[New search]
[Printable PDF version]
[Help]
SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
IN THE ALL-SCOTLAND SHERIFF PERSONAL INJURY COURT
[2025] SC EDIN 17
PIC-PN2612-18
JUDGMENT OF SHERIFF R D M FIFE
in the cause
THOMAS WARD
Pursuer
against
(FIRST) WM MORRISON SUPERMARKETS PLC; (SECOND) PPF LIMITED, trading as
ADR NETWORK
Defenders
Pursuer: Allardice, Advocate; Thompsons, Solicitors, Edinburgh
Second Defender: Tosh, Advocate; Kennedys Law, Glasgow
EDINBURGH, 14 March 2025
The sheriff, having resumed consideration of the cause, finds the following facts to be
admitted or proved:
Findings in fact
1.
The pursuer has been employed by the second defender as a large goods vehicle
driver since June 2013.
2.
The second defender is a recruitment agency. The second defender supplies drivers,
when needed, to drive vehicles operated and loaded by among others the first defender.
The first defender has a regional distribution centre or depot at Bellshill.
2
3.
On 16 October 2015, the pursuer was working in the course of his employment with
the second defender.
4.
The pursuer was detailed to drive a 52 foot articulated truck to pick up a load from
the first defender's depot at Bellshill and to take it to the first defender's supermarket at
Kirkintilloch Road, Bishopbriggs, Glasgow.
5.
The trailer of the truck was loaded by employees of the first defender, with items
stacked on about thirty pallets arranged in two columns running the length of the trailer.
6.
During the journey from Bellshill to Bishopbriggs whilst driving on the
M8 motorway, the pursuer required to brake sharply when another vehicle cut in front of
his truck.
7.
The pursuer was concerned that some of the load in the trailer might have moved
during transit as a result of the braking manoeuvre.
8.
On arriving at the first defender's supermarket at Bishopbriggs, the pursuer reported
to the forklift driver and his assistant who were employees of the first defender. There was
no docking bay or scissor lift at Bishopbriggs and a forklift required to be used from the
ground to unload pallets from trailers.
9.
The forklift driver was in charge of the unloading of the trailer. The pursuer
informed the forklift driver that some of the load might have moved during transit.
10.
The forklift driver operated the forklift on the ground to remove the first two pallets
at the rear of the trailer. The forklift could only lift the pallets from the edge of the rear of
the trailer.
11.
In order to unload the other pallets from the interior of the trailer, the forklift driver's
assistant had to enter the trailer with a manually operated pallet truck to bring the other
pallets forward to the rear edge of the trailer and then unloaded by the forklift.
3
12.
The content of one of the pallets had slipped towards the front of the trailer and it
was necessary to try to right it before wheeling it on the pallet truck to the rear of the trailer
to be unloaded.
13.
The pursuer entered the trailer without being asked to do so, because he felt
responsible for the load moving in transit and he wanted help the forklift driver and his
assistant. The forklift driver's assistant remained in the trailer.
14.
As the pursuer used the pallet truck to try to move the pallet to the rear of the trailer,
the load overbalanced towards the front of the trailer and the pallet moved towards the rear
of the trailer. The pallet struck the pursuer's left foot and pushed him off the trailer. The
pursuer fell about four feet onto the ground sustaining injury.
15.
The pursuer was given training on 19 June 2013 by the first defender. The training
was delivered verbally and by the provision of documentation. The topics covered were
outlined in training acknowledgements signed by the pursuer, numbers 6/14/2 and 6/14/3 of
process, and included the first defender's store unloading procedure. The pursuer was
supplied with a copy.
16.
The first defender's store unloading procedure states that drivers are not required to
assist with the unloading of vehicles and should allow the first defender's store personnel to
unload and reload the trailer. The unloading procedure includes the following instruction:
Stores without a loading dock and no (or defective) scissor lift
Para 3
"Unless assisting with the movement of pallets on the trailer, the driver must either
remain in the warehouse in a safe position away from the unloading/loading
operation, stay in their cabin or proceed to the canteen facilities."
17.
The vehicles driven by the pursuer could have bulkhead doors to separate
refrigerated goods from grocery. The bulkhead doors were normally near the front of the
4
trailer. If those unloading the trailer were struggling to lift open the bulkhead doors, the
pursuer would go into the rear of the trailer and lift open the doors for them. The pursuer
received no training from the second defender.
18.
The medical report of Mr John C McKinley, Consultant Orthopaedic Surgeon,
following upon an examination of the pursuer on 10 June 2024, is a true and accurate
account of the injury sustained, treatment received, consequences and prognosis for the
pursuer following the accident. The pursuer sustained an injury to his left hindfoot, namely
an open, comminuted fracture of his calcaneus. Mr McKinley was of the opinion it would be
reasonable for the pursuer to reduce his hours at work and that a reduction from 11 shifts to
8 shifts over two weeks was reasonable as a result of his injury.
19.
The pursuer returned to work on 1 December 2016. The pursuer is able to perform
his normal employment as a lorry driver with reduced shifts. The pursuer's condition is
unlikely to get any better or worse. The pursuer will be able to continue working as a lorry
driver until retirement. The pursuer intends to continue working as a lorry driver until
retirement.
20.
The pursuer entered into an extra-judicial settlement with the first defender at a
Pre-Trial Meeting on 12 December 2019 on the advice of his solicitors and Senior Counsel.
The terms of the settlement between the pursuer and first defender were that:
(a)
The first defender would pay the pursuer a sum of £110,000 net of any liability
under section 6 of the Social Security (Recovery of Benefits) Act 1997.
(b)
Upon payment of that sum, the first defender would be assoilzied from the
craves of the initial writ.
(c)
The first defender would be found liable to the pursuer in the expenses of the
action as taxed.
5
21.
Following the pre-trial meeting, the pursuer offered to abandon the action insofar as
laid against the second defender on the basis that no expenses would be found due to or by
either of those parties. The second defender rejected that offer. The first defender paid the
sum of £110,000 to the pursuer in January 2020.
22.
At appeal by the second defender, on 15 December 2022 the Sheriff Appeal Court
determined the terms of settlement agreed between the pursuer and the first defender were
not in full satisfaction of his claim and did not dispose of the pursuer's case against the
second defender. The pursuer did not accept the sum of £110,000 in settlement of all claims.
Findings in fact and law
23.
That the second defender is liable to make reparation to the pursuer in consequence
of their breach of duty at common law.
24.
That the injuries suffered by the pursuer were caused by the second defender's
breach of duty at common law.
Findings in law
25.
That damages in the sum of £56,818 is reasonable reparation for the loss, injury and
damage suffered by the pursuer.
Note
Introduction
[1]
This action arises out of an accident when the pursuer was injured in the course of
his employment. The pursuer was employed by the second defender as a large goods
vehicle driver in vehicles operated by the first defender. The pursuer raised proceedings
6
against both defenders. The parties attended a Pre-Trial Meeting in the course of which
settlement terms were agreed as between the pursuer and the first defender. The second
defender lodged a minute contending that the entire case had settled by way of compromise
between the first defender and the pursuer. The pursuer contended that the settlement was
only in relation to the action as directed against the first defender. The Sheriff Appeal Court
agreed.
[2]
A proof between the pursuer and the second defender proceeded on 21-24 January
2025.
Witness evidence
Pursuer
[3]
As the circumstances of the pursuer's accident on 16 October 2015 were broadly
agreed in a joint minute, the pursuer's evidence about the accident was relatively short, and
focussed on the unloading of the trailer and the consequences of the injury.
[4]
The pursuer was driving on the M8 motorway in the course of the journey from
Bellshill to Bishopbriggs when he had to brake sharply as another vehicle cut in front of his
truck. The pursuer was concerned that may have caused the load in the trailer to move.
At Bishopbriggs, the pursuer informed the forklift driver who was in charge of unloading
the trailer that some of the load might have moved during transit. After the unloading had
started, the pursuer could see that the content of one of the pallets had slipped towards the
front of the trailer and it was necessary to try and right this before using the manual pallet
truck to bring the pallet to the rear of the trailer. The pursuer felt responsible for some of the
load moving in transit. He wanted to help as this was his load. He wanted to stabilise the
second lot of pallets. The pursuer entered the trailer and used the pallet truck to try to move
7
a pallet to the rear of the trailer. As he was doing so, the load overbalanced, the pallet struck
the pursuer's foot and pushed him off the trailer where he fell to the ground, sustaining
injury.
[5]
The pursuer had received training from the first defender and was familiar with a
number of documents including risk assessments, which he received in a Health and Safety
pack. The pursuer received no training from the second defender. As far as the pursuer was
aware, there was no prohibition on him entering the rear of the trailer.
[6]
The vehicles driven by the pursuer could have bulkhead doors to separate
refrigerated goods from grocery. If those unloading the trailer were struggling to lift open
the bulkhead doors, the pursuer would go into the rear of the trailer and lift open the doors
for them.
[7]
The pursuer accepted a settlement of £110,000 from the first defender on the advice
of his solicitors and senior counsel.
[8]
After returning to work on 1 December 2016, the pursuer has been able to manage
his job as a lorry driver, working reduced shifts.
Stan Johnston
[9]
Mr Johnston was a Health and Safety Consultant. Mr Johnston adopted his report
dated 21 May 2019.
[10]
In summary, Mr Johnston expressed the opinion that both defenders were at fault for
the accident for the following reasons:
1.
The defenders had devised a system of work for dealing with vehicle
unloading operations. The system required supervision and training provided
by management, which appeared to have been completely lacking at the time
8
of the accident. The system provided a clearly described method of dealing
with unstable loads, which specifically required manual de-stacking before the
use of pallet trucks. There was no evidence the defenders attempted to comply
with this procedure. No fork extension sleeves were provided or used.
2.
There was no evidence the two defenders had prepared a joint Safe System of
Work document as suggested by HSE.
3.
There was no evidence of the defenders having provided proper supervision
for the tasks in question. The supervisor would have prevented the employee
from giving the pallet truck to the pursuer for his use in a task for which he
was unauthorised and untrained by the defenders.
[11]
There was also a failure to comply with regulation 4 of the Provision and Use of
Work Equipment Regulations 1998. The pallet truck was not suitable for the task of
unloading the trailer. It was used in a narrow space with a significant drop at the edge of
the workspace. The provision of extended sleeves for the forklift would have removed any
need for the pallet truck to have been inside the trailer. If the manual de-stacking of the
unstable load procedure had been followed, the pallet truck could not have slipped
backwards as it did, and the accident could have been avoided.
[12]
When the pursuer arrived at the first defender's premises, he should not have been
allowed to take any involvement in the unloading process. It was unfortunate that
throughout the report Mr Johnston referred to the defenders, not identifying the different
roles of the first defender and second defender.
9
Craig Martin
[13]
Mr Martin was a Regional Director for the second defender. The second defender
was a recruitment company specialising in supplying lorry drivers to a multitude of
companies across the UK. The second defender undertakes a number of checks before
registering the driver and placing the driver with a customer. The second defender employs
the drivers. The second defender provides no training. That was the responsibility of the
customer. In the case of the pursuer, the first defender would undertake all training. The
second defender would not expect drivers to be involved with loading or unloading trailers.
[14]
The second defender carried out no risk assessments. They would do a yearly health
and safety check with customers to ensure customers were looking after all drivers placed
with them. That check was carried out in February/March each year. The second defender
would not review any risk assessments carried out by the first defender.
[15]
While Mr Martin accepted there were certain duties incumbent on the second
defender at common law, as far as he was concerned it was the responsibility of the first
defender to provide a safe place of work as any drivers were under their control. Mr Martin
was unable to explain what duties of care were incumbent on the second defender. It was
Mr Martin's understanding the pursuer would not be working with any equipment nor
would he have any interaction with any pallets.
Submissions
Submissions for pursuer
[16]
There was no dispute about the circumstances of the accident. The pursuer came
across as straightforward and honest despite the passage of time.
10
[17]
The position of the second defender was that they supplied labour and as the drivers
were under the control of the first defender, they had complied with all duties incumbent
upon them. The minimum requirement at common law was for the second defender to
carry out a risk assessment. The common law duties were non-delegable. The second
defender had effectively done nothing but rely on the first defender. Mr Martin was
unaware of the duties of care on an employer. Mr Martin's understanding was that the
pursuer was not involved in any loading or unloading operation.
[18]
There were occasions when the pursuer may require to go into the trailer
eg difficulties with the internal bulkhead doors and checking the pallets were safe and
secure after a delivery. Specifically, in terms of the first defender's own procedure, drivers
should not enter a trailer "unless assisting with the movement of pallets in the trailer".
[19]
In the particular circumstances, the pursuer was legitimately in the rear of the trailer.
This was foreshadowed in the risk assessments for the first defender: "Control measures for
accessing and removing the stock from the vehicle; hazard: falls from height from rear of
trailer; persons affected: Colleagues, Contractors, Visitors".
[20]
Mr Johnston addressed the common law case in his report. There were no
restraining bars or straps in the rear of the trailer. The occurrence of pallets shifting within
trailers was well known and something should have been done about that. That is what
started the chain of events leading to the accident.
Liability
[21]
It was not in dispute that common law duties of care were non-delegable, Munkman
at paragraph 4.56. The starting point was for a defender to carry out a risk assessment,
Kennedy v Cordia (Services) LLP [2016] UKSC 6 at paras [110] and [111]. The second defender
11
did not do that. In carrying out a risk assessment as an employer, the second defender
required to seek out potential problems and ones that were not obvious.
[22]
Mr Martin did not seem to understand what duties were incumbent on the second
defender. Having regard to the risk assessments for the first defender and HSE Guidance it
was unclear what was agreed between the first defender and second defender "who does
what". The second defender produced no documents about what was agreed.
[23]
The pursuer submitted there was no prohibition on the pursuer to go into a trailer.
It was very difficult for the driver not to assist in the circumstances of the present case. The
pursuer himself did not think he was doing anything wrong nor did any of the first
defender's staff. It was up to the second defender to make it clear the pursuer ought not to
be going into the trailer. The second defender failed to do so. The common law case of fault
against the second defender was made out. There should be no finding of contributory
negligence.
Provision and Use of Work Equipment Regulations 1998 ("PUWER")
Regulation 4
[24]
The pursuer sought to rely on Kennedy establishing the requirement to do a risk
assessment. The pursuer submitted the court now needed to ask the following questions:
1.
How can I interpret the regulations in such a way that is in accordance with the
purpose to guarantee the health and safety of the workforce is improved and
ensure that they are safe?
2.
How can I interpret the regulations in a way that will help in avoiding an
accident happen in the first place?
12
[25]
Kennedy gave approval to the interpretation of the regulations in light of the
Framework Directive 89/391/EEC at paras [77] - [82]. The effect of section 69 of the
Enterprise and Regulatory Reform Act 2013 ("the 2013 Act") is dealt with in Redgrave Health
and Safety, 10th Edition, at para [2.59]: "... employers... are still subject to those duties which
are in no way diminished by the 2013 amendment."
[26]
Further, in Kennedy at para [64] the court stated:
"The expansion of the statutory duties imposed on employers in the field of health
and safety has given rise to a body of knowledge and experience in this field, which,
as we explain later in this judgment, creates the context in which the court has to
assess an employer's performance of its common law duty of care."
[27]
That body of knowledge and experience from the regulatory legal framework that
employers have to comply with now informs the common law. The second defender failed
to assess the risks to the pursuer and take into consideration regulation 4 in informing the
common law duty of care on the second defender.
Quantum
Solatium
[28]
An appropriate award would be £42,500 with 75% to past loss: Judicial College
Guidelines Chapter 7 - Orthopaedic Injuries; Section N - Foot injuries, not in either the
Modest (g) or Moderate (f) categories and either just in the Severe (d) or upper end of the
Serious (e) categories.
[29]
The claims for past wage loss, future wage loss, pension loss, services and
miscellaneous expenses are agreed.
13
Satisfaction of the pursuer's claim
[30]
What was agreed in terms of the joint minute, the Sheriff Appeal Court determined
that agreement did not mean that the claim has been paid in full.
[31]
The value of the claim depends entirely on what the court assesses the value. What
the pursuer thought about the settlement or what the agreement means was neither here,
nor there. The terms of the agreement and the court's assessment of the value of the claim
are what matters. The second defender was trying to assert that the pursuer had accepted
that sum from the first defender in full and final settlement. That was misconceived. In
cases for reparation for personal injury, the only way that you know that a claim has been
met in full is when the court makes a finding what your claim is worth.
[32]
At best, the pursuer was saying that he was happy with what he was offered. In
reaching that settlement, the claim has been compromised: for the risk of losing, for the
certainty of success, for the risk of contributory negligence. This is what the pursuer was
told was a reasonable offer by those advising him, and he accepted that advice. That is
different from saying that the pursuer had accepted that his claim was settled for full value.
Reparation cases are generally not settled without a compromise.
[33]
The time for the valuation of the pursuer's claim is in the normal way, at the date of
the proof.
Submissions for second defender
Objection
[34]
There was no record for any evidence that the pursuer had entered the trailer of his
truck at any time before 16 October 2015 to help to stabilise a load, which had moved in
transit. The averments in stat 5 (page 8, last three lines) do not provide notice fair or
14
otherwise, of any such line of inquiry. The objection to the evidence of the pursuer bearing
on this issue, heard under reservation, should be sustained.
Satisfaction: part (1)
[35]
Where an injured party accepts a sum in full and final satisfaction of all his claims for
harm done to him, the full measure of his loss is fixed in that sum so as to preclude any
further proceedings: Kidd v Lime Rock Management LLP 2021 SLT 1499 at [31].
[36]
If an injured party admits that he has accepted a sum in full and final satisfaction of
all his claims for harm done to him, he would no doubt have no reason to bring or continue
any proceedings. If he did so, he would commit an abuse of process: Macphail, Sheriff Court
Practice (4th Edition, 2022), paragraph 2.23.
[37]
The authorities bearing on this issue are concerned principally with whether it may
be inferred from the terms of a settlement agreement, viewed in its surrounding
circumstances, that the pursuer has done do. There was no need for inferences in this case.
The pursuer's own evidence was unequivocal. He accepted the sum of £110,000 paid to him
by the first defender in full and final satisfaction of all his claims for any harm done to him.
For these reasons alone, the second defender falls to be assoilzied.
[38]
The decision of the Sheriff Appeal Court does not preclude that:
(1)
The Sheriff Appeal Court's decision was not binding on this court. It did not
lay down any principle of law, which could bind this court on the basis of the
doctrine of precedent. It was merely engaged in an exercise of reviewing
whether an established principle of law had been properly applied to the facts.
It held that the material before it was insufficient to discharge the onus on the
15
second defender to show that the pursuer had accepted the settlement in full
(2)
The Sheriff Appeal Court did not make any findings in fact of its own. There
are no earlier findings in fact in this action by which this court is bound. Even
if such findings had been made, they would have been made only for the
purpose of the procedure, which followed upon the minute for the second
defender (no 29 of process) and on the basis of the facts and evidence before the
court at that time: Noble v De Boer 2004 SC 548 at [5] and [42].
(3)
The Sheriff Appeal Court determined a different issue on the basis of different
materials. It was not concerned with whether the pursuer had actually
accepted a sum in full and final satisfaction of all his claims for any harm done
to him, but whether that could be inferred from the material before it:
essentially, the terms of two joint minutes of admissions.
(4)
The pursuer's explanation why he has continued with the action (that the
second defender would not give it up) was obviously wrong. The pursuer
could have abandoned the action at any time. He should have done so as soon
as he received payment from the first defender in January 2020.
[39]
Since January 2020, the pursuer has continued with his action despite having
accepted payment in full and final satisfaction of any harm done to him. From that time, the
pursuer has acted incompetently and unreasonably in electing to continue with his action in
circumstances, which amount to an abuse of process. In the circumstances, the pursuer
should be found liable to the second defender in the expenses of the action and that on an
agent-client, client-paying basis after 31 January 2020: McKie v Scottish Ministers 2006 SC 528
at [3].
16
Satisfaction: part (2)
[40]
Even if the pursuer did not accept the sum paid to him by the first defender was in
full and final satisfaction of all his claims for any harm done to him, if the payment made by
the first defender made up for any loss, injury and damage he sustained, no damage will
remain and the second defender will have been discharged from any obligation to make
reparation to the pursuer: Kidd at [2], citing Erskine, Institute, II,I,15.
[41]
It is necessary for the court to determine whether the payment made by the first
defender to the pursuer in January 2020 represented at that time reasonable reparation for
any loss, injury or damage that he had sustained. If so, any obligation that the second
defender will have been discharged at that time regardless of any intentions of the pursuer.
Liability
[42]
There is no dispute that the second defender owed the pursuer a common law duty
to take reasonable care to avoid acts and omissions, which could foreseeably result in loss,
injury or damage to the pursuer as one of their employees. There is also no dispute that the
duty is personal to the second defender and that they remain liable for any breach of that
duty even if its performance was delegated to a third party, such as the first defender.
The issues in dispute are the scope and content of that duty, and whether any breach of duty
caused the pursuer to sustain loss, injury and damage.
Scope
[43]
An employer only owes a duty of care to an employee when the employee is acting
in the course of his employment. If the employee is engaged in activity outside the course of
17
his employment, the employer owes him no duty as employer: Vaughan v Ministry of
[44]
An employee is acting in the course of his employment when he is doing what he is
employed to do or something which is reasonably incidental to his employment: Smith v
Stages [1989] AC 928, 936B-E per Lord Goff of Chieveley.
[45]
Whether an employee is acting in the course of his employment is analysed by
asking whether his act was authorised by the employer or an unauthorised mode of doing
some act authorised by his employer. It can include things that the employer has not
authorised the employee to do or even expressly forbidden, provided that it is an improper
mode of carrying out what the employee has been authorised or instructed to do. The
ultimate question is whether there is a sufficiently close connection between the activity and
the role the employee was tasked to carry out: Wilson v Exel UK Ltd t/a Exel 2010 SLT 671
at [2] and [7] per the Lord President (Hamilton) and [25] per Lord Carloway.
[46]
An employee is not generally acting in the course of his employment when he does
work which he is not engaged to perform eg, where the employee has arrogated to himself
duties which he was neither engaged nor entitled to perform. Where an employee is
prohibited from doing some act, a distinction must be drawn between a prohibition which
limits the scope of the employment, and a prohibition which deals only with conduct within
the scope of the employment: Plumb v Cobden Flour Mills Co Ltd [1914] AC 62, 67-68 per
[47]
The loading and unloading of the trailer was, and is admitted to have been, the
responsibility of the first defender. There was an agreement to that effect between the
defenders and a corresponding reasonable expectation on the part of the second defender
that the pursuer would not be engaged in loading or unloading or in having any load
18
interaction in the course of his employment. The unloading procedure and risk assessments
prepared by or on behalf of the first defender were consistent with that agreement and
expressed a similar expectation.
[48]
Paragraph 7 of the first defender's unloading procedure, which the pursuer had been
given and trained to follow during his induction training in June 2013, made clear to him
that he was not required to assist with unloading. Whether it amounts to a prohibition or
not is not important. It is clearly a statement that is definitive of the sphere of his
employment: see 6/2/10 and 6/3/14.
[49]
The provenance of the document labelled "Vehicle unloading and loading operations
procedure" is unknown: 6/2/11. The pursuer did not recognise it and it was inconsistent
with his understanding and normal practice.
[50]
The risk assessments did not contemplate drivers being involved in unloading or
exposed to risk of falling from height during unloading. The pursuer was right to draw a
distinction between staff of the first defender and contractors such as the pursuer.
Unloading (including handling unstable loads) was a task, which was reasonably
anticipated to expose only colleagues to risk: see 5/3/7.
[51]
The pursuer was not acting in the course of his employment when he took it upon
himself to enter the trailer to assist with unloading it. He arrogated to himself the duties of
the forklift driver's assistant and the use of the pallet truck to move pallets.
Content
[52]
The content of the employer's duty of reasonable care in any given case is an
evidential matter. The fact that an employer or other duty holder is under a statutory duty
in certain situations to do particular things or achieve a specific result is not in itself relevant
19
to inform the existence of any common law duty in those situations. The existence and
content of such regulations may inform the court about what risks have been generally
recognised as inherent in a particular situation or activity and what steps have been
similarly recognised as apt to mitigate or eliminate those risks. Reference to health and
safety regulations is properly aimed at providing a factual basis, or factual support, for those
kinds of proposition, rather than at claiming any residual legal effect said to inhere in the
regulation for the purposes of informing common law duties of care, for no such effect
exists. There is no greater role for the content of health and safety regulations or guidance in
the determination of common law duties than that: Swierzko v Mathiesons Bakery 2024
SCLR 829 at [30] - [41].
Breach
[53]
There are three allegations of breach of duty made against the second defender:
a.
A failure to suitably and sufficiently assess the risks to which the pursuer was
exposed in the course of his employment;
b.
A failure to devise, institute, maintain or enforce a safe system of work; and
c.
A failure to train the pursuer in what he was to do in the event that a load moved
in transit.
(1) Risk assessment
[54]
There is no dispute, in general terms, that at common law an employer requires to
carry out a risk assessment (in the sense of an assessment of risk rather than the preparation
of any written document) in order to identify whether a particular operation gives rise to
20
any risk to safety and, if so, what is the extent of that risk, and what can and should be done
to minimise or eradicate the risk. However:
(1)
Any duty to conduct a risk assessment requires only that the employer seeks to
identify risks that may arise in the course of the employer's operations or, in
other words, in the course of the employee's employment: Kennedy at [110].
(2)
A failure to carry out a risk assessment can never be the direct cause of an
injury. It can only be indirectly causative if it is shown that a hypothetical
suitable and sufficient risk assessment would have resulted in a precaution
being taken which would probably have avoided the injury: Gemmell v Scottish
Ministers 2022 Rep LR 78 at [14].
[55]
There has been no failure on the part of the second defender to suitably and
sufficiently assess the risks to which the pursuer was exposed in the course of his
employment. The risk which eventuated was not one to which he was exposed in the course
of his employment. In any event, suitable and sufficient risk assessments were prepared by
or on behalf of the first defender. Mr Johnston's opinion was that they were sufficient and
that they were simply ignored at the time of the accident by members of the first defender's
staff.
(2) Safe system of work
[56]
There has been no failure on the part of the second defender to devise, institute,
maintain or enforce a safe system of work. Unloading was not part of the pursuer's work.
There was evidence that other systems such as a dock leveller or scissor lift were available
and potentially safer, but there was no evidence that the system of unloading by forklift
operated by the first defender was failing to control any identified risk. That being so, there
21
was no duty on either of the defenders to implement a more stringent system: Gemmell
at [16].
(3) Training
[57]
There has been no failure on the part of the second defender to train the pursuer in
what he was to do in the event that a load moved in transit. An employer has a duty to
provide employees with sufficient information and training on the tasks they are expected to
perform, but the pursuer was not expected and did not expect to perform any task
associated with the unloading of a trailer. It was not his purpose and, as he said, he did not
make it his purpose: Gemmell at [18]. In any event, for an alleged inadequacy in information
or training to be of relevance, it must be possible to point to something which the employee
did not know, but which he would have known had he received adequate information and
training, and which, had he known, would have prevented the accident. Nothing was
identified.
Conclusion
[58]
There has been no breach of duty on the part of the second defender.
Contributory negligence
[59]
The pursuer elected to use equipment he had not been trained to use to perform a
task he was not trained, employed, asked or authorised to do. Any award of damages made
in favour of the pursuer should be reduced to such extent as the court thinks just and
equitable having regard to the pursuer's share in the responsibility for his own injury. In the
circumstances, an appropriate reduction would be at least 50%.
22
Quantum
Solatium
[60]
An appropriate award would be £20,000 with half to past loss: Judicial College
Guidelines, paragraph 135 (£16,770 to £32,450; adjusted for inflation: £17,195 to £33,200);
Kenny v Lightways (Contractors) Ltd 1994 SLT 306 (£10,000; adjusted for inflation: £21,150);
Souter v Allarburn Holdings Ltd 1997 SCLR 587 (£10,000; adjusted for inflation: £19,700).
Other heads of claim
[61]
Parties have agreed past wage loss, future wage loss, pension loss, services and
sundry expenses as at the date of proof.
Note and decision
Second defender's objection
[62]
The second defender maintained the objection in submissions that there was no
record that the pursuer had entered the trailer on any occasion prior to 16 October 2015. The
pursuer did not address this in submissions. The objection is well made and upheld. The
pursuer's evidence about this is inadmissible. Esto, I am wrong and the objection should
have been repelled, the evidence was in very short compass and would have had no impact
on my decision.
Satisfaction part (1)
[63]
The second defender submitted the pursuer had accepted £110,000 in full and final
settlement of all his claims:
23
"The pursuer's own evidence was unequivocal. He accepted the sum of £110,000
paid to him by the first defenders in full and final satisfaction of all his claims for any
harm done to him."
[64]
In Kidd v Lime Rock Management LLP 2021 SLT 1499 at [31] the court stated the
settlement agreement had to be viewed in its surrounding circumstances. The pursuer was
asked questions in isolation, whether the first defender had settled the claim
paying £110,000. The pursuer understood that was the claim finalised, but that is
inconsistent with the surrounding circumstances. No reliance can be made of the pursuer's
understanding in the context in which these questions were asked. That settlement took
place at a Pre-Trial Meeting where the pursuer was represented by solicitors and senior
counsel. The pursuer relied on advice from senior counsel and the solicitors. Their position,
on behalf of the pursuer, was that the settlement was only in relation to the action as
directed against the first defender.
[65]
At appeal, the Sheriff Appeal Court applied the test in Kidd. The terms of the
settlement agreement, viewed in its surrounding context, did not indicate the pursuer had
accepted the sum in full and final satisfaction of all his claims against the first defender and
the second defender. The pursuer did not accept £110,000 from the first defender in full and
final settlement of all his claims. Accordingly, the action has continued to a proof against
the second defender.
Satisfaction part (2)
[66]
The second defender submitted if the payment made by the first defender made up
for the loss, injury and damage the pursuer sustained, no further damages will be payable
and any obligation the second defender may have will be discharged. I will address this
later.
24
Liability
[67]
It is accepted by the second defender that they owed a common law duty to take
reasonable care for the health and safety of the pursuer, and that duty of care was
non-delegable.
[68]
The second defender carried out no risk assessments. The second defender carried
out no training for any of their employees including the pursuer. The second defender
relied entirely on the first defender for any procedure in unloading and loading of trailers.
In terms of their procedure, the pursuer required to be in a safe position away from the
unloading/loading operation unless assisting with the movement of pallets.
[69]
The pursuer was acting in the course of his employment at the time of the accident.
The pursuer entered the rear of the trailer as the load had moved in transit, and the pursuer
wanted to assist in righting a pallet, which had slipped towards the front of the trailer, and
moving the pallet towards the rear of the trailer. The pursuer was not prohibited from
entering the rear of the trailer.
[70]
Mr Martin, the representative of the second defender was unable to assist the court
about what duties of care were incumbent on the second defender. He simply did not
know. Mr Martin's evidence was unimpressive. He purported to rely on a yearly health
and safety check with customers in February/March of each year. The check for 2015 was
not produced. The second defender failed to take reasonable care for the health and safety
of the pursuer. They failed to carry out a suitable and sufficient risk assessment. They did
not devise, institute, maintain or enforce a safe system of work. They failed to give the
pursuer any training including that the pursuer must not enter the trailer when pallets were
being unloaded.
25
[71]
The pursuer has established liability against the second defender at common law.
The pursuer also sought to rely on regulation 4 of PUWER as informing the common law.
The pursuer made a submission on the application of PUWER by the courts since Kennedy
and the effect of section 69 of the 2013 Act. I did not find this submission necessary or
helpful in this particular case. The unusual circumstances of this case and the very limited
evidence did not make this case suitable for an exposition of the law. In any event, this
matter was fully considered and addressed by Sheriff Campbell KC in the recent case of
Swierko v Mathiesons Bakery 2024 SCLR 829 at [30] - [41]. Counsel for the pursuer did not
address the court in any detail on that decision. I approve of the decision.
Contributory negligence
[72]
Contributory negligence was a live issue before the court. The pursuer had fair
notice, see Answer 5 for the defenders. The pursuer was asked by counsel in examination in
chief if he thought he was doing anything wrong. He did not think so.
[73]
The pursuer decided to enter the rear of the trailer without being asked to do so,
because he wanted to assist in righting the load that had moved in transit. The pursuer was
not prohibited from being in the rear of the trailer in these circumstances, but he was not
trained in the use of a pallet truck. While using the pallet truck, the load overbalanced and
the pallet struck the pursuer's left foot causing him to fall off the trailer. The pursuer's own
actions contributed to the accident. A reasonable assessment of contributory negligence
is 30%.
26
Quantum
Solatium
[74]
The pursuer sustained a serious injury to his left hindfoot, being a comminuted
fracture of his calcaneus. The medical evidence was agreed in terms of the report from
Mr McKinley, Consultant Orthopaedic Surgeon, following upon an examination on 10 June
2024.
[75]
The pursuer required extensive surgery. He was unable to start weight bearing until
after 3 months. He has ongoing pain in his foot. He has a reduced ability to walk distances
and cannot stand for a prolonged period of time, partially because of the injuries sustained
and partially his obesity. He returned to work after 14 months on a reduced shifts pattern.
While he has post-traumatic osteoarthritis in the subtalar joint and calcaneocuboid joint,
once the joints stabilise there will be no further deterioration in the function. On the balance
of probabilities, the pursuer's symptoms will not deteriorate further, and further surgery is
unlikely. The pursuer is likely to continue working as a lorry driver until normal retirement
age.
[76]
In assessing an appropriate award for solatium, I have had regard to the Judicial
College Guidelines, 17th Edition, Chapter 7 - Orthopaedic Injuries (N) Foot Injuries and, in
particular, (f) Moderate and (e) Serious. The cases referred to by the counsel for the second
defender were of no assistance. In all the circumstances, a reasonable award of solatium
is £32,000. Interest will apply to past loss, 75%, at 4% from the date of accident until the date
of decree. Interest to 14 March 2025 is £9,032, giving a total of £41,032.
27
Other heads of claim agreed
1.
Wage loss
·
Past wage loss to the date of decree £78,000, with interest at 4% from
16 October 2015. Interest is £29,354, giving a total of £107,354.
·
Future wage loss £71,705 as at the date of decree.
2.
Pension loss £7,360.
3.
Services £6,000, with interest at 4% for 6 months from 16 October 2015 then
at 8%. Interest is £3,994, giving a total of £9,994.
4.
Miscellaneous £500, with interest at 8% from 1 January 2016. Interest is £366,
giving a total of £866.
[77]
The total damages, inclusive of interest to the date of decree, is £238,311. Applying
a 30% reduction for contributory negligence, gives a figure of £166,818.
[78]
It is then necessary to deduct the payment of £110,000 made by the first defender to
the pursuer in January 2020, resulting in a sum payable in damages of £56,818. As the
payment of £110,000 has not exhausted the pursuer's claim, the second defender has not
been discharged of their liability.
Summary
[79]
The pursuer has established liability at common law against the second defender
subject to a finding of contributory negligence of 30%. I will make an award of damages
against the second defender for payment to the pursuer in the sum of £56,818 inclusive of
interest to the date of decree.
[80]
As agreed by parties, expenses are reserved. The sheriff clerk will fix a hearing on
expenses.
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotSC/2025/2025scedin17c.html
