PATRICK MARTIN v. SCOTTISH COAL COMPANY LIMITED
| | OPINION OF T. G. COUTTS Q.C. SITTING AS A TEMPORARY JUDGE in the cause PATRICK MARTIN Pursuer; against SCOTTISH COAL COMPANY LIMITED Defenders: ________________ |
7 October 1998
The pursuer's minor accident occurred when he shut a gate, in the mine in which he was employed, on the index finger of his non-dominant, right hand.
This Proof was set down to occupy three days of the time of the Supreme Court. Apart from the pursuer two witnesses were led. The evidence was completed by 14.20 on the first day. Counsel for the pursuer then asked to address the Court on the following day. The only question on fault was an alleged breach of statutory duty. Speeches were completed by about midday and in view of the simplicity of the evidence and the small value of the claim, I decided to announce my decision before lunch on that day, giving my reasons for so doing.
The pursuer who was aged 40 was employed as a banksman by the defenders. His employment was to operate the cage which put men and materials down the pitshaft and to control the access to the cage. A rail and a gate were provided at the shaft in order to prevent persons accidentally falling down the shaft. Photographs were provided of the gate which comprised a telescopic arrangement in which the tubes which created the gate, slid into other tubes. The pursuer opened and closed that gate by sliding it along until it closed.
I accept the pursuer's evidence that he required in the course of his work to free the gate in question if it became jammed. On the day of his accident it jammed after about two to three feet of movement. The gate had a travel of about twelve feet or thereby. The pursuer freed it by stationing himself in line with the travel of the gate and pulling at that vertical bar of the gate which ultimately contacted a metal plate closing the gate. The distance which the gate required to travel on that day in order to trap the pursuer's finger was eight feet or thereby.
The pursuer had planned to move his body out of the path of the gate. When it was freed he placed his left hand on the top horizontal bar of the gate. He did not, however, remove his right hand. For that course of action he could give no explanation other than: "It happened that quick". I do not believe that the pursuer was unable to say what had happened. His evidence on that matter was not delivered in a persuasive manner. I cannot accept that the events above described happened so quickly that the pursuer, even if he had been distracted, (about which there was no evidence), was unable to, or that it was excusable for him not to, place his right hand in its normal place when the gate was moved, ie on the lower bar of the gate. He knew that that was the method of moving the gate. He had performed the operation many hundreds of times. I did not accept that, as his counsel submitted, glossing the evidence, he was taken by surprise. He had been able to move his body out of the path of the gate and place his dominant hand in a safe place.
In my judgement therefore the pursuer has failed to prove, as he must, in the words of Lord Morton of Henryton in Millar v Galashiels Gas Company 1949 S.C. (H.L.) 31 at p. 37, both that the mechanism failed to work efficiently and the failure caused the accident. He reiterated at p 39; (the respondent) "would have failed in his action if the Lord Ordinary had held that there was a breach of duty but that such breach of duty was not the cause of the accident".
In my judgement, any breach of the defenders' statutory duty of maintenance about which I have reservations, did not cause his accident. I therefore, in this case, do not require to consider whether there is any specialty in the provisions of paragraph 6(1) when read along with paragraph 5(1) of the Health & Safety at Work (Provision and Use of Work Equipment) Regulations 1992 other than to say that I would regard Lord Milligan's approach in Duncanson v South Ayrshire Council in an obiter observation as persuasive.
No doubt the jamming of the gate was an event which preceded the accident but it was not, by the stage of the accident, the cause of it. The cause was the pursuer leaving his hand in a position where it could get jammed, without any reason or excuse. I should add that had I found that the pursuer was entitled to succeed on his statutory case (the only case argued) that the measure of his contributory negligence in the whole circumstances would be in the order of 75%.
I require to consider the matter of solatium, counsel having properly and sensibly agreed the other financial consequences of the accident. The figure proposed by the defenders in the light of the Judicial Studies Board's guidelines and certain other decisions which were cited to me was £1,200 with interest at the judicial rate attributed three quarters to the past. That attribution of interest was the one contended for by the pursuer who had asked for £2,750 as solatium. For myself, I would not have valued the claim as highly as defender's counsel nor would I have awarded interest on that agreed basis. In my view this was a minor, simple fracture injury from which there was, for all practical purposes, a complete recovery within a few weeks. No doubt the injury was painful and inconvenient and part of that inconvenience was equally no doubt the consequence of the pursuer commendably returning to a dirty and inconvenient job so swiftly. However, since the defenders are prepared to accept an award of solatium in the sum of £1,200 and interest on the said basis, that would have been the sum I would have awarded had I found the pursuer entitled to damages.
In the whole circumstances, however, I will sustain the defenders' second plea-in-law, repel the pursuer's pleas-in-law and grant absolvitor.
| | OPINION OF T. G. COUTTS Q.C. SITTING AS A TEMPORARY JUDGE in the cause PATRICK MARTIN Pursuer; against SCOTTISH COAL COMPANY LIMITED Defenders: ________________ Act: Allardyce Thompsons Alt: Anderson McClure Naismith 7 October 1998 |
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