Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION   [2007] CSOH 10
PD1800/04	OPINION OF LORD McEWAN   in the cause   JAMES LOVE   Pursuer;   against   NORTH LANARKSHIRE COUNCIL   Defenders:     ­­­­­­­­­­­­­­­­­________________

 

Pursuer: A.E. Smart; Digby Brown S.S.C.

Defenders: Davie; Ledingham Chalmers

 

23 January 2007

 

[1] In this action the pursuer sues the defenders in reparation for injuries which he sustained in the course of his employment as a swimming pool attendant. At the time he was working at the defenders' pool. The Rule 43 record (No.10 of process) which was the basis of the proof can be summarised thus. The pursuer went for a meal break at about 6.30pm on 25 January 2002. He went to the staff locker room. The room is small and contains lockers, chairs and a bin. The floor space was restricted. He sat on a chair and took sandwiches from his bag. He stood up to put his bag into his locker. The chair struck a plywood board which was leaning against a locker. The wood fell and struck a half empty glass lemonade bottle left on the floor by a fellow employee. The defenders had a general prohibition against bringing glass containers into any of their sports facilities. That was routinely flouted by employees who regularly brought in glass bottles. The bottle in question exploded and glass cut the pursuer's leg. The injury and medical treatment following are described in Article 5 and the various cases at common law and under the Workplace (Health, Safety and Welfare) Regulations 1992 are stated in Article 6.

[2] The pursuer and his wife gave evidence. Five work colleagues were called, viz, Lindsay, Marshall, McOwat, Fleming and McFarland. The medical evidence was given by Mr Singh and Dr Schreiber. The defenders led one witness to fact (Yeoman), two medical (Drs Black and Simpson) and one expert in glass technology (Brew).

[3] Counsel referred to a number of authorities which I now list. Anderson v Lothian Health Board 1996 SCLR 1068, Anderson v Newham College [2002] EWCA Civ 505, Burns v Dixons Ironworks 1961 SC 102, Butler v Grampian University Hospital NHS Trust 2002 SLT 985, Clifton v Hayes PLC 9 January 2002 (Lady Smith), Cochrane v Gaughan 2004 SCLR 1073, English v North Lanarkshire, 1999 SCLR 310 Gallagher v Kleinwart-Benson (Trs) Ltd 2003 SCLR 384, Gillanders v Bell and Others [2005] CSOH 54, Gilmour v East Renfrewshire Council 2004 Rep LR 40, Hughes v Lord Advocate 1963 SC (HL) 31, Levesly v Firth Brown [1953] 2 All E.R. 866, Lewis v Avidan [2005] EWCA Civ 670, Litster v Forth Dry Dock Etc Ltd 1989 (H.L.) 96, McEwan v Lothian Buses PLC [2006] CSOH 56, McGhee v Strathclyde Fire Brigade 2002 SLT 680, McGuffie v Forth Valley Health Board 1991 SLT 231, McLaughlin v East and Midlothian NHS Trust 2002 SLT 387, Miller v Galashiels, Simmons v British Steel 2002 SLT 711, Thomson v Tough Ropes 1978 SLT (notes) 5. Not all of these cases were fully discussed. In addition when dealing with quantum a number of other cases were touched upon by way of examples.

[4] Miss Smart moved me to grant decree in her favour and maintained her cases made at common law and under Regulations 5, 9, 12 and 13. She said that the facts were straight-forward. The pursuer was on his meal break in the lunch-room when his chair struck the piece of wood causing it to fall and strike the bottle. His leg was injured and he had the wound dressed. There was no competing account, no contributory negligence and the pursuer should be accepted. There was no reason to disbelieve him or find him unreliable. Such was never suggested to him in cross-examination. She referred to Thomson v Tough Ropes. The injury was caused by the glass bottle shattering and glass took all the attention of the hospital. Even the defenders' tests showed that a bottle could break in the same circumstances. The case was not about any bottle dropping from a height. The defenders had not produced any accident book.

[5] The state of the changing room was important. The evidence and the photos showed there was no proper system of cleaning it or keeping it tidy. Wood and bottles left there demonstrated that. The wood had been there for several weeks and was an obstruction. Glass bottles were allowed there when notices prohibited them elsewhere. There were showers attached to the locker room. It was a "wet" area and people might go barefoot.

[6] Turning to the law she said the Regulations had to be interpreted in the spirit of the Directive to guarantee safety. (Litster). She then addressed what was a workplace and referred to Butler. Regulation 5 was meant to secure an outcome and was not concerned with maintenance. Liability was strict and the workplace had to be in a continuing state of efficiency. Relevant factors could cover layout, use, organisation, tidiness and cleanliness. She referred to McLaughlin and Gilmour. (Maintain) meant "kept". That covered both use and management. Maintenance and repair was not the test. She invited me to distinguish McNaughton v Michelin Tyres and Lewis v Avidan. The locker room littered with wood and bottles was not efficient. It was close to a wet area where the presence of glass could never be efficient. By way of example a shower area could be efficient even when wet but a wet school corridor would not be. Cochrane v Gaughan was discussed. The regulation had to be looked at objectively.

[7] Counsel then moved to consider Regulation 9. She said that the wood and the glass bottle were waste materials. In spite of the repair the wood had been there for some weeks and was not being used. The bottle which was half full should have been in the bin, a bag, a locker or in the canteen. It had no purpose in the workplace.

[8] As to Regulation 12 she argued that the wood and bottle were obstructions and not part of any system of work. She referred to Simmons v British Steel. If they were likely to cause an accident that was enough even though nobody tripped. The defenders had not put "reasonable practicability" in issue and there was no evidence as to why they could not remove the wood or the bottle.

[9] Counsel then addressed Regulation 13 on the basis that the wood fell.

[10] She finally argued that the pursuer should succeed at common law. There was an obvious risk of a glass injury by allowing bottles in a changing room with a hard floor and showers. There was a prohibition by notice for the public. The duty should be higher for employees. Yet glass bottles were brought in and accumulated. The type of injury was entirely foreseeable even if the mechanism was unusual Simmons at page 115. The previous chain of events need not be foreseen, as bottles could break in a number of ways. Glass bottles should have been prohibited and that rule enforced by having a system of removal or providing a crate for them. The wood should have been removed once the window was fixed. It was not needed and was an unnecessary risk in a cramped space.

[11] Counsel finally addressed the question of quantum.

[12] On the merits Miss Davie moved me to assoilzie the defenders at common law and under the Regulations. The pursuer was not reliable or credible. She listed a number of detailed points about his evidence. She said he had given an account to his employers involving wood falling and yet had told the hospital staff that glass was the reason for his injury. There was some uncertainty as to where the pursuer was at the moment of his accident and where the bottle was. The timing of the accident and his arrival at hospital could not be reconciled. The mechanics of the accident were so unusual as to be improbable. After the accident no glass or liquid was found. There was no circumstantial evidence to support the pursuer's account. The pursuer was unclear about the length of the piece of wood.

[13] More generally she argued that it was not clear whether the repair to the window in the room had been done and the wood used. There was conflicting evidence about how many bottles were left lying around and where they were. The defenders' glass policy was not properly proved in relation to the staff. There was however evidence that the staff cleaned the locker room. There was a rota and a system for dealing with bottles.

[14] Turning to Regulation 5 counsel said that the defenders accepted that the duty was absolute. She referred to a number of cases, McLaughlin, Gilmour, Gallagher and Cochrane which vouched that proposition. She argued, however, that the pursuer had not proved any breach of any duty causing any injury. There had to be a real risk of injury as was expressed in case like McGhee and Anderson (Lord McFadyen). The cases of Gilmour and Cochrane were to the same effect. There was no real risk here. The position of the leaning road plank created no risk of it falling. Without any proof of where the bottle was there was no real risk of it breaking. The presence of the wood and the bottle did not show that the room was in an inefficient state. There was thus no breach of Regulation 5. She further referred me to Gilmour, Butler and Lewis. Both the wood and the bottle were transient objects and not sufficient to create a breach of Regulation 5. (Levesley).

[15] Miss Davie continued her point that in any event Regulation 5 did not apply to the facts here. There had to be a real risk of injury from the wood and the bottle wherever they were. Both were there for a limited period. That did not result in an "inefficient state". The pursuer had to show that the mechanism he described caused the accident and what if anything caused the bottle to explode. She referred me to Cochrane v Gaughan.

[16] As to Regulation 9, she said the wood was one item and could not "accumulate". So was the bottle. As the wood was there for a repair it was not "waste" material. If the glass bottle had juice left it was not "waste". If empty it awaited removal to the crate upstairs. In any case the duty was not absolute. The defenders tried to prevent bottles accumulating. There was a bin, a crate upstairs and a fridge. There was a system of returning the crate to a shop. There was also a staff rota for cleaning.

[17] Regulation 12 was only to do with tripping. That had not happened although it had in Anderson v Newham College. The word "obstruction" only arose in relation to "tripping". Simmons was a tripping case and thus not in point.

[18] It was impossible to see how Regulation 13 could apply.

[19] Turning to the common law case she said it was not normally foreseeable that an accident could have occurred in the way described by the pursuer. There was no reason why the wood was likely to fall. It was leaning face edge against the wall. Its size would not make it liable to fall. Also it would be unlikely to make a bottle explode. The defenders' tests on bottles were done in extreme conditions on a concrete floor and only one bottle broke. The common law test of reasonable foreseeability was wider than the statutory test of reasonable possibility or real risk. The test was whether a risk from glass was foreseeable There was a lack of clear evidence about what happened in the locker room, who changed there and whether any of the staff walked about in bare feet. The staff were trained in health and safety.

[20] Counsel then addressed quantum.

[21] Before dealing with my findings and credibility I have to consider an argument about evidence led under reservation At the hearing the objection was renewed and some of the authorities noted were referred to. Primo loco I deal with this. It arose in this way. The record used at the proof is dated March 2005. The pleadings for the defenders make no mention of a bottle falling from a locker when the pursuer opened it or of contributory negligence. However, before the proof the defenders lodged a Minute of Amendment (No 15 of Process) to aver both of these matters. The pursuer lodged Answers (No 17 of Process) which inter alia made mention of lack of any system for clearing away glass bottles. In the event neither the amendment or answers were moved.

[22] During the proof objection was taken to any evidence about a system for clearing away bottles. I was asked to consider whether this was a new and distinct case or merely a variation, modification or development of the existing pleadings (Burns v Dixon's Ironworks).

[23] I propose to consider the evidence and repel the objection. This is an abbreviated form of record and inter alia specifies how glass bottles were left in the locker room in defiance of an apparent prohibition against glass in sporting premises. It also offers to show where empty glass bottles were stored. In my view any evidence led of any lack of a proper clear up system is covered by the Record. In the event the defenders chose to lead evidence that there was no system. The failure to move the amendment and answers has also meant that there is no case of contributory negligence and evidence which was led about bottles dropping from a height is thus irrelevant.

[24] I reject the criticism of the pursuer about the closeness in time between his accident and his arrival at the hospital shortly before 7.00pm. In the first place I do not think that anyone was watching a clock and secondly this whole matter was never expressly put to him. It was said that he was unreliable as to where his chair was and where the bottle was at the moment of the accident. I do not agree. The pursuer took photos after the accident (No.6/9) to show where the wood was and his chair. He spoke to it and the accuracy of his reconstruction was not challenged in cross examination. As to the bottle he said it was on the floor and behind him. Given Mr Brew's evidence about the extent of scatter of glass on breaking, I do not think the pursuer has to prove the precise location of the bottle on the floor.

[25] Nor do I accept the criticisms that the pursuer exaggerated. He may not have known the precise length of the wood but in my view he does not require to prove that with precision. Nor is it a proper criticism that there was no circumstantial evidence after the accident. Nobody went to look. Some hours later Marshall was still finding bottles lying about in the locker room. Also de recenti the pursuer told Pamela Lindsay that the bottle had broken when wood fell on it. The pursuer properly tidied up the broken glass and that is why there may be no circumstantial evidence to support his account. Such corroboration is in any event unnecessary.

[26] That leaves the question of what the pursuer told the hospital and the mechanism of the breakage.

[27] It was argued to me that there was a conflict between what the pursuer told his employers at the time and what he told the hospital soon after. As to the first there is only the pursuer's evidence. He said he reported the matter to a Paul Friar who made an entry in an Accident Book. The book was not produced and nor was Friar. Yeoman described the book as an A5 yellow book/5 accidents to a page. What the defenders did lodge was No 6/3 which is an incident report compiled in part by a clerical assistant some 10 days later. For what it is worth it attributes the injury to the wood, and that fits with what the pursuer thought before he went to hospital. The defenders' witness Yeoman completed part of 6/3. In doing so he said he had the document (not produced) on which Friar had made the original entry.

[28] No 6/8 are the hospital notes for Monklands Hospital. The Joint Minute in the case goes no further than to agree that that is what they are. They are not agreed as being accurate. Dr Simpson spoke to this document and was asked about page 58. He had no memory of the pursuer and said he saw him speedily. He spoke to his practice which "would be" to record what he was told. What is written is that a "...juice bottle fell out (of a locker) and shattered on tiles ....". Thereafter the clinical notes were written by a Senior House Officer who was not called as a witness. Nothing is written about "wood". The pursuer who had gone quickly by car to the hospital said he told the doctor that a "ginger bottle had smashed when the wood fell". He denied saying what was written on page 58 and in particular mentioning tiles. The floor is linoleum. The conflict can only be between the pursuer and Dr Alexander. I prefer the pursuer. The doctor was working at speed and may have omitted mention of wood in his note. The doctors believed that glass was the cause of the wound and would have no reason to mention wood. Certainly by 8.50 the pursuer had been made aware how serious his injury was and he reported to Friar (See 6/3). The entry about "tiles" is clearly wrong. I cannot hold the pursuer to be incredible or unreliable on the basis of the only entry in 6/8 spoken to by the defenders' witness Dr Simpson.

[29] Finally, it was said the pursuer could not be believed as to the mechanics of the accident. In my view this argument cannot be upheld. It is correct that the pursuer could not pinpoint the precise angle of the wood or say where the bottle stood save to tell the Court that both were behind him. It is accepted that the way the accident happened was unusual but the defenders' expert was able to reproduce it in his tests. That fact is a sufficient answer to the credibility point. The case of Simmons which will be referred to is a sufficient answer in law.

[30] I find the following to be proved from the evidence of the pursuer and the following witnesses, Lindsay Marshall, McOwat, Fleming and McFarland. The staff changing room is a small room with some 20 lockers. It is seen in the photographs produced. The room is busy and was at the time used by many people. There were chairs in it and the room led into a tiled shower area. It was a room which was untidy all the time with kitbags, clothing, glass bottles, shoes and other personal items left lying on the floor or on chairs. The locks on the lockers were broken and lockers were left open. At the material time leaning against a locker was a long piece of wood. It may have been five feet in length. On the linoleum floor in the vicinity of the wood was a glass bottle with a fizzy drink in it partly consumed. From time to time and at various times the staff brought to the locker room and left there glass bottles. At times these were removed to a crate kept in an upstairs canteen. The staff there exchanged them in a nearby shop for money. There was no procedure laid down for so clearing away the bottles.

[31] On 25 January around 6.30pm the pursuer went to the locker room to eat some sandwiches. To do so he sat on a chair. At some point he stood up and his chair moved behind him. It struck the wood which fell hitting the bottle. The bottle exploded and shattered. The pursuer was wearing shorts. Glass from the bottle cut his leg. At the time he believed that the wood had cut his leg. The pursuer replaced the wood and cleared away the pieces of the broken bottle putting them in the bin.

[32] The pursuer's leg would not stop bleeding and he reported his accident to the First Aid Room. An accident report was made out by one of the defenders' employees, Paul Friar on a book not produced. The pursuer went to Monklands Hospital where he was admitted.

[33] Four hours after the accident a fellow employee of the pursuer (A Marshall) was in the locker room and found the wood where the pursuer said it had been. He also found two glass bottles lying in the locker room. I do not find it clearly established why the wood was there. Its purpose was to be used to repair a broken window space in a door. It is not established either way whether this repair had been done by 25 January or was awaited.

[34] In the public areas of the defenders' swimming pool there was a policy not to permit anyone to bring in glass bottles. There was an obvious risk of glass breaking in areas where people would walk in bare feet. The policy was enforced and there was a prominent notice prohibiting glass.

[35] There is no reason to disbelieve the pursuer or the other witnesses mentioned about any of this. When he gave evidence the pursuer was never challenged on it. It was never suggested that he was lying or mistaken. He gave his evidence fairly and without exaggeration or embellishment as did the others.

[36] I want to turn now to the expert witness Mr Marcus Brew, who was led by the defenders and his report No 7/3 of process. In my view his evidence assists the pursuer in this way. The various tests he made could not exclude a bottle breaking and the fragments travelling some feet when a plank was dropped on to it. The tests of directly dropping a bottle have to be discounted as that is not in accordance with the facts of the case.

[37] The expert did not, of course, have the actual bottle or piece of wood but I am satisfied that he selected an appropriate piece of wood and a bottle of the type described by the pursuer. The account is shown in figure 4 (bottle 4: Test 2). Mr Brew also explains that the glass may fly as the contents of the bottle are under pressure and on breaking this energy is transferred to the glass.

[38] Mr Brew spoke as an expert whose duty was to the Court. I am satisfied that he gave his evidence accurately and fairly although it was in short compass.

[39] The evidence about the pursuer's injuries was somewhat curious. Apart from the pursuer and his wife it consisted of the following. The defenders led Dr Simpson who saw the injury and admitted the pursuer. He did not treat the injury but noted that glass was present in the internal fascial plane. The surgeon who operated on the pursuer Mr Sinha was not called. The defenders called Dr Marjorie Black who is a pathologist. She never saw the pursuer but produced a report (No 7/2) speculating on the cause of the injury and also describing certain tests she performed on bottles. In these tests she has assumed a bottle fell on the tiles. The pursuer led the only direct evidence of injury from Mr Bikram Singh (Report No 6/14) who saw the pursuer in May 2003. He also draws attention to the unrelated problems the pursuer had with both his knees. Dr Schreiber also gave valuable evidence and she saw the pursuer.

[40] I have to and do prefer the direct evidence of the pursuer, his wife, Dr Schreiber and Mr Singh. Dr Simpson who is accepted on his description of the seriousness of the wound had no memory of the pursuer and could not describe his treatment and progress. Dr Black never saw him and her report on tests on bottles is based on a wrong factual foundation. The bottle was not dropped or kicked and the floor was not tiled.

[41] The pursuer described the internal bleeding and his concern once he got to hospital and had to undergo surgery. Dr Simpson was sufficiently concerned to admit him for surgery because of the gas complication. He described it as crepitus. Nobody disputed that the presence of gas would be limb threatening. The hospital records spoken to by Mr Singh confirm that the presence of gas suggested a high velocity injury possibly due to glass. The wound was extended, cleaned then closed. It is more probable than not that a fasciotomy was performed. He attended as an outpatient for three months by which time the wound had healed leaving scarring. Mr Singh expected full activity to be resumed apart from any knee complications.

[42] Neither party made detailed submissions about Dr Schreiber but her evidence was of importance and I now turn briefly to look at it. She was an Occupational Health Physician to whom the pursuer was referred when he was recovering from the surgery in the summer of 2002. He was principally referred because of his fitness to continue as a lifeguard for which he would have to be tested. The doctor found that although superficially the leg looked reasonable the pursuer had problems standing on tip toe, bending and squatting. She confirmed this from her own letter (No.6/3, page 23) (undated) but following a consultation on 12 June, his problem then with prolonged standing (still evident at the proof). She said that the difficulty with balance was due to pain at the scar tissue and possible nerve damage from the injury which she called "propriocepton" (i.e. damaged muscle was not sending clear signals to the brain of where the foot was in space). Physiotherapy and further time for healing and return of balance was needed. By November (6/3 page 18) he was back at work but other unrelated problems had occurred. The calf injury, however, had improved. However, it is clear from the whole medical evidence that this was not a simple cut and a scar.

[43] The pursuer described how after the operation his left leg felt "dead". When he got home his leg was painful and he had to take painkillers and antibiotics. The pursuer was a fit man and a former amateur boxer. He often ran from his home in Motherwell to his work in Airdrie. It was April before he went back to part time work. His wife had to help him moving in the house and to transport him. He still finds standing for long periods difficult. At times he had to sit down when giving his evidence. He could not now run as well as before and his boxing training was limited. Now he was a care worker.

[44] The wife of the pursuer who is a staff nurse was only too well aware of the dangers of air entering a wound. She described how her husband had great difficulty in moving when he returned from hospital. He had become depressed and irritable. She also described the painful process of "packing" the wound.

[45] I now consider liability beginning with the various statutory cases in their numerical order.

[46] It is now beyond argument that these Regulations founded on must be given a liberal and wide interpretation in order to fully implement the Directive. That that is so, finds expression in many authorities beginning with Litster and continuing with many other cases.

[47] Also many of the Regulations are couched in strict language and few admit of any statutory defence. They have here variously been described as "strict" or "absolute" duties. I do not think the distinction now matters in the new climate of European Directives and increased safety. The older jurisprudence making distinctions between strict and absolute is no longer relevant.

[48] English v North Lanarkshire Council is now the accepted authority in Scotland for the need to give a wide interpretation to the Regulations, properly to implement the Directive. Lord Reed after proof followed earlier European and House of Lords authority (Litster) for example. The only qualification to that approach is seen in McGhee v Strathclyde Fire Brigade where Lord Hamilton after proof said that whatever the Regulation said, foreseeability was important and the circumstances had to disclose some real risk of injury. Although the court heard argument as to whether some of the Regulations were "absolute" duties, no concluded view was expressed.

[49] Regulation 5 provides inter alia: "(1) The workplace ... shall be maintained ... in an efficient state ..." The Regulation is couched in strict terms. On the evidence the place where the pursuer was at the time was part of his workplace. The room was small and was used by many people. The evidence showed that little attention was paid to its cleanliness or tidiness. On this matter the defenders' witness Yeoman was unconvincing and seemed to me to leave it to others. In my view the Regulation is to secure the outcome of a continuing state of efficiency. Butler v Grampian University Hospital NHS Trust was a case where a hospital worker was injured while helping a disabled patient from a wheelchair with a toilet cubicle. Regulation 5 was founded on. At Procedure Roll the Lord Ordinary held that the Regulation required the employer to secure that the workplace was in a continuing state of efficiency. McLaughlin v East and Midlothian NHS Trust was also decided before proof. The pursuer was injured when a certain rail fell unexpectedly on to her. She founded on Regulation 5. The Lord Ordinary held succinctly and without any clear analysis that the duty was strict and if a workplace was not in efficient working order liability was established. Gallagher v Kleinwort-Benson was a complicated case heard at procedure roll. It involved nine defenders. The pursuer had fallen from the flat roof of a hotel in Paisley when an iron railing gave way. Much of the case turned on the applicability of the Occupiers Liability (Scotland) Act 1960 to particular defenders. The case also involved the 1992 Regulation 5 in issue in the case before me. (see para.85) The facts of Gallagher were very different but it does stress (para 83) the width of the meaning of "workplace". It also stressed the importance of who may have control over parts of a building. The case provides little detailed help on the Regulations I have to consider here, mainly because of a failure to plead "control". Gillanders v Arthur Bell &c concerned Regulation 5 and shelving which could not support a leaning ladder due to protruding bobbins. The Lord Ordinary (agreeing with Butler) held that the word "maintained" simply meant "secured". To the same effect is Gilmour v East Renfrewshire Council where a teacher slipped on a chip left on a lino covered ramp leading from a school canteen. In a carefully reasoned opinion the temporary judge held that Regulation 5 was in absolute terms and might overlap with other Regulations. Agreeing with Butler and distinguishing McNaughton v Michelin Tyres plc 2001 SLT (Sh.Ct.) 67 he held that Regulation 5 required a continuing state of efficiency. I do not propose to say any more about McNaughton. Lewis v Avidan concerned a nurse who slipped on a pool of water in a nursing home hallway. The cause was a flow of water from a burst concealed pipe. The Divisional Court gave a meaning to the word "maintained" (i.e. doing something) which conflicts with the Scottish cases on Regulation 5. I find the reasoning unattractive and do not propose to follow it. That maintenance and repair are not the test under Regulation 5 is also seen in Cochrane v Gaughan, again a case about a wet floor. To the opposite effect is McEwan v Lothian Buses but there the remarks on Regulation 5 (paras.26/8) are necessarily obiter. I do not think that maintenance of the room is a relevant issue. If this is a correct view then the presence of the wood where it was and the glass bottle on the floor render the workplace "not efficient". Yeoman himself accepted that glass bottles on floors created a risk. There is an almost unbroken line of Scottish cases saying that this strict or absolute duty is to do with continuing efficiency. This locker room was not in that condition due to the wood and the bottle. The defenders are in breach of the Regulation and the breach caused the accident. But for the wood and bottle the pursuer would not have been injured.

[50] What now of the case based on Regulation 9(3). Regulation 9 provides inter alia: "(3) So far as is reasonably practicable, waste materials shall not be allowed to accumulate in a workplace except in suitable receptacles ..." Can it be said that the wood and the bottle were waste materials. The wood could have had no place in a locker room. If the window had not been repaired there was no need to have it there at 6.30 in the evening. If the repair had been done equally it should not have been left there. On the whole evidence it had been there for some time. The bottle on the floor was effectively abandoned. There was no proof to whom it belonged. It should have been in a bin or in the crate in the canteen. There was no clear proof that the defenders had any system for removing glass bottles which they permitted to be there. In my opinion individually or collectively these were waste materials. They were allowed to accumulate in the sense that they were left where they should not be. Any accumulation has to begin with one item, and for the purposes of this regulation the presence of either is enough to create a breach. For the reasons on causation given elsewhere the breach was the cause of the pursuer's accident.

[51] Next is Regulation 12. It provides inter alia: "(3) 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 ..."

[52] The case under Regulation 12 provided a very interesting discussion on the difference between "obstructions" and "articles". In my opinion the wood was an obstruction. If the window repair had been effected there could be no reason to leave it in the locker room. If it had not then the wood should not have been left in a locker room to await the repair. Either way it had no place in a locker room. What of the bottle? In my view it was also an obstruction. The defenders had a proper and safe policy to disallow glass bottles in the public areas of the pool. I hold that that policy should have extended to the staff areas especially one having showers where bare feet could be anticipated. The defenders' witness Yeoman said that glass and tiled floors do not suit. Here the floor was linoleum which is also a hard substance. Yeoman admitted that the defenders did not prevent the staff taking in glass bottles. He rarely went to the locker room and assumed that the staff would keep it clean, and that Friar would check this. He was unaware of the system of putting the bottles in a crate. This evidence came unchallenged in cross examination and I accept it. Without any evidence to the contrary from Friar, I hold that the defenders had no system of clearing away bottles. It was not disputed that the locker room floor was a "...floor in a workplace...". I accordingly hold that the bottle was an obstruction. It had no purpose unlike, for example, the chairs.

[53] Nobody, however, slipped, tripped or fell. Does the Regulation cover what happened? For completeness and for what it is worth, the defenders have not put in issue "reasonable practicability". Any such defence would have been unstateable standing the evidence of Yeoman and the absence of Friar. Cases such as Anderson v Newham College are not of much help as it involved tripping. I return to the case of Simmons and for this point it is strictly only Outer House authority although as the case went on nobody argued that the Lord Ordinary was wrong. He held (2002 SLT 711) that the Regulation had to be read disjunctively and that the word "article" meant something other than an "obstruction". I agree with him. Does that then attract liability if nobody trips. In my opinion it does. The Regulation is either strict or absolute in its terms. It ought to be read widely and for the purpose of protecting persons who have to work in obstructed places whether they trip or not. The combination of the wood and the bottle caused the accident to the pursuer. The presence of glass in this area poses the real risk of injury spoken of in McGhee, and the fact that it happened in a way that could not have been foreseen is nothing to the point (Simmons Lord Rodger at 115). The evidence of the defenders' own expert confirms one in that view.

[54] I now look at the case under Regulation 13. Regulation 13 provides inter alia: "(i) So far as is reasonably practicable, suitable and effective measures shall be taken to prevent ... (3) ... (b) any person being struck by a falling object likely to cause personal injury ..." On the view I have formed of the evidence only the wood fell from its position against the locker. The bottle was on the floor and was hit by the wood. It exploded as I have found. The pursuer's leg was hit by the flying glass. The idea of a falling object seems to me to presuppose the object came from a height, even a low one. Here the bottle exploded from the floor. I do not think that can properly be described as "falling". Miss Smart urged me to read the Regulation widely as had the wood not fallen there would have been no accident. I cannot accept that. It was not the falling wood which caused the injury. I reject the case under Regulation 13.

[55] That leaves only the case at common law. In my opinion permitting glass bottles to be in and remain in a staff changing room which has showers and a hard floor poses an obvious risk of a cutting injury. It was not disputed that in the public areas there was a notice at reception to prohibit glass being brought in. The evidence of Yeoman was clear on this as was Lindsay, Marshall and McOwat. Brendan Fleming described it as saying "No Glass Bottles in Wet Area". That is a clear acknowledgement of a duty of care. There is no reason why the duty should be any less to employees.

[56] This necessary duty of care was owed to the pursuer and was broken by the defenders allowing bottles in. As I have already noticed on the evening of the pursuer's accident other bottles were found lying about. The evidence which I allowed about systems of removal of the bottles is really subsidiary, and from the defenders' evidence showed that there was no proper supervision of the locker room at any level.

[57] I have held that the "exploding" bottle caused the pursuer's injury. That only leaves the issue of foreseeability. Miss Davie in an able argument - urged me to the view that it was not foreseeable that an accident would occur in the way it did. I think that this argument is now untenable. Increasingly there is now a move to secure greater protection for employees, and to remove "..the hoops, hurdles and other stumbling blocks placed in front of a pursuer ....in a less enlightened era...." (Gilmour at paragraph 50). The final nail in the coffin containing this argument is the speech of Lord Rodger in Simmons, paragraph 67. What is caused in a way that could not be foreseen in the present case attracts liability. I accordingly find the common law case established.

[58] The question of damages remains, firstly solatium. As I have already said this was no simple cut and scar. In view of my findings, I consider what happened to the pursuer to be serious. Although he has made a good recovery both he and his wife were at the time rightly concerned about his leg. Under reference to their written submissions both parties suggested a range of figures. Although the scar is usually hidden it is plainly disfiguring and will be permanent. For a fit man his listed disabilities (No 6/14, page 3) must be continually distressing. The cases given to me as examples show a range of scarring which, when compared to the pursuer, range from the less to the more serious. The present case, however, also has continuing disability in relation to running, coaching boxing and standing for long periods. It is ultimately a jury question and in my opinion solatium here is worth £6,500. Interest will run on that figure and in accordance with my usual practice I will put the case out By Order to allow counsel to agree that figure. To such an award falls to be added the sums and interest agreed in paragraphs 6 and 7 of the Joint Minute No.18 of process. At the hearing I expect to be informed of these precise amounts.

[59] In the result the pursuer succeeds with awards to be made as indicated.