Scottish Court of Session Decisions

Pursuer: Blessing; Thompsons

Defenders: Clarke; Simpson & Marwick, W.S.

13 June 2007

[1] This is a motion by the pursuer to allow amendment of the closed record in an action of damages for personal injuries. The accident occurred as long ago as 8 April 1998. The pursuer was working in the course of his employment with Scotrail plc as a train driver. He was driving a train from Glasgow to Aberdeen. The train was passing through a cutting at Croy when it collided with a rock on the line. The pursuer avers that as a result of the accident he developed post-traumatic stress disorder. He blames the defenders for the accident on the ground that they failed to take reasonable care to inspect the cutting, and he makes detailed averments about the nature of the cutting and the nature of the inspections which he says the defenders should have undertaken. He avers that after the accident the defenders carried out an investigation into the accident and concluded that the rock had fallen because of heavy rainfall and that it might have been loose for a considerable period.

[2] The minute of amendment is in four paragraphs. In the first, the pursuer seeks to add an averment that the rock which caused the accident had been loose for a period of at least a year. In the second, he intends to substitute for an averment that rocks were frequently lying at the track side an averment that before the accident the pursuer frequently noticed fresh rock debris, which was clearly visible, at the locus around the cess area at the side of the track. In the third, he wishes to add a new ground of liability under regulations 5 and 6 of the Provision and Use of Work Equipment Regulations 1992 ("the Regulations") which were in force at the time, on the basis that the train and the track it was travelling on were all work equipment. Finally, in the fourth paragraph he proposes to add a reference to breach of statutory duty in his first plea-in-law.

[3] The defenders in their answers to the minute of amendment deny, in their second paragraph, that the Regulations applied and aver that the track was not work equipment. They also add, in the fourth paragraph of their answers, a plea that the pursuer's averments about the Regulations, being time-barred, should not be incorporated into the closed record. The defenders already have in the closed record a general plea to relevancy. At the hearing of the motion the parties were agreed that I should adjudicate on the issues of time-bar and relevancy which the defenders sought to raise in relation to the averments in the minute of amendment.

[4] Counsel for the defenders, who provided me with a most helpful skeleton argument, drew my attention to the prolonged history of the case. The action was raised early in April 2001 shortly before the expiry of the triennium. The record having been closed, on 29 January 2002 the cause was appointed to the procedure roll, where it has remained to this day. There was a protracted amendment procedure from 19 March 2003 to 22 December 2005. The pursuer lodged the present minute of amendment on 14 December 2006, some days before the date fixed for a procedure roll hearing. Since I did not have the advantage of any explanation of this procedural history from counsel for the pursuer, who had not been originally instructed, I refrain from comment.

[5] Counsel for the defenders opposed the pursuer's motion for leave to amend on the grounds that their ability to investigate had been materially hampered by the passage of time; the averments the pursuer sought to add were irrelevant; and the case under the Regulations of 1992 was both time-barred and irrelevant.

[6] Counsel for the pursuer pointed out that the defenders had already made extensive investigations into the accident. The averment that the rock had been loose for at least a year had come from expert reports obtained by the pursuer. The averment which the pursuer proposed to substitute about fresh rock debris was an attempt to answer a call by the defenders and was based on information provided by the pursuer himself: it was a strictly incorrect pleading of evidence, in an attempt to satisfy the defenders.

[7] Whatever criticisms may be made of the relevancy of the pursuer's pleadings in the unamended record, I am not satisfied that the averments of fact in the minute of amendment are irrelevant or that they should cause the defenders any additional difficulty in preparing for inquiry. To borrow the language of Hynd v West Fife Co-operative Ltd 1980 SLT 41 at page 43, the case, if the amendment of the averments of fact is allowed, will be about the same accident and the same danger.

[6] On the other hand I consider that the proposed new statutory case is irrelevant. I am prepared to assume, although the matter was not fully argued, that if the track could be regarded as "work equipment" a case might be made against the defenders, who were not the pursuer's employers but were persons who had control of non-domestic premises made available to persons as a place of work, in respect of work equipment used in such premises by such persons and to the extent of their control (regulation 4(2)(b)). In my opinion, however, the track cannot reasonably be described as "work equipment".

[7] That expression is defined as follows in regulation 2(1):

The term was authoritatively commented on by their Lordships of the Second Division in the recent case of Spencer-Franks v Kellogg Brown and Root Ltd [2007] CSIH 33. The Lord Justice Clerk said (at paragraph 4) that it related to items of the kind specified in regulation 2(1) which the employee has for the purpose of doing his work. Lord Johnston (at paragraph 25) and Lord Marnoch (at paragraph 42) referred with approval to the judgment of May LJ in Hammond v Commissioner of Police for the Metropolis [2004] EWCA Civ 830, [2004] ICR 1467. May LJ said at paragraph 24:

"[ . . . ] regulation 4(1), it will be recalled, provides:

'The requirements imposed by these Regulations on an employer shall apply in respect of work equipment provided for use or used by any of his employees who is at work . . .'

This indicates, in my view, that the Regulations are concerned with what may loosely be described as the tools of the trade provided by an employer to an employee to enable the employee to carry out his work. I emphasise that my use of the expression 'tools of the trade' is intended to be illustrative and not definitive. There plainly are many things such as, for instance, a hoist, which may be work equipment, for which the word 'tools' would be inapt. The requirements of the regulation are imposed in relation to 'work equipment' falling within the definition of regulation 2(1) which is provided by an employer for use by his employees when they are at work."

[8] In my opinion the line of railway track on which he drives the train cannot reasonably be said to be one of the tools of the trade of a train driver. It is of greater importance, however, that it can scarcely be described, in any ordinary use of language, as an item of equipment provided for his use, or to enable him to carry out his work, while he is driving the train. Nor can it be said that he has the track for the purpose of doing his work. I consider, accordingly, that the pursuer's proposed statutory case is irrelevant.

[9] I shall therefore open up the closed record, allow it to be amended only in terms of paragraphs 1 and 2 of the pursuer's minute of amendment no. 18 of process and paragraphs 1 and 3 of the defenders' answers thereto no. 19 of process, close the record of new and reserve all questions of expenses.