Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 135
PD2068/10	OPINION OF LADY CLARK OF CALTON in the cause IAIN CHARLES MacECHERN Pursuer against SCOTTISH MINISTERS Defenders ___________

Pursuer: Campbell Q.C.; Thompsons

Defenders: Haldane Q.C.; Tods Murray

16 August 2011

Summary

[1] The pursuer is employed by the Forestry Commission (hereinafter referred to as "the Commission") and seeks £80,000 as damages from the Scottish Ministers as representing the Commission, his employers.

[2] This is a personal injuries action which came before me for a procedure roll hearing on the motion of the defenders. On behalf of the defenders, I was invited to dismiss the action on the basis that the pursuer's case both under common law and under the various statutory provisions founded upon was fundamentally irrelevant.

[3] There was a short written note of arguments for the defenders. At my request, at the start of the hearing, this was supplemented by outline written notes from both counsel. Senior counsel for the defenders made available a supplementary note. Senior counsel for the pursuer made available some informal notes. I am grateful to counsel for their assistance.

The facts set out in the pleadings

[4] In statement 4 of the Record, it is averred by the pursuer:

"On or about the 3^rd of September 2007 the pursuer developed serious symptoms, which were diagnosed later in Hospital as caused by Lyme Disease. That is a disease caused by the bite of an infected tick. The latent period between the bite and the development of serious symptoms is variable, but is likely to be at least some weeks rather than days. As a result of the said condition the pursuer has suffered loss, injury and damage. The pursuer worked as a forester for the Forestry Commission in the Lorne District for over 20 years. Between about April and October of each year the pursuer would be bitten by ticks approximately 2 or 3 times per week. He was bitten by ticks only in course of his work. The ticks came from the environment in which he worked on a daily basis."

[5] At pages 6 to 9A of the Record, the pursuer sets out detailed averments relating to the absence of a suitable or sufficient assessment by the defenders of the risks to employees from the bite of ticks. It is averred that there was a failure to institute and enforce an adequate system for obviating or minimising the risks from tick bites which included failure to instruct routine use of "jungle formula" repellent, failure to give advice to wear cover-all clothing and failure to issue various specified protective clothing and footwear. There are also averments critical of the methodology for the extraction of the tick which involved the use of Vaseline. It is then averred that

"the failure of the Commission to carry out a suitable and sufficient assessment of the risks to their employees from tick bites, and their various failures of provision and instruction and enforcement as above set forth, were causative of the pursuer sustaining the loss, injury and damage which he has sustained."

[6] It should be noted that the parties in their pleadings at page 8 D-E and 9 B-C agree "that Lyme Disease is a bacterial infection transmitted by the bite of a tick".

[7] In answer, the defenders aver the guidance and policies which they aver they had in place and various provisions which they aver they made in relation to informing the pursuer and protecting the pursuer against Lyme Disease. At page 10 C to E, the defenders call upon the pursuer

"to aver the basis upon which he asserts that all or any of the measures put in place by the Forestry Commission in relation to the prevention of Lyme Disease were 'inadequate' such as to amount to a breach of their duty of care or breach of any statutory duty they may have had towards the pursuer. He is further called upon to state the manner in which he asserts that the tick bite giving rise to the contraction of Lyme Disease could reasonably have been prevented by the Forestry Commission. His failure to do so will be founded upon".

The legal basis of the action

[8] The averments of the pursuer relating to the legal basis are to be found in Statement 6. The action is based on the fault and negligence at common law of the Commission. It is also based on breach of various statutory duties namely:

(1) Regulation 3 of the Management of Health and Safety at Work Regulations 1999 (as amended) (the 1999 Regulations).

(2) Regulations 4, 8 and 9 of the Provision and Use of Work Equipment Regulations 1998 (the 1998 Regulations).

(3) Regulations 6, 7, 8, 9, 12 and 13 of the Control of Substances Hazardous to Health Regulations 2002 (the 2002 Regulations) .

(4) Regulations 4, 6, 9 and 10 of the Personal Protective Equipment at Work Regulations 1992 (the 1992 Regulations).

[9] In answer, the defenders call upon the pursuer "to specify the nature of the alleged breaches of the Regulations relied upon that are said to arise from the factual background averred".

Discussion

A comment on the pleadings
[10] The pleadings refer to the defenders, who are designed as the Scottish Ministers, being in breach of duty. In parts of the pleadings, reference is also made to failures of the "Commission" which I understand to be a reference to the employers of the pursuer. This confusion in the pleadings was not made an issue in the case and I merely note it. The pleadings, as I read them, are directed to factual matters relating to the employers and alleged failures by the employers of the pursuer. It is admitted by the defenders that the employers are "the Forestry Commission". I understand that in substance this case is directed against the employers of the pursuer for alleged breaches of duty at common law and under certain specified statutory provisions. The relationship and responsibilities of the employers and the defenders inter se was not canvassed.

The common law case

[11] The submissions by senior counsel for the defenders in relation to the common law case are summarised in paragraph 1 of her supplementary note. Senior counsel claimed that problems arose when one tried to give content to the pursuer's averments in the context of the dispute between the parties. She submitted that this is a case in which the defenders aver that protective equipment and training were provided to the pursuer in relation to Lyme Disease. Senior counsel was critical of the pursuer's pleadings and submitted that there was a lack of candour in the pursuer's response to the defenders' averments. She submitted that it was not clear from the pursuer's pleadings whether the alleged failure was one of training or of enforcement. She submitted that these difficulties were compounded by the issue of causation. She submitted that the causa causans of the pursuer's injury was a bite by an infected tick. She said that must be seen in the context of a situation where tick bites are common and for the most part non-infective. She criticised the pursuer for failing to aver how the defenders ought to have prevented infection. She was critical also of the absence of any averments that the pursuer would have complied with instructions about precautions. She submitted that there was a lack of fair notice and that the common law case as pled was irrelevant.

[12] Senior counsel for the pursuer submitted that the pleadings set out the factual background. The starting point of the pursuer's case are the averments that he contracted Lyme Disease when employed by the Commission. It is averred that he contracted said disease as a result of being bitten by ticks only in the course of his work. The parties have agreed that Lyme Disease is a bacterial infection transmitted by the bite of a tick. It is averred that Lyme Disease has the potential to have very serious consequences. Against the factual background averred, the pursuer offers to prove that as an employee he was exposed to regular and frequent circumstances of being bitten by ticks in the course of his employment leading to potentially serious injury and that the defenders knew of the risks but they made no suitable or sufficient assessment of the risks. Senior counsel for the pursuer submitted that the pleadings at pages 6 to 8 set out in some detail the specific failures of the Commission which underpin the case of the pursuer to the effect:

"the failure of the Commission to carry out a suitable and sufficient assessment of the risks to their employees from tick bites and their various failures of provision and instruction and enforcement as above set forth, were causative of the pursuer sustaining the loss, injury and damage which he has sustained." (8C-D).

[13] In my opinion, the submissions of counsel for the defenders seemed sometimes to be influenced by her understanding of the contentions of the Commission. I consider that the pursuer's pleadings are not to be judged from the perspective of the Commission's understanding of the factual position. It is necessary to concentrate attention on the pursuer's pleadings in assessing their relevancy. In doing that, I bear in mind the well known dicta in Jamieson v Jamieson 1952 SC (HL) at p.50. Lord Normand stated:-

"... an action will not be dismissed as irrelevant unless it must necessarily fail even if all the pursuers' averments are proved. The onus is on the defender who moves to have the action dismissed, and there is no onus on the pursuer to show that if he proves his averments he is bound to succeed ...".

[14] The pursuer offers to prove that he was bitten only in the course of his work. There are averments that the defenders knew that tick bites could cause Lyme Disease and that this could be very serious. I consider that the pursuer's pleadings set out in some detail the facts underpinning a case of a failure to carry out a suitable and sufficient risk assessment, and a failure of provision, instruction and enforcement for obviating or minimising the risks to employees from tick bites. This includes failure to instruct the use of a repellent as routine, failure to instruct the wearing of cover-all clothing of the type specified at page 6C to E of the record, failure to issue gaiters and complaints about the instruction for use of Vaseline in the methodology for removal of ticks. The pursuer is offering to prove that if his employers had not failed in these duties, he would not have sustained the loss injury and damage which he suffered as a result of bacterial infection in the form of Lyme Disease from the bite of a tick while at work.

[15] In relation to the criticisms about lack of candour, I note that the pursuer answers the averments on behalf of the defenders either specifically or by way of general denial.

[16] Senior counsel for the defenders was also critical of the fact that the pursuer did not specifically aver that he would have followed instructions given by his employers. I consider that in the context of the pleadings in this case in which reference is made to duties on the employers to instruct and maintain certain safeguards, that is implied. If it is a matter in dispute, I would expect the defenders to raise it as an issue in the pleadings. I do not consider that the pursuer requires to aver every fact which he may wish to establish at proof.

[17] I have no difficulty in concluding that the pursuer's case cannot be considered irrelevant when judged by the well known test in Jamieson and I am not persuaded there is a lack of fair notice.

The statutory cases
[18] In the written note of arguments lodged in accordance with the rules of court on behalf of the defenders, there is little or no specification given by way of notice about the criticisms to be made in relation to the statutory cases. Some information is given in paragraph 3 in relation to the 2002 Regulations. Despite this lack of written notice, detailed submissions were made in oral submission.

Regulation 3 of the Management of Health and Safety at Work Regulations 1999
[19] As I understand the submissions of senior counsel for the defenders, she conceded that the statutory case under Regulation 3 of the 1999 Regulations may be relevant. She did not advance any argument to the contrary. The point she made was that if the common law and other statutory cases pled were irrelevant, as she submitted, the case based on the 1999 Regulations would also be irrelevant as there were no averments of loss flowing directly from this breach in the absence of any other breaches.

[20] As I am not persuaded by senior counsel for the defenders that the pleadings in respect of the other cases pled are irrelevant, I do not consider it necessary to further address this issue.

[21] I merely record that senior counsel for the pursuer explained the logic of his approach to the Regulations including the 1999 Regulations under reference to Allison v London Underground Limited [2008] ICR 719. He submitted that the statutory provisions under the 1999 Regulations which related to risk assessment were an important starting point in relation to the identification of risks which the employers required to deal with. The risks identified might be relevant in relation to other statutory provisions which lay upon the employers.

(2) Regulations 4, 8 and 9 of the Provision and Use of Work Equipment Regulations 1998

[22] Senior counsel for the defenders accepted that the definition of work equipment for the purposes of the Regulations was a very wide definition. She referred to Spencer-Franks v Kellogg Brown 2008 SC (HL) in particular paragraphs 161-162 and 166-171. She submitted that these passages gave some guidance as to the current thinking on the wide definition of work equipment. Senior counsel submitted that it was unclear what work equipment was identified by the pursuer in the pleadings as the subject of the Regulations and in what respect the work equipment was alleged to be in breach of the Regulations. She submitted that the only work equipment she could identify in the pleadings was the reference to the supply of "fine pointed tweezers" (page 7B). She did not accept that protective clothing etc. could be considered work equipment.

[23] Senior counsel for the pursuer did not make any concession. I understood that his position was that these matters were best addressed after proof.

[24] I have to bear in mind that this is optional procedure. The form of pleading illustrated in this case, is common if not standard. The various separate statutory regimes covering, for example, work equipment and protective clothing may or may not overlap. In a particular case it may not be obvious, without any evidence, to come to any clear decision in a particular case.

[25] All I can say is that there appears, as a minimum, to be some dispute in this case about the tweezers. The pursuer claims at page 7B that he was issued with fine-pointed tweezers for the first time in July 2007. There is a complaint at page 7E that since 2004 the use of "needle-point pincers" should be used. Whether Vaseline or any other thing provided by the Commission is equipment in this context, I think is best considered after proof.

(3) Regulations 4, 6, 9 and 10 of the Personal Protective Equipment at Work Regulations 1992

[26] Senior counsel for the defenders did not advance any detailed submissions in respect of the 1992 Regulations. I understood that her criticisms were similar to those which she made in relation to the common law case about lack of fair notice and an absence of candour.

[27] Senior counsel for the pursuer under reference to Threlfall v Hull City Council (2009) EWHC 3042 submitted that where there was a known serious risk to an employee, the employer ought to have carried out a suitable risk assessment followed by steps to remove or minimise the risk. It was submitted that this was the foundation for the averments at 7C-E of the Record. The steps averred by the pursuer were all more effective than the methods and practice which the employers maintained.

[28] I have no difficulty with this part of the pursuer's case. For reasons similar to those which I have expressed in relation to the common law case and under reference to the views expressed in paragraph 24, I consider that there are relevant averments in relation to this statutory case. I am not satisfied that the test in Jamieson is met by the defenders.

(4) Regulations 6, 7, 8, 9, 12 and 13 of the Control of Substances Hazardous to Health Regulations 2002

[29] The major part of the discussion before me related to the relevance of the 2002 Regulations when applied to the unusual facts averred in this case. In the course of the discussion, senior counsel for the pursuer opened up an issue as to whether the interpretation placed on the 2002 Regulations by senior counsel for the defenders, if correct, led to a conclusion that the 2002 Regulations did not fully implement the relevant European Directive(s) and the implications of the purpose of the Directive(s) in relation to interpretation. There was no notice of this issue. Senior counsel for the defenders said she was not in a position to address the implications of this line of argument.

[30] After some discussion, both counsel sought to persuade me that I should not continue the case to another date to be further addressed about this. They invited me to deal with the issues without consideration of the wider issues.

[31] For obvious reasons, including difficulties if there were to be an appeal, I was reluctant to limit my consideration of the case in this way. Nevertheless, counsel clearly wished this to be done. I can understand that there may be pragmatic reasons, including considerations of expense, for the approach adopted by counsel in this relatively low value case. With some reluctance I have therefore not addressed the wider issues which may flow from consideration of the Directive or Directives which were intended to be implemented by the 2002 Regulations. I note the long and complicated history referred to in par.8.101 of Redgrave's Health and Safety 2010 edition. As I was not addressed about the European Directive(s) in interpreting the 2002 Regulations I have not attempted to construe the Regulations to achieve the result intended by the Directive(s).

[32] Senior counsel described the dispute between the parties as focused on whether or not the transmission of Lyme Disease, through the medium of a tick, falls within the meaning of the 2002 Regulations. Her submissions were that it did not. Her contention was based on what she described as a plain English reading of the relevant definitions in the 2002 Regulations, supplemented by reference to the shorter Oxford English Dictionary. She submitted that the only possible route whereby the 2002 Regulations might apply would be in terms of Regulation 2(1)(c) or (e). It is provided in the Regulations that "substance hazardous to health" means a substance (including a preparation) -

"(c) which is a biological agent;

(e)            which, not being a substance falling within sub-paragraphs (a) to (d), because of its chemical or toxicological properties and the way it is used or is present at the workplace creates a risk to health;"

[33] Senior counsel for the defenders also drew attention to the definition of "workplace". This is defined in the 2002 Regulations as:

"... any premises or part of premises used for or in connection with work, and includes -

(a) any place within the premises to which an employee has access while at work; and

(b) any room, lobby, corridor, staircase, road or other place -

(i) used as a means of access to or egress from that place of work, or

(ii) where facilities are provided for use in connection with that place of work,

other than a public road."

[34] Under reference to dictionary definitions from the shorter Oxford English dictionary, senior counsel submitted that the definition of "biological agent" in the 2002 Regulations included a micro organism but the dictionary definition of a "tick" did not cover a micro organism. She submitted that a tick was not a micro organism because it can be seen by the naked eye. She submitted that a tick did not satisfy any other part of the definition of a biological agent. Having concluded to her satisfaction that a tick was not a biological agent for the purposes of the 2002 Regulations, senior counsel went on to consider whether the definition in Regulation 2(1)(e) was satisfied. She concluded that it was not because a tick did not have chemical or toxicological properties, according to the dictionary definition, of these terms.

[35] Finally, she submitted that there was a further difficulty for the pursuer in relation to Regulation 2(1)(e) because of the definition of "workplace". In her submission a "forest" did not satisfy the definition of "workplace" in the 2002 Regulations which is framed in terms of "premises". She submitted that a forest open to the air is not "premises". This term, she submitted, involved some concept of sense of property within a curtilage as defined in the dictionary.

[36] In developing her submission senior counsel made reference to Miller v GGHB, 2011 SLT 131. She submitted that the present case was distinguishable. In Miller there was no difficulty in bringing the case within the definition of workplace as events occurred in a hospital which plainly were premises in terms of the definition contained in the Regulations. She submitted that the present case raised even more difficulties than those identified in Miller. It was never envisaged that the 2002 Regulations were designed to apply to an encounter with a living creature which has a potential for infection. She submitted that a tick is not of itself hazardous albeit certain ticks may carry a bacterial infection. The 2002 Regulations did not cover a situation in which infection was caused by an encounter with a tick in open forest.

[37] Senior counsel for the pursuer conceded that he could only rely on Regulation 2(1)(c) or (e) to bring the case within the 2002 Regulations. Senior counsel then described his understanding of the mechanism of infection which could flow from the bite of an infected tick. He submitted that the definition of "substance hazardous to health" in Regulation 2(1) includes "a biological agent". A "biological agent" means any micro organism ... or human endo parasite ... which may cause any infection, allergy, toxicity or otherwise create a hazard to human health. Senior counsel submitted that a tick is clearly a parasite. Whether or not it is an endo parasite may be arguable he said. In his submission it was not appropriate to attempt a biological analysis on the basis of the pleadings.

[38] He also drew attention to the definition of substance in Regulation 2(1). Substance is defined as a natural or artificial substance whether in solid or liquid form or in the form of a gas or vapour (including micro organisms). Senior counsel drew attention to the pleadings at 8D and 9B in which the defenders' averments that Lyme Disease is a bacterial infection transmitted from animals to man by the bite of the adult female tick is admitted by the pursuer. He submitted that the cause of Lyme disease is the bacteria transmitted by the bite of an infected tick. He submitted that there could be little doubt that this bacteria was a biological agent, even on the definition put forward by the defenders.

[39] My short answer to all this is that I do not consider that attempting to deal with what may be complicated scientific and medical issues by way of dictionary definitions whether from the Shorter Oxford English dictionary or some other dictionary, in the absence of any evidence, is satisfactory. I am not persuaded that I should dispose of the case on this basis. I consider that these are matters properly to be considered in the light of the evidence after proof. I note the approach adopted by the Extra Division in Miller. I consider a similar approach is appropriate in the present case in all the circumstances, particularly taking into account that the common law case and the other statutory cases are to be allowed to proceed to an inquiry.

[40] It may be helpful if I record my opinion about the defenders' submissions which I note in paragraph 35. In my opinion in construing the 2002 Regulations, it is necessary to take into account both the definition of "substance" and the definition of "substance hazardous to health". I note that in relation to the latter definition under reference to Regulation 2(1)(c) there is no restriction or reference to workplace. That restriction or reference appears only in the definition in relation to 2(1)(e). A specific definition of "workplace" is given. That term is defined in reference to "any premises ...". I accept that many dictionary definitions may give some restricted definition to "premises" by reference, for example, to curtilage as senior counsel for the defenders submitted. Nevertheless I consider that is to narrow an approach to be adopted in this complicated statutory field. I note that the implementation of the 2002 Regulations was in part under powers under the Health and Safety at Work etc Act 1974. The well known definition of "premises" in the 1974 Act states that "premises"

"... includes any place and in particular, includes-

(a)               any vehicle, vessel, aircraft, or hover craft

(b)              any installation on land ...

(c)               any tent or moveable structure".

In my opinion, therefore in considering the interpretation of the word "premises" in the 2002 Regulations, regard should be had to the accepted meaning of that word in the 1974 Act rather than a more restrictive dictionary definition. If one accepts that the word "premises" includes any place, I have no difficulty in interpreting that as including a forest. I merely comment that the interpretation urged upon me by senior counsel for the defenders would mean that many employees would not be covered by the 2002 Regulations. That may have been the intention in relation to Regulation 2(e) but I was not so persuaded in the absence of any citation of case law to that effect.

[41] I would also add in relation to the definition of "premises" that I was referred briefly to other statutory regimes including the Gangmasters (Licensing) Act 2004 and the Criminal Justice and Public Order Act 1994. I did not find these examples of any assistance.

(5) The Provision and Use of Work Equipment Regulations 1998 (the 1998 Regulations)

[42] Senior counsel in referring to the pursuer's case under and in terms of the 1998 Regulations adopted the line of submission which she had made in relation to the 1998 Regulations. This is summarised in paragraph 2 of her Note of Arguments. She referred in particular to the problem about gaiters. She submitted that it was the defenders' position that he had been provided with and had signed for gaiters. She claimed that he was not candid in his pleadings. I think this is a misunderstanding of the purposes of pleadings as considered at procedural roll. It may be that the defenders have evidence that the pursuer did sign for gaiters. That is irrelevant for present purposes. It is plain from the pleadings of the pursuer at page 6E that he avers that "they were never issued with gaiters ...". That averment is made against the background of detailed averments about what the pursuer says was or was not provided or ordered or enforced.

[43] As the submissions in relation to the 1998 Regulations were substantially the same as the submissions made in relation to the 1999 Regulations, I do not accept these submissions for the same reasons which I have given in relation to the 1999 Regulations.

Conclusion

[44] There are no pleas-in-law as this is a personal injuries action. I consider that a proof before answer is the appropriate disposal in this case. I shall reserve all questions of expenses.