Informed comment on important cases in 2013 from Bonnar Accident Law’s senior litigation team.
PERSONAL INJURY CASE UPDATE 2013 –
Compiled by Julian P. Hanrahan, Associate Solicitor, Bonnar Accident Law
Grant v Fife Council  CSOH11
Outer House decision where the pursuer was injured whilst taking part in a team building exercise organised by his employers. Pursuer suffered injuries when he fell attempting to traverse monkey bars which were 8ft above the ground. Serious knee injury. Case pled in terms of failure to risk assess under the Management of Health & Safety at Work Regulations 1989 and under the Work at Height Regulations. The defenders take to procedural roll hearing alleging that the team building exercise was not within the pursuer’s scope of employment, that accordingly his claim is under the 1999 and 2005 Regulations was irrelevant and even if the Regulations were in principal applicable the pleadings did not support a case under Regulation 10 of the 1989 Regulations and Regulation 7 of the 2005 Regulations. Held by Lord Stewart that the case was satisfactorily plead on the basis that whilst not his normal employment, work of some sort was being carried out. Case allowed to proceed to Proof Before Answer.
Kennedy v Chivas Brothers Ltd  CSIH 57
Manual Handling and Work Equipment case. Pursuer injured pulling a trolley containing boxes of bottled caps, which weighed a total of 380kgs. Clear breaches of Regulation 4 PUWER and Regulation 4 Manual Handling Regulations established.
Elphinstone v Shetland Isles Council  CSOH 96
Manual Handling case with carer sustaining back injury whilst employed by defenders. Decision of Lord Stewart following proof. Pursuer unsuccessful in case under PUWER on the basis that there was no allegation that equipment provided was unsuitable, rather the case being made was one that no suitable equipment had been provided. Also unsuccessful under Manual Handling Regulation due to failure to establish breaches of these Regulations were causative of injury.
Hill v Norside  CSIH 44
Inner House decision concerning a fall from ladders when descending from scaffolding. Appeal by defenders against an assessment of contributory negligence on the part of the pursuer at 20%. Appeal unsuccessful. Helpful case for pursuer in the context of allegations of contributory negligence where breach of statutory duty is established.
Ronald Pate v Stuart Holme (Scotland) Ltd & Another  CSOH 30
One of our own successes. Work at height case in which the pursuer fell from a roof. Liability established under the Work at Height Regulations and 1996 Construction Health Safety & Welfare Regulations. Contributory negligence assessed at 33%.
Harrower v Clackmannanshire Council
Work at Height case in the Sheriff Court in which the pursuer fails. Pursuer is a painter and decorator working from concrete steps at the side of a house. Perhaps not surprisingly the pursuer fails to succeed essentially on the basis that whilst the Work at Height Regulations did apply, the risk of injury was very small, the height of the stairs was low and the likelihood that injury was not high. In addition the defenders had already taken some precautionary measures, including regular training of the pursuer and therefore no further reasonably practicable measures could have been taken to albeit the risk.
Brown v East Lothian Council  SLT721
In this case the pursuer is a fitness instructor who had hired a hall from the defenders for the purposes of conducting her fitness class. Breaches are alleged of regulations 5 and 12 of the Workplace (Health Safety & Welfare) Regulations and at common law. Taken to Procedure Roll. Lord Jones takes a very strict view of pleadings and decides that because the pursuer had not specifically averred that the defenders knew she would be working in the premises at the time as opposed to simply using them for recreation purposes, she was not entitled to rely on the regulations. The pursuer’s common law case is allowed to proceed to proof. Also interesting from the pursuer’s perspective in that the defenders had pled a contractual exclusion of liability for personal injury, which was held void under the Unfair Contract Terms Act 1977.
French v Strathclyde Fire Board  SLT247
Case in which device used by fire fighters when breaking into a garage premises was held not to be suitable work equipment in terms of Regulation 4 PUWER (in the particular context it was used on in the night in question), as it was reasonably foreseeable that the use of the tool in a situation where the gable end was unsupported and unstable was liable to cause a collapse of the gable wall with a consequent risk of injury and on causation that the tool had actually caused the collapse of the gable. Interestingly, the pursuer who was an experienced fireman fully trained on the use of the tool, was not found contributory negligent.
Cairns v Northern Lighthouse Board  SLT645
Interesting case involving back injury suffered by the pursuer onboard a boat being taken to complete an audit of equipment in a lighthouse. Pursuer succeeds under Merchant Shipping and Fishing Vessels (Health and Safety at Work Regulations 1997).
Kennedy v Cordia  CSOH 130
The pursuer in this case was a home carer attending at the house of a sick person during the severe winter of December 2010. Essentially, she slipped and fell on ice and snow on the pathway leading to the sick persons house. Following proof Lord McEwan found the defenders liable for failure to provide suitable equipment under the PPE Regulations and for failing to properly risk assess under the Management of Health and Safety at Work regulations. Interestingly for the post Enterprise Act world, Lord McEwan was also willing to find the defenders liable at common law. Finally he also found there was no contributory negligence going out of his way to comment that a suggestion of 60% contributory negligence made by senior counsel for the defenders ‘should not have been made and was unstatable’. A very useful case for pursuer’s agents.
McKeown v Inverclyde Council  CSOH 141
Another slip on ice case in which the pursuer succeeds in the context of a workplace accident. Liability this time under Regulation 12 (3) of the Workplace Regulations. Essentially in this case, the pursuer was a janitor applying salt to a school premises having not had any assistance by way of instruction of training from his employers. The defenders counsel, none the less, suggested a significant degree of contributory negligence including making the submission that the pursuer should be found 100% to blame. This was rejected by Lord Burns who found no contributory negligence. From the pursuers point of view, this case and the above case demonstrate that in a situation where the pursuer is injured during the court of his employment, there are reasonable prospects of success on a slip on ice case. The position can perhaps be contrasted with public liability cases against local authorities for failure grit which remain extremely difficult.
OCCUPIER’S LIABILITY/PUBLIC LIABILITY
Cowan v Hopeton House Preservation Trust  SLR62
Interesting case where the pursuer succeeds when he falls down essentially a large embankment whilst attempting to take a shortcut back to the car park following a night time walk at Hopeton House. Interesting case for pursuer’s agents where under the Occupier’s Liability Act liability was established even although the pursuer had fallen down what would normally be considered a natural feature of the land of which there is generally no duty to fence. Case succeeds essentially on the specific facts of the case in relation to instructions given to participants on the night walk on how to safely return to the car park in the absence of any lighting. Note that the pursuer was however found 75% contributory negligent.
Dawson v Page  CSIH34
Case in which the pursuer is unsuccessful in a case under the Occupier’s Liability Act when delivering a parcel to a house that was effectively a construction site at the time. Slips and falls off a wooden plank allowing access to the door. Perhaps a rather harsh decision in which the pursuer fails to succeed when delivering essentially on the basis that he could have chosen not to deliver the parcel given the state of the premises.
Glennie v University of Aberdeen  CSOH71
Case in which the pursuer was playing tennis when he slipped and fell, sustaining a serious ankle injury. Defenders accepted that if moss was present on the playing surface they would be liable. On the evidence the pursuer failed to establish that moss present at the time. A reminder to pursuer’s agents of the need to fully investigate claims at as early a stage as possible and obtain good quality photographic evidence as early as possible. Clearly in this case, had the pursuer had photographs showing moss present on the tennis court, it is likely it would have settled.
Phee v Gordon Millers  CSIH18
Accident on golf course. Pursuer sustained serious eye injury when struck by a ball driven by another player. At first instance pursuer succeeded against the golfer who struck the ball and the club and liability was apportioned 70% to the player, 30% to the club. Inner House interfered with the apportion of liability and found club 80% to blame and golfer 20% to blame.
Ryder v Highland Council 2013 SLT 847
This case involved fatal injuries sustained in a road traffic accident where failure to grit was alleged. Another case in which absolvitor is granted in a case based on failure to grit. A further reminder, if needed of the difficulties, faced by pursuers in these sort of cases.
Road Traffic Cases
Jackson v Murray 2013 SLT 153
Rare example where the Inner House interfere with assessment of contributory negligence in a road traffic accident. Involved a child running out behind a school bus and being struck, suffering very severe injuries. Finding of the Lord Ordinary of 90% contributory negligence, reduced to 70%. On the facts perhaps still a harsh assessment of contributory negligence against the child.
Little v Glen & Tradex  CSOH 153
A fatal case where pedestrian walking along country road at night and was struck by taxi driver. On the evidence no liability attached to the taxi driver.
Dickson v Kingsman and Centrica plc  CSOH 111
Case involving a cyclist approaching a junction with a van approaching at speed. On the facts, although no collision occurred as the pursuer performed an emergency stop causing him to go over the handlebars of his bike, negligence was established against the van driver on the basis that the defender’s driving “conveyed impression” that he might not stop at the junction. It is also a helpful case where no contributory negligence is found where the pursuer takes a course of action to avoid a dangerous situation which in normal circumstances might be considered foolhardy.
Smith v Sabre Insurance  CSOH 28
Credit hire case. Res judicata upheld by the Inner House in a case where the pursuer attempts to raise an action for credit hire charges following a road traffic accident in the Court of Session following a separate action in the Sheriff Court where the pursuer accepted a Tender in respect of his personal injuries. Highlights the “one action rule” and a reminder for pursuer’s agents to check that all potential heads of claim are pled and pursued when raising proceedings or indeed settling matters pre litigation.
Tortolano v Ogilvie Construction Ltd  CSIH10
Inner House confirming Section 1 of the Damages Act 1996 cannot be interpreted to allow a general reduction of the discount rate taking out the changed economic circumstances. Accordingly, the discount rate will remain at 2.5% for the time being, even if that may prove unfair to pursuers in the current economic climate.