![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |
Scottish Court of Session Decisions |
||
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McGowan v. W & JR Watson Ltd [2006] ScotCS CSIH_62 (28 December 2006) URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSIH_62.html Cite as: 2007 SC 272, [2006] CSIH 62, [2006] ScotCS CSIH_62 |
[New search] [Help]
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
|
Lord OsborneLord Nimmo SmithLord Carloway
|
[2006] CSIH 62PD1456/04OPINION OF THE COURT delivered by LORD NIMMO
SMITH in RECLAIMING MOTION in the cause STUART McGOWAN Pursuer and Respondent; against W & J R WATSON LIMITED Defenders and Reclaimers: _______ |
Alt: R Thomson Simpson & Marwick
[2] In
the foregoing circumstances it is not necessary to do more than refer briefly
to the Lord Ordinary's findings in fact about the manner in which the pursuer
came to be injured and his reasons for holding that the defenders were in
breach of their statutory duty. The
pursuer was working for the defenders as a joiner, engaged on construction
work. He had to cut a piece of wooden
beading 1 metre long on a circular saw provided by the defenders. The saw consisted of a base on which the workpiece
(the wood) could be laid against a metal guide, and above which the saw was
suspended on an arm which could be moved so as to cut the workpiece from
various angles. One half of the circular
blade of the saw was within a metal frame on the arm, while the other half was
protected by a Perspex guard. The saw
could be brought down to cut the workpiece by moving the arm, on which there
was a trigger which caused the blade of the saw to rotate. When the trigger was engaged and the saw was
brought down towards the workpiece, the guard was retracted so as to allow the
blade to cut the workpiece. The pursuer
had to cut the 1 metre long piece of wooden beading with the saw so as to
make a straight cut, that is, so that the blade was at an angle of 90o
to the wood. He placed the piece of wood
on the base of the saw without using a clamp.
There was no clamp on the saw. He
kept it in position by using his left hand.
With his right hand on the arm he operated the saw, activating the
trigger to make the blade rotate. With
his right hand he lowered the arm and thus brought down the blade, and the
blade made contact with the wood. The
fingers of his left hand were 2 or 3 inches from the blade. As the teeth of the blade cut through the
wood, there was what the pursuer described as a "jarring" or "jamming", the
effect of which was to prevent the blade from rotating: it stopped completely. The piece of wood, which the pursuer was
still holding in his left hand, moved upwards.
With his left hand, the pursuer pushed it back down to force it beneath
the saw. With his right hand, he was
still pressing the trigger. The blade
started to rotate again. It was not yet
in contact with the wood. The pursuer's
left hand was still on top of the wood.
It was at this stage that his left middle finger came into contact with
the rotating blade and was injured. The
saw was tested after the accident and it was found that the guard worked as it
should.
[3] Having
assessed the evidence, the Lord Ordinary found that the pursuer's left middle
finger came into contact with the rotating blade when his left hand was on the
piece of wood. He concluded that his
finger came into contact with the blade as a result of human fallibility on the
pursuer's part. He said that it was
clear that, as a result of some aberration, the pursuer inadvertently let go of
the wood and allowed his finger to come into contact with the blade. He also found that it was proved that the
guard was functioning properly, as it was designed to do.
[4] So
far as liability for the accident was concerned, the Lord Ordinary held that
the defenders could not be faulted for the fact that there was no clamp on the
saw. He also held that the pursuer could
not be faulted for failing to find and use a clamp. He also held that the pursuer had failed to
establish that the defenders were in breach of Regulation 5(1) of the 1998
Regulations. Regulation 11 of the
1998 Regulations provides, so far as material:
"(1) Every employer shall ensure that measures
are taken in accordance with paragraph (2) which are effective -
(a) to prevent access to any dangerous part
of machinery ... ".
The Lord Ordinary held that the
blade was such that a danger was reasonably to be anticipated from its use
unguarded by a workman such as the pursuer who through inattention might
inadvertently expose himself to the risk of injury from it. Given the acceptable evidence about the
non-use of clamps, it could reasonably be anticipated that joiners would not
use clamps but would hold in position by hand wood they had to cut with the
circular saw. There was nothing to
prevent such a joiner from having access to the revolving blade. Accordingly the result required by the
regulation was not achieved. The
defenders were therefore in breach of their statutory duty under Regulation 11(1),
but for which breach the accident would not have occurred.
Contributory negligence
The pleadings
[5] Statement and answer 6 of
the pleadings on which the parties went to proof are in these terms:
"STAT. VI. The pursuer's claim against the defenders
is based on their breach of the statutory duties incumbent on them by virtue of
Regulations 5(1) and 11(1) of the Provision and Use of Work Equipment
Regulations 1998. The averments in
answer are denied. The defenders give no
fair notice of the basis of their averments of sole fault or contributory
negligence. They are called upon to
specify the basis of these averments, and to say what they allege the pursuer
did, or failed to do, which caused, or contributed to, the accident. Their failure to answer this call will be
founded upon.
Ans. 6 Denied
that the defenders are in breach of Regulation 11(1) of the Provisions and
Use of Work Equipment Regulations 1998.
Explained and averred that the accident was solely caused, or at least
materially contributed to, by the pursuer's own fault. Reference is made to the Law Reform
(Contributory Negligence) Act 1945."
The Lord
Ordinary's decision
[6] In paragraph 19 of
his Opinion the Lord Ordinary quoted from statement 6 for the pursuer,
with particular reference to the call for further specification of the
averments of sole fault or contributory negligence. He also referred to an averment for the
defenders in answer 4, in these terms:
"On either
side of the saw, there are clamps. The
clamps are adjustable. They hold the
material in place whilst it is being cut.
The need for an operator's hands to be in close proximity to the blade
whilst it is unguarded is thereby obviated."
He then continued, in
paragraph 19 in these terms:
"In my opinion this point is well
taken. The only indication of an
averment of fault on the pursuer's part is to be inferred from the defenders'
averments about clamps, which I have already quoted. I have already expressed the view that the
pursuer is not to be faulted for failing to use a clamp. The pursuer has not been given any notice of
any other ground of fault, and I have no note or recollection of any other
ground being put to him in cross-examination.
I would therefore make no reduction of the pursuer's award in respect of
contributory negligence. If I am wrong
about that, and some deduction should be made in respect of what I have found
to be inattention or inadvertence, I would assess contributory negligence at 50
per cent, as in the somewhat similar circumstances of Prentice v Fleming 1978
SLT (Notes) 40. Other comparable cases
are cited in McEwan and Paton on Damages for Personal Injuries in Scotland (2nd
Ed.), page 100."
Submissions for the defenders
[7] When asked
why a reclaiming motion had been brought when the sum of money at stake was so
small and no point of principle arose, Mr Thomson (who did not appear at
the proof before the Lord Ordinary and, as we understand it, had been
instructed for the first time for the defenders shortly before the hearing of
the reclaiming motion) explained that steps had been taken to try to prevent
the reclaiming motion from being heard.
The Lord Ordinary's decision, however, had attracted some attention from
pleaders and the question was what defenders required to do in order to plead a
case of contributory negligence. The key
to his submissions lay in the Lord Ordinary's conclusion that the pursuer's
finger came into contact with the blade as a result of human fallibility, some
aberration or lapse in attention, or inadvertence on his part. Counsel referred to passages in the
transcript of evidence, which it is unnecessary for us to quote, from which
this conclusion was derived. Counsel
accepted that it had not been put to the pursuer at the proof that he had
failed to take reasonable care for his own safety. It was no doubt normal to do this in
cross-examination, but the pursuer's own account in his evidence in chief was
redolent of contributory negligence.
[8] On the
pleading issue, counsel submitted that the defenders had given fair
notice. He accepted that even under the
procedure for actions for damages for personal injuries, fair notice was
required, but this depended on the circumstances of each case. The requirements of fair notice should not be
more burdensome on one party than on the other:
there should be no unfair disparity between the parties. The requirement of what the defenders must do
by way of fair notice depended upon what notice was given by the pursuer. Under Rule of Court 43.2 the pursuer required
to give no more than a "brief statement".
The Lord Ordinary had expected the defenders to do more than was
required of the pursuer, and therefore erred.
Reference was made to the Opinion of Lord Osborne in Dalson v Tayside Health Board 1998 S.L.T. 1304, at the conclusion of which,
at page 1305D, his Lordship said:
"It appears to me to be in accordance
with normal principles of fairness, in an optional procedure case where a
pursuer does not require to aver specific duties of care, that defenders should
not be under any greater duty in relation to a case of contributory
negligence."
Adopting this approach, counsel submitted that the defenders
were entitled to table a general plea of contributory negligence and not to set
out the specific duty or duties which the pursuer was alleged to have
breached. Moreover, having regard to the
evidence given by the pursuer, it was not necessary to put to him in
cross-examination any specific ground upon which it was alleged that he had
been negligent.
Submissions for the pursuer
[9] On behalf of the pursuer,
Mr MacAulay submitted that the Lord Ordinary was correct in concluding
that no finding of contributory negligence should be made in the absence of
averment and in the absence of the matter having been put to the pursuer. In any event, inadvertence or inattention on
the part of the pursuer would not support a finding of contributory negligence
on his part. Counsel emphasised the
point that the defenders had specific averments in their pleadings about the
use of clamps on the saw, and this had been explored in evidence with the
pursuer and other witnesses. Having put
forward one specific line of defence, the defenders were not entitled to put
forward another line of which no specification and accordingly no fair notice
had been given. Reference was made to
the Opinion of Lord Glennie in Weir v
Robertson Group (Construction) Ltd
[2006] CSOH 107, where at paragraph 7 his Lordship gave his reasons for
upholding an objection to a line of cross-examination of the pursuer on the
basis that there was no record for it.
He said:
"Although the new personal damages
rules contained in Rule of Court 43 encourage abbreviated pleadings, they
do not dispense with the requirements of fair notice. Rule of Court 43.2 requires the summons
to contain averments 'relating only to those facts necessary to establish the
claim'. The same approach, in my view,
applies mutatis mutandis to the
defences, though there is no specific rule about defences. The defences should aver the facts which the
defender regards as necessary to support his defence or plea of contributory
negligence. Otherwise how is the pursuer
to know what investigations to make and what evidence to lead?"
Counsel submitted that in the defenders' pleadings the case
of contributory negligence rested on the averments about the use of
clamps. This was why the cross-examiner
did not suggest to the pursuer that he was doing anything else wrong. It was not put to him that he was at fault in
any other way, for example in the way that he operated the saw.
"The degree of want of care which
constitutes negligence must vary with the circumstances. What that degree is, is a question for the
jury or the court in lieu of a jury. It
is not a matter of uniform standard. It
may vary according to the circumstances from man to man, from place to place,
from time to time. It may vary even in
the case of the same man. Thus a surgeon
doing an emergency operation on a cottage table with the light of a candle might
not properly be held guilty of negligence in respect of an act or omission
which would be negligence if he were performing the same operation with all the
advantages of the serene atmosphere of his operating theatre; the same holds good of the workman. It must be a question of degree. The jury have to draw the line where mere
thoughtlessness or inadvertence or forgetfulness ceases and where negligence
begins."
In John Summers &
Sons Ltd v Frost [1955] A.C. 740
Lord Keith of Avonholm said at page 777 that the employers in that case
had failed to prove contributory negligence against the workman. He said:
"The type of accident that happened
here is just the type of the accident against which section 14 [of the
Factories Act 1937] is directed. There is
no question here of disobedience to orders, or of reckless disregard by a
workman of his own safety. At most there
was a mere error of judgment by the plaintiff as to how the work on which he
was engaged could best be carried out, and possibly only a mere momentary
inadvertence."
He agreed that what the plaintiff did fell short of negligent
conduct. These passages were quoted by
Lord McCluskey in McNeill v Roche Products Ltd 1989 S.L.T. 498 at
page 504D-E. His Lordship said:
"[T]he tribunal of fact has to draw
the line between mere thoughtlessness or inadvertence on the one hand and real
negligence on the other and to give due regard to the actual conditions under
which men work, to the fatigue, to the slackening of attention which naturally
comes from constant repetition of the same operation and other such
factors. The authorities illustrate the
point that, particularly in a case where the employers are in breach of their
section 14 [of the Factories Act 1961] duty, the court must be cautious
about making a finding of contributory negligence against a workman based
simply upon his departing marginally from the ordinary routine. The whole purpose of a provision such as
section 14 is to avoid the risk of accident to the inadvertent workman or
passer by."
[11] On the basis
of these authorities, counsel submitted that if there was an absolute statutory
duty, a finding of inadvertence or inattention on the part of the injured
employee did not constitute contributory negligence. This was what the Lord Ordinary had
found. In any event, a finding of
contributory negligence of as much as 50% would not be justified. The defenders had been in breach of an
absolute statutory duty to protect their employees from dangerous
machinery. At worst, the pursuer was guilty
of inadvertence, not blatant lack of care or failure to follow working
practices. On any view he was doing his
job in a way in which he would generally be expected to do it. So if there was to be a finding of
contributory negligence, it should be at the bottom end of the scale.
Discussion
[12] In our opinion the Lord Ordinary
did not err in making no reduction of the pursuer's award in respect of
contributory negligence. Two points
arise: first, whether the Lord Ordinary's
approach to the pleading point was correct;
and, secondly, whether in any event on the evidence accepted by the Lord
Ordinary there was a basis for a finding of contributory negligence.
[13] It is clear
that in an action of damages for personal injuries to which the provisions of
Chapter 43 of the Rules of Court apply, it is not necessary for either
party to engage in elaborate pleading.
There is, nevertheless, as Mr Thomson recognised, a requirement,
which is imposed on defenders as much as on pursuers, to give at least fair notice
of a case which it is proposed to make.
Thus defenders could not secure a finding of contributory negligence if
they had not at the very least made some reference to it in their pleadings. How much beyond that is required depends very
much on the circumstances of each case.
It may be that the pursuer's own pleadings would support a plea of
contributory negligence, in which case very little need be said. But if defenders choose to give notice of a
specific case of contributory negligence, as was done here in relation to the
use of clamps, they may be precluded from seeking to argue for a finding of
contributory negligence on any other ground because they have not given fair
notice of it. We agree with the approach
of Lord Glennie in Weir v Robertson
Group (Construction) Ltd, in the passage quoted above. Accordingly, in circumstances such as arose
in that case, an objection to a line of cross-examination of which no fair
notice had been given in the defenders' pleadings would appropriately be upheld. In the present case, the lack of fair notice
went further. There was no attempt to
put it to the pursuer in cross-examination that he had been negligent in any
respect except that of failing to use clamps.
The pursuer accordingly had no opportunity to contradict any suggestion
that there had been a lack of reasonable care on his part in any other
respect. Indeed, it does not appear from
the Lord Ordinary's opinion that he was invited to make a finding of contributory
negligence on any other ground. In our
opinion, he had no alternative but to dispose of the matter as he did.
[14] It was only
before us that counsel sought to build a case of contributory negligence on the
Lord Ordinary's conclusions that the accident happened as a result of human
fallibility, aberration or lapse in attention, or inadvertence on the part of
the pursuer. The authorities quoted
above are ample support for the proposition that such a failure does not form
the basis for a finding of contributory negligence on the part of an employee
who has been injured as a result of a breach by his employers of an absolute
statutory duty such as that imposed by Regulation 11(1) of the 1998
Regulations. The reason for this is that
statutory provisions of this kind are intended to protect employees against inter alia accidents caused by
inattention or inadvertence. The
protection does not extend only to employees who are fully alert. A momentary lapse, such as occurred in the
present case, falls short of being described as a lack of reasonable care on
the part of the pursuer.
[15] Where,
however, in our opinion the Lord Ordinary has fallen into error is in saying
that if some deduction should be made in respect of what he had found to be
inattention or inadvertence, he would assess contributory negligence at
50%. As we have said, inattention or
inadvertence do not support a finding of contributory negligence, and there was
no other evidence which the Lord Ordinary accepted which would support such a
finding. Clearly he was not addressed on
the authorities which distinguish between inattention or inadvertence on the
one hand and contributory negligence on the other, otherwise he might not have
made this statement. But in our opinion,
having reached the conclusion he did on the evidence, there was no need to
express an alternative conclusion on a hypothetical basis.
Result
[16] For these reasons we shall refuse the
reclaiming motion and adhere to the interlocutor of the Lord Ordinary. We would only add that it is regrettable that
so much time and expense, particularly court time, should have been taken up
with a dispute about such a relatively trifling sum of money in a case which
was dependent upon its own particular circumstances and which raised no issue
of principle. If it is part of a wider
dispute, as to which we can only speculate, we would deprecate it.