Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 20

A212/11

OPINION OF LORD STEWART

Motion for summary decree in terms of RCS 21

In the cause

MICHAEL DUTHIE

Pursuer;

against

TRANSOCEAN NORTH SEA LIMITED AND OTHERS

Defenders:

Pursuer:  Di Rollo QC, Heaney;  Lefevre Litigation

Fourth Defender:  Thornber, Solicitor Advocate;  Pinsent Masons

17 February 2015

[1]        This is a personal injury action now proceeding under chapter 42A of the Rules of the Court of Session [RCS].  On 3 February 2015 I heard an application in terms of RCS 21 for (partial) summary decree to be granted in favour of the pursuer against the fourth defenders.  Having made avizandum, I have now decided to refuse the motion in hoc statu on the basis that the statutory case in respect of which summary decree is sought is not properly focused and that although there is an arguable case in law there is also an arguable defence to the claim as currently presented.  Were the claim to be properly focused I suspect, without purporting to express an opinion one way or the other, on the basis of the material seen by me, that there might well be no defence on liability in terms of the statutory case or a related case not yet pled.  There is however a major issue on causation which will have to go to proof.  That being so the need to resolve the liability issue is not as pressing as it might otherwise have been.

[2]        I was asked to look at certain passages in the pleadings (referred to below) and to notice certain productions and other documents in process (referred to below).  Fourth defenders’ counsel asked me to look at a document not in process, namely Health care and first aid on offshore installations and pipeline works:  Approved Code of Practice and guidance, 2^nd edn (HSE, 2000) paras 30-33.  No objection was taken to any of the material I was asked to look at.  The following authorities were referred to:  Reid’s Trs v Reid 1986 SC 225 at 228‑229;  Frimokar (UK) Ltd v Mobile Technical Plant (International) Ltd 1990 SLT 180 at 181K-182C;  Henderson v 3052775 Nova Scotia Ltd 2006 SC (HL) 85 at §§ 13, 16-19 per Lord Rodger of Earlsferry delivering their Lordships’ report;  Frew v Field Packaging Ltd 1994 SLT 1193 at 1194J-L, 1195A-B and G-I.

Heart attack offshore
[3]        The pursuer apparently had a heart attack while working on an offshore oil installation, the drilling rig Glomar Arctic IV.  The pursuer complains that his heart attack went undiagnosed with the result that he sustained permanent left ventricular damage.  The pursuer claims that the heart attack should have been diagnosed, that he should have been given thrombolytic treatment and that he should have been medevaced immediately to Aberdeen Royal Infirmary [ARI].  Instead he was kept on board for 24 hours and sent ashore on a scheduled flight the next day.  His family took him to ARI where he was diagnosed with “late presentation myocardial infarction”.  He claims that the heart damage would have been prevented if there had been prompt diagnosis and treatment.  The defence on causation is (apparently) that the heart damage had already happened or would have happened anyway even if the pursuer had been diagnosed and treated promptly.

The parties:  roles and responsibilities offshore and onshore
[4]        The parties to the action are the pursuer, a service technician employed by a drilling company to work on Glomar Arctic IV.  There was a rig medic on Glomar Arctic IV who was employed by Transocean North Sea Limited.  Transocean North Sea Limited are the first defenders.  The second defender Dr Johnson is the onshore or “topside” qualified medical practitioner employed by Capita Health Solutions Limited.  Dr Johnson was the duty doctor on call at the material time to provide advice to the rig medic.  The third defenders are Capita Health Solutions Limited [Capita], who were contracted to provide occupational health services to Transocean Drilling UK Limited.  Transocean Drilling UK Limited owned, operated and managed Glomar Arctic IV.  They are convened as the fourth defenders.  The first and fourth defenders, both members of the Transocean group, share the same representation.

A statutory duty to provide ECG equipment offshore?
[5]        The issue put before me is one between the pursuer and the fourth defenders about the provision of electrocardiograph [ECG] monitoring equipment on the installation.  In that connection the pursuer alleges a breach by the fourth defenders of the Offshore Installations and Pipeline Works (First-Aid) Regulations 1988.  The pursuer submits that there is no defence to the allegation of breach while accepting that there is a dispute about causation that has to be tried. 

[6]        The fourth defenders agree that, in relation of Glomar Arctic IV, they were “the person in control of an offshore installation” for the purpose of the Offshore Installations and Pipeline Works (First Aid) Regulations 1988;  and that regulation 5 imposed statutory duties on them as “the person in control”.  Regulation 5 provides:

“The person in control …, shall―

1. provide, or ensure that there are provided, such equipment, facilities and medications and such number of suitable persons as are adequate and appropriate in the circumstances for rendering first-aid to, and treating in accordance with the directions of a registered medical practitioner (who may or may not be present) persons who are injured or become ill while at work.”

Regulation 2 defines “first-aid” as “treatment for minor injuries” and otherwise “treatment for the purpose of preserving life and minimising the consequences of injury and illness” until help is obtained from a medical practitioner or nurse.  Parties assume that there is civil liability for breach of the regulations.  I assume that breaches can also give rise to criminal liability, something that can have a bearing on interpretation.  The wording of the regulations was put before me, obviously, but the meaning was not debated. In particular, the meaning of “adequate and appropriate” was not debated.

The fact situation according to the pursuer
[7]        At 08.00 on 13 January 2008 the pursuer became ill with pain and tightness across the chest.  He attended the sick bay at 09.40.  The pursuer’s case in relation to the provision of ECG monitoring and treatment “in accordance with the directions of a registered medical practitioner” is:

“The pursuer was in fact suffering a myocardial infarction.  [The rig medic] carried out an ECG.  He was unable to interpret the ECG reading.  It is unclear whether he sought advice as to how to interpret the ECG reading.  If the ECG reading had been interpreted properly it would have disclosed an elevated ST level.  [The rig medic] did not consult [Dr Johnson] until 10.48.  He did not disclose to [Dr Johnson] that an ECG had been carried out.  He did not give any indication of the outcome of the ECG.  He did not disclose that he was unable to interpret it …  The Glomar Arctic IV rig was not equipped with a 12-lead diagnostic ECG machine.  Esto it was equipped with such a machine (which is denied) [the rig medic] did not use it.  If such equipment had been used it would have shown ST elevation in the chest leads …  [The rig medic] should have performed a diagnostic ECG.  He should have obtained assistance with its interpretation.  Without delay he should have administered thrombolytic medication.  Without delay he should have arranged for the pursuer to have been evacuated …  The pursuer would have been admitted to hospital by the late morning …  If he had been admitted … he would not have suffered the loss, injury and damage hereinafter condescended on.”

[8]        The pursuer was sent off the rig by scheduled helicopter flight the following morning, 14 January 2008.  Later on the morning of 14 January he was admitted to the cardiac unit, ARI, via accident and emergency.  He avers that the infarction had occurred on the morning of 13 January.

[9]        Capita aver that the rig medic carried out an ECG using a Biolog 3000 machine and that the trace [sic] showed a normal sinus rhythm.  Capita aver that they provided the fourth defenders with a list of recommended medical equipment for the Glomar Arctic IV;  and that one of the recommendations was for a 12-lead ECG machine.  All of these averments are admitted by the fourth defenders;  and all of these averments are denied by the pursuer.

Out of date software
[10]      The Court pronounced interlocutors for recovery of documents by the pursuer on 1 June 2011 and 24 August 2011.  A commission for recovery took place on 11 June 2012.  Sean McGowan was cited as haver on behalf of the first defenders.  He is the divisional medical adviser for the first defenders.  The specification [no 17 of process] includes calls for documents showing or tending to show among other things:

“(iv)     The make and model of the ECG machine on the Glomar Arctic IV as at 13 and 14 January 2008.

(v)        The means by which the ECG results were communicated from the Glomar Arctic IV to the onshore doctor providing on-call services as at 13 and 14 January 2008.

(vi)       The reason why [the rig medic] was unable to send the pursuer’s ECG results the pursuer’s ECG results to [Dr Johnson] on 13 January 2008.”

In answer to these calls, Mr McGowan gave sworn evidence to the effect that Capita’s “standing orders” indicated that a 12-lead ECG machine should have been available on the rig.  The preferred 12-lead machine was a Biolog 3000.  If I understand the information correctly, the Biolog 3000 shows a real time headline result, possibly from just one lead, certainly from not more than three leads, on an LCD. It also produces a 12-lead graphic if the data is downloaded to a compatible computer with the correct companion software.  Mr McGowan’s evidence was that he had been led to believe that the computer software (on the rig) was out of date so that the 12-lead data could not be downloaded.  In the event no record was made of the ECG and the results could not be printed and faxed or e-mailed to the Capita duty doctor onshore for interpretation and advice.

Capita Health Solutions manual:  provision and use of ECG equipment
[11]      The pursuer has produced a document titled “Capita Health Solutions/Global Santa Fe Medics’ Manual” (11.09.06 revision).  I assume this is one of the documents recovered at the commission.  (I have not been shown the inventory and the report of the commission is inspecific.)  The document looks as if it is meant for rig medics employed by Capita but this is not entirely clear.  The document has 216 pages.  The footer throughout is “Medic Standing Orders – GSF [Global Santa Fe] Revision No 5 11.09.06” although only one section, section II, pages 7-23, is actually headed “Standing Orders”.  Sub-section 4.0 of the “Standing Orders” section is headed “Stock Control and Ordering”.  The sub-section states: 

“The Medic should use the Capita Health Solutions Medicines Formulary and the Capita Health Solutions medical equipment, furnishings and sundries inventory as a basis for ordering.”

I take the latter to be a reference to section V headed “Medical Equipment, Furnishings and Sundries”.  The cover sheet of section V, page 97 of 216, states:  “This includes equipment required by UKOOA, MCA and the HSE”.  Counsel did not point me to anything in this section.  Looking through it for myself I find an apparently relevant reference in the “Instruments, Appliances and Sundries” sub-section at page 112 of 216.  The reference is “Item―ECG―12-lead”, “Description―with page printer (may be combined with defibrillator)” and “Quantity―1”.  In the absence of any contrary information I take it that this was what Mr McGowan was talking about in his evidence given at commission when he said that “Capita’s ‘standing orders’ indicated that a 12-lead ECG machine should have been available on the rig”.

[12]      Going back to section II, “Standing Orders”, sub-section 3.0 at page 12 of 216 has the heading “Work Schedule”.  Stipulated weekly checks for serviceability include “ECG machine”.

[13]      Section III is the “Guidance” section.  In the “Cardiac Emergencies” sub-section at page 24 of 216 the following is stated:

“If available carry out a 12-lead ECG.  The results can be faxed to ARI coronary care unit for interpretation … or e mailed to ARI A&E if the installation has a contract for this service.  Follow protocol in Appendix 6.

Discuss case with topside service as soon as possible.  Do not medevac until you have spoken to the doctor on call.”

Further guidance for electrocardiography is at page 74 of 216.  The guidance appears (on my understanding) to relate to a 12-lead ECG in that it refers both to limb leads and to chest leads V1 through V6.  Under the heading “Reporting and Interpretation of Results” the document states:

“If your machine produces a long strip of paper, cut up the sections and paste onto a sheet of A 4 paper.  Put the patient’s name, DOB, the date and time on the ECG.

The record should be read by a registered medical practitioner as difficulties with interpretation commonly arise.  Following discussion with the Duty Doctor you may be asked to fax this to Aberdeen Royal Infirmary (ARI) …  Ensure that the coronary care doctor is told that the ECG is faxed.  If you have an agreement to e mail ECGs to ARI A&E department, use the approved e mail address and phone them to ensure they know to check the ECG.”

Application for summary decree and refusal in hoc statu
[14]      Returning to the application for summary decree, RCS 21 empowers the court to grant summary decree on the ground that there is no defence to the action or part of it disclosed in the defences.  The pursuer now seeks summary decree against the fourth defenders in relation to the alleged breach of statutory duty quoad liability only.  Decree is sought in the following terms:

“To find and declare that at the material time the fourth defenders were in breach of the Offshore Installations and Pipeline Works (First Aid) Regulations 1988 regulation 5 in respect that the fourth defenders failed to provide or ensure that there was provided on the Glomar Artic IV drilling rig a 12-lead diagnostic ECG machine with facilities for recording the results and transmitting the results to a registered medical practitioner so as to enable treatment of the pursuer in accordance with the directions of the registered medical practitioner.”

[15]      There are problems with this application as matters presently stand.  The specific averments of breach so far as relevant to the ECG issue are:

“[The fourth defenders] failed to provide ECG equipment which could be interpreted.  They failed to see that the EEG [corrected in submissions to ‘ECG’] was interpreted offshore [corrected in submissions to “onshore”] …  They failed to provide a 12-lead ECG machine …”

These averments seem to be premised on the following averments of fact:

“The Glomar Arctic IV rig was not equipped with a 12-lead diagnostic ECG machine.  Esto it was equipped with such a machine (which is denied) [the rig medic] did not use it.”

The pursuer of course also denies that a Biolog 3000 12-lead machine was provided.  I am now being asked to find that no defence is disclosed to a different case, namely a case that the fourth defenders did provide a Biolog 3000 12-lead diagnostic ECG machine, that it was used, that it did display headline results in real time, but that the machine was not set up to record the full results and to transmit onshore with the consequence that the 12-lead results could not be interpreted by a qualified medical practitioner.

[16]      The fourth defenders’ answer to the averments of breach consists of a reference to the regulations for their terms, a bald denial and an explanation that all statutory duties were fulfilled.  Fourth defenders’ counsel submits that the obligation under the regulations is “to provide, or ensure that there [is] provided, such equipment … as [is] adequate and appropriate in the circumstances …”  It is submitted that a specific obligation cannot be spelled out of the regulations to provide a 12-lead diagnostic ECG machine with appropriate software and ancillaries.  It is submitted that whether or not a 12-lead diagnostic ECG machine was required for compliance with the duty to provide “adequate and appropriate” equipment is a matter for expert evidence.  The implication is, I think, that, if there was no requirement to provide a 12-lead diagnostic ECG machine and if fourth defenders chose to go beyond the regulations and to provide a 12-lead diagnostic ECG machine, any shortcoming in the equipment which was provided above and beyond the call of duty did not constitute a breach of the regulations. I suppose the point is arguable.

[17]      If the pursuer wishes to found on the evidence elicited from Sean McGowan at the commission to recover documents two-and-a-half years ago he should make the appropriate averments.  It is arguable that providing equipment that does not perform to specification is a breach of the requirement to provide “adequate” equipment:  but I am not prepared to grant summary decree on the basis of arguability and what I see as equivocal pleadings. 

Postscript
[18]      It might be surprising if life-saving equipment which does not work can be provided offshore without the person responsible for provision somehow incurring liability.  The ECG equipment was equipment provided for use by the rig medic at work.  It is for consideration by parties whether providing diagnostic equipment that does not perform to specification because it does not have the correct software constitutes a breach or breaches of the Provision and Use of Work Equipment Regulations 1998.  It is also for consideration whether there might be a case of common law fault in relation to the state of the machine and the software as provided and as maintained thereafter.  It is not entirely clear who might be responsible for the software incompatibility.  If the terms of the Capita manual apply, the ECG should have been checked weekly for serviceability.

[19]      The deadline for lodging productions is 11 February 2015.  Parties will then know whether the fourth defenders have an expert report which supports the contention, or should I say suggestion, that there was no requirement under the regulations to provide a 12-lead ECG machine.

[20]      I am surprised that the pursuer’s only source of information about the ECG machine and its shortcomings is the evidence taken at the documents commission.  If there is a problem about obtaining statements from the employees of the defenders or any of them consideration should be given to applying for a commission to take evidence to lie in retentis.  Indeed where any party has difficulty obtaining witness evidence because of non-cooperation consideration might be given to this expedient in order to “secure the speedy and efficient determination of the action” in terms of RCS 42A.4(6) or equivalent provisions.  I have raised this point with the parties in court.