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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 09
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A49/05
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OPINION OF LORD BRAILSFORD
in the cause
ANDREW LESLIE
Pursuer;
against
BABCOCK ENGINEERING
SERVICES LIMITED
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
Bell, Q.C. et
Macgregor; Allan McDougall & Co
Defenders: DiRollo Q.C.; HBM Sayers
12 January 2007
[1] This
case appeared before me for discussion on the procedure roll on 12 January 2007. The defenders invited me to uphold their
first plea-in-law and dismiss the action as being irrelevant and, in any event,
lacking in specification. The pursuer
moved that I allow a proof before answer of all averments. Prior to the hearing on procedure roll the
defenders had lodged a note of argument detailing seven specific criticisms of
the pursuer's pleadings. These arguments
were all advanced during the course of the debate.
[2] The
pursuer's case was that he was employed by the defenders as an insulator in April
1987 and worked for the defenders in that capacity until September 2002. He had commenced work as an insulator with
the defenders' predecessors in 1983 and at that time had notified them that he
had been diagnosed as suffering from Perthes disease and that condition
affected his hips and joints. The
defenders' predecessors, and subsequently the defenders, were consequently
aware throughout his employment that he suffered from that condition. During the course of his employment he was
required to do "heavy" work in extremely confined spaces in submarines. The work involved lagging and installing hot
and cold systems. This in turn involved
getting into very tight spaces and carrying, dragging and manipulating large
quantities of insulating materials and cement.
It was further averred that in the early 1990s the size of the work
force employed in insulating tasks was reduced and as a consequence thereof,
the pursuer's work became increasingly heavy.
Specification was given of the weights of materials that it was said the
pursuer routinely required to move. It
was averred that he often required to drag materials tied to his leg. There were further averments that the
defenders made no assessment of the manual handling operations upon which the
pursuer was engaged, that no lifting equipment was provided to assist the
pursuer, that he received no training in how to lift, that he received no
routine hourly breaks from his work and that there was no provision of precise
information or even general indications as to the weight of loads he required
to move. It was further averred that he
spent most of his days on his hands and knees.
These working conditions were said to have aggravated his Perthes
disease and "accelerated" the incapacity of the pursuer. Cases of common law breach of duty and a
breach of Regulation 4 of the Manual Handling Operations Regulations 1992 were made
against the defenders.
[3] The
defenders maintained that, as a matter of relevancy, the pursuer's case of common
law fault directed against them was fatally flawed. The defenders identified the averment in
article 7 of condescendence at page 10D of the Closed Record (as amended)
as being critical. That averment was in
the following terms: "In the circumstances, the defenders were under a duty of
reasonable care to prevent the pursuer from performing heavy manual tasks
during the course of his employment with them."
That averment was said to be flawed in that there were no relevant
averments of how the working conditions experienced by the pursuer aggravated
the Perthes disease from which he suffered or accelerated his incapacity. Further, the defenders argued that there was
no basis upon which they could reasonably have known or ought to have known
that requiring the pursuer to do the sort of work that he avers he was
performing, would tend to aggravate or bring on the condition from which he
avers he suffered. In the circumstances,
it was said that there was no proper specification of the common law duties
which were owed to him by the defenders nor how any such duties were
breached. Further, there was no link in
pleading between any breach of duty and any loss, injury or damage sustained by
the pursuer.
[4] The
defenders also challenged the relevancy of the statutory case pled against them
under Regulation 4 of the Manual Handling Operations Regulations 1992. That regulation provides:
"(1) Each
employer shall - (a) so far as is reasonably practicable avoid the need for his
employees to undertake any manual handling operations at work which involve a
risk of their being injured at work; or (b) where it is not practicable to
avoid the need for his employees to undertake any manual handling operations at
work which involve a risk of their being injured - (i) make a suitable and
sufficient assessment of all such manual handling operations ... (ii) take
appropriate steps to reduce the risk of injury ... to the lowest level reasonably
practicable, ..."
"Manual handling operations" used
in that regulation are defined by Regulation 2 as meaning "... any transporting
or supporting of a load (including the lifting, putting down, pushing, pulling,
carrying or moving thereof) by hand or by bodily force".
In relation to the case pled under
that regulation, it was firstly argued that the regulations could have no
effect before their commencement on 1
January 1993. It followed,
so it was contended by the defenders, that any contribution to injury made by a
breach of statutory duty after that date should, as a matter of fair notice, be
identified in averment and distinguished from any damage sustained as a result
of conditions of employment prior to that date.
This had not been done by the pursuer and as a result the pursuer was
not entitled to go to proof on this case.
An elaboration of this argument was presented to the effect that the
relevant regulation covered only that part of the pursuer's work when he was
manually handling materials within the scope of the regulation.. As a matter of averment not all of the work
carried out by the pursuer involved manual handling of materials. That being the case there could only be
liability, it was contended, for those parts of his employment when he was manually
handling materials. The pursuer did not
attempt on averment to identify those parts of his employment which were
clearly referable to the regulations. He
was not, it was contended, entitled to proof on the generality of his
averments.
[5] The
foregoing arguments were presented as matters of relevancy. Beyond that the defenders identified a number
of matters in the pursuer's pleadings which, it was argued, were insufficiently
precise as a matter of specification to meet the test of giving fair notice. In that regard it was firstly contended that
it was insufficient for the pursuer simply to aver that he suffered from
Perthes disease. It was argued that the
defenders were not given fair notice as to what this condition was, how it
affected the pursuer and what its consequences were. All these matters, it was said, required to
be averred. The defenders also drew my
attention to the penultimate sentence in article 4 of condescendence at page 7B
of the Closed Record (as amended). This
sentence was to the effect that if the pursuer had received warnings about
potential aggravation and acceleration of his disease he would have sought
alternate light work. It was contended
that this averment was in isolation and was not related to any case at common
law or breach of duty. As such it was
both lacking in specification and irrelevant. Similar criticisms were made about the only
sentence in article 5 of condescendence, an averment that in 1986 the pursuer
had advised the defenders' physician that he suffered from Perthes disease.
[6] In
response to these various criticisms counsel for the pursuer argued that his
case was a straightforward one of a person who suffered from an illness and who
had informed an employer of that prior to commencement of employment. Notwithstanding putting the employer on
notice of his condition he had, over a long period of years, been subjected to
employment in conditions which were said to aggravate and accelerate that
disease. It was conceded that the use of
the terms "aggravation" and "acceleration" were, at times in the pleadings,
less precise than optimum but that nevertheless it was reasonably clear what
these terms were intended to mean in the context of the pleadings as a
whole. The case, both at common law and
under the regulations, was that the pursuer required to carry out heavy and
awkward work which had the said effects on his condition. There was no need, as a matter of fair
notice, to specify the condition from which the pursuer suffered other than by
its name. As already noted I was invited
to allow a proof before answer of all the pursuer's averments.
[7] In
my view the pursuer has averred a case sufficiently relevant to entitle him to
a proof before answer of his averments.
I consider that stating that he had a condition, Perthes disease, which
was intimated to the defenders' predecessors before commencement of employment
is sufficient specification for the purposes of giving fair notice. The nature of that condition, its effects and
consequences are matters of fact to be examined at proof by appropriately
qualified experts. By stating that he
suffered from the condition the defenders are, in my view, put on notice of the
line that they will require to investigate and counter at proof. I further consider that the averments made by
the pursuer of the working conditions that he experienced, in light of the
condition from which he avers he suffered, were such as could give rise to the
case of common law fault and the breach of duty which is averred by the pursuer. These averments are of requiring to carry out
insulating work in tight spaces and of having to collect materials used in this
work and convey them to the work place.
Specification of the sort of weights said to be involved is given. It is, in my view, averment of circumstances
of work which are potentially capable of giving rise to both acceleration and
aggravation of a medical condition affecting a person's joints and hips. Similarly, the type of work averred is, in my
view, at least liable to fall within the scope of Regulation 4 of the Manual
Handling Operations Regulations. In
these circumstances, I do not consider that the defenders are justified in
contending that as a matter of relevancy no case has properly been made against
them. In relation to the point made by
the defenders that in the regulatory case no attempt is made on averment to
identify those tasks which the pursuer performed which fell within the ambit of
the regulation and those that did not, I consider that, whilst there may be
some force in that, it is a matter to be resolved at proof. Further, I consider that the pursuer's
averments give sufficient notice to the defenders to enable them to be aware of
the case that is made against them.
[8] The
one area where I consider the defenders' submissions had merit was in relation
to the averments in the penultimate sentence in article 4 of condescendence and
the entirety, a single sentence, of article 5.
I was invited by the defenders to refuse to permit those averments to
probation. In my view neither of those
averments were properly linked to any case of fault or breach of duty. They stood in isolation and had no bearing or
relevance upon the case as pled against the defenders.
[9] In
the foregoing circumstances I allowed the pursuer a proof before answer of the
pursuer's averments subject to deletion of the penultimate sentence in article
4 of condescendence and article 5 of condescendence.
