OUTER HOUSE, COURT OF SESSION [2006] CSOH 41
	OPINION OF LORD EMSLIE in the cause JOHN McGINNES Pursuer; against ENDEVA SERVICE LIMITED (In Administrative Receivership) Defenders: ________________

Pursuer: McEachran, QC; McKay Norwell, WS

Defenders: R W Dunlop; Anderson Strathern

9 March 2006

Introduction

[1] Until mid-2003 the pursuer was a field service engineer skilled in the repair of televisions, videos and other household electrical appliances. He was highly experienced in this work, having initially been employed in that capacity for some twenty-eight years by a business commonly known as Radio Rentals. In 2001, on the merger of Radio Rentals with another business commonly known as Granada, the defenders took over the whole service operations of these former businesses including the employment contracts of personnel such as the pursuer. For present purposes the defenders' relevant depot was located in Coatbridge, and the general area in which most of the pursuer's work was performed was the east side of Glasgow.

[2] On 23 June 2003 the pursuer's allocated jobs included the repair of a television in a private house at 36 Lochend Street, Easterhouse, Glasgow. Easterhouse was an area with which the pursuer was very familiar, and in which he had carried out many such jobs in the past. After attending at around 10am, he completed the job and emerged from the close to where his van was parked outside. He placed his toolbox on the pavement preparatory to opening the van doors, and at that point he was suddenly and without warning attacked by two men armed with knives. One of them, a 22-year-old local man with a serious criminal record, stabbed and slashed him several times before he was able to break free and run to a neighbouring house where he collapsed. On admission to hospital shortly afterwards, he was found to have lost a lot of blood, and to have sustained knife wounds to his left armpit/chest, shoulder, arm and hand. He required surgery for some of these wounds and, despite making a reasonable recovery, has been left with physical and mental deficits including significant scarring.

[3] In this action the pursuer seeks damages from the defenders in respect of that incident, alleging that they were in breach of their common law duty of care to provide him with a safe system of work. In particular, he contends that in a known dangerous area such as Lochend Road, Easterhouse, the allocated repair should have been designated as a 2-man job, or at least that a system should have been in place whereby the assistance of a second man would have been available to him on request. In denying negligence, the defenders maintain that they were under no duty to arrange double-manning for jobs at the locus; that they did in fact have a system in place whereby engineers could request any necessary assistance; and in any event that the presence of a second man on this occasion would not have prevented the street assault which occurred. A proof on these issues has now taken place before me, total damages having been agreed, on a full liability basis, at the sum of £40,000.

General background facts and circumstances

[4] Certain matters explored in evidence during the proof were not materially in dispute between the parties, and may be briefly summarised as follows:

(i) Many years prior to the merger, both Radio Rentals and Granada operated systems whereby any necessary assistance for field service engineers would be provided on request. Work was administered on a local basis; manpower levels were high; and assistance could readily be obtained by engineers on safety grounds, or even on account of parking difficulties or the need for heavy lifting.

(ii) At some stage, Radio Rentals transferred all their service administration to a national call centre at Swindon, and jobs were allocated electronically from there to hand held terminals issued to individual engineers. At around that time, the notification of relevant postcodes enabled jobs in certain areas to be automatically designated for the attention of two men. However, engineers could still request assistance in circumstances where they felt it was necessary, and such requests would always be required where the need arose from parking difficulties or from the prospect of heavy lifting.

(iii) After the merger took place in 2001, the defenders elected (possibly on grounds of cost) to adopt Radio Rentals' administrative system based on the national call centre at Swindon. However, if the system for automatic designation of 2-man jobs by reference to postcodes was then still in operation, it did not survive for long, and the defenders reverted to something resembling the pre-merger arrangements whereby the provision of assistance depended on a request being made by the engineer to whom a given job was allocated.

(iv) No risk assessment was carried out by the defenders at that time, and the defenders did not formally notify their employees of the details of the change. However, although these omissions were unsatisfactory, the pursuer and others were well aware that a direct request system was once again in operation.

(v) This was the situation which pertained in June 2003, when the incident involving the pursuer occurred. However, as appeared from a computer‑generated service slip from March 2003 (No.6/21 of Process), automatic allocations to two men were still being made for jobs at premises owned by specific customers such as Ladbrokes. That slip related to Ladbrokes' premises at 6 Colfin Street, Easterhouse, and carried the entry "Access: this area is 2 man-security SCR5 LADDER REQUIRED REF IREN". There was no clear indication as to what "area" might have been meant, although unchallenged evidence was led to the effect (a) that the premises in question were situated in a cul-de-sac, directly next door to a pub, and with only one means of access in or out; (b) that the postcode on the service sheet was the localised 6‑digit postcode G34 0LD; and (c) that the premises were more than 500 yards to the east of the locus. In addition, notwithstanding the apparent allocation of two men to the Ladbrokes premises, the witness James Payne accepted that he had often worked there on his own, and always without incident. Moreover, the reference "SCR 5" on the service sheet denoted a large elevated screen which would have required two men to handle it.

(vi) If an engineer wished assistance in mid-2003, his request would go through to Angela Martin or one of the other staff in the defenders' Coatbridge depot, and the initial response would be to try and to identify a colleague in an adjacent area or "patch" who was not fully booked and could therefore be made available. By that date, however, owing to the contraction of the defenders' business and an escalating programme of redundancies, manpower levels were materially reduced and individual areas or "patches" correspondingly increased. The chances of finding an engineer available to meet a request for assistance were therefore decreased, although some days appeared to be better than others. As Angela Martin herself said in evidence, people (including the pursuer) often had difficulty getting assists. In such circumstances, the next response would be to see if the job could be re‑scheduled for the following day, when two men could be provided.

(vii) If that proved impossible, however, the ball was back in the original engineer's court. It would be open to him to pursue the matter with the defenders' local manager, Alexander Sutherland, whose position (like that of Angela Martin) was that no-one would ever be forced, against his will, to attend a job in a location which he considered dangerous. However, on the evidence of Angela Martin and others, it seems that the office staff would sometimes suggest that the engineer should consider just going in by himself and getting the job done.

(viii) In cases where assistance with a job was provided, the role of the second man depended on the circumstances. For heavy lifting, he would give direct assistance with the work, but otherwise he would tend to act as driver and maintain a lookout in the street while his colleague was in the customer's premises. Should potential trouble arise involving third parties, he would be in a position to drive the van and its contents away, warn his colleague of the situation by telephone, and if necessary contact the police.

More contentious matters

[5] On this occasion the defenders' arrangements were not put to the test because the pursuer made no request for assistance before attending the job at 36 Lochend Road, Easterhouse. According to him, he did not do so because previous lack of success had made the exercise seem pointless. The defenders, on the other hand, took the absence of a request as cogent evidence that the pursuer, a man with decades of familiarity with the locus, and with Easterhouse in general, recognised that the job and its location were not so dangerous as to require assistance from a second man. According to Alexander Sutherland, the only request for assistance which the pursuer had made to him in the past related to Barrowfield.

[6] When he emerged from the block in which the customer's flat was situated, the pursuer did not immediately become aware of impending trouble. The attack occurred as he put down his tool box preparatory to opening the van doors. There was no evidence as to whether the assailants had followed the pursuer out of the same block, or alternatively had approached along the street. In the latter event, there was no evidence as to the direction from which they had come, or as to whether their approach had been from the same side of the street. Equally, apart from the fact that they were not masked, there was no evidence as to how they were behaving or the point at which they first produced knives. The absence of such evidence merely served to accentuate the parties' dispute as to the likelihood of a second man recognising the potential for trouble in sufficient time to warn the pursuer, or to prevent the attack taking place.

[7] Only the pursuer claimed that Lochend Road, Easterhouse, or (initially) the whole of the Easterhouse postcode G34, would have attracted automatic double‑manning on safety grounds under the Radio Rentals system which the defenders temporarily adopted. The witness James Payne suggested Bridgeton (postcode G40) as a dangerous area in that context, but agreed with Alexander Sutherland that the system never extended to more than part of a 3-digit postcode. According to Mr Sutherland's recollection, it was only specified streets in Bridgeton which had actually qualified in the past, and Lochend Road, Easterhouse would not have been regarded as a dangerous area meriting automatic double‑manning for every job.

[8] Alexander Sutherland, who had himself been with Granada for some fifteen years before the merger, was sceptical about how an automatic double-manning system could work. How would Swindon know which areas should qualify and which not? Whose judgement would apply on the criterion of "danger", given that one man's view was liable to be different from another's? To him, any system based on postcodes seemed arbitrary and impractical, and his scepticism in these areas was shared by the defenders' highly qualified security expert Mr Terence Hack. Neither man could see anything wrong with arrangements whereby the provision of assistance depended on a request from the man on the ground, particularly where (as in the case of the pursuer) the man was very experienced and had extensive familiarity with the area in which a particular job was allocated.

[9] Although offences against property were reported from time to time, there was no evidence that the defenders or their predecessors had had any prior history of third party assaults on engineers in Easterhouse, or in the Glasgow area generally. In around thirty years of working as a field service engineer, often in Easterhouse, the pursuer himself had never previously been attacked or threatened. In this he was typical of the defenders' Glasgow-based workforce. As regards Edinburgh-based engineers, the witness William Martin indicated that in just under a decade he had never required to seek assistance on safety grounds, but that assistance on other grounds had been regularly available on request.

[10] As against that, the pursuer's documentary productions at the proof included a sheaf of letters written to a Union official on the subject of alleged danger to employees, and containing complaints about inter alia the loss of automatic double‑manning. Of these letters, Nos.6/4, 6/6 and 6/9 were spoken to in evidence, but these all post-dated the pursuer's incident and there was no indication that any similar written complaint had been made to the defenders at an earlier stage. Moreover, some of these letters highlighted particular risks affecting men who were unfamiliar with an area into which they were being sent, or arising from the allocation of jobs for the late afternoon or evening.

[11] According to several witnesses, including Alexander Sutherland, problems with the provision of necessary assistance to engineers had been raised at staff/management meetings in the period prior to the pursuer's incident. There was, however, a dispute as to the frequency with which this happened, Alexander Sutherland maintaining that such matters had been raised only occasionally and by particular individuals. In all cases, he said, his answer had been along the lines of "If you don't get assistance, don't go to the call!". In his letter (No.6/9 of Process) James Payne, a former Union official, appeared to confirm this with the statement "No one is saying that Endeva wilfully put its employees in danger ...". As against that, however, with the fear of redundancy in the air, the pursuer and others maintained that they had little choice but to comply if office staff suggested that they should consider just getting the job done.

[12] On the evidence, Lochend Road itself was a relatively broad main route through the northern part of Easterhouse. At its western end, the locus where the pursuer was attacked was just under 500 yards north of the Easterhouse police station and main shopping centre. A school was situated nearby. One-man-operated buses ran frequently on Lochend Road in both directions, and on the morning on which the defenders' security expert Mr Hack visited the locus he found a lady waiting alone for a bus, a van delivery man working unassisted, and children walking on the pavement. While he very fairly conceded that he had no prior local knowledge, and was unaware of any bad reputation which Easterhouse might have, he confirmed that in his opinion there was no apparent feature of the locus to suggest that it should be classed as inherently dangerous, or that double‑manning for service engineers, tradesmen and others should be considered.

[13] So far as Easterhouse as a whole was concerned, crime statistics obtained from Strathclyde police showed that, during overlapping periods of 5 and 6 years, an average of between 259 and 288 serious crimes of violence were committed there annually. This was broadly on a par with the situation in the Baird Street and Monklands areas, and significantly better than the situation at London Road or Shettleston. Calculating the crime rate as a percentage of the population, Easterhouse edged towards the more serious end of the table but still fell far short of the relevant percentage for London Road. Unfortunately, no distribution maps were available to show the incidence of serious crime around the locus at the west end of Lochend Road, nor were the statistics broken down by reference to time of day or public/private location.

The parties' submissions

[14] Against that background, senior counsel for the pursuer founded heavily on the automatic double-manning system which Radio Rentals and (briefly) the defenders had operated in the past. According to him, this not only demonstrated acceptance of the relevant risk to employees' safety in particular areas such as the locus, but also identified the protective measures which were reasonably required. Since the defenders had chosen to discontinue this system, without carrying out a risk assessment as required by the Management Regulations 1999, and without formally notifying employees of the change, the onus was on them to show that any arrangements in place as at 23 June 2003 still fulfilled their common law duty to take reasonable care for the pursuer's safety. This, it was submitted, the defenders had plainly failed to do, and in a real sense the attack on the pursuer had resulted from the absence of an effective double-manning system where that was obviously required. The pursuer's evidence was that Lochend Road would have been designated as a two‑man area under the former system. Easterhouse was his "patch", and there was no reason to disbelieve him on this issue, especially where neither  Mr Hack nor Alexander Sutherland had turned out to be impressive witnesses. The whole purpose of having a second man present was to provide greater security. His very presence would have been likely to deter crime, but in addition he would have been in a position to reduce any perceived risk by driving the van away and/or warning his colleague by telephone.

[15] Prior to the pursuer's incident, the defenders were well aware of staff concerns in this area. However, as Angela Martin conceded in the witness box, the defenders' supposed request system was not reliably effective. Reduced manpower levels and increased operating pressures regularly made it impossible to meet engineers' requests for assistance. In such circumstances, although admittedly the pursuer made no such request on the occasion in question, he could not be criticised for failing to take a step which experience showed would have been pointless. Even if the defenders were correct that over one million calls had been made without incident over the previous decade, that merely reflected the success of the double-manning arrangements which had previously been in force.

[16] In support of these submissions, senior counsel for the pursuer referred me to various authorities vouching the need to approach causation on a broad common sense basis. Although the Inner House in Porter v Strathclyde Regional Council 1991 SLT 446 had reaffirmed the need for a pursuer to prove that, but for the defenders' negligence, the harm in question would probably have been prevented, there were many situations in which proof that the risk of harm would have been materially diminished could lead to the same result. For example, in Muir v Cumbernauld and Kilsyth District Council 1993 SLT 287, an Extra Division made a specific finding on causation in the following terms:-

"The wearing of gloves ... would have materially lessened the risk of the pursuer sustaining an injury of the type he in fact sustained, and would probably have prevented said accident."

More recently, in Collins v First Quench Retailing Ltd 2003 SLT 1220, Lord Carloway upheld the claim of an unassisted female employee who was assaulted and robbed in an off licence, holding that the absence of double-manning had in all the circumstances materially increased the risk of criminal violence by third parties. Significantly, in Porter itself, the Inner House ultimately reached the same end result as the Lord Ordinary despite substituting one legal approach to causation for another.

[17] Senior counsel also referred me to Dorset Yacht Co Ltd v Home Office 1970 AC 1004 as an illustration of how liability might be established in respect of the criminal actings of third parties. A duty of care towards the plaintiffs was there held to arise in respect of the conduct of absconding Borstal boys who caused serious damage to a vessel. A fortiori the present defenders owed the pursuer a relevant duty of care as his employers.

[18] For his part, counsel for the defenders approached the case rather differently, inviting me to attach little significance to any system adopted by Radio Rentals in the past, and instead to concentrate on the defenders' arrangements which were actually in place as at 23 June 2003. It was irrelevant that a different system might for a time have been adopted by Radio Rentals: what mattered was whether the pursuer had proved, on the balance of probabilities, that the defenders' current arrangements breached their common law duty to take reasonable care for his safety. In counsel's submission, no such proof had been adduced.

[19] There was in particular no reliable evidence to show that an early morning job at 36 Lochend Road, Easterhouse, posed any foreseeable risk of harm to an engineer working alone. The police statistics showed Easterhouse in general to be no more dangerous than Baird Street or Cumbernauld, and considerably less so than London Road. More importantly, in three decades of similar work in Easterhouse, the pursuer himself had never before been the victim of any form of attack. In this, he appeared to be typical of the defenders' workforce as a whole. Unlike the position in Collins, there was here no prior history of assaults, or even of complaints of trouble, at the locus, or in Easterhouse as a whole, or indeed anywhere else within the Glasgow area. On Mr Hack's calculations, some 1.2 million calls had been made without incident by service engineers employed by the defenders and their predecessors in the Glasgow area over the past ten years or so. Accordingly, if the locus had ever enjoyed automatic 2-man status in the past - a matter which the defenders strenuously disputed - it certainly did not, on the evidence, merit precautions of that order. Lochend Street at the locus was a busy one-man-operated bus route with a school nearby, and at the time of Mr Hack's visit women, children and an unaccompanied delivery man were about.

[20] Equally importantly, there was no evidence that other employees in any category - for instance postmen, electricians, plumbers, couriers or pizza delivery men, all of whom might carry cash, mobile phones or other stealable items - operated under any double-manning regime at the locus. The position regarding the Ladbrokes' premises in Colfin Street was not relevant in this context, since these premises were situated some distance away; they had various special security drawbacks; and significantly the service sheet (No.6/21 of Process) referred to a localised 6-digit postcode and not to either Easterhouse, or even Lochend Road, as a whole. Moreover, the basis on which the entry "... this area is 2 man-security ..." appeared on the service sheet had not been proved. The decisions of the House of Lords in Cavanagh v Ulster Weaving Co Ltd 1960 AC 145 and Potec v Edinburgh Corporation 1964 SC HL 1 established that, where negligence by omission was alleged, the absence of any evidence of practice by other employers in like circumstances would be a factor militating strongly in the defenders' favour. In the former case, Lord Keith of Avonholm said (at page 166):-

"... an employer is bound to take reasonable care for the safety of his workmen, and in every case the question is whether the circumstances are such as to entitle judge or jury to say that there has or has not been a failure to exercise such reasonable care. It is immaterial, in my opinion, whether the alleged failure in duty is in respect of an act of omission or an act of commission. But where it is an act of omission that is alleged, I think it will be found, in the absence of evidence of practice, that the circumstances will rarely, if ever, lead judge or jury to hold that there was negligence unless the precaution which it is suggested should have been taken is one of a relatively simple nature which can readily be understood and commends itself to common intelligence as something to be required."

[21] Furthermore, as the House of Lords made clear in the Dorset Yacht case, and also in Smith &c v Littlewoods Organisation Ltd 1987 1 AC 241 and Jolley v Sutton LBC 2000 1 WLR 1082, foreseeability of harm to a level going beyond mere possibility was an essential prerequisite for the imposition of any duty of care relative to the criminal actings of third parties. If the risk of harm was small, moreover, it had to be weighed against the difficulty (financial or otherwise) of eliminating it. Moreover, a pursuer could only succeed if it would be "fair, just and reasonable" to hold that the defenders were under a duty to do more than they actually did:- cf. Gibson v Orr 1999 SC 420, per Lord Hamilton at pages 431 and 439. In Charlton v The Forrest Printing Ink Co Ltd 1980 IRLR 331, a case having many similarities to the present, the Court of Appeal refused damages to a chemist who was attacked and robbed in the street while collecting wages from a bank. The defendants, it was held, had done all that was reasonable in the circumstances to eliminate the risk, and no more could have been expected of them.

[22] The absence of any foreseeable risk to field service engineers at the locus was accordingly critical in determining the scope of the duty of care which the defenders owed towards employees such as the pursuer. The defenders' duty was not one of insurance, but of reasonable care only, and their ultimate adoption of a request-based system was more than adequate to discharge that duty. As confirmed by the witnesses Steven and Sutherland, former Granada employees had never known anything different prior to the merger, and it was only for a limited time that Radio Rentals had tried an alternative approach. If, in some cases, assistance could not be made available, the next step would be to re-schedule the relevant job. Even if that proved impracticable, there was nothing wrong with asking experienced men to think again, on the understanding that no-one would be exposed to danger against his will. In the whole circumstances, the blanket double-manning desiderated by the pursuer was wholly unwarranted; it would in any event have been financially crippling to the defenders; and there was no evidence to suggest that the presence of a second man would probably have prevented an attack of the kind suffered by the pursuer.

[23] In that latter context, the assailants did not strike until the pursuer had already emerged on to the street, and was therefore past the stage at which he could have been warned. The men were not masked; there was no evidence that they were behaving in a way which would have attracted the attention of a second man in the van; and if they were capable of attacking an unarmed man with knives in a busy street before mid-morning in broad daylight, there was no reason to suppose that they would have been deterred by the presence of a further unarmed man inside a vehicle. Indeed, if a second man had been there, he might well have become a victim instead of, or in addition to, the pursuer. At best for the pursuer, there was no more than a mere possibility that the presence of a second man would have made any difference to the risk of attack, and in law that was not sufficient. As authoritatively laid down by the Inner House in Porter and by the House of Lords in Fairchild v Glenhaven Funeral Services Ltd &c 2003 1 AC 32 and Gregg v Scott 2005 2 AC 176, "material diminution of risk" was not an appropriate test for causation except in cases involving disease processes such as, for example, McGhee v National Coal Board 1973 SC HL 37. Lord Carloway's approach to causation in Collins arguably ran counter to these authorities. In addition, his decision was distinguished by Buckley J. in the comparable case of Humphrey v Tote Bookmakers 2003 EWHC 217, on the ground that in Collins there had been a history of serious incidents at the premises and, moreover, the defenders had ignored police advice.

[24] For all of these reasons, it was submitted that the pursuer had failed to prove his case and that the defenders were entitled to decree of absolvitor.

Discussion

[25] So far as the law is concerned, I begin by confirming that in my opinion the onus lies squarely on the pursuer to prove that, as at 23 June 2003, the defenders failed to provide him with a safe system of work, and were thereby in breach of their common law duty to take reasonable care for his safety. On the strength of authorities such as Porter, Fairchild and Gregg, which are binding upon me, the onus is also on the pursuer to prove that, but for the defenders' alleged breach of duty, the street assault on that date would probably have been avoided. No doubt, as the Extra Division held in Muir, and as Lord Carloway in my view also made clear at page 1227 G-H of his decision in Collins, the degree to which performance of the defenders' alleged duty would have diminished the risk of harm may be so great as to satisfy that test of probability. However, I am unable to accept the submission of senior counsel for the pursuer that proof of any material diminution in the risk of harm should be held sufficient for his client's purposes.

[26] Senior counsel for the pursuer also submitted that the ordinary rules as to the onus of proof did not apply in circumstances where an allegedly safe system of work had been adopted and then abandoned by the defenders in and after 2001. According to him, the onus was thereby transmitted to the defenders to prove that their current arrangements were both safe and effective. I am not, however, persuaded that that approach is well-founded. If I understand it correctly, counsel's proposition would appear to come to this: that in order to discharge his initial onus of proof the pursuer need only demonstrate the safety of a different system which was in place some two years prior to the incident, and that any onus regarding the situation in 2003 must thereupon be undertaken by the defenders. If, hypothetically, no evidence at all had been led on the safety or otherwise of any system of work operating in 2003, the pursuer would then immediately have claimed success on the issue of liability. In my judgment, the onus of proof cannot be inverted in this way. As it seems to me, the focus must necessarily be on the arrangements which were actually in place at the time of the pursuer's incident, as opposed to those in force at any prior date, and it is clearly for the pursuer to prove, if he can, that such arrangements were not adequate to fulfil the defenders' duty of providing him with a safe system of work. I do not say that the history of events in and after 2001 cannot legitimately be considered and taken into account as part of that proof, but in my view negligence on the part of the defenders in 2003 cannot be established by simply showing that an allegedly safe system was in place at some earlier stage.

[27] In the same general context it is, I think, well settled that, in order to establish negligence at common law, a pursuer must do more than merely identify precautions which, with the benefit of hindsight, might have been practicable and might have prevented the harm complained of. Proof of the availability of effective precautions, or even of their adoption at some time in the past, cannot per se demonstrate that what the defenders actually did or failed to do at the relevant time amounted to a breach of their common law duty of care.

[28] Further important issues arising here are (i) the degree of foreseeability of the harm complained of; (ii) the relative ease or difficulty of taking effective precautionary measures; and (iii) where the failure alleged against the defenders is one of omission, the existence of any relevant practice adopted by other employers in like circumstances. As the House of Lords made clear in the Dorset Yacht, Smith, Cavanagh and Potec cases already mentioned, consideration of these issues will critically affect the existence and scope of a defender's duty of reasonable care. In particular, as Lord Guest explained in the last-mentioned case (at page 6);

"The non-existence of a practice does not by itself in law absolve employers from adopting a safety precaution. But the fact that such a precaution is not provided in practice places a very heavy onus on a pursuer to show that a precaution not adopted by other employers in like circumstances is one which a reasonably careful employer would regard as obviously necessary. It is only in special circumstances such as were present in Cavanagh that a higher duty of care could be placed on employers."

[29] Against that background I have reached the conclusion, ultimately without much difficulty, that the pursuer has fundamentally failed to prove his case and that the defenders must therefore be assoilzied. In my view the evidence falls well short of what would be required to show, on the balance of probabilities, that in June 2003 the defenders were in breach of their common law duty of reasonable care for the pursuer's safety. Their general obligation to provide the pursuer with a safe system of work is not of course in dispute, but on the evidence I am not persuaded that it would be fair, just and reasonable to impose on the defenders a legal duty to do more than they did in that connection. The grounds on which I have reached this conclusion are briefly summarised in the paragraphs which follow.

[30] First of all, as it seems to me, the pursuer has failed to prove that the foreseeable risk of a field service engineer being criminally assaulted at the locus was so great as to justify the double-manning system for which he contends. In that regard, there was no evidence to show that the defenders had any history of attacks on service personnel at the locus, or in Easterhouse as a whole, or indeed in any part of the Glasgow area. Equally, there was no evidence that specific complaints of trouble at the locus had ever come to their attention, and this was hardly surprising given the evidence as to conditions at the western end of Lochend Road where the pursuer's incident occurred. This was a main thoroughfare with one‑man‑operated buses running in both directions; a school was situated nearby; on Mr Hack's morning visit lone women and children were in evidence; and on the same occasion a van delivery man was seen operating unaccompanied. There was, moreover, no evidence to suggest that any other employer had instituted double‑manning procedures in that area, and applying the guidance of the House of Lords in Cavanagh and Potec I would have required very considerable persuasion before holding the defenders negligent for failing to have such a system in place in 2003. Given the significant cost implications of double-manning, it is clear that any finding of negligence in this case would have far-reaching consequences for all businesses operating in the relevant area, with the activities of postmen, plumbers, electricians, delivery men, social workers and many others being potentially affected.

[31] It is true that the letters on which the pursuer founded (Nos.6/4, 6/6 and 6/9 of Process) contain general complaints about the loss of the former automatic allocation of 2-man jobs in particular areas. However, these letters were plainly written on request to a Union official; they post-dated the pursuer's incident; there was no evidence that any similar written material existed at any earlier date; and to some degree the complaints were directed to the plight of men who might be unfamiliar with a given area, and to the problem of jobs being allocated for the late afternoon or evening. In the circumstances of this case, where the job took place in the early part of the morning, and where the pursuer was an experienced engineer with several decades of familiarity with the Easterhouse area, I do not consider that these letters are entitled to great weight.

[32] As regards the former Radio Rentals system whereby, it was said, jobs were automatically allocated to two men by reference to postcode areas, it does not seem to me that this takes the pursuer very far either. There was no evidence from anyone with direct knowledge as to the basis on which that system was adopted, nor as to the particular features which it possessed. No-one could explain how or by whom relevant postcodes were selected for transmission to the national call centre at Swindon; there was no satisfactory evidence as to which postcodes were allegedly covered; and there was no indication of the criteria by which alleged danger was judged in that connection. While the pursuer himself started off by claiming that the whole of the Easterhouse postcode G34 had been included, the general weight of evidence was to the effect that only parts of such a postcode area would be affected, and perhaps only particular streets in areas such as Bridgeton. On the critical issue of whether the locus at the western end of Lochend Road was covered, Alexander Sutherland indicated (both in evidence and to Mr Hack) that it was not, and I am inclined to prefer such indications to the unsupported contrary assertions made by the pursuer himself. In general, Mr Sutherland struck me as a restrained and reliable witness, and on this point I consider that his evidence fits in well with the objective facts and circumstances regarding the locus.

[33] In this context, I attach little importance to the Ladbrokes' service sheet No.6/21 of Process. Colfin Street, Easterhouse, where the Ladbrokes premises were situated, is several hundred yards distant to the east of the locus; as a cul-de-sac with limited access and an adjacent pub, it may have given rise to special security concerns; for all I know the premises themselves may have had a history of trouble; any automatic 2-man designation seems to have been specific to the Ladbrokes' account; and the service sheet itself bears a localised 6-digit postcode which could not conceivably apply at the locus.

[34] In any event, for the reasons given in paragraph [26] above, I do not accept that the existence of any automatic double-manning system in and before 2001 can have more than an incidental bearing on the critical question whether the defenders' arrangements in place as at 23 June 2003 were adequate to fulfil their duty of reasonable care for the safety of employees such as the pursuer. Similarly, I do not consider that the defenders' apparent failure to carry out a risk assessment between 2001 and 2003, or their failure to notify staff in writing when they reverted to a request-based system, are of much significance in the determination of that critical issue. In 2003 the pursuer and others were in no doubt as to what the current system was. Their complaint was simply (a) that it was no longer automatic, and (b) that if a request for assistance could not be accommodated, and the relevant job could not be re-scheduled, the decision whether to "go in" alone might sometimes be left to them. In that context, however, my impression is that the pursuer, James Payne and others were inclined to exaggerate the difficulties, and I am satisfied that the "bottom line" of which everyone was aware was that the defenders would not knowingly jeopardise the safety of any of their staff. On this matter, I accept the evidence of Alexander Sutherland to the effect that, at meetings with representatives of the workforce, he would always confirm that no-one should go to a job which he felt to be unsafe. As an experienced engineer having extensive familiarity with the Easterhouse area, I consider that the pursuer was in the best position to judge whether a particular job should be done unaccompanied and without assistance. The fact that, on the occasion in question, the pursuer did not request any assistance for an early-morning job at the locus seems to me to weigh heavily against his claim that double-manning in that area was obviously necessary.

[35] Turning to the matter of causation, difficulties for the pursuer again arise, in my view, from his own failure to request assistance on the occasion in question. He was aware that such a request was necessary to trigger the arrangements which the defenders then had in place, and the result of his failure is that these arrangements were not tested. It is a matter of speculation whether, had such a request been made, assistance would have been provided or, failing that, whether the job would have been re-scheduled. It is equally a matter of speculation whether, in the last resort, the pursuer would have taken any concern that he felt to the local manager, or if so what the latter would have done about it. From the outset, therefore, it is difficult to hold that, but for some identifiable deficiency in the defenders' system, the pursuer would probably not have ended up unaccompanied at the locus on the morning of 23 June 2003.

[36] The pursuer's problems do not, however, end there, because even if I had held that a safe system of work in June 2003 should have involved the provision of a second man to assist the pursuer with the job in question, I would not have been persuaded that the presence of a second man would probably have avoided the criminal assault which occurred. Ex hypothesi the second man would have sat outside in the van while the pursuer completed the repair job in the customer's house. Any positive influence on the pursuer's safety would have depended on the second man keeping a very careful lookout, and recognising the approach of trouble in the street before the pursuer emerged from the building. At that point, the van might have been driven away and the pursuer warned by telephone, but in the event the pursuer did not become aware of any problem until after he had left the building and was on the pavement preparatory to opening the van doors. There was no evidence as to how, or from what direction, the two assailants approached him, nor as to how they were behaving in the moments before he was attacked. On the evidence, neither man was masked, and there was no indication of the point at which knives were drawn, or even of the extent to which such knives would have been visible in the assailants' hands. In such circumstances, I regard it as a matter of speculation whether a second man would have been in a position to recognise the approach of trouble in sufficient time to warn the pursuer, or whether his presence would have had any deterrent effect on the assailants themselves. Given that they were obviously prepared to assault the pursuer with knives on a busy road in broad daylight, there must in my view be considerable doubt whether another unarmed man in the van would have made the slightest difference to what they did. Had the second man emerged from the vehicle at that point, he might simply have become a second victim, and if the assailants had arrived before the pursuer emerged from the building it seems likely that the second man on his own would have been at considerable risk of being attacked.

[37] In all the circumstances, it seems to me that the pursuer falls well short of satisfying the legal test for causation as explained in cases such as Porter, Fairchild and Gregg. At best for him, it is possible that the presence of a second man on the occasion in question might have reduced the risk of criminal assault to some degree, but on the evidence I am unable to hold that any such reduction of risk would have been sufficiently material to bring the pursuer close to proving that, but for the absence of a second man, he probably would not have been assaulted.

[38] For completeness, I should add that in my view the mere fact that the defenders had in place certain arrangements for the provision of assistance to field service engineers does not of itself prove causation in a case of this kind. Senior counsel for the pursuer sought to argue that the very existence of such arrangements showed that the provision of a second man would have made all the difference, but it seems to me that that argument lacks substance. If, as I have held, there was no proven need for an experienced engineer to be assisted on a mid‑morning call at the locus, and if the practical effect of such assistance would have been questionable, it is hard to see how the mere fact that the defenders had certain arrangements in place for the benefit of their staff can be thought sufficient to resolve the disputed issue of causation in the pursuer's favour.

Conclusion

[39] For all of these reasons, I confirm that in my judgment the pursuer has failed to bring home his case of fault against the defenders, and that his claim of damages must accordingly be rejected. It follows that the defenders are entitled to decree of absolvitor.