Scottish Court of Session Decisions

Pursuer: Love; Digby Brown

Defenders: Springham; Simpson & Marwick

3 October 2008

Introduction

[1] This action of damages arises out of an accident which befell the pursuer on 22 January 2006. On that date he was working as a pipe fitter on a barge which was berthed at Bergen, in Norway. The barge was undergoing a re-fit. That re-fit involved the removal of existing pipework and the fabrication and replacement of a variety of new pipes. The pursuer was working under the direction and supervision of the defenders. He had been working on the barge for approximately 7 weeks before the accident happened.

[2] At the time of the accident the pursuer was working in the mid-engine room of the barge. He was wearing bulky overalls. The accident occurred whilst the pursuer was moving from one part of the engine room to another. An 8 inch diameter cunifer pipe had been installed so that it passed horizontally across the route the pursuer was following. The pursuer stepped up onto that cunifer pipe, from which he slipped and fell. He sustained injury, fracturing his left ankle.

[3] The action was raised under the Chapter 43 procedure. On the morning of the proof, I was invited to amend the pleadings in terms of the Minute of Amendment for the defenders (No. 13 of process) and the Answers for the Pursuer (No. 15 of process). The pursuer sought to add late adjustments to his Answers by adding the words "when he fell over pipes in the engine room" between the words "engine room" and "Other", where they would appear in line 1 on page 8 in statement IV of the reprinted Record, which had been prepared, and the word "Reid", between the words "Foreman" and "Boat" in line 6 on page 8 in statement IV of that Record. I allowed these amendments. In terms of a joint minute (No. 18 of process) damages were agreed at £22,500, that sum being inclusive of interest to the date of the proof and net of any liability that the defenders may have in terms of the Social Security (Recovery of Benefits) Act 1997.

[4] The case pled on behalf of the pursuer was along the following lines. The pursuer and others working in the course of their employment on the barge required to take instructions from the defenders and, in particular, from the defenders' nightshift manager. The defenders were thus in charge of the system of work which the pursuer and his colleagues required to follow. The accident occurred during night shift working, when the pursuer was in the mid-engine room, where engines 4 and 5 were located. The deck plating in that engine room had been lifted, exposing pipe work which was designed to run below the normal floor level. There were a number of other pipes in the engine room, some fixed and others not yet fixed. To some extent these obstructed movement around the engine room. On the day of the accident the pursuer sought to pass between engines 4 and 5, whilst moving from where he had been working behind engine 5, to the door leading out of the engine room. The cunifer pipe blocked his path. The pursuer avers he was unable to get close enough to this cunifer pipe in order to step over it. The pursuer had no option but to step onto the cunifer pipe and then down onto the floor on the other side of the pipe. No form of wooden step had been provided for access or egress over the fixed cunifer pipe. There had been previous complaints about the working conditions in the engine room and one of the pipe fitters working with the pursuer, David Boat, had asked for some form of temporary construction to be built around the cunifer pipe. The pursuer stood on the cunifer pipe. He slipped off the pipe and sustained injury. The defenders are alleged to have been in breach of their common law duties of care to the pursuer to provide him with a safe place and system of work and safe means of access to and aggress from places where he required to work.

[5] The case on behalf of the defenders was to the effect that the pursuer had been prohibited from standing on the pipe from which he slipped. In any event he could easily have stepped over the cunifer pipe rather than stand on it. There was no need for him to step up onto the pipe. The height of the pipe was such that it was easy to step over. Other workers had done so without incident. As an experienced pipe fitter the pursuer knew, or ought to have known, that it was unsafe to stand on the top of pipes. He knew, or ought to have known, that the pipe was likely to be slippery. No complaints had been made about the pipe prior to the accident. The accident occurred through the sole fault of the pursuer and, in any event, had been contributed to by the pursuer's own fault and negligence.

[6] Although on record there was some dispute as to whether the pursuer was employed by the defenders or was self-employed, counsel for the defenders made clear that for the purposes of this action the defenders accept that at the time of the accident the pursuer was working under their direction, supervision and control. In these circumstances the defenders accept they had been under a duty to take reasonable care for the safety of the pursuer.

[7] Evidence was led on behalf of the pursuer by the pursuer himself, Malcolm Penman (a pipe fitter), Stewart Shand (the defenders' foreman), David Boat (a pipe fitter) and James Garry (an expert). Evidence was led on behalf of the defenders by Keith Skinner (an operations manager, who was project manager at the time of the accident) and by Brian Reid (a project manager, who was the night shift manager at the time of the accident).

[8] The pursuer gave evidence that he and his fellow pipe fitters took instructions from Stewart Shand and Brian Reid. As the start of each night shift, the foreman gave a "tool box" talk, during which their duties were allocated. Under reference to certain photographs, to which I refer earlier, he explained that immediately prior to his accident he had been working behind engine 5 and sought to emerge from between engines 4 and 5, heading for the door of the engine room. He used that route because other possible routes were cluttered with pipes, which made it very difficult for him to get to and from the area where he required to carry out the work he had been allocated. The pursuer explained that he and other pipe fitters had complained to Stewart Shand and Brian Reid about the conditions in the engine room.

[9] The pursuer gave evidence about the 8 inch cunifer pipe, which was installed in front of both engines. It rested upon and was fixed to stands. Those stands were bolted to the floor of the engine room. On the far side of the cunifer pipe, as the pursuer approached it, lay a kick plate - approximately 3 inches high. He explained that his inside leg measurement was 29 inches and that he could not step directly over or straddle the cunifer pipe, because of the boots and overalls that he was wearing. Having got up onto the pipe he had not walked along it. He had, however, slipped and fallen from the pipe, trying to grab hold of a ladder as he fell. The pursuer gave evidence that he had never been instructed not to stand on that particular cunifer pipe, which was where he and the other pipe fitters assembled at the start of each shift for the "tool box" talk. He suggested that a "hop-up" (a small platform with steps) could have been installed and fixed to the cunifer pipe, in the manner of a style over a fence. That would have enabled him to climb over the cunifer pipe.

[10] During cross-examination, the pursuer resisted the suggestion that he could have sat on the cunifer pipe and swung his legs over. He indicated that might have been possible had he been wearing normal trousers, but was not with the overalls and boots he required to wear. He accepted that he had not checked whether the pipe was slippery, on account of the presence of oil or water.

[11] William Penman gave evidence of having witnessed the accident. He explained that the pursuer and other pipe fitters, including himself, had been instructed to work behind engine 5, which lay on the far side of the engine room from the door into that room. No instructions had been given as to the route they should take when getting to and from the rear of engine 5. No instructions had been given that pipe fitters should not stand on pipes, when moving round the engine room. He explained that he and other pipe fitters regularly followed the route that the pursuer was taking at the time of the accident. That route involved climbing over the fixed cunifer pipe. What he did, when he followed that route, was to stand on the two red pipes, which are to be seen in the photographs before the Court as running at right angles to, and underneath, the fixed cunifer pipe from which the pursuer fell. Mr Penman explained that he stood on the red pipe work on one side of the cunifer pipe, stepped over the cunifer pipe onto the red pipe work on the other side of the cunifer pipe and then stepped down onto the ground.

[12] During cross examination, Mr Penman explained that another cunifer pipe ran along the front of the engines and between them and the 8 inch cunifer pipe, from which the pursuer fell. That pipe is just visible in certain of the photographs, in particular photograph No. 7/7/3 of process, where it can be seen running underneath the two red pipes after they have passed underneath the 8 inch cunifer pipe. Mr Penman suggested that the presence of the second cunifer pipe would have made it a very big stretch for someone to step over the 8 inch cunifer pipe from which the pursuer fell. He explained he had an inside leg measurement of 34 inches and would have found it difficult to step over that cunifer pipe. Mr Penman did however accept that pipe fitters were not supposed to stand on pipes, in case they fell from them.

[13] Stewart Shand, the defender's foreman, gave evidence that he was responsible for giving the pipe fitters a "tool box" talk at the start of every shift. He did so under reference to a form which was signed by him and all the pipe fitters (No. 7/1 of process). When asked whether he had told the pipe fitters during the "tool box" talks not to stand on pipes, he replied that he had not. He explained they were working in an engine room and that at times they could not prevent themselves from standing on pipes. On the other hand, pipe fitters were not daft. They knew that you were not meant to stand on pipes.

[14] Mr Shand was not present when the accident occurred. On being told it had happened, he went immediately to the mid-engine room. What he found was as shown in the photographs. He spoke of having seen a number of loose pipes lying on the other side of engine 4 to that facing engine 5 and between the two engines. He explained that on account of the new pipe work that had been fixed to the rear of engines 4 and 5 and on the far side of engine 5, the pursuer and other pipe fitters required to follow the route that lay between the two engines. That was a route that he had used himself. He explained that route involved the pursuer getting over the lower of the two pipes, the 4 inch cunifer pipe, which ran parallel to the 8 inch cunifer pipe, and then the 8 inch cunifer pipe itself. Mr Shand said that it was up to an individual whether they stepped up onto or stepped directly over the 8 inch cunifer pipe, the top of which was approximately 2 feet above the level of the deck. Sometimes he had stepped over the 8 inch pipe. On other occasions he had stepped up onto it. Mr Shand also gave evidence that it would have been possible to have constructed a scaffolding frame to bridge the 8 inch cunifer pipe. The necessary scaffolding poles were available on the barge. In his view, a "hop up" would not have been sufficient because the purpose of a "hop up" is to enable a person to get up to a job, on which they have to work, rather than to get over something.

[15] David Boat was present when the pursuer fell. He saw the accident. He explained that when working in the engine room he had followed the same route as that the pursuer had been taking at the time of his accident. He explained that some times he got over the 8 inch cunifer pipe by sitting on it and swinging his legs over it and that on other occasions he put one foot up on the pipe and stepped over it. Mr Boat gave evidence that on a previous occasion, he had fallen at the same place the pursuer fell. He had reported his fall to Keith Skinner. He gave evidence of having asked Brian Reid, Stuart Shand and Keith Skinner (the project manager) on a number of occasions for a "hop up" or temporary scaffolding to be provided. He considered it would have been easy to have erected the necessary scaffolding.

[16] During cross-examination Mr Boat accepted that pipe fitters were not meant to stand on pipes, but he explained that sometimes they had no alternative but to do so. Their supervisors were aware of this, having been asked to provide scaffolding over the 8 inch cunifer pipe. Mr Boat, who said he had a 30 inch inside leg measurement, indicated that he had not found it possible to step over the 8 inch cunifer pipe, which had the 4 inch pipe on one side and the kick plate on the other, without standing or sitting on the 8 inch cunifer pipe. That was because of the thick overalls the pipe fitters were required to wear. Those overalls had a low crotch.

[17] James Garry, Consultant Engineer, spoke to the contents of his report (No. 6/11 of process). He gave evidence that the 8 inch cunifer pipe created an obvious difficulty for people who wanted to get access to and from the rear of the two engines. The likelihood of the 8 inch cunifer pipe being used as a "step-up" was related to and arose on account of the height of the pipe and the obstructions on deck in the vicinity of the pipe. He expressed the opinion that even if the top of the 8 inch cunifer was 600 mm (approximately 2 feet) above the deck, people would be drawn towards stepping up on it rather than attempting to step over it. For that reason the route should have been made as safe as possible and the pipe should have been bridged. There was no obvious reason why a "hop-up" or scaffolding could not have been installed.

[18] Keith Skinner was the defenders' project manager at the time of the accident. After the accident, he took the three photographs that were before the court as productions. He investigated the accident on behalf of the defenders. He gave evidence that the pipe drawings available indicated that the top of the 8 inch cunifer pipe was 588.5 mm above the level of the deck (No. 7/8 of process). He provided further details about the 4 inch cunifer pipe. It ran from the cooler opposite engine 5 and then along the front of the two engines. It was fixed slightly above the deck. He thought that it was a distance of between 1-2 feet between the centre of the 4 inch cunifer pipe and that of the 8 inch cunifer pipe.

[19] Mr Skinner explained that he had an inside leg measurement of 29 inches and indicated that when wearing overalls he had no problem in stepping over the 8 inch cunifer pipe. He had done so on numerous occasions before the date of the pursuer's accident. That was part of the route that provided the only means of access to the back of engine 5. When he did so, he stepped over the first pipe, placed his leading foot on the deck between the two cunifer pipes and then stepped over the second pipe. The kick plate did not come into play, because it was more or less directly under the 8 inch cunifer pipe.

[20] In Mr Skinner's opinion, neither a "hop-up" or a scaffolding bridge was required. He gave evidence that he had reached that opinion having carried out a risk assessment. He denied having ever received, or having heard about, any complaints by the pursuer, David Boat or other pipe fitters about the 8 inch cunifer pipe or requests that the pipe be bridged. He accepted, however, that a scaffolding bridge could have been provided.

[21] Brian Reid was employed by the defenders on the date of the accident as the night shift manager. He gave some general evidence about how work on the barge was managed. He was working on the night of the accident and was called to the scene, immediately it happened. Subsequently he assisted in investigating the accident. He had a 29 inch inside leg measurement. He gave evidence that he had gone from one side of the 8 inch cunifer pipe to another and had done so by stepping over the two pipes one by one. That involved his placing one foot on the deck between the two cunifer pipes. As with Mr Skinner, he had no recollection of any requests for "hop-up" or scaffolding to be installed.

[22] Although the evidence in this proof extended over three days, there was, in the event, comparatively little dispute between the parties as to layout of the area where the accident occurred and about what happened. Where there was a measure of dispute in the evidence, on issues such as prior complaints, requests for the provision of a "hop-up" or a scaffolding bridge, and the feasibility and practicability of a pipe-fitter stepping over the 8 inch cunifer pipe, I found the evidence given by the pursuer and the witnesses called by the pursuer to be more reliable than the evidence upon which the defenders seek to rely.

[23] As I have already indicated in paragraph [6] the issue in the pleadings as to whether the pursuer was employed by the defenders or was self-employed is academic. The defenders accept that they were under a duty to take reasonable care for his safety.

[24] The productions before the court include three photographs (Nos. 7/7/1, 7/7/2 and 7/7/3 of process) which show the area where the accident occurred. These were taken shortly after the accident by Mr Skinner. With the benefit of hindsight it is obvious that it would have been sensible if further photographs had been taken. In particular it would have been helpful to have photographs taken with the camera pointing in the direction in which the pursuer had been heading and to have photographs of the 4 inch cunifer pipe. The lack of a fuller set of photographs undoubtedly affected the extent to which some of the witnesses were able to recall the detail of certain of the topics about which they were questioned.

[25] The photographs which are available do, however, provide a reasonable view of the route that the pursuer was following when his accident occurred. On the basis of the evidence I heard, I am quite satisfied that route was one that the pursuer was entitled to follow, when getting to and from the area at which he had been instructed to work. Whether or not it was the only route he could have followed, it was a route that he and others followed and were allowed to follow. I refer to the evidence I heard from the pursuer, William Penman, Stewart Shand, David Boat, Keith Skinner and Brian Reid. In these circumstances, it was a route that the defenders required to make and keep safe.

[26] The photographs show the location of engines 4 and 5 and the 8 inch cunifer pipe on which the pursuer stood and from which he fell. The layout of the area is also illustrated by the two drawings, Nos. 7/6 and 7/8 of Process. Photograph 7/7/1 shows the 8 inch cunifer pipe running from the bottom right hand corner of the photograph into the distance. The first engine visible is engine 4 and the second engine, engine 5. Photograph 7/7/3 is taken in the opposite direction. It shows engine 4. When the accident took place, the pursuer was moving from the left hand side of photograph 7/7/3 towards the right. What is not immediately clear from any of the photographs is that immediately to the left of the 8 inch cunifer pipe (as shown in photograph 7/7/3) a 4 inch cunifer pipe is fixed, some distance above the level of the deck but at a lower level to the 8 inch cunifer pipe. The evidence I heard was to the effect that the 4 inch cunifer pipe was sufficiently far apart from the 8 inch cunifer pipe to allow a man's foot to rest on the deck between the two pipes. Accordingly, in moving from the left of photograph 7/7/3 to the right, and over the 8 inch cunifer pipe, the pursuer and other people working in the mid-engine room required to negotiate the 4 inch cunifer pipe, the gap between the two cunifer pipes, the 8 inch cunifer pipe and the kick plate which is visible in photograph 7/7/3. On the basis of the evidence I heard about one of the drawings available (No. 7/8 of process) it is clear that the top of the 8 inch cunifer pipe was 588.5 mm (1 foot 11 inches) above the deck. However there was no evidence which made it possible to determine with any degree of accuracy the height of the top of the 4 inch cunifer pipe above the deck. The kick plate, which is clearly shown in the photographs, was approximately 100 mm in height and 24 mm wide.

[27] Although I heard some evidence about loose pipes lying on the floor in various parts of the engine room, I am not persuaded that the pursuer has established there were any loose pipes sufficiently close to the 8 inch cunifer pipe to have affected the manner in which he sought to cross over that pipe. The presence of such loose pipes may have had a bearing on which route the pursuer was following. In the event, however, as I have made clear, I am quite satisfied that the pursuer was following a route that was open to him and one which the defenders expected the pursuer and other pipe fitters to follow.

[28] As far as the issue of prior complaints and requests is concerned, I see no reason why I should not accept the evidence of the pursuer and David Boat. In particular, I accept the evidence of David Boat that he had complained of having fallen in the same area and of having requested on a number of occasions that a "hop-up" or temporary scaffolding be installed. I have no note of Stewart Shand having been questioned about this issue, but insofar as Keith Skinner and Brian Reid claimed to have no recollection of any complaints, I reject their evidence. I did not believe that there had been no complaints about the problems pipe-fitters encountered in moving round the engine room Indeed, the evidence Keith Skinner gave of having carried out a risk assessment, as to whether it was necessary to provide a bridge over the 8 inch pipe, is difficult to reconcile with a complete absence of concern about the working conditions within the mid-engine room. Moreover, both Keith Skinner and Brian Reid gave evidence that one reason a bridge had not been erected was that it would have been necessary to have dismantled the bridge, when further pipework required to be installed. Such reasoning is hardly relevant to the decision as to whether that there was any need for such a bridge in the first place.

[29] Although I heard some evidence relating to whether or not the 8 inch cunifer pipe was "live" and whether or not it was wet with oil or water, that evidence was confused. I do not find it necessary to analyse that evidence in detail. That it because it has not been proved to my satisfaction that the pursuer's fall from the 8 inch cunifer pipe was caused by any dampness on the surface of that pipe.

[30] During the course of the evidence I heard that those working in the mid-engine room negotiated the crossing of the 8 inch cunifer pipe in a variety of ways. Some stood up on the pipe. William Penman said he stood on other pipes to enable him to step over the 8 inch cunifer pipe. Others stepped directly over the pipe, claiming that even with a 29 inch inside leg measurement, there was no problem in doing so. I found the claim that could be done without difficulty slightly surprising, standing the bulky overalls the pipe-fitters required to use and that width of the pipe. Stepping directly over the 8 inch cunifer pipe in one move could only have been possible if a person stood on the deck immediately to one side of the 8 inch pipe and stepped over the pipe and onto the deck immediately to the other side of the pipe. Having regard to the 8 inch width of the pipe it appears to me quite likely that if someone sought to cross the pipe from that position, he might well sit on the pipe and swing one leg over the pipe after another.

[31] I see no reason for rejecting the evidence which Stewart Shand gave that when he crossed the pipe he sometimes stepped over it and sometimes stepped up onto it. Such evidence coincided with the evidence given by the pursuer's expert, James Garry, that if the height of the 8 inch pipe above the level of the deck was approximately 2 feet, people would be drawn to stepping on it. In his opinion, the likelihood of that happening was also affected by the presence of any obstructions on the ground near the 8 inch pipe. There were of course two such obstructions, the 4 inch pipe and the kick bar. Both of these were visible. In my opinion their presence would be taken into account, even sub-consciously, by anyone seeking to negotiate their way over the pipe.

[32] On the basis of the evidence I heard, I am quite satisfied that it was reasonably foreseeable to the defenders that pipe-fitters would take the route the pursuer was following at the time of his accident and might seek to negotiate their way over the 8 inch cunifer pipe by one of a variety of methods. I am quite satisfied it was foreseeable that those methods would include standing up onto the 8 inch cunifer pipe and using it as a form of style. Having regard to the evidence I heard, I am satisfied that the presence of the 8 inch cunifer pipe made the route the pursuer was following an unsafe means of access into and egress from where he was required to work. As such it created and posed a foreseeable risk of injury to the pursuer and to other pipe fitters, a risk which the defenders were under a duty to take reasonable steps to guard against. That was particularly so standing the location of the 4 inch cunifer pipe. It was reasonably foreseeable to the defenders that even if a pipe-fitter wearing bulky overalls was exercising reasonable care he could experience difficulty in getting up onto and over the 8 inch cunifer pipe, and could be exposed to the risk of slipping and falling, whether or not the pipe was wet with oil or water. In my opinion, there is no doubt that it would have been reasonably possible for the defenders to have erected a temporary bridge over the 8 inch cunifer pipe. Such a bridge could have been moved or dismantled, had it been necessary to install further pipework. In these circumstances, I am quite satisfied that the defenders failed in their duty of care to the pursuer.

[33] It is clear that when the accident happened the pursuer stepped onto the 8 inch cunifer pipe from where he slipped and fell. That must have involved his stepping over the 4 inch cunifer pipe and up onto the 8 inch pipe in one movement. During his evidence, the pursuer did not mention the 4 inch cunifer pipe, which as I have indicated is not immediately obvious in the photographs. However, as the defenders accept that the 4 inch pipe was there, and by implication accept that it required to be negotiated, its presence cannot be ignored. Indeed, it is slightly surprising that as the defenders contend that it was possible for the pursuer to have stepped over the 8 inch cunifer pipe it was not put to the pursuer during cross-examination (and at the same time explained to the Court) that what the defenders were suggesting was that the pursuer should have placed one foot over the 4 inch cunifer pipe and onto the deck between the two cunifer pipes, before placing his other leg over the 8 inch cunifer pipe.

[34] In these circumstances, I find that the accident was caused by reason of fault and negligence on the part of the defenders.

[35] Turning to the issue of contributory negligence, the evidence before the court established that pipe fitters are well aware that in general one should avoid standing on pipes. During his evidence the pursuer acknowledged that in the industry the practice was not to stand on pipes. It was unsafe to do so, on account of the risk of slipping or falling. The pursuer must be held to have known this. On the other hand, the evidence I heard did not establish that the pursuer and the other pipe fitters working in the mid engine room were instructed, whether during the "took box" talks or at any other time, not to stand on the 8 inch cunifer pipe.

[36] The pursuer has a 29 inch inner leg measurement. In these circumstances had the 8 inch cunifer pipe stood on its own it would probably have been physically possible for him to have stood with one leg immediately to one side of that pipe and swung his other leg over immediately to the other side of the pipe. In my opinion, however, the suggestion that it was obvious to him that was what he should have done is not entirely realistic, standing the presence of the 4 inch cunifer pipe and the kick plate. On the other hand, there is little doubt he could have sat on the pipe and swung one leg over after another. That would have a slower but safer manoeuvre for the pursuer to follow than that he adopted.

[37] In the whole circumstances I am satisfied that there was an element of fault on the part of the pursuer that contributed to the accident. I assess contributory negligence as amounting to 25%. The award of damages will therefore be 75% of the agreed damages, namely £16,875. Interest will run in the sum from the date on which the proof concluded.

[38] As requested by the parties, I reserve all questions of expenses.

[39] For the sake of completeness, I note the authorities which counsel placed before me. In the case of counsel for the pursuer they were "The Law of Delict in Scotland", Walker at pages 561-562; Monkman on Employers' Liability (14^th edition) at para. 2.50; Kirkpatrick v Scott Lithgow Limited 1987 SLT 654 at 657L-658A and 658J-K; Kerr v Glasgow Corporation 1945 SC 335 at page 350; Muir v Glasgow Corporation 1943 SC (HL) 3 at page 8; Hughes v The Lord Advocate 1963 SC (HL) 31 at pages 43-44; Brown v Rolls Royce Limited [1960] 1 WLR 211 at pages 214 and 216, and Simmons v British Steel [2004] ICR 585, per Lord Rodger of Earlsferry at para. 67. Counsel for the defenders founded on Jaguar Cars Limited v Coates [2004] EWCA Civ 337, McEwan v Lothian Buses plc [2006] SCLR 592 and Neil v East Ayrshire Council 2005 Rep. LR 18.