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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 100
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A2817/01
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OPINION OF LORD MACPHAIL
in the cause
JOHN STRACHAN
Pursuer;
against
RAILTRACK PLC
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer: Blessing; Thompsons
Defenders:
Clarke; Simpson & Marwick, W.S.
13 June 2007
[1] This is a motion by the pursuer to allow amendment of the
closed record in an action of damages for personal injuries. The accident occurred as long ago as 8 April 1998. The pursuer
was working in the course of his employment with Scotrail plc as a train
driver. He was driving a train from Glasgow to Aberdeen. The train was passing through a cutting at
Croy when it collided with a rock on the line.
The pursuer avers that as a result of the accident he developed
post-traumatic stress disorder. He
blames the defenders for the accident on the ground that they failed to take
reasonable care to inspect the cutting, and he makes detailed averments about
the nature of the cutting and the nature of the inspections which he says the
defenders should have undertaken. He
avers that after the accident the defenders carried out an investigation into
the accident and concluded that the rock had fallen because of heavy rainfall
and that it might have been loose for a considerable period.
[2] The minute of amendment is in four paragraphs. In the first, the pursuer seeks to add an
averment that the rock which caused the accident had been loose for a period of
at least a year. In the second, he
intends to substitute for an averment that rocks were frequently lying at the
track side an averment that before the accident the pursuer frequently noticed
fresh rock debris, which was clearly visible, at the locus around the cess area
at the side of the track. In the third,
he wishes to add a new ground of liability under regulations 5 and 6 of the
Provision and Use of Work Equipment Regulations 1992 ("the Regulations") which
were in force at the time, on the basis that the train and the track it was
travelling on were all work equipment.
Finally, in the fourth paragraph he proposes to add a reference to
breach of statutory duty in his first plea-in-law.
[3] The defenders in their answers to the minute of amendment
deny, in their second paragraph, that the Regulations applied and aver that the
track was not work equipment. They also
add, in the fourth paragraph of their answers, a plea that the pursuer's averments
about the Regulations, being time-barred, should not be incorporated into the
closed record. The defenders already
have in the closed record a general plea to relevancy. At the hearing of the motion the parties were
agreed that I should adjudicate on the issues of time-bar and relevancy which
the defenders sought to raise in relation to the averments in the minute of
amendment.
[4] Counsel for the defenders, who provided me with a most
helpful skeleton argument, drew my attention to the prolonged history of the
case. The action was raised early in
April 2001 shortly before the expiry of the triennium. The record having been closed, on 29 January 2002 the cause was appointed to the procedure roll, where
it has remained to this day. There was a
protracted amendment procedure from 19 March
2003
to 22 December 2005. The pursuer lodged the present minute of
amendment on 14 December 2006, some days before the date
fixed for a procedure roll hearing.
Since I did not have the advantage of any explanation of this procedural
history from counsel for the pursuer, who had not been originally instructed, I
refrain from comment.
[5] Counsel for the defenders opposed the pursuer's motion for
leave to amend on the grounds that their ability to investigate had been
materially hampered by the passage of time; the averments the pursuer sought to
add were irrelevant; and the case under the Regulations of 1992 was both
time-barred and irrelevant.
[6] Counsel for the pursuer pointed out that the defenders had
already made extensive investigations into the accident. The averment that the rock had been loose for
at least a year had come from expert reports obtained by the pursuer. The averment which the pursuer proposed to
substitute about fresh rock debris was an attempt to answer a call by the
defenders and was based on information provided by the pursuer himself: it was
a strictly incorrect pleading of evidence, in an attempt to satisfy the
defenders.
[7] Whatever criticisms may be made of the relevancy of the
pursuer's pleadings in the unamended record, I am not satisfied that the
averments of fact in the minute of amendment are irrelevant or that they should
cause the defenders any additional difficulty in preparing for inquiry. To borrow the language of Hynd v West Fife Co-operative Ltd 1980 SLT 41 at page 43, the case, if
the amendment of the averments of fact is allowed, will be about the same
accident and the same danger.
[6] On the other hand I consider that the proposed new statutory
case is irrelevant. I am prepared to
assume, although the matter was not fully argued, that if the track could be
regarded as "work equipment" a case might be made against the defenders, who
were not the pursuer's employers but were persons who had control of
non-domestic premises made available to persons as a place of work, in respect
of work equipment used in such premises by such persons and to the extent of
their control (regulation 4(2)(b)). In
my opinion, however, the track cannot reasonably be described as "work equipment".
[7] That expression is defined as follows in regulation 2(1):
"'work equipment' means any
machinery, appliance, apparatus or tool and any assembly of components which,
in order to achieve a common end, are arranged and controlled so that they
function as a whole."
The term was authoritatively
commented on by their Lordships of the Second Division in the recent case of Spencer-Franks v Kellogg Brown and Root Ltd [2007] CSIH 33. The Lord Justice Clerk said (at paragraph 4)
that it related to items of the kind specified in regulation 2(1) which the
employee has for the purpose of doing his work.
Lord Johnston (at paragraph 25) and Lord Marnoch (at paragraph 42)
referred with approval to the judgment of May LJ in Hammond v Commissioner of
Police for the Metropolis [2004] EWCA Civ 830, [2004] ICR 1467. May LJ
said at paragraph 24:
"[ . . . ]
regulation 4(1), it will be recalled, provides:
'The requirements imposed by these Regulations on an employer
shall apply in respect of work equipment provided for use or used by any of his
employees who is at work . . .'
This indicates, in my view,
that the Regulations are concerned with what may loosely be described as the
tools of the trade provided by an employer to an employee to enable the
employee to carry out his work. I emphasise
that my use of the expression 'tools of the trade' is intended to be
illustrative and not definitive. There
plainly are many things such as, for instance, a hoist, which may be work
equipment, for which the word 'tools' would be inapt. The requirements of the regulation are
imposed in relation to 'work equipment' falling within the definition of
regulation 2(1) which is provided by an employer for use by his employees when
they are at work."
[8] In my opinion the line of railway track on which he drives
the train cannot reasonably be said to be one of the tools of the trade of a
train driver. It is of greater
importance, however, that it can scarcely be described, in any ordinary use of
language, as an item of equipment provided for his use, or to enable him to
carry out his work, while he is driving the train. Nor can it be said that he has the track for
the purpose of doing his work. I
consider, accordingly, that the pursuer's proposed statutory case is
irrelevant.
[9] I shall therefore open up the closed record, allow it to be
amended only in terms of paragraphs 1 and 2 of the pursuer's minute of
amendment no. 18 of process and paragraphs 1 and 3 of the defenders' answers
thereto no. 19 of process, close the record of new and reserve all questions of
expenses.
