defenders and there should therefore be a one hundred percent contribution from the third party.

[11] Mr Stewart went on to submit that the danger was in unloading the van at the edge of the drop into the rubbish pit. This particular danger would have been removed if the van had been parked elsewhere. The parapet wall was one foot high. It was the choice of the third party to back the van up virtually to the edge, and that was the risk which materialised for the pursuer. Control by the third party over the actions of the pursuer was not a necessary element of the neighbourhood principle for a duty to exist.

Submissions for the Third Party
[12] Mr Peoples moved me to assoilzies the third party and find that he was not liable to any extent for the injury suffered by the pursuer. He submitted that on the evidence led one knew very little about the precise events which caused the pursuer to fall. No evidence was led about where the feet of the pursuer were positioned immediately before he fell or whether the position of the van relative to the wall caused him to fall. I could not conclude that the van was so close to the parapet wall that it was this which caused the pursuer to fall. The pursuer did not say in evidence that he had one foot on the van and one on the wall when he fell. The evidence of the pursuer was that the van was not too close to the edge. The third party had said in evidence that there was room for the pursuer to get round the back of the van. There was no evidence that the third party told the pursuer how to unload the van. There was no question of direction or control by the third party over the pursuer in the unloading of the van. This was not a case involving employer and employee. The pursuer and the third party were just two friends and the pursuer was helping the third party, who was the younger man. It was the defenders whose employee had directed the third party to go into a commercial bay who were seeking to blame the third party for doing that very thing. The fault was that of those who ran the system in this way. There was always a risk of falling at the edge. The pursuer did not say in evidence where he was at the time of his fall, and, in particular, whether he was in the van or on the parapet wall. The only relevant evidence from the third party was that he did not see the pursuer immediately before the latter's fall.

[13] In these circumstances I did not have the material to enable me to hold that the third party owed a duty of care to the pursuer. The third party was under no obligation to have a system in force or to give instructions to the pursuer. As Mr Peoples put it, "they both went there and just got on with it". The third party was not under any positive duty to intervene to prevent danger to the pursuer. Even if the third party did owe a duty of care to the pursuer, I could not hold that he had been in breach of that duty. He had driven as directed into one of the commercial bays. There was no suggestion that he had had any direct participation in the events which gave rise to the pursuer falling. There was no suggestion that the third party had overcome any obstacle to get into the commercial bay. On the evidence it was not possible to say that the relative positions of the van and the wall made any contribution to the accident. The fault lay with the system operated by the defenders.

Discussion of the Evidence and Findings
[14] On the evidence led I am satisfied that on 8 January 2001 the third party drove a Transit van containing rubbish from his father's public house, in which he was employed, to the rubbish dump at Castlehill, Carluke in order to dispose of it there. He was accompanied by his friend the pursuer, who had gone along to assist him. The pursuer was not employed by the father of the third party and he was not to receive any payment for assisting the third party. At the rubbish dump the third party was directed by an employee of the defenders to go to one of the three commercial rubbish bays. The third party drove his Transit van to such a bay and reversed it into the bay. When he stopped the van the rear was approximately a foot to two feet from the edge of the rubbish pit. At the rubbish pit there was a parapet wall about one foot high but no other form of protection. Behind the parapet wall there was a drop of approximately three or four metres into the rubbish pit. The rear doors of the van were opened and the pursuer and third party proceeded to unload the rubbish from the van by throwing it into the rubbish pit. In the course of this exercise, while he had his back to the rubbish pit, the pursuer slipped, overbalanced or tumbled into the pit and sustained serious injury.

[15] On the evidence led I do not consider it possible for me to go further than to make the findings set out in the preceding paragraph. In particular, I am unable to make a finding about the cause of the pursuer's fall into the rubbish pit. The unchallenged and uncontradicted evidence from the third party was that he did not see the pursuer fall into the pit. I have set out above the evidence of the pursuer himself. He was not asked any questions about his exact position prior to the fall, where his feet were placed or what, if anything, it was that caused him to fall. In statement 4 the pursuer made the following averments:

"They (the third party and pursuer) reversed up to a low wall, approximately 30cm high, at the end of the bay as they had done on previous occasions. The pursuer then stood with one foot on the low wall and one foot in the rear of the van. He would then pick up items from the rear of the van and throw them over the wall into a pit on the other side. The pit was approximately 4m deep. The pursuer turned to obtain a further item from the van. As he did so his foot on the wall slipped. The pursuer fell into the pit and thereby suffered the loss, injury and damage hereinafter condescended upon. The pursuer's foot slipped on waste soil that had been spilled on the wall."

On the evidence led at the proof it was not established that the pursuer stood with one foot on the low wall and one foot in the rear of the van, that he turned to obtain a further item from the van and that, as he did so, his foot on the wall slipped on waste soil that had been spilled on the wall. It was not even established that the pursuer was to any extent within the van when he fell.

[16] As I am unable to hold on the evidence led where the pursuer's feet were positioned immediately before his fall and what it was that caused him to fall, it follows in my opinion that I cannot hold the third party was to any extent to blame for the accident. There is no evidence which would entitle me to hold that he was in breach of a duty of care which he owed to the pursuer and that such breach caused or contributed to the accident to the pursuer.

Decision
[17] The third party will be assoilzied.