|
OUTER HOUSE, COURT OF SESSION
[2008] CSOH 68
|
|
PD1578/07
|
OPINION OF
LORD MACKAY OF
DRUMADOON
in the cause
KERRY RAMAGE
as Legal
Representative of her child
BETH RAMAGE
(Assisted Person)
Pursuer,
against
SCOTTISH AFRICAN
SAFARI PARK LIMITED
Defenders.
__________
|
Pursuer:
McNaughtan; Bonnar & Company
Defenders: MacPherson, Solicitor-Advocate; Simpson & Marwick
8 May 2008
[1] This
is an action of damages for personal injuries in which the pursuer sues as
legal representative of her daughter Beth Ramage ("Beth"), who was born on 12 December 2002. The action is one to which chapter 43 of the
Rules of Court applies. The action is defended on liability and quantum. The
pursuer, by motion, seeks the allowance of issues to enable the action to
proceed to a jury trial. That motion is opposed.
[2] The
action arises out of a visit which Beth made to the Blair
Drummond Safari Park
on 28 July 2002, in
the company of the pursuer and the pursuer's sister, Heather Imrae. The safari
park is owned and occupied by the defenders. On 28 July 2002 Beth was 19 months of age. The pursuer avers that during the course of
the visit Beth's right arm came into contact with animal faeces, that Beth's
right arm subsequently came into contact with her mouth, that Beth was exposed
to E coli 0157 and that Beth subsequently developed certain medical conditions.
[3] It
is averred by the pursuer that:
"At or around
lunch time, Beth was playing in the area beside the departure point for 'the
monkey island'. The ground in the area
was wet and muddy. A café and a toilet
block were situated in the area close to the departure point for the 'monkey
island'. There was a large number of
ducks, geese and swans in the area. Bird
and animal faeces had built up in the area.
There were no members of staff to supervise children in the area. There were insufficient washing facilities in
the area. There were no signs to remind
visitors to wash their hands. There were
no signs to warn adults of the risks of infection being caused to small
children. As Beth was playing her right
arm came into contact with animal faeces.
The pursuer and her sister, Heather Imrae, washed Beth's arm in the
toilet block. They washed her arm with
cold water. Later that day, Beth's right
arm came into contact with her mouth. It
was reasonably foreseeable to the defenders that children would be playing in
that area at that time. It was
reasonably foreseeable to the defenders that children playing there, including
Beth, would come into contact with the animal faeces which had built up
there. The animal faeces contained
Escherichia coli 0157 ('E. coli 0157').
E. coli 0157 is a substance hazardous to health in terms of
Regulation 2 of the Control of Substances Hazardous to Health Regulations
1999. The defenders had not carried out
a suitable and sufficient assessment of the risks relative to the presence of
animal faeces on the safari park. They
had not carried out a suitable and sufficient assessment of the risks relative
to the presence of E coli 0157 on the safari park. They had not taken any steps to prevent or
adequately control the risk of children being exposed to E coli 0157. They had not provided any information or
instructions to persons such as Beth and the pursuer who might have been
exposed to E coli 0157.
Following Beth's exposure to E coli 0157 the defenders put
into place steps to prevent or adequately control the risk of children being
exposed to E coli 0157. In
particular, they provided a health information leaflet to all visitors at the
entry to the safari park. They installed
additional washing facilities. They
installed additional signs reminding visitors to wash their hands. They devised and implemented a system for
regular checks for the build up of animal faeces. They instructed members of
staff to ensure public safety and to check on visitors' compliance with safety
requirements. "
[4] Damages
are claimed on the basis that there was fault on the part of the defenders at
common law and in breach of Regulations 6, 7 and 12 of the Control of
Substances Hazardous to Health Regulations 1999 ("the 1999 Regulations").
[5] The
definition of "biological agent" in Regulation 2 of the 1999 Regulations
covers E Coli 0157. In terms
of Regulation 3 of the 1999 Regulations, where the 1999 Regulations place
any duty on an employer in respect of his employees, the employer shall, so far
as is reasonably practicable (and subject to certain exceptions which are not
relevant in the present case), be under a like duty in respect of any other
person, whether at work or not, who may be affected by the work carried on by
the employer.
[6] Regulations 6,
7 and 12 of the 1999 Regulations provide as follows:-
"6 Assessment of health
risks created by work involving substances hazardous to health
(1) An
employer shall not carry out any work which is liable to expose any employees
to any substance hazardous to health unless he has made a suitable and
sufficient assessment of the risks created by that work to the health of those
employees and of the steps that need to be taken to meet the requirements of
these Regulations.
(2) The
assessment required by paragraph (1) shall be reviewed regularly and forthwith
if -
(a) there is reason to suspect that the
assessment is no longer valid, or
(b) there has been a significant change in
the work to which the assessment relates,
and, where as a
result of the review, changes in the assessment are required, those changes
shall be made.
7 Prevention
or control of exposure to substances hazardous to health
(1) Every
employer shall ensure that the exposure of his employees to substances
hazardous to health is either prevented or, where this is not reasonably
practicable, adequately controlled.
(2) So
far as is reasonably practicable, the prevention or adequate control of
exposure of employees to a substance hazardous to health, except to a
carcinogen or a biological agent, shall be secured by measures other than the
provision of personal protective equipment.
.....
(4) Where
the measures taken in accordance with paragraph (2) and (3), as the case may
be, do not prevent, or provide adequate control of, exposure to substances
hazardous to health to which those paragraphs apply, then, in addition to
taking those measures, the employer shall provide those employees with such
suitable personal protective equipment as will adequately control their
exposure to those substances.
(5) Any
personal protective equipment provided by an employer in pursuance of this
regulation shall comply with any provision in the Personal Protective Equipment
(EC Directive) Regulations 1992 which is applicable to that item of personal
protective equipment.
(6) Where
there is exposure to a substance for which the maximum exposure limit has been
approved, the control of exposure shall, so far as the inhalation of that
substance is concerned, only be treated as being adequate if the level of
exposure is reduced so far as is reasonably practicable and in any case below
the maximum exposure limit.
(7)
Without prejudice to the generality of paragraph (1), where there is
exposure to a substance for which an occupational exposure standard has been
approved, the control of exposure shall, so far as the inhalation of that
substance is concerned, be treated as being adequate if -
(a) that
occupational exposure standard is not exceeded; or
(b) where that occupational exposure
standard is exceeded, the employer identifies the reasons for the standard
being exceeded and takes appropriate action to remedy the situation as soon as
is reasonably practicable.
.....
(10)
Schedule 3 of these Regulations shall have effect in relation to
biological agents.
(11)
In this Regulation, 'adequate' means adequate having regard to the
nature of the substance and the nature and the degree of exposure to substances
hazardous to health and 'adequately'" shall be construed accordingly.
.....
12 Information, instruction
and training for persons who may be exposed to substances hazardous to health
(1) An employer who undertakes work which may
expose any of his employees to substances hazardous to health shall provide
that employee with such information, instruction and training as is suitable
and sufficient for him to know -
(a) the
risks to health created by such exposure; and
(b) the
precautions which should be taken.
(2)
Without prejudice to the generality of paragraph (1), the information provided
under that paragraph shall include -
(a) information on the results of any
monitoring of exposure at the workplace in accordance with regulation 10
and, in particular, in the case of any substance hazardous to health for which
a maximum exposure limit has been approved, the employee or his representatives
shall be informed forthwith, if the results of such monitoring show that the
maximum exposure limit has been exceeded; and
(b) information on the collective results of
any health surveillance undertaken in accordance with regulation 11 in a
form calculated to prevent it from being identified as relating to any
particular person.
(3) Every
employer shall ensure that any person (whether or not his employee) who carries
out any work in connection with the employer's duties under these Regulations
has the necessary information, instruction and training. "
[7] Damages
are claimed under the heads of solatium, necessary services and future medical
costs. It is averred by the pursuer that
Beth suffered "(1) Haemolytic Uraemic Syndrome ("HUS"); (2) acute renal failure
requiring dialysis; and (3) hypertension and proteinuria. It is averred that Beth's kidneys sustained
permanent damage, that she remains on medication for blood pressure and
proteinuria, that it is probable that her renal function will deteriorate
further and that she may require further dialysis or a kidney transplant in
later life. There are further averments
that Beth has required necessary services from her mother, the pursuer, and
that the requirement for such services will continue throughout Beth's childhood
years. It is also averred that "Beth and
the pursuer may incur medical expenses in the future in the event of
deterioration in Beth's kidney function".
Submissions
on behalf of defenders
[8] It
was argued on behalf of the defenders that special cause existed for refusing
the pursuer's motion for the allowance of issues. In opening his submissions,
Mr. MacPherson for the defenders made clear that the defenders were
prepared to offer a proof before answer. The defenders conceded that the
pursuer may have pled a relevant case of breach of the 1999 Regulations, but
made no such concession in respect of the common law case of fault. In developing his attack on the relevancy of
the pursuer's common law case, Mr. MacPherson founded in particular on Higgins v DHL International (UK) Ltd (Unreported 31 October 2003), in
which the Lord Ordinary stressed the need for a pursuer to make factual
averments from which an inference could be drawn "of reasonable foreseeability
of injury at common law" (see paras. [22], [23], [24] and [26]-[28] of the Lord
Ordinary's Opinion).
[9] Mr. MacPherson
argued that the pursuer's averments of fact in the present case lacked the
necessary detail and specification to allow the case to proceed to jury
trial. For example, the pursuer had
failed to aver the actual source of the E Coli 0157 that it is
contended Beth had been exposed when she
had visited the safari park. The case against the defenders was pled on the
basis that Beth had come into contact with animal faeces, whilst she was within
the departure point for the monkey island.
It had been averred that there had been various birds in the departure
point. However, the pursuer had not averred that any animals, which might have
deposited such faeces, had been kept or were present in the departure point.
That was one aspect of how the defenders had not been given proper notice as to
how the pursuer would seek to prove that the defenders knew or ought to have
known of the presence of E coli within the departure area. Moreover the pursuer had averred that the animal
faeces that Beth had been in contact with had contained E Coli 0157,
without having made any other averments of fact, whether relating to the
results of scientific analysis or otherwise, from which, if proved, that
particular factual conclusion could be established. Nor indeed was there any
express averment to the effect that the E coli referred to in Statement 5,
which it is claimed caused Beth to suffer the specified infections, was E coli
to which Beth had been exposed to on the defenders' premises. Standing the fact
that all these issues were crucial to the issue of liability on the common law
case, it was necessary for the pursuer to aver her position with clarity.
[10] If it was to be argued on behalf of the pursuer that she did
not require to make such averments, on the basis that such facts were unknown
to her, the question then arose as to how the pursuer had been able to aver, as
she had done, that during her visit to the defenders' premises Beth had been
exposed to E.Coli 0157, by reason of her having been in contact with animal
faeces, and had contracted the infections she had developed.
[11] Mr. MacPherson also criticised
the specification of certain of the pursuer's averments as to the steps
it was alleged the defenders had failed to take to prevent or adequately
control the risk of children being exposed to E. Coli 0157. The pursuer
complained in her averments about the departure point, including that there had
been no members of staff present to supervise children, insufficient washing facilities,
no warning signs to use the washing facilities that there were, and no signs to
warn adults against the risks of infections being caused to small children. The
pursuer had also averred that subsequently additional washing facilities and
signs had been erected. However no
averments had been made that such arrangements were required of the operator of
any safari park, or that they were the practice in safari parks elsewhere in Scotland
or in other parts of the United Kingdom.
Nor were there any averments as to what the pursuer would have done had
additional washing facilities been in place. On the basis of the pursuer's
averments it was far from clear what benefits would have resulted, which would
have prevented the child from being exposed to E coli 0157, if she
did in fact suffer such exposure during her visit to the safari park.
[12] Similarly, the pursuer had averred that a number of steps had
been taken by the defenders subsequently to the date of Beth's visit to their
safari park, without averring that such steps were necessary to meet any
minimum standard of care incumbent upon the operator of a safari park. The
pursuer's factual averments failed to give the defenders fair notice of the
facts the pursuer offered to prove as the factual basis for the grounds of
fault that she pled against the defenders. Esto
the averments as to the arrangements the defenders had allegedly failed to put
in place prior to Beth's visit to their premises, and the arrangements made
subsequent to that visit, were to be read as being equivalent to averments as
to the common law duties of care on the defenders (which was not clear), they
were unsupported by relevant factual averments.
[13] In Statement 6 the pursuer had averred that the claim is based inter alia on "fault at common law". In
accordance with the practice of pleadings permitted under Chapter 43 the
pursuer had not averred the nature, content and extent of any common law duty of
care that she alleges had been breached.
However, standing the lack of specification in the pursuer's averments
as to factual basis of the claim or the arrangements the defenders had made or
could have made prior to Beth's visit to the safari park, the defenders had not
been given fair notice of the common law case that was being made against them.
In any event the question of causation will give rise to difficult issues of
mixed fact and law.
[14] Mr. MacPherson also argued that the statutory case of fault
based on the 1999 Regulations gives rise to questions of mixed fact and law. The interpretation of the 1999 Regulations
was not straightforward. It required an
understanding of the scheme of the 1999 Regulations, and in particular of
Schedule 3 and Regulation 7(10), which relate to biological
agents. It also required an understanding
of how the 1999 Regulations apply to non-employees and of the defence of
reasonable practicability. The pursuer failed to specify which particular parts
of the Regulations she was founding upon. That ought to be made clear in
advance of seeking a jury trial rather than during the jury trial itself. Depending on the evidence that the pursuer
led, such issues might give rise to difficulty for the trial judge in framing
appropriate directions for the jury.
[15] As far as the question of quantum was concerned Mr. MacPherson
argued that there was absolutely no specification as to how the claimed medical
costs of £150,00 had been quantified.
That was not given either on record, or in the Statement of Valuation of
Claim lodged on behalf of the pursuer, or in the one medical report which had
been lodged on her behalf, namely the undated medical report by Dr Heather
Maxwell, Consultant Paediatric Nephrologist (No 6/1 of process).
Submissions
on behalf of the pursuer
[16] In responding to those submissions, counsel for the pursuer
referred me to Hughes v Lord Advocate 1963 SC (HL) 31, Stark v Ford (No 2) 1996 SLT 1329 and O'Malley v Multiflex (UK)
(Inc) 1997 SLT 362. It was submitted
that in considering this matter the approach I should follow was to ask whether
appropriate directions could be given to the jury. It was submitted that question should be
answered in the affirmative, both in respect of the merits of the case and on
the issue of quantum.
[17] It was submitted that the facts of the case were relatively
straightforward. The child had been in a
public area. In that public area she had
come into contact with faeces. Those
faeces had been contaminated with E coli 0157.
The faeces had come to be on her arm.
The child's mouth had touched her arm and she had ingested E coli
0157. It was submitted that it was open
to the pursuer to argue, under reference to Hughes
v Lord Advocate, that there was a
risk to the child's health by reason of her coming into contact with animal
faeces. It was not necessary for the
pursuer to aver precisely what the nature of that risk was. The common law case proceeded on the basis
that if there was a risk of humans coming into contact with animal faeces the
public should be excluded from that area.
If total exclusion was not feasible, then steps should have been taken
to improve signage and washing. That esto case was being pled in the
alternative. The pleadings in the
statutory case reflected the provisions of Regulations 6, 7 and 12 and
could easily be explained to the jury.
Under reference to Bilton v Fastnet Highlands Ltd 1998 SLT 1323, at
page 1326, it was argued that the pursuer had averred all that she had required
to do.
[18] As far as the issue of quantum was concerned, counsel for the
pursuer submitted that the pursuer had averred all that she could at this
stage.
Discussion
[19] I have reached the view that this case is not suitable for the
allowance of issues. In my opinion there
are serious doubts as to the relevancy of the pursuer's case at common
law. The pursuer avers that Beth
suffered exposure to E coli 0157 on account of her being in contact with animal
faeces, without giving any notice of whether it is intended to seek to prove
that any animals, and in particular which animals, were present at the
departure point. In my opinion, it would be inappropriate to allow this action
to proceed to jury trial when there was a possibility of the pursuer, and other
witnesses she might call, giving unheralded evidence as to the presence of
particular breeds of animal in the departure point. Were that to happen the
defenders might not be in the position to lead as much evidence to counter such
factual contentions, as they could do if the case were to proceed to proof.
[20] Furthermore, I also agree with the submissions made on behalf
of the defenders which were directed at the specification of the pursuer's
averments in support of the common law case against the defenders. One example is a lack of clarity as to
whether the pursuer is averring that the defenders were under a duty of care to
ensure that young children should have
been excluded from the departure point altogether; or whether the common law
duty involved taking reasonable steps to ensure that young children could never
come in contact with animal faeces contaminated with E coli 0157 in the
departure point; or whether the pursuer's case involves proceeding on the basis
that the risk of there being such contact was unavoidable and that the
defenders were under a duty to take reasonable care to deal with the possible consequences
of any such contact. Another instance of a lack of specification is to be found
in the averment relating to "insufficient washing facilities", as is the lack
of any averments as to factual basis on which it may be contended that
precautions, such as the provision of members of staff to supervise children
and the posting of signs, were necessary for the defenders to comply with their
common law duty of care.
[21] I also take the view that when the pursuer's pleadings are read
as a whole it is difficult to be certain about which parts of Regulation 7 of the
1999 Regulations the pursuer intends to rely (see Higgins v DHL International).
Nor is it clear that the pursuer is offering to prove what would have happened,
and in particular, what she would have done, had there been full compliance
with Regulations 6, 7 and 12 in respect of the departure point for monkey
island. Moreover, the application of the 1999 Regulations to the facts of the
present case, which involve a person other than an employee and for that reason
consideration of the provisions of Regulation 3, may give rise to difficult
questions of fact and law. Whilst the
pursuer's averments relating to the statutory case of fault are of sufficient
relevancy to allow the case to proceed to a proof before answer (see Bilton v Fastnet Highlands Ltd. 1998 SLT 1323), I am not persuaded
that the statutory case of fault is suitable for jury trial.
[22] In any event I take the view that the averments relating to the
future medical costs, which are assessed in the pursuer's Statement of Claim at
£150,000, are completely lacking in specification to the extent that the
defenders have not received any notice of what is being claimed under this head
of loss. That criticism involves more than any difficulty in quantifying an
inherently non-specific head of claim (cf. Stark
v Ford (No 2) 1996 SLT 1329). It
would make it virtually impossible for the defenders to anticipate, with any
degree of accuracy, what evidence the pursuer might lead in order to establish
this head of claim and inhibit any steps the defenders might wish to take to be
able to lead evidence in response to any evidence presented by the pursuer.
[23] For all these reasons, I
have reached the conclusion that the pursuer's pleadings do not provide the
defenders with sufficient detailed notice to allow the case to proceed to jury
trial. Not only would the lack of specification and the matters I have
identified create difficulties for the defenders in preparing for and presenting
their case during a jury trial, they could well lead to the trial judge being
faced with requiring to charge jurors on a number of complex legal issues,
including how they should approach the assessment of the evidence before them. At
that this stage, it is impossible to be confident that suitable directions
could be framed.
[24] In the whole circumstances therefore I refuse the motion for
the allowance of issues.
