[2013] CSOH 11



in the cause







Pursuer: McNaughtan; Digby Brown LLP, Solicitors

First Defenders: C S Wilson; Simpson & Marwick, Solicitors

Second Defenders: no appearance

18 January 2013

[1] This is a case about an accident that happened during a team-building exercise. The pursuer was injured and claims damages in the sum of £50,000 with interest. He is suing his employers, Fife Council, the first defenders, who "organised" the event. He is also suing the Ministry of Defence who "owned, occupied and operated" the army assault course at Barry Buddon where the accident happened. The United Kingdom government minister who answers for the Ministry of Defence in this jurisdiction is the Advocate General for Scotland. He is the second defender. The action has been remitted to Procedure Roll on the first defenders' motion, unopposed, to debate the relevancy of the pursuer's pleadings directed against the first defenders. I heard the debate on 31 October and 1 November 2012 and made avizandum. Having considered the points made by counsel and the authorities to which they referred me I have decided that the case can properly be allowed to proceed to proof. The second defender is apparently content that the action should go to proof and has not participated in the debate.

The claim and the submissions
[2] This is a personal injuries action for damages in terms of the Rules of the Court of Session [RCS] chapter 43. It follows (1) that the pleadings are in abbreviated form and (2) that I believe I am bound by the words and spirit of the ch 43 rules not to decide the case against the pursuer on paper unless, taking the most favourable view of the pleadings, there is no arguable basis of liability. What I have heard in this case confirms me in the views to that effect I expressed in a previous decision [Bruce v Brown and others [2011] CSOH 165, §§ 17-26].

[3] The 26 June 2009 was a Friday, according to the calendar. On that Friday, so the pursuer's pleadings tell us, sixteen workers took part in a team building exercise organised by their employers the first defenders. The group included the pursuer. The pursuer was at that time a 46-year old social care worker. The exercise included an assault course at the Barry Buddon army training centre. There were seventeen obstacles. One of the obstacles, as the pursuer describes it, was a set of seven parallel, overhead "monkey bars" spanning a ditch. The bars were eight feet above the ground. My understanding is that the feature might be better described as a water obstacle designed to be crossed by using the overhead bars, swinging from one bar to the next using alternate hands. The pursuer lost his grip and fell into the ditch.

[4] The pleadings highlight a specific problem with the monkey bars and so-called ditch on the morning in question, namely that the ditch was only partially filled with water. The implication is that if the ditch had been full the impact of the pursuer's fall would have been absorbed and the risk of injury would have been reduced. As it was the pursuer injured his right knee. He ruptured the anterior cruciate ligament and sprained the postero-lateral ligaments. As at the date of the raising of the action in 2012 the pursuer was still off work.

[5] The pursuer avers a threefold basis of liability against the first defenders, namely (1) a failure by the first defenders to fulfil their common law duty of care, (2) breaches by the first defenders of their duties in terms of the Work at Height Regulations 2005 and (3) breaches by the first defenders of their duties in terms of the Management of Health and Safety at Work Regulations 1999. I should say at once that if any one these cases reaches the threshold for proof then there would be an argument for sending all of them to proof if no additional evidence or court time would be required. The case against the second defender based on alleged breaches of (1) the Occupier's Liability (Scotland) Act 1960 and (2) the Work at Height Regulations 2005 is set for proof anyway.

[6] Going back to the common law case against the first defenders, counsel for the first defenders cites the English case of Reynolds to support his argument that the pursuer's claim at common law is bound to fail. In Reynolds the learned deputy judge found that the "team building" "fun day out" was not an "ordinary incident" but was rather an "extraordinary incident" of the plaintiff's employment with a firm of estate agents. On that basis he found that the accident during one of the activities, a bicycle race, did not happen in the course of the plaintiff's employment; and he held that the plaintiff had no common law remedy against the firm on the basis of the firm's direct liability to the plaintiff qua employee. Because of his finding that there was no course of employment at the material time, the learned deputy judge necessarily concluded that the defendant firm were not liable as employers in terms of the Personal Protective Equipment Regulations 2002 for failing to provide cycle helmets.

[7] I do not find Reynolds altogether persuasive on the "course of employment" point. The distinction drawn by the learned deputy judge between "ordinary" and "extraordinary" incidents of employment is not sourced. The phrase "ordinary incident of employment" may have a deceptive familiarity because of its use to mean a definitional or standard term of contracts of employment. In the present context my feeling would be that if an activity is incidental, in the sense of being a minor accompanying feature, it does not matter whether it is ordinarily or extraordinarily incidental: in both situations it is capable of being within the course of employment. Further, the textbook and cases cited to me, including Reynolds, support the view that whether or not an incidental activity is within the course of employment is something to be decided once the whole facts and circumstances have been ascertained [Munkman on Employer's Liability, 15th edn, (London, 2009), §§ 2.48-2.49, 4.68-4.71; Reg v National Insurance Commissioner Ex p Michael [1977] 1 WLR 109; Faulkner v Chief Adjudication Officer (CA) [1994] PIQR P244; Nancollas v Insurance Officer [1985] 1 WLR 109; Smith v Stages and Anr [1989] 1 AC 928; Sharp v Highland & Islands Fire Board and Another [2005] CSOH 111, 18 August 2005; Reynolds v Strutt & Parker LLP [2011] EWHC 2263 (Ch), 15 July 2011, HHJ Oliver-Jones].

[8] First defenders' counsel also submits that the pursuer has not averred sufficient detail to bring the team-building exercise within the scope of his employment. I reject this submission. The ch 43 rules require a pursuer to aver "only those facts necessary to establish the claim". The averment that the pursuer "was working in the course of his employment" satisfies the rule. The pursuer's written submissions state that the pursuer's evidence will be "that he had no choice but to attend the event". These words could, with advantage, have been included in the pleadings: but their absence is not fatal. There is no suggestion that the first defenders are prejudiced by lack of fair notice of the specific facts from which the pursuer derives the proposition that he was "in the course of his employment". If there is a real factual issue here I should have expected the first defenders in response to state the factual basis on which they contend that the pursuer was not "working in the course of his employment" rather than simply meeting the averment to that effect with a blanket denial [RCS 43.2(1)(a); Higgins v DHL International (UK) Ltd 2003 SLT 1301; Clifton v Hays and Others, 17 January 2004, Lady Smith; McGowan v W & J R Watson Ltd 2007 SC 272].

[9] In any event Reynolds supports the view that a common law remedy may be available against employers, if not as employers simpliciter then as organisers of team-building away-days. The learned deputy judge said:

"Although the event was not in the course of employment, one cannot, in my judgment, simply ignore the relationship of employer and employee... It is, in my judgment, from that relationship, as well as the relationship of organiser and attendee, that the duty of care arise[s]. In my judgment, the duty on the defendant in this case was... to take such reasonable care as any reasonable employer would take (a) to ensure that employees were reasonably safe in engaging in the activities which the employer had arranged and (b) in the making and management of the arrangements that were being organised."

On this branch of the case the conclusion in Reynolds was that the defendant firm's failure to conduct a risk assessment was negligent at common law and directly caused the plaintiff's injury. In the present case the pursuer avers that he was an employee of the first defenders, that the first defenders organised the team building exercise for a group of employees and that the first defenders failed to conduct a risk assessment. He also avers that it was foreseeable that persons using the monkey bars would fall from the bars. This averment is capable of being read in my view as being directed against the first defenders as well as against the second defender. I am also prepared to read "foreseeable" as meaning "reasonably foreseeable", and to understand that a reasonably foreseeable risk of injury is implied. It is not necessary that the precise mechanism should be foreseeable. There is no complaint about the pursuer's failure to spell out what particular safety measure or measures would have prevented the accident. Counsel for the first defenders, citing Caparo, suggests that it was not "fair, just and reasonable" to imply a duty of care to make a risk assessment at common law. On the contrary I think it might well be fair, just and reasonable, depending on the precise circumstances, to do just that; and disagreeing with the submissions for the first defenders, I find that the case against the first defenders as organisers is relevant for inquiry [Reynolds v Strutt & Parker LLP [2011] EWHC 2263 (Ch), 15 July 2011, HHJ Oliver-Jones at §§ 41-42; Hughes v Lord Advocate 1963 SC (HL) 31; Caparo Industries Plc v Dickman [1990] 2 AC 605 at 617H-618B per Lord Bridge of Harwich].

[10] Curiously pursuer's counsel does not espouse the common law, employers-as-organisers case that is open to him on his pleadings by virtue of the Reynolds precedent; and I have to decide whether to allow the claim to go to proof on an argument that has not been advanced. With some reluctance and having in view the substantive justice of the situation I am prepared to allow a proof on this basis as well. The pursuer's averment at article 6 of the summons simply states, in accordance with RCS 43.2(1) and form 43.2-A, that the claim is based on "the first defenders' (a) fault at common law..." without restricting the matter to employers' liability at common law. The truth is, I suspect, that the pursuer's focus is on the course-of-employment case because he sees it as a pathway to the sunlit uplands and lush pastures of strict statutory liability. The journal article cited by counsel for the pursuer tells us that an advantage - by which is meant a one-sided advantage - of treating team-building away-days as falling within the scope of employment is that "employees will have the benefit, where appropriate, of the protection afforded by the 1974 Act and the regulations made thereunder". I also suspect that the practical issue for employers is not so much about the scope of employment as such as about the scope of their employers' liability policies which tend, on one view, to emphasise the carrying out of work and the doing of business [D Brodie, "Away Days and Employers' Liability: Reynolds v Strutt and Parker", Ind Law J (2012) 41(1): 93-97].

[11] The Health and Safety at Work Act 1974 section 52(1) provides that, for the purposes of the relevant part of the Act, (a) "'work' means work as an employee or a self-employed person" and (b) "an employee is at work throughout the time when he is in the course of his employment". Under sub-section (2)(a) regulations may extend the meaning of "work" and "at work". As far as the regulations made under the 1974 Act are concerned, it is convenient to address first the issue about the application of the Management of Health and Safety at Work Regulations 1999, regulations 3, 4, 5 and 10 on which the pursuer founds. The 1999 Regulations impose a statutory duty on employers to undertake risk assessments. The first defenders' argument is that the claim under these regulations is irrelevant because "the pursuer was not carrying out 'work' at the time he sustained his accident". This argument is beside the point in that the regulations address the issue of risks to which employees are exposed "whilst they are at work", that is, applying the principal definition, while they are in the course of their employment (whether or not they are actually doing a specific job of work at the time).

[12] A supplementary argument for the first defenders is that the case under the 1999 Regulations is irrelevant because, citing Smith v Northamptonshire CC, the monkey bars did not constitute "equipment provided or used for the first defenders' business or undertaking". I reject this argument too. Smith was an appellate committee decision on the Provision and Use of Work Equipment Regulations 1998; it was a 3:2 majority decision; the majority was divided in its reasoning; and the dissent of Lord Hope of Craighead and Baroness Hale of Richmond is cogent. It would be unsafe to extend the principle of Smith beyond its own strict, fact-specific ratio to a case like the present one under the different, 1999 Regulations. Mrs Smith did not plead the remedy now sought by the present pursuer in terms of 1999 Regulations [Smith v Northamptonshire County Council [2009] ICR 734; Management of Health and Safety at Work Regulations 1999 SI 1999/3242 (as amended) reg. 22].

[13] The first defenders may have a stronger argument in relation to the relevancy of the pursuer's claim under the Work at Height Regulations 2005, regulations 4, 6 and 7. It is not contested that if the assault course exercise were "work" then negotiating the water obstacle using the monkey bars was "work at height"; and it is not contested that if the pursuer were undertaking "work at height", regulations 4 and 6 imposed relevant duties. But can what the pursuer was doing on the monkey bars be described as "work" within the meaning of the 2005 Regulations? "Work" in terms of the regulations is something to be "carried out"; and "carrying out work" is not synonymous with the wider concept of "being at work". See the definition of "work at height" in regulation 2 and the extension of protection to "persons at work" in terms of regulations 9 and 11, for example. I would say that it is a possible understanding of the picture painted by the pursuer's pleadings that "work" of a sort was being "carried out".

[14] Accepting that the pursuer and his colleagues were "carrying out" team-building "work", there is also a sense in which the first defenders "selected" and "provided" the assault course and the individual obstacles that made up the course, including the monkey bars, for that "work". On this approach, contrary to the submissions for the first defenders, Smith v Northamptonshire CC is not necessarily determinative against the pursuer. In any event the 2005 Regulations are not just about selecting and providing equipment for work at height. Regulations 4 and 5 include but are not limited to duties in relation to the "selection" and "provision", respectively, of "work equipment" for work at height. I therefore take the view that questions about the application of the 2005 Regulations are matters that can properly be reserved for answer once the facts are established by proof.

[15] So far I have dealt with the issues of principle. The first defenders also complain, as I understand it, that - even if the statutory regulations are in principle applicable - there is no basis in the pursuer's pleadings to support a case under regulation 10 of the 1999 Regulations and regulation 7 of the 2005 Regulations. Regulation 10 of the 1999 Regulations imposes a duty to provide information about identified risks and preventive and protective measures. Regulation 7 of the 2005 Regulations imposes a duty in selecting equipment for work at height (a) to give collective protection measures priority over personal protection measures and (b) to take account of seven factors bearing on risk and the mitigation of risk including the distance and consequences of a potential fall. I have some sympathy for the first defenders: but the complaint is not about lack of fair notice, it is about the absence of averments linking the pursuer's accident to the duties in question. If the pursuer is correct in saying that no risk assessment was carried out then presumably none of the contingent duties was implemented and it really comes back to there having been, allegedly, no risk assessment. On this basis I do not think it unreasonable to allow these matters to go to proof as well.

Conclusion and decision

[16] In conclusion I have to add a word about the question whether it is fair just and reasonable, whether at common law or under the regulations, to saddle employers with liability for accidents during team-building exercises. Pursuer's counsel uses the familiar expression "non-delegable duties" to explain the position at common law. In practical terms it is not duties that are non-delegable but the immediate liabilities to employees that arise from failure and breach. There is nothing to stop employers contracting out the organisation, provision of equipment and management of risk to third-party providers. Employers and providers can regulate where liability lies and how it is to be apportioned between them. That being so, it is not obviously inappropriate to fix liability on employers for accidents that happen to their employees during courses bought in from third parties.

[17] My decision is that the whole case as currently pled is sufficiently relevant for proof and proof will be allowed. I have not decided that the case is sound in law. That is something to be decided after the evidence is led. Nothing that I have said above binds the fact-finding decision-maker. If it turns out that the first defenders are prejudiced at proof by surprise lines of evidence it will be open to grant them the usual procedural remedies at the expense of the pursuer. The expenses of and relating to the Procedure Roll debate are reserved in the meantime.