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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kelly v First Engineering Ltd [1999] ScotCS 128 (27 May 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/128.html Cite as: 1999 SCLR 1025, [1999] ScotCS 128

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In this action the pursuer seeks reparation for loss, injury and damage sustained by him through the fault and negligence of his employers, the defenders' predecessors whose liabilities and responsibilities they have assumed. He avers that at the material time he was employed by them as a Leading Trackman stationed at Shettleston Permanent Way. On or about 7 November 1995 he and two others were working in a stretch of railway track east of Airdrie Station. They had been instructed to replace the insulation on insulated fish plates. These fish plates were plates of metal which joined two pieces of rail. The fish plates were attached by means of four high tension bolts. Metal lugs on the plates prevented the heads of the bolts turning while being tightened or loosened. The bolts were approximately ten inches long and about one inch in diameter. They required to be screwed on tightly, but not so tightly as to prevent the proper expansion and contraction of the rails. In order to make it possible to loosen the bolts when the fish plates needed changing, the bolts required to be lubricated. On the day in question the pursuer required to loosen the first bolt on the fish plate. It had not been lubricated for over a year. As a result it had become stiff and difficult to unscrew. In order to unscrew it the pursuer was using a spanner which was about three feet in length. He required to apply pressure with both hands on the spanner to loosen the nut on the bolt. When he did so the nut seized, the metal lug snapped and the pursuer's spanner jerked forward. As a result of the sudden and unexpected movement of the spanner the pursuer strained his shoulder causing the loss, injury and damage which he later avers. He also avers that the defenders' predecessors, British Railways Board, had a system of lubricating the bolts once a year. In or about 1994, however, a company called Scottish Infrastructure Maintenance Company Limited took over the Board's responsibilities. Scottish Infrastructure introduced a new system under which the bolts were lubricated only every two years. In or about February 1996 the defenders assumed the liabilities and responsibilities of Scottish Infrastructure and continued with this new system. The pursuer avers that the new system was and is inadequate; the reasonably safe system would require a yearly lubrication of the bolts and an inspection of the bolts by a ganger or employee of similar status.

The pursuer goes on to make two cases of fault against the defenders. The first is a case at common law. The second is a case under regulation 6 of the Provision and Use of Work Equipment Regulations 1992. (Although now repealed and re-enacted in later regulations, these were the regulations in force at the time of the pursuer's accident.) Finally the pursuer makes averments of loss. These averments are in support of a number of heads of damages - solatium, past loss of wages, future loss of wages and claims under Sections 8 and 9 of the Administration of Justice Act 1982.

The matter came before me on procedure roll on the first plea-in-law for the defenders. The pursuer also has two preliminary pleas but in the event did not present any argument in support of them.

At the outset of the hearing counsel for the defenders intimated that he insisted on points 1 to 5 in his note of argument but not on point 6. Point 6 was directed at averments in support of the pursuer's common law case. In response to a note of argument lodged by the pursuer the day before the hearing counsel for the defenders tendered a minute of amendment which deleted a case of contributory negligence which the defenders had averred. The pursuer sought to lodge answers to that minute of amendment. Despite the fact that paragraph 3 of the answers was not so much an answer to the defenders' minute of amendment but an amendment of its own on the part of the pursuer I allowed all the answers to be lodged and allowed the closed record to be amended in terms of the minute of amendment and answers.

Opening the debate Mr O'Carroll, counsel for the defenders, explained that he was seeking dismissal of the whole case on the basis of the lack of relevancy and specification of the averments of loss. If that was not successful he was seeking proof before answer on the common law case only, with the statutory case being deleted. If that was not successful he was seeking proof before answer on the whole case on the grounds that it was unsuitable for jury trial. He began by submitting that the statutory case should not be remitted to probation. Regulation 6 of the Provision and Use of Work Equipment Regulations 1992 provides, inter alia, as follows:

Mr O'Carroll submitted, however, that the bolt which the pursuer was trying to loosen at the time of the accident was not "work equipment" as those words are defined in regulation 2. Regulation 6, therefore, did not apply and for that reason the case made under it was irrelevant. Regulation 2 provides, inter alia, as follows:

Mr O'Carroll began by referring me to Council Directive 89/391/EEC (Framework Directive) and its daughter Directive, Council Directive 89/655/EEC (Work Equipment Directive). He did this to show the provenance of the regulations. In particular, he referred to the ninth paragraph in the preamble to the Framework Directive in which it is said:

He then referred to Article 1 of the Directive which sets out its object which is "to introduce measures to encourage improvements in the safety and health of workers at work". It continues: "To that end it contains general principles concerning the prevention of occupational risks, the protection of safety and health, the elimination of risk and accident factors....". In the Work Equipment Directive Article 2 defines "work equipment" as meaning "any machine, apparatus, tool or installation used at work". Mr O'Carroll explained that the Provision and Use of Work Equipment Regulations 1992 were enacted to give effect in Great Britain to these Directives. He also referred me to the Opinion of Lord Reed in the case of English v North Lanarkshire Council 1999 SCLR 310 in which his Lordship expressed a view as to the proper approach to these regulations. In particular, he said that any approach based on the Factories Acts was fundamentally misconceived and potentially misleading since the Directives on health and safety at work differed materially from the Factories Acts in important respects. Mr O'Carroll also submitted that cases such as Coltman v Bibby Tankers Ltd 1988 1 A.C. 276, Ralston v Greater Glasgow Health Board 1987 S.L.T. 386 and Knowles v Liverpool City Council 1991 W.L.R. 1428 which were based on the Employer's Liability (Defective Equipment) Act 1969 were of no assistance in this case because that Act had a different provenance from the present regulations and in any event the word used in it was "equipment", not "work equipment". He explained that his researches had revealed no case in which the definition of "work equipment" under the 1992 Regulations had been considered. With that introduction Mr O'Carroll then referred me to the Guidance on the 1992 Regulations issued by the Health and Safety Executive. While this had no statutory force paragraph 43 set out what it called a non-exhaustive list of work equipment which it considered to be subject to these regulations. It also gave some examples of items which it considered were not work equipment. One of the items which were listed as not being work equipment was "structural items (walls, stairs, roof)". Mr O'Carroll submitted that in this case the assembly of the rail, of which the bolt was a part, was a structural item. The bolt was on the averments a fixed item on the ground, part of a railway and was therefore a structural item. He went on to examine the words "equipment", "equip" and "structure" by reference to the Oxford English Dictionary, Stroud's Judicial Dictionary and Words and Phrases Legally Defined. He also drew an analogy between the bolt here and a brick in a building. A building was plainly a structure and just as a brick, if it was removed from a building, would not then become a piece of work equipment, so the bolt, if removed from the rail assembly, would not be a piece of work equipment. When later replying to Mr Davidson, counsel for the pursuer, he submitted that the bolt here was neither an appliance nor a piece of apparatus so as to come within the definition in regulation 2. Mr O'Carroll also referred me to the Manual Handling Operations Regulations 1992, regulation 4, submitting that it was difficult to see why the pursuer did not bring his case in terms of that regulation. He did that not in an attempt to tell the pursuer how to plead his case but rather to point out that if the pursuer did not in the circumstances have a case under the Provision and Use of Work Equipment Regulations, he was not without a remedy. He submitted that in all the circumstances the pursuer's statutory case should not be remitted to probation.

Turning next to the relevancy of the pursuer's averments of loss Mr O'Carroll concentrated his attack on the averments in respect of wage loss and the claim for services in terms of Sections 8 and 9 of the Administration of Justice Act 1982. He accepted that in light of paragraph 3 of the pursuer's answers to the defenders' minute of amendment it was now possible to calculate past wage loss but he submitted that there was no proper basis averred for calculating future loss of wages. Furthermore it appeared that the pursuer also had a claim for loss of employability and it was not stated how this inter-related with the earlier averment that he would have worked in his pre-accident employment until the age of 65. It appeared on the one hand that the pursuer was making a claim for wage loss on the multiplier/multiplicand basis in respect of a complete loss of wages until he reached retirement age. On the other hand, later in the averments it appeared that there was some prospect, albeit restricted, of the pursuer obtaining some form of non-manual work. In that situation it appeared that the pursuer was making a claim for loss of employability. With regard to the services claim Mr O'Carroll submitted that this also lacked specification. Averments in support of claims such as these were often fairly limited but here they fell below any acceptable standards. In particular, there were no averments as to the value of the services rendered or for how long they would require to be rendered and, in respect of the services which the pursuer himself used to render for his mother, there was a lack of specification of the type of services that he used to provide for her. These averments were so lacking in specification as to justify dismissal of the whole action.

If, however, the whole action was not to be dismissed, Mr O'Carroll, submitted that the pursuer's averments were of such doubtful relevancy as to render the case unsuitable for jury trial. He referred me to the Court of Session Act 1988 Sections 9 and 11. He accepted that this case was an enumerated action within the meaning of Section 11 and that he required to show special cause if the pursuer was to be denied a jury trial. He submitted that here there was special cause (1) because of the at least doubtful relevancy of the case under the 1992 Regulations, (2) because of the at least doubtful relevancy of the pursuer's averments of future wage loss and loss of employability and (3) because of the at least doubtful relevancy of the averments in support of the services claim. Reference was made to the cases of Moore v Stephen & Sons 1954 S.C. 331 and Boyle v Glasgow Corporation 1949 S.C. 254 and in particular to the Opinions in each case of Lord Justice Clerk Thomson, and also to the recent cases of O'Malley v Multiflex (UK) Inc. 1997 S.L.T. 362, Johnston v Clark 1997 S.L.T. 923, Bromham v Highland Regional Council 1997 S.L.T. 1137 and Marshall v PLM Helicopters Ltd 1997 S.L.T. 1039.

In reply Mr Davidson pointed out that a question of statutory interpretation was not by itself a bar to a jury trial. He referred to McIntosh v Commissioners of Lochgelly 1897 25R. 32 and Gardner v Hastie 1928 S.L.T. 497. In any event the wording of the regulation here was so clear that a jury would be well able to understand it. Turning to the definition of "work equipment" in regulation 2 of the 1992 Regulations Mr Davidson initially submitted that the bolt fell within the meaning of the words "any assembly of components which, in order to achieve a common end, are arranged and controlled so that they function as a whole". However, recognising that while the bolt was a component it was not an assembly of components he departed from that submission. He accepted that the bolt was not "machinery" or a "tool" within the meaning of the regulation but he submitted that it was either an "appliance" or it was "apparatus" or both. He also referred me to the list in the Guidance by the Health and Safety Executive as to what was thought to be work equipment and pointed out that at least some items on it, namely, reactor, cooling tower and car ramp, would appear to be structural items. With regard to the approach to be taken Mr Davidson agreed that it was not appropriate to look at case law under the Employer's Liability (Defective Equipment) Act 1969 or the Factories Acts in seeking to determine whether the bolt in question here fell within the definition of "work equipment" under these regulations. He also accepted that if his case in terms of the regulations was of doubtful relevancy, then it could not go to jury trial. He referred to Robertson v T. H. Smith Limited 1962 S.C. 628 and Gibson v McAndrew Wormald & Co Ltd 1998 S.L.T. 562. He submitted, however, that the pursuer's statutory case was clearly relevant and that there was no good reason why it was not suitable for jury trial. He added that the pursuer could not succeed in a case brought under the Manual Handling Operations Regulations 1992. Reference was made to the Opinion of Lord Kingarth in William John King v Carron Phoenix Ltd, unreported, 26 January 1999.

Turning to his averments of future loss of wages Mr Davidson submitted that the correct way of reading them was that they were an adequate statement of claim for a full wage loss by the pursuer until the age of 65, with possibly a small reduction for the chance of his getting some work in the future. It was clearly a multiplier/multiplicand approach that was being sought and there was no question of the jury being asked to award a sum for future wage loss and also a sum in respect of loss of employability. Reference was made to Currie v Strathclyde Regional Council Fire Brigade 1998 Rep. L.R. 41. With regard to the averments in support of the services claims Mr Davidson accepted that there was force in the criticisms which had been made. Having considered the matter and taken instructions, he moved at the Bar to amend by deleting the averments in support of these claims.

Taking the points in the order in which they were argued I deal first with the statutory case under the Provision and Use of Work Equipment Regulations 1992. It was helpful to be referred to the provenance of these regulations, if only to recognise the force of the proposition, with which I agree, that they should not in general be construed by reference to legislation pre-dating the Council Directives referred to. But the narrow point which I have to decide here is a question of pure statutory construction of the words "work equipment" as defined in regulation 2 and neither counsel suggested that the particular provenance of these regulations in some way required different principles of statutory construction to be applied from those which have hitherto been well recognised. In my opinion what I have to do here is to construe the words in regulation 2 defining "work equipment", giving them their ordinary meaning and deciding whether the bolt in question here came within that definition. It was accepted that the only way in which the bolt could come within the definition was if it was either an appliance or if it was apparatus. Giving the word "appliance" its ordinary meaning, I have some doubt whether the bolt was truly an appliance. However, "apparatus" is a word of wide meaning and I am clearly of opinion that it is habile to cover this bolt. The argument put forward by Mr O'Carroll that the bolt was part of a structure and that a structure was not a piece of "work equipment" was in my opinion unsound. It was based not on the actual words used in regulation 2 but the gloss put on those words in the Health and Safety Executive Guidance. In my opinion it would be inappropriate to proceed on that basis. I am therefore of opinion that the pursuer's statutory case is relevant. Moreover, I am not persuaded that there is any reason why it should not be decided by a jury. If I am right in holding that the bolt in question here was "work equipment", then the only question for the jury in terms of regulation 6 would be whether it was maintained in an efficient state, in efficient working order and in good repair. That, it seems to me, is a pure question of fact which would be entirely suitable for a jury to decide.

With regard to the pursuer's averments of wage loss I am of opinion that they are sufficiently clear to enable the case to go to jury trial. With regard to past wage loss it was accepted that the averment in paragraph 3 of the pursuer's answers to the minute of amendment on behalf of the defenders met the criticism which it would otherwise have attracted. The point here, therefore, related only to the question of future loss and how the averments in relation to that inter-related with the apparent claim for loss of employability. It is of course for the pursuer to plead his case and, if he wishes it to be decided by a jury, to plead it with sufficient clarity for that purpose. Having considered the submissions made by counsel on each side I am satisfied that on a fair reading of the averments it is sufficiently clear that what the pursuer is seeking here is a full wage loss on the multiplier/multiplicand basis until the age of 65, allowing only for the possibility of a small reduction to cover the chance of his getting some work of a non-manual nature in the future. I think in the circumstances that this is a perfectly reasonable way of making the case for future loss of wages and I do not see that there would be any difficulty in directing a jury as to how to proceed on the matter. I respectfully agree with the views expressed by Lord Eassie in this context in Currie v Strathclyde Regional Council Fire Brigade 1998 Rep. L.R. 41.

Since the services claim is now out of the case there is nothing more that I need to say about it. On the whole matter I shall repel the first plea-in-law for the defenders, of consent repel the first and second pleas-in-law for the pursuer and allow issues.