Anderson v. Kelman (T/a Ailsa Wood Products) [2006] ScotCS CSOH

OUTER HOUSE, COURT OF SESSION

[2006] CSOH 135

OPINION OF LORD BRACADALE

in the cause

LEWIS JOHN ANDERSON

Pursuer;

against

ROBERT KELMAN t/a AILSA WOOD PRODUCTS

Defender:

________________

Pursuer: McKenzie; Wright, Johnston & Mackenzie

Defender: Smith; DLA Piper Rudnick Gray Cary

5 September 2006

[1] In this action the pursuer seeks damages for an injury to his left eye which he sustained in the course of his employment with the defender. He avers that while he was using a nail gun to fix metal bands to an ornamental barrel, a nail was ejected at high speed striking him in the left eye. This being an action for personal injuries, the provisions of chapter 43 of the Rules of the Court of Session apply. The case came before me by order in the vacation court because the pursuer had failed to comply with the timetable by not timeously lodging the record. At the bar, after late lodging of the record, the pursuer moved for issues to be allowed and the cause appointed to jury trial. The motion was opposed by the defender who moved for a proof.

[2 ] The pursuer's case is based on breaches of common law duties of care and of breaches of certain statutory provisions. In the course of the hearing, the pursuer sought and was granted leave to amend his averments with respect to the regulations said to be breached. As a result of these amendments, the pursuer's statutory case is in the following terms:

"Further, the defender was in breach of regulations 4(1), 7(1) and 10(1) of the Personal Protective Equipment at Work Regulations 1992 and regulations 4, 8(1) and 9(1) of the Provision and Use of Work Equipment Regulations 1998."

As a result of the amendments, the defender's first ground of opposition to the motion for issues, namely, that it was not sufficiently clear from the pleadings which of the regulations, or which parts of the regulations were being relied on, fell away.

[3 ] However, Mr Smith on behalf of the defender persisted in his opposition on two further grounds. The first was that the pursuer's case at common law was lacking averments of fact from which the jury could be expected to draw the necessary inference of reasonable foreseeability. In support of this proposition he relied on Higgins v DHL International (UK) Limited 2003 SLT 1301. In that case, a van driver raised an action of damages against his employers for injuries sustained to his back when he was unloading boxes from a van. He made averments in relation to two incidents, on 5 March and 24 April 2000 respectively, and based his claim on the defender's fault at common law in addition to a breach of regulation 4 of the Manual Handling Operations Regulations 1992. Lady Paton held that she had been unable to identify factual averments which would entitle the pursuer to lead evidence establishing a basis for the contention that his employers ought reasonably to have foreseen that the pursuer would be likely to suffer injury in the circumstances prevailing on 5 March 2000. Mr Smith submitted that in the present case there was similarly a lack of any positive averment of fact from which the jury could draw the inference that the defender should have foreseen that the pursuer was likely to suffer injury.

[4 ] The second criticism of the pursuer's pleadings which in the submission of Mr Smith rendered the case unsuitable for consideration by a jury was that the pleadings relating to future wage loss were wholly speculative and ill-defined. In statement 5 of condescendence at pages 15-16, the pursuer made certain averments about future employment which the pursuer might have been able to obtain. In particular, it was averred that it was his intention to join the Royal Engineers when he was around 18 years of age and that he would acquire extensive engineering skills in the army. He would have earned more in the army than as a labourer in the building trade. He had already passed aptitude tests for the army. It is averred that, had he joined the army, he would have returned to civilian employment in his mid-20s with skills which would have made him attractive to employers in the engineering trade. In the pursuer's statement of valuation of the claim an attempt was made to put figures on these forecasts. These figures were highly speculative and a jury would have difficulty in coming to a conclusion based on them. He submitted that each of these grounds on its own, and taken together, provided a basis for special cause not to allow issues.

[5 ] On behalf of the pursuer, Mr Mackenzie submitted that the factual averments provided a foundation for the common law case. The task involving the use of the nail gun was described; the system of work was set out. It was averred that that system was inherently dangerous. Further, it was averred that the defender had employed the pursuer, who was a 17-year-old, inexperienced employee, to carry out a task using a nail gun and had failed to draw to his attention to the need for eye protection. These averments would allow the inference to be drawn that the defender should have foreseen that injury to the pursuer was a probability.

[6 ] Mr McKenzie went on to submit that the question of future wage loss would require to be approached on a broad axe basis. Looking to the averments on record and the statement of valuation of claim it was clear that the pursuer had done everything he could to specify the future wage loss.

[7 ] In my opinion, the criticism made by the defender that the pursuer's case at common law is lacking averments of fact from which the jury could be expected to draw the necessary inference of reasonable foreseeability is not well-founded. Rule 43.2(1) requires the pursuer to state briefly the facts necessary to establish the claim. The pursuer's averments of fact in this case not only concisely set out the factual basis for the pursuer's case as is required by the rule, but also provide an adequate basis in fact from which a jury could draw the inference of reasonable foreseeability. The pursuer makes averments as to the difficulty in using a nail gun, which was designed to fix flat steel sheeting, in order to attach bands to curved barrels. It was necessary for the employees to tilt the barrel with one arm and operate the nail gun with the other. It is averred that the system was inherently dangerous. Averments are made that no suitable eye protection was made available and that the defender did not take reasonable steps to ensure that suitable safety glasses were properly used. In my opinion these averments provide an adequate foundation for the pursuer's common law case and relevant evidence could be led before the jury without objection. In this respect, therefore, I conclude that the defender has failed to demonstrate special cause for not allowing issues.

[8 ] Turning to the question of future wage loss, I am of the same view. It is clear from Robertson v Smith 2000 SC 591 that a requirement to use the Ogden tables would not present a serious difficulty in directing a jury. In Currie v Strathclyde Regional Council Fire Brigade 1999 SLT 62 Lord Eassie pointed out that some matters in the future could never be precisely specified but had to be evaluated on a broad axe basis, which was plainly a jury matter. I find in these cases support for the view that the issue of future wage loss is one that is suitable for consideration by a jury. In my view when regard is had to the pleadings and the statement of valuation of the claim sufficient notice is given to allow evidence to be led before the jury to provide a basis for an appropriate conclusion by them. I conclude that in this respect also the defender has failed to demonstrate special cause for not allowing issues.

[9 ] Accordingly, I shall allow issues and appoint the cause for jury trial. There was some discussion as to what order I should make for expenses in the event that I allowed issues. As mentioned above the case came out by order because the pursuer had failed to lodge the record in accordance with the timetable. Because the record had not been lodged the pursuer could not enrol a motion for issues and the defender could not intimate opposition. After being allowed to lodge the record the pursuer at the bar moved for issues and the defender was prepared to argue the matter. In these circumstances Mr Smith for the defender submitted that if I allowed issues I should find no expenses due to or by either party for the hearing. Mr McKenzie for the pursuer submitted that I should make the expenses of the hearing expenses in the cause. Because the bulk of the discussion was on the question of issues, I consider that the proper course is to order that the expenses of the hearing be expenses in the cause.

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Anderson v. Kelman (T/a Ailsa Wood Products) [2006] ScotCS CSOH_135 (05 September 2006) URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSOH_135.html Cite as: [2006] CSOH 135, [2006] ScotCS CSOH_135

Scottish Court of Session Decisions