MARK SHACKLETON AGAINST M-I DRILLING FLUIDS UK LTD
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 82
PD2310/15
OPINION OF LADY WOLFFE
In the cause
MARK SHACKLETON
Pursuer;
against
M-I DRILLING FLUIDS UK LTD
Defenders:
Pursuer: Forbes; Brodies
Defenders: Cormack, Solicitor Advocate; Pinsent Masons LLP
15 June 2016
Introduction
[1] The pursuer in this action seeks damages against his former employer for personal injuries. While it is not disputed that the pursuer suffered an injury at work as the result of an accident at the defenders' premises at Unit 6, Burnside Industrial Estate, Dyce, Aberdeen on 4 June 2013 ("the premises"), the precise circumstances of the accident were not agreed. The defenders dispute liability. On the hypothesis that the defenders were at fault, they argued that the pursuer had materially contributed to his accident.
[2] In respect of the injuries sustained, it was a matter of agreement that as a result of the accident, however it may have occurred, the pursuer suffered a soft tissue injury to his lower back (lumbar spine) and was unfit for his work between 4 June 2013 and 30 September 2014. He attended at his GP and underwent extensive physiotherapy. His symptoms and injury had resolved by the end of September 2014 and there are no on-going consequences of the injury. Heads of damage coinciding with these features of his claim were agreed. However, the pursuer also sought additional heads in the form of (i) a claim for alleged loss of bonuses for the years 2013 and 2014, and (ii) a claim for alleged wage loss between 30 September 2014 and 24 October 2014 to reflect, as it was put in submissions, some compensation to allow for the time to secure a new job. The pursuer did secure other employment by about late October 2014 and was indeed in that employment as at the date of the proof.
[3] Accordingly, the primary issues on the merits were whether, on the evidence, the pursuer has established liability against the defenders and, if so, the extent of any finding of contributory negligence.
Background
[4] The background to the pursuer’s case is straightforward. On 4 June 2013, the pursuer was working in the course of his employment with the defenders. He was employed as a sales manager based in the premises in Aberdeen. As a salesman, he regularly travelled to meet customers and potential customers. On the day of the accident, he had returned to the premises at about 1 pm. The two only other individuals who regularly worked in the premises were Mr Stephen Early and Mr Ireneusz Tomcyk. They were both based in the workshop that formed the other half of the premises. Neither of these individuals gave evidence.
[5] The defenders occupied the premises at the material time, although at some point after the date of the accident the defenders vacated the premises and a different company, Precision Pumping and Metering Limited, occupied them thereafter. So far as relevant for present purposes, the layout of the premises is shown on the plan (“the plan”) contained in Appendix 3 to the report of the defenders' expert, Mr Rawden (produced at no 7/3 of Process). The premises were divided into two areas: an office area with associated rooms, and a workshop area. As the pursuer offered a rationale for moving certain boxes by reason of the risk he felt they posed as impeding access to a fire exit, it is relevant to note that as at the date of the accident there were only three employees based within the premises, namely, the pursuer, and the two individuals based in the workshop. In practical terms, the pursuer was the only employee of the defenders based at the premises who worked in the office part of the premises.
[6] The accident occurred shortly after the pursuer had arrived at the premises following a morning of meetings outwith the premises. On approaching his office, the pursuer noted some boxes in the corner of the corridor outside of his office. The accident was, in a practical sense, precipitated by the pursuer’s decision to move these boxes. It was as he was carrying one of these boxes, through a doorway (‘the doorway’) and into a hallway, that he fell. It is necessary to describe some of the physical features of the layout of the premises, the state of the floor at the doorway and into this hallway.
[7] Upon entering the premises from the main entrance the pursuer would enter the waiting area and then turn left along a corridor. His sales office was the second door to the left. (The pursuer's individual office is shown marked "sales office" on the plan.) Continuing past the door to the pursuer’s sales office the corridor turns right and almost immediately one passes through the doorway into an area marked as “hallway”. The hallway gave access to other areas of the premises. It also led to an exit from the yard area. The hallway immediately south of the doorway was relatively narrow before it widened out into a broader part of the hallway. The accident occurred in the narrower part of this hallway.
[8] The premises have three fire exits to the outside: the main entrance already referred to; the fire exit accessed via the yard (just described); and one shown on the plan next to the warehouse. The closest fire exit accessed by someone coming from the pursuer’s sales office through the doorway would be via the hallway and then to turn left and out through the yard and its exit. The main entrance provided an alternative fire exit in the opposite direction, that is by the pursuer proceeding out of his office and turning right.
[9] In terms of the floor in the vicinity of the doorway on the day of the accident, the floor area immediately to the north of the doorway was a light grey hard surface (assumed to be concrete), as was most of the rest of the floor in the corridor and hallway. However, at the doorway there was a square or rectangular-shaped darker grey area of floor in the hallway immediately after the doorway as approached from the corridor (i.e. on the “south” side of the doorway, taking the top of the plan as representing “north”). The darker grey area of floor extended about a pace or two south into the hallway from the doorway. It comprised the whole width between the two walls of the hallway immediately to the south of the doorway. This darker grey area appeared to correspond with what might have been a covering mat, but any such mat was not in place at the time of the pursuer’s accident. It was along the south-most edge of this rectangular darker area that there was a chip or indent in the floor.
[10] The defender’s expert, Mr Rawden had visited the premises on 28 January 2016. On that occasion the defenders’ successors as occupiers of the premises provided him with the plan. Mr Rawden marked the approximate location of the chip on this plan. The location of the chip was also shown on the photographs numbers 6 and 7 taken by Mr Rawden on the occasion of his site visit, and produced in his Report (no 7/3/22 of process).
[11] The shape of the chip may be described as a croissant. Its orientation was as a flattened “u”, when approached from the pursuer's direction of travel, that is heading south from the corridor through the doorway. (The shape of the chip at the material time is shown in the lower photograph taken by Mr McNally and produced in appendix 4 of 7/8/35.) This meant that the curved edges of the chip were convex, as approached by someone walking from the corridor through the doorway, rather than concave. The defenders' expert indicated that it would be marginally more difficult to catch an edge or tip of a shoe against the convex curve of the chip.
[12] While not formally agreed, there was no challenge to the measurements of the chip made by the defender’s expert, Mr Rawden, and whose means of measuring (by an analogue calliper) were accepted to be more accurate than those of the pursuer’s expert, Mr Taggart. On examination by Mr Rawden in January 2016, he made the following measurements: the chip had a maximum width across (i.e. on an east-west orientation) of 95mm (3.7 in) and a maximum length (i.e. on a north-south axis) of 45mm (1.8 in) long. The depth of the chip, in terms of the difference in level between the surrounding floor surface and the underlying concrete exposed by the chip, varied between 1.6 and 2.9 mm (0.063 to 0.114 ins) i.e. somewhat less than an eighth of an inch. (Mr Rawden also set out these measurements at paragraphs 3.9 and 3.10 of his report.) Given a measurement tolerance of 0.1mm for the calliper instrument used, the chip was no deeper at any point than 3mm. Upon examination of photographs taken by the pursuer's expert, the chip would appear to have become a littler larger at its south-most part in the intervening period since the pursuer’s accident and the edge it now presents is a slightly less regular curve. This slight change was attributed to further spalling of the screed between the date of the pursuer’s accident and the date of the last examination of the chip. Broadly, however, the chip retained the same general shape as shown in the photograph taken the day after the accident by the defenders’ employee, Mr McNally.
[13] The law in this field is well settled. It may assist to set that out before turning to consider the pursuer’s case, and the expert evidence, in more detail.
The Law
[14] The pursuer relies primarily on alleged breaches of regulations 12(1), 12(2) and 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992 (“the Regulations”). (For completeness, I note that the accident occurred before the coming into effect of section 69 of the Enterprise and Regulatory Reform Act 2013 and which concerns accidents occurring on or after 1 October 2013.) In submissions, the pursuer abandoned the case under the Manual Handling Operations Regulations 1992. It was accepted that the case at common law added nothing to the pursuer’s case and it would stand or fall upon the determination of the pursuer’s case under the Regulations.
[15] Regulation 12 of the Regulations concerns “Condition of floors and traffic routes”. So far as material, regulation 12(1) to (3) provides:
“(1) Every floor in a workplace and the surface of every traffic route in a workplace shall be of a construction such that the floor or surface of the traffic route is suitable for the purpose for which it is used.
(2) Without prejudice to the generality of paragraph (1), the requirements in that paragraph shall include requirements that—
(a) the floor, or surface of the traffic route, shall have no hole or slope, or be uneven or slippery so as, in each case, to expose any person to a risk to his health or safety; and
(b) every such floor shall have effective means of drainage where necessary.
(3) So far as is reasonably practicable, every floor in a workplace and the surface of every traffic route in a workplace shall be kept free from obstructions and from any article or substance which may cause a person to slip, trip or fall.”
[16] There was general consensus between the parties as to the case law on the Regulations and how they have been applied in operation. Reading these parts of regulation 12 short, regulation 12(1) is in general terms and requires that every floor and the surface of every traffic route in a workplace is “suitable”. More particularly, regulation 12(2) requires that the floor shall have no hole or slope, nor should it be uneven or slippery “so as, in each case, to expose any person to a risk to his health or safety”. Regulation 12(3) requires that, so far as is reasonably practical, the floor is kept free of “obstructions” that may cause a person to slip, trip or fall. For her part, the pursuer’s counsel, Miss Forbes, argued that the duties were not mutually exclusive, in the sense that a feature of a floor (for the purposes of regulation 12(1)) can also be an obstruction (for the purposes of regulation 12(3). Her position was that the chip was also an “obstruction” for the purposes of regulation 12(3), as well as rendering the floor unsuitable for the purposes of regulations 12(1) and 12(2).
[17] The defence of reasonable practicability is not available in either regulation 12(1) or (2). In a sense, therefore, the duties imposed under regulation 12(1) and 12(2) are “absolute” or “strict”. However, this does not impose an obligation for a perfect floor. It was accepted that regulation 12(1) requires simply that the floor had to be “suitable” for the purpose for which it was used. Whether or not a floor was “suitable” was determined by asking whether there were features of it that posed a risk to health and safety. This was the approach of the Court of Appeal in Palmer v Marks & Spencer [2001] EWCA Civ 1528 (at para 16), and to which both parties made reference. In other words, just because an accident occurs where a person trips, this is not determinative as to whether the floor was not suitable. This was the outcome in Palmer: the door strip over which the claimant in that case had tripped did not render the floor unsuitable. Similarly, the presence of a minor defect in the surface of a floor does not necessarily render it unsuitable. The question asked in Palmer (at para 27) for example, was: was the floor uneven to the extent that it exposed persons to risk of their health or safety?
[18] Furthermore, this question was not answered with the benefit of hindsight. The fact that there had been a tripping accident did not necessarily mean the floor was not suitable. (This was the error made by the lower court in Marks and Spencer.) Proof of unsuitability meant showing that there was a “real risk” of a person using the floor as a means of passage tripping and thereby sustaining injury. In support of that proposition both parties referred to the decision of Lord Hamilton in the case of McGhee v Strathclyde Fire Brigade 2002 SLT 680. In that case a fireman sued in respect of a slippery floor. Lord Hamilton considered that a floor may be slippery by reason of its construction. However, it was only if it was slippery to a degree that it exposed persons to a “real risk” to their health and safety that it was unsuitable in way that sounded in law. Miss Forbes referred to the Court of Appeal’s decision in v Home Office v Lowles EWCA Civ 985 and which had applied Marks and Spencer.
[19] The defenders’ solicitor advocate, Mr Cormack, referred to the decision of the Court of Appeal in Ellis v Bristol City Council [2007] I.C,R 1614. Under reference to that case, he submitted that the court must consider all the relevant factors, as they would have appeared to an employer properly applying his mind to the question of suitability at a time before the relevant accident occurred. The court should then stand back and decide objectively whether, in light of those considerations, it can be said that the floor was suitable for the purpose for which it was used: Ellis at paragraph 44. He stressed that such an assessment was made in the “ordinary world” and he referred to Marks and Spencer at paragraphs 33 and 34. He also referred to a recent decision of Lord Pentland, in Stalker v Greater Glasgow and Clyde Health Board [2013] CSOH 194 at paragraphs 36 and 37, where this approach was followed. In the instant case, he said, the question can be asked: would an ordinary person regard walking over the floor in the hallway of the premises as exposing him to a risk to his health or safety because of the presence of the chip?
[20] In relation to regulation 12(3), Mr Cormack argued that the nature of the duty in regulation 12(3) was approached in the same manner as the duty under regulation 12(1). Mr Cormack stressed that a similar measure of foreseeability was built in (by virtue of the words "which may cause"), with the result that, in order to succeed, the pursuer must prove that immediately prior to his accident there was on the floor an obstruction which presented a real risk that someone might trip: Lord Hamilton in McGhee at paragraph 13, a passage referred to by Lord Pentland in Stalker at paragraph 40.
[21] Miss Forbes argued that the chip was also an “obstruction” within the meaning of regulation 12(3). Under reference to Lowles she argued that a feature of a floor or passageway (such as the step at the top of a ramp, as in Lowles) could also be an obstruction. She stressed that once a pursuer has proved that he was injured as a result of an obstruction, which was one that may cause a person to slip, trip or fall, the burden then shifted to the defenders to plead and prove that it was not reasonably practicable to prevent the presence of that obstruction. A pursuer did not need to prove that the presence of the obstruction, or the risks it posed, was known to or reasonably foreseeable by a defender. She referred to Merseyside Fire and Civil Defence Authority v Bassie [2005] EWCA Civ 1474, where the court said (at para. 11): “No question of knowledge or foreseeability is involved at this stage. The mere presence of a substance which may cause a person to slip is enough to engage the obligation imposed in the Regulation, subject to the reasonably practicable defence, which it is for the employer to prove”. As a consequence, she argued, the defenders had to prove not only that it was not reasonably practicable to remove the obstruction (or the chip, in this case) but also that it was not reasonably practicable to have prevented it getting there in the first place: Johnston v Caddies Wainright [1983] ICR 407, CA. She referred to the case of Burgess v Plymouth City Council [2005] EWCA Civ 1659 as an example of this in operation. For completeness, I note that the defenders do not invoke the defence of reasonably practicability in response to the pursuer’s case under regulation 12(3) of the Regulations. (They did for the purposes of the pursuer’s manual handling case, but this was abandoned in submissions). The defenders’ position was to deny any liability under regulation 12(3).
[22] In the light of these submissions, the questions to be answered in respect of the merits of this case were:
(i) whether the chip rendered the floor unsuitable, in the sense that its presence posed a real risk to the pursuer’s health and safety (the case under regulation12(1) and (2)), and
(ii) whether the chip was an obstruction that might cause a person to trip or fall?
I turn now to consider these questions in the light of the evidence.
The pursuer's case
[23] In his evidence the pursuer explained that when he arrived at the premises about 1 pm on the day of the accident, he noticed a number of boxes in the corridor a little beyond the door to his own sales office. (The pursuer’s evidence varied over time as to the total number of boxes, with a range of between two and eight in total.) The boxes were in the corner of the corridor, where it turns right (or south) towards the doorway. The boxes appeared to contain cleaning materials which had been left by FES, who were the contractors responsible for cleaning the premises and supplying cleaning materials. The boxes were lightweight. Each was no more than a kilo in weight. In overall size they measured 1 by 2 feet (the pursuer’s first estimate in chief) or were about 24 to 30 inches by about 6 to 8 inches by about 4 or 5 inches (the pursuer’s later estimate). Whatever their precise dimensions, the pursuer accepted that when carrying one of these he could readily have shifted it to one side to see where he was going. In the pursuer’s expert’s report, he is reported as stating that he “carried the boxes comfortably”: para 3.08 of 6/13.
[24] The pursuer decided to carry the boxes to put them in an unused room (marked as the “projects office” on the plan). The route he intended to take was from the location of the boxes in the corridor outside his office, to move south along the corridor through the doorway into the hallway and then onto the area marked yard and which gave access to his intended destination. In the course of moving one of the boxes, the pursuer passed through the doorway. As he was moving through the narrower part of the hallway immediately to the south of the doorway towards the yard entrance and projects office, and while walking sideways, the pursuer sustained an accident in which he fell and sustained injury. He called upon and was attended by Mr Early and Mr Tomcyk. He asked the former to put a note in the accident book but this could not be found.
[25] On the day following the day of the accident, the pursuer sent an email to his manager. The text of the pursuer's email is contained in the details section of the serious accident/non-conformance report (produced at no 7/8 of process). So far as material, the pursuer reported that:
“…yesterday at …[the premises]….I was in the process of moving boxes of cleaning materials left by the Cleaning contractor (FES) these boxes had to been left positioned in a manor [sic] were obstructing the emergency exit pathway, however during the operation of moving these boxes (one at a time) I fell heavily in the doorway with the boxes in hand tripping up on the even floor-way leading to the two meeting rooms…”
After narrating that his back had worsened over night, he continued:
“I have asked Steve to enter a note in the accident book (as we could not find the book yesterday), however I will ask Steve to maybe get FES in and get them to check the uneven concrete floor and especially the floor indentation which is dangerous, and was maybe the cause if the accident…”
It will be noted that in this email the pursuer attributed his fall to two possible features of the floor: the unevenness of the floor, which he presumed corresponded to the change in colour, and the indentation in the floor. While in this passage, it is ambiguous as to whether the pursuer was carrying one or more than one box at the time of his fall, he was adamant in his oral evidence at proof that he carried only one box at a time.
[26] Mr Jim McNally, who was the defenders' UK Quality, Health, Safety and Environmental (QHSE) Manager at the time carried out an accident investigation. He visited the premises the day following the pursuer’s accident. He took a few photos of the floor. These were produced in process. In terms of his findings as to the condition of the floor, he stated:
“Looking at the floor there does seem to be an area where there seems to have been some covering removed. You can see this as the grey area. However, there was no step down or edge between the surfaces which I would say presented a trip hazard. The only thing which I could see which presented an edge was a small piece of the floor which was missing. I have shown this in the image. Th[is was] approximately 4-5 cms long with 1-2mm of depth. The surface between each of these sections (at doorway, through grey patch to adjoining floor did seem to me have the same texture. One was not slippy and the next rough. All appeared to be the same.”
In relation to the boxes, he found that these “…did not appear to be bulky or heavy and looked as if they could be carried comfortably”. These observations are recorded in the accident report produced at 7/8/2 of process in the “follow up” section. By way of a conclusion, he stated: “In terms of determining the actual cause, I can’t see anything obvious at the time.” As a matter of fact, the defenders undertook no remedial steps and the floor remained uncovered, with the chip unrepaired at the time of Mr Rawden’s visit 18 months later, in late January 2016. There was no evidence that there was any other incident subsequent to the pursuer’s accident.
[27] In oral evidence, the pursuer explained he was moving the boxes one at a time. Given the relative narrowness of the passageway at the doorway, he had manoeuvred sideways through the door. He said that his foot had tripped over something “solid and thick”. He had not noticed the mat was missing until after his fall. When asked specifically what caused his fall, he said that there appeared to be a difference in level of the floor from where the mat had been. He also referred to the “hole in the floor”. When the terms of his email were put to him, he stated he was “99.9% sure” that it was the “hole” that had caused him to fall. A little later in his evidence he stated that it was his right heel that had caught.
[28] In relation to the merits, the pursuer was cross-examined extensively about the prior statements he had given about his accident, the number of boxes he said he was carrying, his footwear on the day, whether it was necessary for him to go sideways, his position in relation to the chip, and the nature of the manual handling training he had received a few weeks previously. In relation to the latter, the pursuer accepted that he had attended a 4 hours training from his employer’s parent company, Schlumberger, on its Injury Protection Programme (or ‘SIPP’) for office workers a few weeks previously, on 13 May 2014. (The course materials were produced at 7/1 of process and some of these were put to the purser.) One of the learning points put to the pursuer from the course materials was that in respect of any lift, there was a “mental part”: “Is the lift necessary?” and “look for obstructions”, and a “physical part”, including the instruction to “walk the path before you move the object”. It is sufficient to note that the pursuer accepted in cross-examination that he had this SIPP training. He accepted that he had not looked where he was placing his feet at the time. He accepted that the boxes were of a size and dimension that he could readily have shifted the box he was carrying sideways to look where he was placing his feet, but that he did not do so. He accepted that he had not “walked the path” before deciding to move the boxes.
[29] The pursuer's case on Record in respect of the cause of the accident is as follows. He avers that:
“[He] picked one of the boxes up in order to move it. He carried the box along the passageway. A section of the floor covering along the passageway had been removed. The floor covering had been placed on a recessed section of flooring. With the floor covering removed, the surface of the recessed section of flooring was at a lower level than the surrounding flooring. The removed section of floor covering was adjacent to a doorway. The removal of the floor covering had exposed a chip in the concrete underneath. The pursuer moved through the doorway sideways. His right foot caught on the edge of the chip. His foot then caught on the edge between the recessed section of flooring and the surrounding flooring. He fell to the floor suffering loss, injury and damage.” (Highlighting added.)
At the close of the pursuer’s proof his counsel sought to delete the averment I have highlighted. I refused that motion as unnecessary.
[30] In addition to the features of the floor already described, it is sufficient to note at this point that on the pursuer’s evidence, there had previously been a mat in place and which corresponded to the darker grey area immediately to the south of the doorway. He had not noticed its removal until after the accident.
[31] It is not necessary fully to rehearse the totality of pursuer’s evidence. It is now common ground that there was in fact no recessed section of flooring and that there was no such change in level. Accordingly, it could not be the case that the pursuer's foot caught on an edge between a “recessed” section of flooring and the surrounding area, as averred. The pursuer’s case is therefore critically dependent upon his proving that his right foot caught on the edge of the chip and that this is what caused him to fall. He must also establish that the presence of the chip posed a risk of injury to him and constituted a breach of duty by the defenders. I turn first to consider the evidence about the chip and whether it posed the risk to the safety of the pursuer as alleged. In this context, it is useful to note the evidence of the pursuer’s second witness, Mr McNally.
[32] Mr McNally was the defenders’ health and safety person at the time responsible, inter alia, for the state of the premises. He had conducted the physical investigation of the floor and taken photos the day after the pursuer’s accident. He was trying to identify what it was that the pursuer had tripped on. Under reference to the photos he had taken, he confirmed in his evidence that while there was a change in colour depicted in the photos, there was no change of level. Further, while there was an appearance of swirls on the photo, suggestive of the presence of adhesive that might have been used to secure any mat or other floor covering, he confirmed that this was all smooth. There was no stickiness or tackiness at this point, and there was no difference in degree of slipperiness (or otherwise) of the floor as between the darker and lighter grey areas. He did not regard the chip as significant. Any defect was purely aesthetic. In short, there was in his view nothing for the pursuer to trip on. Under cross-examination, he confirmed that the chip did not pose a trip hazard. He also confirmed that the subsequent occupiers had not made any change to the floor. They had not replaced the mat. They had not filled in the chip. In respect of the pursuer’s decision to move the boxes, he stated in re-examination that the pursuer would not have been expected to move the boxes. The defenders and Schlumberger were safety conscious and had a system of reporting. If the pursuer had felt that the boxes posed a risk, there was a safety system by which he could have reported any risk. He should have left the boxes where they were. The location of the boxes was not a critical path in terms of fire safety.
[33] The pursuer’s last witness was his expert, Mr Taggart. The defenders only led one witness, also an expert, Mr Rawden. It is convenient to consider their evidence together. I do not trouble to set out their respective qualifications and experience. These matters are contained in their reports, and to which I have had regard.
The experts’ evidence
[34] I have noted the measurements of the chip above. Both parties instructed experts to opine on the features of the chip and to consider these in the light of the relevant regulations and Health and Safety guidance.
The pursuer’s expert
[35] The pursuer’s expert, Mr Taggart, had prepared two reports (lodged at 6/2 and 6/13). At the time he prepared his first report (lodged at 6/2) he had not made a site inspection of the premises. He subsequently did so and his second report (no 6/13 of process) supersedes his first report. Unless indicated otherwise, all references are to his second report. In relation to the chip, he stated (at para 4.04) that “[t]his edge, although relatively small, presented a trip hazard to pedestrians.” However, the substance of his opinion was that the chip presented a risk, especially in combination with the following factors:
(i) that the pursuer was walking sideways,
(ii) that he did not look to see where he was going, and
(iii) that the removal of the mat (presumed to be the night before the accident) meant that the pursuer was presented with the unfamiliarity of the now uncovered floor (whatever the feature of that floor).
Mr Taggart’s first report had been prepared by reference, inter alia, to the Closed Record (and containing the passage about the change of floor level set out above) but without the benefit of a site visit. Mr Taggart’s second report was prepared after a site visit in May 2015. One of the few changes he made to his first report was to add a sentence, at the end of para 3.11 of his second report, that there was no change of level in the floor at the area in question. Somewhat curiously, he also deleted this from his narration of the pursuer’s account (at the end of para 4.04) the passage that had appeared in his first report:
“In addition, [the pursuer] told me that there was a difference in level between the light grey concrete surface and the darker section of the passageway due to the floor finish being removed”.
[36] What is perhaps most telling between Mr Taggart’s two reports is that, as a consequence of his site visit, he was aware that there was no change of level in the floor, corresponding to the change of colour from dark to light grey, as asserted by the pursuer. However, this did not appear to cause him to reconsider his opinion. At most, it would seem, all he did was make certain updating changes to his report. In his first report, for example, he had identified (at para 4.09) as a factor of additional risk any hitherto unknown feature of the floor:
“Whilst carrying the box, [the pursuer], would not be able to look where he was placing his feet and would be required to trust his memory that the surface was even, having passed through the area many times before. He told me he was unaware that he flooring had been removed prior to his accident and therefore he would not have been expecting there to be a change of level and a missing piece of concrete positioned close the to the centre of the passageway causing him to trip.” (Emphasis added.)
In the second report, he deleted the words I have highlighted but he did not revisit the issue of causation asserted at the end of that sentence, notwithstanding that there has been what might be understood to be a significant change in the factual material before him about the state of the floor.
[37] In relation to the additional factors, Mr Taggart’s view was that walking sideways was inherently more dangerous than walking forwards. He assumed that the pursuer did not, or was not able to, look where he was going. He also assumed that the removal of the mat presented the pursuer with features that were unexpected and in which the pursuer would not have had time to acquire the muscle memory, as it were, to accommodate any unusual feature.
[38] In evidence, Mr Taggart was initially not prepared to consider the chip in isolation from the three factors he relied on (and set out three paragraphs above) as creating the trip hazard. He eventually accepted the proposition that the starting point was first to consider the chip. If the chip did not itself pose a risk, the additional risk factors he identified were irrelevant. He accepted that not every imperfection by way of a minor chip or indentation in a floor surface posed a risk. However, there would come a point where such a defect did pose an obvious or real risk. In response to a question about where on that spectrum such a risk would in reality begin to arise, he accepted that this would be from a depth of about 3 mm or greater. He did not seek further to explain this position.
The defenders’ expert
[39] Mr Rawden visited the premises in late January 2016. He took the measurements already noted above. (He also noted a slight slope in the floor adjacent to the door, but it was accepted that this was of no material consequence.) He also made a video which recorded him walking back and forth over the chip, sliding his shoe across it from various directions and also presenting his shoe at an exaggerated angle to the edge of the chip. So far as this exercise disclosed, the edge of the shoe caught occasionally on the edge of the chip, but only when presented at an exaggerated angle that did not correspond to normal walking, whether straight on or sideways. Such a catching of the foot could equally, in his view, simply be caused by the effect of friction operating on a shoe presented at such an angle. In respect of the chip itself, in his view it was insignificant in dimensional terms and, when compared with every day walking situations, it “hardly merits attention”: para 5.4 of his report (at no 7/3 of process). He gave instances of other permitted floor coverings in other contexts where indentations of this or greater depths (e.g. floor grating) were permitted. He concluded that the small area of the chip, and in particular its limited depth, did not represent a hazard that would foreseeably cause a trip. The chip was not large enough for a sufficiently large part of a shoe to catch. It was too shallow to present a trip hazard. It did not present a foreseeable or material trip risk.
[40] In cross examination, Mr Rawden accepted that the exercise he had carried out and video-taped was in the nature of trials and was not “scientific”. There was a challenge to his reference to other flooring materials where such indentations were permitted, on the basis that these would not be present in an office. However, this misses Mr Rawden’s point that the presence of indentations in these other surfaces was not regarded as inherently unsafe or as posing a trip hazard. He was also challenged that he was not a specialist in gaits. He accepted this, too. He accepted that he had been able to get a shoe to catch at the edge of the chip. To do so, however, he had to present the shoe with great force and at a wholly artificial angle. In his view, that angle was not consistent with a normal gait, whether walking forwards or sideways. In any event, friction was an equally likely cause of the catching a shoe presented with that force at that angle, as recorded on the video. He did not profess expertise in the variety of human gaits, but he did bring to bear his observations of persons walking and his expertise and experience in assessing the floor surfaces over which people walked. In the light of all of this evidence, Miss Forbes was driven to argue that even if a shoe was only really susceptible to being trapped or caught when presented with force at an abnormal angle, that still rendered the floor unsuitable and risky in the relevant sense.
[41] In her submissions, Miss Forbes rehearsed the evidence of the experts. She commended the evidence of Mr Taggart. In relation to Mr Rawden, she commented on certain deficiencies in his methods: he had not ascertained the kind of shoe the pursuer was wearing on the day; in his video he had not replicated the sidestepping motion of the pursuer; he did not express an opinion as to the pursuer’s precise location in relation to the chip, if the pursuer were sidestepping through the narrow part of the hallway as he passed through the door; his refusal to accept that the heel of a person side-stepping might come into contact horizontally with the edge of the chip.
[42] Mr Cormack challenged the pursuer’s expert’s evidence. He argued that there was no real or foreseeable risk here that the chip might result in a trip. It was submitted that the contrary evidence of Mr Taggart should not be accepted in preference to that of Mr Rawden. He advanced the following arguments:
- Mr Taggart's approach was generally much less thorough especially bearing in mind that, unlike Mr Rawden, he had access to speak to the pursuer.
- He was prepared initially to proceed without a site inspection.He continued to get the date of the accident wrong in his second report.
- He did not ask the pursuer which part of his foot he said caught the chip.
- He did not ask the pursuer what shoes he was wearing at the time.
- He did not have a plan of the site available to him when he spoke to the pursuer.
- He did not set out in his report the full understanding which he gained from speaking to the pursuer, for example as to the pursuer's direction of travel at the time.
- He did not measure the dimensions of the chip when he actually visited the site, other than the depth.
- Even when measuring the depth, he did not use a calliper probe as Mr Rawden did.Mr Taggart accepted in cross- examination that it would have been better to use a probe rather than a ruler.
- Mr Taggart did not ask to see the actual pleadings in this case.
- Mr Taggart took no photographs or video himself and in the result had nothing to show the court in terms of his suggested efforts to contact the side of his foot with the edge of the chip.
- As a result of his site inspection, he simply deleted references to the change in level from the operative part of his opinion without any explanation.
- He did not appear to see it as part of his function to form an independent view as to whether what he was told had happened made sense.
[43] Viewed fairly, it was argued that Mr Taggart approached the evaluation of risk with the benefit of hindsight, having regard to the occurrence of the accident as understood by him, rather than assessing the position at the point of time before the accident.
[44] Mr Taggart seemed to form the view that there was a trip risk, having regard to the effect of unpredictability or lack of advance knowledge about the chip. He did not however appear really to consider the logically prior question of whether there was actually a real mechanism of contact between the shoe and chip so that the chip could cause a trip in the first place.
[45] Taking the chip in the context of the floor, he argued that the unpredictability rationale was undermined by Mr Taggart accepting, in cross-examination, that there was a marked degree of contrast between the light grey and the dark grey areas on the floor and that a person walking over the relevant area could be expected to be aware of a surface change especially if a mat had been removed, as the pursuer said in evidence. In the result, a person walking over the area would in effect have been alerted to something being different from any expectations they may have had as a result of familiarity. The pursuer himself could not exclude the possibility that he had been over the area already because the accident may not have occurred on the carrying of the first box.
Consideration of the expert evidence
[46] I have no hesitation in preferring the evidence of Mr Rawden. His measurements were more accurate and his examination was more thorough. More importantly, and in contrast to Mr Taggart, he was willing to entertain hypotheses put to him and, again in contrast to Mr Taggart, he was able to defend his conclusions and to offer cogent reasons for the views that he expressed. I accept his evidence that, while it was possible to catch a shoe in the chip, this was only if the shoe were presented at an angle that would not arise with normal walking from any direction. While not an expert in gait analysis, it seems to me that Mr Rawden was applying his common sense and experience to the floor he had been asked to examine. He had tried a variety of presentations of the shoe to the chip and had troubled to record this; something the pursuer’s expert had not done. It was not suggested that the pursuer’s expert had any greater expertise in terms of gait analysis. The tenor of Mr Taggart’s evidence was simply to assert that a shoe could be caught on the edge of the chip. This had to be by reason of its depth because he really offered no other considered analysis having regard to any other features of the chip. He was unable to explain in what presentation a shoe might catch against the chip’s edge.
[47] I accept Mr Rawden’s evidence that the dimensions of the chip did not pose a trip hazard. I am fortified in this view by the evidence of Mr McNally. While not presented as an expert witness, he was also trained and experienced in the field of health and safety. Having examined the floor carefully the day following the pursuer’s accident, he could detect nothing that reasonably posed a trip hazard. The chip, in particular its depth, was simply too shallow to present a risk. This was also the position accepted by the pursuer’s own expert. As noted above, he accepted in evidence that one needed a depth of at least about 3mm before any genuine trip hazard began to arise. Accordingly, apart from the pursuer’s own perception- based on his memory of events of three years ago - there was no other evidence to support the pursuer’s position that the dimensions of the chip posed a trip or other risk to health and safety.
[48] Given that finding, it matters not that the pursuer was walking sideways or that it was a new feature that the mat had been removed (being two of the three additional factors relied upon by Mr Taggart.). I accept the evidence of Mr Rawden that walking sideways is not inherently more dangerous, just more awkward. I accept his evidence that, for a person walking with a normal sideways gait, the chip presented no real risk. In relation to Mr Taggart’s third factor, of the pursuer not looking where he was going, I will deal with this under the issue of contributory negligence, below.
Determination of the merits
[49] What then of the pursuer’s case under regulation 12(1), read together with regulation 12(2)? Did the presence of the chip render the floor of the hallway unsuitable, in the sense of posing a real risk to the health and safety of those such as the pursuer who used it to move from one part of the premises to another?
[50] As the cases make clear, the fact that there has been a tripping accident does not in itself mean that the floor is unsuitable or that there is any defect which poses a risk to health and safety. I emphasise this because the pursuer's expert, Mr Taggart, appeared to proceed from the basis that, because there had been an accident, the floor must have been unsuitable (for the purposes of regulation 12(1)) and the defect must have posed a real risk (for the purposes of regulation 12(2)). As he explained his approach in the evidence, he started from the fact that there was an accident and then he looked for additional factors (such as those identified in para [35], above) to “build up” the risk. In doing so, however, in my view he falls into the same error as the first instance recorder in the case of Palmer (see para 3 thereof); an approach which was not supported in argument before the Court of Appeal in that case (para 12), and which was rejected as wrong in law. As the Court of Appeal said, this matter is not approached with the benefit of hindsight.
[51] While the duties imposed in regulations 12(1) and 12(2) are absolute, in the sense that they are not qualified by what was reasonably practicable, they still require a qualitative assessment of whether the floor was “suitable” (for the purposes of regulation 12(1)) or whether any specific feature of it (being a hole or slope or unevenness), and judging those matters from a health and safety point of view, posed a risk to safety (for the purposes of regulation 12(2)). This reflects the approach of the Court of Appeal in Palmer (at para 16). In Palmer, the Court of Appeal approached both of those provisions together. I do so in this case, too.
[52] The starting point, therefore, is to consider the features of the chip and to ask if it posed a real risk to health or safety of users. If the chip was of a minor character such that it posed no risk, or any risk it posed was of a de minimus character and not a real one, there was no breach of the Regulations. The pursuer's expert was initially reluctant to approach matters in this way. As I have noted, his starting point was to assume that because there had been an accident there were breaches of regulations 12(1) and 12(2). He then endeavoured, as he said, to build up a picture of the risk. He identified the three further factors already referred to, as exacerbating that risk. He resisted looking at the features of the chip in isolation but preferred to, as he said, contextualise them. When pressed, however, he accepted that not every defect posed a risk or real risk. The principal feature he appeared to identify was the depth of the hard edge the chip presented, in relation to the rest of the undamaged floor surface. On the hypothesis that the risk posed by the chip was the depth of the hard edge it presented, he agreed that certain depths would simply be too shallow to present a real risk and that, on the other hand, there are depths that would obviously present a risk. I have already noted his evidence that a risk to health and safety would only begin to arise with a minimum depth of about 3mm. This evidence is, in my view, fatal to the pursuer's case. On that evidence, any risk posed was not a “real risk”, to borrow the distinction made by Lord Hamilton in McGhee. I accept the evidence of both Mr McNally, who examined the floor the day after the pursuers accident, and that of Mr Rawden, who examined and measured the floor in late January 2016, that there was no change of level, as averred by the pursuer, and that the chip (in particular its depth) was too insignificant to impose any risk to the health and safety of users of the premises.
[53] On the whole evidence I find that the depth of the chip is simply too shallow to pose any relevant risk to the health and safety of the pursuer. I therefore hold that the presence of the chip did not give rise to a risk of a person tripping and falling when walking, whether facing forwards or moving sideways, in either direction through the doorway and into the hallway. The presence of the chip did not render the floor unsuitable. The pursuer has failed to prove a breach of regulation 12(1) or 12(2) of the Regulations.
[54] This leaves the pursuer’s case under regulation 12(3). An obstruction is something in the nature of impeding one’s progress. It is an impediment. Having regard to the features of the chip I have set out above, I do not accept the pursuer’s argument that the chip was an “obstruction”. In submissions, Miss Forbes also suggested, somewhat faintly, that the boxes were an obstruction. However, the pursuer did not trip over the boxes. I accept the evidence of Mr McNally, that there was no need for the pursuer to engage in the task of moving the boxes. The pursuer’s case under regulation 12(3) also fails.
The defenders’ challenge to the pursuer’s credibility and his account of the accident
[55] In the light of my finding, it is not strictly necessary to determine the defenders’ challenge that the pursuer has failed to prove his account of the accident that the chip caused his fall and their challenge to the pursuer’s credibility.
[56] The defenders argued that there were cogent reasons for not accepting the pursuer’s evidence. In particular, they advanced the following points:
(a) To start, the pursuer had been in error as regards the presence of an edge between a “recessed” section of flooring and the surrounding floor and on which, it had been maintained, that the pursuer's foot also caught. This was wrong as a matter of fact, it was unsupported even by the pursuer’s own expert, but this position had been maintained as a cause of the accident on record. Any attempt to explain this issue away under reference to Mr Rawden's "smooth curve" at 5.1 of his report was doomed-a smooth curve was the antithesis of an edge.
(b) The defenders did more than enough to put in issue whether it was (i) physically possible for the pursuer's heel to contact the chip or, at least, (ii) probable that a person would be in such a position having regard to the dimensions shown on the photograph 7/16 and the account given by the pursuer of how he was carrying the box sideways close to his chest with his back to the open door. The pursuer did not lead evidence of his own size to rebut the evidential burden upon him in this respect. The pursuer's own expert had not even met the pursuer so could not begin to address this.
(c) The defenders also founded on inconsistencies in the pursuer’s evidence. It was only in his oral evidence that the pursuer asserted that it was his right heel which, he said, caught the edge of the chip. He had never mentioned this before, e.g. to his own expert Mr Taggart. The importance of this would, it was said, be obvious to a man of intelligence such as the pursuer. Furthermore, the pursuer was inconsistent from time to time about the number of boxes. He reported to Mr Taggart that there were 2 boxes (recorded at para 3.08 of 6/13 and confirmed by Mr Taggart in cross examination) but in evidence his evidence shifted: he started by asserting that there were 6 to 8 boxes; then he changed this to state that there were between 4 to 8, and then to definitely more than 2. This all went to the pursuer’s reliability of his recollection of the accident.
(d) Mr Taggart said the pursuer told him that he was not able to look where he was placing his feet. However, in cross-examination the pursuer said that he was able to look where he was placing his feet including when he was going sideways.
(e) The defenders also noted the stark contrast between what the pursuer said in evidence, to the effect that he was “99.9% sure” that it was the chip which had caused the accident, and the much more qualified statement in his email note of the day after the accident (contained in 7/8): "the floor indentation…was maybe the cause of the accident…". They also founded on the fact that in the email the pursuer made no mention of his heel catching on the chip.
(f) In passages of his evidence, it was suggested that the pursuer was needlessly difficult. The pursuer was cross examined about the Schlumberger Injury Prevention Program course which the pursuer attended on 14 May 2013 as shown in the training record, 7/1 of process. The pursuer quibbled needlessly about whether other information on the training record may or may not be correct. He sought to reduce the significance of the training by saying that it related to working in more of an industrial or workshop environment rather than an office, despite the title of the course indicating that it was directed at office-based workers.
[57] The defenders’ position was that the pursuer had not proved any of his key averments about how the accident happened. As a fall back, they maintained that even if the pursuer had established that the mechanism of the fall was a trip caused by the chip, that would not in itself be sufficient for him to succeed, as it would still be necessary for him to establish a breach of duty.
[58] As I have determined that the presence of the chip did not constitute a breach of any of the duties under regulation 12(1), (2) or (3), it is not necessary that I address the defenders’ challenges at any length. For completeness, I should note that I would not have been prepared to accept that the pursuer had proved that it was the chip that had caused him to trip. The pursuer’s account of what caused him to fall varied over time. Given the passage of time, it is not surprising that his evidence was, perhaps, a little unreliable on these matters. Once it became apparent to him that there was no change in level of the floor, he became absolutely adamant, to a degree that was not credible, that it was the chip. Even if I were to accept the pursuer’s account of how the accident had been caused, that would be to no avail in this case. The chip did not pose a relevant risk. And, as against the pursuer’s perception of these matters, there is the body of evidence of Mr McNally and Mr Rawden (and, as to the de minimus character of the depth of the chip, even Mr Taggart) to the contrary. For the reasons explained, I prefer this body of evidence. This leaves the two matters of contributory negligence and of quantum, in respect of the several heads of claim had not been agreed.
Contributory negligence
[59] The defenders argued that, in the event they were liable, there was a substantial degree of contributory negligence. The pursuer was said to be at fault for not following the then recent instructions to check the route before manual handling; for not noting the change in the floor surface arising from any removal of the mat and the contrast between the respective grey areas, so as to be on alert for some new feature; and for not taking advantage of his accepted ability to see where he was placing his feet (including when walking sideways) so as to notice and avoid the chip. Mr Cormack submitted that an appropriate apportionment of blame would be to find the pursuer two-thirds to blame.
[60] Miss Forbes made no submission at the end of the proof in relation to the issue of contributory negligence.
[61] Had I found the defenders in breach, I would have found the pursuer’s own conduct to have contributed substantially to the accident. On the evidence of Mr McNally, the pursuer was not expected to move the boxes himself. There was no pressing need to do so. The pursuer was the only person using the office part of the premises; the corridor or hallway was not a critical path in terms of fire safety; and the boxes were not blocking a fire exit. However, having determined to move the boxes, he had admittedly failed to follow the recent SIPP advice, to check the route. Even apart from the SIPP health and safety training referred to, the pursuer failed to take care in the most basic way, by failing to look to see where he was placing his feet - which he accepts he could have done. Had I found the defenders liable, I would have found the pursuer to be contributorily negligent in at least the proportion suggested by the defenders.
Quantum
[62] There are two outstanding issues on quantum: the pursuer’s claim (i) for an extra month’s salary and (ii) to reflect bonuses not paid to the pursuer in the period between the pursuer’s accident and the date he left the defenders’ employment.
[63] In relation to (i) Miss Forbes did not offer any recognised legal basis for this claim. It was just to reflect the time it took him to find work, which he did the following month.
[64] The defenders argued that the pursuer was not entitled to wage loss in the period from 30 September 2014 until his employment ended due to resignation on 24 October 2014. He was fit for his work in this period (as agreed at paragraph 4 of the Joint Minute) but did no work. He did not attend at the defenders’ premises. He did not say that he had offered to return to his work in this period and been refused by the defenders.
[65] I accept the defenders’ submissions. No legal basis was offered for this claim. The pursuer did not offer to or provide his labour to the defenders during the month claimed. No sum is due in law for this period. Had I found in favour of the pursuer on the merits, I would nonetheless have refused this head of claim.
[66] In relation to (ii), the pursuer’s evidence was that he had received a bonus in 2013, referable to his performance in 2012, that equated to about 12% of his annual salary. In 2012 he had, he said, been instrumental in securing a large contract for the defenders. By reason of the long-term nature of that contract, the defenders would have received continuing payments in relation to that for 2013 and later years. In the pursuer’s view, he was entitled to a bonus to reflect this. Any reference to key performance objectives (or KPOs) was not correct as, in practice, it was all about sales. In relation to the bonus for part of 2014, the pursuer’s evidence was that but for the accident he would have remained in the defenders’ employment. On that basis, he was entitled to a like bonus as for 2013.
[67] In their reply, the defenders’ position was that any bonus paid was discretionary. It was not due as a matter of contractual entitlement. The pursuer’s contract of employment was produced (at no 6/2 of process), along with a further letter with details of employment and relative written terms and conditions of employment. It was clear from the contractual documents (especially section 3 of the PIP Guidelines (at no 7/15/4 of process)) and from the details of employment (at no 6/8/2 of process) that any bonus would be assessed for any year based on individual key performance objectives (KPOs) for that year. It was on this basis that any discretionary bonus fell to be assessed. However, the pursuer had not led any evidence about what his KPOs for 2013 were, what progress he had made as at the date of the accident and what progress he would probably have made for the rest of the year. The pursuer has simply failed to prove a claim for loss of bonus in 2013.
[68] The claim for bonus for 2014 fails for the same lack of evidence and also on the basis that the pursuer voluntarily resigned and left before 31 December 2014. It was a condition for payment, in terms of clause 1 of the terms and conditions of employment (at no 6/8/6 of process) and section 3c of the PIP Guidelines, that the employee had to be in post as at a stipulated time. The pursuer had resigned before the qualifying date for the purposes of the 2014 bonus. Therefore he was no longer eligible for bonus in that year, regardless of what his KPOs might have been.
[69] I accept the defenders’ arguments as sound. In respect of the 2014 bonus, as a matter of the contractual terms, the pursuer was not in employment with the defenders as at the qualifying date. In respect of the bonus for 2013, the pursuer is asking the court to prefer his subjective sense of entitlement to the terms of the contract. Whatever his personal sense of grievance, the award of any bonus is governed by the contractual documentation. He simply did not endeavour to lead evidence to establish an obligation on the defenders to make a bonus payment for 2013. I would have refused to make any award for either of the bonuses claimed, had this been a live issue.
[70] In the result, however, the pursuer has failed to establish a breach of the Regulations. It was accepted that his common law case would stand or fall with this his statutory case. His common law case therefore also fails. The defenders are entitled to decree of absolvitor. I shall reserve meantime the question of expenses.