Scottish Sheriff Court Decisions

Act: Miss Jan McCall, advocate, instructed by Lefevre Litigation, Aberdeen

Aberdeen: 6^th January 2005

The sheriff principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutor of the sheriff dated 15 September 2004; finds the pursuer liable to the defenders in the expenses of the appeal and allows an account thereof to be given in and remits the same, when lodged, to the auditor of court to tax and to report; quoad ultra remits the cause to the sheriff to proceed as accords.

Note

[3] The pursuer lodged a motion for leave to appeal against the sheriff's interlocutor dated 15 September 2004, and on 11 October 2004 he granted leave to appeal. He subsequently prepared a further helpful note in which he concluded:

[4] Before I turn to the pursuer's averments in the present case, it may be helpful to review the authorities to which I was referred during the hearing of the appeal. (In passing, I observe that I was referred to the reports of all four cases in Scots Law Times. Three of them are in fact reported in Session Cases, and it is to these reports that the court should be referred in preference to the reports in Scots Law Times). In Pompa's Trustees v Magistrates of Edinburgh 1942 SC 119 the pursuers raised an action against the defenders for the recovery of losses alleged to have been sustained by them as a result of an attack upon their premises by a riotous mob on 10 June 1940. The details of the case are not important. What is important is the well known passage in the judgement of Lord Justice Clerk Cooper at page 125 where his Lordship stated:

[5] In Hynd v West Fife Co-operative Limited 1980 SLT 41 an apprentice butcher raised an action of damages against his employers in respect of an injury sustained to his hand while cleaning a bacon slicing machine in the course of his employment. His original case of fault was based on inadequate instruction and fault on the part of the defenders' manager in respect of inadequate supervision in relation to the cleaning operation. After the expiry of the triennium a minute of amendment was lodged by the pursuer, the effect of which was to introduce a new case of fault based on defective system. His motion to allow the minute to be received and answered was opposed by the defenders who argued that the case set out in the minute of amendment constituted an entirely new basis of case which was by then time-barred. The Lord Ordinary allowed the motion, and the defenders' reclaiming motion was refused by the First Division. In the opinion of the court consideration was given to the question whether the passage which I have just quoted from Pompa's Trustees was directed, on the one hand, to the question of competency or whether, on the other hand, it did no more than set out general principles to which the court would have regard when deciding whether to exercise its wide discretionary power to allow amendment or not. It appears from the opinion of the court at pages 42/3 that the First Division preferred the latter approach. At page 43 the opinion continued:

[6] In Greenhorn v J Smart & Co (Contractors) Limited 1979 SC 427 the pursuer in an action of damages in respect of personal injuries allegedly sustained in the course of his employment sought almost five years after the accident to amend his pleadings. The amendment which he proposed was substantial and changed not only the factual basis of the accident but also the alleged breaches of duty by the defenders. In both accounts of the accident the pursuer fell from a ladder. In the original averments it was said that he had fallen because a basin of stone chips which he had been carrying up the ladder had over-balanced causing him to fall. In the amended version it was said that he had fallen because the ladder had suddenly moved causing him to fall to the ground. His original case of fault had been based on the common law duty to provide a safe system of working. The amended case was based on the defenders' duty to provide a safe working place and access thereto and on an alleged breach of the Construction (Working Places) Regulations 1966. As a result of an error in procedure the amendment was in fact allowed and the true issue which it raised was only properly focused in a subsequent procedure roll discussion of the defenders' plea-in-law to the effect that the averments added by amendment were time-barred in terms of section 17 of the Prescription and Limitation (Scotland) Act 1973 with the result that they should not be admitted to probation and the action should be dismissed. This plea was sustained by the Lord Ordinary and the pursuer's reclaiming motion was refused by the First Division. In the opinion of the court at pages 431/2 it was stated:

[7] In Cork v Greater Glasgow Health Board 1997 SC 321 a nurse raised an action of damages in respect of personal injuries sustained by him when he was lifting a patient in the course of his employment. He averred that he was instructed by a nursing sister to use a hoist to life the patient from his bed onto a commode, and that during the course of the lift the patient fell out of the hoist causing the pursuer to try and catch him, thereby causing him injury. The grounds of fault in the action in its original form were that there was an unsafe system of work. Shortly before the first diet of proof the pursuer lodged a minute of amendment in which he sought to amend the description of the circumstances of the accident and to amend his grounds of fault by averring that the defenders had not provided him with safe work equipment. The Lord Ordinary refused to allow the minute of amendment on the ground, inter alia, that it was time-barred in that it involved a reformulation of the grounds of fault and the substitution of a wholly different allegation as to the nature of the injuries sustained by the pursuer. The latter's reclaiming motion was allowed by the First Division. In the opinion of the court it was said at page 324:

The court then considered the details of the pursuer's pleadings and continued:

[8] The court went on at page 325 to consider the basis upon which an appeal court may interfere in a case of this kind. It was there stated:

Having considered certain other matters, the court concluded at page 326:

In the result the amendment was allowed, the court being satisfied that the proposed amendments were necessary to focus the true issue between the parties.

[9] In the present case the pursuer's original version of the accident appeared in article 2 of the condescendence. There he averred that the defenders' manager instructed the pursuer's supervisor to have some Flemish Eyes made up. It was said that a Flemish Eye is a length of wire cable with one end of the cable made in the shape of an eye, and that the steel rope involved consisted of several strands of steel wire, measured approximately 30 feet in length and was approximately 12 inches in diameter. It was averred that the supervisor instructed the pursuer, a man named Darren and two others to assist him. It was averred that the pursuer had never previously been involved in the construction of a Flemish Eye. It was averred that the Flemish Eye was made using a clamping machine and that, after it had been formed, the supervisor instructed the pursuer and one of the other men to push a strand of steel wire through the eye and pass it to Darren which they duly did. It was said that Darren had confirmed that he had taken the strain and that the supervisor had then instructed the pursuer and the other man to stand back. The pursuer averred that he had then stood clear but that Darren had failed to retain hold of the strand of wire which had ricocheted towards the pursuer and had struck him on the right hand side of his head. The pursuer thereafter referred to certain regulations in terms of which the defenders were under a duty to make a suitable and sufficient assessment of the risk to health and safety to which their employees were exposed whilst at work, and it was said that, had such an assessment been carried out, it would have disclosed the risk to an employee such as the pursuer sustaining loss, injury and damage as occurred, and in particular it would have revealed the risk of the employee who had been passed the strand of wire (on this occasion Darren) letting go of the wire or otherwise letting it slip from his grasp, as occurred. Referring to the defenders' averments in answer, the pursuer admitted, inter alia, that in order to form the Flemish Eye the wire was held in a vice bolted to the ground. But there were no other references in article 2 to the clamping machine (as it was described by the pursuer) or vice (as it was described by the defenders).

[10] In article 3 of the condescendence the pursuer averred that the accident was caused by the fault and negligence of Darren in respect of whose actions the defenders were vicariously liable. It was said in short that Darren in the exercise of reasonable care had been under a duty to retain hold of the strand of wire and not to release his grasp of it until it was safe to do so. It was further said that he had failed in this duty and by reason of his failure had caused the pursuer's injury.

[11] In article 4 of the condescendence it was said that the accident had been caused by the fault and negligence of the defenders themselves and that they had failed in their duties in the exercise of reasonable care to devise, institute and maintain a safe system of work and to take reasonable care to prevent the release and subsequent and uncontrolled movement of the steel wire strand.

[12] In article 5 the pursuer averred that the accident had been caused by the defenders' breach of the duties incumbent upon them under and in terms of regulation 5 of the Provision and Use of Work Equipment Regulations 1992 which provided as follows:

It was averred that these regulations defined "suitable" as meaning suitable in any respect which it was reasonably foreseeable would affect the health or safety of any person. It was said that the defenders had failed to ensure that work equipment, namely the steel wire strand, was used under conditions for which it was suitable and in particular that it would not affect the health of employees such as the pursuer. Reference was then made back to article 2 of the condescendence.

[13] Finally, in article 6 the pursuer averred that the accident had been caused by the defenders' breach of the duties incumbent upon them in terms of regulation 4 of the Manual Handling Operations Regulations 1992. This regulation provided: "Each employer shall (a) so far as reasonably practical, avoid the need for their employees to undertake any manual handling operations at work which involves a risk of their being injured". It was said that the operation upon which the pursuer was engaged was a manual handling operation and involved the risk of his being injured and further that the defenders could have avoided the need for him to undertake such a manual handling operation at work. It was then said that, esto the need for the pursuer to undertake such an operation at work could not have been avoided (which was denied), it was the defenders' duty to comply with regulation 4(1)(b) which required the defenders, in short, to make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them and to take appropriate steps to reduce the risk of injury to their employees arising out of their undertaking any such manual handling operations to the lowest level reasonably practicable. The pursuer averred that, esto they had carried out a risk assessment, the defenders had not taken appropriate steps to reduce the risk of injury to their employees arising from the task of constructing Flemish Eyes to the lowest level reasonably practicable.

[14] In his minute of amendment the pursuer sought to amend article 2 in various respects. He proposed various alterations to his narrative of how the accident occurred. But perhaps significantly the only additional references to the clamping machine occurred in a passage which he proposed should be inserted after his original reference to the machine as follows:

[15] In his minute of amendment the pursuer went on to propose certain further alterations to article 2. It was now said that the pursuer and his fellow employee had held the rope (meaning presumably the strand) with both hands at about chest height and had pushed it through the loop and that Darren (now identified as Ross) had taken hold of it and had confirmed that he had taken the strain. It was said that the rope had been under tension and that if released it would have sprung back to its straight position. Further on, the pursuer proposed to add averments to the effect that a risk assessment carried out by the defenders shortly before the accident had identified a risk of the wire springing back and striking body parts of employees whilst forming Flemish Eyes on wire rope. It was now said that after the accident a Safety Preventative Actions Form had been completed by the defenders in which it had been stated inter alia that "...... employees should ensure that they have a secure grip of the wire so it does not strike back" and that "As this can be difficult it is wise to have more than one person carrying out the job .....".

[16] In his minute of amendment the pursuer proposed that the common law case of fault against Darren (now named Ross) previously in article 3 should be translated in an expanded version to article 5 and that the existing article 5 should become article 3. For the reference to regulation 5 of the Provision and Use of Work Equipment Regulations 1992 it was proposed that there should be substituted a reference to regulations 4 and 20 of the Provision and Use of Work Equipment Regulations 1998. The provisions of paragraphs (1), (2) and (3) of regulation 4 were said to be identical to those of the earlier regulation 5 (see paragraph [12] above). Regulation 4(4) was said to provide: "In this regulation 'suitable' means suitable in any respect which it is reasonably foreseeable will affect the health and safety of any person".

[17] The pursuer then proposed in his minute of amendment that a further passage should be inserted into article 3. This is the passage which was rejected by the sheriff, and it reads as follows:

[18] In his minute of amendment the pursuer went on to propose that in article 4 the common law case of fault against the defenders based on their alleged failure to devise a safe system of work should be deleted and that the case previously in article 6 under the Manual Handling Operations Regulations 1992 should be translated to article 4. Various other minor amendments to this particular case were proposed, the details of which need not be noticed here.

[19] In the proposed new article 5 there were the same averments as before to the effect that Darren (now named Ross) had been under a duty to retain hold of the strand of wire and not to release it until it was safe to do so. In addition it was said that, esto he could not keep hold of it and it slipped from his grasp, it was his duty to take reasonable care to shout a warning to his fellow employees that the rope was slipping. It was said that he had failed in this duty too.

[20] Finally in his minute of amendment the pursuer proposed certain other alterations, including a revised version of the injuries sustained by him in the accident and their subsequent effect upon him. For present purposes it is unnecessary to rehearse these.

[22] In his note of appeal the pursuer asserted in the third place that the sheriff's decision was "manifestly inequitable". No attempt was made to specify the basis of this bald assertion. But it may be that counsel for the pursuer had this particular ground of appeal in mind when she referred me to the history of the case. She explained that the original adjustment period had expired on 7 April 2004 and that unfortunately the adjustments for the pursuer which had subsequently been incorporated in his minute of amendment had not become available until 9 April 2004. These adjustments had been intimated to the defenders' agents on 14 April 2004 with a request that they should agree to the adjustments being received although late. On 16 April 2004 the defenders' agents had responded that they would not agree to this request. At the continued options hearing on 21 April 2004 the pursuer's motion to allow his late adjustments had been refused by the sheriff, it having been argued for the defenders that, if they were allowed, it would not be possible to raise the issue of time-bar. This issue, so I understood counsel to maintain, would never have been amenable to argument at all if the pursuer's adjustments had been intimated to the defenders' agents one week earlier than they were, namely on 7 April 2004 rather than on 14 April 2004. But I did not understand counsel to suggest that this would be a reason for allowing the disputed amendment even if this did create a new case against the defenders.

[23] At the appeal the sole issue between the parties thus came to be whether or not the disputed passage in the pursuer's minute of amendment did indeed introduce a new case against the defenders and so was time-barred in terms of the 1973 Act. Counsel for the pursuer submitted that the conclusion of the sheriff to the effect that the passage in question had this effect was unreasonable with the result that the sheriff had erred in law and had not properly exercised his discretion so that the matter could be considered afresh on appeal. In this event it was submitted that the interlocutor of the sheriff dated 15 September 2004 should be recalled and an interlocutor pronounced allowing the record to be opened up and amended in terms of the pursuer's entire minute of amendment and the defenders' answers thereto, all as adjusted. Counsel drew attention to the four cases to which I have referred above and suggested that the pursuer had always had a case against the defenders on the basis that there had been an unsafe system of work at the time of the accident. In his pleadings in their unamended form the pursuer had averred that the defenders had failed to devise a safe system of work and also to prevent the release of the wire strand which had struck the pursuer. In addition, in terms of the original articles 5 and 6 there had been cases against the defenders based upon regulation 5 of the Provision and Use of Work Equipment Regulations 1992 and regulation 4 of the Manual Handing Operations Regulations 1992. Thus it had always been the case that the pursuer had been hit by the wire strand and that the defenders had failed to take appropriate steps to prevent the release and movement of the wire and further that work equipment (namely the wire) had been used in circumstances in which it was unsuitable and that there had been a breach of the Manual Handing Operations Regulations 1992. In the disputed passage in the pursuer's minute of amendment two new cases were made against the defender, namely (1) that the use of the clamping machine had been a breach of regulation 4 of the Provision and Use of Work Regulations 1998, and (2) that the operation involving the wire rope had been in breach of regulation 20 of the same Regulations. These two cases, so it was submitted, were simply an expansion of the pursuer's case based on the facts already averred by him and bore a relationship to the averments in the original article 4 to the effect that the defenders had been under a duty to prevent the release and subsequent movement of the wire strand. Thus the two cases which were sought to be introduced in the passage in question did not constitute a radical alteration to the pursuer's original case and so were not time-barred.

[25] In my opinion the submissions for the defenders are to be preferred. The critical question here is whether or not the amendments proposed by the pursuer in the passage in question did, or did not, in the words of Lord Justice Clerk Cooper in Pompa's Trustees "change the basis of his case". As was pointed out in the opinion of the court in Hynd v West Fife Co-operative, "Whether a particular case will fall on one side of the line or another is inevitably one of degree". Furthermore, to borrow the language in the opinion of the court in Cork v Greater Glasgow Health Board, "a wide range must be given to the (sheriff's) discretion in considering matters such as whether or not particular averments go to the root of the party's case". As already noted, the averments in the passage in question sought to introduce two new grounds of fault against the defenders. The first of these concerned the clamping machine, the use of which was said, in short, to have been in breach of regulation 4 of the 1998 Regulations. I have already drawn attention to the fact that the clamping machine merited only a passing reference in the pursuer's averments in their original form and until his adjustments were intimated to the defenders on 14 April 2004 they had had no hint that it was to be suggested that there was anything wrong with this machine such that they required to carry out any investigation in relation to it. In my opinion the sheriff was perfectly entitled to find that the alleged breach by the defenders of regulation 4 of the 1998 Regulations in relation to the clamping machine did indeed constitute a radical alteration by the pursuer to his original case.

[26] As for the supposed breach of regulation 20, this appears at first blush to relate only to the wire rope which is said to have been work equipment. The pursuer's complaint here is that it was not stabilised by clamping or otherwise and that this was necessary for purposes of health and safety. But, given his acceptance from the outset that the operation upon which he was engaged at the time of his accident involved the use of a clamping machine (or vice as the defenders called it) in which the wire rope was held in order to form the Flemish Eye, it is implicit in this new complaint that there must have been something wrong with the clamping machine as a means of stabilising the wire rope. So the position here was essentially the same as in the case of the new complaint under regulation 4. Once again it was being said for the first time that the clamping machine was inadequate to the task upon which the pursuer and his colleagues were engaged at the time of his accident. Accordingly the sheriff was in my opinion quite entitled to find too that the proposed case based upon a breach of regulation 20 constituted a radical alteration to the pursuer's original case.

[27] Upon the whole matter I am not persuaded that there was any error on the part of the sheriff in refusing to allow amendment of the pursuer's pleadings in terms of the aforementioned passage in his minute of amendment. I have therefore adhered to his interlocutor dated 15 September 2004.

[28] I did not understand there to be any dispute that the defenders should be found entitled to the expenses of the appeal in the event of success.