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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 189
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OPINION OF LORD EMSLIE
in the cause
HELEN GIVEN
Pursuer;
against
JAMES
WATT COLLEGE
Defenders:
________________
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Pursuer:
Lloyd; Thompsons
Defenders: Haldane;
Dundas & Wilson CS
13 December
2006
Introduction
[1] On
30 May 2003 the
pursuer had an accident at work. She was
employed by the defenders as a kitchen assistant at their college in Greenock,
and the main part of her job was to look after the lecturers whose room was
adjacent to the main canteen. Shortly
after she started work on the morning in question, something went wrong with
the drinks dispensing machine from which she habitually obtained special orders
or simply hot water for pots of tea or coffee.
She was close by the machine at the time when it malfunctioned, and fell
heavily to the floor, sustaining severe injuries to her right hip and right wrist.
[2] The
pursuer now claims damages from the defenders as her employers, alleging both
common law fault and breach of statutory duty on their part in respect of the
condition of the machine. The defenders
accept that the machine was prone to malfunctioning, and had been in that state
for some time, but the parties remain in dispute as to (i) the precise
circumstances in which the pursuer came to fall; (ii) the alleged liability of the defenders
for her accident; (iii) the extent of
any contributory fault on the part of the pursuer herself; and (iv) the assessment of certain heads of
damages. A Proof Before Answer on these
issues has now taken place before me.
The Accident
[3] In
the witness box the pursuer explained how, when the machine started to
malfunction, hissing loudly and emitting quantities of steam, she was asked by
a fellow employee, Mrs Anne Lafferty, to move a special needs student
out of the way in case she might be scalded.
At the same time Mrs Lafferty called for help from Mrs Susan Turcosi,
the kitchen assistant who generally looked after the machine and kept it
operational. Having guided the student
to safety, the pursuer returned to the vicinity of the machine. As she did so, she was adamant that the
machine emitted a flash in her direction which she saw through a clear panel on
its front face. Simultaneously, there
may also have been a loud bang. This
behaviour on the part of the machine gave the pursuer such a fright that she
"jumped" or "leapt" back and somehow ended up falling heavily to the
floor. When pressed in cross-examination
on the circumstances of the accident, the pursuer continued to insist that it
was an unexpected flash from the machine which frightened her and caused her to
fall. She was, however, less certain as
to whether the machine had also emitted any loud noise. As against that, her position was that the
degree of hissing and steaming at that time was unprecedented, as (in her
experience) was the flash which she saw from within.
[4] Although
momentarily distracted after the machine began to malfunction,
Mrs Lafferty gave direct evidence of seeing the pursuer "jump back" away
from the machine before ending up on the floor.
Another kitchen assistant, Mrs Elizabeth Purdy, agreed that the
description in the defenders' accident report form (no.6/3 of process), to the
effect that the pursuer "kind of leapt", was consistent with her impression at
the time. Both of these witnesses thus
gave some support to the pursuer's account of having fallen as a result of a
fright, and in addition both spoke to a de
recenti statement by the pursuer as she lay injured on the floor, along the
lines that the machine had "flashed at her".
Indeed Mrs Lafferty went on to say that she herself had seen a
flash or flashes from the machine, and that this had frightened her (although
she did not fall). Mrs Turcosi's
account was broadly consistent with the others, except that she spoke
positively to a loud bang from the machine at the time when the pursuer fell,
and also to the pursuer stating, as she lay on the floor, that she had had a
shock. At the time, Mrs Turcosi's
impression was that the pursuer was talking about an electric shock of some
kind, but in cross-examination she accepted that, by the word "shock", the
pursuer might only have meant a fright.
[5] Unfortunately,
neither side chose to explore the circumstances of the pursuer's fall in any
greater detail. In particular the
nature, colour, intensity and duration of any flash or flashes from the machine
remained unexplored, as did the precise location from which any such flash may
have emanated. No engineer was called to
describe the physical configuration of the machine, nor to confirm the presence
of a clear panel on its front face, nor indeed to identify the location of any
of its electrical components which might be visible from outside. There was no direct evidence that anyone had
ever seen flashing from the machine before, although there was some hearsay
evidence to suggest that engineers had regularly blamed electrical circuit
problems for the machine's propensity to overheat. Apart from that, the only evidence which I
have to go on is that of the pursuer, Mrs Lafferty and Mrs Purdy, tending
to indicate that a visible flash or flashes, with or without an accompanying
bang, occurred at the material time.
[6] Equally
unfortunately, neither side chose to explore in any detail the precise means by
which the pursuer, starting from a stable upright position, contrived to fall
really heavily on to her right hip and wrist.
A slip, trip or collision in such circumstances might have made such a
fall easier to understand, but there was no evidence of anything like
that. When faced up with entries in the
hospital records to the effect that she had slipped on the floor, the pursuer
flatly denied that they could be correct, and the authors of these entries were
not led to substantiate them. In any
event, no evidence was led on either side to establish the condition of the
floor or the nature of the pursuer's footwear.
Once again, therefore, the final picture is of a rather unsatisfactory
general nature, with the court being asked to draw the inference that, having
jumped back in fright from the machine, the pursuer must somehow have lost her
footing in a way that projected her heavily and awkwardly to the floor.
[7] Without
the benefit of clearer and more positive vouching, I must confess to
entertaining some doubts as to the inherent plausibility of the pursuer's
account. Judged according to common
experience, it is not easy to imagine how someone alarmed by a flash from
inside a machine could have contrived to fall so badly. Mrs Lafferty did not fall, although
frightened, and inevitably a question mark arises as to whether such a flash could
truly have caused the pursuer's accident.
In the end, however, I consider that it would be wrong for me to reject
the pursuer's account on such subjective grounds. Nothing in the demeanour of the pursuer or of
her supporting witnesses suggested that they had conspired together to provide
the court with an entirely false account of what happened. In any event, I would be very slow to make
any finding along such lines where (i) the allegation was not put to any of the
individuals concerned; (ii) the account
of a fright followed by an awkward fall appears to have been accepted by the
defenders' manageress at the time (as reflected in the contemporaneous accident
report form); and furthermore ( iii)
there was no evidence which directly contradicted that account in any material
respect. Truth is, as the saying goes,
often stranger than fiction, and in the whole circumstances I am ultimately
unable to say that the pursuer's account of the incident is either impossible,
or so inherently improbable that it simply cannot be accepted. People do sometimes unaccountably lose their
balance or footing in circumstances where they would not normally be expected
to fall, and a sudden fright must obviously increase the risk of unexpected consequences.
[8] As
regards the alleged flash from the machine, I am not prepared to hold the
pursuer and Mrs Lafferty to be deliberately untruthful witnesses, and it seems
unlikely that the pursuer's de recenti
statements, as she lay injured on the floor, would have been a deliberate and
dishonest fabrication. Given the
machine's known faults, there would have been no need for her to invent new
ones. It is true that the accident
report form no. 6/3 of process compiled by the defenders' manageress,
Miss Ritchie, within a short time of talking to the pursuer and others at
the scene, contained no reference to a flash.
However, during Miss Ritchie's evidence, it became clear that she
did not have an opportunity to speak to Mrs Lafferty until some hours
after the form was completed, and also that she did not speak to Mrs Purdy
at all. Moreover, Miss Ritchie
herself had largely assumed that the machine had "done its usual", and had
little idea of precisely what others had told her. She really did not know what the "loud noise"
was that she had recorded, nor could she could say whether the malfunction
reported to her involved more hissing and steaming than on previous
occasions. I therefore attach little
importance to the fact that she did not recall the pursuer mentioning a flash
at the time, or to her agreement in cross-examination that if a flash had been
mentioned she would have recorded it.
[9] On
the balance of probabilities, therefore, I am prepared to accept the pursuer's
account of what happened to her as substantially accurate, and accordingly hold
that her averments in that regard at page 6C of the Record have been
established. Further considerations
tending to support this conclusion are in my view the electrical faults which
engineers apparently diagnosed at the time and in the past, coupled with the obvious
risk of an electrical short circuit (and possible flash) in the presence of
water or pressurised steam.
Common Law Fault
[10] In asking the court to find for the pursuer on this branch of
the case, counsel relied on the nature and extent of the machine's
malfunctioning prior to the accident, and also on the frank concessions made by
the defenders' manageress, Miss Ritchie, in the witness box. As regards the pre-accident history, the
defenders averred (at page 8C) that the machine was prone to overheating
which would result in its being noisy and steam being emitted, and that
engineers had attended at the College on several occasions in that connection. At pages 11 - 12, the defenders went on
to aver (against an un-convened third party) that "..... They knew or ought to
have known that the malfunctioning coffee machine, which was prone to
overheating, making loud noises and emitting bursts of steam was likely to
frighten persons working around said machine and cause an accident". In counsel's submission these averments were
in fact borne out by the evidence. Many
witnesses, including the defenders' manageress Miss Ritchie, confirmed
that the machine had a recurrent problem with overheating, and that repeated
visits by engineers had failed to rectify it.
Miss Ritchie confirmed that engineers had been called out on
between seven and nine occasions within the previous three months or so, but
that the machine had thereafter continued to malfunction. Hearsay evidence from the pursuer suggested
(as in any event seems likely) that the underlying fault was electrical in
nature, and Miss Ritchie expressly confirmed that on one occasion an
engineer told her of a "circuit board short".
On the occasion of the pursuer's accident, the underlying fault again
seems to have been electrical in nature, judging by Miss Ritchie's
accident report form which recorded "fault on circuit board".
[11] Against that background, Miss Ritchie very fairly conceded
in evidence that she knew the machine to be potentially dangerous, and that she
was not surprised when it malfunctioned again.
Two or three weeks before the accident, she had told "the office" that
the machine needed to be replaced, since its propensity for sudden
malfunctioning could have led to someone being burned by steam or to an
accident similar to the pursuer's. As
confirmed by the terms of her report no. 6/3 of process, Miss Ritchie did
not question the causal link between the malfunctioning of the machine and the
pursuer's fall, and she now regretted having taken no effective steps to remove
an obvious danger in advance. In
re-examination Miss Ritchie went even further, accepting that her
understandable desire to keep the machine in service had been misplaced, and
that she could and should have demanded a replacement machine, or at the very
least disconnected the machine and taken it out of service, before the
pursuer's accident occurred. So far as
she could recall, the last malfunction occurred some hours earlier on the same
morning, and yet the machine was simply switched on again after a short
interval.
[12] On the strength of that evidence, counsel for the pursuer
submitted that the defenders had failed in their duty of reasonable care for
the safety of the pursuer as one of their employees. Miss Ritchie was aware, not merely that
the machine had malfunctioned in the past, but that it was liable to
malfunction again at any time and in a manner which gave rise to a foreseeable
risk of harm to anyone who might be in the vicinity at the time. If a scalding risk could be foreseen, then so
also could the risk of someone such as the pursuer jumping away from the
malfunctioning machine and falling. In
these circumstances, therefore, the pursuer was entitled to succeed in her
claim at common law.
[13] In reply, counsel for the defenders maintained that no
foreseeable risk of injury to any person, and no breach of any duty of
reasonable care, had been established.
Miss Ritchie's evidence, in counsel's submission, was a product of
hindsight coupled with sympathy for the pursuer, and should be discounted on
these grounds. The reality was that past
malfunctioning of the machine had caused no injury to any person, and it was
significant that, at the time, Miss Ritchie did not hesitate to return the
machine into service on each occasion after it had received attention from the
engineer. It was thus a reasonable
inference that no injury to personnel had been foreseeable or foreseen, and
that accordingly no relevant duty of care on the defenders' part towards the
pursuer had arisen. In any event, the
pursuer had failed to prove that the defenders were in breach of any such duty
of care. Every time the machine
malfunctioned, the defenders took prompt action by sending for the engineer,
and they only returned the machine into service after the engineer had passed
it as safe. It would, in counsel's
submission, be wrong for the court to blame the defenders for what was, in
truth, the first occasion on which this machine allegedly exposed anyone to the
risk of harm.
[14] In my opinion the pursuer's contentions are to be preferred
here. This was a machine with a recent
history of repeated malfunctioning despite the best efforts of engineers. In all likelihood, the malfunctioning was of
electrical origin, and manifested itself in various ways which the defenders'
manageress correctly recognised as posing a risk of harm to people in the
vicinity. Sudden jets of steam under
pressure could easily scald someone;
steam hissing out suddenly could give a person a fright, with unpredictable
consequences; and the same would apply
to any short circuit causing a flash. In
the witness box, the defenders' manageress very fairly and frankly admitted
that she could and should have done more than she did to ensure the safety of
people like the pursuer who had to work in close proximity to the machine. At best, she could have had the machine
replaced several weeks earlier, when it was clear that the engineers could not
fix it. Alternatively, people's safety
could have been secured by merely disconnecting the machine and taking it out
of service. There was another dispensing
machine in the canteen; the lecturers
had their own independent coffee supply; and I think that Miss Ritchie was right
in recognising that safety considerations should not have taken second place as
against her desire to keep the machine in service. Having seen and heard Miss Ritchie as a
witness, I formed a favourable impression of her. She gave her evidence openly and frankly, and
appeared to have thought about the issues and reached clear conclusions in her
own mind. Contrary to the defenders'
submission, I can see no good reason to reject her evidence, or to take her
concessions at anything other than face value.
They were in my view entirely reasonable in the circumstances, and the
defenders cannot therefore escape a finding of negligence in this case.
[15] Even if the occasion of the pursuer's accident was the first
time on which anyone had actually seen the machine emit some sort of flash, I
do not consider that that would materially affect the end result. If the malfunctioning of the machine was
electrical in origin, and had already manifested itself in various ways which
were recognised as potentially endangering the safety of people in the
vicinity, it does not seem to me to matter greatly that the particular
manifestation which caused the pursuer's accident was one which none of the
witnesses had encountered before. It was
still a manifestation of the same underlying problem; like the others, it took the form of an
emission from the machine; and a foreseeable
risk in every case was that someone nearby would get a fright with
unpredictable consequences. It cannot in
my view be said that what happened to cause the pursuer's accident was so
different in kind from previous occurrences as to absolve the defenders of
responsibility altogether. If on that
occasion the machine had exploded or gone on fire, or its casing had become
electrically live, or if it had started to emit scalding jets of tea, I think
that the defenders' liability would have been the same.
[16] For these reasons, I conclude that the pursuer has successfully
made out her case of fault against the defenders at common law.
Regulation 5(1) of the Provision and Use of Work Equipment Regulations
1998
[17] In light of the conclusion which I have reached on the common
law aspect of this case, it is not strictly necessary for me to resolve the parties'
dispute as to the proper scope and application of regulation 5(1) of the
Provision and Use of Work Equipment Regulations 1998. Nevertheless, recognising that this action
may be taken further, it is appropriate for me to set out my views on these
matters, and I now do so briefly below.
[18] So far as material for present purposes, the 1998 Regulations
provide as follows:-
"2(1) In these Regulations, unless the context
otherwise requires -
...
"use" in relation to work equipment means
any activity involving work equipment and includes starting, stopping,
programming, setting, transporting, repairing, modifying, maintaining,
servicing and cleaning;
"work equipment" means any machinery,
appliance, apparatus, tool or installation for use at work (whether exclusively
or not);
and related
expressions shall be construed accordingly.
...
3(2) The requirements imposed
by these Regulations on an employer in respect of work equipment shall apply to
such equipment provided for use or used by an employee of his at work.
(3) The requirements imposed by these Regulations on an employer
shall also apply -
(a) to a self-employed
person, in respect of work equipment he uses at work;
(b) ... to a person who has any
control to any extent of -
(i) work equipment;
(ii) a person at work who uses or
supervises or manages the use of work equipment; or
(iii)
the way in which work equipment is used at work, ...
...
4(1) Every employer shall
ensure that work equipment is so constructed or adapted as to be suitable for
the purpose for which it is used or provided.
(2) In selecting work equipment, every employer shall have regard to
the working conditions and to the risks to the health and safety of persons
which exist in the premises or undertaking in which that work equipment is to
be used and any additional risk posed by the use of that work equipment.
(3) Every employer shall ensure that work equipment is used only
for operations for which, and under conditions for which, it is suitable.
...
5(1) Every employer shall
ensure that work equipment is maintained in an efficient state, in efficient
working order and in good repair."
[19] Under reference to cases such as English v North Lanarkshire
Council [1999] SCLR 310 and Donaldson
v Hays Distribution Services Limited
&c [2005] CSIH 48, it was a matter of agreement between the parties
that these Regulations must be given a liberal and purposive interpretation so
as to ensure that they fully implemented the minimum safety objectives of the Work
Equipment Directive (Council Directive 89/655/EEC of 30 November 1989), under
which they were promulgated. The parties
also agreed that if Regulation 5(1) applied, it imposed an absolute obligation
on the defenders with regard to the "efficient state" of work equipment,
consistently with the interpretation given to similarly-worded statutory
provisions for more than half a century:- cf Galashiels Gas Co Limited v Millar
[1949] AC 275; Stark v The Post Office
[2000] ICR 1013. Where the parties
differed was as to the proper ambit of Regulation 5(1), and in particular as to
the circumstances which would bring it into play. According to counsel for the defenders,
Regulation 5(1) could be prayed in aid only by an employee who was actually
using work equipment in the course of his or her work at the time when an
accident occurred. Counsel for the
pursuer, on the other hand, maintained that the scope of the statutory duty
extended far wider than that, and inter
alia conferred protection against any injury sustained by an employee
through defects in, or malfunction of, work equipment which had been provided
for the use of the workforce. Since, on
the evidence, the pursuer was not physically making use of the defenders'
drinks dispensing machine at the time of her accident, resolution of this
contested issue between the parties would effectively determine the success or
failure of the sole statutory case which she now made against the
defenders.
[20] The proposition advanced by counsel for the defenders was that
the 1998 Regulations, properly construed, did not protect someone like the
pursuer who was merely passing by, or standing near the machine in question
when her accident occurred. As
illustrated by comparing Regulations 4 and 5, the 1998 Regulations contained
many different provisions designed to protect employees on different grounds in
a wide range of situations. They formed
part of a group of Regulations promulgated at the same time which extended
protection to workers, not just in relation to work equipment, but in relation
to places of work and other aspects of the working environment pursuant to the
over-arching Framework Directive (Council Directive 89/391/EEC of 12 June 1989). Since a pursuer might legitimately found on
several provisions of these Regulations at the same time, it was necessary to
recognise that each such provision had its proper scope beyond which it was not
intended to apply. In other words, there
had to be some reasonable limitation placed upon the broad, purposive
interpretation which the defenders acknowledged as appropriate vis‑à-vis the
Regulations as a whole, and the Court must be careful not to read more into any
given provision than was actually there.
It was significant, in counsel's submission, that her researches had not
thrown up any decided case in which a pursuer or plaintiff had successfully
founded on Regulation 5(1) in circumstances where he or she was not
actively using the alleged work equipment at the material time, nor where the
alleged work equipment was not, on the evidence, provided for the purposes of
his or her work.
[21] In support of these submissions, counsel referred me to
paragraphs 103 and 117 of the HSC Code of Practice and Guidance on the 1998
Regulations, which appeared to focus on actual use despite the apparently wide
terms of paragraph 62. She also referred
me to a number of decided cases in which damages were awarded under the Regulations
to injured parties actually using equipment of some kind, and to some in which
recovery was denied to individuals who were not. By way of illustration, Ball v Street [2005] EWCA CIV 76 was a case in which a farmer personally using a haybob machine was held
entitled to recover damages from his neighbour from whom the machine had been
temporarily acquired, and who still exercised the requisite degree of control
of that machine for the purposes of Regulation 3(3). Similarly, Hislop v Lynx Express Parcels
[2003] SLT 785 could be characterised as a case where the pursuer was using his
van at the time when its radiator cap blew off and injured him. In P R
P v Reid [2006] EWCA CIV 1119,
the issue was again whether the pursuer was using a defective passenger lift
"at work" for the purposes of the 1998 Regulations, and after proof it was held
that she was.
[22] By contrast, Donaldson, supra, and Hammond v Commissioner of
Police of the Metropolis &c [2004] ICR 1467 were cases which drew a
legitimate distinction between "work equipment" used by persons in the
performance of their work, and a mere workpiece on which work was carried out. In Donaldson,
it was held that a lady visiting the loading bay of a store where she had
purchased furniture could not found on the (then applicable) Work Equipment Regulations
1992 against the owners of the lorry which crushed her. In Hammond, it was held that a wheel bolt
which sheared on a van under repair in the defendant's garage was not "work
equipment" for the purposes of the 1992 Regulations. At paragraph 31 of that judgment, the Court
of Appeal warned against any excessively wide interpretation of the Regulations
which could impose onerous and inappropriate constraints on small
businesses. Montgomerie v Glasgow Prestwick
International Airport Limited &c (Temporary Judge J G Reid QC,
unreported 29 June 2004) was another case in the same category, where, at
debate, it was held that the malfunction of an aircraft door catch did not
entitle an airport baggage handler on whom the door fell to recover damages
under inter alia the statutory
precursor of Regulation 5(1).
[23] In the present case, counsel submitted, the circumstances
clearly took the pursuer outwith the intended scope and application of
Regulation 5(1). Neither she nor anyone
else was actively using the machine when the accident occurred. The machine had been provided primarily for
the self-service use of students and other canteen customers, and was only
incidentally or intermittently used by the pursuer and others in the course of
their work. As a matter of reasonable
construction, Regulation 5(1) could not properly be held to afford protection
to an injured party in such circumstances, and it was the pursuer's misfortune
that her advisers had sought to found on Regulation 5(1) rather than on some
other provision within the group of Regulations giving effect to the European
Directives on safety at work.
[24] The position adopted by counsel for the pursuer was quite
different. He invited me to adopt a broader
and more liberal approach to the construction of the 1998 Regulations,
stressing that Regulations 3(2) and 4(1) - especially the former - expressly
encompassed equipment, not merely where it was in actual use by an injured
party, but also where it was "provided for use" or "used" by workers in general. Of similar significance was the definition of
work equipment in Regulation 2(1), which contained the phrase "for use" as
opposed to wording which might be thought to refer to actual use at any given moment. Even if (as counsel for the defenders
submitted) the machine was primarily provided for self-service use by students
and other canteen customers, it was also provided for the use of the pursuer
and other members of staff in the course of their work. The pursuer and her colleagues did actually
use the machine on a regular basis in order to perform their duties, even if
this was on a non‑exclusive basis with others being permitted to use it as
well. At the time of the accident, moreover,
the machine was switched on, primed and in a real sense "in use", since its
operational state was designed to, and did, facilitate the job of canteen
workers such as the pursuer in serving hot beverages to customers. It was therefore immaterial, in counsel's
submission, that the pursuer was not physically operating the machine at the
moment when the accident occurred.
[25] Looking at the issue more broadly, the narrow interpretation
which had been urged on the Court by counsel for the defenders gave no content
to the terminology of the key provisions by which the scope of the 1998
Regulations was defined. It would also
lead to the absurdity of equipment floating in and out of the scope of Regulation 5(1),
depending on the chance of whether a particular individual happened to be using
it at the time. That could not sensibly
have been Parliament's intention in promulgating the 1998 Regulations,
especially as such an interpretation would largely deny to "workers at work"
the degree of protection contemplated by the Work Equipment Directive. Hislop,
supra, was a case in which the
pursuer succeeded notwithstanding the fact that he was not driving or "using"
his van at the time when its radiator cap blew off. However, even if that case arguably fell within
the scope of the extended definition of "use" within Regulation 2(1) of the
1998 Regulations, and even if no decided case could be found in which liability
under Regulation 5(1) had been held established in relation to a pursuer or
plaintiff who was not actually using equipment at the relevant time, there was
still no justification for the severe limitation which counsel for the
defenders sought to read into the 1998 Regulations. It was neither necessary nor legitimate to go
beyond the clear terms of the Regulations themselves, bearing in mind that in
certain respects they omitted potential restrictions which had formed part of
their precursor Regulations in 1992. If
equipment was made available for use by workers in the workplace, then in
counsel's submission the strict terms of Regulation 5(1) must necessarily
apply. Unrealistic metaphysical
questions as to when actual use might be said to start or finish would thereby
be avoided, and workers in general would receive an appropriate degree of
protection against injuries caused by defective work equipment. Significantly, Articles 4a and 6 of the Work
Equipment Directive of 1989 covered situations in which direct use was not in
issue, and this was a further indication of the fallacy of the defenders'
approach.
[26] In my opinion the pursuer is entitled to succeed under
Regulation 5(1) of the 1998 Regulations.
As the parties agree, the obligation to "... maintain in an efficient
state" is absolute in nature, so that the emergence of any defect or
malfunction automatically constitutes a breach irrespective of whether that
defect or malfunction could have been foreseen or avoided. The only question for determination is thus whether
the 1998 Regulations, and in particular Regulation 5(1), apply in the
circumstances of this case. In my
judgment they do.
[27] A convenient starting point is to put this issue into its
well-known context. For the best part of
a century, similar statutory provisions of a general nature have been
understood as conferring protection on inter
alios workers at work, that is, all persons working within a relevant
undertaking, even if not actually engaged on the work which they were employed
to do:- c.f. Redgrave's Health &
Safety, 4th Ed., paragraph 2.26 ff.
The Factories Acts 1937 and 1961 were so construed and applied, as were
many of the Regulations promulgated under them.
The Health and Safety at Work Act 1974, under Section 15 of which
the Work Equipment Regulations 1998 were promulgated, tends to go even further,
providing by Section 1(1) inter alia
as follows:-
"The provisions
of this Part shall have effect with a view to -
(a) securing the
health, safety and welfare of persons at work;
(b) protecting
persons other than persons at work against risks to health or safety arising
out of or in connection with the activities of persons at work;......"
Section 47(2) of that act
further states in general terms that ....
"Breach of a
duty imposed by Health & Safety Regulations shall, in so far it causes
damage, be actionable except in so far as the Regulations provide otherwise".
No doubt a restricted (or enhanced)
ambit for particular Regulations may be expressly stated or clearly implied, -
the true intention being a matter of context and construction in every case - ,
but prima facie it seems to me that Regulations
having a "broad ambit" pedigree, and expressed in familiar terminology, should
not be construed in a manner calculated to deny protection to individuals, or
to classes of individuals, who would have enjoyed protection in the past.
[28] In this connection, I would respectfully disagree with the observation
of the Lord Ordinary in English,
supra, at page 319C - D, to the
(apparent) effect that regulations promulgated in implement of any of the
European Safety Directives must be construed as if they had no other pedigree,
and that ".... An approach based on the Factories Acts is fundamentally
misconceived" and "potentially misleading".
Unless that observation was intended to strike at construction by
reference to the Factories Acts alone, it is in my view unsound in
circumstances where the provenance and terminology of particular provisions can
be traced back to earlier Statutes and Regulations, and a fortiori where Regulations are promulgated under a statutory
power which long pre-dated the Directives.
As the Court of Appeal recently held in Stark, supra, the
decision of the House of Lords in Galashiels
Gas Co Ltd v Millar is still of
key significance in pointing to the absolute nature of the obligation contained
in Regulation 5(1) of the Work Equipment Regulations 1998, and the
relevance of the latter decision in that context is of course a matter of
agreement between the parties in this case.
For the avoidance of doubt, I am not
suggesting that any particular approach to construction should be adopted
merely because it was settled under
earlier legislation now repealed.
Plainly such an approach would be untenable in present
circumstances. The point is rather that
earlier legislation in the same field, and perhaps also expressed in familiar
terminology, may well have a continuing role to play in helping to identify the
ambit and level of protection which later Regulations should be held to
confer.
[29] Against that background, I turn first to look at the overall
structure of the 1998 Regulations.
Significantly, while the protection afforded by some provisions is
specifically limited to persons performing specific activities, - see for
example Regulations 12(1), 17(2) and 26 - , that is plainly not the case
with most of the other provisions, such as Regulations 4(1), 5(1) and (2),
6(1), 11(1), 17(3)(a) and (b), 20, 23, 24, 25, 28 and 32. If, according to counsel for the defenders,
the 1998 Regulations as a whole were intended to confer protection only on
individuals actually using work equipment at any given moment, it is hard to
understand why certain Regulations, but not others, were explicitly restricted
in that direction.
[30] Focusing now on Regulation 5(1), and at the same time on
the key definitional provisions in Regulations 2(1) and 3(2), I can find
nothing in their terms which would allow me to hold that they were intended to apply
only where equipment was actually in use by the injured party at the moment of
an accident. While actual use would undoubtedly
be covered under Regulations 2(1) and 3(2), these provisions also cover
equipment "for use" or "provided for use" by workers at work. By ignoring the preposition "for", the severe
limitation urged upon me by counsel for the defenders is in my view at variance
with the actual terminology of the provisions which fall to be construed. Furthermore, the striking absence of
restriction in the wording of Regulation 5(1) seems to me to take on
particular significance by reference to Section 47(2) of the enabling Act.
[31] Over and above that, I do not consider that the proposed
limitation would lead to a sensible or acceptable result. For one thing, the widespread protection
envisaged for "workers at work" under the relevant series of European
Directives could hardly be achieved if it applied only intermittently, and then
only in favour of someone actually using work equipment at a given moment. I am not attracted by a suggested
interpretation which would permit recovery to (say) a lathe operator injured by
the catastrophic failure of his machine while he was actually using it, but none
at all to (a) an apprentice or trainee observing the work; (b) a supervising foreman or manager; (c) a neighbouring lathe operator working on
his own machine; or (d) the original
lathe operator while in the vicinity of the machine either before or after
actual operation. Similarly, I am not
attracted by a suggested interpretation on which the sudden collapse of a hoist
or scaffolding would afford no right of action to an employee hurt while
working underneath. In my view such
limitations would, as counsel for the pursuer submitted, lead to a strange
situation in which work equipment would somehow float in and out of the scope
of the Regulations during the course of a working day, and in which extremely difficult
questions would arise as to the point at which the statutory protections might
be held to apply or fly off. In my
judgment such an unreasonable state of affairs should, if possible, be avoided,
especially having regard to the liberal and purposive approach which was
discussed in cases such as English
and Donaldson. It is therefore with little hesitation that I
decline to accept the contentions asserted by counsel for the defenders.
[32] On a straightforward application of the terms of Regulations 2(1)
and 3(2), I consider that the drinks dispensing machine was provided by the
defenders for use by inter alios
canteen employees such as the pursuer, and was moreover fully operational and
available for such use at the material time.
Indeed, I think that it might reasonably have been argued (had it been
necessary to do so) that such operational availability rendered the machine continuously
"in use" as part of the means by which, throughout the working day, the canteen
staff as a whole discharged their function of providing hot beverages for the
benefit of customers. Even without
recourse to that argument, however, acknowledging that it was not developed in
any detail in the discussion before me, I am satisfied that the machine was
"work equipment" as defined for the purposes of the 1998 Regulations, and held
that qualifying character at the time when the pursuer's accident
occurred. That being so, there is in my
view no reason why the pursuer, as a regular staff user of the machine, should
not be held entitled to take advantage of the important protection enshrined in
Regulation 5(1). In the result, I conclude
that the 1998 Regulations apply; that
breach of the absolute obligation under Regulation 5(1) has been established; that such breach caused the pursuer's accident;
and that the pursuer's statutory case
against the defenders has been made out.
Contributory Negligence
[33] This issue was only faintly argued before me, and did not
really figure in the evidence at all.
The suggestion was simply that the pursuer had overreacted to any fright
which the machine may have given her, and that she must therefore bear some
responsibility for the injuries which she sustained. On a broad basis, it was said, this
responsibility might be assessed at 25 per cent. Some reference was made in this context to the
entries in the hospital records which suggested that the pursuer may have
slipped, but since the authors of these entries were not led, and their
accuracy was disputed by the pursuer, I am not prepared to accord them any
significant weight. In reply, counsel
for the pursuer reminded me that the relevant allegation had not been put to his
client or to any other witness, and submitted that there was no evidential
basis on which any finding of contributory negligence could properly be
made.
[34] Had the matter of overreaction been fairly put to the pursuer
and other apparent eyewitnesses, I might well have been inclined to make a
finding of contributory fault in this case.
Indeed, had such an issue been explored in evidence, that might well
have affected my conclusions on the issue of causation in general. As mentioned in paragraph [6] above, a
person instinctively reacting to a fright may understandably slip, trip or
collide with something, but it is less easy to understand how, in the absence
of any such feature, a fright could lead to a catastrophically heavy fall on to
a hip and wrist at the same time.
However, since the mechanics of the pursuer's fall were essentially not
explored in evidence, and since the suggestion of overreaction was not raised by
the defenders with anyone, I am not prepared to make the finding of
contributory negligence for which they now contend.
Quantum
[35] By the Joint Minute tendered on the second day of the proof, the
parties have helpfully agreed solatium
at an overall total of £20,000, with half of that figure being attributable to
the past. They have also agreed a range
of figures to represent the pursuer's past and future loss of earnings,
depending on the date to which, but for the accident, she might have been
expected to carry on working for the defenders.
The issues remaining live for my determination are therefore (i) the
pursuer's entitlement to wage loss within the scope of the agreed framework,
and (ii) the level of any award in name of services under Section 8 of the
Administration of Justice Act 1982. In
the course of his submissions at the close of the proof, counsel for the
pursuer helpfully confirmed that his client's claim for services was so restricted,
and that no claim under Section 9 of the 1982 Act was now being advanced.
[36] On the wage loss issue the pursuer's position was that, on the
evidence, she was fully fit for work at the time of the accident
notwithstanding a previous heart attack and certain other health
complaints. She was a keen and effective
worker, as confirmed by the defenders' manageress, Miss Ritchie, and it would
have taken something significant to prevent her from working on until her full
retirement age of 65. At the time of the
accident she was aged 58, and she will be 62 on her next birthday in February
2007. Although clearly disabled by the
accident, there was no reason to think that the pursuer's employment with the
defenders would otherwise have come to a premature end. She should therefore be compensated for wage
loss on the basis that, but for the accident, she would probably have worked to
the age of 65. As she explained in
evidence, she liked her job and the camaraderie which it brought, and it also
meant a lot to her financially having regard to the fact that her husband was
not a high earner.
[37] As against that, counsel for the defenders asked me to hold
that, even without the accident, the pursuer would probably not have continued
to work for the defenders beyond the age of 60 or, failing that, that her
employment would probably have come to an end for health reasons at some time
between the ages of 60 and 65. On the
evidence, the pursuer had had a heart attack in 1996, and her medical records
contained references to angina, asthma, cholesterol problems, a minor tumour
and an episode of dizzy spells for which no cause could be found. She was also a little hard of hearing and a
letter from her GP had mentioned poor vision.
Such a health record could not be ignored by the Court, and on the
balance of probabilities it should be held that, but for the accident, the
pursuer would have retired at age 60 or at least before the age of 65.
[38] In the absence of any evidence from the pursuer's GP, or indeed
from the author of any of the medical reports produced, I am not prepared to
attach any great significance to the entries on which counsel for the defenders
sought to rely. On the evidence before
me, the pursuer had had no problem in holding down her job on a full-time basis
following the heart attack which she sustained in 1996. None of the other supposed health complaints
seem to have affected her working capacity.
She clearly enjoyed her work and was a valued employee, and if the
accident had not happened there is no reason to think that she would not have
been able to continue working indefinitely.
In the witness box, although clearly disabled and in pain from the
effects of the accident, the pursuer insisted on standing for around one hour
and gave no indication of being troubled by any cardiac problem, angina,
asthma, tumour or dizziness. She
mentioned that she was a little hard of hearing, but essentially had no
difficulty in following the proceedings.
Equally she had no apparent difficulty (with the aid of her glasses) in
reading documentary productions. I am
therefore unable to see any basis on which I could properly hold that, as a
matter of probability, the pursuer would have retired on health grounds by the age
of 60 if the accident had not occurred.
Indeed, judging by the pursuer's appearance and demeanour at the proof,
and her obvious desire to carry on working for as long as she could, there is
no reason to think that, but for the accident, she would have contemplated
early retirement before the age of 65.
On the other hand, in making a present-day award to cover future loss
yet to be sustained, it is in my view appropriate to make some discount for
contingencies, bearing in mind that the pursuer is not in the first flush of
youth and that her general health is perhaps rather less than perfect. Approaching the matter broadly, I think that
it would be appropriate to reduce future loss of earnings by one year, and on
that basis the award under this head will (on agreed figures) be £16,279.36
attributable to the past and £14,253.97 for the future.
[39] Turning to the claim for services, this concerned the
activities of the pursuer's husband during four distinct periods, namely, (i)
the period when the pursuer was in hospital; (ii) the immediate post-discharge period when
the pursuer still had a plaster on her fractured wrist and required help with
all aspects of personal care; (iii) the
subsequent period to December 2003 during which personal care was no longer a
problem, but substantial help was required with domestic activities including
cooking, housework and shopping; and
(iv) the succeeding period to date and in the future during which the pursuer's
husband's contribution reflected only heavy housework and some assistance with
shopping. It can be said at once that
the evidence of the pursuer and her husband on these issues was not
impressive. Whether by accident or by
design, some of their estimates of average daily or weekly times spent by Mr Given
on such activities seemed absurdly high and out of all proportion to what might
realistically have been the case. For
example, when asked about the immediate post-hospital phase, the pursuer
claimed that her husband's commitment extended to 7-8 hours daily with a
neighbour helping out when he was at work.
That figure was not confirmed by her husband, but at various points of
his evidence he also disclosed what I regarded as a tendency to
exaggerate. For example, he estimated
his own contribution to housework in the third period mentioned above as
representing 2-3 hours daily, but under pressure from counsel for the pursuer
he agreed that maybe half an hour a day might be a bit nearer the mark. He also appeared to me to be exaggerating the
extent and likely duration of shopping trips, and more generally the continuing
extent of the pursuer's disability.
According to Mr Di Paola, the consultant orthopaedic surgeon
whose written reports were agreed as the equivalent of his oral evidence, there
was no major objective support for the pursuer's subjective claims of
continuing weakness and disability in her right wrist, and with appropriate
motivation there was no reason why normal function of that limb should not be
regained.
[40] In all the circumstances, I am not prepared to make an award
for services here on the multiplier/multiplicand basis which counsel for the
pursuer suggested, especially having regard to the relatively high proportion
of total damages which that would represent.
To be fair, counsel indicated that he would have no complaint if a lump
sum award were to be made here instead, and this coincided with the approach of
counsel for the defenders who suggested a round figure of £5,000 in that
connection. In my view, that is indeed
the appropriate course to follow in a case such as this where the detailed
evidence must be regarded as unreliable.
Furthermore, given the restriction of the claim to that arising under
Section 8 of the 1982 Act, I must discount any activities on the part of Mr
Given from which he himself might derive benefit. Section 8 applies only to necessary services
rendered by a relative to an injured party.
Taking all of these considerations into account, I do not think that
counsel for the defenders was far off the mark when she suggested an overall
figure of £5,000, of which the greater part should be attributed to the past
and bear interest. I therefore award the
pursuer a lump sum of £5,000 under this head, attributing £4,000 of that figure
to the past.
[41] In the result, the pursuer's damages are assessed at a total of
£55,533.33, of which £30,279.36 may be attributed to the past. As regards interest, it is agreed that
interest on the past wage loss of £16,279.36 should run at 4 per cent per annum
for three years only, since the pursuer's wages continued to be paid for the
first six months after the accident.
This brings out a figure of £1,953.53.
As regards solatium and
services, these awards are substantially front-loaded and will bear interest from
the date of the accident. At an annual
rate of (say) 6 per cent per annum for 31/2 years, this brings out further
interest of £2,940. In aggregate,
therefore, the pursuer's claim inclusive of all interest to date is valued at
£60,426.86.
Decision
[42] For all of the foregoing reasons, I hold
the defenders liable in damages to the pursuer in respect of the accident which
she sustained on 30 May 2003,
and assess their liability at £60,426.86 inclusive of all interest to the
present date. Decree will therefore be
pronounced in the pursuer's favour for that sum, with interest thereon at the
rate of 8 per cent per annum from the date of decree until payment.
