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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 101
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PD98/06
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OPINION OF
LORD DRUMMOND YOUNG
in the cause
WILLIAM ANDERSON
Pursuer;
against
CHRISTIAN SALVESEN
PLC
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Act: Laing; Digby Brown, SSC
Alt: Richardson; Simpson & Marwick,
WS
26 May 2006
[1] On 20 March 2003 the pursuer was involved in an accident in
the defenders' premises in Bellshill as a result of which a man named Charles
McShane was killed. At the time the
pursuer was working in the course of his employment with the defenders as an
LGV driver. Following an instruction to
do so, the pursuer started to reposition his trailer in one of the loading
bays. When he began the manoeuvre he did
not realize that Mr. McShane had driven a pallet truck inside the trailer and
then out on to the docking plate between the trailer and the loading bay. When Mr. McShane reached the docking
plate the pursuer started to move his lorry and trailer out of the loading bay,
and Mr. McShane fell into the gap under the docking plate. The pallet truck fell on his leg, and as a
result it is averred that Mr. McShane sustained serious injuries from which he
died shortly afterwards.
[2] The pursuer avers that he suffered loss, injury and damage as
a result of the accident. It is averred
that when the pursuer was moving his trailer he heard a loud noise and then a
scream. He stopped his lorry
immediately, but employees of the defenders shouted to him to pull his lorry
forward. He tried to restart the lorry
but it stalled. That caused a fall in
air pressure in the brakes, as a result of which the pursuer was unable to move
the lorry for about 40 seconds.
Thereafter the pursuer restarted the lorry and moved it forward for
about eight feet. He then came out of
his cab and ran to the back of the vehicle, where he saw that Mr. McShane, whom
he knew, was badly injured. It is then
averred that the pursuer suffered what may loosely be described as psychiatric injury
as a result of his involvement in the accident.
He was off work for a period of four weeks. When he returned he was put on warehousing
duties, but developed symptoms of depression, irritability and anxiety
consistent with the DSM IV diagnosis of an adjustment disorder. He underwent counselling, but was unable to
continue working with the defenders. He
now performs agency driving work. He
avers that the accident was caused by fault and breach of statutory duty on the
part of the defenders.
[3] The defenders contend in their defences that the pursuer's
averments are irrelevant and lacking in specification. They state in particular that the pursuer had
averred neither that during the incident he was exposed to danger nor that he
considered himself to have been exposed to danger. In those circumstances, it is said, the
pursuer has not averred that he was a primary victim of the incident. It is further stated that the pursuer did not
aver that he had a close tie of love and affection with the person killed, and
that accordingly he had not averred that he was entitled to recover as a
secondary victim of the incident.
[4] On 3 May 2006 the pursuer' agents enrolled for a proof. That motion was opposed by the defenders on
the basis that the cause should be appointed to the procedure roll in terms of
Rules of Court 43.6(5) and (6). The
motion came before me on 26 May, and on that date I decided that a procedure
roll discussion was inappropriate and that the action should be sent to proof. A proof under the new personal injuries
procedure is of course equivalent to a proof before answer in other forms of
Outer House procedure.
[5]
It is clear in my opinion that under the new personal injuries procedure the
question of whether a procedure roll discussion should be allowed requires a
different approach from the earlier procedure in such actions. Generally speaking the new procedure
contemplates that the number of such hearings should be significantly
reduced. The cases where a procedure
roll discussion is likely to be appropriate are in my view set out by Lady
Paton in Hamilton v Seamark Systems Ltd, 2004 SC 543, at
paragraph [18]:
"Nevertheless,
as was recognized by the Coulsfield working party, there may be exceptional
cases where a legal debate is still appropriate. For example, matters of fundamental
relevancy, which could bring the litigation to an end without the need for
proof of the facts averred, may merit a procedure roll.... There may be cases
where the facts averred are patently insufficient to establish liability on the
part of a defender, despite references to common law and/or statute. In such circumstances a court may be
persuaded to allow a legal debate before any evidence is led, with a view to
saving time and expense. Similarly a
court may be persuaded to allow a debate where one outcome might be a
significant limitation in the extent of the proof".
In considering whether a procedure
roll discussion is appropriate, however, it is also important in my opinion to
bear in mind the long-established approach to questions of relevancy in claims
based on negligence. This was stated by
Lord Keith of Avonholm in Miller v South of Scotland Electricity Board,
1958 SC (HL) 20, at 33:
"In claims
of damages for alleged negligence it can only be in rare and exceptional cases
that an action can be disposed of on relevancy.... It is hardly necessary to say in a Scottish
case that the law of negligence in Scotland proceeds on principles of culpa, breach of the duty to take that
care which the circumstances demand from a reasonable man. These circumstances in any particular case
will normally have to be ascertained by evidence. They vary infinitely. The facets and details of the case on which
an assessment of the law must depend cannot be conveyed to the mind by mere
averments of the bare bones of the case, and the weighing of the facts for or
against negligence may often present a delicate task to the tribunal charged
with applying the law".
That statement of the law relates
to the question of negligence, and in particular the standard of care
applicable in any particular case.
Similar principles must in my view apply to the question of whether any
particular type of loss is recoverable.
Whether loss falls within any of the recognized categories of
recoverable loss is a matter that depends upon the precise circumstances of the
case, and that must normally be determined by consideration of evidence. Following the adoption of the new procedure in
personal injuries actions, it seems to me that the approach laid down in Miller is particularly appropriate,
because a more abbreviated form of pleading is used; this makes it particularly
difficult to determine questions of relevancy without hearing evidence.
[6] In moving for the allowance of a procedure roll discussion,
counsel for the defenders submitted that important questions of law arose out
of the pursuer's averments of loss, which related to psychiatric injury. He founded in particular on the decisions of
the House of Lords in Alcock v Chief Constable of South Yorkshire Police,
[1992] 1 AC 310, and White v Chief Constable of South Yorkshire Police,
[1999] 2 AC 455. In those two cases it
had been held that persons who had been exposed to physical danger, or
reasonably believed that they had been exposed to physical danger, were
entitled to recover for psychiatric injury; such persons were to be considered primary
victims. Anyone who was not exposed to
physical danger or the apprehension of danger was a secondary victim, and in
such a case the existence of close ties of love and affection to the person
killed or injured was an essential ingredient if recovery were to be
possible. Counsel submitted that on the
pleadings the present pursuer did not fall into either of those categories. Consequently a procedure roll discussion was
required.
[7] Counsel for the pursuer submitted that it was necessary to
discover the full facts surrounding the pursuer's psychiatric injury before it
could be held that he could not recover.
Counsel referred to the decisions of Lord Reed in Campbell v North Lanarkshire
Council, 2000 SCLR 373, and of Temporary Judge JG Reid in Salter v UB Frozen and Chilled Foods Ltd, 2003 SLT 1011. In both of those cases the pursuer had
suffered psychiatric injury, and in both, after detailed consideration of the
authorities, a proof before answer had been allowed; in neither case was it possible
for the court to hold that the pursuer could not succeed in establishing
liability on the basis of his pleadings alone.
Counsel further pointed out that the facts of Salter were very close to those in the present case, in that the
pursuer had played a part in causing the death of a fellow employee while
driving a vehicle in the course of his employment.
[8] As I have mentioned, counsel for the defenders founded on the
decisions in Alcock and White.
Those cases are concerned with two particular situations. The first, discussed in Alcock, is that of persons who witness the deaths of persons to
whom they have close ties of love and affection. Such persons may normally recover for
psychiatric injury. The second
situation, discussed in White,
involves those who suffer trauma as a result of witnessing the death or
injuries of others but do not have the close ties of love and affection that
are required for the first category of recoverable loss. In such cases, the test that has been adopted
is, generally speaking, that psychiatric injury will form a head of recoverable
loss provided that the pursuer has been placed in danger, or an apprehension of
danger, as a result of the incident in question. Those cases do not, however, deal with a
third category of psychiatric injury that has been recognized as giving rise to
recoverable loss. This occurs where the
pursuer has been instrumental in another person's death, or possibly serious
injury, and that has caused him psychiatric harm. On the authorities, that that by itself is
sufficient to enable the pursuer to recover for the psychiatric injury; it does
not matter whether the pursuer has been placed in danger himself; indeed it
will be typical of such cases that the pursuer has been in no danger, but has
played a part in creating a danger for someone else. This category of recoverable loss has been recognized
in a number of cases, starting with Dooley
v Cammell Laird & Co Ltd,
[1951] 1 Lloyd's Rep 271. Those cases
were cited in Alcock and White.
In Alcock Lord Oliver of
Aylmerton discussed them at page 408 and concluded that they were correctly
decided, on the basis that the plaintiff in each case had been instrumental in
causing the death. In White this line of authority was
discussed further by Lord Hoffman at pp 507-508; he pointed out that Lord
Oliver's explanation of the cases was not actually based on their reasoning,
but concluded that there might be grounds for treating such a rare category of
case as exceptional and exempt from the Alcock
control mechanisms. The last
reported decision dealing with this category of loss is that in Salter.
In that case Temporary Judge Reid conducted an extensive review of the
authorities and concluded that he could not hold the pursuer's case irrelevant.
[9] In my opinion the pursuer's case as stated in the pleadings is
a classic instrumentality case. The
pursuer avers that he moved his lorry and trailer forward and that as a result
Mr McShane fell and sustained fatal injuries.
The matter is perhaps compounded by the pursuer's attempts to free Mr
McShane, by moving the lorry forward yet again but failing to move it for some
time. In such a case it would, I think,
be extremely difficult to argue that the pursuer's averments are irrelevant
without challenging the correctness of the cases referred to in the last
paragraph. This applies in particular to
the analysis by Lord Oliver in Alcock. Even if such a challenge were made, however,
it would in my opinion be of critical importance to know the precise part
played by the pursuer in Mr McShane's death.
It seems clear that it is not everyone who plays a part in someone
else's death who can recover. Very minor
involvement would probably not suffice, and other limiting factors might be
recognized; these might relate, for example, to the question of foreseeability on the part of the pursuer's employer. Consequently I consider that any attempt to
discuss the law on the basis of bare pleadings, without the benefit of
evidence, is likely to result in a sterile academic discussion, in which
possible limitations on recovery are debated but cannot be applied to the facts
of the case because these are not known adequately. In these circumstances this appears to me to
be a very clear case for allowance of proof.
Once the facts are known the question of whether it is possible for a person
who is instrumental in a death to recover for psychiatric loss, and the
possible limitations on that right, can be discussed properly.
