STEVEN McFARLANE v. SCOTTISH BORDERS COUNCIL
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
| Lord Penrose Lord Abernethy Sir David Edward, Q.C. | [2005CSIH23] A4945/01 OPINION OF THE COURT delivered by TEMPORARY JUDGE SIR DAVID EDWARD, Q.C. in RECLAIMING MOTION in the cause STEVEN McFARLANE Pursuer and Reclaimer; against SCOTTISH BORDERS COUNCIL Defenders and Respondents: _______ |
Act: Macaulay, Q.C., Lloyd; Thompsons
Alt: Stacey, Q.C., Milligan; Simpson & Marwick
3 March 2005
[1]On 19th March 1999, the pursuer and reclaimer had an accident when working as one of a gang of roadmen employed by the defenders and respondents. The gang was engaged in constructing a passing place on a single track road leading to a farm between Peebles and Innerleithen.
[2]The passing place was on the right-hand side of the road as it led downhill towards the main road. The ground at that side of the road fell away, so that there was a fairly steep bank beside the road. The passing place was created by tipping soil or spoil down the bank, covering it with a layer of hard core and covering the hard core with two layers of tarmac at the same level as the road. The resultant passing place was an embankment roughly hemispherical in plan, but less curved in the middle and tapering in to the road at each end, with a fairly steep downhill slope at its outer edge.
[3]The pursuer was using a small sit-on road roller to compact the second layer of tarmac. The evidence of the foreman, Thomas Davidson, was that the first layer of tarmac would have been laid four to six inches in from the outer edge of the hard core, and the second layer a further six inches in from the outer edge of the first. So the outer edge of the second layer was about one foot from, and a few inches above, the edge of the underlying hardcore. In cross-section there would therefore be a horizontal surface of tarmac, level with the road, a stepped slope from the edge of the tarmac to the edge of the hardcore, and thereafter a steeper slope down to natural ground level.
[4]The road roller had two rollers, one at the front and one at the back. The machine appears to have been articulated so that it could be driven in a circle as well as forward and back in a straight line. The driver's seat was at the back and, according to Davidson, the machine was heavier at the back than the front. The basic controls consisted of a driving wheel and a pedal which, when pressed down towards the front, caused the machine to move forward and, when pressed down towards the back, caused it to move backwards. There was no need for a footbrake because the machine stopped moving when the driver's foot was taken off the pedal.
[5]Normally, rolling of tarmac would be done by moving the machine forward and then back parallel to the line of the road. In the passing place, once most of the surface had been compacted in this way, it was necessary to compact the tarmac round the edge of the hemisphere. Again, this was done by moving the machine forward and then back, but at least partly in a curve rather than in a straight line.
[6]There is no dispute that the accident happened when the pursuer was moving the machine backwards round the edge of the passing place. At a certain point, the machine started to tip over towards the bank. The pursuer jumped off and landed down the bank. The machine fell over the bank onto its side, but fortunately did not fall on top of the pursuer.
[7]The pursuer averred but failed to prove that the machine tipped over because the edge of the passing place subsided underneath it. The only explanation of the accident is that the pursuer drove the machine backwards beyond the edge of the tarmac to such an extent as to cause it to topple sideways. Quite how far it would have been necessary for the rear roller to project beyond the edge of the tarmac to produce this effect is not clear. But it is clear that, in the absence of subsidence, it was only through miscalculation, inadvertence or carelessness on the part of the pursuer that the machine could have reached a position in which it toppled over.
[8]The pursuer claims damages for the consequences of the accident. On record he pleaded fault at common law and breach of statutory duty under the Construction (Health, Safety and Welfare) Regulations 1996 ("the Construction Regulations") and the Provision and Use of Work Equipment Regulations 1998 ("the Work Equipment Regulations"). In his common law case, he averred:
"Esto the pursuer's accident occurred because he drove too close or over the edge, the accident was caused by the defenders' failure to take reasonable care to construct a passing place with a verge and to provide a banksman or edge protection in the form of a barrier (e.g. a sleeper) to obviate or reduce the risk of driver error, which risk was increased by the pursuer's lack of training".
The defenders made no averments specifically countering these averments except as regards training.
[9]The Temporary Lord Ordinary found that the pursuer, as a witness, could not be relied upon on any matter on which he was not supported by independent evidence. He held that the pursuer failed on all the cases averred by him and therefore assoilzied the defenders. Had he found the defenders at fault or in breach of statutory duty, he would have found the pursuer 75% to blame for the accident.
[10]The pursuer reclaims only in respect of two breaches of statutory duty and, as regards precautions, only in respect of failure to provide a barrier in the form of railway sleepers and/or a verge. On the assumption he succeeds, he contests the apportionment of contributory negligence. The parties are agreed as to the quantum of damages once the issues of liability and apportionment of fault have been determined.
[11]The two statutory provisions now in issue are, first, Regulation 5(2) of the Construction Regulations which reads as follows:
"Every place of work shall, so far as is reasonably practicable, be made and kept safe for, and without risks to health to, any person at work there",
and, second, Regulation 4(3) of the Work Equipment Regulations which reads as follows:
"Every employer shall ensure that work equipment is used only for operations for which, and under conditions for which, it is suitable".
[12]The pursuer argued that a prima facie breach of statutory duty was demonstrated by the fact of the accident having happened as described above. (That description does not depend to any extent on the evidence of the pursuer alone.) As regards the case under Regulation 5(2) of the Construction Regulations, the defenders had conceded that the mere occurrence of the accident established a prima facie breach of statutory duty. The case under Regulation 4(3) of the Work Equipment Regulations looked at the same set of facts from the opposite point of view. The fact of the accident demonstrated either that the place of work was unsafe or that the equipment was unsuitable for use at that place. It was for the defenders to exculpate themselves by establishing the limited lines of defence afforded by the Regulations. This they failed to do and the Temporary Lord Ordinary misdirected himself in his approach to the evidence in this respect. The pursuer was therefore entitled to decree in his favour and the appropriate apportionment of liability would be 75% to the defenders and 25% to the pursuer.
[13]The defenders argued that this was a case where the appeal court should not interfere with the findings of the judge who saw and heard the witnesses (Thomas v Thomas, 1947 SC (HL) 45; Thomson v Kvaerner Govan Ltd, 2004 SC (HL) 1). Even if the fact of the accident demonstrated a prima facie breach of Regulation 5(2) of the Construction Regulations, the Lord Ordinary had held that there were no reasonably practicable precautions the defenders could have taken to prevent it. That was a matter for him to judge in the light of the evidence. As regards Regulation 4(3) of the Work Equipment Regulations, the defenders were bound only to take precautions against reasonably foreseeable risks (Regulation 4(4)) and it was not reasonably foreseeable that a workman would drive a road roller so far over the edge of an embankment as to tip over. The Lord Ordinary's assessment of contributory negligence should not be disturbed.
[14]The relevant passages of the Lord Ordinary's Opinion are as follows:
"[16]Since the pursuer had sustained an accident at his working place, counsel for the defender did not dispute, on her understanding of the opinion of the Inner House in Mains v Uniroyal Englebert Tyres Ltd 1995 SC 518, that the fact of the accident itself, without more, would entitle the pursuer to decree. In view of that concession it is unnecessary to attempt to determine in this case whether the fact of an accident occasioned by someone falling at a place where he happened to work is sufficient to bring paragraph 5 of the [Construction Regulations] into play. Since any person working must be working in some place it is also by concession unnecessary to determine whether the fact that an accident had occurred there alone renders that place unsafe.
[17]On the basis that it has to be demonstrated by the defender on the whole evidence that either reasonably practicable measures were taken to make the work place safe or that no reasonably practicable measures could be taken, various matters were canvassed in the course of the proof. The onus of establishing a defence in relation to reasonable practicability initially lies upon the defender - Nimmo v Cowan 1967 SC (HL) 79 - but questions of onus, as has been frequently said, seldom arise after evidence has been led. In this case the pursuer led a body of evidence with a view to showing that various steps could have been taken by the defender which were practicable and I now consider each of these.
[18]Counsel for the pursuer approached the matter thus. The first step he said was to carry out a risk assessment. There were carried out and produced certain proforma risk assessments. He argued that any reasonable risk assessment would have identified the risk of a roller rolling too close to the edge and falling over. It would have identified, he said, the need for a trained driver and edge protection, a banksman or a barrier, the use of a hand held roller and the need for a verge. Examining each of these in turn I find, in relation to the identification of a risk of a roller going too close to the edge and falling over, that identification of such a risk is a matter of ordinary common sense and requires no special procedure. The risk of a roller falling over if it is driven too close to the edge is self evident. Everybody including the pursuer knew that, and accordingly such content of a risk assessment is otiose. The pursuer stated in evidence that he had thought the edge was 'dodgy' and whether or not he communicated that to Mr Davidson, which is open to doubt, it is plain from that observation that he knew that he would not be safe if he went so close to the edge that his machine toppled. He must have encroached over the edge to a significant extent.
...
[21] ... Railway sleepers, it was suggested, could have been imported onto the site. It was suggested that they should have been there not to provide a barrier, but to mark the edge of the tarmac. As a matter of fact they would not have prevented the roller going over the edge. They would only have provided a variant of a warning notice, not a barrier and, since the pursuer was well aware of what was required to control his roller, sleepers were not shown as being likely to have prevented the accident not would their presence have made the working place any safer.
[22]Mr Ritch [the pursuer's expert] said in relation to the verge that the biggest problem on this site was the lack of a decent verge. That is a matter of the construction of the passing place. He postulated a verge of about a metre and a half to two metres. If that had been there, he said, there would have been no danger. The same criticism applies. A wider verge, no doubt at considerably greater cost, would not necessarily have prevented the pursuer driving the roller over the edge of the tarmac it merely would put the edge of the passing place further away from the tarmac. Mr Ritch's view about the verge was based on the assertion that the passing place was a potential hazard to persons who might be getting out of a vehicle. Why they should do that in a passing place as opposed to a lay-by was not made clear. The edge of the passing place is no different from the edge of the road.
[23]I find that none of the matters canvassed indicate that the defenders did not act in the construction of the passing place in a way other than providing a safe place of work so far as was reasonably practicable.
[24]Accordingly the pursuer has failed not only to establish any breach of common law duty by the defenders but also on the evidence the pursuer's working place was, as far as was reasonably practicable, made and kept safe for him. There is equally, on the facts noted above, no breach of the [Work Equipment Regulations]. Suitable training on a suitable roller was given. These Regulations were however not enthusiastically founded upon by counsel in submission.
Contributory Negligence
[25]Had I found the pursuer entitled to reparation the matter of contributory negligence would have arisen. It was quite clear from the evidence that the pursuer knew that he should not go too near the edge. He failed to exercise reasonable care in controlling a machine which he was sufficiently trained to operate and on the view that I have taken which was that he did drive over the edge, his contribution to the accident would have been assessed by me at 75%. There was no doubt that the major responsibility for this accident was his."
The case under Regulation 5(2) of the Construction Regulations
[15]The starting point for consideration of this case must be the defenders' concession that "the fact of the accident itself, without more, would entitle the pursuer to decree". In our opinion, this concession is not to be regarded as a mere legal technicality affecting the onus of proof which then becomes unimportant once evidence has been led. It is a concession that the pursuer's place of work was not made and kept safe.
[16]In Mains (supra), Edwards v National Coal Board [1949] KB 704 and Marshall v Gotham Co. Ltd. [1954] AC 360, to which reference was made in argument, the unsafe aspect of the work place consisted in the sudden movement of inanimate objects without human intervention (part of a machine in Mains, the side or roof of a mine road in Edwards and Marshall). In the present case, the unsafe aspect of the work place lay in the movement of a machine driven by the pursuer relative to the edge of the work place. Both the inanimate state of the work place and the movement of the machine relative to it are therefore relevant to the question whether the work place was safe, not least because of the potentially catastrophic consequences for the workman if he was trapped by the machine toppling over.
[17]The defenders advanced two lines of argument by way of defence. The first was that, although there was an undoubted risk if the machine was driven too close to the edge, it was not reasonably foreseeable that a trained operator would drive too close to the edge. The second was that, in any event, the Lord Ordinary had rejected all the suggested precautions as not reasonably practicable and that an appeal court should accept that these were findings he was entitled to make on the evidence as a whole.
[18]As regards the first argument, foreseeability may be relevant when considering whether a precaution is reasonably practicable. Where there is a known risk, assessment of reasonable practicability will involve balancing the existence of that risk against the cost or other disadvantages of taking steps to guard against it. As Lord Oaksey put it in Marshall (supra at page 370), "what is 'reasonably practicable' depends upon a consideration whether the time, trouble and expense of the precautions suggested are disproportionate to the risk involved". The corollary is that "if a precaution is practicable it must be taken unless in the whole circumstances that would be unreasonable" (Lord Reid at page 373).
[19]So it may be necessary to assess whether it is reasonably foreseeable that a known risk will materialise in order to determine whether it would be reasonable to take precautions against it. But that is not the same question as arises at common law as to whether the accident that occurred was foreseeable. Foreseeability is simply one element in balancing a known risk against the time, trouble and expense of taking precautions against it.
[20]In this case, the Lord Ordinary did not hold (explicitly or implicitly) that the risk was not reasonably foreseeable. On the contrary, he said that "the risk of a roller falling over if it is driven too close to the edge is self evident". That view is supported by an answer of the defenders' Area Works Manager, Richardson:
"Q.But can we take it that one of the risks which would need to be assessed and dealt with is the risk of someone operating a roller going over the edge?
A.It is a possible risk obviously on a site like that, yes."
In addition, the defenders' risk assessment in relation to reversing plant and vehicles said that "Reversing plant and vehicles are the cause of many serious accidents in our industry".
[21]The Lord Ordinary made no explicit finding as to whether it was reasonably foreseeable that the known risk would materialise. In our opinion, given the obviousness of the risk, it would be perverse to hold that it was not.
[22]As regards the practicability of the precautions suggested, only two are now in contention: laying railway sleepers at the edge of the tarmac and making a wider verge beyond the edge of the tarmac. The Lord Ordinary did not reject either of these precautions as being not reasonably practicable, except in so far as paragraphs 23 and 24 of his Opinion can be read as a finding to that effect. What he said was that "sleepers were not shown as being likely to have prevented the accident" and that "a wider verge would not necessarily have prevented the pursuer driving the roller over the edge of the tarmac".
[23]It is self-evident that an accident might still have happened if the pursuer had totally ignored the warning that would have been given by the rear roller coming up against a railway sleeper, or if he had driven, not only over the edge of the tarmac, but also over the width of a verge extending beyond it. But that goes to the question of causation of the accident, not to the question whether it was reasonably practicable to take the precaution.
[24]As to the practicability of creating a wider verge, this would have involved creating a wider embankment. There was no evidence as to the cost or other disadvantages of doing so. While, there would plainly be some cost involved, the Lord Ordinary's reference to "considerably greater cost" is speculation on his part. If there were reasons why it would not have been reasonably practicable to create a wider verge, the defenders could have led evidence to show why that was so. In the absence of evidence, the defenders must fail on this point.
[25]There was equally no evidence as to the cost or inconvenience of providing railway sleepers. It is not clear whether, as the embankment was actually constructed, there was space to lay sleepers between the edge of the tarmac and the edge of the embankment, but if there was space for them, a sleeper would have acted as a warning when the rear roller came in contact with it. Again, therefore, so far as it is necessary to do so, we find that the defenders fail on this point also.
[26]As regards causation, we do not understand on what basis the Lord Ordinary said that the presence of sleepers or provision of a wider verge would not have prevented the accident. While the circumstances of the accident may indicate that the pursuer was inattentive or careless, it was never suggested to him that he had deliberately or recklessly driven too close to the edge. In the absence of any such suggestion, fairly put to the pursuer, we consider that there was a clear causal link between the proximity of the edge of the tarmac to the edge of the embankment, on the one hand, and the mechanism of the accident, on the other.
[27]We therefore find that the pursuer is entitled to succeed in his case under Regulation 5(2) of the Construction Regulations.
The case under Regulation 4 of the Work Equipment Regulations
[28]In view of the conclusion to which we have come as regards the case under the Construction Regulations, it is unnecessary for us to express an opinion on the case under the Work Equipment Regulations. Interpretation of the latter Regulations gives rise to a number of problems which would be better resolved in a case that requires that to be done.
Contributory Negligence
[29]An appeal court would normally be reluctant to disturb the Lord Ordinary's apportionment of liability. In this case, however, we consider that the Lord Ordinary failed to take proper account of the context in which the issue of contributory negligence would arise - namely, that it had been conceded that the pursuer's work place was unsafe and it had been found that the defenders had failed to take all reasonably practicable steps to make and keep it safe. The breach of statutory duty is not a mere technical lapse since the consequences of a machine falling over the edge of the embankment could have been catastrophic for the workman driving it. Even if he was careless of his own safety, the defenders had a duty to protect him against the consequences of his carelessness.
[30]While apportionment of blame must, to a certain extent, be a matter of impression, we do not consider that the defenders can be held less than 50% to blame for the accident. Having regard to all the circumstances in the proper context, a fair apportionment of liability would be 50/50.
Conclusion
[31]We therefore allow the reclaiming motion, sustain the pursuer's first plea-in-law as regards breach of Regulation 5(2) of the Construction Regulations, sustain the defenders' fifth plea-in-law relative to contributory negligence, and find the pursuer and defenders equally to blame. The case will be put out By Order in order that the financial consequences of these findings can be calculated, and decree pronounced for the appropriate sum of damages.