[2006] CSOH 25


in the cause








Pursuers : Primrose; Balfour & Manson (for Stewart, Balfour & Sutherland, Glasgow)

First Defenders : Tait; McClure Naismith

Second Defenders: Springham; Dundas & Wilson CS

10 February 2006

1. Procedure

[1] The pursuer, on her own behalf and as the legal representative of her child, seeks summary decree against each of the defenders by finding them liable to make reparation to her in respect of the death of her husband, the deceased Neil Pope. The deceased died on 11 April 2001. The action was raised almost three years later. Defences were lodged in July and September 2004. On 30 November 2004 the record was lodged and, on the pursuer's motion, parties were allowed a proof of their respective averments, the proof being fixed for 25 October 2005. Before the proof, a motion for summary decree was intimated as, at that time, despite there having been a prosecution of the second defenders and a fatal accident inquiry, the defenders had said little positive about liability. The first defenders denied even that they employed the deceased and the second defenders did not accept that they had control over the site where the deceased worked (see infra). Both denied even that the deceased had been killed. The pursuer decided not to enrol the motion because, shortly before the proof, on 3 and 4 October each defender lodged a Minute of Amendment incorporating much of what is now contained in their pleadings. Unfortunately, there was no Lord Ordinary available on the day of the proof and it was discharged. The amendment procedure was concluded thereafter and a new record lodged on 13 December 2005. A fresh diet of proof was fixed for 2 May 2006. The present motion came before the Court on 20 January 2006.

2. The Pursuer's case

[2] The pleadings reveal that the deceased was employed by the first defenders, who are based in Dunfermline. The first defenders supplied labour and plant to the second defenders, who were constructing a waste water treatment works at Baraskomil, Campbeltown. The deceased was the driver of a dumper truck and was involved in earthworks at the site, notably the carrying of soil which filled a hopper at the front of the truck. He sat on the truck, behind the hopper, protected by roll bars. He was not wearing the seatbelt provided. According to the pursuer, the edge of the haul road, along which the deceased drove the truck, was not obvious because its crushed stone surface had become covered with soil. At a point where the road crossed a burn, there was an excavation at the side of the road. The truck overturned as a result of falling into that excavation. The deceased was thrown from his seat and buried by the soil from the hopper. He was asphyxiated.

[3] The case proceeds under the new personal injuries rules. It is not immediately obvious to the reader of the record just what all the cases of fault might be and, even less clear, against which defender the cases are directed. The pursuer does aver common law fault based on an unsafe place of work. In particular, it is said that a risk assessment would have recommended the provision of temporary barriers and signs to delineate the road's edges. Such barriers and signs, in the form of painted oil drums, were installed after the accident. The pursuer also relies on a case of unsafe system, notably the fact that the deceased was not wearing a seatbelt. His failure to do so was in the context of a culture whereby seatbelts were not routinely worn, despite a reminder from the Health and Safety Executive to the second defenders in January 2001. The common law cases appear to be against both defenders, presumably against the first defenders as employers and against the second defenders under the Occupiers' Liability (Scotland) Act 1960 (although this is expressed in the pleadings as a statutory case).

[4] The pursuer has a statutory case founding upon regulation 17 of the Construction (Health Safety and Welfare) Regulations 1996 (SI 1592). This provides that:

"(6) Where any vehicle is used for excavating or handling (including tipping) materials, suitable and sufficient measures shall be taken so as to prevent such vehicle from falling into any excavation or pit...or overrunning the edge of any embankment or earthwork."

The duties under the Regulations are placed upon every employer, whose employees are carrying out construction work, insofar as they affect him or any person at work under his control or relate to matters which are within his control. They are also placed on every other person who controls the way in which the work is carried out, insofar as they relate to matters which are within his control. The Regulations apply potentially to both defenders although it is not clear whether that is what is intended in the pleadings.

[5] On 2 May 2002, the second defenders pleaded guilty to a charge which libelled a contravention of sections 3(1) and 33(1)(a) of the Health and Safety at Work etc. Act 1974 (c 37) in that they failed to provide and maintain a safe system and place of work regarding the movement of vehicles along the road. They were fined £12,500. The plea accepted by the Crown narrates the death of the deceased but omits the word "whereby", which linked the breach with the death in the original charge. Pleas of not guilty appear to have been accepted in respect of alleged breaches of, inter alia, regulation 17 of the 1996 Regulations (supra).

3. The defences

[6] According to the first defenders, there was a contract whereby the second defenders assumed all responsibility for the health and safety of their employees. The second defenders seem to deny this, but do not explain what contractual terms, if any, they maintain applied to the engagement of the first defenders' employees. In any event, no doubt if the first defenders are correct, the second defenders will, in practice, have to pay any damages awarded; but that does not affect the first defenders' liability to the pursuer.

[7] The first defenders admit ("believed to be true") that a proper risk assessment was not carried out and that one would have recommended temporary barriers and signs at the road's edge. They admit both the pursuer's averments that the edge of the road had become obscured and the second defenders' averment that the edge was obvious. They admit the essential circumstances of the accident and that it would not have been possible had there been barriers and signs; albeit that they also admit the second defenders' averments that there was no need for the deceased to have been driving his truck in such a way that it left the road. They admit that the deceased had not been wearing a seatbelt and that there was a culture of not doing so. Apart from the indemnity, the first defenders' basic contention is that they had no control over the site and that the second defenders were responsible for the safety of the work. They do not suggest that they took any positive steps to ensure the safety of the deceased, other than that they relied on the second defenders. The absence of positive statement is in the face of an averment from the second defenders that the first defenders took no steps to satisfy themselves of the conditions under which their employees were working.

[8] The second defenders also admit that the deceased's truck did overturn and, at the Bar, accepted that this was into an "excavation" (as shown on certain photographs), despite their description on record that it was into a "small hole". As noted above, they contend that there was no need for the deceased to have been driving his truck in such a way that it left the road, as there was ample room in which to drive safely. The deceased had driven along the road on many occasions and the road was wide with a firm, level and dry surface. The deceased had been reminded of the need to wear a seatbelt. Both defenders maintain that the accident was caused or materially contributed by the fault of the deceased. They contend for an element of contributory negligence on the deceased's part and for apportionment of liability between themselves.

4. Submissions

[9] The pursuer maintained that, in terms of Rule of Court 21.2, there was no defence disclosed. The purpose of the rule was to allow the Court to ascertain whether there was a genuine defence (Spink & Son v McColl 1992 SLT 470, JMS Horsburgh QC at 472). The question was simply whether there was such a defence. The stage at which the motion was made and the history of the case were not of great importance in that context. In some personal injuries actions, a defender was entitled to put a pursuer to his proof and, in these cases, summary decree was not appropriate (Keppie v Marshall Food Group 1997 SLT 305, Lord Hamilton at 308). This case was not in that category. This was because, first, the second defenders' plea of guilty meant that they accepted that they failed to take care for the safety of the deceased in respect of both the place of work and the system. Secondly, there was no dispute about what happened to the deceased. He was killed as he drove too close to the side of the road. There was a clear breach of regulation 17 (supra). The first defenders' admissions were enough to bring liability home to them. They could not escape that liability by claiming to have delegated health and safety to the second defenders (Munkman : Employers Liability (13th ed) paras 5.82-3). Thirdly, there was a Health and Safety Executive Report lodged, to which the Court could have regard (Struthers v British Alcan Rolled Products 1991 SLT 142, Lord Maclean at 145). The Report concluded (p 17) that the deceased had driven too close to the excavation at a point where there were no barriers or signs to delineate the edge and to ensure that vehicles were kept away from the excavation. It also noted the culture of the drivers not to wear seatbelts routinely. Had the deceased worn a seatbelt, he would not have been, as he was, thrown from the truck and covered with soil. Any element of contributory negligence would be small, where such a culture was permitted (Munkman (supra) para 29.34). Even if there were some contributory negligence, that did not prevent the Court granting summary decree (Frew v Field Packaging Scotland 1994 SLT 1192).

[10] The first defenders accepted that the test was that set out in Keppie v Marshall Food Group (supra at 308). It was whether a defence was disclosed. Appropriate caution was needed. The first defenders were under the impression that the case against them was solely at common law. They accepted that the duties upon them as employers were not delegable, but the pursuer had not set out what particular duty they had breached. The first defenders were based in Fife and the death had occurred in Campbeltown. The extent of the duty had to take that, and all the other circumstances, into account (Cook v Square D [1992] ICR 263, Farquharson LJ at 268). The situation in the present case was not straightforward. The deceased was not an untrained man being sent into the unknown. The Court ought not to be satisfied that the test had been met.

[11] The second defenders submitted that there were two questions. First, was the Court satisfied that there is no defence to the action. The second was whether, even if that that were so, the Court ought to grant decree. On the first, there were two issues: the condition of the haul road and the wearing of seatbelts. There had been a conviction, but under sections which did not give rise to civil liability. The causal link between the accepted breach and the death had not formed part of the conviction. The second defenders had their own witnesses on the condition of the haul road and there was an issue to try. In relation to the statutory case, the deceased had driven along the road many times before and there was plenty of room for him to do so safely. The second defenders had taken suitable and sufficient measures to prevent the deceased's vehicle from falling into the excavation by providing that room. On seatbelts, the second defenders averred that the deceased had been trained on the need to wear a seatbelt both generally and specifically in relation to the site. Again, there was an issue to try.

[12] On the second question concerning the use of the Court's discretion, account should be taken of the purpose of the rule, which was to avoid delay in the settlement of valid claims. That mischief was not present here, where there were issues of contributory negligence and quantum of damages to be determined. Summary decree might result in some reduction in the length of the proof, but a four day diet had already been assigned for May. Given the timing of the motion, the parties were presumably prepared for that proof. The Court should be slow to deny probation where disputes of fact remained (Frew v Field Packaging Scotland (supra), Lord Prosser at 1195).

4. Decision

[13] Whether summary decree should be granted depends first on whether, in terms of the rule, there is no defence to the action, or part of it, disclosed in the defences. There is no such defence in respect of either defender.

[14] The deceased was killed when his truck fell into an excavation at the side of a haul road along which he was driving. According to the pursuer, that accident could not have happened if appropriate barriers and signs had been in place, as they were after the accident. An assessment of the risks involved in the operation would have revealed the need for such barriers and signs. The first defenders admit these essential elements of the pursuer's common law case. It was the first defenders, as employers, who had the primary obligation to take reasonable care for the deceased's safety, and, in particular to take such care to see that he had a safe place of work. That duty, which could not be delegated, was not complied with. The fault here was not a transient one, nor was the place of work in a distant part of the globe (cf Cook v Square D (supra)). It was a problem concerned with the delineation of the boundary between a road, along which the deceased had frequently to drive, and an excavation at the side of that road. Driving too close to that excavation might, and did, have fatal consequences. The first defenders do not attempt to suggest that they took any steps at all to see that the pursuer did have a safe place of work. Similar considerations apply in relation to the seatbelt case. The first defenders admit that the deceased was not wearing a seatbelt and that this was the culture on site. This was also not a passing problem but a substantial systemic fault which the first defenders did nothing to cure. Their only response is to say that they were not in control of the site. They were, however, responsible for the safety of their own employees. They admit that neither defender took steps to ensure that seatbelts were worn. In all these circumstances, quite apart from the statutory case, the first defenders must be liable to make reparation to the pursuer in respect of their failure to provide either a safe place or a safe system of work. Approaching the case against the second defenders from the different standpoint of the statutory case, they were in control of the site. It is clear that suitable and sufficient measures were not taken so as to prevent the deceased's vehicle from falling into the excavation. Had they been, by the obvious precaution of erecting barriers and signs, the accident could not have happened. In these circumstances, the second defenders too must be liable to make reparation to the pursuer in respect of the death of the deceased. Having regard to the material in the Health and Safety Report and the second defenders' plea of guilty to a contravention of section 3 of the 1974 Act (supra), it is clear also that, as the persons in control of the site, they failed to take reasonable care for the pursuer at common law both in relation to the lack of barriers and signs and the culture of not wearing seatbelts.

[15] The fact that there is no defence disclosed does not mean that the Court must grant summary decree (Frew v Field Packaging Scotland (supra), Lord Prosser at 1195). The rule affords the Court a discretion in that regard. In deciding the way in which to exercise that discretion, the Court is entitled to have regard to the purpose of the rule. It is to prevent defenders delaying unanswerable cases by exploiting the rules of process (Spink & Son v McColl (supra), JMS Horsburgh QC at 472), notably by postponing decree until a Procedure Roll debate on relevancy, or even until a proof by averring a relevant but clearly factually unfounded defence. Put another way, it is to eradicate dilatory defences. It is in this area where cases such as the present may be seen as presenting some difficulty.

[16] At the stage when the record closed, the defences were both skeleton and, consequently, dilatory. If the defenders had not presented their Minutes of Amendment, the Court would have been entitled to grant summary decree for that reason. This is so even although the Court would have been entitled to take into account also the stage which the case had then reached and perhaps also the long delay in any action being raised. If, as outlined above, the summary decree procedure is to be seen as a method of dealing with dilatory defences, it is not a little peculiar to have a motion for such a decree postponed until shortly before a proof is due to take place. Whether summary decree is appropriate is something which ought normally to be capable of determination at least when a record is lodged. If a pursuer thereafter enrols for a proof, such a motion might suggest that he does not consider that the defences are dilatory. Seeking a proof does not, of course, prevent a pursuer from later obtaining summary decree as a matter of competency (see eg Keppie v Marshall Food Group (supra)) but it is a factor in the relevant equation. In addition, where issues of fact, including especially matters related to the merits of a case, such as contributory negligence and apportionment, require proof in any event, the Court is at least entitled to question what practical benefit would be served in granting summary decree on the merits (see Frew v Field Packaging Scotland (supra), Lord Prosser at 1195). If there is little such benefit then that too may be a factor pointing away from granting the motion.

[17] The various factors in this case are relatively finely balanced. The defenders may have no defence on the merits, but there are substantial issues of contributory negligence, apportionment and quantum requiring proof. A diet of proof has been fixed for the not too distant future. There has already been an abortive diet, which would suggest that the parties have made their preparations for a proof on the merits. However, the pursuer had planned to enrol for summary decree prior to the discharged diet. She was justified in withholding pursuance of that application until she could see what defence might emerge from the amendments proposed. The amendment procedure now having been completed, she was entitled to review the position and consider whether a defence had emerged. Having determined that no defence appeared in the amended pleadings, it was reasonable to pursue the original motion. With some hesitation therefore, although granting summary decree in a case such as this at this stage must have a limited practical effect, there is just sufficient force in the pursuer's motion, by way of saving some time and expense at the proof, to warrant such a decree. I will accordingly find that each defender is liable to make reparation to the pursuer, as an individual and as the legal representative of the child, for the loss and damage sustained as a result of the death of the deceased on 11 April 2001. The effect of that will also be that the proof will be restricted to the issues of contributory negligence, apportionment and quantum of damage.