CHRISTOPHER KING v. FIFE COUNCIL AND ANOTHER
| OUTER HOUSE, COURT OF SESSION |
| A225/03 | OPINION OF LORD BRODIE in the cause CHRISTOPHER KING Pursuer; against FIFE COUNCIL and ANOTHER Defenders: ________________ |
Pursuer: Allardice; Thompsons,
Defenders: Poole; Solicitor to the Scottish Executive
5 December 2003
Introduction
[1]In this action the pursuer sues for damages in reparation for injury which he avers he sustained on 27 April 2000 when, as a recent recruit to the Fife Fire & Rescue Service, he was taking part in a ladder drill as part of an initial training course at the Scottish Fire Service Training School, Gullane ("the School"). The drill involved a team of four, of which the pursuer was a member, carrying a 13.5 metre ladder, the weight of which was about 100 kilograms. The team was under the supervision of an instructor, Steve Wixon. As part of the drill, the pursuer and his fellow trainees were instructed by Mr Wixon to carry the ladder between two flagpoles in the yard at the School. The pursuer avers that during this exercise he was required to support the rear end of the ladder unaided, whilst his fellows ran to the other side of the flagpoles and that he had to stretch and twist his body in order to move the ladder through the space between the flagpoles. He avers that as he did so, he felt a sharp pain in his lower back. He avers that this accident has accelerated the onset of prior degenerative changes in his lower spine.
[2]The pursuer sues, first, his employer, Fife Council; and, second, the Lord Advocate, as representing the Scottish Ministers, and as being in law responsible for the acts and omissions of the pursuer's instructor, Mr Wixon. Cases of fault and breach of statutory duty on the part of the first defender are set out in articles 4, 5 and 6 of the condescendence. The case of fault on the part of Mr Wixon appears in article 7 of condescendence. Mr Wixon is said to have failed in his duties to take reasonable care for the pursuer and not to expose him unnecessarily to risk of injury, to give the pursuer suitable and sufficient instructions about carrying a ladder in a safe manner; and to give the pursuer suitable and sufficient instructions about manoeuvring the ladder between the flagpoles in a safe manner.
[3]The action came before me at a hearing on procedure roll, on the second defender's first plea-in-law which is a general plea to the relevancy. The pursuer was represented by Mr Allardice. The second defender was represented by Miss Poole. The first defender which, I was advised, had offered proof before answer, was not represented. Miss Poole's primary motion was that the second defender's first plea-in-law should be sustained and the action dismissed in so far as directed at the second defender. In the event that I was not persuaded to dismiss the action, Miss Poole moved me to exclude from probation the averments relating to the Management of Health and Safety at Work Regulations 1992 quoad the second defender. Mr Allardice moved me to allow a proof before answer in relation to the cases against both defenders, without any averments being excluded from probation and with all pleas standing.
Vicarious Responsibility
Submissions
[4]Miss Poole explained that her submissions were concerned with two issues: vicarious liability for the instructor, Mr Wixon; and the relevancy of the averments, at page 17D to E of the Closed Record, relating to the obligation of those whom the second defender represents under regulation 3 of the Management of Health and Safety at Work Regulations 1992 to make a suitable and sufficient assessment of the risks to the health and safety of their employees to which they were exposed while at work. In respect of the first issue, she submitted that the pleadings do not establish a basis on which the second defender can be held to be vicariously liable for the acts and omissions of an instructor who, it is admitted, was not in the employment of the Scottish Ministers. The case against the second defender should be dismissed. In respect of the second issue, Miss Poole submitted that the averments relating to the Management of Health and Safety at Work Regulations 1992 quoad the second defender was, in any event, irrelevant and should be excluded from probation.
[5]In developing her submission in respect of the first issue, Miss Poole began by drawing my attention to such averments as might bear on the proposition, set out by the pursuer at page 7C of the Record, that the second defender is in law responsible for the acts and omissions of Mr Wixon. At page 5A it is averred that the Scottish Ministers, whom the second defender represents, are responsible for the maintenance and operation of the School. The second defender admits that he is ultimately responsible for the School. At page 6B to C the pursuer again avers that the School was operated by the Scottish Ministers. He avers that the School was staffed by instructors seconded to it from fire brigades from different parts of Scotland, but he believes to be true, as is averred by the second defender at 7A, that the instructors remain in the employment of the brigade from which they are seconded. At page 9 B the pursuer believes it to be true, as is averred by the second defender at page 15C, that his instructor, Mr Wixon, was seconded from Dumfries and Galloway Fire Authority. At page 10D Mr Wixon is averred to have been encouraging the pursuer and his colleagues to carry out the exercise in the manner previously condescended upon. Whereas at page 7C and again at page 25D it is averred that the second defender is in law responsible for the acts and omissions of Mr Wixon, there is no expansion upon the averment which might explain why this should be so. The second defender does not admit vicarious liability. At page 7A to B he avers that instructors remained in the employment of the respective fire brigades from which they had been seconded and continued to be paid by these fire brigades. He avers that they did not become employees of the School.
[6]In the light of these averments, Miss Poole submitted that, in general, an employer is not responsible for the negligence of an independent contractor. There are exceptions to this proposition but none of the exceptions is averred in the present case. Miss Poole accepted that responsibility for an employee may be transferred from his actual or general employer temporarily (otherwise pro hac vice - for this occasion), but an argument that such a temporary transfer is adequately instructed by the averments in the present case must fail on the authorities which establish the following propositions. First, transfer of responsibility must be proved, not presumed. There is a heavy burden of proof and it is difficult to show transfer: Mersey Docks v Coggins and Griffiths (Liverpool) Ltd [1947] AC 1; Moir v Wide Arc Services Ltd 1987 SLT 495. Second, the courts look at a number of factors to decide whether there has been an effective transfer of responsibility: intention of the parties, freedom of selection of employees, duration of contract, payment, provision of tools and equipment, arrangements for termination. They look at the control exercised over the employee. For there to have been a transfer of responsibility, entire control must have passed to the party said to be temporarily responsible (the temporary employer) and, in particular, control not just over the tasks to be done, but the method of performing the task or the manner of working: Mersey Docks supra; Moir supra; Karuppan Bhoomidas v Port of Singapore Authority [1978] 1 All ER 956. Third, as a matter of relevancy, specific averments are necessary to set up a relevant case of transfer of employment: Kerr v Hailes (Plant) Ltd 1974 SLT (Notes) 31. Fourth, there are good policy reasons why the court should continue with this restrictive approach to transfers of responsibility. Primary responsibility lies with the general employer. To admit of easy transfer of responsibility might make it hard for employees to sue the right person. The Employers' Liability (Compulsory Insurance) Act 1969 imposes duties on employers to ensure that injuries at work can be compensated. Apart from the first defender, there is an employer here who has responsibility for Mr Wixon. That employer might have been sued given that the second defender had identified it by way of averment prior to the expiry of the triennium. It was Miss Poole's submission that even if the pursuer proved everything he averred, he could not discharge the onus of demonstrating transfer of responsibility for Mr Wixon from his general employer, Dumfries and Galloway Fire Authority, to the Scottish Ministers pro hac vice. What was required were averments as to who trained Mr Wixon, how the arrangement for seconding him to the School was set up, who supervised him, who reviewed him, what was the intention of the parties to Mr Wixon's being seconded to the School, who paid him, and who could hire and fire him. The averments in the present case were entirely silent in relation to all these matters.
[7]In responding to this branch of the argument, Mr Allardice began by referring to the speeches of Viscount Simonds and Lords Keith and Denning in Miller v South of Scotland Electricity Board 1958 SC (HL) 20. He drew my attention to the very succinct pleadings in that case, as reproduced at page 21 of the report. He reminded me of the test that the second defender must meet if the action was to be dismissed: even if the pursuer proves all his averments he must necessarily fail: Jamieson v Jamieson 1952 SC (HL) 44, Lord Normand at 50. A badly pled case did not warrant dismissal. For dismissal there must be no case on Record. He accepted that there was an onus on the pursuer to aver facts and circumstances from it might be inferred that the second defender was responsible in law for the negligence of the instructor but, in his submission, that is what he had done. Turning to the Closed Record in the present action, Mr Allardice drew my particular attention to the averments at page 6A to B. He emphasised that the School was "staffed" by instructors "seconded" from fire brigades from other parts of Scotland. This was an indication of temporary transfer: responsibility for those who instructed at the School (such as Mr Wixon) was transferred to the Scottish Ministers, notwithstanding that they might remain employed by, for example, Dumfries and Galloway Fire Authority. The issue was one of responsibility and liability, not employment. What Mr Allardice described as "actual employment" need not be transferred for there to be a transfer of liability. The Scottish Ministers chose to staff the School with employees of fire brigades from around Scotland. This should not allow them to escape responsibility for their staff. This was not just a little job. It was central to the work and purpose of the School. This was not a case of bringing in an independent contractor. That was quite a different thing. As in Miller, some of the answers would only come out after proof. Although Mr Allardice did not seek to take issue with what had been said in the authorities referred to by Miss Poole, he pointed to the decision in Marshall v William Sharp & Sons Ltd 1991 SLT 114 as showing that the issue of control was not conclusive.
Discussion
[8]The pursuer's case against the second defender depends upon the proposition, which he expresses by way of averment, that the second defender is in law responsible for the acts and omissions of Mr Wixon. If he cannot establish the soundness of that proposition his action, in so far as directed against the second defender, will fail.
[9]In general, a person is liable only for his own acts and omissions, and not for those committed by others. That is the general rule. There are exceptions to the general rule, of which the most frequently encountered is that an employer will be liable for damage caused by the fault or negligence of his employee while acting in the course of his employment. This exception to the general rule is long and well established. Employment is a matter of fact. A pursuer wishing to avail himself of the exception and to sue the employer for the fault or negligence of his employee must put the matter in issue by averring in his pleadings a factual basis for vicarious responsibility, but normally a brief reference to employment and an assertion that the employee was acting in the course of his employment will suffice for the purposes of relevancy. Also well established is an extension to the exception, arising out of the practice of an employee of one party (the general employer) being placed at the disposal of another party (the temporary employer) with a view to the employee doing work for the temporary employer. In such a situation "it is always open to an employer to show, if he can, that he has for a particular purpose or on a particular occasion temporarily transferred the services of one of his general servants to another party so as to constitute him pro hac vice the servant of that other party with consequent liability for his negligent acts": Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd supra, Lord Macmillan at 13. Thus, if the general employer is shown to have transferred the services of his employee to the temporary employer then the temporary employer is deemed to be the employer of the employee for the purpose of vicarious responsibility. This may be referred to as employment pro hac vice - for this occasion. It is this well-established extension of the exception upon which the pursuer relies in suing the second defender as representative of the Scottish Ministers. The pursuer contends that the Scottish Ministers, although they were not the general employers of Mr Wixon, are to be deemed to have been his employers for the purpose of vicarious responsibility for Mr Wixon's negligence in carrying out his duties as instructor at the School. He contends that responsibility for Mr Wixon had been transferred from Dumfries and Galloway Fire Authority (his general employer) to the Scottish Ministers (his temporary employers). As employment is a question of fact so is employment pro hac vice a question of fact: "a change of employer must always be proved in some way, not presumed": Mersey Docks and Harbour Board supra, Lord Porter at 15. The issue raised by the Procedure Roll discussion therefore came to be whether the pursuer had averred a sufficient factual basis for the pro hac vice employment upon which vicarious responsibility on the part of the Scottish Ministers depends.
[10]I consider that Miss Poole was correct to submit, on the basis of the authorities to which she referred, that transfer of responsibility from the general employer will not be lightly inferred. Thus, in Mersey Docks and Harbour Board supra, Viscount Simon said this at 10:
"It is not disputed that the burden of proof rests on the general or permanent employer ... to shift the prima facie responsibility for the negligence of servants engaged and paid by such employer so that this burden in a particular case may come to rest on the hirer who for the time being has the benefit of the service rendered. And, in my opinion, this burden is a heavy one and can only be discharged in quite exceptional circumstances."
Although Viscount Simon speaks of the burden of proof being on the general employer, it was a matter of agreement between counsel that in the present case, where it is the pursuer who has chosen to assert that there had been a shift of the prima facie responsibility of the general employer to the Scottish Ministers as temporary employers of Mr Wixon, the burden of proof is on the pursuer to establish that. In Moir v Wide Arc Services Ltd supra Lord Davidson said this about the burden of proof in such a case at 497A to B:
"In my opinion Lord Simon's dictum that the onus on the general employer is a heavy one is a dictum of general application. I refer to Karuppan Bhoomidas v Port of Singapore Authority [1978] 1 WLR 189 at 192 and 193 per Lord Salmon. I do however agree with counsel for the defenders that in some cases the circumstances make it easier for the general employer to discharge the heavy onus of proving the entire and absolute transfer of control."
[11]I further consider that Miss Poole was correct, on authority, to submit that a number of factors fall to be looked at in determining whether there has been a transfer of responsibility from the general to the temporary employer. Who has the power to exert detailed control over the employee is of importance, but, as Mr Allardice submitted, power to control is not of itself conclusive. The more skilled the employee the more difficult it may be to demonstrate a transfer of control over the way in which he carried out his duties and therefore the more difficult it may be to demonstrate a transfer of responsibility for his acts and omissions. In Mersey Docks and Harbour Board supra Viscount Simon favoured a control test (at 12):
"I would prefer to make the test turn on where the authority lies to direct, or to delegate to, the workman, the manner in which the vehicle is driven. It is this authority which determines who is the workman's 'superior'."
Lord Macmillan was to similar effect (at 13):
"I am of opinion that, on the facts of the present case [the crane driver] was never so transferred from the service and control of the appellant board to the service and control of the stevedores as to render the stevedores answerable for the manner in which he carried on his work of driving the crane. The stevedores were entitled to tell him where to go, what parcels to lift and where to take them, that is to say, they could direct him as to what they wanted him to do; but they had no authority to tell him how he was to handle the crane in doing his work. In driving the crane, which was the appellant board's property confided to his charge, he was acting as the servant of the appellant board, not as the servant of the stevedores."
As was Lord Porter (at 17):
"Many factors have a bearing on the result. Who is paymaster, who can dismiss, how long the alternative service lasts, what machinery is employed, have all to be kept in mind. The expressions used in any individual case must always be considered in regard to the subject matter under discussion but amongst the many tests suggested I think the most satisfactory, by which to ascertain who is the employer at any particular time, is to ask who is entitled to tell the employee the way in which he is to do the work upon which he is engaged. If someone other than his general employer is authorised to do this he will, as a rule, be the person liable for the employee's negligence. But it is not enough that the task to be performed should be under his control, he must also control the method of performing it. ... [The] ultimate question is not what specific orders, or whether any specific orders, were given but who is entitled to give the orders as to how the work should be done."
And Lord Simonds (at 18):
"Newall was the servant of the appellants. He was engaged and paid and liable to be dismissed by them. So also, when the contract [for the supply to the respondents by the appellants of a crane and Newall as craneman] had been performed, he was their servant. If then in the performance of that contract he committed a tortious act ...by his negligence, they can only escape from liability, if they can show that pro hac vice the relation of master and servant had been temporarily constituted between the respondents and Newall and temporarily abrogated between themselves and him. This they can only do by proving ...that 'entire and absolute control' over the workman had passed to the respondents. ...it appears to me that the test can only be satisfied if the temporary employer (if to use the word 'employer' is not to beg the question) can direct not only what the workman is to do but also how he is to do it."
In Moir v Wide Arc Services Ltd supra at 497K Lord Davidson said:
"In Denham v Midland Employers Mutual Assurance Ltd [1955] 2 QB 437 at 444 Denning LJ said this: 'Such a transfer [of responsibility] rarely takes place, if ever, when a man is lent with a machine, such as a crane or a lorry; nor when a skilled man is lent so as to exercise his skill for the temporary employer. In such a case the parties do not contemplate that the temporary employer shall tell the man how to manipulate his machine or to exercise his skill. But a transfer does sometimes take place in the case where an unskilled man is lent to help with labouring works ...The temporary employer can then no doubt tell the labourer how he is to do his job. The labourer becomes so much a part of the organisation to which he is seconded that the temporary employer is responsible for him and to him.' That dictum was approved by the House of Lords in John Young & Co (Kelvinhaugh) v O'Donnell 1958 SLT (Notes) 46 - see Brogan v William Allan Smith & Co Ltd 1965 SLT 175. In the present case no one in the defenders' organisation had sufficient seniority and skill to tell Gabriel [the employee at fault] how to do his job as a fitter. But I do not think that that fact makes it easier for the defenders to discharge the heavy onus that rests upon them. The defenders controlled Gabriel in that they engaged him as their employee, they paid him and they alone could dismiss him. Even if the defenders exercised minimal control over Gabriel when he was working at the mill, they cannot succeed unless they prove that that control was transferred completely to Wiggins Teape. ...In my opinion the defenders fail in this part of the case unless they prove that the Wiggins Teape senior staff could expect to give instructions to Gabriel as to the routine exercise of his skill as a fitter."
Reference was made by Mr Allardice to Marshall v William Sharp & Sons Ltd 1991 SLT 114 in which Lord Justice-Clerk Ross (at 121A) had accepted that control was the principal test, but observed that it was not conclusive, and that all the circumstances required to be considered. In that case the issue was not whether an employee had been transferred pro hac vice from the employment of one employer to the employment of another, but rather whether an independent contractor was in such a position in relation to his employer that the employer was vicariously responsible for his negligence, notwithstanding his status as an independent contractor. It was accepted in the course of argument in Marshall that the employer of an independent contractor might be vicariously liable for the acts and omissions of the contractor, albeit in exceptional circumstances. Mr Allardice submitted that while control was no doubt a "big factor", Marshall demonstrated that there might be vicarious liability even in the absence of control. In one of the passages to which my particular attention was drawn, Lord Justice-Clerk Ross put the matter this way (at 121):
"That a critical test is control was recognised in Malley v LMS Railway Co 1944 SC 129 and Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1. Before this court counsel for both parties were agreed that control was the principal test. On the other hand, control is not, in my opinion, conclusive; it is the principal test, but all the circumstances require to be considered."
[12]Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd, Moir v Wide Arc Services Ltd, and Marshall v William Sharp & Sons Ltd were all decided after evidence had been led. However, if the pursuer is to satisfy the heavy onus which these authorities indicate is incumbent upon him, he requires to aver primary facts which, if proved, would allow the inference to be drawn that responsibility for his conduct in the discharge of the duties of his employment had transferred from Dumfries and Galloway Fire Authority to the Scottish Ministers. I understood Mr Allardice to accept that. In the absence of sufficient in the way of averment of primary facts, whether relating to transfer of control or other of the factors canvassed by Miss Poole and referred to in the authorities, the pursuer's case, in so far as directed against the second defender falls to be dismissed, it being understood, as Mr Allardice reminded me, under reference to what was said by Lord Normand in Jamieson v Jamieson 1952 SC (HL) 44 at 50, that an action will not be dismissed as irrelevant unless it must necessarily fail even if all the pursuer's averments are proved.
[13]Mr Allardice drew my attention to the decision of the House of Lords in Miller v South of Scotland Electricity Board supra. There, the father of a child brought an action for damages against the authority responsible for the public service of the supply of electricity in the town of Lochgelly in respect of injury sustained by his child when playing in a partially demolished house. It was averred by the pursuer that while in a room in the house the child picked up an armoured cable which was lying on the floor and from which four inches of bare wire were protruding. The boy gripped the bare wire with his right hand. The wire had not been neutralised, and, as result, the boy sustained an electrical shock and consequent injury. Having noticed the quotation from and summary of the pleadings taken from the speech of Lord Keith of Avonholm at pages 21 and 22 of the report (part of which I have reproduced in this paragraph), Mr Allardice referred to the speech of Viscount Simonds at 32 where there appears the following:
"The question raised in this appeal is whether the appellant has averred a relevant case of fault. In the Court of Session the Lord Ordinary sustained the submission of the respondents that no relevant case had been made against them. The appellant reclaimed but the First Division unanimously refused the reclaiming note and adhered to the Lord Ordinary's interlocutor. Upon such a question I am naturally reluctant to differ from their Lordships, but it appears to me that in this branch of the law, where, perhaps unfortunately, the result must often turn on fine distinctions, it is undesirable, except in a very clear case, to dismiss an action on the ground that the pursuer's averments are irrelevant and insufficient in law."
Mr Allardice then turned to the speech of Lord Keith of Avonholm at 33 where his Lordship says this:
"This case raises some important and difficult questions of law which, in my opinion, it is not possible adequately to deal with without a fuller knowledge of all the facts and circumstances and which it would be imprudent to embark on at this stage of the case. 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".
Lord Keith went on to explain:
"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 care which the circumstances demand from a reasonable man. The circumstances in any particular case will normally have to be ascertained by evidence. They vary infinitely. The facets and detail of a 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. This may be such a case. I cannot tell until the facts have been properly elucidated by the normal processes of taking evidence. I can only say that upon the averments here, which are made with commendable succinctness and absence of word-painting, I am unable to say that the pursuer has no case."
The final passage from Miller which was founded on by Mr Allardice comes from the speech of Lord Denning at 39:
"If the pursuer avers facts from which it may be inferred that the defenders were negligent and that that negligence was one of the causes of the injury, then he makes out a prima facie case ..."
In the light of these dicta the test proposed by Mr Allardice to be applied in the present case was whether the pursuer had averred facts and circumstances from which it might be inferred that the second defender was responsible in law for the negligence of the instructor.
[14]I am content to adopt Mr Allardice's test. Therefore what must be averred by the pursuer are primary facts and circumstances which, if proved, would allow the inference to be drawn that responsibility for Mr Wixon's conduct in the discharge of the duties of his employment had transferred from Dumfries and Galloway Fire Authority to the Scottish Ministers. What Mr Allardice relied on was the following:
"The Scottish Ministers are responsible for the maintenance and operation of the Scottish Fire Service Training School, Gullane." (page 5A)
"...The School was operated by the Scottish Ministers. It was staffed by instructors seconded to it from fire brigades from different parts of Scotland. ...the instructors at the Scottish Fire Service Training School remain in the employment of the brigade from which they are seconded." (page 6A to C)
Mr Allardice laid particular stress on the words "staffed", "seconded" and "operated". He supposed that there might be other members of staff who were directly employed by the Scottish Ministers under contracts of employment but the pursuer's averments pointed to the instructors being in a different position. They were "seconded". That indicated that their employment had been temporarily transferred. While reminding me that the issue of control was not conclusive, Mr Allardice pointed to the averment that the Scottish Ministers "operated" the School. That implied a degree of control.
[15]I do not accept that "seconded" has the very particular meaning ascribed to it by Mr Allardice but even if I am wrong about that, the averment is by way of a conclusion which, as I understood Mr Allardice, he agreed would have to be inferred from primary facts. Accepting Mr Allardice's submission, under reference to Marshall v William Sharp Sons Ltd supra, that the question of who exercised control over the relevant employee was not conclusive, I find no averment of primary fact (whether relating to control or any of the other factors which are referred to in the authorities) which would allow the necessary inference to be drawn. That the Scottish Ministers "operated" the School may mean any number of things. The word "operated", which gets no further specification, is imprecise. It does not, of itself, in the context of the whole pleadings, indicate any particular degree of control over instructors working in the School where these instructors are in the employment of other bodies. It does not, in my opinion, materially advance the proposition that the Scottish Ministers are to be regarded as vicariously responsible for the acts and omissions of these instructors. The function of pleadings in Scottish procedure is, or ought to be, well known. It is certainly uncontentious. In Parker v Lanarkshire Health Board 1996 SCLR 57, Lord McCluskey said this, at 58F:
"Under our system of written pleadings, which allow adjustment and, if necessary, amendment, it should not be difficult in a simple personal injury case, like the present, for parties to set out their respective positions unambiguously so that the reader, including the judge, can discover what are the disputed issues to be resolved by the leading of evidence. The parties themselves ought to be able, by studying the written pleadings in the closed record, to know what it is that they are called upon to lead evidence about, in the light of the well-understood rules of the onus of proof."
As Lord McCluskey acknowledged, in that passage he was merely re-stating what had been said, more than one hundred and fifty years before, by Lord Justice-Clerk Hope in Neilson v Househill Coal & Iron Co (1842) 4 D 1187 at 1193:
"The beauty of the Scotch system is, that, without disclosing what is properly called evidence, you must at least state the line of defence, and the main facts and points in the enquiry on which you rest, so that the other party shall be fully able previously to investigate the case, and to be prepared for it."
Here, the pursuer does not state the "main facts and points in the enquiry". The
defender, on reading the Record, is not given notice of what he is to investigate and what he is to be prepared for. Testing it another way, the pursuer provides himself with no reasonably specific basis in averment for a line of evidence upon which he could rely in seeking to persuade the court that the second defender was indeed in law responsible for the acts and omissions of Mr Wixon. What that evidence may be remains obscure and Mr Allardice gave no hint in the course of submission as to what that evidence might be. That, of course, was a perfectly proper position for him to adopt. The court should be able to understand the pursuer's case from reading the pleadings. On reading this Record, I am quite unable to ascertain what it is that the pursuer intends to prove in order to establish vicarious responsibility on the part of the second defender for the acts and omissions of Mr Wixon. In my opinion, it is not enough for the pursuer to point to the very general averment that the Scottish Ministers are responsible for "the maintenance and operation" of the School with a view to suggesting that that might be elaborated upon in evidence, in a way that is entirely unspecified, with a view to persuading the court to treat Mr Wixon as if he was the employee of the Scottish Ministers, albeit he actually remained in the employment of the Dumfries and Galloway Fire Authority. A proof before answer is not an inquiry at large. Its parameters are delineated by the pleadings. In my opinion, the pursuer has failed to make averments as to matters of fact that are essential to the only case that he makes against the second defender. That case therefore falls to be dismissed.
Regulation 3 of the Management of Health and Safety at Work Regulations 1992
Submissions
[16]I also heard a submission by Miss Poole that the averments about the Management of Health and Safety at Work Regulations 1992 which are found at page 17D to 18A of the Closed Record were irrelevant, in so far as by using the expression "the defenders" they related to the second defender. Given my decision in relation to the first chapter of her submissions, this second chapter is not of importance but it is appropriate nevertheless that I should express my view on the matter. The averments complained of were in the following terms:
"In terms of Regulation 3 of the Management of Health and Safety at Work Regulations 1992 the defenders were obliged to make a suitable and sufficient assessment of the risks to the health and safety of their employees to which they were exposed whilst at work. The defenders made no such assessment in relation to said task. Had they done so they would not have permitted the pursuer to undertake it. While the Management of Health and Safety at Work Regulations 1992 do not import civil liability, they are indicative of the care a reasonable employer would exercise with regard to the health and safety of its employees."
Miss Poole began by submitting that these averments were, on any view, irrelevant in that, as from 29 December 1999, the 1992 Regulations had been revoked by the Management of Health and Safety at Work Regulations 1999. Moreover, the reference to the 1992 Regulations is irrelevant in that while the terms of the Regulations may in some circumstances be relevant in that they indicate the care that a reasonable employer would exercise in respect of its employees, if that is the purpose of the reference it would be necessary for the pursuer to show: (1) that there was a duty to assess; (2) what the assessment would have shown, it being the failure to fulfill the duty of taking precautions, rather than the purely procedural obligation to carry out an assessment that gives rise to liability; (3) that the requirements of the assessment are the same as the common law; and (4) that there is a causal connection between what the assessment would have shown and the breaches averred: Cross v HIE 2001 SLT 1060 at 1078 to 1080; Taylor v City of Glasgow Council 2000 SLT 670 at 671K; Anderson v Lothian Health Board 1996 SCLR 1068 at 1071D. Miss Poole submitted that the pursuer's averments failed on points (1) and (4): the pursuer was not averred to be an employee of the Scottish Ministers, and there was no causal connection between not permitting the pursuer to undertake the drill and the provision of suitable and sufficient instructions in carrying a ladder. Miss Poole disputed that there was any duty on the part of those represented by the second defender to make an assessment. Even if there was a duty to assess, there is no averment as to the precaution such assessment would have shown to be necessary. What was averred was that had the "defenders" made an assessment they would not have permitted the pursuer to undertake the drill at all. If what the assessment is supposed to have revealed is a precaution which would have prevented the pursuer sustaining injury then that can only be of relevance if the assessment is by reference to the standard of the common law. Here there are no averments to indicate that this might be the case, either by reference to practice or anything else. Neither are there averments pointing to a causal relationship between failure to carry out an assessment and the pursuer's injury.
[17]In response, Mr Allardice accepted that there was no common law case directly against the Scottish Ministers whom the second defender represented. It was not intended that anything which an assessment carried out under the 1992 Regulations might have revealed would be founded upon in support of the case made in article 7 of condescendence. The reference to the obligation to undertake a risk assessment was to facilitate recovery of any documentary risk assessments as may be in the hands of the Scottish Ministers. Practices differ, Mr Allardice informed me, but some judges will insist upon a reference to a document in the pleadings before approving a specification in respect of its recovery by way of commission and diligence. It would assist the pursuer if a risk assessment demonstrated that participating in the drill carried with it a risk of injury. This might be of value in making the existing case against the first defender. As far as the 1992 Regulations were concerned, these were indeed the relevant regulations in that they were the regulations in force up until 29 December 1999, which was not long before the pursuer sustained his injury.
Discussion
[18]I accept that, within reason, a party is entitled to object to the inclusion of clearly extraneous and therefore irrelevant averments in pleadings, particularly if they in some way reflect adversely on his conduct. I take that to be so even if the averments objected to provide no basis for any remedy which may be sought against that party. The submission for the second defender here is that the averments which I have quoted at paragraph [16] above are irrelevant in relation to any case against him. Essentially that was conceded. The justification put forward for the averments was that should any risk assessment have been carried out as to the drill in which the pursuer was injured and should documentation of that assessment be in the hands of the Scottish Ministers that "might be of value" to the pursuer in relation to a case he was making against the first defender were he to recover it by way of commission and diligence. Among the difficulties associated with this justification is that the pursuer avers that "[the] defenders made no such assessment in relation to said task." To be frank, the averments complained of have the look of either having been lifted from a style with little consideration of the particulars of this case, or of being left over from an earlier stage of pleading. Be that as it may, I have reservations about acceding to Miss Poole's invitation to exclude these averments from probation "quoad the second defender". I am not persuaded that a particular set of averments can be excluded from probation in relation to one party but not in relation to another. The reservation of a plea to the relevancy would appear to offer sufficient protection to a party's position. Whatever the reason for its inclusion in the pleadings, while ambiguous, the expression "the defenders" could refer to the first defender which has offered proof before answer on the whole Record. Accordingly, even had I not decided to dismiss the case against the second defender, I would not have refused probation in respect of these averments, leaving their relevancy to be considered at proof, should that be necessary. Whether their presence on Record would in any way advance the pursuer's position in the event of him seeking an order for recovery of documents is not a question that I am required to decide and is not a question on which I offer an opinion.
Decision
[19]I shall uphold the first plea-in-law for the second defender and dismiss the action in so far as directed against him. Quoad ultra I shall allow proof before answer. I shall meantime reserve all questions of expenses.