[2006] CSOH 101




in the cause







Act: Laing; Digby Brown, SSC

Alt: Richardson; Simpson & Marwick, WS

26 May 2006

[1] On 20 March 2003 the pursuer was involved in an accident in the defenders' premises in Bellshill as a result of which a man named Charles McShane was killed. At the time the pursuer was working in the course of his employment with the defenders as an LGV driver. Following an instruction to do so, the pursuer started to reposition his trailer in one of the loading bays. When he began the manoeuvre he did not realize that Mr. McShane had driven a pallet truck inside the trailer and then out on to the docking plate between the trailer and the loading bay. When Mr. McShane reached the docking plate the pursuer started to move his lorry and trailer out of the loading bay, and Mr. McShane fell into the gap under the docking plate. The pallet truck fell on his leg, and as a result it is averred that Mr. McShane sustained serious injuries from which he died shortly afterwards.

[2] The pursuer avers that he suffered loss, injury and damage as a result of the accident. It is averred that when the pursuer was moving his trailer he heard a loud noise and then a scream. He stopped his lorry immediately, but employees of the defenders shouted to him to pull his lorry forward. He tried to restart the lorry but it stalled. That caused a fall in air pressure in the brakes, as a result of which the pursuer was unable to move the lorry for about 40 seconds. Thereafter the pursuer restarted the lorry and moved it forward for about eight feet. He then came out of his cab and ran to the back of the vehicle, where he saw that Mr. McShane, whom he knew, was badly injured. It is then averred that the pursuer suffered what may loosely be described as psychiatric injury as a result of his involvement in the accident. He was off work for a period of four weeks. When he returned he was put on warehousing duties, but developed symptoms of depression, irritability and anxiety consistent with the DSM IV diagnosis of an adjustment disorder. He underwent counselling, but was unable to continue working with the defenders. He now performs agency driving work. He avers that the accident was caused by fault and breach of statutory duty on the part of the defenders.

[3] The defenders contend in their defences that the pursuer's averments are irrelevant and lacking in specification. They state in particular that the pursuer had averred neither that during the incident he was exposed to danger nor that he considered himself to have been exposed to danger. In those circumstances, it is said, the pursuer has not averred that he was a primary victim of the incident. It is further stated that the pursuer did not aver that he had a close tie of love and affection with the person killed, and that accordingly he had not averred that he was entitled to recover as a secondary victim of the incident.

[4] On 3 May 2006 the pursuer' agents enrolled for a proof. That motion was opposed by the defenders on the basis that the cause should be appointed to the procedure roll in terms of Rules of Court 43.6(5) and (6). The motion came before me on 26 May, and on that date I decided that a procedure roll discussion was inappropriate and that the action should be sent to proof. A proof under the new personal injuries procedure is of course equivalent to a proof before answer in other forms of Outer House procedure.

[5] It is clear in my opinion that under the new personal injuries procedure the question of whether a procedure roll discussion should be allowed requires a different approach from the earlier procedure in such actions. Generally speaking the new procedure contemplates that the number of such hearings should be significantly reduced. The cases where a procedure roll discussion is likely to be appropriate are in my view set out by Lady Paton in Hamilton v Seamark Systems Ltd, 2004 SC 543, at paragraph [18]:

"Nevertheless, as was recognized by the Coulsfield working party, there may be exceptional cases where a legal debate is still appropriate. For example, matters of fundamental relevancy, which could bring the litigation to an end without the need for proof of the facts averred, may merit a procedure roll.... There may be cases where the facts averred are patently insufficient to establish liability on the part of a defender, despite references to common law and/or statute. In such circumstances a court may be persuaded to allow a legal debate before any evidence is led, with a view to saving time and expense. Similarly a court may be persuaded to allow a debate where one outcome might be a significant limitation in the extent of the proof".

In considering whether a procedure roll discussion is appropriate, however, it is also important in my opinion to bear in mind the long-established approach to questions of relevancy in claims based on negligence. This was stated by Lord Keith of Avonholm in Miller v South of Scotland Electricity Board, 1958 SC (HL) 20, at 33:

"In claims of damages for alleged negligence it can only be in rare and exceptional cases that an action can be disposed of on relevancy.... It is hardly necessary to say in a Scottish case that the law of negligence in Scotland proceeds on principles of culpa, breach of the duty to take that care which the circumstances demand from a reasonable man. These circumstances in any particular case will normally have to be ascertained by evidence. They vary infinitely. The facets and details of the case on which an assessment of the law must depend cannot be conveyed to the mind by mere averments of the bare bones of the case, and the weighing of the facts for or against negligence may often present a delicate task to the tribunal charged with applying the law".

That statement of the law relates to the question of negligence, and in particular the standard of care applicable in any particular case. Similar principles must in my view apply to the question of whether any particular type of loss is recoverable. Whether loss falls within any of the recognized categories of recoverable loss is a matter that depends upon the precise circumstances of the case, and that must normally be determined by consideration of evidence. Following the adoption of the new procedure in personal injuries actions, it seems to me that the approach laid down in Miller is particularly appropriate, because a more abbreviated form of pleading is used; this makes it particularly difficult to determine questions of relevancy without hearing evidence.

[6] In moving for the allowance of a procedure roll discussion, counsel for the defenders submitted that important questions of law arose out of the pursuer's averments of loss, which related to psychiatric injury. He founded in particular on the decisions of the House of Lords in Alcock v Chief Constable of South Yorkshire Police, [1992] 1 AC 310, and White v Chief Constable of South Yorkshire Police, [1999] 2 AC 455. In those two cases it had been held that persons who had been exposed to physical danger, or reasonably believed that they had been exposed to physical danger, were entitled to recover for psychiatric injury; such persons were to be considered primary victims. Anyone who was not exposed to physical danger or the apprehension of danger was a secondary victim, and in such a case the existence of close ties of love and affection to the person killed or injured was an essential ingredient if recovery were to be possible. Counsel submitted that on the pleadings the present pursuer did not fall into either of those categories. Consequently a procedure roll discussion was required.

[7] Counsel for the pursuer submitted that it was necessary to discover the full facts surrounding the pursuer's psychiatric injury before it could be held that he could not recover. Counsel referred to the decisions of Lord Reed in Campbell v North Lanarkshire Council, 2000 SCLR 373, and of Temporary Judge JG Reid in Salter v UB Frozen and Chilled Foods Ltd, 2003 SLT 1011. In both of those cases the pursuer had suffered psychiatric injury, and in both, after detailed consideration of the authorities, a proof before answer had been allowed; in neither case was it possible for the court to hold that the pursuer could not succeed in establishing liability on the basis of his pleadings alone. Counsel further pointed out that the facts of Salter were very close to those in the present case, in that the pursuer had played a part in causing the death of a fellow employee while driving a vehicle in the course of his employment.

[8] As I have mentioned, counsel for the defenders founded on the decisions in Alcock and White. Those cases are concerned with two particular situations. The first, discussed in Alcock, is that of persons who witness the deaths of persons to whom they have close ties of love and affection. Such persons may normally recover for psychiatric injury. The second situation, discussed in White, involves those who suffer trauma as a result of witnessing the death or injuries of others but do not have the close ties of love and affection that are required for the first category of recoverable loss. In such cases, the test that has been adopted is, generally speaking, that psychiatric injury will form a head of recoverable loss provided that the pursuer has been placed in danger, or an apprehension of danger, as a result of the incident in question. Those cases do not, however, deal with a third category of psychiatric injury that has been recognized as giving rise to recoverable loss. This occurs where the pursuer has been instrumental in another person's death, or possibly serious injury, and that has caused him psychiatric harm. On the authorities, that that by itself is sufficient to enable the pursuer to recover for the psychiatric injury; it does not matter whether the pursuer has been placed in danger himself; indeed it will be typical of such cases that the pursuer has been in no danger, but has played a part in creating a danger for someone else. This category of recoverable loss has been recognized in a number of cases, starting with Dooley v Cammell Laird & Co Ltd, [1951] 1 Lloyd's Rep 271. Those cases were cited in Alcock and White. In Alcock Lord Oliver of Aylmerton discussed them at page 408 and concluded that they were correctly decided, on the basis that the plaintiff in each case had been instrumental in causing the death. In White this line of authority was discussed further by Lord Hoffman at pp 507-508; he pointed out that Lord Oliver's explanation of the cases was not actually based on their reasoning, but concluded that there might be grounds for treating such a rare category of case as exceptional and exempt from the Alcock control mechanisms. The last reported decision dealing with this category of loss is that in Salter. In that case Temporary Judge Reid conducted an extensive review of the authorities and concluded that he could not hold the pursuer's case irrelevant.

[9] In my opinion the pursuer's case as stated in the pleadings is a classic instrumentality case. The pursuer avers that he moved his lorry and trailer forward and that as a result Mr McShane fell and sustained fatal injuries. The matter is perhaps compounded by the pursuer's attempts to free Mr McShane, by moving the lorry forward yet again but failing to move it for some time. In such a case it would, I think, be extremely difficult to argue that the pursuer's averments are irrelevant without challenging the correctness of the cases referred to in the last paragraph. This applies in particular to the analysis by Lord Oliver in Alcock. Even if such a challenge were made, however, it would in my opinion be of critical importance to know the precise part played by the pursuer in Mr McShane's death. It seems clear that it is not everyone who plays a part in someone else's death who can recover. Very minor involvement would probably not suffice, and other limiting factors might be recognized; these might relate, for example, to the question of foreseeability on the part of the pursuer's employer. Consequently I consider that any attempt to discuss the law on the basis of bare pleadings, without the benefit of evidence, is likely to result in a sterile academic discussion, in which possible limitations on recovery are debated but cannot be applied to the facts of the case because these are not known adequately. In these circumstances this appears to me to be a very clear case for allowance of proof. Once the facts are known the question of whether it is possible for a person who is instrumental in a death to recover for psychiatric loss, and the possible limitations on that right, can be discussed properly.