MRS MARION McLAUGHLIN v. EAST AND MIDLOTHIAN NHS TRUST
| OUTER HOUSE, COURT OF SESSION |
| 0175/5/99 | OPINION OF LORD HARDIE in the cause MRS MARION McLAUGHLIN Pursuer; against EAST AND MIDLOTHIAN NHS TRUST Defenders: ________________ |
Pursuer: Miss A Smart; Thompsons
Defenders: P Stuart; Ranald F Macdonald
9 May 2000
[1]This case was heard by me on procedure roll on 22 and 23 March 2000. At procedure roll counsel for the defenders invited me to sustain the first plea-in-law for the defenders and to dismiss the action or alternatively to exclude either the common law case or the statutory case from probation. Counsel for the pursuer offered a proof before answer.
[2]The action is for reparation for an injury sustained by the pursuer in the course of her employment on 13 April 1997. The defenders are a National Health Service Trust responsible for the management and control of Liberton Hospital where the pursuer was employed at the time of her accident. In the course of her duties the pursuer was required to assist fellow employees in manoeuvring a female patient from a bed to a chair. The pursuer was required to stand behind the chair. As she was standing there a curtain rail which surrounded the bed area suddenly and without warning fell from the wall and struck the pursuer on the right shoulder and the right hand side of her neck. The pursuer avers that she sustained injury as a result of the said accident. Her common law case is res ipsa loquitur - that equipment such as curtain rails around bed areas where the pursuer required to work in the course of her duties do not normally fall from the wall suddenly and without warning. In addition the pursuer alleges breaches of Regulation 6 of the Provision and Use of Work Equipment Regulations 1992 and Regulation 5 of The Workplace (Health, Safety and Welfare) Regulations 1992.
[3]Mr P Stuart, counsel for the defenders, criticised the pursuer's pleadings in a number of respects. His submissions can be summarised as follows:-
(1)The pursuer's common law case was based upon res ipsa loquitur but there were insufficient averments to warrant the invocation of that maxim. To succeed the pursuer required to aver and prove that her accident implied negligence on the part of a third party and that in view of the exclusive management and control of the defenders at the material time it was to be presumed that the accident was caused by the defenders' negligence.
(2)In the present case the averments did not imply negligence and there were no averments of exclusive management and control of the curtain rail by the defenders. Reference was made to Scott v London and St Katherine Docks Co (1865) 3 H & C 665; Murray v Edinburgh District Council 1981 SLT 253; Colin McDyer v The Celtic Football and Athletic Company Limited &c (Division Unreported, 3 March 2000); McFarlane v Thomson (1884) 12 R 232 and Ballard v North British Railway Co 1923 SC (HL) 43.
(3)Applying the test of relevance as stated by Lord Normand in Jamieson v Jamieson 1952 SC (HL) 44 at p.50, the pursuer's common law case is bound to fail even if she proves all of her averments.
(4)Alternatively the averments in Condescendence 2 at p. 5E to 6A relating to the curtain rail not being maintained in an efficient state or in good repair and the lack of a suitable system of maintenance were lacking in specification and incompatible with res ipsa loquitur and should be excluded from probation.
(5)The formulation of the duties in Condescendence 3 indicates that the pursuer is suggesting absolute duties on the defenders to have regard for the pursuer's safety, to provide her with a safe place of work and to provide and maintain safe plant and equipment.
(6)In relation to the statutory cases in Articles 4 and 5 of Condescendence there is a lack of specification. In particular the pursuer does not specify in what respect the curtain rail was not maintained in an efficient state and in good repair.
(7)In summary the pursuer was endeavouring to build a case at common law and at statute on the basis of the mere occurrence of an accident.
The response by Miss A Smart, counsel for the pursuer, may be summarised as follows:-
(1)It was accepted that the pursuer was required to aver and prove that the accident occurred as a result of negligence and that at the material time the defenders had management and control from which it was to be presumed that the accident was caused by the defenders' negligence.
(2)The averments of the pursuer were sufficient to satisfy both of these basic requirements. Reference was made to Ballard v North British Railway Company, Buchanan v Drummond Miller & Others (5 March 1999), McDyer v The Celtic Football and Athletic Company Limited & Others, Milne v Townsend (1892) 19R 830, Johnston v J P Inglis & Sons Limited (24 November 1999).
(3)The averments in Condescendence 2 at p. 5E-6A referred to by counsel for the defenders were averments of fact to base the allegation of the breach of statutory duties in Condescendence 4 and 5.
(4)The averments in Condescendence 3, although not in normal form, had a plain meaning. The pursuer was not averring an absolute duty but rather a duty of reasonable care.
(5)The averments in support of statutory cases were sufficient. Reference was made to Johnston v J T Inglis & Sons Limited.
[4]I am satisfied that in any case in which the pursuer relies upon res ipsa loquitur it is essential for the pursuer to establish firstly that there has been negligence on someone's part and secondly that because of the exclusive management and control in the defenders at the relevant time when the negligence occurred, it can be presumed that it was the defenders who were negligent. That was the approach adopted by Lord Maxwell in Murray v Edinburgh District Council 1981 SLT 253 at 256 where in reaching that view Lord Maxwell relied upon earlier authorities including Scott v London & St Katherine's Docks and Ballard v North British Railway Company. Applying that approach to the pleadings in the present case I am not satisfied that the pursuer makes sufficient averments to satisfy the first part of the test that the incident in which she sustained injury suggests negligence on someone's part. The circumstances in this case are similar to those which Lord Maxwell required to consider in Murray v Edinburgh District Council. In that case Lord Maxwell stated at p.256:-
"I do not think that the failure of a fitting of the kind in question when it has been in position for an unspecified period, clearly points to negligence on anyone's part. It is not said how long this panel had been in place and man-made structures do not last for ever. Failure due to a latent defect does not necessarily infer negligence."
[5]These comments could apply with equal force in the present case. I have considered the submission by counsel for the pursuer that the case of Murray can be distinguished because it is not a case involving injury to an employee in the course of his or her employment. I reject any suggestion that a different approach should be adopted to the application of res ipsa loquitur in cases involving employers and employees. Whatever the nature of the relationship between the pursuer and the defenders, I consider that in any case in which the pursuer is relying upon the maxim res ipsa loquitur the pursuer must establish that the accident occurred as a result of negligence and that the defender had exclusive management and control at the relevant time. In the present case it is clear from the pursuer's pleadings that the curtain rail surrounded the patient's bed and had a curtain attached to it. From the defenders' pleadings the reference to anchor points and wall fixings indicates that the curtain rail was attached to the wall by fixings. It is conceivable that fixings will become loose for a variety of reasons and it is for the pursuer to make sufficient averments from which negligence may be inferred. In the present case the pursuer would require to make further averments from which negligence could be inferred. The collapse of a curtain rail does not necessarily imply negligence. I have therefore reached the conclusion that the averments of the pursuer in support of her common law case are insufficient to entitle her to probation of these averments and I shall therefore sustain the defenders' first plea-in-law in so far as it relates to the common law case.
[6]Counsel for the defenders also criticised the pleadings in so far as they related to the statutory cases. The basis of the criticism was that the averments in Condescendence 4 and Condescendence 5 were lacking in specification. Counsel for the pursuer submitted that the defenders' counsel was in error and that the word "maintained" in each of the regulations simply meant "kept". I have considered the terms of the regulations. They clearly impose a strict liability upon employers who come within the ambit of such regulations. There is no statutory defence afforded to employers. Accordingly if the pursuer can establish that her workplace and/or equipment was not in efficient working order on the date of her accident she will establish a breach of the regulations. In that regard I would refer to the opinion of Lord Reid in Millar v Galashiels Gas Company 1939 SC HL 31 at p.43 where he said:-
"If the duty is proper maintenance and maintenance is defined as maintenance in efficient working order, then, once it is established that the duty goes beyond a duty to exercise care, the fact that on a particular occasion the mechanism was not in efficient working order shows that there had not been proper maintenance."
In all the circumstances I consider that the defenders' attack on the pursuer's statutory cases is ill-founded and that the pursuer should be allowed a proof before answer restricted to the statutory cases.
[7]Accordingly I shall sustain the defenders' first plea-in-law in so far as it relates to the pursuer's common law case and quoad ultra shall allow a proof before answer.