Scottish Sheriff Court Decisions

(1) In this action of damages for personal injuries the pursuer alleges that he "slipped on oil" on a raised petrol pump platform in a service station in Willowbrae Road in Edinburgh. The accident is said to have occurred when the pursuer was filling his car with petrol on 20 October 2000. The action was raised on 16 October 2003. The sole ground of fault pled against the defenders was to the effect that the service station was a workplace within the meaning of the Workplace (Health Safety & Welfare) Regulations 1992 and that the defenders were in breach of regulation 12(3) thereof. That regulation provides: "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 and substance which may cause a person to slip, trip or fall".

(2) It is a reasonable assumption that the pursuer's advisors periled his case on the 1992 regulations because, as at October 2003 the preponderance of authority at least in the Sheriff Court was to the effect that the provisions of the regulations fell to be regarded as providing protection to all persons present in a "workplace" regardless of the capacity in which they were present: Banna v Delicato 1909 SLT (Sh Ct) 84; O'Brien v Duke of Argyle's Trustees 1909 SLT (Sh Ct) 88. Different views as to the extent of that protection emerged however and in Donaldson v Hayes Distribution Services and Others, in which the opinion of the Court was issued on 14 June 2005, the First Division of the Court of Session held that the regulations did not afford protection to persons present in a workplace in the capacity of visitors but provided protection only for workers. That decision confirmed views expressed in the Outer House in McCondiche v Mains Medical Centre [2004] RepLe4 and in the Sheriff Court in Layden v Aldi Gmb H & Co KG 2002 SLT (Sh Ct) 71.

(3) In anticipation of the emerging difficulty the pursuer lodged a minute of amendment on 5 August 2004. Paragraphs 1 - 4 sought to make certain amendments to the factual averments in article 2 of condescendence. Paragraphs 5 and 6 sought to delete the existing ground of fault and replace it, firstly with averments that the defenders were in breach of their duty as occupiers in terms of the Occupiers' Liability (Scotland) Act 1960 and secondly, with a separate case of fault directed against the Manageress in charge of the filling station.

(4) The defenders opposed allowance of the minute of amendment in so far as it related to alteration of the grounds of fault. They pointed out that the triennium expired on 20 October 2003 and the minute of amendment was not intimated until 3 August 2004. Founding on well known authority on the question of amendment outwith the triennium, and in particular on Dryburgh v National Coal Board 1962 SC 485 it was submitted that the course proposed by the pursuer constituted a complete change in the basis of his case which came too late. Prior to the expiry of the triennium the only case which had been pled was founded on an obligation under the 1992 regulations imposing strict liability. What was now proposed involved in relation to the Occupiers' Liability Act case a duty which was not strict, and further sought to introduce a wholly new common law vicarious liability case.

(5) The sheriff upheld the submissions and refused to allow the record to be amended in terms of paragraphs 5 and 6 of the pursuer's minute of amendment which contained the new grounds of fault. In dealing with a submission that whilst the minute of amendment sought to introduce a new legal basis of claim the factual basis remained the same she had this to say: "While it may be argued that the basic factual allegation remains the same, the nature and extent of that basic factual allegation, when examined, discloses no more than that on 20 October 2000 at about 5pm the pursuer was injured when filling his car with petrol by slipping on oil on a raised platform at the defenders' premises. Doubtless the reason the nature and the extent of the averments are so restricted is that on the statutory case pled the liability imposed on the defenders is strict. Accordingly it is enough for the pursuer to prove the accident occurred where and when they allege as a result of the pursuer slipping on some substance. No duties of care are pled against the defenders, and there are no averments of acts or omissions on the part of the defenders. Given the strict liability nature of the case pled against the defenders the nature, scope and degree of investigations they would be expected to carry out some three years after the alleged accident would be limited". She also observed that it was clear that the case of vicarious liability arising from the alleged negligence on the part of the defenders' Manageress did introduce a new factual basis for the claim as well as a new legal basis. She accordingly considered that that to allow amendment in terms of paragraphs 5 and 6 of the pursuer's minute would be "tantamount to allowing two wholly new cases to be raised by them well outwith the triennium".

(6) At the outset of the appeal counsel for the pursuer and appellant indicated that he no longer took issue with the sheriff's view of paragraph 6 of the minute of amendment, that is to say the proposed case based on vicarious liability. He contended however that the sheriff had erred in holding that the minute of amendment otherwise introduced "a wholly new case". It was, he said, a change in formulation of the case; on no view was it such a radical departure from the pursuer's initial position that it ought to be refused in any reasonable exercise of discretion. The case based on the Occupiers' Liability Act involved no material change to the factual averments about the circumstances of the accident, and there was no change in the averments regarding the danger against which it was said that the defenders were required to take precautions. The absence of apparent prejudice to the defenders weighed heavily in favour of the pursuer.

(7) Counsel developed his argument by comparing the pursuer's original case with that now sought to be advanced, and by drawing attention to what the defenders' position might be in relation to each. He pointed out that in addition to adopting the position in their defences that the 1992 regulations were not applicable, the defenders had detailed averments of a system of cleaning and a specific averment that the area around the petrol pumps had been cleaned that day. That, counsel maintained was relevant to address a case under the Occupiers' Liability Act even where the pursuer had not pled it. Moreover, certain items of correspondence produced, in particular a letter dated 29 August 2001 from Recoup Liability Services Limited acting on behalf of the defenders, made it clear that the defenders had carried out investigations as if an Occupiers' Liability case had been advanced. The penultimate paragraph of that letter referred to "the duty on our principals to take reasonable steps to avoid foreseeable risk of injury to all visitors" and contained the contention that this duty had been fulfilled. There was plainly no risk of prejudice when investigations had been carried out to that level.

(8) The statutory duty incumbent under the 1992 regulations, and the duty under the 1960 Act, counsel argued, bore a number of similar features. They both related to the state of premises and stipulated a duty on the part of the occupiers to persons entering on them. The difference in that respect was that the 1992 regulations protected workers whilst the 1960 Act protected visitors. Both cases also raised questions of foreseeability. To establish the case under the 1992 regulations the pursuer would have to prove that his accident was caused by the presence of a substance which presented a real risk of injury. That was at odds with the sheriff's view when she said that because liability was strict "it is enough for the pursuer to prove that the accident occurred...as a result of...slipping on some substance". Over all the position was that even if the defenders had only investigated the issues which arose in terms of the 1992 regulations the issues which arose under the case now proposed were not so different that substantially different investigation would be required. All that had changed was the stringency of the test, the issue moving from one of "reasonable practicability" to a question of failing to take "reasonable care". That change was to the defenders' benefit not their prejudice.

(9) Counsel accepted that the question of whether to allow amendment was one for the exercise of the sheriff's discretion. The critical issue facing her was "whether the opponent of the party seeking leave to amend would be unfairly prejudiced by allowance of the amendment": Macphail, Sheriff Court Practice, (2^nd ed) paragraph 10-14. An alternative way of viewing the matter was to determine whether amendment would give the pursuer an unfair advantage: Thomson v Glasgow Corporation 1962 SCHL 36 at 52. Neither of these tests could be said to be passed. As a matter of general approach counsel referred to Hynd v West Fife Co-operative Limited 1980 SLT 41 where, in dealing with a similar issue, the First Division observed that the time-bar provisions in the Acts of 1954 and 1973 did not make it incompetent to amend in an action brought within the triennium but observed that "an exercise of discretion would for example be quite improper where in a substantial sense the effect of a proposed amendment outwith the triennium is to convert a case into what is virtually a new action". That, maintained counsel, was the issue, namely whether what was proposed amounted to virtually a new case. Counsel also founded on the unreported case of Evans v Northern Coasters and Others (20 January 1995) in which the Second Division allowed appeals from the Sheriff Court in respect of the sheriff's refusal to allow amendments outwith the triennium in two reparation actions. In those cases whilst it might be said that the proposed amendment placed a more stringent obligation on the employers amendment was allowed, the Court observing that "what is important is that no material change has been made to the factual averments regarding the way in which the accident occurred nor as to the danger against which it is said the defenders were required to take precautions for the safety of the pursuer". That case was also an example of the Court allowing a pursuer to change the statutory basis of his case where it did not radically alter the basis of the action. It was clear from this decision that if the basic facts were not altered and there was no prejudice to the defenders amendment would be allowed.

(10) In response the solicitor for the defenders emphasised that the Court could only interfere with an exercise of discretion on recognised grounds: Britton v Central Regional Council 1986 SLT 207. He maintained that the sheriff had correctly addressed the balancing issues which arose in connection with the exercise of discretion. She had set out on page 6 of the note four reasons for refusing to allow the amendment. These were (1) that what was proposed amounted to a change in the basis of the pursuer's case which came within Lord Justice Clerk Cooper's observation in Pompas Trustees v Edinburgh Magistrates 1942 SC 119 at 125 namely, that "the Court will not in general allow a pursuer by amendment to change the basis of his case if he seeks to make amendments only after the expiry of a time limit which would have prevented him at that stage from raising proceedings afresh"; (2) that there was no explanation as to why the minute of amendment came so late; (3) that the grounds which the pursuer now sought to introduce were available to him when the action was raised and (4) that the introduction of the new grounds would prejudice the defenders' opportunity to prepare their defence. The solicitor maintained that on any view the first three of these reasons remained correct and were sufficient alone to justify refusal of the amendment. He further submitted that the question of prejudice remained.

(11) In relation to the first ground of refusal the defenders' solicitors developed the argument by pointing out that the pursuer's case as pled could not succeed by virtue of the decision in Donaldson supra. That being so what was proposed was in effect an attempt to cure a radical incompetence, a matter which was specifically dealt with by the Lord Justice Clerk in Pompas Trustees. I was referred to Davies v ICC Limited 1980 SLT (ShCt) 17 a decision of Sheriff Principal Reid in Glasgow where there is some discussion concerning the contrast between liberal and restrictive approaches adopted by the court in questions of amendment of this nature. In that case the Sheriff Principal favoured the restrictive approach and I was encouraged to do likewise. In relation to the case of Evans founded on by the pursuers the defenders' solicitor accepted that one can remove one statutory case and replace it with another but contended that this should not apply in a situation where the change involved an alteration from a statute which conferred liability on employers towards their employees to one which conferred a wide ranging public liability.

(12) The pursuer's submission that both the old and new cases raised issues of foreseeablility was, it was argued, of limited value. Foreseeability was of far less significance in relation to the 1992 regulations than it was in relation to the duty of care under the 1960 Act. Further the pursuer's original case had been pled on the basis of minimal averments of fact namely that he "slipped on oil as a result of which he fell to the ground", no doubt on the approach that the matter was one of strict liability. The factual averments in the minute of amendment were much more comprehensive. Not only did they specify the area and precise point in which the oil was said to be but went on to aver that employees of the defenders' were aware that there had been a spillage within the area where the accident took place. In passing the defenders' solicitor observed that it might have been appropriate to have opposed the minute of amendment in whole.

(14) The defenders' agent stressed that there was no adequate reason given for the delay in the pursuer altering his position. It had been clear from the time of the decision in Laden v Aldi in 2002 that there was doubt as to the applicability of the 1992 regulations to the pursuer's case. Despite that no change was attempted until August 2004. In relation to the question of prejudice the defenders had all along proceeded on the basis that the pursuer's position was fundamentally flawed and the case could not succeed. Even on the basis of the investigations carried out after the claim was intimated and referred to in the letter of 29 August 2001 that in itself was now almost four years old. The delay in following up any inquires at that time was bound to amount to prejudice. There had been no need to investigate the case since its commencement and to require investigation now would be unfair.

(15) In the present case the sheriff was presented with a minute of amendment which sought to delete the existing ground of fault and substitute two new grounds. In my judgment she was plainly correct in reaching the view that an attempt to introduce a case of vicarious liability based on a specific allegation of neglect of duty by the defenders' Manageress amounted to a whole new case. Although the pursuer's counsel was not prepared to acknowledge the correctness of that decision it can I consider be inferred from the absence of any appeal on that point.

(16) It may be that the sheriff was influenced in her decision to refuse to allow the substitution of new grounds of fault by the fact that allowance of one of them would have been plainly improper. She did however apply different considerations to what was contained in paragraphs 5 and 6 of the minute of amendment. In her distinct consideration of the case based on the 1960 Act she appears to have placed reliance not only on the view that this constituted a radical change in the pursuer's case but that the change "potentially prejudiced the defenders' from properly investigating all the facts and circumstances which may be relevant to their defence". Although the question of whether the proposed amendment does or does not "change the basis of the pursuer's case" is normally the first matter to be determined (see Hynd supra at page 43), I consider that it is appropriate in the context of this appeal to give consideration first to the issue of prejudice. I do that because I accept the submission made by counsel for the pursuer that if the sheriff erred in relation to the question of prejudice that may in itself provide a basis for undermining the exercise of her discretion.

(17) I find it difficult to hold that the proposal to alter the pursuer's case to one based on the terms of the Occupiers' Liability Act causes any prejudice to the defenders other than in one somewhat narrow respect. The attention of the sheriff does not appear to have been drawn to the terms of the defences which I consider counsel for the pursuer to have been justified in contending were apt to deal with a case under the 1960 Act even although that had not been pled against them. Moreover the sheriff did not have the benefit of seeing the correspondence to which I have been referred and in particular the letter of 29 August 2001 above referred to. That letter it has to be said is in comprehensive terms. It sets out that investigations into the incident have been completed. It gives details of what is described as a "meticulous cleaning and inspection programme". It proceeds: "With regards to this incident the Manager of the site has revealed that a member of staff inspected the area where your client alleges that he fell and they could see no evidence of diesel spillage or indeed any other substance which would make the surface anything other than dry and safe to walk on. There were no reports of any spillage or overflow immediately prior to the time that the fall was reported. Had the Manager been made aware of such he would have taken the necessary steps to rectify the situation. All the fuel pumps at the site were in working order on the date of this incident. Moreover no maintenance work had been carried out on pump 7 (where you client slipped) at the time of this incident, nor had it been for the month prior to the date in question". On the basis of this information I find it hard to see how it could be said that the defenders have been in any way prejudiced in respect of the preparation of their defence other than by the delay which has occurred since August 2001 and which may now have an effect on the recollection of witnesses. Whilst that is a factor to be borne in mind, any prejudice is, I consider, rather different to that apprehended by the sheriff who took the view that the nature scope and degree of investigations to be expected of the defenders would have been restricted having regard to the strict liability nature of the case pled against them. In fact they appear to have investigated the matter upon a much more general view of their potential liability.

(18) Standing the fact that some issue of prejudice remains albeit on a different basis than that which the sheriff took into account, I would not have necessarily been disposed to disagree with her disposal of the matter if I had shared the view that what is proposed amounts to a fundamental change in the pursuer's case. As is pointed out in Johnston, Prescription and Limitation, paragraph 20-22, echoing remarks made in Hynd (supra) application of the test to determine that is necessarily a matter of degree "and what the Court seeks to do is to establish on which side of a fine line the case falls".

(19) Approaching this question I reject the contention advanced by the solicitor for the defenders that what is proposed amounts to an attempt to cure a radical incompetence. I am not persuaded that a case falls to be regarded as "radically incompetent" within the meaning of the expression as used by Lord Justice Clerk Cooper in Pompas Trustees when it may have been relevant at the time the action was raised but ceased to be so as a result of an authoritative interpretation of the law. The question is not one of competency but is rightly focused on the issue of whether what is proposed amounts to a change in the basis of the action as that expression has been interpreted by authority subsequent to Pompas Trustees. In that respect one has extreme cases such as Dryburgh v National Coal Board 1962 SC 485 where "the amendments proposed would have altered the averments both of fact and fault almost out of recognition" and Davies v BICC where all grounds of fault stated against the defenders were abandoned and a new case based on vicarious liability for the actings of the defenders' foreman were sought to be substituted. In the present case the change in substance amounts to an alteration from one statutory basis of fault to another. Duties were incumbent upon the defenders in terms of both statutes. The pursuer only seeks to remove himself from one category of persons to whom a statutory duty was owed to another. In so doing he takes it upon himself to discharge the burden of proving that the defenders were in breach of a duty of reasonable care owed towards him, a position which is in marked contrast to his previous assertions which would have involved the defenders in establishing that they took all reasonably practicable steps to avoid. The present case is, I consider, a a fortiori of Evans (supra) where in allowing the amendment the Court observed that there was no material change to the factual averments regarding the way in which the accident occurred "nor as to the danger against which it is said the defenders were required to take precautions".

(20) In all these circumstances I am satisfied that to refuse to allow the minute of amendment as now restricted could not be said to be reasonable, and it ought to be allowed. In taking that course I have not lost sight of the fact that it comes at a very late stage without explanation for the delay. It is however worthy of observation that the law did remain in doubt until the decision in Donaldson in June 2005. In the light of that I do not consider that delay alone is a factor of such significance as to prevent the pursuer amending.

(21) As accepted by parties expenses follows success in this appeal. A motion for certification of the cause as suitable for the employment of junior counsel for the purposes of the appeal was not opposed

(signed) E F Bowen