Scottish Court of Session Decisions

 

 

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 140
PD297/13	OPINION OF LORD STEWART   in the cause   LINDA SMITH as executor nominate of the late Alan Smith and as an individual   Pursuer;   against   SCOTTISH WATER Defenders:   ________________

 

Pursuer:  L Dunlop QC, D Ross;  Allan McDougall

Defenders:  Clarke QC, Pugh;  BLM

 

12 September 2014

[1]        I heard evidence and submissions in this personal injury action over nine days on 7, 8, 9 and 10 January and 19, 20, 25 and 26 March 2014.  Having reflected on the matter I now propose to assoilzie the defenders.  The pursuer Linda Smith will therefore not receive payment of the sum of £289,625 plus interest which, were liability to have been established, is the total amount of damages agreed to be payable to her in her dual capacity as her husband’s widow and executrix.  The damages would have been payable if I had found that the death of her husband, the late Alan Smith, had been caused by an accident at work for which Scottish Water, the defenders, his employers, bear responsibility.

[2]        The presentation of the case at proof was bedevilled by problems caused by late preparation and by associated procedural skirmishing.  The main problem revealed to me was the non‑production of CT scan images of Mr Smith’s left knee.  A lot of testimony was admitted under reservation pending resolution of the CT scan issue.  Thanks to the good sense of counsel on both sides a way through was eventually found:  although the CT scan images were not produced in evidence, experts on both sides did in the end have an opportunity to study the images; the lawyers on both sides had the benefit of their expert advice;  and there was consensus that the scan shows a bucket handle tear (of the medial meniscus of the left knee).  The consensus was embodied in the revised joint minute of agreement handed up at the close of proceedings.  This agreed fact goes a long way to determine the causation issue.  All objections to the evidence were departed from.

 

How a sore knee killed Alan Smith

[3]        Linda Smith returned home from work on 16 March 2010 to find her husband Alan dead in the bathroom.  At the time of his death Mr Smith was aged 55.  The procurator fiscal, Glasgow, instructed a post mortem examination for the purpose of a fatal accident inquiry.  Consultant forensic pathologist Dr Julie McAdam undertook the examination on 24 March 2010.  At dissection Dr McAdam found a large saddle embolus straddling the bifurcation of the pulmonary artery and occluding the branches into both lungs.  She also identified deep venous thrombosis in the left calf muscle.  The history received by Dr McAdam included that Alan Smith had experienced an injury to his left knee while at work on 22 February 2010; that he had been unable to straighten his left leg or to weight bear on that leg since 22 February;  and that he had been in pain, resting his knee, mobilising with the help of crutches, off work and confined to the house until his death.  The necessary inference from the history and the findings at autopsy was that blood clot had formed in the deep veins of left leg distal to the knee and had migrated from there to the lungs.  Dr McAdam reported the cause of death as (a)  pulmonary thromboembolism due to (b)  deep venous thrombosis due to (c)  immobility due to (d)  knee injury sustained in a fall at work.  With the exception of the last six words “sustained in a fall at work” the cause of death is not contentious.

[4]        Dr McAdam’s finding “sustained in a fall at work” was based on the history provided:  she did not dissect the left knee to investigate the nature of the injury.  In the present proceedings the pathology of the left knee — as a matter of inference and opinion — was the subject of copious evidence from two consultant orthopaedic surgeons, Mr Bryn Jones FRCS (Trauma and Orth) of Glasgow Royal Infirmary and Mr Graeme Lawson FRCS, FRCS (Orth) of the Royal Infirmary of Edinburgh.  Both were first class witnesses in terms of apparent mastery of the subject, presentation, court‑room manner and ability to deal with cross-examination:  but their opinions were different.

[5]        I have to prefer the opinion of Mr Lawson who was called for the defenders.  I have to prefer his opinion because the assessment which he derived from Alan Smith’s written medical and occupational health records turns out to be supported by the diagnostic imaging.  Mr Jones’ opinion, on the other hand, is contradicted, or at least left unsupported by the imaging.  It would seem superfluous, with no disrespect, to rehearse Mr Bryn Jones’ thinking.  

[6]        Mr Lawson noted that Alan Smith had been troubled off and on since at least 2004 by a degenerate, torn medial meniscus in the left knee.  It is worth dwelling on the presentation in 2005 — 2006 in view of what was to follow in 2010.  It is worth noting particularly the last few words.  The Glasgow Royal Infirmary orthopaedic clinic report to the general practitioner dated 3 November 2005 stated among other things:

“... has been complaining of knee pain for the last couple of years... on the medial aspect and is worse at night, less so with walking although this can be uncomfortable ...  There has been no locking, clicking or catching and he has a full range of movement...  He is able to deep squat but does not like coming back up...”

 

The clinical impression was of a meniscal tear and a meniscal cyst painful to pressure on the medial joint line.  MRI imaging confirmed a tear in the posterior horn of the medial meniscus of the left knee with an associated meniscal cyst.  Mr Smith was offered surgery but ultimately declined to proceed.  In his evidence Mr Lawson noted that problems with the left knee recurred at the beginning of 2010; and that there was documented pain, “sticking” after kneeling and “clicking, locking and giving way” of Mr Smith’s left knee “each time lasting longer” in the weeks leading up to 22 February 2010.  According to Mr Lawson the symptoms signalled a progressive tendency for displacement of an unstable piece of torn meniscus.  Mr Lawson postulated that what happened on 22 February 2010 was that, when Mr Smith tried to get up from a squatting or kneeling position at his work, the displaced fragment did not “pop back” into place.  The knee then became permanently and painfully locked in a flexed position.  The history was a classical one, one that Mr Lawson had seen in some of his own patients, if not necessarily the commonest presentation.

[7]        On 4 March 2010 a CT scan for a suspected fracture of the tibial plateau was carried out at Glasgow Royal Infirmary.  The radiologist found no evidence of a fracture.  He then formatted the imaging as best he could for soft tissue visualisation and advised that internal knee derangement be considered.  (Internal derangement includes meniscal pathology.)  On reviewing the CT scan on the same day the specialist trainee noted:  “Dx [diagnosis] unclear — history suggests meniscal pathology.”  On reviewing the soft tissue windows for the purpose of this court case Mr Lawson found evidence of a bucket handle tear of the medial meniscus.  In cross‑examination he stated that he had also sought the views of a consultant radiologist colleague:  the radiologist reportedly agreed with Mr Lawson.

[8]        The bucket handle tear was what immobilised Alan Smith.  The immobility killed him.  Mr Vaughan Ruckley CBE, FRCS Edin, FRCP Edin, professor emeritus of vascular surgery in the University of Edinburgh, explained the (apparently) clinically well understood correlation between leg injury and deep vein thrombosis.  The professor appeared to have reservations about the management of Mr Smith’s case from and after 22 February and hinted at an iatrogenic component.  There was some discussion in the evidence about predisposing, or possible predisposing factors:  with a BMI of 33.58, Alan Smith was clinically obese; and he had just spent two weeks “lying in the sun” on a Carribean cruise with long haul flights there and back.

[9]        The question then comes to be: was the bucket handle tear simply a natural progression of the pre-existing pathology which would have happened anyway?  To know the answer you have to understand something of what happened at Mr Smith’s work on 22 February 2010.

 

To the lucy box and beyond

[10]      The term “lucy box” was used in evidence: but none of the witnesses could say why a lucy box is called a lucy box.  A lucy box, according to senior counsel for the pursuer, quoting, she said, from Wikipedia, is a metal cabinet, usually about one metre in height, typically located on the roadside, housing switch gear.  The name derives from the fact that earlier, cast iron boxes were manufactured by W Lucy & Co of Jericho, Oxford.  The name has become generic.  Switch gear for “assets” belonging to Scottish Water, the defenders, is housed in lucy boxes.  In this case the contents of the lucy box were described as “electronic controls”.

[11]      Alan Smith worked as a network operative for Scottish Water.  He was based at the Daldowie depot, Glasgow.  His job involved the inspection, maintenance and repair of Scottish Water plant in his sector.  His sector included the Beattock Wynd waste water pumping station at Hamilton, Lanarkshire.  The plant is located at the junction of Beattock Wynd and Broughton Place.  The plant serves an area of private housing.  Vehicular access is gained via the pavioured, apparently private, access road serving some of the houses in the Broughton Place development.  The plant so far as visible from the surface consists of a concrete plinth and a lucy box.  The lucy box is set on a concrete extension to the plinth.  There are hinged manhole covers set in the plinth.  The manhole covers give access to the wet wells or shafts containing the waste water pumps.  My impression from the differing accounts given in evidence and the photographs produced is that the plinth (excluding the lucy box extension) is rectangular, about four metres in one dimension and three metres in the other.  The plinth appears to be very slightly above the level of the surrounding ground.  An oil stain on the paviours adjacent to the pumping station shows where the Scottish Water vactor pump is customarily parked.

[12]      The plinth is at an angle to the pavioured access road.  At its nearest point the plinth is 1.9 metres from the access road.  The ground in between is grassed and generally slopes down to the plinth.  There is a muddy gutter effect around the edge of the plinth caused by rainwater run‑off from the concrete surface.

[13]      At about 10.30 a.m. on 22 February 2010 Alan Smith attended at the Beattock Wynd pumping station with a colleague Robbie Lochrie.  The purpose was to check the pumps, inspect the pump floats which trigger pumping when the waste water level rises and to clean any excess household grease from the floats.  The pumping station got a lot of household grease; and the pumps had been choking “on a regular basis”, said Mr Lochrie.  Mr Smith usually visited on his own.  Beattock Wynd was “his” pumping station.  There was some evidence that he had been there only the day before.  Mr Lochrie was with Mr Smith on 22 February ― unusually ― because Mr Lochrie’s own vehicle with its vactor pump was off the road.  Mr Smith parked his van on the pavioured surface with the near side next to the pumping station.  Robbie Lochrie got out of the passenger door on the near side and made his way to the plinth.  Mr Smith followed from the driver’s side making for the lucy box.  Mr Smith had the key for the lucy box padlock.

[14]      There are four sources of evidence about what happened next — Robbie Lochrie’s evidence of what he personally observed, Robbie Lochrie’s evidence of what Alan Smith said at the time, accounts reportedly given by Mr Smith after the event and the opinions offered by the orthopaedic experts.  Robbie Lochrie’s evidence is credible if subject to interpretation on some points.  For reasons that will become apparent — possible inaccuracies and contradictions in what he reportedly said as well as what he apparently omitted to say — the accounts given by Alan Smith have to be treated with caution.

[15]      Mr Lochrie was already on the plinth when he became aware of a noise behind him, he thought an exclamation from Mr Smith, something like “Yah fucker!”  He turned to see Mr Smith recovering his footing or “righting himself”.  He said that Mr Smith did not actually fall, he just “sort of went down onto his knee”.  Mr Smith was hobbling, laughing and “ouching”.  “He was laughing out of embarrassment to tell you the truth,” said Mr Lochrie.  As Robbie Lochrie described it Alan Smith got to the lucy box and leaned against it for a few seconds before unlocking the padlock and opening the doors.  Robbie Lochrie asked Alan Smith if he was alright.  Mr Smith replied:  “Aye, I’m alright, wee bit sore”.

[16]      Mr Lochrie opened the covers and told Alan Smith the floats were covered with grease and needed cleaning.  At that juncture Mr Smith was testing the pumps by using an override at the control panel in the lucy box.  Mr Lochrie was lifting one of the pumps and Mr Smith came to join him and lift the other pump.  Mr Smith knelt or squatted down — Mr Lochrie could not say whether squatting on his haunches, kneeling on one or on both knees but in any case, I infer, his left knee must have been flexed beyond 90 degrees — and started lifting the cables to bring his pump up.

[17]      “That’s when his knee really went on him... that’s when the pain really kicked in”, was Mr Lochrie’s observation.  Alan Smith said, according to my note of Mr Lochrie’s evidence:  “This is fucked — I need to get up.”  Pursuer’s counsel’s note is:  “That’s it fucked now.”  Robbie Lochrie helped Alan Smith up.  The latter hobbled to the lucy box and leaned against it “for a good five minutes”.  He appeared to be in a lot of pain.  He could not drive.  Mr Lochrie helped him back to the van and put him in the passenger side.  Later in the morning, after a difficult visit to another pumping station, Mr Lochrie took Alan Smith home, delivering him there about 12.30 p.m..  Robbie Lochrie reported to “the gaffer” that Alan Smith had hurt his knee, nothing more.

[18]      Alan Smith telephoned his wife to say that he had had a fall at work and that he had hurt his leg.  When Linda Smith got home her husband told her, as she recollected it, that he had been crossing an area to a pumping station and that he had slipped and fallen.  He said the area was muddy.  Mrs Smith took Mr Smith to the minor injuries unit at Stobhill Hospital.  That was Mrs Smith’s evidence.

[19]      At the minor injuries unit, Stobhill, emergency nurse practitioner Rose Mary Dhesi noted among other things:  “Slipped on wet grass at 10.30 am – twisted L knee – unsure of exact mechanism of injury – PMH [past medical history] nil... non weightbearing since injury.”  Mr Smith was discharged for further assessment of his ligaments in four days’ time.  At review four days later on 26 February 2010 emergency nurse practitioner Pauline Travers was unable to assess the ligaments because of pain and swelling.  She did not note any further or indeed any details of the presenting complaint — described as “L knee injury” — but did note a history of “Sev[eral] weeks clicking locking – giving way – each time lasting longer”.  The patient was referred to the knee clinic.  Later the same day he attended his general practitioner for a med 3 certificate [sick line].  The doctor noted “ongoing probs with left knee locking and pain... ? meniscal tear”.  The certificate was issued for “knee injury”.  There is no record of the circumstances of the injury.

[20]      Also on 26 February 2010, the Scottish Water accident/incident investigation report was signed off by Keith Clarkson, waste water team manager.  The report records among other things:  

“As Alan stepped off the bloc paving [pavioured] surface onto the grass that runs around the boundary of the works he slipped and fell..  Alan has suffered a strain of his left knee as a consequence and is unable to put any weight on it...  At the time of reporting the accident Alan stated that the slope is grassy and very muddy...  The consequent slip resulted in a strain to the ligaments of the left knee.”

 

I infer that all the information just quoted came from Alan Smith between 22 and 26 February 2010.

[21]      On 1 March 2010 Mr Smith attended a fracture clinic at Glasgow Royal Infirmary where fifth‑year specialist trainee Dr Fraser Moodie noted “slipped on grass 1/52 ago”.  Having reviewed the CT scan carried out on 4 March 2010 Dr Moodie’s clinical note records:  “History suggests meniscal pathology.”  The intention had been to review the scan “with Mr Jones”, that is with Mr Bryn Jones, the pursuer’s orthopaedic expert in this court case.  The notes are silent as to whether Mr Jones was actually involved in the review; and Mr Jones did not offer evidence about the matter.

[22]      The “history” referred to by Dr Moodie must be the history noted in Dr Moodie’s letter of 1 March 2010 to the general practitioner:  “He was also seen in 2006 and MRI identified a medial meniscal tear although he has not had any procedures carried out on the knee and generally he finds it behaves well.”  Dr Moodie scheduled the patient for review at the knee clinic two weeks later that is on 18 March 2010.  By the date of the clinic Alan Smith was dead.

[23]      Accepting as I do the opinion of Mr Lawson as to the cause of Mr Smith’s knee problem I am also inclined to accept his orthopaedic interpretation of events on the way to the lucy box and afterwards.  Mr Lawson was emphatic that the claimed slip did not cause the bucket handle tear.  He felt that if there had been a slip the event could have caused symptomatic aggravation in what was already, to some extent, a painful knee. He did not rule out the possibility that the claimed slip caused a strain to the medial collateral ligament: but any such strain played no part in the locking of Mr Smith’s knee that immobilised him and led to his death.  Mr Lawson recognised the possibility that any slip might have propagated a pre‑existing meniscal lesion; and if that had happened, he accepted, it made the bucket handle tear on squatting or kneeling more likely.  By “made more likely” I understood him to mean “increased the possibility”.  This kind of evidence about a “possible” propagation and its “possible” consequences does not reach the balance of probability standard of proof for “cause or material contribution”.  The question was not asked in terms by defenders’ senior counsel whether the bucket handle tear would have happened anyway, even without the claimed slip.  I am prepared to infer that it would have done, if not on that occasion then in the very near future, with the same result.  This was the implication of Mr Lawson’s evidence as a whole. The inference is in any event authorised, I believe, by the fact, as I find it to be, that the condition was a progressive one.  There is no evidence to the contrary.

 

Did Mr Smith slip?

[24]      Going further, I do not think it is proved that Alan Smith did slip on wet grass or mud at all.  There is an alternative possibility, namely that what happened was an episode of “giving way”.

[25]      The evidence of a slip comes from accounts reportedly given by Mr Smith.  He mentioned a slip to his wife, to nurse practitioner Dhesi, to Mr Clarkson (or to the Scottish Water employee who noted the report of the incident and passed the information to Mr Clarkson) and to Dr Moodie.  Indeed the account given to Mrs Smith and to Mr Clarkson involved both a slip and a fall.  On the clear evidence of Mr Lochrie, accepted by both sides, there was no fall.

[26]      No reference to either a slip or a fall was recorded by nurse practitioner Travers or by the general practitioner both of whom, interestingly, referred to ongoing knee problems independent of events at Beattock Wynd.  Describing the incident on the way to the lucy box at Beattock Wynd Robbie Lochrie said:  “That’s when he had a wee slip.”  Mr Lochrie’s subsequent answers make it clear that he had not seen the slip or any slip.  There is no evidence that Mr Smith blamed the ground conditions or talked about slipping at the time.  The remarks actually made by Mr Smith at Beattock Wynd, as reported by Mr Lochrie, seem to me to be rather more consistent with a knee problem than a problem of insecure footing.  

[27]      It does seem curious that nurse Dhesi and Dr Moodie should have failed to note the recurring left knee problem.  I cannot believe that Mr Smith was unaware of its significance.  He had presented to the general practitioner on 4 February 2010 with “L knee med[ial] j[oin]t pain stuck x 2 after kneeling”.  An anti-inflammatory pain relief gel was prescribed and physiotherapy recommended.  On 9 February 2010  Mr Smith was accepted for physiotherapy at Scottish Water’s expense with a complaint of “painful left knee”.  The physiotherapy referral stated:  “Dropped money under van bent down to pick up as he stood back up he felt crack in his LT knee.”  There is no evidence as to when “in the near future” the physiotherapy appointments started, if they had started by 22 February 2010.  It is difficult to envisage that Mr Smith could have completed his physiotherapy course successfully by then.  [An occupational health email of 10 July 2012 which is produced but was not put in evidence bears to record that the first physiotherapy appointment was scheduled at Mr Smith’s request for 23 February 2010.]  Alan Smith apparently made no mention of an ongoing knee problem to Mr Clarkson.  The slipping story seems to have pointed the nurses and the orthopaedic specialist trainee in the wrong diagnostic direction;  and it may also have pointed Mr Clarkson in the wrong direction when he came to write up the accident/incident report.

[28]      The plan of the Beattock Wynd plant produced by Grant Murray, Scottish Water’s senior health and safety officer, shows that the drop in level from the pavioured access road to the edge of the plinth at the closest point is 0.15 metres (six inches).  The distance from the pavioured access road to the plinth is shown to be 1.9 metres minimum and 3.4 metres maximum, the plinth, as explained, being set at an angle to the paviours.  The drop does not occur evenly over the distance of travel.  Travelling from the access road to the plinth the first metre at least is on the level.  When Mr Lochrie was asked to identify the place where Alan Smith “slipped” he pointed to a place close to the access road which looks to be level in the photograph [6/28 photograph 3].  This is consistent with the account given — I infer by Mr Smith himself — to Mr Clarkson:  “As Alan stepped off the bloc paving surface onto the grass... he slipped and fell.”  My understanding accordingly is that the incident happened as Mr Smith took his first step off the access road.  There is no slope at this point; and Mr Smith did not mention to anyone, at the time or subsequently, that a slope was implicated in the claimed “slip” incident.

[29]      When Robbie Lochrie was asked in evidence what the surface was at this point he said, almost wistfully:  “It was just grass... just general grass, green grass.”  The photographs [6/38] taken by Scottish Water a day or two after the incident confirm this description.  The grass is a bit mud-stained where Scottish Water pedestrian traffic might have been expected: but the ground is not muddy; and the staining, or the place where the staining is pronounced in the photographs, is to the side of where Mr Smith is supposed to have slipped.  There was a suggestion in the evidence that there might have been an unusually high footfall in the aftermath of Mr Smith’s incident.  Mud staining could have been carried from beside the plinth.  The ground is muddy in the gutter-type feature around the plinth described above.  That is not where Mr Smith had his claimed “slip”.  Was there a misunderstanding on the part of Scottish Water?  In the aftermath of the accident remedial measures were taken in the form of laying type 1 aggregate in the muddy, gutter‑type feature:  it was only at a later point in time ― when, exactly, cannot be known on the evidence given in these proceedings ― that a strip of grass and top soil was removed from the area between the paviours and the plinth and a path laid in type 1 aggregate.

[30]      Mr Smith told his wife that “the area was muddy”. He reported to Mr Clarkson — or to Mr Clarkson’s informant — that “the slope is grassy and very muddy”.  These observations have an element of truth in a broad-brush sense but do not explain the claimed “slip”.  As to whether the grass was wet, nurse practitioner Dhesi recorded “slipped on wet grass”.  The only first hand evidence comes from Mr Lochrie.  He said that there had been a frost, the day was sunny, the sun had melted the frost.  He added that “probably the grass was damp”.  Given that Alan Smith was wearing standard, rigger-type, safety boots, presumably with commando soles, it is difficult to understand how there could have been a slip because of ground conditions where the claimed slip happened;  and, as I have said, there is an alternative explanation.

[31]      For completeness the critical factual averments made on Mrs Smith’s behalf are:

“The deceased stepped from the area of block paving onto a narrow strip of bare earth which surrounded the plinth.  The ground was muddy and slippy [sic] due to recent rain and there was an incline.  The deceased slipped and twisted his left knee, sustaining a severe soft tissue injury to the knee... as a direct result of this injury... he died on 16 March 2010.”

 

These averments have not been proved either in terms or approximately and in substance and, indeed, have to a large extent been contradicted by the facts which I have found proved on the balance of probabilities.

 

Counterfactual liability

[32]      In case I am wrong about what happened at Beattock Wynd, and making the counterfactual assumption that Alan Smith did slip and injure his knee (in a way that caused or contributed to his death) because of ground conditions, I have to decide whether a breach of legal duty on the part of Scottish Water is involved.

[33]      In closing submissions the claim was put on the basis of breach of the duty of care at common law and breaches of obligations imposed by the Workplace (Health, Safety and Welfare) Regulations 1992 regulations 5 [maintenance of workplaces generally], 12(1) and 12(2) [construction of traffic routes in workplaces].  (Pursuer’s senior counsel ultimately accepted that the case advanced on the basis of the Management of Health and Safety at Work Regulations 1999 regulation 3 [risk assessment] is “parasitical” on the case put on the substantive regulations and adds nothing.)  Essentially the proposition is that the route from the paviours to the pumping station plinth was unsuitable for its purpose, or that there was no suitable route, and that there was a foreseeable risk of injury to workers accessing the pumping station such that precautions should and could practicably have been taken.

[34]      I agree that there was a duty of care at common law to provide a safe means of access to the pumping station.  On the other hand there is scope for argument about the potential for liability under the regulations.  The first question is whether the area between the paviours and the plinth is, or is part of “a workplace”.  I think the answer is “yes”.  The plinth itself falls within the regulation 2 definition of “workplace” being “premises which… are made available to any person as a place of work”; and the definition extends to “any… place used as a means of access to or egress from that place of work…”  Public roads are the only exception.  It follows that private roads, verges and areas of grass used as access and egress come within the extended definition unless otherwise excluded.  By regulation 3(4) outside places forming part of agriculture and forestry undertakings are excluded but only if situated away from the main buildings.  Occupation and control are not determinants of what places are workplaces.

[35]      Control or the lack of it does however determine the issue whether employers have to comply with the regulations in relation to places where their employees work.  This is the effect of regulation 4.  So the second question is whether the area between the paviours and the plinth was under the control of Scottish Water.  Although there is no absolutely clear evidence about property rights in the area — “it came back from the legal team”, according to Mr Clarkson, “that Scottish Water did not own the grass” — I am prepared to say that Scottish Water had control as a matter of fact, not necessarily exclusive control of course, but control sufficient for the purpose of regulation 4.  This is based on the fact that Scottish Water used the area at will for access and egress with men and equipment, on the fact that they laid aggregate on the area without asking anyone else’s permission and on the fact that the aggregate was still there three years later when the pursuer’s health and safety expert Mr Lenford Greasly visited the site.  Accordingly Scottish Water were bound to comply with the requirements of the regulations so far as relevant to the area between the paviours and the plinth giving access to the Beattock Wynd pumping station.  (On the evidence in this case there is no certain basis for suggesting that Scottish Water are responsible under the regulations for access over other people’s land to every one of the thousands of Scottish Water assets up and down the country:  the matter has to be decided on a case by case basis.)

[36]      The third question is whether the cited regulations are relevant to the issue of the access at Beattock Wynd.  Regulation 5 [maintenance of workplaces generally] is not relevant for the reason that this case is not about the cleanliness or state of repair of the ground or whether the ground was maintained in efficient working order:  the issue is about the inherent characteristics of the ground and whether the ground as it was and ever had been was suitable for, or as, access to the pumping station.  In any event, as the pursuer’s case was presented in submissions, regulation 5 adds nothing to the claim under regulations 12(1) and 12(2) [cf Taylor v Wincanton Group Limited [2009] EWCA Civ 1581; Caerphilly CBC v Button [2010] EWCA Civ 1311].

[37]      Regulation 12 is relevant.  Regulation 12 concerns the “suitability” of, specifically, floors and traffic routes in workplaces, their construction and condition.  A “traffic route” in terms of regulation 2 is “a route for pedestrian traffic”.  The area between the paviours and the plinth was a traffic route on the somewhat paradoxical basis ― which is how I interpret the regulations in light of the definitions in regulation 2 ― that a traffic route which serves as access to a place of work is “a traffic route in a workplace”.  The regulations as a whole envisage the possibility of workplace access over unmade ground, for example in forestry and farming undertakings;  and certainly unmade ground is not excluded from the ambit of the regulations.  For this reason I do not think that regulation 12 can be confined in its application to artificially made up or constructed floors and traffic routes.  I agree with the pursuer’s submission that “construction” has a broad meaning; and I would say that the term can refer to the “composition” or “make up” and “configuration” of floors and surfaces [Caerphilly CBC v Button [2010] EWCA Civ 1311; Farmer v FTV Proclad (UK) Ltd [2013] CSOH 165; cf Campbell v East Renfrewshire Council 2004 Rep LR 89].  Transient conditions bearing on health and safety which occur frequently, such as, in this case, allegedly, wet weather, have to be factored into the determination of “suitability” [Ellis v Bristol City Council [2007] ICR 1614; Cheung v Zhu [2011] EWHC 2913].

[38]      Regulation 12(1) requires “the surface of every traffic route” to be “suitable”, as a matter of construction, “for the purpose for which it is used”.  Regulation 12(2) provides, without prejudice to the generality, that this means ― notwithstanding the clumsy wording ― no holes or slopes or uneven or slippery surfaces such as would expose any person to a risk to his or her health or safety.

[39]      Parties agree, first, that “suitability” means suitability from a health and safety point of view; secondly, that regulation 12(1) suitability and also the existence of regulation 12(2) risks have to be tested by reference to the situation before the event assuming a proper risk assessment at that time and uninfluenced by hindsight bias;  and, thirdly, that “risk” means “a real risk” [Marks and Spencer Plc v Palmer [2001] EWCA Civ 1528; McGhee v Strathclyde Fire Brigade 2002 SLT 680;  Taylor v Wincanton Group Ltd [2009] EWCA Civ 1581; Caerphilly CBC v Button [2010] EWCA Civ 1311].  (There might be other ways of interpreting the regulations:  but I am content to go with parties’ consensus backed by the cited authorities.)

 

The evidence about suitability and risk

[40]      It is important to know what sort of (downhill) slope workers encountered at Beattock Wynd on the way from the paviours to the plinth.  Mr Lenford Greasly BSc, LlB, the health and safety expert instructed for the pursuer, testified that the slope had a gradient of up to 27 degrees.  His photographs showed where he had measured a 23.8 degrees gradient.  That is a gradient of about 1 in 2.  Mr Greasly measured the slope with an electronic “inclinometer” 15 centimetres long.  By the time Mr Greasly visited the site in 2013 site conditions had changed in that Scottish Water had laid aggregate; and Mr Greasly picked what he thought would be a representative spot adjacent to the aggregate path.  The inclinometer might be suitable for measuring the slope on regular surfaces but could not possibly iron out the variations to give a reliable reading on the irregular surface on which Mr Greasly placed it.  Mr Grant Murray, the Scottish Water senior health and safety adviser, for the defenders, calculated the gradient, also in 2013, at 9.5 degrees through “section A” — the shortest distance between the paviours and the plinth — shown on the plan produced [7/10].  That is a gradient of 1 in 6.  Keith Clarkson thought the slope was about 10 degrees, though on what basis is not clear.

[41]      The distance between the paviours and the plinth varies, as explained above, and the contours of the ground look from the photographs to vary to some extent over the area which could be used as an access route.  Insofar as there can be a single correct figure for the gradient I prefer the defenders’ assessment.  When the defenders’ figure was put to Mr Greasly in cross‑examination he opined that a grassy slope with a gradient of nine degrees is “not acceptable”. This was without giving a reason or reference to any standard of acceptability.  (Building standards for stairs and ramps provide a yardstick of sorts.  A comparison with the standards for England & Wales was alluded to in evidence; and I have since looked at the Scottish standards.)

[42]      As at 22 February 2010 the Beattock Wynd pumping station had been in existence for 20, 30 or 40 years.  There was no evidence that there had ever been an accident of any kind there.  There was no evidence that anyone had complained about the access.  Scottish Water had workplace inspection and risk assessment systems which did not identify a problem with the access at Beattock Wynd.  The last annual workplace inspection had taken place less than a year before and no access risk had been identified.  The Health and Safety Executive [HSE] report referred to below stated that the site had been visited “on no less than 33 occasions in the previous six months” and that Mr Smith himself had attended the previous day in similar conditions without reporting difficulties.

[43]      As I understand the evidence of the HSE inspector McLaren Young and of the Scottish Water employees Robbie Lochrie (plant operator), Keith Clarkson (operations team manager) and Grant Murray (senior health and safety adviser) there was a generic risk assessment in place for all 2,000 plus waste water pumping stations which was modified for individual locations in the light of site‑specific hazards.  (There were separate assessments for other assets such as treatment plants.)  The pumping station generic risk assessment had been modified for specific risks at about 10 per cent of sites according to Mr Murray.  I think the evidence was that there had been no modification for Beattock Wynd.  It was the responsibility of operatives such as Alan Smith and Robbie Lochrie to assess the sites within their sector for hazards including slipping, tripping and falling risks.  Operatives were trained to do this.

[44]      Mr Smith had serviced Beattock Wynd for many years.  As I have said Beattock Wynd was “his” pumping station.  During the incident reporting process Alan Smith was apparently asked about his assessment.  The accident/incident investigation report records:  “Alan was not working to any form of R[isk] A[ssessment] at the time of the accident as he felt there were no significant risks associated with the task.”  From the whole terms of the report it is to be inferred that Alan Smith himself did not, before the event, assess that there was any “real risk” in accessing the Beattock Wynd pumping station over the area or ground between the paviours and the plinth.  The report was signed off by Keith Clarkson in the absence of Alan Smith’s team leader, a Mr McKay.  I shall come back to Mr Clarkson’s report.

[45]      Mr Smith and Mr Lochrie were members of the team of eight led by Mr McKay responsible for servicing the sector that included Beattock Wynd.  Robbie Lochrie had visited Beattock Wynd frequently.  He was a witness for the pursuer:  but he was not questioned in evidence about his perception of the access risks, if any.  None of the other members of the eight-man team was called as a witness.

[46]      On the other hand Scottish Water’s accident/incident investigation report concluded:  “Alan slipped as a result of inadequate access to the site.”  This was on the basis there was a slip on a slope that was “grassy and very muddy”.  The author of the report, Keith Clarkson, had received the information about the incident, emanating from Mr Smith, though at second or third hand, within four days of the incident.  He visited the site.  Mr Clarkson instituted remedial action namely “improvements to site access to remove the requirement to walk on grass which will remove risks created by differing environmental conditions”.  The “improvements” consisted of laying type 1 aggregate to fill the gutter around the perimeter of the plinth and to make a path to the plinth.  The cost was about £500.  Clearly it was reasonably practicable to lay the path.

[47]      Mr Clarkson was called as a witness for the pursuer.  In chief he spoke to his report.  In cross-examination he stated that if there hadn’t been an accident he would not have thought that there was a hazard that merited a risk assessment.  In re‑examination he said that it would not have occurred to him that someone might slip [at Beattock Wynd].  He appeared to be less confident when asked to consider someone walking over grass on a slope given the weather conditions experienced in the west of Scotland in February.

[48]      HSE inspector McLaren Young was also called for the pursuer.  He visited the site after Alan Smith’s death was notified, on 22 March 2010.  By that date the gutter‑type feature had been “stoned up” but not, so far as Mr Young’s recollection went, the pathway.  Mr Young’s report stated:

“Although the accident to Mr Smith was foreseeable due to the nature of the access, the extreme consequences of his accident are an entirely different matter... it would have been difficult if not impossible for Scottish Water to foresee the extreme consequences of Mr Smith’s accident...”

 

In evidence Mr Young stated that “the fact that you have a slight incline, grass and earth that’s going to turn to mud when it rains [makes it] entirely foreseeable that someone might slip gaining access to the plinth.”  Mr Young wrote his report in the belief that Alan Smith had slipped and fallen and had sustained a torn meniscus and consequently died as a result of the slip and/or the fall.  Mr Young’s report referred to the applicable law as being the Health and Safety at Work etc Act 1974 s2(1) and the Management of Health and Safety at Work Regulations 1999, regulation 3.

[49]      Mr Lenford Greasly BSc, LlB, is an associate member of the United Kingdom Slip Resistance Group.  (He explained to me that he “did not quite get to full membership”.)  Mr Greasly is an experienced consultant and witness on matters to do with slipping.  He gave interesting evidence for the pursuer about the standards of slip resistance for man-made floors, floors on the level and floors on slopes of various pitches.  I gather that in his usual sort of slipping case Mr Greasly can actually measure and quantify the slip resistance of floor surfaces with a “slipometer” and say whether or not the results meet accepted standards such as the building standards, something that he could not do in this case.  So the science does not apply — or applies only in the broadest, illustrative way — to surfaces like that of the route between the paviours and the plinth:  there is less slip resistance going downhill;  and the steeper the slope the more the reduction in slip resistance.  Mr Greasly identified the risk as a risk of slipping in muddy conditions on the slope, the “grassy slope”, as he called it.  He testified that slipping accidents were foreseeable and likely to happen in rain, snow and wet conditions.

[50]      The defenders led Grant Murray, one of Scottish Water’s five senior health and safety advisers.  He undertook some investigations for the purpose of this court case, visited Beattock Wynd, made measurements, arranged for photographs to be taken and drew up the plan [7/10].  He did not believe that there was an access hazard (on and before 22 February 2010).  He disputed that there was a foreseeable risk of injury.  He did not think that anything needed to be done to the access: but if you [as an employer] thought something needed to be done what was done by way of remedial action was reasonable.

 

Was the route to the plinth “unsuitable”?

[51]      Was the construction of the surface of the route in this case unsuitable from a health and safety point of view either generally or specifically by virtue of the alleged slope and slippery surface?  I do not think so.  This is my determination having assessed the spread of evidence and also relying to an extent on my own impression.  I accept that there could possibly be other interpretations of the evidence and other impressions.

[52]      Keith Clarkson’s accident/incident report supports the pursuer’s case, or apparently so.  It states that the accident/incident was caused by inadequate access and implies that there was a slipping or falling risk which ought to have been recognised beforehand.  The report also implies that the failure to recognise the risk was a failure on the part of Mr Smith and his fellow employees:

“This accident highlights that often operatives fail to recognise possible hazards whilst undertaking work tasks, the lack of adequate access was never identified through previous W[ork] P[lace] I[nspections] indicating a lack of training or a lack of understanding of possible hazards.”

 

On the other hand Mr Clarkson’s evidence in court is not nearly so supportive.  Pursuer’s senior counsel submits that the views expressed in the report ought to be preferred and accepted because those views were uninfluenced by knowledge of the tragic outcome.

[53]      That argument works both ways.  When he signed off his report Mr Clarkson had no information about the circumstances except what had been relayed from Mr Smith;  he knew nothing about the ongoing knee pathology;  and the issue was of comparatively little moment at the date the report was signed off, four days after the incident.  Mr Clarkson believed that Mr Smith had merely “suffered a strain to his knee” and would get back to work with support from the occupational health service.  The report was “interim” pending the expected return to work of the injured party and completion of the full investigation on site.  My judgment is that had he known all that is now known, Mr Clarkson could not have written:  “Alan slipped as a result of inadequate access to the site.”  I am not persuaded to attach the weight to the terms of the report contended for by senior counsel.  As regards the views expressed by Grant Murray, I do however accept senior counsel’s assessment, namely that his views should not be given too much weight for the reason that they must be coloured by the implications for the defenders of the outcome.

[54]      Mr Greasly’s views about the slip risks at Beattock Wynd scarcely amounted to expert evidence.  The opinion did not declare itself to be based on anything other than the sort of experience everyone has of walking outdoors.  Mr Greasly also entered on the court’s territory when he expressed views on the foreseeability of the slip risk:  but he did not say with what frequency slipping incidents would occur; nor did he identify the foreseeable health and safety outcomes, if any, of slipping at this location.

[55]      The case law confirms that “risk” is a function of the likely frequency of adverse occurrences, and of the potential gravity of outcomes, combined.  I find the HSE inspector to be correct when he reported that it would have been “impossible” for an employer to have foreseen the extreme consequences for Mr Smith.  Pursuer’s senior counsel submits that this is not the issue:  if there were a foreseeable real risk of orthopaedic injury — meaning in the present context, I take it, injury to bones, joints, cartilages, ligaments or tendons — then it is irrelevant that more serious sequelae were unforeseeable.

[56]      This cannot be entirely correct.  Questions of remoteness of damage and risk assessment overlap but they are distinct. In the context of risk assessment in this case the threshold must be something more than slipping or slipping and falling without injury or with trivial resulting injury consisting of mere bruises, sprains and strains.  There is no evidence about the risk of something more serious; or that such a risk was assessable before the event.  As to frequency, what I think could have been said in the light of the history immediately before 22 February 2010 was that slipping accidents do not occur at Beattock Wynd; and from what has subsequently transpired it can now be said that the only slipping accident alleged to have happened at Beattock Wynd happened to a man with a bad knee.  It seems to me unlikely that this was coincidence.

[57]      As Walker LJ stated in the Marks & Spencer case: “... not every trip will entitle a claimant to compensation”;  I respectfully agree and would add that the same must go for slips.  Also in the Marks & Spencer case Schiemann LJ stated:

“It is common ground, and I agree, that notwithstanding the wide language and the reference to “any person” [in reg. 2 “workplace” and reg. 12(2)] we are not here concerned with the blind or the drunk.  The question of suitability is not to be decided in that context, unless one is dealing with an establishment for the blind or perhaps a place where alcohol is consumed in significant quantities.”

 

Equally, I would say, employers are not required to assess the risks for persons with meniscal pathology where there is no reason for bad knees to be in contemplation [Marks and Spencer Plc v Palmer [2001] EWCA Civ 1528 at §§ 28, 32].

[58]      As the case law illustrates, the court is entitled if not bound to form its own impression applying everyday experience.  My impression is that the route taken by Mr Smith on 22 February 2010 led him down a gradient gentler than slopes that are negotiated day and daily without any perceived risk in the countryside, in parks, in gardens, on golf courses.  I conclude that there was no reasonably foreseeable hazard for common law purposes;  and that there was no failure to comply with the requirements of the Workplace (Health, Safety and Welfare) Regulations 1992.

 

Decision

[59]      While expressing unreserved sympathy for Mrs Smith I am bound for the reasons given to absolve the defenders, which is what I shall do. I shall reserve all questions of expenses.