Keane (AP) v Walker Contracts Scotland Ltd [1999] ScotCS 48 (12 February 1999)

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In this action, the pursuer seeks damages for personal injuries said to have been sustained by him in an accident, which occurred on or about 29 March 1996 when the pursuer was working as a self-employed bricklayer at the Wickes Building at Springkerse in Stirling. At the material time, the defenders were the main contractors engaged in building a D.I.Y. store on the site in question.

The pursuer's averments concerning the background to and the circumstances in which the accident occurred are as follows:

The sole ground of action advanced on the pursuer's behalf is a case made under section 2(1) of the Occupiers Liability (Scotland) Act 1960. The material averments of the pursuer in support of that case are as follows:

In condescendence 4 of the summons, the pursuer sets forth the basis of his claim of damages. After making averments about the nature and detailed consequences of the injuries which he sustained, he avers that:

When this case came before me in the procedure roll, it was indicated by counsel for the pursuer that he understood from the defenders' Note of Argument that the defenders' intention was to argue that the case was unsuitable for trial by jury. On the assumption that that was indeed the case, he stated that he was objecting to that course because there was no plea in law habile to focus that issue. That was an unsatisfactory situation, as had been recognised on a number of previous occasions by the Court. In that connection reference was made to Rigley v Remington Rand Limited 1964 S.L.T.100; Anderson v British Railways Board 1974 S.L.T.(Notes) 10; and Irvine & another v The Balmoral Hotel Edinburgh Limited (unreported) 3 November 1998; Lord Gill. It was submitted that these cases showed that a plea focusing the issue of special cause was necessary according to current practice. In these circumstances, the Court should not entertain the defenders' submissions.

In response to this preliminary objection, counsel for the defenders sought leave to amend his pleadings by adding a new plea-in-law 1 and by renumbering the existing pleas-in-law. The new plea-in-law 1 would be in the following terms:

Counsel for the pursuer said, in response, that he would not oppose the making of such an amendment. Accordingly I allowed this amendment to be made. In these circumstances the preliminary objection to the debate initially raised by counsel for the pursuer disappeared.

Counsel for the defenders thereafter proceeded to move me to sustain the defenders' new first plea-in-law and allow a proof before answer. He submitted that jury trial was appropriate only if the pursuer's pleadings were relevant and specific on all material points. Before issues could be allowed, all issues of relevancy required to have been disposed of. In that connection he relied upon the observations of Lord Justice Clerk Thomson in Boyle v Glasgow Corporation 1949 S.C.254, at pages 261-2. Similar views were expressed in Moore v Stephen & Sons 1954 S.C.331 at pages 334-336. The same views had been judicially expressed in recent times in O'Malley v Multiflex (UK) Inc. 1997 S.L.T.362, at page 363.

Turning to the circumstances of this case, counsel for the defenders submitted that special cause, within the meaning of section 9 of the Court of Session Act 1988, existed for withholding the present case from trial by jury, in respect that the pursuer's pleadings were of doubtful relevance and were lacking in specification. In this connection, two parts of the pursuer's case had to be considered. Firstly, such problems existed in the pursuer's averments of alleged breach of duty as occupiers made against the defenders. Secondly, parts of the pursuer's averments of loss were of doubtful relevance and lacking in specification. In these circumstances, the Court ought to allow a proof before answer.

Dealing first with the pursuer's averments relating to the alleged basis of liability, it was a matter of admission that the defenders were the occupiers of the site in question for the purposes of the Occupiers Liability (Scotland) Act 1960. In condescendence 2 at page 6B-D of the Closed Record, there were certain averments relating to the defenders' responsibility. The criticisms directed against the defenders related to the guard rails in the loading bay and, in particular the absence of a guard rail there at the time when the pursuer was said to have stumbled. The pursuer's case was that he had been injured because of (1) an uneven floor in the loading bay, aggravated by the weight of materials upon it, and (2) the lack of a guard rail on the loading side. The pursuer's averments of fault were to be found in condescendence 3 at page 10 of the Closed Record. These were founded upon the provisions of section 2(1) of the Act of 1960. It was submitted that an examination of the averments of fault showed that they amounted to an assertion by the pursuer that there was liability on the part of the defenders because (1) the defenders were occupiers of the site in question, and (2) because the pursuer sustained injury in consequence of two particular features of the condition of the site at the material time. McDyer v The Celtic Football & Athletic Company Limited 1999 S.L.T.2 showed that the duty of an occupier was one of reasonable care, although, in appropriate circumstances, the principle of res ipsa loquitur might be applied. However, it had to be emphasised that the occupiers' duty was not one of insurance. At pages 6 and 7 of the Closed Record there were no averments by the pursuer of actual knowledge on the part of the defenders of the features of the condition of the site which were said to have given rise to the accident, that is to say of the irregular floor of the loading bay, or of the lack of a guard rail at the material time. An alternative basis for an inference of fault might be imputed knowledge on the part of the defenders of the offending features of the site. It was submitted that the pursuer's averments at page 6B-D of the Closed Record did not give rise to any inference of imputed knowledge of the allegedly dangerous features of the site on the part of the defenders. The origin, nature and practical scope of the defenders' alleged responsibility was unclear. The condescendence concerned contained certain criticisms of the system of loading the loading bay with bricks and mortar, yet there was no case made in relation to the system of working. In short, the pursuer's averments failed to show either actual or imputed knowledge on the part of the defenders of the state of affairs which gave rise to the pursuer's accident. Accordingly the pursuer's case was of doubtful relevance. Bygate v Edinburgh Corporation 1967 S.L.T.(Notes) 65 showed that where difficult and delicate questions of mixed fact and law existed, jury trial was inappropriate. That was the position here. One of the alleged dangers here was the temporary absence of a guard rail. That was a fluid situation similar to that considered in the case concerned. The absence of the guard rail was not averred to have existed for any particular period of time. There were no averments as to how often the loading bay might reasonably be expected to be inspected and there was here a case of contributory negligence also related to the absence of the guard rail. Thus there was an interplay between the alleged responsibility of the defenders and the responsibility of the pursuer, which was a complicating feature.

Turning to the pursuer's averments of loss, at page 13E of the Closed Record it was averred that the pursuer was not fit to return to his former employment as a bricklayer. It was claimed that he had lost and would continue to lose income. The net profits of his business for the year ended 5 April 1996 were said to have been £21,365. There then followed an averment to the effect that the pursuer's competitiveness in the labour market had been adversely affected by his injuries. It was submitted that the averments of loss of income or profit following upon the accident were lacking in specification; there was no proper quantification of the claim. It ought to have been made clear whether the pursuer was founding on the single year's profit which was the subject of averment. There ought to have been made an averment of the likely continuance of loss at that level. The decision in O'Malley v Multiflex (UK) Inc showed the need for such an averment. Furthermore, here there was a lack of clarity as to how the loss of income claim was to be valued. It was not clear from the pursuer's averments whether he was claiming to be unfit for any kind of work or simply unfit for his pre-accident employment as a bricklayer. Assuming that he was fit for some form of employment, there were no averments as to the income which he might be able to earn in any employment for which he was fit.

Furthermore, it was submitted that the pursuer's averments in this case failed to achieve that clarity and lack of ambiguity necessary for a jury trial in respect of the matter of the relationship between the pursuer's claim for loss of income and his claim for diminution of his competitiveness in the labour market. That matter had also been the subject of criticism in the case of O'Malley v Multiflex(UK) Inc. While it was recognised that, in certain circumstances, where a pursuer had been injured but was capable of some employment albeit not his pre-accident employment, claims for loss of earnings and diminution of competitiveness in the labour market could simultaneously be made, but there was no such situation here. It had not been made clear whether the pursuer was now fit for any employment.

The final criticism of the pursuer's averments of loss related to the services claim made at page 14B-C of the Closed Record. It was there averred:

While it was accepted that the Court did not demand a very high degree of specification in claims of that kind, nevertheless it was submitted that there ought to have been made averments relating to (i) the period during which services were rendered, (ii) what was done and how often and for how long, and (iii) the division of responsibility between Alexander Keane and Maureen Love. In that connection, reference was made to Johnston v Clark 1997 S.L.T.923. The absence of the kind of averments desiderated here in that case constituted special cause. In the whole circumstances a proof before answer ought to be allowed.

Counsel for the pursuer submitted that there was no special cause for withholding the case from trial by jury. Dealing first with the issues raised relating to the pursuer's case on liability, it was explained that there was no dispute that the defenders had been in control of the site at the material time and that they had been under certain duties of care. Criticism had been focused on the pursuer's averments at page 6B-D of the Closed Record, particularly under reference to McDyer v The Celtic Football and Athletic Co Ltd. However, the circumstances of that case were remote from those of the present. The situation described in the pursuer's averments was that the defenders had supervised the loading of the loading bay with bricks and mortar. There was sufficient in the pursuer's averments to show that the defenders would have knowledge of circumstances existing there. The averments at page 7B-C of the Closed Record showed that the defenders must have been aware of the absence of the guard rail. Counsel for the pursuer made clear that he was asking the Court to infer that the site agent knew of the lack of a guard rail when he ordered the pursuer to enter the loading bay.

Dealing next with the criticisms made of the pursuer's averments quantifying loss, counsel for the pursuer submitted that there would be no particular difficulty for a jury in assessing loss of profits. There was an averment at page 13E-F to the effect that the net profits of the pursuer's business for the year ended 5 April 1996 had been £21,365.00. It was to be inferred that it was at that rate per annum that loss of income was being claimed. There was no need for the pursuer to aver the pursuer's income in previous years. So far as future loss of profits were concerned, that was a matter for the jury to assess on the evidence put before it. Lord Gill had rejected a similar argument in relation to the quantification of loss in Irvine & another v The Balmoral Hotel Edinburgh Ltd. It was clear from the pursuer's averments that he was fit for sedentary work. That could be inferred from the averment at page 14C-D of the Closed Record to the effect that he had attempted to obtain such work but had been unsuccessful. Accordingly, it was plain from the pursuer's averments that the claim for loss of profit was at the full rate claimed. Calculation would be upon the basis that the pursuer would have no future employment.

Turning to deal with the relationship between the pursuer's claim for loss of profit and the matter of the diminution of his competitiveness in the labour market, counsel for the pursuer recognised that the pursuer's averments, as they stood, might give rise to difficulty or confusion in the mind of a jury. In these circumstances, he indicated that he had decided to delete the averment at page 13F concerning diminution of competitiveness in the labour market. In particular he sought to delete the sentence: "The pursuer's competitiveness in the labour market has been adversely affected". There was no opposition to this proposed amendment, which I allowed.

Turning to the matter of the services claim, it was pointed out that the claim was not a major element of the pursuer's whole claim for damages. It was not practicable to give much more specification than had already been given of the matter. The jury could take a broad approach in the circumstances, as envisaged by Lord Gill in Irvine & another v The Balmoral Hotel Edinburgh Ltd. It was clear from Ingham v John G. Russell (Transport) Ltd 1991 S.C.201 that minute detail was not required in averments relating to a services claim. That was also the view expressed in Stark v Ford (No.2) 1996 S.L.T.1329. In that case an Extra Division had expressed the view that a jury was as well placed as a judge to assess a claim of a kind which defied precise quantification. In all of these circumstances the defenders' pleas-in-law 1 and 2 should be repelled and issues allowed.

In the light of the foregoing arguments, I have reached the conclusion that special cause exists for withholding this case from trial by jury. I agree with the submission made by counsel for the defenders to the effect that jury trial is appropriate only where the pursuer's pleadings are relevant and specific on all material points. In my opinion, the proper approach to such matters was expressed by Lord Justice Clerk Thomson in Boyle v Glasgow Corporation, at page 261, where he said:

As I understand it, that approach has been followed in a number of cases, including Moore v Stephen & Sons and O'Malley v Multiflex (UK) Inc.

Considering first the case made by the pursuer as the ground of action, it is, of course, one brought under section 2(1) of the Occupiers Liability (Scotland) Act 1960. It is manifest that that section imposes upon the defenders, as occupiers of the site, certain duties of care. Those duties are imposed upon the defenders, not upon anyone else. In these circumstances, it appears to me that the issue of the defenders' state of knowledge of the dangers which are averred to be the cause of the accident necessarily arises. I agree with the submission of counsel for the defenders to the effect that, in these circumstances, for there to be a relevant case, it must be possible to identify averments either of actual knowledge on the part of the defenders of the dangers said to have caused the accident, or imputed knowledge of such dangers. In my opinion, looking at the pursuer's averments here, there are no express averments of that kind. It is said in condescendence 2 that the defenders had control and management of the site including the scaffolding and the loading bay. It is also averred that they were responsible for the safety of the site including the scaffolding and the loading bay. It is also averred that they were responsible for directing, controlling and supervising the systems of work carried out on the site by sub-contractors. It is averred that they directed, controlled and supervised the system of loading the loading bay with pallets of bricks and mortar. It is then stated that they employed a site agent "to inspect and certify scaffolding and the loading bay as safe". The pursuer goes on to aver that the pursuer was under the defenders' control and direction and carried out bricklaying work as instructed by the defenders' site agent. There then follow certain averments about the procedure adopted in using the loading bay. These averments are averments of practice rather than history. One then finds the averment that, prior to 2.30pm on the date of the accident, the loading bay had been loaded with pallets of bricks and mortar and the guard rail had been removed and had not been replaced. I am quite unable to read any of these averments, which were founded upon by counsel for the pursuer, as averments of knowledge on the part of the defenders that, at the time when the pursuer was instructed to enter the loading bay the guard rail had not been replaced. The defenders in the present action are, of course, a corporate body and, in these circumstances, to demonstrate knowledge on their part, it would be necessary to show that an individual in a controlling position on their behalf possessed such knowledge. As I read the pursuer's case there are no averments of that kind here. The closest that the pursuer gets to averring knowledge on the part of a controlling individual is to make the averment which I have quoted about the site agent. However it is to be observed that the duty of the site agent was said to be "to inspect and certify scaffolding and the loading bay as safe". It is not explained what was the nature of that duty, whether it was a duty to so act on one occasion and certify the scaffolding as safe, or whether, in some way, the site agent was under some continuing duty to inspect the scaffolding. Assuming that the site agent is to be taken to be the controlling individual acting on behalf of the defenders for the purposes of knowledge, in my view there is no basis in averment upon which actual knowledge could be attributed to him.

So far as imputed knowledge is concerned, in my opinion there are no averments upon which it could confidently be inferred that the defenders had imputed knowledge of the dangers upon which the pursuer founds. In this connection, it is not averred when, or by whom, the guard rail had been removed and what opportunity a controlling individual, such as the site agent, might have had to acquaint themselves with that situation. Furthermore, so far as the uneven flooring of the loading bay is concerned, all that is said is that the flooring of the loading bay was uneven at the time when the pursuer entered it. Nothing is said as to how long that state of affairs had continued or what opportunities any responsible person acting on behalf of the defenders might have had to acquaint themselves with it. I find myself in agreement with the submission made by counsel for the defenders to the effect that, as it is currently stated, the pursuer's case appears to amount to an assertion of liability upon the basis (1) that the defenders were occupiers of the site at the material time, and (2) that the pursuer sustained injury on account of two allegedly dangerous aspects of the condition of the site at the time of the accident. In my opinion, such a case is of doubtful relevance.

Turning to the pursuer's averments of loss, three separate submissions were made. The first of these concerned the pursuer's claim for loss of profit. I have reached the conclusion that the defenders' submissions in relation to this matter are well founded. It appears to me that the pursuer's averments relating to his loss of income are of doubtful relevance. At page 13 of the Closed Record it is said that he is not fit to return to his pre-accident employment as a bricklayer. He has lost and will continue to lose income. The net profits of his business for the year ended 5 April 1996 were £21,365.00. It may be that the pursuer intends to claim loss of income at the rate of £21,365.00 per annum on the basis of these averments, but in my view, that is not made clear. In the first place, that figure emerges as being the net profits for a particular year of activity. There is no averment that the pursuer expected to earn profits at that particular rate following upon that year. Furthermore, it appears reasonable to infer from the pursuer's averments later in condescendence 4 that he is in fact fit for some forms of employment, although not for his pre-accident employment as a bricklayer. In these circumstances the question arises of whether it would be feasible for him to earn some income from some other employment. In my opinion the pursuer's averments do not adequately address that matter. It is said at page 14D that he has attempted to obtain sedentary work in local supermarkets but he has been unsuccessful. I do not know whether the pursuer's case is intended to be that there is no suitable sedentary work in any field which he could undertake. Certainly he does not aver that. In my view, to quote the words of Lord Justice Clerk Thomson in Boyle v Glasgow Corporation, "it is really intolerable that it should be left to the Court, with the assistance of counsel, to try to extricate from the averments what the points in a case are". I consider that the situation here is very similar to that encountered by Lord Gill in O'Malley v Multiflex (UK) Inc., where he found that there were no averments by the pursuer as to the financial implications of the pursuer being fit only for sedentary work. For these reasons, I consider that this part of the pursuer's case is also of doubtful relevance.

Further submissions were made on behalf of the defenders, based upon the appearance in condescendence 4 of the averment concerning the pursuer's competitiveness in the labour market. It is, of course, unnecessary for me to deal with those submissions, since counsel for the pursuer sought and obtained leave to delete that particular averment.

Turning finally to the matter of the pursuer's averments concerning his claim under section 8 of the Administration of Justice Act 1982 in respect of necessary services said to have been rendered to him by the named individuals, I have reached the conclusion that those averments themselves would not amount to special cause for withholding the case from trial by jury, although, I consider that they are in certain respects lacking in the specification that one might have expected to find. I consider that that is so particularly in relation to the period over which the services were said to have been rendered. It is said that that was "during the period of his incapacity following the accident". It is far from clear what that period is supposed to be. Having regard to the tense utilised in that averment, the period appears to have come to an end, yet the pursuer claims continuing incapacity.

In the whole circumstances, I shall sustain plea-in-law 1 for the defenders, reserve their plea-in-law 2, refuse the pursuer's motion to allow issues, and allow a proof before answer.

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Keane (AP) v Walker Contracts Scotland Ltd [1999] ScotCS 48 (12 February 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/48.html Cite as: [1999] ScotCS 48

Scottish Court of Session Decisions