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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 38
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PD991/03
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OPINION OF LORD BRODIE
in the cause
WILLIAM McFARLANE
Pursuer;
against
CORUS CONSTRUCTION
AND INDUSTRIAL
Defender:
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Pursuer: Love; Russell Jones and Walker
Defenders: Geoff Clarke; Simpson &
Marwick, WS
7 March 2006
Introduction
[1] The pursuer in this action for damages in
reparation for personal injury is William McFarlane. His date of birth is 18 September 1957. On Friday 17 November 2000 he was working in
the course of his employment with the defenders as a crewman at the defenders'
Clydebridge Steel Works, Cambuslang. The
pursuer has worked at Clydebridge since 1973.
He was initially employed by British Steel.
[2] The defenders are designed in the
pleadings and were referred to at the proof simply as Corus Construction and
Industrial. They are, however, admitted
to be a limited company with a place of business at P O Box 1, Brigg Road,
Scunthorpe, North Lincolnshire. Nothing turns on their precise corporate name. The defenders acquired Clydebridge from
British Steel.
[3] The pursuer sues in respect of a flexion
and rotation injury to his back which he alleges that he suffered on 17
November 2000. The defenders' position
is that they do not know and do not admit the manner and circumstances in which
the pursuer came to sustain injury (with the result that the fact of the
accident and precisely what the pursuer may have been doing at the time are in
issue) but the fact of injury is not disputed and in the event that the
defenders are liable to make reparation to the pursuer, quantification of
damages (before any deduction in respect of contributory negligence) is agreed
at the sum of г4000, with interest thereon at the rate of 8 per cent a year
from the date of decree until payment.
[4] I heard proof in the action on 10, 11 and
12 May 2005. Mr Love, Advocate, appeared
for the pursuer. Mr Geoff Clarke,
Advocate, appeared for the defenders. The
witnesses for the pursuer were: the pursuer; James Pitkeathly, a team worker
employed by the defenders; David
Dickson, a plate inspector; Ross Innes,
a team worker; Fraser Chambers, a team
worker; and Dr John McCullough, a consultant engineer. There was one witness for the defenders: Thomas McCallum, a senior team leader. Mr Love commenced his submissions on 12 May
2005. Submissions were completed at a
continued diet on 10 October 2005.
The pursuer's case on record
[5] The pursuer's case on Record is that on
17 November 2000 he was using an electrically powered grinding wheel to grind
out surface defects on a steel plate. The
grinding wheel was attached to a metal framework mounted on two wheels which
allowed it to be pushed over the surface of the steel plate. The grinding wheel with its attached
framework was referred to as a "barrowbuff" machine. The steel plate that the pursuer was working
on was 100 mm thick. The pursuer avers
that as he pushed the barrowbuff over the surface of the steel plate one of its
wheels dropped over the edge, in consequence of which he sustained his injury. He founds on fault at common law by reason of
failure to take reasonable care to provide him with safe plant and equipment
and a safe system of work. He also
founds on breaches of the statutory duties imposed by regulations 4, 8 and 9 of
the Provision and Use of Work Equipment Regulations 1998 and regulation 4 of
the Manual Handling Operations Regulations 1992.
The Barrowbuff
[6] The barrowbuff is illustrated in four
photographs (numbers 7/1 to 7/4 of process).
It was manufactured by defenders or their predecessors, British Steel. Photographs numbers 7/1 and 7/2 show the
witness Thomas McCallum in the position that would be adopted by an operator,
albeit that Mr McCallum is standing more erect than would be the case if he was
actually operating the machine. The
barrowbuff has the appearance of a barrow formed from a metal base plate
(described by the pursuer as the "bed of the barrowbuff") with two handles
which rise to about the height of the operator's waist. There is a crossbar between the two handles,
again at about the level of the operator's waist. The crossbar is padded. The barrowbuff has two cast iron wheels on
one axle. The wheels do not have tread. Mounted on the base plate is a mains operated
industrial electrical motor with a blue painted casing. An electrical supply cable leads back from
the motor toward the operator. A box
with "on" and "off" switches is mounted on the right hand handle (from the
operator's perspective). The motor turns
a belt which in turn drives the carborundum grinding stone which is positioned
below the base plate, nearer to the operator than the wheels. The motor's drive mechanism is guarded by a
cage which is most clearly illustrated in photograph number 7/3. The cast iron wheels are off-set in relation
to the base plate in that while the right hand wheel is positioned beyond the
base plate and is therefore visible to the operator, the left hand wheel is
positioned below the base plate and is therefore not visible to the operator. The base plate is not marked so as to
indicate the position of the left-hand wheel.
The pursuer described the left-hand wheel as being on his blind side. He would have to make a judgement as to
exactly where it was positioned at any particular time.
[7] The barrowbuff is heavy. The pursuer when giving evidence said that he
had recently seen something that suggested to him that its weight was 390
kilograms. Dr McCullough had been told
that it weighed between half a ton and three quarters of a ton. When it was put to him that it might only
weigh 390 kilograms (a weight spoken to in evidence by Mr McCallum) his
response was: "That is still heavy".
[8] The pursuer, Mr Pitkeathly, Mr Dickson,
Mr Innes, and Mr McCallum gave evidence as to how the barrowbuff was used to
grind steel plates laid flat on the floor.
I consider that Mr Love was right to submit that as with the details of
the construction of the barrowbuff, the evidence revealed no real dispute as to
the mode of its operation. The grinding
stone turned at about 200 to 250 revs per minute in an anti-clockwise direction. The revolutions of the grinding stone forced
the barrowbuff backwards towards the operator.
The electric cable running from the motor had to be controlled by the
operator as he used the barrowbuff. The
erect posture adopted by Mr McCallum in photographs 7/1 and 7/2 might suggest
that the barrowbuff could be operated with only limited forward pressure being
exerted by the operator. That was not
the evidence of those who spoke to having experience of its operation. They described having to lean forward against
the padded crossbar and extending their left hand down the left handle to a
point about where the red painted part shown in photograph 7/4 comes to an end,
with a view to manoeuvring the machine. When
asked how he moved the barrowbuff around, the pursuer said that he did so by
pushing and pulling. When asked how much
weight was placed on his arm, he replied that there was "quite a bit of force"
on his arm. Operating the barrowbuff
was, according to the pursuer, a dirty and heavy job.
[9] The barrowbuff was started by pressing
the green "on" button. The operator then
waited for the grinding stone to get up to speed, holding it off the ground by
exerting pressure on the handles of the barrowbuff. He then lowered the grinding stone slowly on
to the plate, while holding the balance of the machine with his body and left
arm. If he lowered it
too far, the grinding stone would "burn" (cut too deeply into) the metal. The grinding stone might stop. On the other hand if the operator did not
lower it far enough the stone would not grind to a sufficient depth. The grinding process wore the stone causing
it to reduce in size. That in turn
required the operator to adjust the height at which the handles were held. This all made it necessary for the operator
to maintain his concentration. Moving
the barrowbuff required it to be pushed and pulled by the operator, using his
arms and body. It required the
application of force.
[10] In 2000 the grinding of plates was done in
what the pursuer described as the Dressing Area. The floor was composed of railway sleepers
laid on compacted hardcore. This was a
different area from that shown in photographs numbers 7/1 to 7/4.
[11] The barrowbuff could be pulled back by the
operator and bounced up on top of thinner plates, those of 10mm, for example. This might require the help of another worker. In the case of thicker plates it was
necessary to use a forklift truck to place the barrowbuff on top of the plate.
[12] In his
evidence Mr Dickson described the barrowbuff as "improvised". Dr McCullough
(who had never seen it in operation) described it as "crude". Mr McCallum agreed that the barrowbuff was
awkward and heavy. He further agreed
that its operation required concentration and yet was monotonous. Given this and the other evidence about the
barrowbuff, which, as I have already said, was uncontroversial, I consider that
Mr Love was fully justified in characterising the operation of the barrowbuff
as a difficult and awkward job.
Grinding surface defects and dressing to gauge
[13] The purpose of the use of the barrowbuff
was to reduce the thickness of plates. The
evidence indicated that there might be a need to do this in broadly one of two
sets of circumstances. The first was
where there were particular areas on the plate which were thicker than the
specified gauge or were otherwise imperfect (the pursuer instanced cracks and
"scale pitting"). Making these local
areas smooth and level with the rest of plate might be described as grinding
out "surface defects." The pursuer avers on Record that he was grinding out
surface defects when he suffered his accident.
However, it appeared from the evidence that there was a second set of
circumstances in which the barrowbuff was used.
That was where the thickness of the plate required to be reduced over
its whole surface. Thus, according to
the pursuer, a 11mm plate might be ground down to 10mm. This was referred to as "dressing to gauge". Dressing a large plate to gauge might require
an operator to work on the task over his whole shift for days or weeks on end.
[14] There was an automated process for dressing
to gauge, using a "linisher" machine but this machine was situated in the
defenders' Dalziel Works in Motherwell. There
was no similar machine available at Clydebridge.
Edgers, liners and sideplates
[15] When using the barrowbuff to grind close to
the edge of a plate there would be situations when one wheel would be off the
plate. In these situations, in order to
keep the barrowbuff level, the operator would lay an object of equivalent
thickness alongside the plate on which the wheel could then run. Ideally this object would be a steel plate of
the same gauge as the plate that was being ground but the operator would use
what he could find, sometimes by scavenging all over the works. The object used in this way was variously
described in the evidence as an "edger", a "liner" or a "side-plate". I understood these to be synonymous
expressions. The pursuer spoke of
"building" edgers by which I understood him to mean that more than one plate or
similar object might have to be placed one on the top of the other in order to
achieve the requisite thickness. The
pursuer had never been instructed in the use of edgers. It was something that the operators had
developed for themselves. However, in
the pursuer's opinion, there was "no way" a plate could be dressed to gauge
without using edgers. Without them, he
explained, a wheel would fall off the edge.
[16] When working close to the edge an operator
might have to stand off the plate.
Training, risk assessment and risk
[17] The pursuer was very experienced in the use
of the barrowbuff. He had, however,
received no formal training, other than over about two hours in 1979 when he
got some practical instruction from an older employee. He had not received any written instructions
in relation to what might be safe working procedures.
[18] The defenders carried out no risk
assessment whatsoever in relation to the use of the barrowbuff.
[19] The parties are agreed in terms of their
Joint Minute that there is a risk of injury to the operator of the barrowbuff
in the event that the machine falls off the edge of a steel plate. That there was a risk that the barrowbuff
would fall off the edge of a steel plate during the course of its operation in
the absence of an edger was accepted by Mr McCallum. The pursuer was aware of the risk but "no one
knew that it would topple over."
The accident
Evidence
[20] The pursuer described the plate on which he
was working at the relevant time as being rectangular. It was 8 metres in length by either 2.5 or 3
metres in width. It was of 100 mm
nominal thickness, although that might mean that it was in fact between 101 and
104 mm thick. It had been placed on the
wooden sleeper floor in the Dressing Area.
The plate was of excessive thickness: over-gauge. He was "dressing 'scale pitting' covering 100
per cent" of the surface area of the plate.
He had to dress the defects out but the plate was over gauge. The pursuer explained that "it could be taken
down to 96.8mm." He was using the barrowbuff.
He had been working on the central part of the plate for about a week
and a half during which time he had taken off up to 2.5mm. He had worn down about five grinding wheels
in that time. He "had dressed the full
central area." As I understood his description, the pursuer's technique was to
start "at the short end" (with the barrowbuff pointed down the length of the
rectangular plate). He then made a short
cut by moving the barrowbuff forward and then bringing it back and to the left. He would then make a further short cut
parallel to the first cut and proceed in this way across the width of the
plate.
[21] On 17
November 2000 the pursuer had not positioned edgers. He did not consider them to be necessary,
having regard to the stage of the operation that he had reached. He was working up to a distance of 14 inches
from the left-hand edge (from his perspective) along the 8 metre length. He would have used edgers at the appropriate
time. It was his intention to reduce the
thickness in "the central area" and then ask the quality control manager to
check whether it was within acceptable parameters. According to the pursuer he would "never put
an edger on the small end". What I
understood him to mean by that was that when dressing a rectangular plate such
as that on which he was working on 17 November 2000 he only placed edgers at
the respective edges of the length (as opposed to the width) of the plate.
[22] In cross-examination the pursuer confirmed
that what he had been engaged on at the relevant time was a "100 per cent grind
or polish". He said that he had told his
lawyers that before the proof. He
confirmed that while for a 100 mm nominal plate to exceed that thickness
amounted to a defect a customer would accept a plate that was 2 mm under 100 mm. When challenged that the acceptable tolerance
was less, the pursuer said that he did not see that.
[23] It was the pursuer's evidence that at about
7.00 or 7.30 pm, after the tea break on the back-shift, as he was working near
the left hand edge, but with his feet on the plate, the barrowbuff fell off the
edge of the plate and flipped right over onto "the motor side" (indicating the
left hand side of the barrowbuff). As a
result the pursuer "twisted [his] back".
He was immediately aware of having hurt himself. He switched off the barrowbuff but left it on
its side.
[24] There was no direct evidence as to how it
was that the barrowbuff came to be in a position from which it could fall off
the edge of the plate, the pursuer having said in examination in chief that
edgers were "not at that point required".
[25] It was the pursuer's evidence that no one
saw what happened but his recollection was that Mr Pitkeathly and Mr McCallum
(then acting as shift manager in place of John Colligan who was off sick) were
standing nearby. He approached them and
told them that the barrowbuff had slipped.
He later told Mr McCallum, who was then in his office, that he could not
continue with his shift as he had hurt his back. Mr McCallum told him to take it easy. The pursuer did no more work that evening. He had a restless night but, according to
him, he returned to work the next day (17
November 2000 was a Friday).
However, he spent the whole of the shift sitting in the bothy. He thought that he had spoken to Mr Colligan,
but he has been since told that Mr Colligan was not at work that day. The pursuer was challenged in
cross-examination as to whether he had reported the occurrence of an accident. He was positive that he had reported an
accident to Mr MacCallum. In
cross-examination he said "it was reported to whoever was the manager that
Friday, if not John Colligan, then someone else". He denied that he had said no more to Mr
MacCallum than that he had a sore back.
[26] Mr Pitkeathly spoke to an occasion which he
accepted was in November 2000 when he saw the barrowbuff lying on its side
beside a plate. The barrowbuff was lying
on its right side. It was a thick plate. He put the barrowbuff back on the plate. Mr Pitkeathly met the pursuer who said "I
have jiggered my back" or words to that effect.
Contrary to the pursuer's account Mr Pitkeathly said that Mr MacCallum
was not there at the time when the pursuer told him he had been injured.
[27] Mr MacCallum denied that the pursuer had
reported to him that he had had an accident.
[28] The defenders' position on Record was that
the pursuer did not report having had an accident until about four weeks after 17 November 2000. No witness spoke to such a report.
Submissions
[29] It was Mr Love's submission that I should
find the pursuer to be a credible and reliable witness, albeit that he was
confused on some matters. In any event,
where his evidence differed from that of other witnesses it was in relation to
general matters and not on the critical factual issue in the case which was
whether he had sustained injury when the barrowbuff he was using to buff off
surface defects on a steel plate fell over the edge of that plate.
[30] Mr Clarke submitted that the pursuer had
failed to prove his case on Record. What
was averred was that on the occasion of the accident: "He was using the barrowbuff to grind out
surface defects on a steel plate." That would have been the normal use of the
machine in November 2000. However, in
evidence what the pursuer had said was that he was engaged on the different
operation of reducing the gauge of the plate.
If that is what the pursuer was doing then, said Mr Clarke, that was not
his case on Record, but it should not be accepted as having been proved that
that is in fact what he was doing on 17
November 2000. Mr Clarke
explicitly characterised the pursuer as an unreliable witness. I took it as implicit in what Mr Clarke said
that he was also inviting me to find him to be incredible. Mr Clarke reminded me that the pursuer's
expert, Dr McCullough had given evidence that he had been sent papers including
precognitions with a view to preparing his opinion and he had formed the
impression that what was being done was polishing or buffing out some defects
on a plate. When asked in
cross-examination if there was anything in the papers which suggested that the
operation was one of reducing the gauge of a plate by 3 or 4 mm he answered
that he did not recollect any such thing.
Mr Clarke commended Mr McCallum to me as someone who had given his
evidence in a clear and straightforward manner.
Mr McCallum had said that by 2000 the
barrowbuff was no longer used to dress to gauge and that, in any event,
it would only have been used to achieve a maximum reduction of 0.5mm. Milling of the steel plates had improved
dramatically so that by November 2000 plates were not
delivered with defects over their whole surface: any such plate would have been
immediately rejected. As far as Mr
McCallum could recall, no plate had been received in 2000 with defects over the
whole surface. The pursuer's explanation
of the rationale of what he said he had been doing was difficult to understand. Why would a customer who would reject a 100mm
plate with surface defects, be prepared to accept one which had been ground
down to 96 or 97mm in a manner which left an uneven surface? Mr McCallum had said that such a plate would
be rejected. He was not crossed on this. All of
the witnesses (except the pursuer) spoke primarily about the technique for
buffing defects and contrasted the situation where there were defects at the
edge to that where there were defects at the middle. This, submitted Mr Clarke, indicated that
dressing defects was the only job involving the barrowbuff with which the men
were familiar. Having regard to all
these circumstances it was highly unlikely that the pursuer was involved in
dressing to gauge on 17 November 2000. He had sought to improve his case after
investigations about the linishing machine by saying that he was doing
something for which there was an automated process in existence at the
defenders' works at Dalziel. If the
court was with him on that then it was Mr Clarke's submission that the
pursuer's evidence about what took place on 17 November 2000 must be rejected with the consequence
that his action must be dismissed. Mr
Clarke pointed to the discrepancies as between the evidence of the pursuer, on
the one hand, and the respective evidence of Mr Pitkeathly and Mr McCallum on
the other as to the fact and circumstances of the pursuer's alleged reporting
of the accident. No attempt had been
made to recover documents that might support the pursuer's account of having
made a contemporaneous complaint and no such documents had been lodged. I should reject the pursuer's evidence on
this matter and find that no contemporary report had been made.
[31] In support of the submission that the
pursuer should not be found to have been dressing to gauge on 17 November 2000
(and therefore, it would seem to follow, that the pursuer was fabricating this
part of his account) Mr Clarke also founded on the respects in which, having
heard the evidence of the pursuer, the pleadings on his behalf were inadequate
or less than candid. A complaint was
made in the pursuer's pleadings of failure to instruct in the use of edgers
when it was clear from his evidence that the pursuer was well aware of how to
use edgers (otherwise liners or side-plates).
The pursuer had not responded to the defenders' averment that in the
event that an edger was not available he ought to have placed the barrowbuff at
right angles to the side of the plate, whereas it was evident from his evidence
that he had an answer to that: because he was dressing to gauge, to dress at
right angles would mean going over a previously dressed area. There was no response in the pleadings to the
defenders' averment that he had only reported the accident four weeks after it
was alleged to have occurred whereas in his evidence he said that he reported
it immediately to Mr McCallum. Mr Clarke
also drew attention to the importance that had been attached in the leading of
evidence to the difficulty a barrowbuff operator had in determining the precise
position of the left hand wheel. There
was no hint of that in the pleadings.
[32] Mr Clarke cautioned me against taking what
he described as a sympathetic approach and accepting that the pursuer had hurt
his back when the barrowbuff fell off the plate without finding it necessary to
consider what the pursuer had been doing at the time. That would altogether too charitable and
would be to fly in the face of evidence which indicated that the description of
dressing to gauge given by the pursuer made no sense and that, in any event,
dressing to gauge was no longer being done in 2000. There would be no explanation as to how the
accident came to pass whereas it was important to know what the pursuer had
been engaged on at the material time. Had
the pursuer said that he had been dressing surface defects, which is what his
pleadings said, Mr Clarke explained that in cross-examining the pursuer he would
have been concerned to discover at what point on the plate he had been working,
would have put to him the need to use edgers, would have elicited that to work
close to the edge without edgers was clearly contrary to practice and would
have elicited that to work without edgers (in what Mr Clarke described as the
"grey area" near to but not at the edge) was to take a risk.
[33] Mr Clarke also drew my attention to Mr
Pitkeathly's evidence as to having found the barrowbuff on its right hand side. That, Mr Clarke submitted, indicated that the
accident did not happen as the pursuer had said it did and that it had nothing
to do with the left hand wheel.
What proved
[34] Both counsel, for their respective reasons,
invite me to find that on the evening of 17 November 2000 the pursuer was
engaged in grinding (or buffing) surface defects rather than dressing to gauge. A difficulty about acceding too quickly to
this joint invitation is that it does not quite represent what the pursuer said. A further difficulty lies in the different
approaches of counsel to the pursuer's evidence, which must provide the basis
upon which any such finding is to be made.
Mr Love submitted that, in broad terms, the pursuer should be relied on. Mr Clarke submitted that he should be disbelieved. He further submitted that the pursuer had not
proved his case on Record. There are
accordingly issues to be resolved.
[35] My impression of the pursuer was of an
honest but not particularly thoughtful or articulate witness. His counsel described him as confused on
certain matters. That may be so, but it
is to be borne in mind that when evidence appears to be confused the
responsibility for this may not always or simply be that of the witness. The pursuer's account of having hurt his back
on an occasion in November 2000 when the barrowbuff machine toppled over was
corroborated, in certain respects, by the evidence of James Pitkeathly. Mr Pitkeathly did not witness the accident
described by the pursuer but he spoke to the pursuer complaining of having hurt
himself and to finding the overturned barrowbuff (albeit lying on its right
rather than left side), which he righted.
Mr Pitkeathly did not, however, support the pursuer in respect of him
being in the company of Mr McCallum when the pursuer complained of injury and
Mr McCallum denied any report of an accident having been made to him. While it is true that Mr McCallum was only
very formally challenged on that evidence without any exploration of
circumstances in which he might not have recorded a complaint (he having given
evidence in chief that in the event of an accident he would have made the
pursuer comfortable, called a first-aider, arranged for the pursuer to go to
hospital if necessary, stopped operations, carried out a site investigation and
then recorded the results on a report form), the evidence of the pursuer on the
one hand and Mr MacCallum on the other, might be reconciled if one or both of
them thought that whatever had happened to the pursuer was of minor importance. It was put to the pursuer in
cross-examination that he had reported a sore back but did not report the
accident. The pursuer denied that and
when Mr MacCallum came to give evidence he did not speak to any sort of
complaint whatsoever having been made. However,
it is not difficult to understand that had the pursuer given an account of
having hurt his back without going into much detail as to the circumstances,
which is consistent with Mr Pitkeathly's evidence, the pursuer might have
regarded that as reporting an accident while someone hearing the account might
not have so understood the purpose of what was being said. There was no challenge to the pursuer's
admittedly very brief evidence about consulting his general practitioner on the
Monday after 17 November 2000
and parties have agreed quantification of damages in what is more than a
nominal sum. I therefore take the
defenders to accept that the pursuer sustained some sort of injury to his back
at about the relevant time. In listening
to Mr McCallum I found him just a little defensive (in the sense of showing
anxiety that he personally would be the subject of blame) and just a little
inclined to put forward what he thought was expected of him as the
representative of the defenders. By way
of example I would refer to the very full answer, which I have already
summarised, as to what he would have done in the event of an accident having
been reported to him. I therefore
considered it appropriate to approach his evidence with a certain degree of
care. That said, when asked, in chief,
the (strictly, irrelevant) question: "Do you think the pursuer had an accident
at all?" Mr McCallum fairly and logically responded by saying that he did not
know.
[36] Notwithstanding the favourable impression
that I formed of the pursuer's credibility when listening to his evidence, I
must have regard to the criticisms made by Mr Clarke and, in particular, the
contrast drawn by Mr Clarke between what the pursuer said in evidence and what
it might have been anticipated that he would have said looking to his pleadings. I consider it reasonably clear that had
precognition of the pursuer elicited all the information that his counsel
succeeded in eliciting at the proof then the pleadings on his behalf would have
been in different terms and indeed the way in which his evidence was led would
have been different. What follows from
that? One explanation for this state of affairs is that the pursuer has changed
his story. That is what I took Mr Clarke
to be alleging when he said that the pursuer had sought to improve his case
after investigations had revealed information about the automation of the
process of dressing to gauge at the Dalziel works. However, there are other reasons why
pleadings in a personal injury action and the evidence of a party to that
action might diverge. The precognoscer
might not have fully understood what he was told or failed to discern what was
and what was not of importance. He may
have focused on one aspect rather than another.
The draftsman of the pleadings may not have fully understood the
information put before him. He may not
have expressed it felicitously. It
therefore does not appear to me that a pursuer whose evidence does not entirely
match his pleadings is necessarily to be regarded as a liar. In the present case according to the pursuer
he was dressing to gauge but, as he explained he was also "dressing 'scale
pitting' covering 100 per cent". The
reference at page 5D of the Closed Record to grinding out surface defects is
therefore a literally accurate description of what the pursuer said in evidence
that he was doing. That the Record does
not go on to aver that the work the pursuer was doing also involved dressing to
gauge does not seem to me to be critical.
I agree with Mr Love that the factual proposition that the pursuer
requires to establish is the very short one: that he sustained injury when the
barrowbuff that he was using to grind the surface of a steel plate fell over
the edge of that plate. In considering
whether he has established that proposition I have of course to look at the
whole of the evidence and, in particular, the whole of the pursuer's evidence. In challenging the credibility and
reliability of that evidence Mr Clarke founded on the intrinsically unlikely
nature of the operation described by the pursuer and on the evidence of Mr
McCallum to the effect that by 2000 dressing to gauge was a thing of the past
because of improvements in technique. The
barrowbuff had been used to reduce the gauge of plates, said Mr MacCallum, but
that was "many years ago." Now, uninstructed by other evidence, I would have
been inclined to agree that dressing to gauge as described by the pursuer was a
rather unlikely industrial process, at least by the beginning of the
twenty-first century. I found what the
pursuer had to say about tolerances to be surprising (Mr MacCallum described it
as "ridiculous"). However Mr Pitkeathly,
Mr Dickson and Mr Innes all spoke to the process of dressing to gauge, and of
course Mr McCallum accepted that it was something that had formerly been done. Mr Pitkeathly agreed that it was not common
in 2000 but he did not say that it was never done. Looking at matters in the round, I find
myself satisfied on a balance of probabilities that on the evening of 17 November
2000 the pursuer was engaged on a process that could be described as grinding
out surface defects on a steel plate. Thus
far I am accepting the respective submissions of counsel. However I do not consider that I can ignore
the pursuer's evidence that the process also involved dressing to gauge. I accept that evidence. I further accept that as he was so engaged,
the left-hand wheel came off the edge of the plate and the barrowbuff toppled
over onto its left-hand side (which is to prefer the pursuer to Mr Pitkeathly
on that last point) with a result that the pursuer sustained injury. The pursuer did not explain in terms how the
wheel came to fall off the plate or indeed how the wheel came to be in a
position from which it could fall off the plate but it would seem to be an
inevitable inference that it was a result of the way in which the barrowbuff
was manoeuvred by pursuer. Mr Clarke put
to him in cross-examination that he must have been nearer to the edge than he
had thought. Perhaps not very logically,
the pursuer appeared to dispute that, reasserting that he was not going closer
than 14 inches and then introducing a factor that had not previously featured
in his evidence, and did not thereafter feature, "...between looking out for
cranes", thereby presumably suggesting that he had been distracted from keeping
the barrowbuff away from the edge. The closest that the pursuer came to admitting
an error in judgement (it having been put to him at the close of
cross-examination that he must have been "pretty good at judging" the position
of the barrowbuff in relation to the edge of the plate) was to say (as I noted
him) "when constantly working on the plate ...once in a blue moon ...first time it
happened ..." However, notwithstanding the
criticisms that can be made of his evidence I take the pursuer to have
established his case insofar as the circumstances of the accident are
concerned, the reason why the wheel fell off the plate being that the pursuer
inadvertently misjudged how close the barrowbuff was to the edge at a time when
there was no edger in position.
[37] I now turn to consider whether the pursuer
has made out his cases of statutory breach and negligence.
Provision and Use of Work Equipment Regulations 1998
Regulation 4
[38] Regulation 4 provides as follows:
"Suitability of work equipment
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.
(4) In this regulation 'suitable' means suitable in any
respect which it is reasonably foreseeable will affect the health or safety of
any person. ..."
[39] It was Mr Love's submission that the
defenders were in breach of the duties imposed by each of the first three
paragraphs of regulation 4 of the Provision and Use of Work Equipment
Regulations. He reminded me that the
Regulations had been enacted to implement the Work Equipment Directive 89/655. They were not to be interpreted narrowly. Mr Love began by submitting that there was no
real dispute but that the barrowbuff was work equipment. It was, he continued, not suitable for the
purpose for which it was used having regard to the fact that the operator could
not see the position of the left-hand wheel, the evidence of operators working
as close to the edge as possible, the fact that falling off the edge was
accordingly foreseeable and the fact that, as was a matter of agreement by
Joint Minute, there was a risk to the operator in the event of the barrowbuff
falling off the edge of the plate. He
reminded me of Dr McCullough's evidence that had a risk assessment been carried
out one foreseeable risk that would have been identified was that of the
barrowbuff going off the edge of a plate if there was nothing there to prevent
it. There had therefore been a breach of
regulation 4(1). Mr Love referred to English v North Lanarkshire Council 1999 SCLR 310, McFarlane v Scottish Borders
Council [2005] CSIH23, Moohan v City of Glasgow District Council 2003 SCLR 367 and Munkman On Employers'
Liability (13th edition) page 317. As far as regulation 4(2) was concerned, it
was accepted that there had been no risk assessment. Given the circumstances under which the
barrowbuff was used, the practice of workmen to work close to edge of a plate,
and the fact that the left wheel was not visible to the operator which meant
that he had to guess its position, the defenders should be taken not to have
had regard to the consequent risks to health and safety when selecting this
piece of equipment
and thus held to be in breach of regulation 4(2). For essentially the same reasons Mr Love
submitted that the defenders had not ensured that
work equipment was used only for operations for which, and under conditions for
which, it was suitable. They were
therefore in breach of regulation 4(3). Reference
was made to Neil v East Ayrshire Council [2005] CSOH 13
and Griffiths v
Vauxhall Motors Ltd [2003] EWCA Civ 412.
[40] Mr Clarke did
not dispute that the barrowbuff was work equipment. He did, on the other hand, dispute that its
use involved a reasonably foreseeable risk of adversely affecting the health or
safety of the operator (quite understandably paraphrased in Mr Clarke's
submission as "reasonably foreseeable risk of injury"). There was a reasonably foreseeable risk of
injury in the event of the barrowbuff falling off the edge of the steel plate
but that was not a risk that arose if the barrowbuff was used properly. If edgers were used there was no risk. If the barrowbuff was used at right angles to
the nearest edge there was no risk. If
the left-hand wheel could not be seen, the machine could be turned around with
the result that the right-hand wheel would be nearer to the edge. Work equipment was not to regarded as
unsuitable where injury has resulted from inadequate control or mishandling: Griffith v Vauxhall Motors Ltd supra at paragraph 47 or simply by reason that
it could be improved in some way: Yorkshire
Traction v Searby [2003] EWCA Civ 1856 at paragraphs 43 to 46. Regard
should be had to the pursuer's own attitude when considering the issue of
suitability. He was quite clear that the
operation that he was undertaking was safe, albeit not without difficulty. Even in re-examination the pursuer was
satisfied that he did not need edgers for the operation that he was carrying
out. He certainly did not need
instruction.
[41] I have come
to be of the view, albeit with some hesitation, that the defenders were, at the
material time, in breach of regulation 4(1).
But, even if I am wrong about that, I consider the defenders to be in
breach of regulation 4(3). I do not
intend to make any finding in relation to regulation 4(2). I am not satisfied that I have the evidence
available in order to do so but, in any event, given my findings in relation to
regulations 4(1) and 4(3) it is unnecessary.
However, that is not to say that I have ignored the terms of regulation
4(2). I took from regulation 4(2) that
in considering whether work equipment is suitable (and if this applies to the
employer it must also apply to the court) regard must be had 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. Looking to regulation 4(4) the risks that are
relevant are the reasonably foreseeable risks.
Accordingly, whether an item of work equipment is constructed, or
adapted as to be suitable for the purpose for which it is used and whether it
is used only for operations and under conditions for which it is suitable
depends upon whether, having regard to the matters identified in regulation
4(2), its use involves a reasonably foreseeable risk of adverse effect upon the
health and safety of any person (otherwise foreseeable risk of injury). I did not understand that to be controversial. Neither was it controversial that the
barrowbuff was work equipment. The parties were agreed in terms of their Joint Minute that
there was a risk of injury to the operator of the barrowbuff in the event that
the barrowbuff falls off the edge of a steel plate. Now the expression used in the Joint Minute
was "risk of injury" and not "reasonably foreseeable risk of injury". These are not precise equivalents (as
appears, for example, from Cullen v North Lanarkshire Council 1998 SLT 847,
approving Lord Macfadyen in Anderson v Lothian Health Board 1996 Rep LR 88)
but, quite properly, having entered into a Joint Minute which was clearly
intended to remove one possible issue from the case, Mr Clarke did not seek to
resile from the spirit of his agreement.
He expressly approached the case on the basis that it was conceded that
there was a reasonably foreseeable risk of injury to the operator in the
event of the barrowbuff falling off the edge of the steel plate described by
the pursuer. However that left for
consideration whether there was a reasonably foreseeable risk of that event
occurring. That, submitted Mr Clarke,
was not reasonably foreseeable because there was simply no risk of that
occurring if the barrowbuff was "used properly". By that expression Mr Clarke meant not used
close to the edge of the plate or, if used near to the edge of the plate, used
with edgers of sufficient dimensions. The
pursuer knew about the use of edgers. He
chose not to put them in position. Any
accident that occurred was therefore caused by an error of judgement on his
part. It was not due to the barrowbuff
not being suitable. The reason that I
have rejected Mr Clarke's approach in relation to both regulation 4(1) and
regulation 4(3) is that, in my opinion rightly having regard to the evidence,
that approach includes the acceptance that without edgers in place the use of
the barrowbuff near the edge of a plate (something that may be necessary if
grinding surface defects and will be necessary if dressing to gauge) involves a
reasonably foreseeable risk of the machine going over the edge and therefore a
reasonably foreseeable risk of injury to the operator. It follows that use of the barrowbuff near
the edge and without edgers, which are the circumstances described by the
pursuer as pertaining at the time of his accident, was use under conditions for
which it was not suitable. There was
therefore clearly a breach of regulation 4(3) but I consider that the matter
goes further. Because of the nature of
its construction the barrowbuff could only be used for its purpose without
presenting a foreseeable risk of injury to its operator if the precaution was
taken of putting in place edgers of sufficient dimensions. It is true that this precaution was well
understood by the operators, including the pursuer, to be necessary, but it was
left to the operator to determine exactly when and where he should place an
edger and, moreover, it was left to the operator on any particular occasion to
find suitable material to use as an edger.
This is in the context of carrying out an operation which was monotonous
while at the same time requiring concentration and fine judgement in the use of
a heavy and awkward machine. In these
circumstances I do not consider that the barrowbuff was so constructed as to be
suitable for the purpose for which it was used as is required by regulation
4(1).
Regulations 8 and 9
[42] Regulation 8 provides as follows:
"Information and instructions
8.
- (1) Every employer shall ensure
that all persons who use work equipment have available to them adequate health
and safety information and, where appropriate, written instructions pertaining
to the use of the work equipment.
(2) Every employer shall ensure
that any of his employees who supervises or manages the use of work equipment
has available to him adequate health and safety information and, where
appropriate, written instructions pertaining to the use of the work equipment.
(3) Without prejudice to the
generality of paragraphs (1) or (2), the information and instructions required
by either of those paragraphs shall include information and, where appropriate,
written instructions on -
(a) the conditions in which and
the methods by which the work equipment may be used;
(b) foreseeable abnormal
situations and the action to be taken if such a situation were to occur; and
(c) any conclusions to be drawn
from experience in using the work equipment.
(4)
Information and instructions required by this regulation shall be readily
comprehensible to those concerned."
[43] Regulation 9 provides as follows:
"Training
9.
- (1) Every employer shall ensure that all persons who use
work equipment have received adequate training for purposes of health and
safety, including training in the methods which may be adopted when using the
work equipment, any risks which such use may entail and precautions to be
taken.
(2) Every employer shall ensure
that any of his employees who supervises or manages the use of work equipment
has received adequate training for purposes of health and safety, including training
in the methods which may be adopted when using the work equipment, any risks
which such use may entail and precautions to be taken."
[44] Mr Love took what he had to say about
regulation 8 together with what he had to say about regulation 9. His submission was that, broadly stated, the
obligation under regulations 8 and 9 was to ensure the availability of adequate
information and instruction and to ensure the receipt of adequate training. In the present case training had been
shambolic at best. There was no clear
system of work, no formal training, no clear instruction as to how to use the
barrowbuff, no clear instruction when to use equipment such as edgers, no
instruction or training as to where to stop when getting to the edge of a
plate, and no instruction not to get the wheels too close to the edge of the
plate. Such training as had been provided was, to use
an expression which had been adopted by Mr Clarke, "by Nelly", in other words
by watching other workers and then putting into practice what had been observed. In the pursuer's case that had been when he
started work in 1979. By the time of his
accident the pursuer had spent 21 years with the defenders and their
predecessors with no training whatsoever as to the use and operation of the barrowbuff,
notwithstanding legislative changes in that period and the introduction of the
requirement that there be risk assessments.
The pursuer should have been given training, instruction and information
in relation to (a) his use of the barrowbuff (b) working in close proximity to
the edge of plates and (c) the use of edgers (when, why and how). That did not occur notwithstanding the fact
that use of the barrowbuff was a regular part of the pursuer's job over many
years. Mr Love submitted that if he had
been provided with training, instruction and information, it is likely that the
accident would not have happened. It was
not the case that the pursuer had simply chosen to run the risk. He was, without exception, doing what any of
the other operators who gave evidence would have done in the circumstances. Breaches of the duties owed under regulations
8 and 9 had been made out.
[45] Mr Clarke, in response, characterised the
pursuer's view of training as "very old fashioned". It was clear that he had attained the
requisite knowledge and skill and it was clear from his demeanour that he would
not have accepted further training even had he been offered it. Mr Clarke reminded me what I had said in my
opinion in Neil v East Ayrshire Council supra at paragraph 26:
"for any inadequacy in the information or training provided
to the pursuer to be of relevance, it must be possible to point to something
which the pursuer did not know but which he would have known had he received
adequate information and training, and which had he known would have prevented
the accident."
[46] It would seem quite clear that the pursuer
received nothing by way of information, instructions or training beyond what he
picked up by watching other workmen about the time when he was first employed. On the other hand, he had acquired very
considerable practical experience since then and I did not understand that
there would now be anyone employed by the defenders who would have known more
about the operation of the barrowbuff than the pursuer himself. While Mr Love did argue that the pursuer
should have been given training, instruction and information in relation to (a)
his use of the barrowbuff (b) working in close proximity to the edge of plates
and (c) the use of edgers, he failed to identify anything that the pursuer did
not know which had he known would have avoided the accident. I would adhere to what I said in my opinion
in Neil v East Ayrshire Council supra. I consider that the pursuer fails on this
aspect of his case.
Manual Handling Operations Regulations 1992
[47] Regulation 4 provides as follows:
"4. Duties of employers
(1) Each employer shall-
(a) so far as is reasonably practicable, avoid the need
for his employees to undertake any manual handling operations at work which
involve a risk of their being injured; or
(b) where it is not reasonably practicable to avoid the need for
his employees to undertake any manual handling operations at work which involve
a risk of their being injured -
(i) make a
suitable and sufficient assessment of all such manual handling operations to be
undertaken by them, having regard to the factors which are specified in column
1 of Schedule 1 to these Regulations and considering the questions which are
specified in the corresponding entry in column 2 of that Schedule,
(ii) take
appropriate steps to reduce the risk of injury to those employees arising out
of their undertaking any such manual handling operations to the lowest level
reasonably practicable, and
(iii) take appropriate steps to provide any of those employees who
are undertaking any such manual handling operations with general indications
and, where it is reasonably practicable to do so, precise information on-
(aa) the weight of each load, and
(bb) the heaviest side of any load whose centre of gravity is
not positioned centrally."
[48] It was Mr Love's submission that, on the
evidence, the operation on which the pursuer was engaged at the time of the
accident was a manual handling operation.
He referred me to the definition of "manual handling operations" that is
to be found in regulation 2(1): "any transporting or supporting of a load
(including the lifting, putting down, pushing, pulling, carrying or moving
thereof) by hand or by bodily force"; and to the definition of "load" that is
to be found in the Oxford English Dictionary: "that which is laid upon a person
...to be carried." Reference was made to McIntosh
v City of Edinburgh Council 2003
SLT 827, Mitchell v Inverclyde District Council Outer
House, 31 July 1997 and King v Carron Phoenix Limited 1999 Rep LR 51. Mr Love then turned to the question of
whether the manual handling operation involved a risk of injury. He submitted that it did. "Foreseeable possibility of injury" was
enough. It was not necessary for the
injury to be caused by the imposition of a load. Mr Love referred to Cullen v North Lanarkshire
Council supra at 850 B to E and G
to J, Hall v City of Edinburgh Council 1999 SLT 744 at 747 B, D and H to J, Taylor v City of Glasgow Council 2002 SC 364, Redgrave's Health and Safety (4th edition) at page 746
and Munkman On Employer's Liability
(13th edition) at page 337, paragraphs 14.15 to 14.19. Mr Love submitted that it would have been
reasonably practicable to avoid the need for the pursuer to undertake a manual
handling operation at work which involved a foreseeable possibility of his
being injured: the barrowbuff could have had used in a different way or adapted
or mechanised; or the process automated could have been automated. However, the defenders did not offer to prove
and led no evidence to demonstrate that it was not reasonably practicable to
avoid the need for the pursuer to undertake the manual handling of the
barrowbuff. One did not get as far as
needing to consider regulation 4(1)(b). There had been a breach of the regulation.
[49] Mr Clarke did not accept that the pursuer
was engaged on a manual handling operation.
When being used the barrowbuff was not a load but a tool. He commended the approaches of Lord Kingarth
in King v Carron Phoenix supra, Lord Cameron of Lochbroom in Mitchell v Inverclyde District Council supra
and Lady Smith in McFarlane v Ferguson Shipbuilders unreported 16 March 2004. He
distinguished McIntosh v City of Edinburgh Council
supra.
[50] I do not accept that the pursuer was
engaged in a manual handling operation at the relevant time. It therefore follows that this part of his
case fails.
[51] I have found that moving the barrowbuff
(which was necessary if it was to be used to grind out surface defects or dress to
grade) required it to be pushed and pulled by the operator, using his arms and
body and that that required the application of force. However, for the reasons that commended
themselves to Lord Cameron of Lochbroom in Mitchell
v Inverclyde District Council, to
Lord Kingarth in King v Carron Phoenix and to Lady Smith in McFarlane v Ferguson Shipbuilders, I do not consider that simply because an
operation requires the application of manual force that that makes the
operation a manual handling operation. In
McFarlane v Ferguson Shipbuilders Lady Smith had to consider the contention
that the use of a hand-held grinder to remove excess weld along the seams of
welded plates was a manual handling operation.
At paragraph [39] of her opinion she said this:
"I have reached the view that these regulations do not
apply in the circumstances of this case.
I agree that the use of the grinder does not fall to be regarded as the
transportation or supporting of a load. I
disregard the pursuer's suggestion that it falls into that category because the
pursuer had to lift it in the course of his work because his complaint was not,
as I have already indicated, that he found any difficulty in lifting it. That leaves for consideration the question of
whether or not the pushing of the grinder over a surface could be so regarded. I do not see that it can. The use of the expression 'load' connotes
something that is to be conveyed. The
expressions 'transporting', 'supporting', 'lifting', 'putting down', 'pushing',
'pulling', 'carrying', and 'moving' are all descriptive of different activities
involved in the conveyance of a load. The
activity being carried out by the pursuer when he was grinding was, however,
nothing to do with the conveyance of a load.
It may have involved pushing but that was not for the purpose of moving
the grinder from one place to another. It
was for the purpose of producing a particular effect on the surface over which
it was being pushed. I agree that the
circumstances can be regarded as comparable to those surrounding the use of the
lawn mower in [Mitchell v Inverclyde District Council]."
I respectfully agree with that analysis. When it is applied to the facts in this case
it appears to me to yield the conclusion that what the pursuer was engaged on
was not a manual handling operation. Moreover,
in determining the scope of the Manual Handling Operations Regulations I
consider it relevant to have regard to what are the other analogous statutory
provisions which are intended to protect the health and safety of workmen in
the situation of the pursuer. In my
opinion, the fact that the Provision and Use of Work Equipment Regulations 1998
(replacing previous regulations made in 1992) make provision in respect of the
risks consequent on the use of work equipment, points away from the use of an
item of work equipment (as opposed to, for example, the carrying of such an
item prior or subsequent to its use) being a manual handling operation as that
expression is used in the Manual Handling Operations Regulations.
Negligence: safe system of work
[52] Mr Love submitted that the defenders had
failed to take reasonable care for the safety of the pursuer by failing to
provide him with a safe system of work. There
was obvious risk of injury. The court was entitled to hold that a
reasonably careful employer addressing the issues would have concluded that
instructions should have been given that the work being carried out by the
pursuer should not have been carried out in the manner that it was. Mr Love referred to what had been said by
Lord Macfadyen observations in Hall v City of Edinburgh Council
1999 SLT 744 at 746 G to L.
[53] Mr Love did not develop his submissions on
negligence beyond the bare statement that I have noted above and Mr Clarke did
not take up time in rebutting it. For
comprehensible reasons, I understood counsel to see the statutory cases as
delineating the battleground between them.
In the event of the pursuer succeeding on any of the statutory cases he
need not succeed on the negligence case and in the event of the pursuer failing
on all of the statutory cases it is difficult to see how he might succeed on
the negligence case.
[54] As I have indicated, I consider that the
pursuer has succeeded on two of his statutory cases. To the extent that it is necessary for me to
do so, I would hold that he also succeeds on his case of common law negligence
and that essentially because of the reasons that persuaded me that there had
been a breach of regulation 4(1) of the 1998 Regulations.
Contributory
negligence
[55] In the event that I was against him on
either breach of statutory duty or negligence I did not understand Mr Clarke to
argue that this was a case where there was room for a finding of sole fault. For the avoidance of doubt that would also be
my view. This is not a case where in
substance and reality the accident that I have found occurred was solely due to
the fault of the pursuer: Ginty v Belmont Building Supplies Ltd [1959] 1
All ER 414. Mr Clarke did argue for a
finding of contributory negligence. He
referred me to what I had said in Neil v East Ayrshire Council supra at paragraph 32, as did Mr Love
when submitting that the defender's case on this matter was not made out. Mr Love reminded me that the pursuer was only
doing what others did, that there was no question of wilful departure from the
usual practice, that the position of the left-hand wheel involved guesswork,
that the job required concentration, and that this was no more than a case of
inadvertence. Mr Clarke, on the other
hand, while accepting that allowing the barrowbuff to fall off the plate might
be regarded as the result of momentary inattention, pointed to the pursuer's
failure to put down an edger. Mr
Clarke's recollection of the evidence was that the pursuer had been asked in cross-examination
whether he would have been able to get an edger and that he had answered "yes". My own note indicates that it was put to the
pursuer that there was nothing to stop him obtaining an edger at an earlier
stage and, agreeing, he had said "no". While
it was my impression that the pursuer did not give much thought to the answer
that I noted, in the absence of anything else I consider that Mr Clarke is
entitled to rely on either version of what the pursuer said as indicating that
the material for an edger could have been found by the pursuer at the relevant
time without particular difficulty. Mr Clarke relied on that passage of evidence
as indicating a fairly high level of contributory negligence. The circumstances, he argued, were analogous
to those in Neil and by reasoning
similar to that which I had adopted in that case, Mr
Clarke suggested a deduction of 50 per cent to reflect the pursuer's
contributory negligence.
[56] While the evidence from the pursuer as to
the precise circumstances in which the barrowbuff came to fall off the plate
was very limited, I would agree with the way in which Mr Clarke characterised
the accident: a misjudgement by the pursuer when working close to the edge of
the plate without having put an edger in position. The pursuer did not think that he had got to
the stage when he needed to put down an edger.
He would appear to have been wrong about that.
[57] Section 1(1) of the Law Reform
(Contributory Negligence) Act 1945 provides:
"Where any person suffers
damage as the result partly of his own fault and partly of the fault of any
other person or persons, a claim in respect of that damage shall not be
defeated by reason of the fault of the person suffering the damage, but the
damages recoverable in respect thereof shall be reduced to such extent as the
court thinks just and equitable having regard to the claimant's share in the
responsibility for the damage. . ."
The word "fault", in the
application of the Act to Scotland,
is defined by section 5(a) in these terms:
"wrongful act, breach of statutory duty or negligent act or
omission which gives rise to a liability in damages or would, apart from this
Act, give rise to the defence of contributory negligence."
[58] While this may not simply be a case of
momentary inadvertence, as Mr Love encouraged me to regard it, I do not
consider the circumstances to be directly analogous to those in Neil.
I return to what the pursuer was engaged on at the relevant time. He was carrying out a dirty, difficult and
monotonous job with a heavy and awkward machine. That said, I cannot
escape the conclusion that, on the evidence, the pursuer was at fault in not
having put down an edger when it would appear that there was nothing to stop
him doing so and that he appreciated that he was working close to the edge (14
inches, as he assessed it). It appears
to me to be just and equitable to reduce his damages by a factor of 20 per
cent.
Decision
[59] I would accordingly anticipate awarding the
pursuer the agreed sum of damages, being г4000, less 20 per cent (ie г800) in
respect of contributory negligence, together with interest from the date of the
interlocutor but the case will be brought out by order to determine the precise
terms of the decree that should be pronounced, unless that can be dealt with by
agreement which is reflected in a Joint Minute.
