Scottish Court of Session Decisions

Pursuer: Lloyd; Thompsons

Defenders: Haldane; Dundas & Wilson CS

13 December 2006

Introduction

[1] On 30 May 2003 the pursuer had an accident at work. She was employed by the defenders as a kitchen assistant at their college in Greenock, and the main part of her job was to look after the lecturers whose room was adjacent to the main canteen. Shortly after she started work on the morning in question, something went wrong with the drinks dispensing machine from which she habitually obtained special orders or simply hot water for pots of tea or coffee. She was close by the machine at the time when it malfunctioned, and fell heavily to the floor, sustaining severe injuries to her right hip and right wrist.

[2] The pursuer now claims damages from the defenders as her employers, alleging both common law fault and breach of statutory duty on their part in respect of the condition of the machine. The defenders accept that the machine was prone to malfunctioning, and had been in that state for some time, but the parties remain in dispute as to (i) the precise circumstances in which the pursuer came to fall; (ii) the alleged liability of the defenders for her accident; (iii) the extent of any contributory fault on the part of the pursuer herself; and (iv) the assessment of certain heads of damages. A Proof Before Answer on these issues has now taken place before me.

[3] In the witness box the pursuer explained how, when the machine started to malfunction, hissing loudly and emitting quantities of steam, she was asked by a fellow employee, Mrs Anne Lafferty, to move a special needs student out of the way in case she might be scalded. At the same time Mrs Lafferty called for help from Mrs Susan Turcosi, the kitchen assistant who generally looked after the machine and kept it operational. Having guided the student to safety, the pursuer returned to the vicinity of the machine. As she did so, she was adamant that the machine emitted a flash in her direction which she saw through a clear panel on its front face. Simultaneously, there may also have been a loud bang. This behaviour on the part of the machine gave the pursuer such a fright that she "jumped" or "leapt" back and somehow ended up falling heavily to the floor. When pressed in cross-examination on the circumstances of the accident, the pursuer continued to insist that it was an unexpected flash from the machine which frightened her and caused her to fall. She was, however, less certain as to whether the machine had also emitted any loud noise. As against that, her position was that the degree of hissing and steaming at that time was unprecedented, as (in her experience) was the flash which she saw from within.

[4] Although momentarily distracted after the machine began to malfunction, Mrs Lafferty gave direct evidence of seeing the pursuer "jump back" away from the machine before ending up on the floor. Another kitchen assistant, Mrs Elizabeth Purdy, agreed that the description in the defenders' accident report form (no.6/3 of process), to the effect that the pursuer "kind of leapt", was consistent with her impression at the time. Both of these witnesses thus gave some support to the pursuer's account of having fallen as a result of a fright, and in addition both spoke to a de recenti statement by the pursuer as she lay injured on the floor, along the lines that the machine had "flashed at her". Indeed Mrs Lafferty went on to say that she herself had seen a flash or flashes from the machine, and that this had frightened her (although she did not fall). Mrs Turcosi's account was broadly consistent with the others, except that she spoke positively to a loud bang from the machine at the time when the pursuer fell, and also to the pursuer stating, as she lay on the floor, that she had had a shock. At the time, Mrs Turcosi's impression was that the pursuer was talking about an electric shock of some kind, but in cross-examination she accepted that, by the word "shock", the pursuer might only have meant a fright.

[5] Unfortunately, neither side chose to explore the circumstances of the pursuer's fall in any greater detail. In particular the nature, colour, intensity and duration of any flash or flashes from the machine remained unexplored, as did the precise location from which any such flash may have emanated. No engineer was called to describe the physical configuration of the machine, nor to confirm the presence of a clear panel on its front face, nor indeed to identify the location of any of its electrical components which might be visible from outside. There was no direct evidence that anyone had ever seen flashing from the machine before, although there was some hearsay evidence to suggest that engineers had regularly blamed electrical circuit problems for the machine's propensity to overheat. Apart from that, the only evidence which I have to go on is that of the pursuer, Mrs Lafferty and Mrs Purdy, tending to indicate that a visible flash or flashes, with or without an accompanying bang, occurred at the material time.

[6] Equally unfortunately, neither side chose to explore in any detail the precise means by which the pursuer, starting from a stable upright position, contrived to fall really heavily on to her right hip and wrist. A slip, trip or collision in such circumstances might have made such a fall easier to understand, but there was no evidence of anything like that. When faced up with entries in the hospital records to the effect that she had slipped on the floor, the pursuer flatly denied that they could be correct, and the authors of these entries were not led to substantiate them. In any event, no evidence was led on either side to establish the condition of the floor or the nature of the pursuer's footwear. Once again, therefore, the final picture is of a rather unsatisfactory general nature, with the court being asked to draw the inference that, having jumped back in fright from the machine, the pursuer must somehow have lost her footing in a way that projected her heavily and awkwardly to the floor.

[7] Without the benefit of clearer and more positive vouching, I must confess to entertaining some doubts as to the inherent plausibility of the pursuer's account. Judged according to common experience, it is not easy to imagine how someone alarmed by a flash from inside a machine could have contrived to fall so badly. Mrs Lafferty did not fall, although frightened, and inevitably a question mark arises as to whether such a flash could truly have caused the pursuer's accident. In the end, however, I consider that it would be wrong for me to reject the pursuer's account on such subjective grounds. Nothing in the demeanour of the pursuer or of her supporting witnesses suggested that they had conspired together to provide the court with an entirely false account of what happened. In any event, I would be very slow to make any finding along such lines where (i) the allegation was not put to any of the individuals concerned; (ii) the account of a fright followed by an awkward fall appears to have been accepted by the defenders' manageress at the time (as reflected in the contemporaneous accident report form); and furthermore ( iii) there was no evidence which directly contradicted that account in any material respect. Truth is, as the saying goes, often stranger than fiction, and in the whole circumstances I am ultimately unable to say that the pursuer's account of the incident is either impossible, or so inherently improbable that it simply cannot be accepted. People do sometimes unaccountably lose their balance or footing in circumstances where they would not normally be expected to fall, and a sudden fright must obviously increase the risk of unexpected consequences.

[8] As regards the alleged flash from the machine, I am not prepared to hold the pursuer and Mrs Lafferty to be deliberately untruthful witnesses, and it seems unlikely that the pursuer's de recenti statements, as she lay injured on the floor, would have been a deliberate and dishonest fabrication. Given the machine's known faults, there would have been no need for her to invent new ones. It is true that the accident report form no. 6/3 of process compiled by the defenders' manageress, Miss Ritchie, within a short time of talking to the pursuer and others at the scene, contained no reference to a flash. However, during Miss Ritchie's evidence, it became clear that she did not have an opportunity to speak to Mrs Lafferty until some hours after the form was completed, and also that she did not speak to Mrs Purdy at all. Moreover, Miss Ritchie herself had largely assumed that the machine had "done its usual", and had little idea of precisely what others had told her. She really did not know what the "loud noise" was that she had recorded, nor could she could say whether the malfunction reported to her involved more hissing and steaming than on previous occasions. I therefore attach little importance to the fact that she did not recall the pursuer mentioning a flash at the time, or to her agreement in cross-examination that if a flash had been mentioned she would have recorded it.

[9] On the balance of probabilities, therefore, I am prepared to accept the pursuer's account of what happened to her as substantially accurate, and accordingly hold that her averments in that regard at page 6C of the Record have been established. Further considerations tending to support this conclusion are in my view the electrical faults which engineers apparently diagnosed at the time and in the past, coupled with the obvious risk of an electrical short circuit (and possible flash) in the presence of water or pressurised steam.

[10] In asking the court to find for the pursuer on this branch of the case, counsel relied on the nature and extent of the machine's malfunctioning prior to the accident, and also on the frank concessions made by the defenders' manageress, Miss Ritchie, in the witness box. As regards the pre-accident history, the defenders averred (at page 8C) that the machine was prone to overheating which would result in its being noisy and steam being emitted, and that engineers had attended at the College on several occasions in that connection. At pages 11 - 12, the defenders went on to aver (against an un-convened third party) that "..... They knew or ought to have known that the malfunctioning coffee machine, which was prone to overheating, making loud noises and emitting bursts of steam was likely to frighten persons working around said machine and cause an accident". In counsel's submission these averments were in fact borne out by the evidence. Many witnesses, including the defenders' manageress Miss Ritchie, confirmed that the machine had a recurrent problem with overheating, and that repeated visits by engineers had failed to rectify it. Miss Ritchie confirmed that engineers had been called out on between seven and nine occasions within the previous three months or so, but that the machine had thereafter continued to malfunction. Hearsay evidence from the pursuer suggested (as in any event seems likely) that the underlying fault was electrical in nature, and Miss Ritchie expressly confirmed that on one occasion an engineer told her of a "circuit board short". On the occasion of the pursuer's accident, the underlying fault again seems to have been electrical in nature, judging by Miss Ritchie's accident report form which recorded "fault on circuit board".

[11] Against that background, Miss Ritchie very fairly conceded in evidence that she knew the machine to be potentially dangerous, and that she was not surprised when it malfunctioned again. Two or three weeks before the accident, she had told "the office" that the machine needed to be replaced, since its propensity for sudden malfunctioning could have led to someone being burned by steam or to an accident similar to the pursuer's. As confirmed by the terms of her report no. 6/3 of process, Miss Ritchie did not question the causal link between the malfunctioning of the machine and the pursuer's fall, and she now regretted having taken no effective steps to remove an obvious danger in advance. In re-examination Miss Ritchie went even further, accepting that her understandable desire to keep the machine in service had been misplaced, and that she could and should have demanded a replacement machine, or at the very least disconnected the machine and taken it out of service, before the pursuer's accident occurred. So far as she could recall, the last malfunction occurred some hours earlier on the same morning, and yet the machine was simply switched on again after a short interval.

[12] On the strength of that evidence, counsel for the pursuer submitted that the defenders had failed in their duty of reasonable care for the safety of the pursuer as one of their employees. Miss Ritchie was aware, not merely that the machine had malfunctioned in the past, but that it was liable to malfunction again at any time and in a manner which gave rise to a foreseeable risk of harm to anyone who might be in the vicinity at the time. If a scalding risk could be foreseen, then so also could the risk of someone such as the pursuer jumping away from the malfunctioning machine and falling. In these circumstances, therefore, the pursuer was entitled to succeed in her claim at common law.

[13] In reply, counsel for the defenders maintained that no foreseeable risk of injury to any person, and no breach of any duty of reasonable care, had been established. Miss Ritchie's evidence, in counsel's submission, was a product of hindsight coupled with sympathy for the pursuer, and should be discounted on these grounds. The reality was that past malfunctioning of the machine had caused no injury to any person, and it was significant that, at the time, Miss Ritchie did not hesitate to return the machine into service on each occasion after it had received attention from the engineer. It was thus a reasonable inference that no injury to personnel had been foreseeable or foreseen, and that accordingly no relevant duty of care on the defenders' part towards the pursuer had arisen. In any event, the pursuer had failed to prove that the defenders were in breach of any such duty of care. Every time the machine malfunctioned, the defenders took prompt action by sending for the engineer, and they only returned the machine into service after the engineer had passed it as safe. It would, in counsel's submission, be wrong for the court to blame the defenders for what was, in truth, the first occasion on which this machine allegedly exposed anyone to the risk of harm.

[14] In my opinion the pursuer's contentions are to be preferred here. This was a machine with a recent history of repeated malfunctioning despite the best efforts of engineers. In all likelihood, the malfunctioning was of electrical origin, and manifested itself in various ways which the defenders' manageress correctly recognised as posing a risk of harm to people in the vicinity. Sudden jets of steam under pressure could easily scald someone; steam hissing out suddenly could give a person a fright, with unpredictable consequences; and the same would apply to any short circuit causing a flash. In the witness box, the defenders' manageress very fairly and frankly admitted that she could and should have done more than she did to ensure the safety of people like the pursuer who had to work in close proximity to the machine. At best, she could have had the machine replaced several weeks earlier, when it was clear that the engineers could not fix it. Alternatively, people's safety could have been secured by merely disconnecting the machine and taking it out of service. There was another dispensing machine in the canteen; the lecturers had their own independent coffee supply; and I think that Miss Ritchie was right in recognising that safety considerations should not have taken second place as against her desire to keep the machine in service. Having seen and heard Miss Ritchie as a witness, I formed a favourable impression of her. She gave her evidence openly and frankly, and appeared to have thought about the issues and reached clear conclusions in her own mind. Contrary to the defenders' submission, I can see no good reason to reject her evidence, or to take her concessions at anything other than face value. They were in my view entirely reasonable in the circumstances, and the defenders cannot therefore escape a finding of negligence in this case.

[15] Even if the occasion of the pursuer's accident was the first time on which anyone had actually seen the machine emit some sort of flash, I do not consider that that would materially affect the end result. If the malfunctioning of the machine was electrical in origin, and had already manifested itself in various ways which were recognised as potentially endangering the safety of people in the vicinity, it does not seem to me to matter greatly that the particular manifestation which caused the pursuer's accident was one which none of the witnesses had encountered before. It was still a manifestation of the same underlying problem; like the others, it took the form of an emission from the machine; and a foreseeable risk in every case was that someone nearby would get a fright with unpredictable consequences. It cannot in my view be said that what happened to cause the pursuer's accident was so different in kind from previous occurrences as to absolve the defenders of responsibility altogether. If on that occasion the machine had exploded or gone on fire, or its casing had become electrically live, or if it had started to emit scalding jets of tea, I think that the defenders' liability would have been the same.

[16] For these reasons, I conclude that the pursuer has successfully made out her case of fault against the defenders at common law.

[17] In light of the conclusion which I have reached on the common law aspect of this case, it is not strictly necessary for me to resolve the parties' dispute as to the proper scope and application of regulation 5(1) of the Provision and Use of Work Equipment Regulations 1998. Nevertheless, recognising that this action may be taken further, it is appropriate for me to set out my views on these matters, and I now do so briefly below.

[18] So far as material for present purposes, the 1998 Regulations provide as follows:-

[19] Under reference to cases such as English v North Lanarkshire Council [1999] SCLR 310 and Donaldson v Hays Distribution Services Limited &c [2005] CSIH 48, it was a matter of agreement between the parties that these Regulations must be given a liberal and purposive interpretation so as to ensure that they fully implemented the minimum safety objectives of the Work Equipment Directive (Council Directive 89/655/EEC of 30 November 1989), under which they were promulgated. The parties also agreed that if Regulation 5(1) applied, it imposed an absolute obligation on the defenders with regard to the "efficient state" of work equipment, consistently with the interpretation given to similarly-worded statutory provisions for more than half a century:- cf Galashiels Gas Co Limited v Millar [1949] AC 275; Stark v The Post Office [2000] ICR 1013. Where the parties differed was as to the proper ambit of Regulation 5(1), and in particular as to the circumstances which would bring it into play. According to counsel for the defenders, Regulation 5(1) could be prayed in aid only by an employee who was actually using work equipment in the course of his or her work at the time when an accident occurred. Counsel for the pursuer, on the other hand, maintained that the scope of the statutory duty extended far wider than that, and inter alia conferred protection against any injury sustained by an employee through defects in, or malfunction of, work equipment which had been provided for the use of the workforce. Since, on the evidence, the pursuer was not physically making use of the defenders' drinks dispensing machine at the time of her accident, resolution of this contested issue between the parties would effectively determine the success or failure of the sole statutory case which she now made against the defenders.

[20] The proposition advanced by counsel for the defenders was that the 1998 Regulations, properly construed, did not protect someone like the pursuer who was merely passing by, or standing near the machine in question when her accident occurred. As illustrated by comparing Regulations 4 and 5, the 1998 Regulations contained many different provisions designed to protect employees on different grounds in a wide range of situations. They formed part of a group of Regulations promulgated at the same time which extended protection to workers, not just in relation to work equipment, but in relation to places of work and other aspects of the working environment pursuant to the over-arching Framework Directive (Council Directive 89/391/EEC of 12 June 1989). Since a pursuer might legitimately found on several provisions of these Regulations at the same time, it was necessary to recognise that each such provision had its proper scope beyond which it was not intended to apply. In other words, there had to be some reasonable limitation placed upon the broad, purposive interpretation which the defenders acknowledged as appropriate vis‑à-vis the Regulations as a whole, and the Court must be careful not to read more into any given provision than was actually there. It was significant, in counsel's submission, that her researches had not thrown up any decided case in which a pursuer or plaintiff had successfully founded on Regulation 5(1) in circumstances where he or she was not actively using the alleged work equipment at the material time, nor where the alleged work equipment was not, on the evidence, provided for the purposes of his or her work.

[21] In support of these submissions, counsel referred me to paragraphs 103 and 117 of the HSC Code of Practice and Guidance on the 1998 Regulations, which appeared to focus on actual use despite the apparently wide terms of paragraph 62. She also referred me to a number of decided cases in which damages were awarded under the Regulations to injured parties actually using equipment of some kind, and to some in which recovery was denied to individuals who were not. By way of illustration, Ball v Street [2005] EWCA CIV 76 was a case in which a farmer personally using a haybob machine was held entitled to recover damages from his neighbour from whom the machine had been temporarily acquired, and who still exercised the requisite degree of control of that machine for the purposes of Regulation 3(3). Similarly, Hislop v Lynx Express Parcels [2003] SLT 785 could be characterised as a case where the pursuer was using his van at the time when its radiator cap blew off and injured him. In P R P v Reid [2006] EWCA CIV 1119, the issue was again whether the pursuer was using a defective passenger lift "at work" for the purposes of the 1998 Regulations, and after proof it was held that she was.

[22] By contrast, Donaldson, supra, and Hammond v Commissioner of Police of the Metropolis &c [2004] ICR 1467 were cases which drew a legitimate distinction between "work equipment" used by persons in the performance of their work, and a mere workpiece on which work was carried out. In Donaldson, it was held that a lady visiting the loading bay of a store where she had purchased furniture could not found on the (then applicable) Work Equipment Regulations 1992 against the owners of the lorry which crushed her. In Hammond, it was held that a wheel bolt which sheared on a van under repair in the defendant's garage was not "work equipment" for the purposes of the 1992 Regulations. At paragraph 31 of that judgment, the Court of Appeal warned against any excessively wide interpretation of the Regulations which could impose onerous and inappropriate constraints on small businesses. Montgomerie v Glasgow Prestwick International Airport Limited &c (Temporary Judge J G Reid QC, unreported 29 June 2004) was another case in the same category, where, at debate, it was held that the malfunction of an aircraft door catch did not entitle an airport baggage handler on whom the door fell to recover damages under inter alia the statutory precursor of Regulation 5(1).

[23] In the present case, counsel submitted, the circumstances clearly took the pursuer outwith the intended scope and application of Regulation 5(1). Neither she nor anyone else was actively using the machine when the accident occurred. The machine had been provided primarily for the self-service use of students and other canteen customers, and was only incidentally or intermittently used by the pursuer and others in the course of their work. As a matter of reasonable construction, Regulation 5(1) could not properly be held to afford protection to an injured party in such circumstances, and it was the pursuer's misfortune that her advisers had sought to found on Regulation 5(1) rather than on some other provision within the group of Regulations giving effect to the European Directives on safety at work.

[24] The position adopted by counsel for the pursuer was quite different. He invited me to adopt a broader and more liberal approach to the construction of the 1998 Regulations, stressing that Regulations 3(2) and 4(1) - especially the former - expressly encompassed equipment, not merely where it was in actual use by an injured party, but also where it was "provided for use" or "used" by workers in general. Of similar significance was the definition of work equipment in Regulation 2(1), which contained the phrase "for use" as opposed to wording which might be thought to refer to actual use at any given moment. Even if (as counsel for the defenders submitted) the machine was primarily provided for self-service use by students and other canteen customers, it was also provided for the use of the pursuer and other members of staff in the course of their work. The pursuer and her colleagues did actually use the machine on a regular basis in order to perform their duties, even if this was on a non‑exclusive basis with others being permitted to use it as well. At the time of the accident, moreover, the machine was switched on, primed and in a real sense "in use", since its operational state was designed to, and did, facilitate the job of canteen workers such as the pursuer in serving hot beverages to customers. It was therefore immaterial, in counsel's submission, that the pursuer was not physically operating the machine at the moment when the accident occurred.

[25] Looking at the issue more broadly, the narrow interpretation which had been urged on the Court by counsel for the defenders gave no content to the terminology of the key provisions by which the scope of the 1998 Regulations was defined. It would also lead to the absurdity of equipment floating in and out of the scope of Regulation 5(1), depending on the chance of whether a particular individual happened to be using it at the time. That could not sensibly have been Parliament's intention in promulgating the 1998 Regulations, especially as such an interpretation would largely deny to "workers at work" the degree of protection contemplated by the Work Equipment Directive. Hislop, supra, was a case in which the pursuer succeeded notwithstanding the fact that he was not driving or "using" his van at the time when its radiator cap blew off. However, even if that case arguably fell within the scope of the extended definition of "use" within Regulation 2(1) of the 1998 Regulations, and even if no decided case could be found in which liability under Regulation 5(1) had been held established in relation to a pursuer or plaintiff who was not actually using equipment at the relevant time, there was still no justification for the severe limitation which counsel for the defenders sought to read into the 1998 Regulations. It was neither necessary nor legitimate to go beyond the clear terms of the Regulations themselves, bearing in mind that in certain respects they omitted potential restrictions which had formed part of their precursor Regulations in 1992. If equipment was made available for use by workers in the workplace, then in counsel's submission the strict terms of Regulation 5(1) must necessarily apply. Unrealistic metaphysical questions as to when actual use might be said to start or finish would thereby be avoided, and workers in general would receive an appropriate degree of protection against injuries caused by defective work equipment. Significantly, Articles 4a and 6 of the Work Equipment Directive of 1989 covered situations in which direct use was not in issue, and this was a further indication of the fallacy of the defenders' approach.

[26] In my opinion the pursuer is entitled to succeed under Regulation 5(1) of the 1998 Regulations. As the parties agree, the obligation to "... maintain in an efficient state" is absolute in nature, so that the emergence of any defect or malfunction automatically constitutes a breach irrespective of whether that defect or malfunction could have been foreseen or avoided. The only question for determination is thus whether the 1998 Regulations, and in particular Regulation 5(1), apply in the circumstances of this case. In my judgment they do.

[27] A convenient starting point is to put this issue into its well-known context. For the best part of a century, similar statutory provisions of a general nature have been understood as conferring protection on inter alios workers at work, that is, all persons working within a relevant undertaking, even if not actually engaged on the work which they were employed to do:- c.f. Redgrave's Health & Safety, 4^th Ed., paragraph 2.26 ff. The Factories Acts 1937 and 1961 were so construed and applied, as were many of the Regulations promulgated under them. The Health and Safety at Work Act 1974, under Section 15 of which the Work Equipment Regulations 1998 were promulgated, tends to go even further, providing by Section 1(1) inter alia as follows:-

[28] In this connection, I would respectfully disagree with the observation of the Lord Ordinary in English, supra, at page 319C - D, to the (apparent) effect that regulations promulgated in implement of any of the European Safety Directives must be construed as if they had no other pedigree, and that ".... An approach based on the Factories Acts is fundamentally misconceived" and "potentially misleading". Unless that observation was intended to strike at construction by reference to the Factories Acts alone, it is in my view unsound in circumstances where the provenance and terminology of particular provisions can be traced back to earlier Statutes and Regulations, and a fortiori where Regulations are promulgated under a statutory power which long pre-dated the Directives. As the Court of Appeal recently held in Stark, supra, the decision of the House of Lords in Galashiels Gas Co Ltd v Millar is still of key significance in pointing to the absolute nature of the obligation contained in Regulation 5(1) of the Work Equipment Regulations 1998, and the relevance of the latter decision in that context is of course a matter of agreement between the parties in this case. For the avoidance of doubt, I am not suggesting that any particular approach to construction should be adopted merely because it was settled under earlier legislation now repealed. Plainly such an approach would be untenable in present circumstances. The point is rather that earlier legislation in the same field, and perhaps also expressed in familiar terminology, may well have a continuing role to play in helping to identify the ambit and level of protection which later Regulations should be held to confer.

[29] Against that background, I turn first to look at the overall structure of the 1998 Regulations. Significantly, while the protection afforded by some provisions is specifically limited to persons performing specific activities, - see for example Regulations 12(1), 17(2) and 26 - , that is plainly not the case with most of the other provisions, such as Regulations 4(1), 5(1) and (2), 6(1), 11(1), 17(3)(a) and (b), 20, 23, 24, 25, 28 and 32. If, according to counsel for the defenders, the 1998 Regulations as a whole were intended to confer protection only on individuals actually using work equipment at any given moment, it is hard to understand why certain Regulations, but not others, were explicitly restricted in that direction.

[30] Focusing now on Regulation 5(1), and at the same time on the key definitional provisions in Regulations 2(1) and 3(2), I can find nothing in their terms which would allow me to hold that they were intended to apply only where equipment was actually in use by the injured party at the moment of an accident. While actual use would undoubtedly be covered under Regulations 2(1) and 3(2), these provisions also cover equipment "for use" or "provided for use" by workers at work. By ignoring the preposition "for", the severe limitation urged upon me by counsel for the defenders is in my view at variance with the actual terminology of the provisions which fall to be construed. Furthermore, the striking absence of restriction in the wording of Regulation 5(1) seems to me to take on particular significance by reference to Section 47(2) of the enabling Act.

[31] Over and above that, I do not consider that the proposed limitation would lead to a sensible or acceptable result. For one thing, the widespread protection envisaged for "workers at work" under the relevant series of European Directives could hardly be achieved if it applied only intermittently, and then only in favour of someone actually using work equipment at a given moment. I am not attracted by a suggested interpretation which would permit recovery to (say) a lathe operator injured by the catastrophic failure of his machine while he was actually using it, but none at all to (a) an apprentice or trainee observing the work; (b) a supervising foreman or manager; (c) a neighbouring lathe operator working on his own machine; or (d) the original lathe operator while in the vicinity of the machine either before or after actual operation. Similarly, I am not attracted by a suggested interpretation on which the sudden collapse of a hoist or scaffolding would afford no right of action to an employee hurt while working underneath. In my view such limitations would, as counsel for the pursuer submitted, lead to a strange situation in which work equipment would somehow float in and out of the scope of the Regulations during the course of a working day, and in which extremely difficult questions would arise as to the point at which the statutory protections might be held to apply or fly off. In my judgment such an unreasonable state of affairs should, if possible, be avoided, especially having regard to the liberal and purposive approach which was discussed in cases such as English and Donaldson. It is therefore with little hesitation that I decline to accept the contentions asserted by counsel for the defenders.

[32] On a straightforward application of the terms of Regulations 2(1) and 3(2), I consider that the drinks dispensing machine was provided by the defenders for use by inter alios canteen employees such as the pursuer, and was moreover fully operational and available for such use at the material time. Indeed, I think that it might reasonably have been argued (had it been necessary to do so) that such operational availability rendered the machine continuously "in use" as part of the means by which, throughout the working day, the canteen staff as a whole discharged their function of providing hot beverages for the benefit of customers. Even without recourse to that argument, however, acknowledging that it was not developed in any detail in the discussion before me, I am satisfied that the machine was "work equipment" as defined for the purposes of the 1998 Regulations, and held that qualifying character at the time when the pursuer's accident occurred. That being so, there is in my view no reason why the pursuer, as a regular staff user of the machine, should not be held entitled to take advantage of the important protection enshrined in Regulation 5(1). In the result, I conclude that the 1998 Regulations apply; that breach of the absolute obligation under Regulation 5(1) has been established; that such breach caused the pursuer's accident; and that the pursuer's statutory case against the defenders has been made out.

[33] This issue was only faintly argued before me, and did not really figure in the evidence at all. The suggestion was simply that the pursuer had overreacted to any fright which the machine may have given her, and that she must therefore bear some responsibility for the injuries which she sustained. On a broad basis, it was said, this responsibility might be assessed at 25 per cent. Some reference was made in this context to the entries in the hospital records which suggested that the pursuer may have slipped, but since the authors of these entries were not led, and their accuracy was disputed by the pursuer, I am not prepared to accord them any significant weight. In reply, counsel for the pursuer reminded me that the relevant allegation had not been put to his client or to any other witness, and submitted that there was no evidential basis on which any finding of contributory negligence could properly be made.

[34] Had the matter of overreaction been fairly put to the pursuer and other apparent eyewitnesses, I might well have been inclined to make a finding of contributory fault in this case. Indeed, had such an issue been explored in evidence, that might well have affected my conclusions on the issue of causation in general. As mentioned in paragraph [6] above, a person instinctively reacting to a fright may understandably slip, trip or collide with something, but it is less easy to understand how, in the absence of any such feature, a fright could lead to a catastrophically heavy fall on to a hip and wrist at the same time. However, since the mechanics of the pursuer's fall were essentially not explored in evidence, and since the suggestion of overreaction was not raised by the defenders with anyone, I am not prepared to make the finding of contributory negligence for which they now contend.

[35] By the Joint Minute tendered on the second day of the proof, the parties have helpfully agreed solatium at an overall total of £20,000, with half of that figure being attributable to the past. They have also agreed a range of figures to represent the pursuer's past and future loss of earnings, depending on the date to which, but for the accident, she might have been expected to carry on working for the defenders. The issues remaining live for my determination are therefore (i) the pursuer's entitlement to wage loss within the scope of the agreed framework, and (ii) the level of any award in name of services under Section 8 of the Administration of Justice Act 1982. In the course of his submissions at the close of the proof, counsel for the pursuer helpfully confirmed that his client's claim for services was so restricted, and that no claim under Section 9 of the 1982 Act was now being advanced.

[36] On the wage loss issue the pursuer's position was that, on the evidence, she was fully fit for work at the time of the accident notwithstanding a previous heart attack and certain other health complaints. She was a keen and effective worker, as confirmed by the defenders' manageress, Miss Ritchie, and it would have taken something significant to prevent her from working on until her full retirement age of 65. At the time of the accident she was aged 58, and she will be 62 on her next birthday in February 2007. Although clearly disabled by the accident, there was no reason to think that the pursuer's employment with the defenders would otherwise have come to a premature end. She should therefore be compensated for wage loss on the basis that, but for the accident, she would probably have worked to the age of 65. As she explained in evidence, she liked her job and the camaraderie which it brought, and it also meant a lot to her financially having regard to the fact that her husband was not a high earner.

[37] As against that, counsel for the defenders asked me to hold that, even without the accident, the pursuer would probably not have continued to work for the defenders beyond the age of 60 or, failing that, that her employment would probably have come to an end for health reasons at some time between the ages of 60 and 65. On the evidence, the pursuer had had a heart attack in 1996, and her medical records contained references to angina, asthma, cholesterol problems, a minor tumour and an episode of dizzy spells for which no cause could be found. She was also a little hard of hearing and a letter from her GP had mentioned poor vision. Such a health record could not be ignored by the Court, and on the balance of probabilities it should be held that, but for the accident, the pursuer would have retired at age 60 or at least before the age of 65.

[38] In the absence of any evidence from the pursuer's GP, or indeed from the author of any of the medical reports produced, I am not prepared to attach any great significance to the entries on which counsel for the defenders sought to rely. On the evidence before me, the pursuer had had no problem in holding down her job on a full-time basis following the heart attack which she sustained in 1996. None of the other supposed health complaints seem to have affected her working capacity. She clearly enjoyed her work and was a valued employee, and if the accident had not happened there is no reason to think that she would not have been able to continue working indefinitely. In the witness box, although clearly disabled and in pain from the effects of the accident, the pursuer insisted on standing for around one hour and gave no indication of being troubled by any cardiac problem, angina, asthma, tumour or dizziness. She mentioned that she was a little hard of hearing, but essentially had no difficulty in following the proceedings. Equally she had no apparent difficulty (with the aid of her glasses) in reading documentary productions. I am therefore unable to see any basis on which I could properly hold that, as a matter of probability, the pursuer would have retired on health grounds by the age of 60 if the accident had not occurred. Indeed, judging by the pursuer's appearance and demeanour at the proof, and her obvious desire to carry on working for as long as she could, there is no reason to think that, but for the accident, she would have contemplated early retirement before the age of 65. On the other hand, in making a present-day award to cover future loss yet to be sustained, it is in my view appropriate to make some discount for contingencies, bearing in mind that the pursuer is not in the first flush of youth and that her general health is perhaps rather less than perfect. Approaching the matter broadly, I think that it would be appropriate to reduce future loss of earnings by one year, and on that basis the award under this head will (on agreed figures) be £16,279.36 attributable to the past and £14,253.97 for the future.

[39] Turning to the claim for services, this concerned the activities of the pursuer's husband during four distinct periods, namely, (i) the period when the pursuer was in hospital; (ii) the immediate post-discharge period when the pursuer still had a plaster on her fractured wrist and required help with all aspects of personal care; (iii) the subsequent period to December 2003 during which personal care was no longer a problem, but substantial help was required with domestic activities including cooking, housework and shopping; and (iv) the succeeding period to date and in the future during which the pursuer's husband's contribution reflected only heavy housework and some assistance with shopping. It can be said at once that the evidence of the pursuer and her husband on these issues was not impressive. Whether by accident or by design, some of their estimates of average daily or weekly times spent by Mr Given on such activities seemed absurdly high and out of all proportion to what might realistically have been the case. For example, when asked about the immediate post-hospital phase, the pursuer claimed that her husband's commitment extended to 7-8 hours daily with a neighbour helping out when he was at work. That figure was not confirmed by her husband, but at various points of his evidence he also disclosed what I regarded as a tendency to exaggerate. For example, he estimated his own contribution to housework in the third period mentioned above as representing 2-3 hours daily, but under pressure from counsel for the pursuer he agreed that maybe half an hour a day might be a bit nearer the mark. He also appeared to me to be exaggerating the extent and likely duration of shopping trips, and more generally the continuing extent of the pursuer's disability. According to Mr Di Paola, the consultant orthopaedic surgeon whose written reports were agreed as the equivalent of his oral evidence, there was no major objective support for the pursuer's subjective claims of continuing weakness and disability in her right wrist, and with appropriate motivation there was no reason why normal function of that limb should not be regained.

[40] In all the circumstances, I am not prepared to make an award for services here on the multiplier/multiplicand basis which counsel for the pursuer suggested, especially having regard to the relatively high proportion of total damages which that would represent. To be fair, counsel indicated that he would have no complaint if a lump sum award were to be made here instead, and this coincided with the approach of counsel for the defenders who suggested a round figure of £5,000 in that connection. In my view, that is indeed the appropriate course to follow in a case such as this where the detailed evidence must be regarded as unreliable. Furthermore, given the restriction of the claim to that arising under Section 8 of the 1982 Act, I must discount any activities on the part of Mr Given from which he himself might derive benefit. Section 8 applies only to necessary services rendered by a relative to an injured party. Taking all of these considerations into account, I do not think that counsel for the defenders was far off the mark when she suggested an overall figure of £5,000, of which the greater part should be attributed to the past and bear interest. I therefore award the pursuer a lump sum of £5,000 under this head, attributing £4,000 of that figure to the past.

[41] In the result, the pursuer's damages are assessed at a total of £55,533.33, of which £30,279.36 may be attributed to the past. As regards interest, it is agreed that interest on the past wage loss of £16,279.36 should run at 4 per cent per annum for three years only, since the pursuer's wages continued to be paid for the first six months after the accident. This brings out a figure of £1,953.53. As regards solatium and services, these awards are substantially front-loaded and will bear interest from the date of the accident. At an annual rate of (say) 6 per cent per annum for 31/2 years, this brings out further interest of £2,940. In aggregate, therefore, the pursuer's claim inclusive of all interest to date is valued at £60,426.86.

[42] For all of the foregoing reasons, I hold the defenders liable in damages to the pursuer in respect of the accident which she sustained on 30 May 2003, and assess their liability at £60,426.86 inclusive of all interest to the present date. Decree will therefore be pronounced in the pursuer's favour for that sum, with interest thereon at the rate of 8 per cent per annum from the date of decree until payment.