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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 105
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PD2269/06
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OPINION OF LADY
DORRIAN
in the cause
PAUL KINNAIRD
Pursuer:
against
DOUGLAS PATON
Defender:
and
THOMAS PATON
Third Party:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
Wilson; Digby Brown
Defender: Laing; Anderson Strathern
Third Party: (Non participating Party); Simpson & Marwick
19 June 2007
[1] In
this case the pursuer seeks damages from his employer, the defender, in respect
of injury sustained on 1 March 2006. The pursuer avers that on that day he was
working in the course of his employment doing a job at the premises of the
third party, the father of the defender.
The defender and third party maintain that this job was a "homer". The job involved the cutting up and removal
of a large fuel tank from the third party's garden. The defender was provided with a Stihl saw
for this purpose. He discovered that
tank was full and required to empty it before cutting up. Having done so, he used the saw to cut up the
tank. This produced sparks which landed
on his fuel soaked overalls and ignited causing him to suffer injury. The pursuer avers that the defender was in
breach of duty at common law and under Regulations 4 and 8 of the
Provision and Use of Work Equipment Regulations 1998.
[2] The
case came before me on the pursuer's motion for issues which was opposed by the
defender on the basis that the cause was unsuitable for jury trial.
[3] In
advancing his argument counsel for the defender recognised that it was for him
to show special cause why the case should not proceed to jury trial. In support of that argument he advanced three
propositions. First, that the pursuer
had failed to specify which paragraph of Regulation 4 was relied on and
thus failed to specify whether he was criticising selection of the equipment or
the use to which it was put. A defender
might be in breach of both those aspects of the regulation but breach of one
does not necessarily mean a breach of the other. He submitted that the issue was not an
academical pleading point but would have a significant effect on the evidence
to be led. He recognised that the Stihl
saw would fall within the meaning of work equipment. However, reference was also made in the
pleadings to a van, overalls and gloves and if the pursuer was seeking to say
that these were work equipment, relevancy issues would arise. It is clear that the fuel tank would not fall
within the definition of work equipment.
He referred to Higgins v DHL International (UK) Ltd 2003 SLT 1301; Neill v East Ayrshire
Council [2005] CSOH13; and Spencer-Franks v Kellogg Brown & Root Ltd &c [2007] CSIH23.
[4] Counsel's
second point was in relation to the Regulation 8 case. The pursuer avers that he had not been
trained or instructed in the use of the Stihl saw. He fails to specify what he would have known
had he been given the relevant health and safety information and which, had he
known, would have prevented the accident.
This was under reference to the case of Neill at para. 26.
[5] Finally,
counsel criticised the specification of the Section 8 services claim since
it failed to specify the time over which the services were claimed. It is averred that the pursuer was off work
for four months, returned for two weeks, upon which he left his employment, and
has been unemployed since. The pursuer's
valuation of claim simply assesses this part of the claim at ฃ1500 and does not
provide dates from and to which the services are claimed as should be done in
accordance with Form 43.9.
Reference was made to Easdon v
A Clark & Company Ltd [2006]
CSOH12; Stark v Ford (No 2) 1996 SLT
1329 and Baird v Cowie [2006] CSOH168.
[6] In response counsel
for the pursuer reminded me that the starting point of this argument is that
the pursuer has a statutory right to a jury trial which can only be denied if
the defender shows special cause. He
pointed out that under Chapter 43 pleadings must necessarily be brief and
all that was required was the specific reference to any statutory provision
which may be founded upon. To establish
basic relevancy in a Chapter 43 case very little is required. So far as the Regulation 4 case is
concerned, the key issue is suitability of work equipment for its purpose,
gauged according to use or provision.
The defender is seeking to make an artificial distinction between use
and provision for the purposes of relevancy.
The foundation point is whether the work equipment was suitable for its
purpose and it is artificial to try to distinguish between selection and use of
equipment when the defender has selected both.
In any event the pursuer's pleadings make it clear that both 4(2) and
4(3) are being relied on.
[7] In
relation to the Regulation 8 point counsel submitted that there was no
merit in the defender's argument. He
submitted that it was not necessary to aver the detail which the defender
suggested and that such a requirement would defeat the whole purpose of Chapter 43. In the case of Neill v East Ayrshire Council
the Lord Ordinary was deciding the case after evidence had been led. His observations as to what was required in
relation to Regulation 8 were essentially in relation to proof rather than
in relation to the relevancy of pleadings. Counsel also noted that the defender was not
seeking to advance any point of fundamental relevancy since he was content for
the case to go to a Proof before Answer.
If the case was suitable for a Proof before Answer then it should in the
circumstances be suitable for a jury trial.
[8] As
to the third point, counsel for the defender had conceded that, standing alone,
it would not suffice to constitute special cause. Counsel for the pursuer pointed out that the
services claim was in short compass, was not of high value and was not a
significant claim. It is clear that the Section 8
claim is for a restricted period and there is nothing unusual in the way the
matter is averred. Counsel referred also
to Stark v Ford (No 2) where the Lord Ordinary noted "... I consider
that difficulty in quantifying a claim which is inherently non-specific in
character is, if anything, a reason for sending a case to jury trial rather
than the reverse." Counsel also referred
to May v Jeeves Parcels Ltd [2005] CSOH71 in which the Lord Ordinary also
noted that "...Some heads of claim are not readily susceptible besides
calculation". Counsel submitted that the
real question was whether a judge could satisfactorily direct the jury and
submitted that there would be no difficulty in doing so.
[9] I
was also referred to Robb v Salamis (M&I) Ltd 2007 SLT 158.
Decision
[10] I am satisfied that the
pursuer in this case is entitled to a jury trial. The circumstances of the accident are simple
and straightforward and in my view it is perfectly easy to understand what the pursuer's
case is. There may be cases in which it
is necessary to make specific and separate averments regarding regulations 4(2)
and 4(3). This is not one of them. It is a simple case and it is clear from the pursuer's
pleadings that he is relying on both aspects of the regulation. On any reasonable reading of the pursuer's
pleadings there can be no confusion over precisely what work equipment is being
relied on for breach of the regulation.
I do not find it helpful to refer to cases which were based on different
regulations. As to the Regulation 8
case, I do not consider that the pursuer requires to make
such detailed averments as the defender submitted. To require such specification would subvert
the whole purpose of Chapter 43. It
is important to bear in mind that at this stage I am looking at relevance of
pleadings and not at evidential proof.
So far as the third point is concerned it is fair to say that counsel
for the defender submitted this very much as an "also ran" and did not suggest
it could in itself constitute special cause.
The services claim is a trivial part of the pursuer's claim. It is clear that it relates to a fairly short
period of time and the amount involved is negligible in the scheme of the action. Essentially the issues in dispute in this
case are factual ones for the resolution of which a jury is eminently suitable
and accordingly I propose to allow issues.
