|
OUTER HOUSE, COURT OF SESSION
|
|
|
[2008] CSOH 141
OPINION OF LORD MACKAY OF
DRUMADOON
in the case of
MICHAEL DUFFY
Pursuer;
against
ENTERPRISE ENGINEERING
SERVICES LIMITED
Defenders:
_______
|
Pursuer: Love; Digby Brown
Defenders: Springham; Simpson & Marwick
3 October 2008
Introduction
[1] This action
of damages arises out of an accident which befell the pursuer on 22
January 2006. On that date he was working as a pipe fitter
on a barge which was berthed at Bergen, in Norway.
The barge was undergoing a re-fit. That re-fit involved the removal of existing
pipework and the fabrication and replacement of a variety of new pipes. The pursuer was working under the direction
and supervision of the defenders. He had
been working on the barge for approximately 7 weeks before the accident
happened.
[2] At the time
of the accident the pursuer was working in the mid-engine room of the
barge. He was wearing bulky overalls. The accident occurred whilst the pursuer was
moving from one part of the engine room to another. An 8 inch diameter cunifer pipe had been
installed so that it passed horizontally across the route the pursuer was
following. The pursuer stepped up onto that
cunifer pipe, from which he slipped and fell.
He sustained injury, fracturing his left ankle.
The action
[3] The action
was raised under the Chapter 43 procedure. On the morning of the proof, I was invited to
amend the pleadings in terms of the Minute of Amendment for the defenders (No. 13
of process) and the Answers for the Pursuer (No. 15 of process). The pursuer sought to add late adjustments to
his Answers by adding the words "when he fell over pipes in the engine room"
between the words "engine room" and "Other", where they would appear in
line 1 on page 8 in statement IV of the reprinted Record, which had been
prepared, and the word "Reid", between the words "Foreman" and "Boat" in line 6
on page 8 in statement IV of that Record.
I allowed these amendments. In
terms of a joint minute (No. 18 of process) damages were agreed at
£22,500, that sum being inclusive of interest to the date of the proof and net
of any liability that the defenders may have in terms of the Social Security
(Recovery of Benefits) Act 1997.
[4] The case pled
on behalf of the pursuer was along the following lines. The pursuer and others working in the course
of their employment on the barge required to take instructions from the
defenders and, in particular, from the defenders' nightshift manager. The defenders were thus in charge of the
system of work which the pursuer and his colleagues required to follow. The accident occurred during night shift
working, when the pursuer was in the mid-engine room, where engines 4 and
5 were located. The deck plating in that
engine room had been lifted, exposing pipe work which was designed to run
below the normal floor level. There were
a number of other pipes in the engine room, some fixed and others not yet
fixed. To some extent these obstructed movement around the engine room. On the day of the accident the pursuer sought
to pass between engines 4 and 5, whilst moving from where he had been working
behind engine 5, to the door leading out of the engine room. The cunifer pipe blocked his path. The pursuer avers he was unable to get close enough
to this cunifer pipe in order to step over it. The pursuer had no option but to step onto the
cunifer pipe and then down onto the floor on the other side of the pipe. No form of wooden step had been provided for
access or egress over the fixed cunifer pipe.
There had been previous complaints about the working conditions in the engine room
and one of the pipe fitters working with the pursuer, David Boat, had asked
for some form of temporary construction to be built around the cunifer pipe. The pursuer stood on the cunifer pipe. He slipped off the pipe and sustained
injury. The defenders are alleged to have
been in breach of their common law duties of care to the pursuer to provide him
with a safe place and system of work and safe means of access to and aggress
from places where he required to work.
[5] The case on
behalf of the defenders was to the effect that the pursuer had been prohibited
from standing on the pipe from which he slipped. In any event he could easily have stepped
over the cunifer pipe rather than stand on it.
There was no need for him to step up onto the pipe. The height of the pipe was such that it was
easy to step over. Other workers had
done so without incident. As an
experienced pipe fitter the pursuer knew, or ought to have known, that it was
unsafe to stand on the top of pipes. He
knew, or ought to have known, that the pipe was likely to be slippery. No complaints had been made about the pipe
prior to the accident. The accident
occurred through the sole fault of the pursuer and, in any event, had been
contributed to by the pursuer's own fault and negligence.
[6] Although on
record there was some dispute as to whether the pursuer was employed by the
defenders or was self-employed, counsel for the defenders made clear that for
the purposes of this action the defenders accept that at the time of the
accident the pursuer was working under their direction, supervision and
control. In these circumstances the
defenders accept they had been under a duty to take reasonable care for the
safety of the pursuer.
Evidence
[7] Evidence was
led on behalf of the pursuer by the pursuer himself, Malcolm Penman (a
pipe fitter), Stewart Shand (the defenders' foreman), David Boat (a pipe
fitter) and James Garry (an expert).
Evidence was led on behalf of the defenders by Keith Skinner (an
operations manager, who was project manager at the time of the accident) and by
Brian Reid (a project manager, who was the night shift manager at the time
of the accident).
[8] The pursuer gave
evidence that he and his fellow pipe fitters took instructions from Stewart
Shand and Brian Reid. As the start
of each night shift, the foreman gave a "tool box" talk, during which their
duties were allocated. Under reference
to certain photographs, to which I refer earlier, he explained that immediately
prior to his accident he had been working behind engine 5 and sought to
emerge from between engines 4 and 5, heading for the door of the engine room.
He used that route because other
possible routes were cluttered with pipes, which made it very difficult for him
to get to and from the area where he required to carry out the work he had been
allocated. The pursuer explained that he
and other pipe fitters had complained to Stewart Shand and Brian Reid
about the conditions in the engine room.
[9] The pursuer
gave evidence about the 8 inch cunifer pipe, which was installed in front
of both engines. It rested upon and was
fixed to stands. Those stands were
bolted to the floor of the engine room. On the far side of the cunifer pipe, as the
pursuer approached it, lay a kick plate - approximately 3 inches high. He explained that his inside leg measurement
was 29 inches and that he could not step directly over or straddle the cunifer
pipe, because of the boots and overalls that he was wearing. Having got up onto the pipe he had not walked
along it. He had, however, slipped and
fallen from the pipe, trying to grab hold of a ladder as he fell. The pursuer gave evidence that he had never
been instructed not to stand on that particular cunifer pipe, which was where
he and the other pipe fitters assembled at the start of each shift for the "tool
box" talk. He suggested that a "hop-up" (a
small platform with steps) could have been installed and fixed to the cunifer
pipe, in the manner of a style over a fence. That would have enabled him to climb over the
cunifer pipe.
[10] During cross-examination,
the pursuer resisted the suggestion that he could have sat on the cunifer pipe
and swung his legs over. He indicated
that might have been possible had he been wearing normal trousers, but was not
with the overalls and boots he required to wear. He accepted that he had not checked whether
the pipe was slippery, on account of the presence of oil or water.
[11] William Penman
gave evidence of having witnessed the accident. He explained that the pursuer and other pipe
fitters, including himself, had been instructed to work behind engine 5,
which lay on the far side of the engine room from the door into that room.
No instructions had been given as to the
route they should take when getting to and from the rear of engine 5. No instructions had been given that pipe
fitters should not stand on pipes, when moving round the engine room. He explained that he and other pipe fitters regularly
followed the route that the pursuer was taking at the time of the accident. That route involved climbing over the fixed
cunifer pipe. What he did, when he
followed that route, was to stand on the two red pipes, which are to be seen in
the photographs before the Court as running at right angles to, and underneath,
the fixed cunifer pipe from which the pursuer fell. Mr Penman explained that he stood on the
red pipe work on one side of the cunifer pipe, stepped over the cunifer pipe onto
the red pipe work on the other side of the cunifer pipe and then stepped down
onto the ground.
[12] During cross
examination, Mr Penman explained that another cunifer pipe ran along the
front of the engines and between them and the 8 inch cunifer pipe, from
which the pursuer fell. That pipe is
just visible in certain of the photographs, in particular photograph No. 7/7/3
of process, where it can be seen running underneath the two red pipes after
they have passed underneath the 8 inch cunifer pipe. Mr Penman suggested that the presence of
the second cunifer pipe would have made it a very big stretch for someone to
step over the 8 inch cunifer pipe from which the pursuer fell. He explained he had an inside leg measurement
of 34 inches and would have found it difficult to step over that cunifer
pipe. Mr Penman did however accept
that pipe fitters were not supposed to stand on pipes, in case they fell from
them.
[13] Stewart Shand,
the defender's foreman, gave evidence that he was responsible for giving the
pipe fitters a "tool box" talk at the start of every shift. He did so under reference to a form which was
signed by him and all the pipe fitters (No. 7/1 of process). When asked whether he had told the pipe
fitters during the "tool box" talks not to stand on pipes, he replied that he
had not. He explained they were working
in an engine room and that at times they could not prevent themselves from
standing on pipes. On the other hand, pipe fitters were not daft. They knew that you were not meant to stand on
pipes.
[14] Mr Shand
was not present when the accident occurred. On being told it had happened, he went immediately
to the mid-engine room. What he
found was as shown in the photographs. He
spoke of having seen a number of loose pipes lying on the other side of engine 4
to that facing engine 5 and between the two engines. He explained that on account of the new pipe
work that had been fixed to the rear of engines 4 and 5 and on the far side of engine 5,
the pursuer and other pipe fitters required to follow the route that lay
between the two engines. That was a
route that he had used himself. He
explained that route involved the pursuer getting over the lower of the two
pipes, the 4 inch cunifer pipe, which ran parallel to the 8 inch
cunifer pipe, and then the 8 inch cunifer pipe itself. Mr Shand said that it was up to an
individual whether they stepped up onto or stepped directly over the 8 inch
cunifer pipe, the top of which was approximately 2 feet above the level of the
deck. Sometimes he had stepped over the 8 inch pipe. On other occasions he had stepped up onto
it. Mr Shand also gave evidence
that it would have been possible to have constructed a scaffolding frame to
bridge the 8 inch cunifer pipe. The
necessary scaffolding poles were available on the barge. In his view, a "hop up" would not have been
sufficient because the purpose of a "hop up" is to enable a person to get up to
a job, on which they have to work, rather than to get over something.
[15] David Boat
was present when the pursuer fell. He saw
the accident. He explained that when
working in the engine room he had followed the same route as that the
pursuer had been taking at the time of his accident. He explained that some times he got over the 8 inch
cunifer pipe by sitting on it and swinging his legs over it and that on other
occasions he put one foot up on the pipe and stepped over it. Mr Boat gave evidence that on a previous
occasion, he had fallen at the same place the pursuer fell. He had reported his fall to Keith Skinner.
He gave evidence of having asked Brian Reid,
Stuart Shand and Keith Skinner (the project manager) on a number of
occasions for a "hop up" or temporary scaffolding to be provided. He considered it would have been easy to have
erected the necessary scaffolding.
[16] During cross-examination
Mr Boat accepted that pipe fitters were not meant to stand on pipes, but
he explained that sometimes they had no alternative but to do so. Their supervisors were aware of this, having
been asked to provide scaffolding over the 8 inch cunifer pipe. Mr Boat,
who said he had a 30 inch inside leg measurement, indicated that he had
not found it possible to step over the 8 inch cunifer pipe, which had the 4 inch
pipe on one side and the kick plate on the other, without standing or sitting
on the 8 inch cunifer pipe. That
was because of the thick overalls the pipe fitters were required to wear. Those overalls had a low crotch.
[17] James Garry,
Consultant Engineer, spoke to the contents of his report (No. 6/11 of process).
He gave evidence that the 8 inch
cunifer pipe created an obvious difficulty for people who wanted to get access
to and from the rear of the two engines. The likelihood of the 8 inch cunifer pipe
being used as a "step-up" was related to and arose on account of the height of
the pipe and the obstructions on deck in the vicinity of the pipe. He expressed the opinion that even if the top
of the 8 inch cunifer was 600 mm (approximately 2 feet) above
the deck, people would be drawn towards stepping up on it rather than
attempting to step over it. For that
reason the route should have been made as safe as possible and the pipe should
have been bridged. There was no obvious
reason why a "hop-up" or scaffolding could not have been installed.
[18] Keith Skinner
was the defenders' project manager at the time of the accident. After the accident, he took the three
photographs that were before the court as productions. He investigated the accident on behalf of the
defenders. He gave evidence that the
pipe drawings available indicated that the top of the 8 inch cunifer pipe
was 588.5 mm above the level of the deck (No. 7/8 of process). He provided further details about the 4 inch
cunifer pipe. It ran from the cooler
opposite engine 5 and then along the front of the two engines. It was fixed slightly above the deck. He thought that it was a distance of between 1-2
feet between the centre of the 4 inch cunifer pipe and that of the 8 inch
cunifer pipe.
[19] Mr Skinner
explained that he had an inside leg measurement of 29 inches and indicated that
when wearing overalls he had no problem in stepping over the 8 inch
cunifer pipe. He had done so on numerous
occasions before the date of the pursuer's accident. That was part of the route that provided the
only means of access to the back of engine 5. When he did so, he stepped over the first
pipe, placed his leading foot on the deck between the two cunifer pipes and
then stepped over the second pipe. The
kick plate did not come into play, because it was more or less directly under
the 8 inch cunifer pipe.
[20] In Mr Skinner's
opinion, neither a "hop-up" or a scaffolding bridge was required. He gave evidence that he had reached that
opinion having carried out a risk assessment.
He denied having ever received, or having heard about, any complaints by
the pursuer, David Boat or other pipe fitters about the 8 inch cunifer
pipe or requests that the pipe be bridged. He accepted, however, that a scaffolding
bridge could have been provided.
[21] Brian Reid
was employed by the defenders on the date of the accident as the night shift
manager. He gave some general evidence
about how work on the barge was managed. He was working on the night of the accident
and was called to the scene, immediately it happened. Subsequently he assisted in investigating the
accident. He had a 29 inch inside leg
measurement. He gave evidence that he
had gone from one side of the 8 inch cunifer pipe to another and had done
so by stepping over the two pipes one by one. That involved his placing one foot on the deck
between the two cunifer pipes. As with Mr Skinner,
he had no recollection of any requests for "hop-up" or scaffolding to be
installed.
Discussion
[22] Although the
evidence in this proof extended over three days, there was, in the event, comparatively
little dispute between the parties as to layout of the area where the accident occurred
and about what happened. Where there was
a measure of dispute in the evidence, on issues such as prior complaints,
requests for the provision of a "hop-up" or a scaffolding bridge, and the feasibility
and practicability of a pipe-fitter stepping over the 8 inch cunifer pipe,
I found the evidence given by the pursuer and the witnesses called by the
pursuer to be more reliable than the evidence upon which the defenders seek to
rely.
[23] As I have
already indicated in paragraph [6] the issue in the pleadings as to whether the
pursuer was employed by the defenders or was self-employed is academic. The defenders accept that they were under a
duty to take reasonable care for his safety.
[24] The productions
before the court include three photographs (Nos. 7/7/1, 7/7/2 and 7/7/3 of process) which show the area
where the accident occurred. These were
taken shortly after the accident by Mr Skinner. With the benefit of hindsight it is obvious that
it would have been sensible if further photographs had been taken. In
particular it would have been helpful to have photographs taken with the camera
pointing in the direction in which the pursuer had been heading and to have photographs
of the 4 inch cunifer pipe. The
lack of a fuller set of photographs undoubtedly affected the extent to which
some of the witnesses were able to recall the detail of certain of the topics
about which they were questioned.
[25] The
photographs which are available do, however, provide a reasonable view of the route
that the pursuer was following when his accident occurred. On the basis of the
evidence I heard, I am quite satisfied that route was one that the pursuer was
entitled to follow, when getting to and from the area at which he had been
instructed to work. Whether or not it
was the only route he could have followed, it was a route that he and others
followed and were allowed to follow. I
refer to the evidence I heard from the pursuer, William Penman, Stewart Shand, David Boat,
Keith Skinner and Brian Reid. In
these circumstances, it was a route that the defenders required to make and
keep safe.
[26] The
photographs show the location of engines 4 and 5 and the 8 inch cunifer
pipe on which the pursuer stood and from which he fell. The layout of the area is also illustrated by
the two drawings, Nos. 7/6 and 7/8 of Process.
Photograph 7/7/1 shows the 8 inch cunifer pipe
running from the bottom right hand corner of the photograph into the distance. The first engine visible is engine 4
and the second engine, engine 5.
Photograph 7/7/3 is taken in the opposite direction. It shows engine 4. When the accident took place, the pursuer was
moving from the left hand side of photograph 7/7/3 towards the right. What is not immediately clear from any of the
photographs is that immediately to the left of the 8 inch cunifer pipe (as
shown in photograph 7/7/3) a 4 inch cunifer pipe is fixed, some distance above
the level of the deck but at a lower level to the 8 inch cunifer pipe. The evidence I heard was to the effect that
the 4 inch cunifer pipe was sufficiently far apart from the 8 inch
cunifer pipe to allow a man's foot to rest on the deck between the two pipes. Accordingly,
in moving from the left of photograph 7/7/3 to the right, and over the 8 inch
cunifer pipe, the pursuer and other people working in the mid-engine room
required to negotiate the 4 inch cunifer pipe, the gap between the two cunifer
pipes, the 8 inch cunifer pipe and the kick plate which is visible in
photograph 7/7/3. On the basis of the
evidence I heard about one of the drawings available (No. 7/8 of process) it
is clear that the top of the 8 inch cunifer pipe was 588.5 mm (1 foot 11 inches) above the
deck. However there was no evidence which
made it possible to determine with any degree of accuracy the height of the top
of the 4 inch cunifer pipe above the deck.
The kick plate, which is clearly shown in the photographs, was approximately
100 mm in height and 24 mm wide.
[27] Although I
heard some evidence about loose pipes lying on the floor in various parts of
the engine room, I am not persuaded that the pursuer has established there
were any loose pipes sufficiently close to the 8 inch cunifer pipe to have
affected the manner in which he sought to cross over that pipe. The presence of such loose pipes may have had
a bearing on which route the pursuer was following. In the event, however, as I have made clear, I
am quite satisfied that the pursuer was following a route that was open to him
and one which the defenders expected the pursuer and other pipe fitters to
follow.
[28] As far as the
issue of prior complaints and requests is concerned, I see no reason why I
should not accept the evidence of the pursuer and David Boat. In particular, I accept the evidence of David Boat
that he had complained of having fallen in the same area and of having
requested on a number of occasions that a "hop-up" or temporary scaffolding be
installed. I have no note of Stewart
Shand having been questioned about this issue, but insofar as Keith Skinner
and Brian Reid claimed to have no recollection of any complaints, I reject
their evidence. I did not believe that there had been no complaints about the
problems pipe-fitters encountered in moving round the engine room Indeed,
the evidence Keith Skinner gave of having carried out a risk assessment,
as to whether it was necessary to provide a bridge over the 8 inch pipe,
is difficult to reconcile with a complete absence of concern about the working conditions
within the mid-engine room. Moreover,
both Keith Skinner and Brian Reid gave evidence that one reason a
bridge had not been erected was that it would have been necessary to have
dismantled the bridge, when further pipework required to be installed. Such reasoning is hardly relevant to the
decision as to whether that there was any need for such a bridge in the first
place.
[29] Although I
heard some evidence relating to whether or not the 8 inch cunifer pipe was
"live" and whether or not it was wet with oil or water, that evidence was
confused. I do not find it necessary to
analyse that evidence in detail. That it
because it has not been proved to my satisfaction that the pursuer's fall from
the 8 inch cunifer pipe was caused by any dampness on the surface of that
pipe.
[30] During the course
of the evidence I heard that those working in the mid-engine room
negotiated the crossing of the 8 inch cunifer pipe in a variety of ways. Some stood up on the pipe. William Penman said he stood on other pipes to
enable him to step over the 8 inch cunifer pipe. Others stepped directly over the pipe,
claiming that even with a 29 inch inside leg measurement, there was no problem
in doing so. I found the claim that
could be done without difficulty slightly surprising, standing the bulky
overalls the pipe-fitters required to use and that width of the pipe. Stepping directly over the 8 inch cunifer
pipe in one move could only have been possible if a person stood on the deck
immediately to one side of the 8 inch pipe and stepped over the pipe and onto
the deck immediately to the other side of the pipe. Having regard to the 8 inch width of the
pipe it appears to me quite likely that if someone sought to cross the pipe
from that position, he might well sit on the pipe and swing one leg over the
pipe after another.
[31] I see no
reason for rejecting the evidence which Stewart Shand gave that when he crossed
the pipe he sometimes stepped over it and sometimes stepped up onto it. Such evidence coincided with the evidence
given by the pursuer's expert, James Garry, that if the height of the 8 inch
pipe above the level of the deck was approximately 2 feet, people would be
drawn to stepping on it. In his opinion,
the likelihood of that happening was also affected by the presence of any obstructions
on the ground near the 8 inch pipe. There were of course two such obstructions,
the 4 inch pipe and the kick bar. Both of these were visible. In my
opinion their presence would be taken into account, even sub-consciously, by
anyone seeking to negotiate their way over the pipe.
[32] On the basis of
the evidence I heard, I am quite satisfied that it was reasonably foreseeable to
the defenders that pipe-fitters would take the route the pursuer was following
at the time of his accident and might seek to negotiate their way over the 8 inch
cunifer pipe by one of a variety of methods. I am quite satisfied it was foreseeable that
those methods would include standing up onto the 8 inch cunifer pipe and
using it as a form of style. Having
regard to the evidence I heard, I am satisfied that the presence of the 8 inch
cunifer pipe made the route the pursuer was following an unsafe means of access
into and egress from where he was required to work. As such it created and posed a foreseeable
risk of injury to the pursuer and to other pipe fitters, a risk which the
defenders were under a duty to take reasonable steps to guard against. That was particularly so standing the location
of the 4 inch cunifer pipe. It was reasonably
foreseeable to the defenders that even if a pipe-fitter wearing bulky overalls was
exercising reasonable care he could experience difficulty in getting up onto
and over the 8 inch cunifer pipe, and could be exposed to the risk of slipping
and falling, whether or not the pipe was wet with oil or water. In my opinion, there is no doubt that it
would have been reasonably possible for
the defenders to have erected a temporary bridge over the 8 inch cunifer
pipe. Such a bridge could have been moved or dismantled, had it been necessary
to install further pipework. In these circumstances,
I am quite satisfied that the defenders failed in their duty of care to the
pursuer.
[33] It is clear
that when the accident happened the pursuer stepped onto the 8 inch
cunifer pipe from where he slipped and fell. That must have involved his stepping over the 4 inch
cunifer pipe and up onto the 8 inch pipe in one movement. During his evidence, the pursuer did not
mention the 4 inch cunifer pipe, which as I have indicated is not immediately
obvious in the photographs. However, as
the defenders accept that the 4 inch pipe was there, and by implication
accept that it required to be negotiated, its presence cannot be ignored. Indeed, it is slightly surprising that as the
defenders contend that it was possible for the pursuer to have stepped over the
8 inch cunifer pipe it was not put to the pursuer during cross-examination
(and at the same time explained to the Court) that what the defenders were
suggesting was that the pursuer should have placed one foot over the 4 inch
cunifer pipe and onto the deck between the two cunifer pipes, before placing
his other leg over the 8 inch cunifer pipe.
[34] In these
circumstances, I find that the accident was caused by reason of fault and
negligence on the part of the defenders.
[35] Turning to the
issue of contributory negligence, the evidence before the court established
that pipe fitters are well aware that in general one should avoid standing on
pipes. During his evidence the pursuer
acknowledged that in the industry the practice was not to stand on pipes. It
was unsafe to do so, on account of the risk of slipping or falling. The pursuer must be held to have known this. On the other hand, the evidence I heard did
not establish that the pursuer and the other pipe fitters working in the mid engine room
were instructed, whether during the "took box" talks or at any other time, not
to stand on the 8 inch cunifer pipe.
[36] The pursuer
has a 29 inch inner leg measurement. In
these circumstances had the 8 inch cunifer pipe stood on its own it would
probably have been physically possible for him to have stood with one leg
immediately to one side of that pipe and swung his other leg over immediately
to the other side of the pipe. In my
opinion, however, the suggestion that it was obvious to him that was what he
should have done is not entirely realistic, standing the presence of the 4 inch
cunifer pipe and the kick plate. On the
other hand, there is little doubt he could have sat on the pipe and swung one
leg over after another. That would have a slower but safer manoeuvre for the
pursuer to follow than that he adopted.
Decision
[37] In the whole
circumstances I am satisfied that there was an element of fault on the part of
the pursuer that contributed to the accident. I assess contributory negligence as amounting
to 25%. The award of damages will
therefore be 75% of the agreed damages, namely £16,875. Interest will run in the sum from the date on
which the proof concluded.
[38] As requested
by the parties, I reserve all questions of expenses.
[39] For the sake
of completeness, I note the authorities which counsel placed before me. In the case of counsel for the pursuer they
were "The Law of Delict in Scotland", Walker at pages 561-562; Monkman
on Employers' Liability (14th edition) at para. 2.50; Kirkpatrick v Scott Lithgow Limited 1987 SLT 654 at 657L-658A and 658J-K; Kerr v Glasgow Corporation 1945 SC 335 at page 350; Muir v Glasgow Corporation
1943 SC (HL) 3 at page 8; Hughes
v The Lord Advocate 1963 SC (HL) 31
at pages 43-44; Brown v Rolls Royce Limited [1960] 1 WLR 211 at
pages 214 and 216, and Simmons v
British Steel [2004] ICR 585, per
Lord Rodger of Earlsferry at para. 67.
Counsel for the defenders founded on Jaguar
Cars Limited v Coates [2004] EWCA Civ 337, McEwan v Lothian Buses plc [2006] SCLR 592 and Neil v East Ayrshire Council 2005 Rep. LR 18.
