Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> BRIAN CLARK v. NORTH OF SCOTLAND WATER AUTHORITY [1998] ScotSC 2 (2nd November, 1998)
URL: http://www.bailii.org/scot/cases/ScotSC/1998/2.html
Cite as: [1998] ScotSC 2
[New search] [Help]
BRIAN CLARK v. NORTH OF SCOTLAND WATER AUTHORITY [1998] ScotSC 2 (2nd November, 1998)
SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT DUNDEE
A 1051/97 JUDGMENT OF SHERIFF R.A.DAVIDSON
in the cause
BRIAN CLARK, PURSUER
against
NORTH OF SCOTLAND WATER AUTHORITY
DEFENDERS
Act: Bathgate, Messrs. Allan MacDougall & Co., Solicitors, Edinburgh
Alt: Dyckoff, Messrs. Thorntons, Solicitors, Dundee.
Dundee, 2nd November, 1998.
The Sheriff, having resumed consideration of the cause, finds the following facts admitted or proved:-
1. The pursuer is Brian Clark who is 50 years of age and who resides at 12, Elizabeth
Crescent, Carnoustie, Angus. Until July, 1998, he was employed by the defenders
as an approved electrician but that employment came to an end when he accepted
early retirement terms.
2. The defenders are the North of Scotland Water Authority, a public authority
constituted under the Local Government Etc. (Scotland) Act, 1994, and having
a place of business at Stobsmuir Depot, Stobsmuir Road, Dundee. As at 1st. July,
1996, they were the employers of the pursuer.
3. There are no proceedings before any other court involving the present cause of
action and the present parties.
4. On 1st. July, 1996, the pursuer was working in the course of his employment with
the defenders as an approved electrician. He had been required to construct certain
control panels which were to be erected proximate to the inlet channel at the
normally unmanned Newtyle Sewage Treatment Works, which work had been
carried out in the workshops in Dundee. The control panels required to be located
on site at Newtyle at a height of about six feet above ground level and accordingly
were attached to a fibre glass frame consisting of material called "unistrut." The
panels and their supporting frame work, all in situ subsequent to the pursuer's
accident, can be seen in the series of photographs lodged by the defenders as
production 6/2 - 8, especially photographs numbered 2 - 14. The combination of
the panels plus the unistrut measured about five feet high by three to four feet wide
and the combined unit (hereinafter referred to as "the unit") had been fabricated at
the defender's Dundee workshops by the pursuer and had been conveyed as a
single unit by works van driven by the pursuer, accompanied by his workmate,
Raymond Marshall, who was employed by the defenders as a fitter's mate, with a
view to its being erected by them and located in the position depicted in said
photographs.
5. The unit was tied to the top of the defender's van which was a 30cwt. Ford Escort
van. The pursuer drove said van from Dundee to Newtyle.
6. The Newtyle Treatment Sewage Works normally operated automatically and
was not normally manned. Various employees of the defenders would visit the
plant from time to time to carry out routine maintenance and to carry out any
repairs which might become necessary.
7. The work which the pursuer was carrying out involved the installation of the new
unit at Newtyle. No more superior employee than the pursuer was involved in
the determination of the method by which the unit would be erected and located.
The pursuer, given his training and experience should have been able to decide
himself the method by which the unit was to be erected and located.
8. The unit was top heavy, the control panels being the heavy part of it, they being
located at the upper end of the unit. It was too heavy for one person to carry alone.
Raymond Marshall was present to assist the pursuer with the unit's erection.
9. On arrival at Newtyle at about 10.30 a.m. on 1st. July, 1996, the pursuer reversed
the van so that its back doors were towards the kerb and footpath which can be seen
in photographs 2, 3, 4, 5, 6 and 7. He stopped the van about two feet from the kerb
and not quite at 90 degrees to the kerb. He emerged from the driver's side of the
van but went to its left hand side at the rear while Marshall went to the right hand
side. They proceeded to untie the unit. Having done so, they then picked it up to
move it the six or so feet across the pavement into the position against the wall
where the unit was to be erected, where it eventually came to be erected as depicted
in said photographs 2-14. As they were so engaged, the pursuer put his left foot into
a bag of salt which was lying on the pavement. As a result of so doing, he stumbled
and fell, initially trying to hold on to the unit but being forced to allow it to drop. As he fell, he twisted round and injured his back. His sight of the bag of salt was
obstructed by the unit once he and Marshall had lifted the unit from the back of
the van. Prior to that, his view of the bag of salt was unobstructed.
10. The pursuer felt immediate pain in his back and sat motionless for some time on
the wall at the inlet channel to recover. Having done so, he felt well enough to
carry on with his work and did so.
11. It had been several months since the pursuer's previous visit to Newtyle, though
he was generally familiar with the layout of the plant. He had however seen the
bag of salt there then and had mentioned its presence to Douglas Crozier, the defender's workshop superintendent in Dundee, but he did not do so by way of any formal complaint. Mr. Crozier did nothing about the bag.
12. The bag concerned was a 56lb. bag of salt for winter gritting purposes. The salt
was wrapped in clear plastic. The bag had burst prior to the pursuer putting his
foot into it. The bag plus its contents was about one foot long by eight to ten
inches wide. It was located in the middle of the pavement, about two feet from the
kerb and about four feet from the rear of the van driven by the pursuer. It lay
directly in the path of the route the pursuer intended to take to the precise place
where he wanted to erect the unit.
13. The bag of salt had been in the position in which it was on the day of the
pursuer's accident for several months.
14. Mr. Blair Mullen, the defender's chargehand sewage operative, whose work
comprised the maintenance of a number of sewage treatment plants, including
Newtyle, generally visited the plant at Newtyle for some period each working
day.
15. No complaint had ever been made to said Mullen about the location of the bag
of salt.
16. Normally, a pile of salt would be kept at the right hand front corner of the control
room at Newtyle. Mr. Mullen would put it there. He had not moved it.
17. At some time during 1996, independent contractors had carried out work at the
Newtyle plant.
18. The bag could easily have been moved by one person, including the pursuer, had
he seen it, which he did not.
19. On the day following the accident, the pursuer reported the occurrence to said
Crozier who thereafter completed the Accident Report Form, No. 6/2/2 of process
and the report in the defender's Accident Book, the relevant extract from which is
No. 6/2/3 of process. The pursuer did not however report the time of the accident
as 11.30 a.m. nor did he refer to the object over which he had fallen as a sandbag.
20. Following the accident, the pursuer worked on for several days but was
experiencing increasing pain in his lumbar area. In particular, his back pain was
so severe after lying in bed asleep, that he had to roll out of bed on to his hands
and knees. He consulted his general practitioner and absented himself from work
on or about 10th. July, 1996.
21. The pursuer's general practitioner prescribed analgesics and eventually referred he pursuer to the physiotherapist at Carnoustie Health Centre. He had to wait several
weeks before receiving any physiotherapy. He then went twice a week for a period
and also treated his back condition with the use of a heat lamp, electrical
stimulation and ralgex type embrocation, but he continued to experience pain.
22. After six or seven weeks he returned to work under pressure from the defenders
to do so and before he was fit to do so.
23. His normal work involved standing, lifting heavy items and driving. He often
required to work in awkward positions wherein he would require to bend his
trunk or to stretch. He continued to suffer a dull pain in his lumbar spine. He
only coped with his work with difficulty and because a younger colleague
relieved him of most of his particularly heavy work.
24. He took early retirement because he felt unable to cope with his job on account
of the persisting back pain.
25. The pursuer had been examined on two occasions by Mr. N. W. Valentine, FRCS,
at Stracathro Hospital. He was first seen on 17th. April, 1997. On examination,
a reduction in trunk flexion and extension and left lateral movement was found.
The test for sciatica was equivocal. The diagnosis was of a torn muscle or
ligament in the lower back. He was continuing to suffer pain and a restriction
in his activities. He had mild pre-existing asymptomatic degenerative change to
his back and the injury had accelerated and exacerbated that change. On 29th.
January, 1998, Mr. Valentine found little change. He still found a limitation of
trunk movements. There was no indication of sciatica. It was Mr. Valentine's
opinion that the pursuer was left with a degree of permanent restriction of his
activities. There was no treatment, whether by operation or otherwise, which
would make any significant difference though it might be worth referring the
pursuer to the Pain Relief Clinic at Ninewells Hospital, Dundee, to see if more
effective methods of pain relief could be ascertained.
26. The pursuer had no prior medical history of back problems.
27. It was Mr. Valentine's opinion that the description of the accident, inducing as it
did a sudden, twisting motion, was consistent with the type of injury sustained
by the pursuer.
28. The pursuer would henceforth require to avoid heavy manual lifting or having to
work in awkward positions. He would be capable, indeed would benefit from
work involving light but regular movements.
29. The pursuer was off work on account of the accident and his ensuing injury from
10th. July until 30th. August, 1996, during which period he sustained net loss
of earnings of £150.53.
30. The pursuer was on the labour market with effect from 1st. July, 1998. There was
no immediate sign of alternative employment which he would be able to undertake given the permanent restrictions from which he suffered. The range of employment opportunities available to him was diminished. In particular, the range of jobs as an approved electrician, at which he could have expected to earn a net income in excess of £10,000 per annum was significantly restricted.
Finds in fact and law:-
1. That this court has jurisdiction to entertain this cause, based upon the domicile of
the defender.
2. The pursuer being the employee of the defender, there was a duty at common law
incumbent upon the defender to take reasonable care to provide and maintain for
him a safe work place. The pursuer did not suffer any accident as a consequence
of any failure on the part of the defender to obtemper said duty.
3. Newtyle Sewage Treatment Plant is a workplace for the purposes of the Workplace
(Health, Safety and Welfare) Regulations, 1992.
4. The route between the defender's van as parked by the pursuer at Newtyle plant on
1st. July, 1998 at about 10.00 a.m. and the inlet channel of the plant constituted a
traffic route for the purposes of said Regulations.
5. The bag of salt located on the pavement at Newtyle plant was on said traffic route.
It constituted both an obstruction and an article which may cause a person to trip
for the purposes of Paragraph 12(3) of said Regulations.
6. It would have been reasonably practicable to move the bag so that it did not
obstruct said traffic route and so that it did not constitute an article which may
cause a person to trip.
7. The pursuer did trip and sustain injury as a consequence of the presence of said bag.
8. The defender is the occupier of Newtyle Sewage Treatment Works and as such the
duties incumbent upon an occupier by virtue of Section 2 of the Occupiers Liability
(Scotland) Act, 1960, were incumbent upon the defender and required to be
observed quoad the pursuer on 1st. July, 1996 when he was entitled to be present
on these premises.
9. There was no agreement restricting, modifying or excluding the defender's duty of
care under Section 2 of the Occupiers' Liability (Scotland) Act, 1960/
10. Nothing about the premises or anything done to them by the defender constituted
a breach of the duty of care so imposed in such a way as to be causative of the
accident sustained by the pursuer on 1st. July, 1998.
11. The injury sustained by the pursuer in the accident on 1st. July, 1996 has had
the effect of causing him to sustain a degree of permanent restriction of movement such that the range of employment which would otherwise have been open to him on the labour market is significantly restricted. The nature of the injury was consistent with the described mechanism of the accident and therefore directly causally connected to the accident and the defenders' foresaid breach of statutory duty.
Finds in law:-
1. That the pursuer's accident and ensuing loss, injury and damage not having been
caused by any fault or negligence on the part of the defender at common law, the
pursuer is not entitled to reparation therefor.
2. That the pursuer's accident not having been caused by the defender's breach of the
duty imposed under section 2 of the Occupiers' Liability (Scotland) Act, 1960, the
pursuer is not entitled to reparation therefor.
3. The pursuer's accident having been caused by the defender's breach of Regulation
12(3) of the Workplace (Health, Safety and Welfare) Regulations, 1992, the pursuer
is entitled to reparation therefor.
4. A reasonable sum to effect such reparation, inclusive of interest to date, would be
£12,016. 55.
5. The pursuer being in breach of his duty of care to himself to keep a proper lookout
has materially contributed to said accident and his ensuing loss, injury and damage
and it would be reasonable to assess his contribution thereanent at 50%.
Accordingly, repels the first and second pleas-in-law for the pursuer; repels the first plea-in-law for the defender; sustains the third plea-in-law for the pursuer; sustains the second plea-in-law for the defender and assesses the pursuer's level of contributory fault at 50%; finds the pursuer entitled to reparation from the defender and that in the sum of SIX THOUSAND AND EIGHT POUNDS AND TWENTY EIGHT PENCE (£6008.28) STERLING, with interest thereon at the rate of eight per centum per annum from 30th. October, 1998 until payment; to that foregoing extent, sustains the fourth plea-in-law for the pursuer; reserves all questions of expenses arising from this process and appoints parties or their agents to be heard thereon and assigns
as a diet therefor.
NOTE
Relevant Statutory Provisions:
The Occupiers' Liability (Scotland) Act, 1960. Section 2:-
" (1) The care which an occupier of premises is required, by reason of his occupation
and control of the premises, to show towards a person entering thereon in
respect of dangers which are due to the state of the premises or to anything done
or omitted to be done on them and for which the occupier is in law responsible
shall, except in so far as he is entitled to and does extend, restrict, modify or
exclude by agreement his obligations towards that person, be such care as in all
the circumstances of the case is reasonable to see that that person will not suffer
injury or damage by reason of any such danger."
The Factories Act, 1961, Section 28:-
"(1) All floors, steps, stairs, passages and gangways shall, so far as is reasonably
practicable, be kept free from any obstruction likely to cause persons to slip."
Section 29:-
"(1) There shall, so far as is reasonably practicable, be provided and maintained safe
means of access to every place at which any person has at any time to work, and
every such place shall, so far as is reasonably practicable, be made and kept safe
for any person working there."
The Workplace (Health, Safety and Welfare) Regulations, 1992, Regulation 12(3):-
" So far as is reasonably practicable, every floor in a workplace and the surface of
every traffic route in a workplace shall be kept free from obstructions and from any
article or substance which may cause a person to slip, trip or fall."
Cases referred to in argument:-
1. Mains v. Uniroyal Engelbert Tyres Ltd. 1995 SLT 1115.
2. Neil v Greater Glasgow Health Board 1996 SLT 1260.
3. Harris v Grampian Pharmaceuticals - Sheriff A.L. Stewart Q.C., Dundee
12/11/97.
4. Erskine v Falcon Catering Equipment Ltd. 1997 SLT 856.
5. Hutchison v City of Dundee District Council - Lord Osborne, Outer House, 9/8/96.
6. McMillan v Lord Advocate 1991 SLT 150.
7. Porter v Strathclyde Regional Council 1991 SLT 446.
8. McLachlan v. D.B. Marshall (Newbridge) Ltd. 1992 SLT 131.
9. Gorman v McLaren Building Services Ltd. 1989 SLT 365
10. McCarvel v Strathclyde Fire Brigade 1997 RepLR (Quantum) 2
11. Fraser v Greater Gasgow Health Board 1997 SLT 554
12. O'Neill v British Coal Corporation 1991 SLT 367
13. Meek v Burtons Gold Medal Biscuits Ltd. 1989 SLT 338.
14. Bruce v Ailsa Vacuum Extraction Ltd. 1987 SLT 464.
15. McNee v G.R. Stein & Co. Ltd. 1981 SLT (Nts) 31.
16. Ferguson v Strathclyde Regional Council 1981 SLT (Nts) 103
17. Harrison v R.B. Tennent Ltd. 1992 SLT 1060.
The pursuer sought reparation following an accident on 1st. July, 1996, in the course of his employment with the defenders as an approved electrician. On that date he went with a workmate, Raymond Marshall, who was employed as a fitter's mate, and who was accordingly the junior partner in this enterprise, to Newtyle Sewage Treatment Plant, some twelve miles from Dundee, to install and erect new electrical control panels which would apparently regulate some part of the operation of the inlet channel at the plant, the precise detail of what was intended being of no relevance to the cause. The pursuer had been instructed to build the control panels required and to work out how best they could be installed at the plant, all work which was regarded as within his remit and capability. He was accordingly himself responsible for determining how the work would be executed. What he required was the control panels at a height of approximately five to six feet above ground level. The two boxes containing the two panels were about a foot square by about three inches deep and so to get them where he wanted them, the pursuer had to mount them on a support frame. For this, he used a material called "unistrut" which is made of glass fibre and is strong and flexible, but lightweight. In the workshops in Dundee, he connected the control panels in their protective boxes to the frame and when this was ready, organised a Ford Escort van belonging to the defenders plus Mr. Marshall, with whom he worked from time to time but not on any regular basis, to take the unit to Newtyle to fit it. The combined unit was about five to six feet long and four feet wide and about a foot deep. It required to be tied to the roof of the van. The pursuer drove the van. On arrival at Newtyle, he reversed the van to the edge of a pavement which ran adjacent to the inlet channel along to the control room, with the back of the van about two feet from the kerb. The unit was to be located at the inlet channel which was about six feet away across the pavement and on the far side of a small stone dyke. All this is well depicted in a book of some 14 photographs (6/2/8 of process) which displays the control room block and the location of the inlet channels and the adjacent pavement. As luck would have it, on the pavement and in the direct line of the pursuer's route, if a journey of some eight feet can be so categorised, was a bag of salt intended for winter gritting purposes. The bag was a 56lb. bag, with the salt being contained within clear plastic. The bag was on the pavement about two feet from the kerb. For reasons which remain incomprehensible to me, the pursuer and Mr. Marshall apparently failed to see this bag. I heard no evidence which would suggest that there was any obstruction of their vision as they approached in the van and I heard no evidence which suggested that there was anything other than bright daylight on the day of the accident. I do not understand why the pursuer did not see the bag of salt as he drove up. I do not understand how he failed to see the bag of salt when he emerged from the van and walked round it to begin to untie the unit, for the bag was then no more than four feet away from him and in his direct path and, had he considered the route he would have to traverse while carrying the unit, and I would have thought he would have wanted to register the precise whereabouts of the kerb apart from anything else, he could not have failed to see the bag. In any event, I am satisfied on his evidence that he did not see the bag but I have no doubt that, if he had been taking reasonable care for his own safety, he ought to have seen the bag and he was accordingly, to a significant extent, the author of his own misfortune.
That was the general background against which the pursuer sought reparation on three grounds, namely a breach of duty by the defenders as his employers at common law by failing to provide a safe place for him to work at by allowing the bag to be where it was, against a background of it being averred to have been there for months, the evidence in relation to which came from the pursuer and I accept; a breach of the duty as occupier incumbent upon the defenders in terms of Section 2 of the Occupiers' Liability (Scotland) Act, 1960, it being alleged that the bag was a danger to persons entering upon the premises; and a breach of Paragraph 12(3) of the Workplace (Health, Safety and Welfare) Regulations, 1992 which require employers, so far as reasonably practicable, to keep traffic routes in workplaces free from obstructions or from any article which may cause a person to slip, trip or fall, it being averred that the pavement where the bag was was a traffic route and that the bag was either an obstruction or an article which may cause a person to trip - given that it had caused a person to trip and fall.
I heard evidence from the pursuer, from Raymond Marshall and from Mr. Mark Valentine, FRCS, a consultant orthopaedic surgeon at Stracathro Hospital. I found all three to be credible and reliable and it would be wrong for me not to record that I found Mr. Valentine's evidence helpful, considered and straightforward. I heard evidence from the defenders' witnesses, Blair Mullen and Douglas Crozier. Again, substantially, I regarded both of these witnesses as credible, though I have some minor reservations about Mr. Crozier's reliability. There was little in the way of factual dispute between the parties at the end of the day which was material to my determination. The pursuer claimed to have told Mr. Crozier about four months before the accident about the presence of the bag on the pavement at the inlet channel at Newtyle and that it was a potential hazard. Mr. Crozier denied ever having been told any such thing. I suspect the truth lies somewhere in between, that the pursuer mentioned the bag in passing to Mr. Crozier but has elevated his description of that conversation to a warning of a hazard for reasons which are, I suppose, understandable in context. Further, it was Mr. Crozier's position that, when the pursuer reported the accident to him the following morning, he asked the pursuer if he had checked his route, to which the pursuer had replied affirmatively. He then asked him how he had failed to see the bag and he claimed that the pursuer had said that he had seen the bag. That was not the pursuer's position. I do not believe that the pursuer was so stupid as to have seen the bag and still put his foot into it and accordingly I do not believe that he would the following day have admitted to so doing. There may have been some kind of misunderstanding. Mr. Crozier was the author of the accident report form, No. 6/2/2 of process and the entry in the Accident Book, an extract of which is lodged as No. 6/2/3 of process. The former is in two respects inaccurate, as to the time of the accident and in its reference to a "sandbag." The latter is so brief as to be worthless as a record of the accident. I suspect this reflects inattention at the time on Mr. Crozier's part stemming from the mistaken belief both he and the pursuer at that time shared that the pursuer had suffered a minor injury which would not involve him in time off his work. In any event, given my conclusions that the pursuer did not but should have seen the bag, these conflicts in the evidence were not material.
This was the first occasion on which I had encountered any agent actually making use of the provisions of Rule 29.14 of the Ordinary Cause Rules 1993. The procedure requires, after proof has been allowed, that a notice be lodged specifying such facts relating to an issue averred in the pleadings as may be specified in the notice and that, if the opponent wishes to avoid these facts being deemed to be admitted, then a notice of non-admission has to be lodged within 21 days of intimation. The defenders' agent may want to reflect on the level of care demonstrated in her notice of non-admission since what she chose to do was admit some paragraphs of the Notice to Admit and dispute others. It is difficult, for example, to understand how it can ever have been conceived sensible to admit paragraph 10 while disputing paragraph 9, though I accept that the matter is compounded by the pursuer's agent's use of the expression, "the said," instead of his specifying clearly and fully each fact he sought to have admitted. Again in the light of the evidence led which I have accepted as to the location of the bag, the matter is at the end of the day academic, but it became clear, despite the terms of the Notice to Admit and the Notice of Non-Admission, that the parties were not agreed as to the location of the bag of salt which substantially caused this accident and, in other circumstances wherein the pursuer chose not to lead evidence on the hypothesis that he was in a position where he had what amounted to a deemed admission, it would have been arguable that the defender should have been precluded from leading evidence inconsistent with that state of affairs.
In any event, paragraphs 1, 3, 4, 6, 8, 10, 14 and 15 of the Notice to Admit were not disputed and the facts therein averred become evidence in the case. So far as concerns the merits, there are two significant concessions, namely that the route between the side of the van and the inlet channel is a traffic route for the purposes of Regulation 12 of the Workplace (Health, Safety and Welfare) Regulations, 1992 and that the bag of salt had been in position for more than a year. Of these, the first is the more significant as in my view, there was no good reason why if the bag constituted a difficulty, to use a neutral word for the moment to the pursuer as he undertook his employment, there was no good reason why he should not have moved it.
Mr. Bathgate made submissions at the close of the evidence pertinent to the three grounds upon which reparation was sought for the pursuer, but he recognised that it was really only under the provisions of Regulation 12(3) that he had any substantial prospect of success. He rehearsed the evidence, emphasising that the unit amounted to an awkward structure which while it was being carried plainly obstructed vision of what was on the ground. He maintained that there was no real issue about the mechanism of the accident but that it was critical to establish the location of the bag of salt, the length of time it had been at that location, what the defenders' knowledge of its presence was or ought to have been and, in relation to the pursuer's accident, what causal connection the presence of the bag had to the accident.
He pointed to the photographs helpfully prepared and lodged by the defenders. He pointed to the conjunction of testimony between the pursuer and Marshall as to where they had been and what they had been doing. The route if that is not too elaborate a word for all that was in contemplation lay across a pavement on which people would normally walk from the inlet channel to the control room. There was, I may say, precious little evidence to support that assertion, but then it was not disputed that the pavement was a traffic route. By the date of the accident, the bag had been there for a considerable period of time and the pursuer had complained about its existence to Crozier. Marshall confirmed that the bag had been there for a long time. The pursuer and his colleague were carrying a structure and were concentrating on the task in hand. He did not observe the obstruction. Its presence rendered the place where he had to work unsafe.
So far as the Occupiers' Liability (Scotland) Act ground was concerned, the bag of salt represented a danger which had existed for some time and its presence had been reported by the pursuer to Crozier. The hazard could and should have been moved to a safe storage area.
Mr. Bathgate was unable to direct me to any authority for the foregoing propositions, if they be propositions, but maintained that the accident occurred through what he described, according to my note, as "the defenders' breach of duty of care."
He then turned to what he clearly and rightly considered to be the more fruitful ground of Regulation 12(3) of the Workplace (Health, Safety and Welfare) Regulations, 1992. It was, he submitted, a matter of admission that the sewage plant was a workplace for the purposes of the Regulations. The pavement on which the bag had been located and where the accident thus occurred was admitted to be a "traffic route" for the purposes of the Regulations. The bag, on any view of the evidence, was either or both an obstruction or an article which may cause a person to trip or fall, for the purposes of the Regulations. It had had the effect of causing the pursuer to trip and fall. If the provision were mandatory, then it had been breached. The only qualification on that state of affairs was the presence of the qualifying phrase, "so far as is reasonably practicable."
Regulation 12(3) is, said Mr. Bathgate, the statutory successor to sections 28 and 29 of the Factories Act, 1961. I am not sure that it is that simple, but that submission is substantially true. Certainly the Regulations state that those sections are by them repealed. Both these now repealed sections included the phrase, "so far as is reasonably practicable." The effect of the inclusion of that phrase in such a statutory provision was to transfer the onus of proof to the defender to demonstrate that it was not reasonably practicable to prevent a breach of the provision. In this connection, Mr. Bathgate referred me to the Inner House decision of Mains v Uniroyal Engelbert Tyres Ltd., 1995 SLT 1115, and Lord Abernethy's decision in Neil v Greater Glasgow Health Board 1996 SLT 1260. He submitted that both these cases were authority for the proposition that all he had to do was establish a breach of the Regulation. He did not have to establish that what had occurred was foreseeable and the onus of proof rested upon the defenders to establish that it was not reasonably practicable to take action which would have prevented the accident and the associated breach of the Regulation.
Both cases concerned breaches of Section 29 of the Factories Act, 1961. It is to be observed that both section 29 and Regulation 12(3) contain the phrase "so far as is reasonably practicable" as a qualification on legislation the terms of which otherwise would impose an absolute duty. The Workplace (Health, Safety and Welfare) Regulations, 1992, repeal, inter alia, sections 28 and 29 of the Factories Act and, while it might be thought that Regulation 12(3) was more aptly to be associated with section 28 than section 29, the general approach of the draftsman in framing an absolute duty qualified by the expression, "so far as is reasonably practicable," is consistent. Subject to the admonitions of Lords Sutherland and Johnston in Mains about the need to read the terms of the particular provision with care and precision, the general principles enunciated by them in the Inner House in that case and, similarly, by Lord Abernethy in Neil, seem to me to applicable to the interpretation and effect of Regulation 12(3), namely, that no question of the pursuer being required to demonstrate that the accident and his related injury were reasonably foreseeable by the defenders arises and that, if on the evidence the breach of the Regulation is made out and the defenders do not put in issue the question of reasonable practicability, then there is no defence and the pursuer must succeed. I am fortified in the correctness of this analysis by the reference to the judgment of my colleague, Sheriff A.L. Stewart Q.C., in Harris v Grampian Pharmaceuticals, Dundee, 12/11/97, where he comes to the same conclusion. It is a matter of concession in the present case that the Newtyle Sewage Treatment Works is a workplace for the purposes of the Regulations and, given the width of the definition of "workplace" in Regulation 2(1), that was a concession sensibly made, and the Regulations apply to all workplaces with effect from 1st. January, 1996, so patently they apply to the Newtyle plant at 1st. July, 1996. It was further conceded that the pavement at the plant where the accident occurred was "a traffic route." "Traffic route" is defined in Regulation 2(1) as " a route for pedestrian traffic, vehicles or both and includes any stairs, staircase, fixed ladder, doorway, gateway, loading bay or ramp." The question is perhaps begged whether the rare use, as I understood the evidence, of the pavement at Newtyle for pedestrians was sufficient for it to attract the status of a route for pedestrian traffic - I particularly stress the word "traffic" which seems to me to carry the connotation of regular movements - but on the other hand, the definition would appear to be wide enough to encompass a hitherto unused fire escape. In any event, given the concession, I need not determine what a traffic route is beyond regarding it as established in this case that the locus of the accident was on one. There was some divergence of evidence between the pursuer and Marshall as to where precisely the bag of salt was at the material time. I preferred the evidence of the pursuer who, it seemed to me, had more reason to recall accurately where it was, though I do not regard the discrepancy as significant given that they were, at worst, about two feet apart in their respective locations of the bag and both had it on what would still be a traffic route.
The conjunction of the concession that the pavement was a traffic route and that the burst bag of salt was on the pavement at the material time leads me to the conclusion that there is a prima facie breach of Regulation 12(3) for, in my opinion, the bag of salt was both an obstruction, in that it obstructed an individual's otherwise uninterrupted progress along this pavement, of a traffic route in a workplace and, as history demonstrates, was an article which may cause a person to trip or fall. It did. In any event, no argument was advanced on behalf of the defenders that it was not such an obstruction or article. There were no averments and no evidence was led by the defenders to suggest that the removal of the burst bag of salt was not reasonably practicable and, in the light of the authorities to which I was referred, a determination in favour of the pursuer is inevitable. Furthermore, it is worth noting that the evidence of Mr. Mullen, who gave evidence for the defenders and who was employed by them as a chargehand sewage operative, made it clear that part of his function was the daily inspection of nine treatment plants including Newtyle, and so he knew or ought to have known of the presence of the bag of salt and could have removed it or arranged for its movement. His evidence would have circumvented any problem of foreseeability, if there were one, but I have already ruled that, in these circumstances, the issue of foreseeability on the defenders' part is not relevant.
For the sake of completeness, I should record that Mr. Bathgate also drew my attention to Paragraph 97 of the Approved Code of Practice issued by the Health and Safety Executive as an accompaniment to these Regulations. The precise status of the "Approved Code of Practice" is not clear to me from a consideration of the Regulations nor from any evidence led, but rather like the Highway Code with a road user, it does appear to contain material germane to a prudent and careful employer.
While Mr. Bathgate did not say so in terms, as he next turned to deal with the issue of contributory negligence, I have rather assumed that he elected not to press the pursuer's grounds of fault at common law nor under the Occupiers' Liability (Scotland) Act, 1960. I think that was a wise decision but, for the avoidance of doubt, I record briefly that on the evidence neither case would succeed on the basis that I remain at a loss to understand how the pursuer could fail to see a 56lb. bag of salt and, had he done so, as he should have done, he and his colleague should either have moved it or avoided it, either of which courses would have involved little effort on their part. Had they moved or avoided the bag as they should, the accident and the pursuer's ensuing loss, injury and damage would not have occurred.
Turning then to the question of contributory fault in relation to the established breach of Regulation 12(3), it was Mr. Bathgate's submission that the pursuer was engaged in moving an awkward piece of equipment which was top heavy. He had explained why it was better to construct the unit in the workshop so that the task at the treatment plant should have been restricted to the relatively simple and brief task of installation. It was accepted that the pursuer was engaged in a task within his capacity and routine and it would seem to me, given the general nature of his employment, that the task of erecting these control panels ought to have been well within his capacity to plan and execute, without supervision. There was nothing technically difficult about moving a bag of salt and, had he seen the bag as he should have, all he had to do was move it out the way. He had a duty to himself and Marshall to keep a proper lookout which would mean looking at the route by which he proposed to get the unit to the wall beside the inlet channel before he picked up the unit, if for no other reason than to be clear about where the kerb was. I remain at a loss to understand how he failed to see the bag. Its dimensions were about one foot by 8-10 inches and several inches thick. He ought to have seen it as he drove up in the van for there was no obstruction to his vision. He ought to have seen it when he got out the van for it was there more or less at the rear of the van. He ought to have checked the proposed route. Mr. Bathgate accepted that whether there had been contributory fault on the pursuer's part and, if so, to what extent, were jury questions but he nonetheless directed me to the decisions in Erskine v Falcon Catering Equipment Ltd. 1997 SLT 856 and Hutchison v City of Dundee District Council, a decision of Lord Osborne of 9th. August, 1996, as illustrative of the level of contribution I might consider appropriate. I did not find the first case to be of any assistance in the absence of any discussion as to how the figure for the element was derived. I was however significantly assisted by a consideration of Lord Osborne's approach to the issue in the latter case and, not least, by the terms of a reference incorporated therein from a judgment of Lord McCluskey in a case called Preston v Grampian Health Board which was unreported but the date of decision was 27/11/87, wherein he had said, " Whether or not she (the pursuer) had any reason to foresee that the article in question (part of a vacuum cleaner) would be there, she had, in my opinion, a duty to take reasonable care for her own safety. That included a duty to keep a proper lookout." Lord McCluskey made a finding of 50% contributory negligence. Mr. Bathgate submitted that, esto there was to be any finding of contribution in the present case, it should be no more than the 20% held by Lord Osborne, but I am quite clear firstly that the failure of the defenders in the Hutchison case was much more significant than in the present case, they having been found guilty of failing to provide adequate lighting and having an unsafe system for the storage of parts removed from vehicles, thus being in breach of both common law and statutory duties, and that the pursuer was much less culpable, tripping over an unexpected object substantially in darkness, than the present pursuer. Mrs. Dyckoff for the defenders pointed to the pursuer's evidence of prior complaint as indicating his having knowledge of the presence of the bag but I place little store in that, given that the evidence was of infrequent visits by him to Newtyle, the most recent having been about four months prior to the accident, and about his regularly visiting other plants. She further submitted, however, that the pursuer knew that he was about to move a large, heavy and unwieldy object and there was an onus upon him connected with his duty to take reasonable care for his own safety
I now turn to quantum. In accordance with the Sheriff Principal's Practice Note, I required Mr. Bathgate to furnish the court with a schedule of damages which he duly did. He assessed solatium at £5,500. Past wage loss was agreed at £150.53. He assessed the pursuer's claim for being disadvantaged in the labour market at £10,000. All these figures were exclusive of interest. In his submissions he elaborated on his assessment of solatium, pointing out that the pursuer had suffered a limiting injury which had produced immediate pain, followed by a level of pain and restriction that had grown progressively worse. He had been off work for two months and, on his return, had found that he had had to avoid heavy work for two months and conceded that his workmates had carried him but that their willingness to do so had all but evaporated. His hobbies, especially gardening and the restoration of motor cycles, had been prejudiced and he found both of these now difficult, because of the heavy work involved, and no longer enjoyable. I heard evidence from the pursuer and Mr. Valentine on these matters, which evidence went substantially unchallenged. The injury was permanent. It was not conducive to precise diagnosis but it was, on the balance of probability, likely to be a torn ligament in the lower back, associated with a disc, which could not be surgically repaired and which had not healed itself despite appropriate treatment. Henceforth, the pursuer would have to avoid trunk bending and heavy manual tasks. His back was at significantly increased risk of further traumatic injury if he did not. The ligamentous tear was typical of an injury sustained by a sudden twisting motion and so, on the balance of probability, was causally connected to the accident. There were indications of pre-existing degenerative changes in the pursuer's back but nothing abnormal for his age, the changes had been hitherto asymptomatic and might have remained so for the rest of his life and certainly for at least another five years. The pursuer had now decided to take up an offer of early retirement and his continuing incapacity which rendered him unfit to carry out his work, though he had, in a kind of way managed to date, was the significant factor in reaching the conclusion to go. Mr. Bathgate referred me to McLachlan v D.B. Marshall (Newbridge) Ltd. 1992 SLT 131; Gorman v McLaren Building Services Ltd 1989 SLT 365 and McCarvel v Strathclyde Fire Brigade 1997 RepLr (Quantum) 2 from which he deduced that the appropriate range for solatium was £5,000 to £5,500. The first of these cases concerned a 24 year old female process worker, who is patently much younger than the present pursuer, who suffered an unspecified back injury in the course of her employment in a chicken processing plant, but whose injury was significantly less severe than that of the pursuer and who was able to continue with her work though she had been advised to avoid heavy lifting. The uprated value of her claim would be £5,440. In the second case, a 20 year old building worker sustained injury which rendered him unfit to continue that kind of work involving heavy lifting but otherwise presented little in the way of restriction in his lifestyle. Again he was much younger but the injury and consequences appear less severe. The award of solatium would have been £4,000 which uprated would be £5,600. The third case is particularly interesting as it involved a 44 year old who was now only fit for light work and whose previously asymptomatic back condition had now been activated. This case also has the benefit of being recent. Solatium of £5,000 was awarded, all attributable to the past. Mrs. Dyckoff, for the defenders, referred me to Fraser v Greater Glasgow Health Board 1997 SLT 554. In that case, the pursuer, a 40 year old nurse, had "an old back problem." The diagnosis was a strain of her lumbar spinal muscles. Lord McLean proceeded on the basis that the pursuer w
Past loss of earnings of £150.53 was agreed and it was not disputed that that should bear interest at 8%. Given that the precise date from which interest should run was not explored, I will restrict the period to two years and round off this element of loss, inclusive of interest, at £175.
The final element of claim was an award in respect that the pursuer was now said to be at a disadvantage on the labour market consequent upon the continuing restrictions. As Mr. Bathgate submitted, having accepted early retirement, the pursuer was now on the labour market as a 50 year old approved electrician with a bad back. Mr. Bathgate referred me to O'Neill v British Coal Corporation 1991 SLT 367 and Meek v Burtons Gold medal Biscuits Ltd 1989 SLT 338 and, in the light of their content, submitted that a reasonable approach to this head of claim would be to award the equivalent of one year's loss of earnings. I regret I see no particular support for that approach in either of these decisions. In the former, the pursuer was a 37 year old miner, 40 by the date of the proof, who had suffered soft tissue injury caused by crushing in what Lord McCluskey described as "a terrifying accident." Lord McCluskey was satisfied on the medical evidence, as I am in the present case, that henceforth the pursuer would not be fit to carry out heavy work and, given his working history, was significantly impaired in his capacity to find alternative work. Again, that seems to me to be the situation here. The second case, it seems to me, was peculiar to its own facts which included conflicting medical information, but, again, the impression that I have was that Lord Prosser felt obliged at the end of the day simply to adopt a broad axe approach. Mr. Bathgate also referred me to Hill v Wilson 1998 RepLR 9 and to the discussion therein of the nature of a loss of employability award. However, I was offered no evidence about the prospect of the pursuer being able to obtain light work but it would be unusual for someone to be able to work as an electrician without also being able to get into awkward positions, so it is reasonable to conclude, on a balance of probability, that the pursuer is unlikely to regain full time employment as an electrician. At 50, he could have expected to work at least another ten years and there is no evidence on which I could conclude that his asymptomatic back condition would have affected his ability to work, so that in ordinary circumstances a multiplier of five would arguably be the minimum applicable to future loss of or diminution in earnings if a multiplier/multiplicand approach had been adopted. The pursuer's net annual earnings prior to his cessation of employment appear to have been about £11,000 per annum. There is no evidence about what the pursuer might be able to earn in light employment and, like Lords McCluskey and Prosser, I am accordingly constrained to take a broad axe approach.
Mrs. Dyckoff in her submission as to the proper assessment of a loss of employability award directed me to Bruce v Ailsa Vacuum Extraction Ltd 1987 SLT 464; McNee v G.R. Stein & Co Ltd. 1981 SLT (Nts) 31; Ferguson v Strathclyde Regional Council 1981 SLT (Nts) 103 and Harrison v R.B. Tennent Ltd. 1992 SLT 1060. Of these cases, the only one of assistance to the present was the judgment of Lord Cameron of Lochbroom in Harrison and, though he had some evidence on which to reach the conclusion he did, even he acknowledged that a broad approach was inevitable. The pursuer in that case was a 45 year old burner in the steel industry who suffered an injury similar to the present pursuer diagnosed as a ligamentous muscular strain of the lumbar region. He was, like the present pursuer, struggling to carry out his pre-accident work. There was evidence of a likelihood that he would be re-allocated to lighter duties which would involve a drop in earning s of about £2,500 per annum. On that basis, Lord Cameron made an award under this head of £7,500 which he related to three years diminution. In the present case, the pursuer was a more skilled tradesman than a burner and more likely to have been in demand, had he been fully fit, but I have no evidence as to what he might be able to earn in light employment. Having regard to the exigencies of life and the factors to which I have already referred, I consider an award of £6,000 would be reasonable under this head. The total award of damages would therefore be £12,016.55. Subject to the finding of 50% contribution, I shall grant decree for £6,008.28, with interest at 8% from 2nd. November, 1998 until payment.
For the purposes of Section 15 of the Social Security (Recovery of Benefits) Act, 1997, I hereby specify that the compensation for loss of earnings during the relevant period amounts to £150.53. No award is made under any other head referred to in Schedule 2 of said Act.
I shall assign a hearing for consideration of all issued relative to expenses arising herefrom.
© 1998 Crown Copyright