Scottish Sheriff Court Decisions

Act: Mr Neil Mackenzie, advocate, instructed by Golds, solicitors, Glasgow

Alt: (1) Mr Smith, solicitor, Simpson & Marwick, Aberdeen

(2) Miss Greig, solicitor, HBM Sayers, Glasgow

Aberdeen: 18^th December 2003

The sheriff principal, having resumed consideration of the cause, sustains the appeal and recalls the interlocutor of the sheriff dated 1^st October 2003; on the parties' joint motion, no.7/3 of process, allows the closed record to be opened up and amended in terms of the first defenders' minute of amendment, no. 18 of process, and the pursuer's answers, no.20 of process, all as adjusted, of new closes the record and finds the first defenders liable in the expenses of the amendment procedure; repels the first defenders' first plea in law and before answer (and under reservation of the first defenders' second plea in law) allows parties a proof of their respective averments on a date to be afterwards fixed by the sheriff; finds no expenses due to or by any party in respect of the appeal; quoad ultra remits the cause to the sheriff to proceed as accords.

Note

1. In this case the pursuer and appellant sues the defenders and respondents for payment of the sum of £100,000 to compensate him for the loss, injury and damage said to have been sustained by him as a result of an accident which occurred on 6^th June 1999. In what follows I shall refer to the pleadings as they were before the sheriff. It will be seen from the foregoing interlocutor that on the parties' joint motion (which was lodged after the hearing of the appeal) I have allowed certain amendments to be made. But none of these has had any bearing on the issue which was live before the sheriff or on the determination of this appeal, and I have therefore ignored them in the remainder of this note.
2. In article 2 of the condescendence the pursuer avers that in or around June 1999 Shell UK Exploration and Production intended to decommission one of their oil rigs, namely the Brent Spar. They instructed the first and second defenders to carry out the work, and the pursuer was employed by the second defenders for this purpose as a safety co-ordinator. He avers that some sludge tanks on the oil rig required to be cleaned by a process called stack cleaning which involved injecting water under high pressure into the sludge and pumping the liquefied sludge out of the sludge tanks.
3. In article 3 the pursuer avers that on 6^th June 1999 the pumps used to pump out the liquefied sludge in one of the tanks broke down. At that time a man named Alf Robertson was employed by the defenders (the pursuer does not say which) as On Site Project Manager. According to the pursuer, on the date in question Mr Robertson instructed the use of a mechanical excavator to clear the remaining sludge from the sludge tank. This excavator used electronic ignition to start its engine, and the pursuer avers that this form of ignition creates sparks when operated. These posed a risk of explosion in an atmosphere with a concentration of explosive gasses of 5% or more such as was present in the sludge tank. The pursuer avers that the mechanical excavator was lowered on the instruction of Mr Robertson into the sludge tank but that an employee of the company which had contracted to clean the tank using the mechanical excavator refused to operate it in the circumstances and advised the pursuer of this. The pursuer avers that he carried out an assessment of the risk and concluded that due, inter alia, to the high risk of explosion it was indeed unsafe to use the mechanical excavator. He advised Mr Robertson of this but the latter refused to accept the pursuer's risk assessment until he had practically tested it. To do this the pursuer required readings to be taken from the air space immediately above the surface of the sludge in the tank, and for this purpose someone had actually to go into the sludge tank to take the readings. The pursuer avers that Mr Robertson insisted upon the use of the mechanical excavator despite the fact that it would have been reasonably practicable to have halted the decommissioning operation until the pumps had been repaired.
4. In article 4 the pursuer avers that, but for Mr Robertson's insistence that the mechanical excavator be used, he would not have entered the sludge tank. He then goes on to aver how, in order to take the necessary readings, he required to be lowered in a basket by crane into the tank. He says that the basket was 1.4 metres high and was constructed of a metal frame with mesh inserts, that the only way he could gain access to it was by grabbing the handrails around the top rim and pulling himself into the basket, and that it had no access ladders either inside or outside. He avers that it would have been reasonably practicable for the defenders to have provided ladders on both the inside and the outside in order to allow safe access to and egress from the basket, and that, since his accident, a ladder has indeed been fitted to the outside of the basket. He avers that this was lowered, with himself inside, to a point just above the surface of the sludge in the tank. There he climbed out of the basket and onto the surface of the sludge and, having taken the necessary readings, he attempted to gain access to the basket. It was while he was pulling himself up into the basket (his feet having sunk into the sludge) that he was injured and in article 8 he avers, in short, that he felt pain in his lower abdomen with the result that he subsequently had to undergo surgery to effect a bilateral inguinal herniae repair. He says that he was absent from work from 27^th June 1999 to 4^th September 2000 and that he suffered pain and discomfort and also a loss of earnings.
5. The pursuer's common law case of fault is detailed in article 5, and there he avers in particular: "It was the defenders' duty to take reasonable care to avoid the necessity of the pursuer entering the sludge tank to take readings of gasses in the air space immediately above the surface of the sludge. It was the defenders' duty to take reasonable care to prevent the pursuer from entering the sludge tank. Esto it was safe for the pursuer to enter the sludge tank, which is denied, it was the defenders' duty to take reasonable care that their employees had a safe place from which to work. It was the defenders' duty to take reasonable care that the pursuer was able to access the basket safely, for example by providing steps or ladders on the inside and the outside of the basket ...... In each and all of their duties the defenders failed and by their failure caused the accident". Thus the pursuer is saying, in short, that the defenders were at fault (1) in necessitating his entry to the sludge tank in the first place, and (2) in not providing a safe means of access into and out of the basket once it was in the sludge tank. In response to these averments, the first defenders aver in their answer 5 that the pursuer "was under a duty to take reasonable care not to enter the tank using the basket ...... He was under a duty, when in the tank, to take reasonable care not to leave the basket. This duty was particularly incumbent upon him since he was well aware as to how difficult it was to re-enter the basket. He was under a duty to take reasonable care to request that another means be provided to allow him to carry out his work. In some, one or all of these duties the pursuer failed and by his failure caused or at least materially contributed to the said accident".
6. In articles 6 and 7 the pursuer avers that the defenders were in breach of certain safety regulations. For present purposes I do not think that it is necessary to set out these averments in detail.
7. In response to the pursuer's averments the first defenders tabled two preliminary pleas in the following terms:

1. The pursuer's averments anent the circumstances of this accident and the quantification on (sic) his loss being irrelevant et separatim lacking in specification should not be admitted to probation.
2. The pursuer's averments directed against the first defenders being irrelevant et separatim lacking in specification the action should be dismissed.

The second defenders tabled one preliminary plea in the following terms:

1. The averments of the pursuer being irrelevant et separatim lacking in specification the action should be dismissed with expenses.

1. At the continued options hearing on 13^th November 2002 the sheriff on the motion of the second defenders repelled their first plea-in-law and on the motion of the first defenders appointed parties to be heard on their first and second pleas-in-law at a debate on 10^th January 2003. In the event, on 10^th January 2003 the diet of debate was discharged by the sheriff on joint motion and the cause was sisted for negotiation. The sist was recalled by the sheriff on 11^th September 2003 and he continued the cause until 1^st October 2003 "for further procedure to be established". On 24^th September 2003 a motion was lodged on behalf of the first defenders to allow a minute of amendment to be received, to allow time for answers to be lodged by the other parties followed by a period for adjustment and thereafter to fix a hearing in terms of rule 18.3. This motion was evidently before the sheriff on 1^st October 2003 and the upshot of the hearing that day was that he pronounced an interlocutor in the following terms:

The sheriff, on 1^st defenders' motion allows minute of amendment for the 1^st defenders to be received and form no. 18 of process; allows the pursuer and 2^nd defenders seven days from this date to lodge answers thereto if so advised; assigns 14^th November 2003 at 11.00 am within the Sheriff Court House, Castle Street, Aberdeen as the diet of debate previously allowed and for a hearing on 1^st defenders' minute of amendment no. 18 of process and answers thereto.

It is this interlocutor which is the subject of the present appeal by the pursuer.

2. In his note of appeal the pursuer stated that at the hearing on 1^st October 2003 the parties were agreed that the cause ought to be appointed to a proof before answer but that the sheriff had appointed the cause to a debate despite the fact that all the parties had opposed this. The pursuer then asserted that there was no substantial matter of law to be considered in the present case to justify fixing a debate, and he submitted that the relevancy of his pleadings required to be considered after evidence and submissions at a proof before answer, that the cause was thus most suitable for proof before answer and that in all the circumstances the sheriff had erred in law in appointing the cause to a debate. The pursuer then proceeded to rehearse certain of his averments which are among those in the narrative of his pleadings which I have set out above.
3. In response to the note of appeal, the sheriff helpfully wrote a note explaining the reasons for his decision on 1^st October 2003 to appoint the cause to a debate. He did so essentially for two reasons. In the first place, he had in mind the manifest inconsistency between, on the one hand, the terms of the first defenders' first plea-in-law (which sought to exclude the pursuer's averments from probation) and, on the other hand, the fixing of a proof. And secondly, he evidently considered that there were preliminary matters of law which justified a debate. In his note he dealt with this last point in the following terms:

I had looked at the note lodged (by the first defenders) in terms of rule 22 and had well understood why the matter had already been remitted for debate. The first defenders by their plea and note had sought to exclude from probation a series of averments relating to why a management decision to enter a sludge tank had been made. They gave notice that they were going to argue that that decision had nothing to do with the alleged cause of the accident. The damage to the pursuer had been caused by having to clamber into a basket from such an insecure footing that "there was no safe way of entering the basket from the surface of the sludge". They had noted that there was no causal link between the cause of the damage and the said management decision to enter the tank. In my view the first defenders are entitled to seek to have excised from the ambit of matters going to proof such matters as are irrelevant ....... (It) was entirely appropriate that the issue highlighted by the first defenders' plea should be resolved. The minute of amendment received plainly did not touch on the issue of causal connection. It seemed to me that there was quite clearly more than one preliminary matter of law which justified a debate. The pursuer's case was based on two quite separate legal bases. It was not at all clear that the pursuer was pleading them as separate issues.

4. At the hearing of the appeal I heard submissions from counsel for the pursuer. Both the solicitors for the first and second defenders stated that they had no submissions to make in opposition to the appeal.
5. Counsel for the pursuer invited me to recall the interlocutor of the sheriff, to repel the first defenders' first plea-in-law and to remit the cause to the sheriff to fix a proof before answer under reservation of the first defenders' second plea-in-law. He stated that the basic point was that the parties had been agreed before the sheriff on the further procedure to be followed, and he submitted that in these circumstances, in the absence of strong reasons to depart from the consensual arrangement among the parties, the sheriff ought to have fixed a proof before answer. He acknowledged the inconsistency identified by the sheriff between reserving the first defenders' first plea-in-law and fixing a proof, and he argued that the sheriff should have resolved this by repelling the offending first plea-in-law ex proprio motu, so clearing the way for a proof before answer to be fixed. Counsel accepted that, although the hearing on 1^st October 2003 had not strictly been an options hearing, the sheriff had correctly approached the hearing that day as if it had been an options hearing. Counsel then proceeded to develop some interesting arguments about what a court should do when faced with an agreement among parties about the further procedure to be followed in an action. For present purposes I do not think it is necessary to consider these since it was accepted on the authority of Gracey v Sykes 1994 SCLR 909 that at the end of the day the question which the sheriff had to consider, namely whether or not there was "a substantial argument which, if successful, would lead to decree in favour of the pursuer or defender or would limit the method or the extent of the proof to a considerable degree (see Sheriff Principal Maguire at page 911), was a question of law, and not a matter for his discretion, with the result that it was open to an appellate court to consider whether or not the sheriff had erred in his decision on this question of law. Counsel submitted in short that in the present case there was no preliminary matter of law which justified a debate so that, having repelled the first defenders' first plea-in-law, the sheriff ought in terms of rule 9.12(3)(b) to have appointed the cause to a proof before answer under reservation of the first defenders' second plea-in-law. Counsel then examined the pleadings which I have rehearsed above. He suggested that the averments in articles 2, 3 and 4 of the condescendence were intended primarily to show the dangers inherent in the pursuer being lowered into the sludge tank and hence why he should not have had to do this. These pleadings, said counsel, raised the question whether the pursuer had relevantly averred a duty on the part of the defenders to take reasonable care to prevent the pursuer from entering the sludge tank. This, so it was submitted, was clearly a question to be determined at a proof before answer. Counsel then drew attention to the averments in the first defenders' answer 5 to the effect that the pursuer had been under a duty to take reasonable care not to enter the tank using the basket and had likewise been under a duty to take reasonable care to request that another means be provided to allow him to carry out his work. Counsel submitted that the averments in articles 2, 3 and 4, in addition to supporting the pursuer's own primary case (which was to be contrasted with his esto case about the deficiencies in the basket) were designed to meet these averments in answer 5 for the first defenders. In summary, said counsel, all the averments in the pleadings for the pursuer and the first defenders were tied together, and it would be necessary to examine the facts at a proof before any question of the relevancy of the pursuer's averments could be considered.
6. I have some sympathy for the sheriff since it appears from his note (which was not challenged on this point by counsel) that, despite the terms of rule 9.12(2), the solicitor who appeared before him on behalf of both the pursuer and the first defenders neither understood the inconsistency between allowing a proof and retaining the first defenders' first plea-in-law nor was in a position to explain to the sheriff why, despite the terms of the first defenders' rule 22 note and the motion which they had made at the continued options hearing on 13^th November 2002, the parties had agreed that there should after all be a proof before answer (and hence, by implication, that there was no preliminary matter of law which justified a debate). Having myself had the advantage not enjoyed by the sheriff of a full argument by counsel on the question, I am respectfully of the opinion that the sheriff did indeed err in law in finding "that there was quite clearly more than one preliminary matter of law which justified a debate". In this context it is I think important to notice that the pursuer's case at common law against the defenders is based on two separate grounds of fault. As already indicated, he says that the defenders were at fault in failing to avoid the necessity of his entering the sludge tank in the first place, and secondly in failing to provide a safe means of access in and out of the basket once it had been lowered, with him in it, into the sludge tank. Contrary to what is stated in paragraph 1 of the first defenders' rule 22 note, it is in my view perfectly clear from his pleadings that the pursuer is claiming that the accident was caused by the defenders' fault in both these respects and not merely by their fault in relation to the defects in the basket. As I read them, the averments in articles 2, 3 and 4 of the condescendence are all designed to explain the factual background against which the duties relied upon by the pursuer in article 5 came, according to him, to be incumbent upon the defenders. It seems to me that this is clearly a case in which much the most likely outcome of a debate would be that the sheriff would hold that there would have to be an inquiry into the pursuer's averments before a decision could be made on the question whether or not the first defenders' second plea in law should be sustained. In other words, it appears to me that this is a classic case for a proof before answer and that, leaving aside the problem created by the presence of the first defenders' first plea-in-law, the sheriff erred in law in the conclusion which he reached as expressed in his note. It might have been a different matter if the only ground of fault at common law alleged against the defenders had been the absence of adequate means of access into and out of the basket. In that event one could understand why the averments in articles 2, 3 and 4 about how the basket came to be in the sludge tank should be excluded from probation. But this is to overlook the pursuer's first ground of fault, the existence or otherwise of which is likely to depend upon the precise circumstances in which the pursuer came to enter the sludge tank in the first place.
7. It was common ground among all parties that I should find no expenses due to or by any of them in respect of the appeal.