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Cite as: [2005] CSOH 91, 2006 SCLR 53, [2005] ScotCS CSOH_91

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Stevenson v. Morrison Construction Ltd & Ors [2005] ScotCS CSOH_91 (08 July 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 91

A1351/02

OPINION OF LORD EMSLIE

in the cause

JOHN STEVENSON (AP)

Pursuer;

against

MORRISON CONSTRUCTION LIMITED and OTHERS

Defenders:

________________

Pursuer: Sheldon; Waterman's

First Defenders: Stephenson; Anderson Strathern, W.S.

8 July 2005

Introduction
[1] On 31 May 1999 the pursuer sustained severe injuries when a van which he was driving was struck by a train on a single-track level-crossing just outside Inverness. At the time of the accident, he was employed by the first defenders on a construction site some 200 yards up the public road from the crossing, and had been asked to take the van to Inverness in the course of his employment. The crossing was of the AOCL type (Automatic Open Crossing Locally Monitored) and had no barriers. However, on the approach of a train, amber and then red flashing lights would operate on each side of the crossing for a period of not less than 27 seconds, and an audible klaxon warning would sound. Although there is no suggestion that the pursuer was unfamiliar with the foregoing safety arrangements at the locus, having apparently negotiated the crossing at least three times daily for nearly a year in getting to and from his work and in performing his duties, he now sues his employers, the first defenders, for damages in connection with the accident. At an earlier stage he also sued Railtrack plc, by whom the crossing was owned, controlled and operated, but in implement of a Joint Minute tendered at a procedure roll debate on 12 March 2004 these second defenders were assoilzied. At the same time the pursuer was granted leave to amend his pleadings against the first defenders, and a further procedure roll debate has now taken place before me on the pursuer's pleadings (i) as amended in 2004 and (ii) as further amended in terms of a short Minute which counsel tendered at the Bar on 24 June 2005. Under their first plea-in-law the defenders seek dismissal of the action, which failing exclusion of certain averments from probation. The pursuer, on the other hand, seeks a proof before answer.

[2] In the accident the pursuer sustained inter alia serious head injuries. He was rendered unconscious, remaining on a ventilator for some weeks, and has been left with significant brain damage. At pages 9C-10A of the Closed Record, he avers:-

"As a consequence of the injuries sustained in the said accident, the pursuer has no recollection as to how said accident occurred. The pursuer was regarded by his work colleagues as a careful driver who was unlikely to disregard the crossing warning lights deliberately. It is believed and averred that he inadvertently drove onto (sic) the crossing. It is believed and averred that he would not have done so had the defenders fulfilled the duties condescended upon below. Esto the pursuer's accident happened when he drove onto (sic) said crossing disregarding the flashing warning lights and the warning klaxon (which is not known and not admitted) he did so because such a practice had developed among employees of the first defenders. Reference is made to the letter dated 13 July 1999 from Ravenstone UK, claims consultants to Equity Star at Lloyds, the first defenders' insurers, which is produced and referred to for its terms which shall be held as repeated herein brevitatis causa. The first defenders' Construction Director, Gunnar Bjerland, and Project Manager for the site at Allanfearn, Hugh McPherson were aware of such practice and did not instruct or warn against it. Separatim they failed to enforce any such instructions or warnings".

Neither party asked me to look at the terms of the letter of 13 July 1999 in the course of the debate.

[3] Against that background, the pursuer alleges multiple breaches of duty against the first defenders which may conveniently be grouped into three broad categories. First, he blames the first defenders (at page 24A) for a failure "... to take reasonable care to issue and enforce warnings against such practice." Second, he avers that the first defenders were negligent in failing to identify and/or construct a practical alternative site access route or routes and instruct employees to use them. The investigation and use of such route or routes was, it is said, "... a reasonable practicable and necessary control measure in the circumstances of the present case". And third, the pursuer maintains that esto no such suitable routes existed, it was the first defenders' duty variously (i) "... to institute a system properly to monitor safety on the said crossing"; (ii) "... to institute a system of toolbox talks or safety briefings to emphasise the need for safety on the said crossing, and the steps which required to be taken by drivers such as the pursuer to ensure such safety in crossing"; (iii) "... to post route-warning notices for drivers such as the pursuer approaching the said crossing", including "... a warning that an AOCL was being approached, advice on speed, and that the signal sequence required to be observed"; (iv) "... to organise or co-ordinate crossings with the second defenders so that they took place only when no trains were timed"; (v) "... to institute a convoy or vehicle escort system utilising specially trained or experienced personnel to ensure safety in crossing the AOCL"; and (vi) "... fully and properly to set out in their safety handbook and in their induction training the full AOCL sequence, its timings, and the precise procedure to be adopted when approaching and crossing the AOCL". In relation to these various alleged duties, the pursuer further avers (at page 25D):-

"The precautions condescended upon were reasonable and obviously necessary to avoid the risks associated with the crossing. In any event, precautions such as the use of traffic convoy and escort systems, and warning signage are commonly used by contractors such as the defenders, for example at road works. All such control measures were reasonable, practicable and necessary in order to avoid accidents such as that which occurred to the pursuer".

Submissions for the first defenders
[4] On behalf of the first defenders, counsel maintained (by reference to the well known case of Jamieson v Jamieson 1952 SC HL 44) that the foregoing averments of duty were fundamentally irrelevant, in the sense that even if the pursuer succeeded in proving all his averments of fact the case was still bound to fail. The issue was not whether all or any of the desiderated measures were reasonably practicable, or whether any of them (if taken) would have been effective to prevent the accident. On the contrary, what mattered was the very different question whether, in the whole circumstances, the pursuer had relevantly averred any proper basis on which the alleged duties could be said to have been owed to him by the first defenders prior to the accident. In order to plead a relevant case, it was necessary for a pursuer to aver particular facts and circumstances capable of supporting the existence of alleged duties of care. Merely to list possible precautions, with the benefit of hindsight, was not enough.

[5] Beginning with the facts of the accident, it was acknowledged that (at page 9C) the pursuer averred deliberate disregard of the warning systems at the crossing as a hypothetical possibility. However, the latest amendment introduced averments to a contrary effect, suggesting inadvertence as the likely cause of the accident. Taking these averments together with the pursuer's long-term familiarity with the crossing and its warning systems, the allegations of duty should be considered on the footing that the pursuer was not one of those involved in any alleged dangerous practice within the first defenders' workforce. There was no suggestion that the pursuer himself had ever previously disregarded the warning systems, or that he was to any degree uncertain as to the need to stop when the red lights flashed and the klaxon sounded. In these circumstances the averments of duty concerning the alleged practice within the workforce were irrelevant. The pursuer's problems in this regard were compounded by the absence of any averments as to how, when or in what circumstances the first defenders' managers allegedly became aware of any such practice. This omission was seriously prejudicial to the first defenders where inter alia Mr Bjerland was now deceased and unavailable as a witness. At worst for the defenders, the pursuer had come into court with conflicting averments as to the circumstances of the accident. These were not pled as true alternatives, and the defenders were left with no fair notice of the basis of the case against them.

[6] As regards the alleged duties in connection with alternative access routes, these could only arise if the public road at the crossing could legitimately be regarded as so irremediably dangerous that the first defenders' employees must be prohibited from using it. There were, however, no relevant averments to that effect, and indeed the pursuer's other averments of fault implied the opposite. Admittedly it was said (at page 7E) that the AOCL type of crossing "... is ... associated with a particularly high overall risk and risk per crossing and has a higher accident and near miss rate than other types of crossing", but the nature, source and degree of these particular risks were not the subject of any further averment, nor was there any hint of the basis on which the first defenders "ought to have known" of them. It was not suggested that the first defenders had any knowledge of the alleged previous accident in 1996, nor that that accident had had anything to do with the first defenders' workforce. It was not suggested that the design and operation of AOCL crossings were intrinsically unacceptable, and this was hardly surprising given that such crossings are apparently in widespread approved use throughout the country. Moreover, no attempt was made to identify any feature of this particular crossing which rendered it any more dangerous than other crossings of its type, nor was it said to be the practice of any other employers to bar their workforce from public roads with AOCL crossings. Accordingly, in the absence of any specially averred danger arising at this particular locus, there was no relevant foundation for the imposition of unusual and onerous duties of the type alleged.

[7] Turning finally to the third category of duties alleged against the first defenders, counsel submitted that they were also irrelevant. In general, employers owed no duties in connection with the maintenance of safety on public roads, and it was difficult to see any logical stopping point if the pursuer's approach to this case were to received judicial encouragement. Would employers have to take steps to augment traffic lights, warning signs and road markings at road junctions, sharp bends, blind summits or narrow sections? Over what distance from working premises would such obligations extend? How would different employees in the same locality co-ordinate their efforts? Significantly, the pursuer did not aver that he was unfamiliar with the crossing and its warning systems, or in the slightest doubt as to the need to stop when the red lights flashed and the klaxon sounded. In such circumstances, additional warnings and training would have told the pursuer nothing that he did not already know. In the absence of very special circumstances, employers in the position of the first defenders should not be under any general duty to shepherd trained drivers on public roads outwith premises which they owned or controlled. The suggestion in the pursuer's latest amendment, to the effect that traffic convoy and escort systems, and warning signage, were commonly used by contractors, for example at road works, might be understandable in that latter context where special and unusual dangers were created by the contractors themselves. However, that was plainly not the situation here, and in any context other than road works the averment was so vague and inspecific as to deny the first defenders fair notice of the case against them.

Submissions for the pursuer
[8] In seeking a proof before answer, counsel for the pursuer began by reminding me of his client's serious injuries and consequential inability to specify the particular circumstances in which the accident occurred. It was therefore sufficient for the pursuer to make averments favouring inadvertence as the cause of the accident, but at the same time leaving open the possibility of deliberate disregard of warnings in accordance with an alleged practice within the first defenders' workforce. For the avoidance of doubt, however, the pursuer did not suggest that there had been any defect in the lights or other safety measures in place at the crossing at the time of the accident. In Valley v Wiggins Teape Ltd. 1979 SLT 50, Lord Allanbridge had allowed a proof before answer where the pursuers could not say how the deceased had lost his footing on top of a railway wagon, but where the duties averred would have been applicable in any case. In addition, as his Lordship observed at page 51, the pursuers there had not pled true alternatives, but merely illustrations of different ways in which the deceased could have lost his footing.

[9] Against that background this was, according to counsel, an essentially simple case based on two key averred factors, namely (i) the obvious and serious danger imposed by a crossing of AOCL type, and (ii) the fact that the pursuer's work required him to traverse the crossing several times per day. These averments, it was submitted, provided the special cause necessary to justify imposition of the duties of care alleged against the first defenders. Whether liability would ultimately be established would depend on the evidence led at a proof, and in counsel's submission this might even extend to special features connected with the topography of the site at the locus and capable of confusing or distracting drivers. The averred duties reflected simple and practical steps which would have reduced or eliminated the dangers. Nothing was particularly onerous, and even if the averments might have been better phrased, they were sufficient to justify the allowance of a proof before answer.

[10] In support of his submission that the two key factors previously mentioned were a sufficient basis for the case of fault in all of its branches, counsel referred me to the case of Smith v National Coal Board 1967 2AER 593, in which the House of Lords held that employers had a duty to foresee and guard against the likelihood of carelessness and inattention among employees performing routine and repetitive tasks. At page 595F Lord Reid said:-

"So an employer who allows a normally safe route to become blocked by a dangerous obstruction without warning those who may use it will in my view be guilty of negligence, at least unless the obstruction is so obvious that even an inattentive man would notice it in time to avoid danger".

Furthermore, in General Cleaning Contractors v Christmas 1953 AC 180, the House of Lords held that, even where experienced employees were capable of avoiding dangerous practices for themselves, employers were under a duty to take reasonable care to lay down a safe system of work. Clearly, however, these decisions concerned dangers arising in the workplace, and did not address any alleged need to shield drivers from obvious sources of danger on public roads. Indeed, counsel for the pursuer was unable to refer me to any decided case where employers had been found liable on grounds similar to those alleged in the present case.

[11] Counsel went on to submit that averments of failure to follow the practice of other employers were not indispensable if the pursuer could nevertheless point to a material danger which plainly ought to have been guarded against. Lord Dunedin's well known dictum in Morton v William Dixon Ltd 1909 SC 807 had been qualified and explained in a series of later cases, and the law was now as stated by Lord Keith of Avonholm in Cavanagh v Ulster Weaving Co Ltd 1960 AC 145 (at page 166) in the following terms:-

"... an employer is bound to take reasonable care for the safety of his workmen, and in every case the question is whether the circumstances are such as to entitle judge or jury to say that there has or has not been a failure to exercise such reasonable care. It is immaterial, in my opinion, whether the alleged failure in duty is in respect of an act of omission or an act of commission. But where it is an act of omission that is alleged, I think it will be found, in the absence of evidence of practice, that the circumstances will rarely, if ever, lead judge or jury to hold that there was negligence unless the precaution which it is suggested should have been taken is one of a relatively simple nature which can readily be understood and commends itself to common intelligence as something to be required."

Here, accordingly to counsel, none of the suggested precautionary measures would have been specially difficult or expensive. The crossing was of a more dangerous type than others, and the pursuer and his colleagues required to traverse it on a daily basis in order to enter and leave the first defenders' site. Bearing in mind the well-known words of caution in Miller v SSEB 1958 SC HL 20, it was submitted that the pursuer's averments were sufficient to justify a proof before answer at this stage.

Discussion
[12] In my opinion the first defenders' attack on the relevancy of the pursuer's case is well-founded and must be sustained. It is well settled that in order to establish negligence at common law an injured pursuer must do more than merely identify precautions which, with the benefit of hindsight, might have been practicable and might have prevented the accident. Where alleged failures in duty concern an act of omission, I would respectfully adopt the statement of principle by Lord Keith of Avonholm in Cavanagh, supra, to which reference has already been made in the preceding paragraph. In Potec v Edinburgh Corporation 1964 SC HL 1, Lord Guest said (at page 6):-

"The non-existence of a practice does not by itself in law absolve employers from adopting a safety precaution. But the fact that such a precaution is not provided in practice places a very heavy onus on a pursuer to show that a precaution not adopted by other employers in like circumstances is one which a reasonably careful employer would regard as obviously necessary. It is only in special circumstances such as were present in Cavanagh that a higher duty of care could be placed on employers."

[13] Against that background, I consider that the pursuer has failed to plead a relevant case against the first defenders, and has in particular failed to make relevant averments of facts and circumstances capable of supporting the various duties of care which he alleges against them. As regards the alleged duties concerning a dangerous practice within the workforce, the pursuer's primary position is that he himself was regarded as a careful driver who would not deliberately have disregarded the warning systems at the crossing. On the positive side, he was plainly familiar with the crossing and its warning systems, having negotiated it safely several times each day for the best part of a year. He was, moreover, a trained driver who might be expected to be familiar with the ordinary rules for driving safety at light-controlled crossings. Not surprisingly, therefore, he does not suggest that he was to any degree in doubt as to the need to stop when the red lights flashed and the klaxon sounded. More importantly, perhaps, the pursuer does not allege that he himself had ever previously disregarded the warning systems at the crossing, or indeed that any accident or near miss involving a fellow-employee had ever been recorded or reported. In the foregoing circumstances I am unable to accept that, in a question with the pursuer, any relevant duty of care has been pled against the first defenders vis-a-vis the alleged dangerous practice within their workforce. As regards the "esto" case pled at page 9C-D, I do not think that it qualifies as a relevant alternative approach. No basis is put forward from which it might be inferred that the pursuer, as opposed to any fellow-employee, was foreseeably in any danger at the crossing. The bare averments of knowledge on the part of the first defenders' directors are unsupported, and it is not possible to say how, when or in what circumstances such knowledge is said to have arisen. In my view this is a matter on which the first defenders are legitimately entitled to demand notice, bearing in mind that one of their directors is now deceased, and no such notice is given.

[14] Turning to the alleged obligation on the part of the first defenders to provide alternative means of access to their construction site, it is of immediate significance that the pursuer is unable to aver any practice on the part of other employers to by-pass AOCL crossings in this way. Accordingly, by reference to the principle discussed in Cavanagh and Potec, supra, a relevant case of fault would require specific averments of facts and circumstances such that the desiderated precautions must commend themselves as obviously necessary. In my judgment no such facts and circumstances are averred in the present case. As previously discussed, the crossing was of a type in widespread approved use throughout the UK. The pursuer does not spell out the nature, source or degree of any particular risk associated with such crossings, nor does he suggest any basis on which such a risk might have been known to the first defenders. In that context, the pursuer does not suggest that his employers had any knowledge of an alleged previous accident in 1996, or that that accident concerned any member of the first defenders' workforce. The pursuer does not aver any feature of this particular crossing which might be thought to distinguish it from other crossings of its type, and in my view his counsel was not entitled to suggest that (without relevant averments) evidence might be led of topographical or other features capable of confusing or distracting drivers approaching the crossing. What has to be borne in mind here is that the crossing was on a public road, and was protected by all the usual systems associated with crossings of its type. In such circumstances, it is perhaps not surprising that the pursuer cannot point to any relevant practice among other employers which might assist him in this case, and it is significant that the other branches of his case of fault appear to militate against any suggestion that AOCL crossings were so inherently dangerous that they must be by-passed at all costs.
[15] In my view no relevant foundation has been pled for any of the other duties of care which the pursuer alleges against the first defenders. Most of these appear to proceed on the assumption that employers are under a general duty of care to make safety arrangements on public roads outwith any premises which they may own or control. As a generality, however, I do not accept that employers are under any such duty, especially if this would involve them in augmenting normal warning signs, traffic lights or safety procedures in the vicinity of familiar hazards. As counsel for the first defenders submitted, such a duty could give rise to significant complications if incumbent on multiple employers within a given area, and if the pursuer's approach here were correct it is hard to see any logical limit to employers' obligations in this regard. Potential hazards on all public roads regularly used by employees would require to be the subject of enhanced safety provision, whether located 200 yards, 2 miles, 20 miles or more from the employer's premises. Such duties would apparently arise even if no accident to an employee had ever occurred at a given location, and even if there was nothing unusual about a particular hazard to make it any more dangerous to motorists than other hazards of the same type. With these considerations in mind, I am satisfied that the pursuer has fundamentally failed to aver any special facts and circumstances which, in the absence of an established practice among employers, might be thought capable of imposing unusual and onerous duties on the first defenders along the lines which are suggested. Moreover, so far as warnings and training are concerned, I do not consider that the pursuer has relevantly averred any basis on which the first defenders could be said to have been under a duty to advise him of things of which he was already well aware.

[16] In the foregoing circumstances, I am satisfied that the pursuer's case of fault against the first defenders is irrelevant in all of its branches, and that his action must be dismissed. Given (i) the fact that the accident occurred on a public road at some distance from the first defenders' construction site, (ii) the obvious and familiar dangers associated with road and rail crossings, and (iii) the obvious and well-understood need to stop when red lights (and other warning devices) operate at such crossings, it seems to me that the present action constitutes a speculative attempt by the pursuer to elide his own responsibility for ordinary road safety and to transfer it to his employers. The action is in some ways analogous to other cases in which pursuers seek to blame third parties for failing to fence or to warn against obvious natural or artificial sources of danger on public or private land, such as ponds, rivers, cliffs, railway embankments or cananls. The established general rule in such cases is that in the absence of very special circumstances a person owning or controlling land owes no duty of care towards third parties in connection with permanent, ordinary and familiar features of the landscape. In my view similar (although plainly not identical) considerations apply in the present case, where what is in issue is an obvious and well-marked hazard on a public road with which the pursuer as an individual must be taken to have been fully familiar. It would not, in my opinion, be doing the pursuer any favour to allow this claim to be pursued any further, and correspondingly I do not consider that the first defenders should be put to any further trouble and expense in defending it.

Disposal
[17] For the foregoing reasons, I shall sustain the first plea-in-law for the first defenders and dismiss the action as irrelevant. Had I been allowing any part of the pursuer's case to go to proof before answer, I would have repelled the first defenders' second plea-in-law which was disclaimed by counsel at the beginning of the debate. However, it is not now necessary for me to take that course.