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OUTER HOUSE, COURT OF SESSION

[2015] CSOH 64

 MARTI

PD1975/14

OPINION OF LORD BOYD OF DUNCANSBY

In the cause

MARTIN JONES

Pursuer;

against

SCOTTISH OPERA

Defender:

Pursuer:  Crawford;  Digby Brown LLP

Defender:  Thomson;  DAC Beachcroft Scotland LLP

2 June 2015

Introduction

[1]        The pursuer is Martin Jones.  He is a self-employed production manager. The defenders are Scottish Opera.  On 4 December 2013 the pursuer was working as a technical manager at the Alhambra Theatre in Dunfermline when he was injured falling from a trailer owned by the defenders. The defenders are Scottish Opera, who amongst other things provide a specialised delivery service for scenery, props and other theatre equipment to theatres.  The delivery service is not confined to Scottish Opera productions.  In this case the scenery was for a pantomime, Jack and the Beanstalk.

 

Grounds of fault

[2]        The pursuer alleges that he tripped on the metal ridge or lip at the edge of the trailer. He says that the accident occurred as the result of the defenders’ breach of statutory duty and breach of common law duties.  In particular the purser alleges that the defenders failed to provide a ramp.  Had they done so he would have been able to walk down the ramp, the end of which covers the metal ridge or lip. The pursuer has a secondary argument to the effect that even if the court does not accept that he tripped on the edge the height of the drop from the trailer to the ground was, in itself, a hazard which should have been avoided by the provision of a ramp.

[3]        The defenders submit that they did not owe a duty of care to the pursuer.  He was not their employee. In any event they say that there is no lip or metal ridge on which the purser could have tripped.  They also say that they provided a ramp.  If they owed a duty of care to the pursuer and they were in breach of that duty then they say that the pursuer owed a duty to take care for his own safety and there should be a finding of contributory negligence.

 

Evidence

[4]        From time to time the management of the Alhambra Theatre ordered scenery from a company in Norfolk.  They engaged the defenders to deliver the scenery. This was done by a truck and trailer owned by the defenders and driven by one of their employees. On this particular day there was a delivery of scenery for the pantomime. The pursuer was one of the persons engaged in unloading the vehicle.  Towards the end of the operation while he was getting off the trailer the pursuer fell sustaining injury.

[5]        The pursuer gave evidence that he was experienced in dealing with theatre scenery. He had often unloaded scenery and equipment in the past and was familiar with the defenders’ trucks and trailers.  The trailer was one to two metres in height but the height could be reduced to about one metre for loading and unloading.  The trailer usually comes with ramps which were either stored in the body of the trailer or in a compartment underneath the vehicle.  The ramps are in a variety of sizes but that is dependent on the size of the truck.  There may be more than one ramp on the truck.  The bed or floor of the trailer is wooden but the edge of the trailer consists of a metal strip.  There is a dispute as to whether or not the metal strip stands proud of the wooden floor and if so by how much but it is convenient to describe it as a lip.  When in place one end of the ramp rests on the end of the trailer over the lip and the other end on the ground.  They can be of considerable weight such that it may take more than one man to lift it and manoeuvre it in place.  They will not normally be carried in the truck with scenery as they may damage it if the ramp moves.  However if the truck contains flight boxes which are rigid metal containers then, the ramp may be placed on top of them without risk of damage to the contents.  The loads usually consist of “long flats”, the scenery for the production and other props and equipment.

[6]        On the day in question the pursuer says that the truck turned up without a ramp. Accordingly he and the crew had to unload the trailer without the assistance of the ramp. According to the pursuer the driver stood inside the vehicle and pushed items towards the crew that was to take them into the storage area within the theatre.  The crew consisted of the pursuer, who was in charge, Colin Harrower and another man, Steven Baird.  Towards the end of the unloading the driver asked the pursuer to come up and help unload the items at the very front of the trailer.  When he finished he went to get down from the trailer.  He moved to the edge of the trailer and crouched down.  According to the pursuer his foot caught on what he described as the metal ridge or lip and he fell out of the trailer onto the ground.  He put his right hand forward to break his fall. As he a result he was injured as described below.

[7]        Colin Harrower told the court that there was no ramp.  Normally the first thing that is done is that they look for the ramp.  He said that if there was no ramp then the trailer would be unloaded with two people inside the trailer pushing the contents to the door and two people outside taking it from the trailer into the theatre.  He thought that he had been in the trailer.  He had climbed up.  However he thought that the pursuer had been in the trailer with the driver taking the contents to the door and he and Mr Baird had taken it inside. He said that the driver had been in the trailer; that was normal.  The driver would untie the load and help ensure that it did not fall.

[8]        Towards the end of the unloading he was coming back out of the theatre towards the lorry to get another load when he found the pursuer walking in holding his wrist.  He told him that he had fallen out of the back of the lorry.  The pursuer told him that it would not have happened had there been a ramp.  Mr Harrower remembered joking with the pursuer that he would have fallen even if there had been a ramp.  The pursuer asked Mr Harrower to help him fill in the accident book as he was unable to write.  There is no mention in the accident book of the absence of a ramp.

[9]        Archie McLaren is an HGV driver employed by the defenders.  He was the driver who delivered the scenery to the Alhambra Theatre on 4 December 2013.  The scenery had come up from Norfolk the day before with another driver.  The trailer had been taken to the depot in Glasgow.  Mr McLaren had picked up the trailer and driven it to Dunfermline.  The trailer had been closed when he picked up the trailer.  He had not looked inside.

[10]      He identified the trailer as T6 or SOS6.  It was shown in the photographs.  The floor was wooden and there was a metal lip.  However it was not raised above the wooden floor and there was no groove between the floor and the metal.  The trailer could be lowered to about one metre to assist with loading and unloading.  A ramp is provided if it is asked for. Some theatres have proper loading bays but the Alhambra does not.

[11]      When he arrived he reversed into the lane.  The unloading crew came out.  The doors were opened.  The guys said that there was no ramp.  However they removed some items at the side and the ramp was there.  It was put in position.  He was certain there was a ramp. He remembered the day as the gearing on a roller shutter in the theatre had slipped and the door had come down narrowly missing him.  Had it caught him he would not be here to give evidence.  He had stayed in the cab while the crew had unloaded the trailer.  It was not part of his job to assist with unloading.  He was unaware of any accident until the claim was intimated some 6 months later.

[12]      Brian Mitchell is the transport manager for the defenders.  He told the court that he kept a personal diary of work.  That showed that trailer T6 had come from “Scenic”, the suppliers in Norfolk, to Glasgow on 3 December with “1 x ramp large”.  It then records a changeover to Archie on 4 December.  Mr Mitchell did not see the ramp himself.  He was sure that there would have been one.  If there was not then he would have received a call from Scenic to complain.  The trailer had previously been in Kirkcaldy before travelling to Norfolk and would have required a ramp there as the theatre there had no loading bay.  There had been no complaint from the Alhambra that a ramp had not been supplied.


Conclusions on evidence

Was there a ramp?

[13]      On the balance of probabilities I accept the evidence that there was no ramp.  Both the pursuer and Mr Harrower gave their evidence in a straight forward manner without any embellishment.  I had no concerns about their credibility or reliability.  While I did not think Mr McLaren was in any way attempting to mislead the court I thought that he was less reliable.  He was at pains to emphasise the fact that he was nearly killed by the roller door and that was why he remembered that day. Indeed he volunteered that information. However, according to him he did not see the accident and was unaware of it happening until some 6 months later.  He did not explain how he was able to relate the incident in which he was “nearly killed” to the day of an accident he did not witness.  I also noted that it was not put to either the pursuer or Mr Harrower that there was an incident when the roller door had descended narrowly missing the driver.

[14]      Mr Mitchell accepted in cross examination that he had attempted to discuss the case with Mr Harrower by telephone and in particular whether there was a ramp shortly before the proof.  Mr Harrower had said that he felt uncomfortable about that.  I thought Mr Mitchell displayed an anxiety about the case which reflected on his credibility.  He accepted that he did not see the ramp in the trailer.  It is true that the diary entry showed that a ramp was provided but that was a record of what ought to have happened and not necessarily what did happen.  I note that the driver, named as Adrian in the diary entry, who drove the trailer back from Norfolk was not called as a witness.  Accordingly there is no evidence as to whether there was a ramp on the trailer when it was loaded.

[15]      There is no doubt that the pursuer sustained an injury to his wrist. I have no reason to doubt that it happened as he got out of the back of the trailer. If there was a ramp there seems little doubt that he would have walked down it and not sustained any injury.

 

Did the pursuer trip on the metal ridge or lip?

[16]      The photographs clearly show that there is a strip of metal that protects the end of the wooden floor.  It covers an inch or two of the floor at the edge.  The photographs show a spirit level placed over the metal strip.  It is clear from the photograph, and Mr McLaren’s description, which I accept, that the metal is not raised.  Furthermore I do not accept that there is any significant groove between the wood and the metal such as is likely to catch a foot.  Accordingly I am satisfied that there is no hazard at the edge of the trailer which might pose a danger or risk to persons getting into and out of the trailer.

 

Submissions for pursuer

[17]      The pursuer’s case on record is a common law case.  Mr Crawford submitted that the necessary relationship of proximity existed between the defenders and the pursuer to establish a duty of care, that the loss was foreseeable and that it was just and reasonable that a duty should exist: Caparo Industries plc v Dickman [1990] 2 AC 605.  The defenders, he submitted knew that their own employee would not be, at least primarily, responsible for unloading the trailer.  They took responsibility for the provision of a ramp. It served a dual purpose; to facilitate unloading and to reduce or remove any risk to the health and safety of those accessing and egressing the trailer.  That ought to have triggered the question, “who will be affected by my failure to provide the ramp?”  The answer was those accessing and egressing the trailer.  The injury was foreseeable and a loss of footing at the height of the trailer was likely to result in a fall and injury.

[18]      The pursuer did not peril his case on the presence or otherwise of a raised metal lip. Its presence, however, increased the likelihood of harm.  It was however sufficient for the pursuer that there was a metre drop and no means of negotiating it other than by jumping down.

[19]      The common law duty was to take reasonable care for the health and safety of the pursuer and to provide the pursuer with maintained and suitable work equipment. Separately there was a breach of the common law duty by the defender’s employee, Mr McLaren for whom the defenders were vicariously liable.  The common law duty was, Mr Crawford submitted informed by the statutory duties;  Hamilton v Anderson 1953 SC 129, per Cooper LP at 137.  Mr Crawford cited the Work at Height Regulations 2005, the Provision and Use of Work Equipment Regulations 1998 and the Lifting Operations and Lifting Equipment Regulations 1998.

 

Submissions for defenders

[20]      Mr Thomson submitted that there was no duty of care.  His starting point was Caparo but he also referred me to Munkman on Employer’s Liability, 16th Edition at 7.03, and 4.76 and 4.77.  There are circumstances where it is reasonable to impose a duty of care on an employer to workers who are not their employees.  There were three broad categories; workers subject to another’s factual control or supervision, workers practically involved with another’s activities and workers employed by other organisations who work in a workplace controlled by the employer.

[21]      In this case the factual control or supervision was the theatre company who employed the pursuer.  There was no control by the defenders or the driver.  The pursuer was not practically involved in the activities of the defenders.  Their activity was to deliver the trailer.  The role of the pursuer and others in his crew was to unload the trailer.  Neither the defenders generally, or more particularly the driver, had any role in the unloading of the trailer.  The workplace was the workplace of the Alhambra Theatre Company, not the defenders.  While it might be argued that temporarily, the trailer and ramp became part of the workplace that ignored the evidence that the unloading was to be carried out by Alhambra Theatre Company Limited and the defenders had no role in the unloading of the trailer.  They ceded control to the theatre.

 

Decision – Whether the defenders owe a duty of care to the pursuer

[22]      It is accepted that in determining whether a duty of care should be imposed on the defenders in this case I should apply the rule in Caparo.  I am satisfied that, applying that test, a duty of care did exist in this case.  I accept the evidence that the primary role of the defenders was to deliver the trailer with its load to the theatre.  It was the crew employed by the theatre who were primarily responsible for unloading it.  Mr McLaren said that he stayed in the cab throughout but I heard evidence that the driver usually assisted by untying the stays within the trailer and helping move the load to the door.  Thereafter the crew were solely responsible for moving the load into the theatre.  While I accept that Mr McLaren may have been in the cab for periods of time and that he did not see the pursuer fall I was not persuaded that in this instance he had not assisted for a time with the unloading of the vehicle.  Accordingly I do not consider that the division of responsibility is quite as clear cut as Mr Thomson made out.

[23]      Even if I were to find that the driver never had any part in the unloading of a vehicle the defenders cannot wash their hands of responsibility.  It was for the defenders to provide a ramp.  It was not suggested that the theatre had any responsibility to provide ramps; the standard practice was that it was for the company delivering the scenery and props to provide a ramp.

[24]      Accordingly I am satisfied that there was the necessary degree of proximity between the parties.  The pursuer’s injury was reasonably foreseeable.  The drop was not less than one metre and accessing and egressing the trailer at that height without a ramp or other means of access, such as steps, carries inherent risks.  I am satisfied that it is just and reasonable to impose such a risk for the reasons given above.

[25]      Mr Thomson referred me to the three broad categories which Munkman discusses.  I do not consider it necessary to find that the circumstances fall firmly within one or other of the broad categories.  Munkman reaches these categories after analysing a large number of cases which turn on their particular facts.  It is not an attempt by the authors to establish a rule or test which must be met over and above that set out in Caparo.

[26]      Accordingly I am satisfied that the pursuer has proved that the defenders owed a duty of care to the pursuer and that they were in breach of that duty.

 

Contributory negligence

[27]      Mr Crawford submitted that the pursuer had not pleaded any facts to support a plea of contributory negligence.  Mr Thomson, while not pressing the point, said that the pursuer was under a duty of care to look out for his own safety.  He was the actor.  The matter was at large.

[28]      The duty of care on the defenders was breached by not providing a ramp.  If one had been provided then the pursuer would have walked down it and not been injured.  However I have also found that there was nothing on the floor of the trailer to cause an extra hazard.  There was no ridge or groove which could catch the pursuer as he descended from the trailer.  The ramp was not, as the pursuer averred, required to cover the lip or metal ridge of the trailer.  It follows that the only danger that the pursuer faced as a result of the failure to provide a ramp was the one that flowed from the height of the trailer above the ground.  It seems to me that that falls into two parts.  The first is the awkwardness of the manoeuvre needed to get down from a height of a metre or more without any assistance. That awkwardness may enhance the probability of falling.  Secondly the injury sustained from a fall may be greater than might otherwise be the case.

[29]      While I accept that the pursuer has a duty of care to look out for his own safety and it might be said that it should not be too difficult for a fit man to negotiate such a drop I do not consider that it would be appropriate to make an award of contributory negligence.  The danger was created by the defenders failure to provide a ramp as safe means of accessing and egressing the trailer.  If one had been provided the accident would not have occurred.

 

Damages

Evidence

[30]      The pursuer sustained a soft tissue fracture of the right wrist, possibly consisting of the dorsal extrinsic ligaments and scapholunate ligament.  He attended Accident and Emergency at St John’s Hospital, Livingston the following day.  He was x-rayed and his wrist was put in a cast.  The pursuer told the court that he had the cast on for some 5 weeks but it appeared from the medical records that it was removed on 24 December 2013.  During the time that he had his cast on he was unable to drive or to bathe his 6 month old son.  He needed help with washing and household chores.  His partner required to drive him to work at the Alhambra Theatre and to do all the house work herself.  Previously they had both been equally responsible for that.  Once the plaster was off he continued to experience pain.  The majority of pain had gone by March 2014 but he continued to have some pain thereafter.

[31]      The pursuer gave evidence that there was still some residual pain. That was supported by his partner, Ms Lemarusier.  A consultant orthopaedic surgeon, Mr Simon Thomas, was called as a witness for the pursuer.  He gave unchallenged evidence about the nature of the injury to the pursuer adopting the report which had been lodged in process. He added that he had examined the pursuer that morning and noted continuing symptoms of discomfort and tenderness.  There was an area of instability between two bones in the wrist.  His opinion was that the pursuer was likely to continue to have low level symptoms in the long term.

[32]      The pursuer was unable to lift heavy items and reduced his hours accordingly.  He employed two people to cover shifts for him at a total cost of £520.  He said that until February 2013 his hourly rate had been £10 an hour.  However that had increased to £15 per hour.  He had reduced his hours from an average of 45 hours per week (although some weeks he worked 70 hours) to between 15 to 20 hours per week.  In April or May he had taken employment with Sherman Manufacturing Ltd at a rate of £10 per hour because he was unable to continue lifting heavy items.  He went on however to say that he would have moved to Sherman in any event about October or November that year.  In other words he moved to Sherman a little earlier than he would have done because of the continuing difficulties with his wrist.

[33]      Mr Alan Beattie is a Director of both Sonno Vie which amongst other things provides staff for theatre work.  He gave evidence that he had known the pursuer for 9 years.  They had in the past supplied labour to the Alhambra in Dunfermline but now they were employed direct.  He was also a director of Sherman Manufacturing Ltd which also employed the pursuer.  He spoke to the reduction in the pursuer’s hours from an average of 35 to 45 to between 15 to 20 hours per week.  He confirmed that the pursuer subsequently moved from Sonno Vie which paid £15 per hour to Sherman Manufacturing at a rate of £10 per hour.  He would not have employed him in Sherman Manufacturing at a rate of £15 per hour.

[34]      Sarah Lemarusier is the pursuer’s partner.  She said that the pursuer was unable to assist with things around the house for some time.  In particular he had been unable to pick his 6 month old son out of the bath.  He had required help with dressing.  He was unable to drive; she had to drive him to and from work.  This had lasted 2 to 3 weeks.  However in particular Ms Lemarusier had had to drive down to Cornwall to her parents for Christmas and back again.  It was a 14 hour journey.  At the end of January or the beginning of February he had become more mobile and able to do things for himself.  She had recently noticed the pursuer wincing with pain from the wrist.  He did not say anything but she had asked him if the wrist still hurt and he confirmed it.

 

Submissions on solatium

[35]      Mr Crawford submitted that the court should follow the Judicial College Guidelines. The injury here fell within chapter 7(H)(c); a less severe injury where there is still some permanent disability mas, for example, a degree of persisting pain and weakness.  That gave a range of £9,250 to £18,000. Mr Crawford accepted that the present injury was at the lower end and suggested a figure of £10,000, 25% attributable to the future with interest at 4% on the past.

[36]      Mr Thomson also referred me to the Judicial College Guidelines but submitted that the appropriate range lay between (c) and (f).  There was no break; it was a soft tissue injury. The pursuer had worn a plaster for about two weeks and it was then strapped.  The persisting problem was very much at the lower end.  He submitted that £5,000 was appropriate, all attributable to the past with interest from the date of the accident until proof at 4%.  That amounted to £280.

 

Conclusion on solatium

[37]      The pursuer said that the majority of the pain had gone by March.  He was able to return to full time work then.  Mr Stevens said that he had some instability in the wrist and while the pursuer spoke of some pain I did not get the impression that he was constantly aware of pain.  In all the circumstances I will make an award of £8,000 with 20% attributable to the future and with interest at the rate of 4% from the date of the accident.

 

Past wage loss

[38]      Mr Crawford submitted that taking a conservative approach, basing a calculation on a weekly reduction of 27 hours over a 11 week period the pursuer suffered a loss of £2970 with interest at the rate of 4% for a period of 11 weeks and thereafter at 8% from the end of March 2014 to date.

[39]      The earlier move to Sherman meant that there was a reduction in his wages from £15 per hour to £10 per hour.  He submitted that a lump sum of £3,000 would be appropriate with interest at the rate of 4% per annum from 1 May 2014 to 1 December 2014 and thereafter at the rate of 8% per annum.

[40]      Mr Thomson accepted the sum of £520 in respect of the employment of cover. Thereafter he suggested the sum of £1,800 for wage loss on the basis of 15 hours per week reduction for 12 weeks at the rate of £10 per hour.

 

Conclusions on wage loss

[41]      There is no dispute about the sum of £520 which the pursuer paid for cover. Interest on that sum should be paid at 8% per annum from 30 December 2013.

[42]      I think the pursuer’s approach of an average reduction in hours of 27 hours per week is correct.  In doing so I noted Mr Beattie’s evidence that January was a busy month;  it is likely that the pursuer would ordinarily have been working longer hours at that time.  The hourly rate is £10 per hour.  I shall award the sum of £2, 970 with interest at 4% per annum for a period of 11 weeks and at the rate of 8% per annum from 31 March 2014 at the rate of 8% per annum.

[43]      So far as compensation for the reduction in wages as a result of moving to Sherman earlier than might have been the case Mr Crawford accepted that the hours at the Alhambra theatre were intermittent and it was difficult to make an immediate comparison.  I accept that the pursuer did move to Sherman earlier than might have been the case if he had not injured his wrist. But I think it is difficult to be precise as to what the loss actually was.  The pursuer was somewhat vague in when he did move and when he would have moved had it not been for the injury.  Taking a broad approach I think a figure of £2,000 would be appropriate, representing a loss of £5 per hour over 400 hours for a period of 4 months from the end of May to the beginning of October.  Interest should run on the sum at 4% per annum during that period and thereafter at 8% per annum.

 

Conclusion

[44]      I shall put the case out by order to be addressed on the calculation of interest on the sums awarded and to deal with expenses.