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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Montgomerie v. Glasgow Prestwick International Airport Ltd & Anor [2004] ScotCS 166 (29 June 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/166.html Cite as: [2004] ScotCS 166 |
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OUTER HOUSE, COURT OF SESSION |
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A755/00
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OPINION OF J. GORDON REID, Q.C. F.C.I.Arb. (Sitting as a Temporary Judge) in the cause WILLIAM ALEXANDER MONTGOMERIE Pursuer; against (FIRST) GLASGOW PRESTWICK INTERNATIONAL AIRPORT LIMITED and (SECOND) GILL AVIATION LIMITED Defender:
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Pursuer: Summers; Ketchen & Stevens, W.S.
First Defenders: Bennett; HBM Sayers
Second Defenders:Love; Shepherd & Wedderburn, W.S.
29 June 2004
Introduction
[1] This is an action of damages for personal injuries. The defenders challenge the relevancy and specification of the pursuer's pleadings. A Procedure Roll discussion took place on 27 and 28 May 2004. The issues raised included (i) the averments required to make a relevant case based on faulty inspection, (ii) the relevancy of the pursuer's averments in relation to various statutory cases under regulations 5, 6(1), and 13(3)(b) of the Workplace (Health Safety and Welfare) Regulations 1992 and regulation 6(1) of the Provision and Use of Work Equipment Regulations ("PUWE") 1992. [2] At the outset of the discussion, Mr Summers, for the pursuer, tendered a short Minute of Amendment, which, being unopposed, I allowed. No Answers were required and its terms did not form part of the debate. As the pursuer no longer sought Issues, Mr Love, for the second defenders, intimated that his first plea-in-law (special cause) should be repelled.Factual Background
[3] For the purposes of the Procedure Roll discussion, the pursuer's averments are assumed to be true. In summary, his case is that he was employed by the first defenders at Prestwick Airport as a member of the ground crew. He was engaged, along with a fellow employee named Gilchrist, in loading luggage into an aeroplane which was operated, and controlled by the second defenders, who also had responsibility for its maintenance. [4] Gilchrist opened the door or hatch to the front cargo load. The door opened upwards and "was secured by a pawl or catch which latched when the door was fully extended at the aft hinge" (Closed Record, Article 2 of the Condescendence, page 6A). Gilchrist opened the door and engaged the catch mechanism. Meanwhile, the pursuer was collecting luggage (in both hands) from a "nearby" baggage cart (Article 2, page 6B). When the pursuer reached the door, it swung downwards suddenly and without warning, striking him on the head. As a result, he suffered serious injuries. The pursuer then makes the following averments ( Article 2 page 6C):-"After the accident the Pursuer was advised by fellow ground crew staff that a plastic strip had been tied around the cargo door catch for some three weeks prior to the accident. The Pursuer believes that some person whose identify is unknown to the Pursuer knowing that the catch was faulty had attempted to make the door secure should the catch fail. The catch mechanism was replaced shortly after the Pursuer's accident. .....The Pursuer does not know why the catch was faulty. It is probable that the catch had worn through use and did not engage properly in the lock mechanism so that any movement in the aircraft caused by high wind or the loading of luggage was likely to dislodge the pawl or catch and lead to the fall of the door after the pursuer's accident"
Esto the said catch was not faulty (which is denied) its fall downwards after Mr Gilchrist opened the door to the front cargo hold must have occurred because Mr Gilchrist had failed to engage the catch properly.
It is unnecessary to consider further the defenders' averments.
Duties
[6] As the first defenders' attack on the pursuer's pleadings was confined to the esto case referred to in the preceding paragraph, it is only necessary to set forth the duties pled in relation to that case. The case is (Article 3, page 12D-E) that the failure to engage the latch was a breach of duty of reasonable care owed to the pursuer. It is averred that Gilchrist failed to lift the hatch and engage the latch properly. [7] The pursuer pleads five cases against the second defenders. The first (Article 4 of the Condescendence), a common law case, is that they ought to have inspected the aircraft "sufficiently regularly and thoroughly" so as to identify and repair or replace promptly the catch on the door. No desiderated period of inspection is averred. The second case (Article 5), also a common law case, is that the second defenders ought to have withdrawn the aircraft until the faulty door catch mechanism was fixed. [8] The third case (Article 7) is a breach of Regulation 13(3)(b) of the 1992 Workplace Regulations, mentioned above, which provides inter alia that so far as is reasonably practicable, suitable and effective measures must be taken to prevent "any person being hit by a falling object likely to cause injury". This case depends upon inter alia the place where the pursuer was standing at the time being a workplace within the meaning of Regulation 2 of these Regulations; and that the workplace is in or on an aircraft. It also depends upon the door being classified as a "falling object". [9] The fourth case (Article 8) is a breach of Regulation 6(1) of the Provision and Use of Work Equipment Regulations 1992 which requires an employer to ensure that working equipment is maintained in an efficient state, in efficient working order and good repair. This case depends inter alia upon the door catch being "working equipment" used within the meaning of Regulation 2, and aircraft being "non-domestic premises". [10] The fifth case (Article 9) is a breach of Regulation 5 of the Workplace Regulations which requires the workplace and equipment, devices and systems to which the regulation applies to be maintained in an efficient state, in efficient working order and in good repair. The catch is said not to have been maintained in an efficient state, working order or in good repair. This case depends inter alia upon the pursuer's workplace not being in or on the aircraft.Submissions
(a) First Defenders
[11] Mr Bennett submitted that the pursuer's averments directed against the first defenders, quoted in paragraph 5 above, were a logical non-sequitur in respect that given the suddenness of the door's alleged fall and the pursuer's distance therefrom when Gilchrist was opening it, it was impossible to see how the door could have fallen downwards by reason of any failure on the part of Gilchrist to engage the catch. There had to be some external factor to hold up the door while the pursuer moved within range i.e. to a position where he could be struck if the door suddenly dropped. [12] Mr Summers submitted that it cannot be assumed that the catch was such that if not engaged properly the door would immediately fall. Latches not engaged properly could work their way loose and fall. On the pursuer's pleadings, one could not assume a lengthy time lag between Gilchrist opening the door and the pursuer being struck by it. Moreover, it did not follow from the pursuer's pleadings that the door had to fall immediately after it was opened.(b) Second Defenders
[13] Mr Love submitted that there was no evidential basis from which it could be established that the second defenders knew of the existence of the faulty catch and if they did know, from what date. There was no averment of what the defect actually was. The pursuer failed to aver what a reasonable system would have entailed or that such a system would have led to the discovery and repair of the defect. Failure to define the intervals at which inspection might take place and that such a system would be reasonably practicable was fatal (Riddell v Reid 1941 SC 277, Gibson v Strathclyde Regional Council 1993 SLT 1243 at 1245H, 1246A). Moreover, the pursuer failed to aver the type of inspection required, visual, technical etc. The averment in article 4 of the Condescendence [see para 7 above] does not meet the test laid down in Riddell. Mr Love developed these arguments under reference to various specification deficiencies in the pursuer's pleadings. He also submitted that the common law cases were not assisted by the reference to the plastic strip [paragraph 4 above]. Finally, if, as the pursuer now seemed to be contending, his common law cases were not inspection cases, the averments relating to inspection should be excluded from probation. [14] In relation to the third case (Article 7), Mr Love submitted that if the pursuer's workplace was the aircraft, then article 9 must be irrelevant because regulation 5, founded upon in article 9 is disapplied by the Workplace Regulations where the workplace is an aircraft. In addition, he submitted that the door was not a "falling object" within the meaning of Regulation 13. [15] In relation to the fourth case (article 8), Mr Love initially submitted that it was irrelevant because an aircraft could not fall within the definition of non-domestic premises. He subsequently withdrew that submission under reference to section 54(1) of the Health & Safety at Work Act 1974, which provides that premises include aircraft. Moreover, he argued, if the pursuer's place of work was the airport, then the first defenders had control of the equipment. He submitted that the averments of control were insufficient. In addition, he submitted there was no relevant averment of use within the PUWE Regulations. [16] In relation to the fifth case (article 9), Mr Love submitted that if the pursuer's place of work was the aircraft, as averred in article 7 (the third case), then this case must be irrelevant as regulation 5 of the Workplace Regulations is disapplied by Regulation 3(3). There were also insufficient averments to establish control on the part of the second defenders. The necessary element of control flies off when the ground crew were doing their job and returns when the aircraft takes off. He referred to Gallacher at para 16, 20 21 and 46 page 401and 401F-G and 405A-B. He also referred to McFaulds v Reed Corrugated Cases Ltd 1993 SLT 670 at 671 I-J. Inglis v London Midland & Scottish Rlwy Co 1941 SC 551 referred to by Mr Summers, below, was distinguishable as it related to a carriage door which was not closed properly rather than a carriage door which was defective. [17] In reply, Mr Summers began by making a number of general points. He submitted that (i) the critical averments of fact which underlie the pursuer's case were not challenged, and these facts raised an inference of negligence on the part of the second defenders. He referred to Inglis in support of this argument; (ii) it was therefore for the second defenders to establish that they had an acceptable system in place or that the catch was not damaged; (iii) the averments directed against the second defenders in relation to operation, control and maintenance of the aircraft at article 2 page 5E, article 4 page 14C, article 7 page 19C and article 8 page 20C of the Closed Record were sufficient; Gallacher was distinguishable by reason of its complicated facts; (iv) the pursuer's claim, properly understood, was not truly about inspection. The defect had been spotted; the issue was whether it was dealt with; it was a reasonable inference that the temporary repair had been carried out by or under the authority of the second defenders; (v) the pursuer would be entitled to lead evidence including expert evidence to the effect that failure properly to repair a defective catch was unreasonable; (vi) (adopting a point I discussed with Mr Love), the passage relied upon by Mr Love in Riddell related to evidence and not pleadings; the better approach is to be found in Kerr v Cook & Harland & Wolff Ltd 1953 SLT (Notes) 22; the facts pled in Gibson were extreme; the more frequent the inspection averred, the greater the detail required in the pleadings. [18] As to the third case (article 7) and the fifth case (article 9), Mr Summers submitted that the pursuer could have two workplaces; that if the pursuer were within, what he described as the outer skin of the aircraft, regulation 13 of the Workplace Regulations applied. Fine distinctions might have to be drawn after evidence, but these cases could not be excluded at this stage. Each case began with the standard pleading phrase "Further and in any event".Discussion
(a) First Defenders
[19] In my opinion, Mr Bennett's argument is unsound, at least at this stage in the case. It assumes that it is impossible incorrectly to open the door so that the catch, although not defective, might nevertheless work its way loose over a short period and then suddenly fail so that the door falls without warning. I cannot exclude this possibility on the pursuer's pleadings which are, in my opinion, apt to cover such a situation. The pursuer does not aver how far the baggage cart was from the aeroplane other than to state, quite reasonably in my opinion, that it was "nearby". Nor does he aver what period of time elapsed between the opening of the door and his accident. I do not criticise him for that. These facts are matters of detail which need not be averred but may reasonably be explored in evidence. The bare bones of the factual narrative have been averred. That is sufficient as a matter of pleading practice in actions for damages for personal injuries. [20] In my opinion, the fallacy in Mr Bennett's proposition is that it assumes as a matter of fact that it is impossible for a door which has a catch which is not faulty to be opened incorrectly so that the catch holds the door open for a short period and then suddenly fails. It may well have been impossible for Gilchrist to fail to engage the catch properly. However such a possibility or impossibility is a question of fact to be determined after proof. In these circumstances, Mr Bennett's succinct argument must be rejected at this stage.(b) Second Defenders
[21] In my opinion, the first and second cases pled by the pursuer against the second defenders cannot be said to be irrelevant. A proof before answer must be allowed in respect of them. [22] Although reference is made in the pleadings to duties of inspection, it seems to me that these fall to be regarded as subsidiary to the complaint that a defect in the catch mechanism was the subject of a temporary repair which should have been followed up prior to the accident with a full repair remedying whatever precise defect existed, which required the repair of the catch mechanism or its replacement with one which was in proper working order. It is a reasonable inference on the pleadings that the plastic strip was required because the catch was faulty in some respect. In that state of affairs, the issues which will arise at proof will include whether the catch was faulty and if so whether it was reasonable for the second defenders to leave a faulty catch with a temporary repair for a period of some three weeks. These issues may properly be explored on the basis of the pursuer's pleadings. [23] I am also not satisfied that it is essential as a matter of pleading practice in every inspection case to aver the precise period of inspection desiderated. The facts here are such that it may be inferred that a cargo hold door, with a catch in good working order, properly opened, would not suddenly fall or close in the manner averred. The fact that it did (on the assumed facts) infers fault on the part of somebody. On the pleadings, the pursuer excludes himself and blames the first defenders as his employer; and the second defenders as the operator in control of the aircraft and responsible for its maintenance. On these facts, an inference of fault on the part of at least the second defenders may be drawn. If a defect free locking mechanism is properly engaged an open door of the type in question should not suddenly close or fall. If such a door nevertheless does so, there is a reasonable and possibly a strong inference that either the locking mechanism is faulty or has been incorrectly engaged in some way. Such simple facts infer fault which requires an explanation which exculpates the second defenders. [24] In Inglis the pursuer averred that the door of the railway compartment in which, inter alios, he and his son were travelling, suddenly flew open; the son fell out and was killed; the pursuer averred that the door swung open through not being securely fastened; the absence of proper fastening would have been detected by any reasonable system of inspection carried out before the train left on its journey. (1941 SC at 552); such inspection was not made or was carelessly made. No specific period of inspection was averred. A proof took place and the Sheriff, deciding in favour of the pursuer, found as fact inter alia that the door had not been used or interfered with between the station and the incident; that the door suddenly opened and the child fell out. He described in detail the mechanism of the door and its fastening (553-554). The First Division adhered, concluding that it was settled by authority that the opening of a railway carriage door when a train is running, without the interference of passengers, is prima facie evidence that the railway company's employees failed to take due care to see that the door was securely fastened when the train left a previous station; the employees either failed to discover this or, after inspection, failed to close the door properly; this prima facie evidence of negligence was not countered by evidence of interference by third parties, (see Lord President Normand at pages 559-560) which the pursuer excluded in his proof (see Lord Moncrieff at page 562). The defenders failed to exclude various other possibilities (see page 563). This case was decided by an identical Bench a few months before Riddell. No adverse comment was made on the inspection case as averred. The case was decided after proof in which a detailed examination of the door closing mechanism took place and was decided by reference to facts from which inferences of fault were made and not rebutted in the evidence by the defenders. Although Mr Love is correct in submitting that the case concerned a failure to close and properly fasten the carriage door, rather than a defective door, I do not consider that matters for present purposes. It will be open for the pursuer to argue either that Gilchrist was at fault for failing properly to engage the catch or that, given the presence of the plastic strip, the door catch was defective and plainly in need of permanent repair or replacement. [25] In Riddell a bricklayer, engaged in the erection of a house, fell from the platform where he was working and was killed; an insecure and unsafe plank placed by a fellow workman was the cause. A case was brought against his employer at common law and for breach of statutory duty. The claim failed at proof. On appeal to the First Division, it was argued by the appellant that there ought to have been daily inspections, (page 280), because it had been established by the evidence that the platform was in a safe condition on the morning of the accident (282-283). There were no averments of faulty inspection. (283). At page 283, Lord President Normand said this:-"It is sufficient to point out that there is no record for deficient inspection, for without notice on record the case which the pursuer put forward cannot be entertained. But I think that, if it were competent to entertain that ground of fault, a very strong criticism could be directed against it on the evidence. It is clear that, if you are going to found on defect of inspection, you must define the intervals at which inspection is to take place. Since it is agreed that the platform as originally set up some three days before the accident was safe, and that it was still safe on the morning of the day when the accident took place, counsel was constrained to say that there ought to have been a daily inspection at the moment before the workmen went on to it. No evidence was brought to show that such an inspection is in practice carried out by prudent and reasonably careful employers in the like circumstances. The case at common law fails, because the duty of inspection to which it was ultimately reduced is not properly averred on record nor properly established by the evidence."
"In claims of damages for alleged negligence it can only be in rare and exceptional cases that an action can be disposed of on relevancy. .....It is hardly necessary to say in a Scottish case that the law of negligence in Scotland proceeds on principles of culpa, breach of the duty to take that care which the circumstances demand from a reasonable man. These circumstances in any particular case will normally have to be ascertained by evidence. They vary infinitely. The facets and detail of a case on which an assessment of the law must depend cannot be conveyed to the mind by mere averment of the bare bones of the case, and the weighing of the facts for or against negligence may often present a delicate task to the tribunal charged with applying the law. This may be such a case. I cannot tell until the facts have been properly elucidated by the normal processes of taking evidence. I can only say that upon the averments here, which are made with commendable succinctness and absence of word-painting, I am unable to say that the pursuer has no case.
That statement applies as much today as it did in 1958. I take from it that it is only the bare bones of a case which have to be averred; the determination of the issue of negligence will normally be elucidated by the process of taking evidence; and unless those bare bones disclose that the pursuer has no relevant case i.e. on his own averments the pursuer is bound to fail, the case cannot be dismissed at Procedure Roll. In these circumstances, I am unable to accept Mr Love's submissions in relation to the pursuer's common law cases.
[28] As to the third case (Article 7) it is a nice question whether the pursuer's workplace was in or on an aircraft when the accident occurred. It is at least conceivable that a person standing within the arc of an opening or closing cargo hold door is in an aircraft within the meaning of regulation 3(3) of the Workplace Regulations. However, I have greater difficulty in holding that the sudden closing of the cargo hold door or hatch is a "falling object" within the meaning of regulation 13(3)(b) of these regulations. It seems to me that a falling object is an object which is doing something which should not occur, it should not be in a state of free fall at all; such an object in such a state of free-fall creates a danger. Here, the door or hatch moved in the direction it was designed to but at an unexpected time. The door was not in free-fall at any stage. It simply closed as it was designed to do but not when it was supposed to close. In my opinion, therefore the circumstances averred do not constitute a breach of regulation 13(3)(b) of the Workplace Regulations and article seven of the Condescendence therefore falls to be excluded from probation. Moreover, regulation 13 can only apply to an aircraft where the aircraft itself is "inside a workplace". There is no such averment here. In these circumstances, this case is bound to fail and I must therefore exclude it from probation. [29] Article eight of the condescendence (the pursuer's fourth case) depends upon (i) the door catch being work equipment within the meaning of regulation 2 of the PUWE Regulations, (ii) the pursuer using the work equipment on board the aircraft being non domestic premises (see Regulation 4(2)(b), and (iii) the second defenders being in control of the aircraft (ibid). I accept that the aircraft may be classified as non-domestic premises and that the pursuer has made sufficient averments of control. It is extremely doubtful whether, on the pursuer's own factual narrative, he can be said to have been "on board" the aircraft at the time of the accident. I would be prepared to classify that averment as being of doubtful relevancy and let it proceed to proof before answer. Whether the door catch may properly be described as work equipment is also doubtful. However, Mr Love accepts that there should be evidence on this point (see paragraph 7 of his Note of Arguments). [30] The final hurdle is that the pursuer must relevantly aver "use" of the work equipment. "Use" is defined by Regulation 2(1) as meaning "any activity involving work equipment and includes starting, stopping, programming, setting, transporting, repairing, modifying, maintaining, servicing and cleaning and related activities shall be construed accordingly". In my opinion, the bare bones of the pursuer's factual narrative do not fall within any of the express activities set forth in the definition, which, of course, is not exhaustive. The question is whether, on the pursuer's narrative of the facts, it can be said that he was engaged in any activity involving the door catch. He did not open the door. "When he reached the door suddenly and without warning it swung downwards and hit the Pursuer" (article 2 of the condescendence page 6C). That is the most significant averment to which my attention has been drawn for the purposes of this branch of the pursuer's case. I have not found any further averments of greater significance. In my opinion, it is impossible to conclude on the pursuer's narrative of facts that he was engaged in any activity involving the door catch when the accident occurred. If he had opened the door or hatch and it thereupon closed and struck him unexpectedly it might well be said that he was engaged in an activity involving the door catch. In these circumstances, I am of the opinion that article 8 of the condescendence is irrelevant and falls to be excluded from probation. [31] As for the pursuer's fifth case, I agree with Mr Love that if the pursuer's place of work was the aircraft, as averred in article 7 (the third case), then the fifth case must be irrelevant as regulation 5 of the Workplace Regulations is disapplied by Regulation 3(3). In my opinion, however, the pursuer's narrative of fact in article 2 of the Condescendence is consistent with his workplace not being in or on the aircraft. That part of the premises immediately adjacent to the aircraft, although not part of the aircraft but within the arc of the cargo door or hatch as it rises i.e. opens and is lowered i.e. closes may be said to form part of a workplace made available to the pursuer as a place of work of which the second defenders have to some extent control. The requirements of regulation 2(1) and 4(2) would then be met and regulation 5 would apply. The factual narrative brings the pursuer within the scope of regulation 5(1). In these circumstances, I am unable to conclude at this stage that the pursuer's fifth case is irrelevant. I should add that I did not find McFaulds to be of assistance in relation to this or any of the pursuer's other cases. [32] I should also add that the circumstances in Gallacher were far removed from the present case. In Gallacher, there were nine defenders and it was plainly of particular importance that the substance of the pursuer's case as averred on record identified the nature and extent of the control and occupation enjoyed by the various defenders and the legal consequences flowing therefrom. In the present case, relatively bare averments (as set out at pages 5E (Article 2), and 14C (Article 4)) of the second defenders' responsibility for the operation and maintenance of the aircraft are sufficient, to make the pursuer's position clear and give the defenders adequate notice.Summary and Disposal
