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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Nisbet v. Chief Constable Strathclyde Police & Anor [2002] ScotCS 101 (10th April, 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/101.html Cite as: [2002] ScotCS 101

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Nisbet v. Chief Constable Strathclyde Police & Anor [2002] ScotCS 101 (10th April, 2002)

OUTER HOUSE, COURT OF SESSION
A2667/00	OPINION OF LORD WHEATLEY in the cause ROBERT NISBET Pursuer; against (FIRST) JOHN ORR, Chief Constable, Strathclyde Police and (SECOND) NORTH LANARKSHIRE COUNCIL Defenders:   ________________

 

Pursuer: Clancy; Balfour & Manson

Defenders: R Milligan; Simpson & Marwick, W.S. for 1^st Defenders

Dunlop; Campbell Smith, W.S., for 2^nd Defenders

10 April 2002

1. In this case the pursuer claims damages for injuries which he says he received in the course of an accident at his work on 28 October 1997. At that time he was employed as a police officer with Strathclyde Police and was working in Coatbridge Police Station. The Chief Constable of Strathclyde Police is the first defender in the action.
2. In the early hours of the morning of 28 October 1997 large quantities of water leaked from an adjacent toilet into the Detective Constable's room at Coatbridge Police Station, and soaked an area of carpet. According to the pursuer this made the carpet slippery. It appears that a janitor, who was employed by the second named defenders, and who was responsible for dealing with matters such as leaks and water spillages within Coatbridge Police Station, attempted to dry out the water from the carpet and thereafter applied an odour neutralising agent to the affected area of the carpet. The pursuer maintains on Record that the application of the odour neutralising agent made the carpet even more slippery than before. On the day in question the pursuer avers that as he was crossing the Detective Constable's room, he slipped and fell heavily on his back because of the effect of the water or the neutralising agent on the carpet, or both.
3. The pursuer's case of fault is therefore taken against the Chief Constable of Strathclyde Police as his own employer and North Lanarkshire Council as employers of the janitor. It appeared that the first defenders had a contract with the second defenders for the provision of janitorial services. The pursuer's case against the first defenders is based exclusively on an alleged breach of statutory duty. It is averred that the room in which the accident happened was a workplace within the meaning of the Workplace (Health, Safety and Welfare) Regulations 1992 and that it was under the control of the first defender. He was therefore responsible, it is said, for the conduct and welfare of police officers working there and for the provision of janitorial services provided by the second defender. Regulation 12(3) of the Regulations provides:-

"So far as is reasonably practicable, every floor in a workplace shall .... be kept free from obstructions and from any article or substance which may cause a person to slip, trip or fall".

The pursuer's case against the second defenders is pled vicariously at common law and consists of two duties of care said to be incumbent upon the janitor. Firstly, the pursuer avers that it was the janitor's duty to take reasonable care for the safety of persons working in the room where the accident happened, such as the pursuer, and in particular to see that the floor was not made slippery. In particular it is suggested that he should have tested the carpet after applying the agent to see if it was slippery. Secondly, it is averred that the janitor should have placed cones or warning signs around the affected area. Both defenders tabled pleas to the relevancy of these cases of fault, and sought at debate to have the action dismissed.

4. For the first defender, counsel argued that, as the pursuer's case was based exclusively on the Workplace (Health, Safety and Welfare) Regulation 1992 which are made under the Health and Safety at Work etc Act 1974, it had to be demonstrated either that the first defender was the pursuer's employer for the purposes of the Regulations, or secondly, if the first defender was not the pursuer's employer, that he had control over the workplace. The provisions of regulation 4(1) apply to the employer of someone in a particular place of work, and regulation 4(2) applies the regulations to anyone who has control of the workplace. Counsel argued in the first place that the first defender was not the pursuer's employer at the time of the accident, and therefore did not have any statutory responsibility for the pursuer's accident in terms of regulation 4(1). Prior to 1998, police officers holding the office of constable were vested with discretions which they had to exercise independently, and as a consequence they were not regarded as Crown servants, or as employees in terms of Health and Safety at Work etc Act 1974, or of any regulations made in terms of that Act (see Metropolitan Police Commissioner v Lowrey-Nesbit [1999] I.C.R.401). As a result of amendments introduced by the Police (Health and Safety) Act 1997, a new section 51A of the 1974 Act now treats persons holding the office of constable as employees for the purpose of the Act, and regulations passed under the main Act now have the same effect. Section 52(1)(bb) provides that a person holding the office of constable is at work throughout the time when he is on duty. The 1997 Act was introduced by the Police (Health and Safety) Act 1997 (Commencement) Order 1998, which came into effect on 1 July 1998. This was after the accident to the pursuer. Accordingly the first defender's counsel maintained that the first defender was not in statutory terms the pursuer's employer at the material time and therefore not subject to the Health and Safety at Work Regulations. There was therefore no relevant case against the first defender in terms of section 4(1) of the Regulations.
5. In respect of the second basis of negligence alleged by the pursuer against the first defender, counsel argued that the pursuer could not maintain, as he required to do, that the first defender was in control of the matter which concerned the pursuer's accident. While regulation 4(1) applied the regulations to employers, regulation 4(2) applied the regulations to any person who has to any extent control over the workplace. In particular, regulation 4(2)(c) provides that the regulations apply to such persons when they related to "matters within that person's control"; in other words to matters which were within the control of the non-employer at the material time. The pursuer had averred in terms that responsibility for the condition of the floor that was said to be responsible for the pursuer's accident rested with the janitor employed by the second defenders. Reference was made to King v RCO Support Services Limited and Anr. [2001] I.C.R.608. In the present case, both the Chief Constable and the second defenders cannot be responsible at the same time for the operation of clearing up the floor. All that is said against the first defender is that he was responsible for the conduct and welfare of the pursuer. If both defenders were said to be in control of the operation at the material time, then this should be specified in the averments.
6. In response pursuer's counsel accepted that the 1997 Act did not come into effect until 1 July 1998, after the accident happened; however he submitted that this did not necessarily mean that prior to the amendments to the 1974 Act, the regulations passed thereunder did not apply to a police constable. The 1997 Act simply underlined the principle that the provisions of the 1992 Act had always applied to police constables. In Munkman on Employers' Liability (13^th Ed.) para.32.15, the authors stated that prior to the passing of the Health and Safety at Work Act 1974, breaches of the Health and Safety at Work regulations were often pled against the police and, so far as the authors were aware, the point was never taken that the regulations were inapplicable because the police fell outside the scope of the Act on the ground that they were not employees. The authors then go on to say that the law now corresponds with that practice. Counsel further argued that the duties imposed by the Act on the Chief Constable apply if he is an employer in any sense. Accordingly, he owed a duty of care in respect of what happened in the accident even if he was not on the particular occasion the employer of the pursuer.
7. In my view the pursuer's arguments in support of this case against the first defender are wrong. Prior to the passing of the Police (Health and Safety) Act 1997, police constables were clearly regarded as being employed in a special capacity and for that reason were not subject to the provisions of the Health and Safety at Work etc Act 1972. There is no authority or warrant in Scottish practice for thinking that the position was otherwise. The only case pled against the first defender is within this statutory framework, and therefore there can on the pleadings be no justification for the conclusion that the pursuer was employed by the first defenders.
8. In respect of regulation 4(2) of the Act, pursuer's counsel maintained that the place where the pursuer had his accident was a workplace and was one over which the first defender had control. Regulation 4(2) applies the regulations to any person who has to any extent a degree of control over the workplace. This is a broad duty of care, and clearly more than one person can be in control at any particular time. Counsel argued that the pursuer should be allowed some measure of latitude in this matter, because he did not know the extent and nature of the relationship between the first and second defenders. Reference was made to the case of Wheat v E Lacon & Co [1966] A.C.552 where in a case under the Occupiers Liability legislation, Lord Denning (at pp.578-580) made it clear that any degree of control is enough to establish liability. So when an independent contractor is employed, he may be jointly in control of a workplace at the same time as the employer. In these circumstances counsel argued that the case of King v RCO Support Services Ltd and Anr. did not apply to the present situation because the case was factually different, and did not appear to take into account the terms of regulation 4(2)(c). Accordingly it was premature to say whether or not the first defender was not in control of the pursuer's workplace at the material time.
9. Again, I was not persuaded by the pursuer's submissions. The reason why in my view they fail is that there are no averments which support the position argued for by the pursuers. It is not said that the first defender was in control of the pursuer's workplace at the time of the accident, and more importantly in terms of regulation 4(2)(c) it is not said that he was in control of the matter which was the cause of the accident at the material time. The only averments made by the pursuer suggest that control over the relevant matter which caused the accident lay elsewhere. If there are no averments that the first defender was in some way in control of what happened, then the first defender cannot be held responsible for what happened. In the absence of such averments, I must prefer the arguments in this matter tendered by the first defenders' counsel. I therefore conclude that the pursuer has not made a relevant case against the first defender under either regulation 4(1) or 4(2).
10. For the second defenders, counsel submitted that the duties of care pled by the pursuer fell into two parts. Firstly, the second defenders' employee, the janitor, should have taken reasonable care to see that the floor on which the pursuer walked was not made slippery. In addition, he should not have sprayed the floor with the odour neutralising agent which increased the slippery characteristics of the surface. Secondly, the second defenders' employee should have placed cones or warning signs around the affected area. In respect of the first set of duties of care counsel submitted that the pursuer had failed to aver facts and circumstances sufficient to demonstrate that the janitor should have foreseen that he was creating a danger. Reference was made to Bennett v Lamont & Son 2000 S.L.T.17 at p.21 where the need for considerations of foreseeability, proximity and considerations of fairness, justice and reasonableness were specified as being necessary for a relevant claim. In that case there were no averments of any facts and circumstances which could lead to an inference that any danger should have been appreciated by the delinquent party. The same was true in the present case. Reference was also made to Robb v Dundee District Council 1980 S.L.T.(N) 91. In the present case there were no averments to suggest that the presence of the water on the carpet, or that the application of the deodorising agent would lead to a risk of the pursuer slipping on the floor. In particular there were no averments that the janitor had any knowledge that such a risk would arise. In Robb v Dundee Council there were general averments of liability but in the present case there was no averment to the effect that the janitor knew or ought to have known that the wetness of the carpet or the deodorising agent would make the floor slippery. All that is said is that he knew or ought to have known that if he failed to fulfil the duties incumbent upon him the accident would not have happened. These averments were insufficient to justify a relevant claim against the second defenders.
11. In respect of the second set of duties of care the pursuer had further failed to indicate what timescale was specified as to when the cones or warning signs should have been in place. Reference was made to McGuffie v Forth Valley Health Board 1991 S.L.T.231.
12. In response pursuer's counsel argued that the case against the second defenders was straightforward. The floor was found to be wet; that in itself made the surface slippery. The janitor then applied a deodorising agent which made the floor worse. The pursuer can therefore succeed in the present pleadings if he shows that the carpet was slippery as a result of water or of the deodorising agent or both. There was no difficulty on foreseeability. There was clearly sufficient specification of a requirement to put up cones and warning signs and averments that in the absence of that provision an accident was liable to happen. In particular there was sufficient specification in the pleadings to suggest that the pursuer was liable to slip on the wet carpet irrespective of how that came to happen. In Article 4 of the Condescendence the pursuer avers that the janitor should have tested the floor by putting his finger on it. Secondly, the pursuer's counsel maintained that the second defenders' submission that no time limit had been stipulated for placing warning signs or cones was ill-founded. The case of McGuffie v Forth Valley Health Board was about gritting roads and clearly the question of resources applied. In the present case the duty of care to place warning cones and signs on the affected area was something which should have happened at the same time as the danger arose.
13. I have no doubt that the pursuer's submissions on the question of the timescale for placing cones and warning signs were correct. What is involved in any particular duty of care will depend on the circumstances in each case, and in particular on the context within which the duty of care is formulated. Accordingly, when the duty of care is concerned, as it was in the case of McGuffie, with the period of time considered to be reasonable in the treatment of roads affected by frost or ice, then the assessment of that duty of care will depend in part on the questions of priorities. Different time limits for treating different classes of risk will also no doubt operate, all within the context of what resources for road treatment are considered to be reasonably available. But I agree with pursuer's counsel that there will be some duties of care where such considerations are irrelevant. When there is an evident and obvious danger then certain duties of care will arise automatically and in effect contemporaneously with the appreciation of that danger. I can see no reason why a janitor should not be charged with a duty of immediately placing any available cones and warning signs around a wet floor, alerting those within the room from the outset as to the danger, as soon as he was aware that the floor was in a slippery condition. I therefore reject the second defenders' counsel's submissions on that matter.
14. I have however more difficulty with the second defenders' principal and more fundamental submissions, which refer to all of the duties of care averred against them by the pursuer. The essence of this argument was that there was simply no averments that would yield an inference that the janitor should have foreseen that the surface of the floor was slippery, either through the presence of water, or the presence of the deodorising agent, or both. There is nothing to suggest that he knew or ought to have known that someone walking on the floor would have been liable to slip or fall, because of its condition. There is therefore a complete absence of averments which sufficiently describe the necessary ingredient of foreseeability in the pursuer's case. Accordingly the pursuer's case has to be considered to be irrelevant. It might have been enough to suggest that the second defenders or their employee knew or ought to have known that the floor was in a slippery condition for whatever reason. But the pursuer does not even go as far as that in the present case. All that is said is that the janitor knew or ought to have known that if he failed to fulfil the duties of care incumbent upon him, then the accident would not have occurred. That, as a statement, is self-evidently correct so far as it goes. However what this averment does not indicate is the basis for suggesting that the janitor should have known that, for whatever reason, the floor would be slippery and that persons walking on such a floor would be liable to fall. Nor is it sufficient for the pursuer's to suggest in Condescendence (4) that the janitor should have touched the carpet after he had applied the deodorising agent in order to see if it was slippery. It is entirely unclear what the basis of this averment might be. It seems to suggest in the circumstances that a janitor must always test wet carpets which have been treated by a deodourising agent, by touching them in order to see whether they are slippery or not. This appears to me to be in effect an allegation of a further duty of care rather than an averment from which the question of foreseeability can be inferred. Accordingly I have come to the conclusion that the pursuer's averments against the second defenders essentially lack any specification of foreseeability on the part of the janitor vicariously held responsible for the pursuer's accident, and that this case too is irrelevant.
15. In all the circumstances therefore I shall sustain the first pleas-in-law for both the first and second defenders and dismiss the action.