SUSAN MCLELLAN AGAINST MITIE GROUP PLC

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OUTER HOUSE, COURT OF SESSION

[2015] CSOH 151

 

PD1095/14

OPINION OF LADY SCOTT

In the cause

SUSAN MCLELLAN

Pursuer;

against

MITIE GROUP PLC

Defender:

Pursuer:  Christine;  Thompsons

Defender:  McGregor;  Anderson Strathern LLP

6 November 2015

Introduction

[1]        The pursuer works as a cleaner.  She was employed by the defenders to clean at the Bank of Scotland at Garrowhill in Baillieston, Glasgow.  On 11 December 2012 she was injured at work when a bucket of extremely hot water fell and splashed her, on the back of both her legs.  She suffered skin loss and burns.  Solatium as was agreed at the sum of £12,000.  The issue at proof was causation. 

 

The evidence
[2]       Prior to the accident the pursuer had worked as a cleaner for the defenders for about two years.  She was an experienced cleaner.  She had originally undertaken cleaning at a different bank in Cambuslang but then arranged a swap with her nephew who was also employed by the defenders as a cleaner at the bank in Baillieston.  This swap was because the pursuer had transport to travel to Baillieston and this arrangement was approved by their supervisor or line manager Mrs Margaret Kearny.  

[3]        The cleaning job entailed general cleaning of the work area and toilets with hoovering and the mopping of floors.  The pursuer was employed for one hour per day, at a time when the bank was closed.  At the times she worked there was no-one else present on the premises.  The cleaning equipment was kept in a small cupboard.  On entering the cupboard, facing the entrance, there was a sink with taps on the opposite wall.  To the right hand side of the sink there was a water boiler.  On the left hand side there was shelving containing materials, a hoover and a mop and bucket.  

[4]        The pursuer swapped to work at the bank in Baillieston about six to eight weeks prior to the accident.  Her nephew, Thomas McLellan, showed her the workplace, where things were and the job to be done.  Nothing was said about use of the boiler.  She assumed water could be obtained from the taps at the sink. 

[5]        When she began work the pursuer discovered the taps on the sink in the equipment cupboard did not work and never worked.  In order to obtain hot water for her mop bucket the pursuer used the boiler next to the sink.  This was located on the wall above but to the right of the sink.  The spout at the base of the boiler was not directly above the sink.  The pursuer lifted and placed the bucket underneath the spout to fill it. She had to operate the spout for the water to discharge.  This water was extremely hot and she could see steam coming from it.  In order to obtain sufficient water for the cleaning she had to refill the boiler by pulling a lever on the top of the boiler.  This refill took about three to four minutes.  When waiting for the refill she placed the bucket underneath the boiler with the base of the bucket resting on the right hand side of the sink and on a small flat surface located between the sink and the right hand wall of the cupboard.  She wedged or “jammed” the bucket upon these surfaces directly under the boiler.  During this wait she took the hoover outside the cupboard, came back in and bent to retrieve hoover bags from a box on a shelf.  She heard a bang and turned round.  The bucket containing the hot water had fallen.  She felt a sensation on her legs.  She pulled down her trousers and as she did so she saw that her skin came away.  The pursuer, in her words, “went into a panic” and phoned for help from her father.  She waited until an ambulance came and took her to the hospital.  

[6]        The pursuer did not know how the bucket had come to fall but she did not touch it.  She accepted that it must have overbalanced.  The pursuer accepted that she could have placed the bucket in to the sink whilst she waited for the boiler to refill.  She did not do so because she thought the bucket was securely wedged in where she had put it and that this was safer than moving the partially filled bucket from underneath the boiler and then back again. 

[7]        The pursuer also accepted that she had not reported that the sink taps were not working.  She said she thought the supervisor would know.  She then stated she only had an hour to do the job and she just wanted to get it done and she did not want to “rock the boat”.  

[8]        Evidence in the pursuer’s case was then led from Thomas McLellan.  He confirmed he swapped jobs with the pursuer.  They worked together at the bank for just one day when he showed her what there was to it.  He stated he had to get hot water from the boiler as there was no hot water from the sinks.  He said he was told the taps weren’t working and he had to get water from the boiler, by the supervisor Mrs Kearny and she showed him using the boiler.  He thought the sink was located in the kitchen and not in the cupboard.  He could not remember much about the details from the job as it was over three years ago since he was there. 

[9]        The defenders led evidence from the supervisor Mrs Kearny.  She confirmed she was employed by the defenders as an accounts manager and she employed the cleaners to the various jobs.  She was responsible for telling employees the safety rules, what the job contained and what to do or not do.  She carried out an audit or check on the cleaning job done. 

[10]      She had known the pursuer all her life and she approved the swap with the pursuer’s nephew.  The cleaning jobs were essentially the same.  She was away at the time of the swap.  She was aware the pursuer was an experienced cleaner.  Occasionally she would herself do a cleaning job if someone had not turned up.  

[11]      She spoke to the layout of the equipment cupboard and that the sink was located about four steps into the cupboard facing the entrance.  There were hot and cold taps on the sink, which were to be used to fill the mop bucket.  Sometimes the water was not very hot and if so she would go to the kitchen area and fill a kettle.  It had never been brought to her attention that the taps did not work.  She could not understand why the pursuer had not told her about the taps.  The pursuer had her telephone number.  If she had been told, she would have got someone to fix the taps.  She did not check the taps.  Employees had her telephone number to tell her if anything was wrong and she would only “do something if someone got back to me”.  

[12]      The boiler was located on the wall on the right hand side of the sink, above it, about 12 inches away.  She had never used the boiler to source hot water and she had never told anyone to use it.  She denied that she had told Thomas McLellan to use the boiler.  Nor had she told anyone not to use the boiler.  If she had known of anyone using the boiler she would have stopped them.  

[13]      From this body of evidence I was satisfied that the only real factual dispute, albeit a sharp one, was whether or not Mrs Kearny the supervisor told Thomas McLellan to use the boiler to get water and whether she knew the taps were not working.  Mrs Kearny was responsible for the supervision and giving of instructions to the employees and had the strongest interest in giving the evidence she did.  She volunteered that sometimes the water from the taps was not very hot and I did not believe her evidence that she went to the kitchen to fill a kettle when such a problem arose.  She did not provide any information as to the purpose of the boiler provided.  Moreover I find it extraordinary that if the boiler was not meant to be used, a notice had not been put beside it to say so.  I preferred the evidence of Mr McLellan and on balance I am satisfied that he was told to get water from the boiler. 

[14]      From this body of evidence I concluded the following, much of which was not in dispute: 

• the pursuer had never been shown the system of work and equipment to be used by her supervisor
• The pursuer required hot water to mop the floors as part of her duties
• The taps in the sink within the equipment cupboard did not work and never worked during the period of the pursuer’s employment at the bank

• There was no system of maintenance of the hot water supply from the taps, other than by the instruction to employees to report problems.
• It was known to the supervisor that this hot water supply was not working or could be inadequate
• The pursuer’s predecessor had been instructed to use the boiler to obtain hot water
• In any event there was no instruction or warning in place and the pursuer had not been told not to use the boiler
• The pursuer used the boiler to supply hot water for her mop bucket because she could not source hot water from the sink taps
• Use of the boiler was inherently risky in that it produced extremely hot water, it required to be re-filled and it was located at height and at a distance from the sink bowl.
• The mop bucket could have been placed within the sink during the period of re‑fill. This would require moving the partially filled bucket from and back to a position underneath the spout in order to obtain sufficient water
• There was no means provided to secure the mop bucket directly underneath the spout
• The bucket fell as a result of becoming unbalanced or toppling over

 

The issue – causation
[15]      The pursuer submitted there had been no proper system put in place to maintain the sink taps in working order and to ensure a safe supply of hot water required to carry out the cleaning job.  As a result of the problem with the taps the pursuer had to find an alternative supply.  The obvious alternative was to use the boiler.  If I accepted the evidence of Mr McLellan then this was what the defenders expected to be used.  Even if the defenders did not know of the faulty taps then they failed in their duties in failing to provide a proper system of maintenance.  Leaving the onus on the employee to report matters was insufficient.  

[16]      Use of the boiler entailed working at height in a confined space with boiling water.  This involved unnecessary risk of injury of the kind the pursuer suffered. Nothing had been put in place to effectively secure the bucket when the boiler was being used.

[17]      These failures were in breach of the defenders common law duty of care to maintain and enforce a safe system of working and in breach of Regulation 10(2) of the Work at Height Regulations 2005 and Regulation 20 of the Provision and Use of Work Equipment Regulations 1998.

[18]      The defenders submitted that the accident had been caused by the actions of the pursuer in placing the bucket containing boiling water underneath the boiler and leaving it there.  The bucket must have fallen because it overbalanced.  There was a safe and obvious alternative which was to place the bucket in the sink where it could not have become unbalanced.  The purser was an experienced cleaner and was well aware of the sink.  The accident was entirely the fault of the pursuer.  It was caused by the placement of the bucket where it was located – not by splashing or working at height in the process of filling the boiler which may carry risks. 

[19]      No authority was cited to me in support of the submissions made by either party. 

 

Decision
[20]      I am not persuaded by the defenders that responsibility for the falling bucket was as simple as was suggested.  Whilst it did not fall in the process of being filled, that process required a period where the boiler was re-filled and the bucket, partially full of boiling water, had to be put somewhere.  Certainly the pursuer chose to place it, or keep it wedged in place, underneath the boiler.  She could have put it into the sink during the re-fill period.  Her reasons (rehearsed above) for the choice she made do not seem to me to be surprising or unreasonable, given the position she was in.  Certainly it might have been safer to place the bucket in the sink – but this too, I consider, was inherently risky.  Moving a bucket containing boiling water about, at height, in a confined space was likely to result in an accident and the pursuer weighed this up.  The pursuer needed hot water to carry out her job.  The sink taps provided did not work.  But for that failure the pursuer would not have used the boiler and would not have been placed in the position where she had to place or secure the bucket during the re-fill process.

[21]      I consider a system of maintenance of equipment which relies entirely upon reporting by the worker using the equipment reporting faults, is not an adequate or proper system.  All the defenders required to do was to include a check on the taps or other equipment in the existing audit of the conduct of the cleaning job regularly made by the supervisor.  

[22]      My conclusion from the evidence is that where hot water supply from the taps was inadequate, the use of the boiler was expected by the defenders and was in any event the obvious step to take.  The risks inherent to the use of the boiler were clearly foreseeable and extend to consideration of the careless cleaner under pressure to complete her tasks within the hour.  If the defenders had not wanted the boiler to be used they should have given instructions or put up a sign to that effect.  If the defenders intended the use of the boiler, they should have taken steps to guard against the risk of the bucket containing hot water from falling or splashing.

[23]      Accordingly I am satisfied that the liability of the defenders is established, both at common law and in relation to the statutory case in respect of the various regulations relied upon by the pursuer.  

 

Contributory negligence
[24]      In the circumstances of the cause of this accident I accept there was a degree of contributory negligence.  The pursuer submitted that contributory negligence could arise if the pursuer had failed to wedge the bucket securely.  I am satisfied this is what happened.  The defenders submitted that given the safe option of placing the bucket in the sink, the contributory negligence was very high and should be assessed at 90 per cent. 

[25]      In assessing this, I have had regard to my finding of a breach of statutory duties, in that their purpose has the effect of placing a weighty responsibility upon the defenders.  I consider the actions of the pursuer in failing to secure the bucket sufficiently, in the circumstances explained above, is of a very different degree of responsibility to that suggested by the defenders.  As I have indicated, the use of the boiler was an obvious step to take and probably one intended by the defenders.  Placing the bucket, where she did, was not surprising in the circumstances.  I assess the degree of contributory negligence on the part of the pursuer at 20 per cent.  The question of expenses is reserved meantime.