Candace Donaldson V. Hays Distribution Services Limited+c B Hillier Parker Management Services Limited And C B Hillier Parker Limited+national Britannia Health & Safety Limited
| Jurisdiction | Scotland |
| Judge | Lady Cosgrove,Lord Macfadyen,Lord President |
| Date | 14 June 2005 |
| Docket Number | A382/01 |
| Court | Court of Session |
| Published date | 14 June 2005 |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lord Macfadyen Lady Cosgrove | A382/01 OPINION OF THE COURT delivered by LORD MACFADYEN in RECLAIMING MOTION in the cause CANDACE DONALDSON, Pursuer and Reclaimer; against HAYS DISTRIBUTION SERVICES LIMITED, First Defenders; C. B. HILLIER PARKER MANAGEMENT SERVICES LIMITED, and C. B. HILLIER PARKER LIMITED, Second and Third Defenders and Respondents; and NATIONAL BRITANNIA HEALTH & SAFETY LIMITED, Third Party: __________ |
Act: Macaulay, Q.C., Dunlop; Drummond Miller (McLeod & McCallum, Inverness) (Pursuer and Reclaimer)
Alt: Ellis, Q.C., Gallagher; Bishops (Second & Third Defenders & Respondents)
14 June 2005
Introduction
[1]In this action the pursuer seeks damages in respect of personal injuries which she suffered when she was crushed between a reversing lorry and a loading bay at the Eastgate Centre, Inverness. The first defenders are the employers of the lorry driver. Against them the pursuer pleads two cases of fault, one at common law and one under regulation 6 of the Provision and Use of Work Equipment Regulations 1992. The second defenders, or alternatively the third defenders, are averred to have been in control of the loading bay. The only case of fault made against them is that they were in breach of their duties under regulation 17 of the Workplace (Health, Safety and Welfare) Regulations 1992 ("the Workplace Regulations" or "the Regulations"). The third defenders make a case at common law, adopted by the second defenders, against the third party on the basis that an employee of theirs failed to exercise reasonable care in the preparation of a risk assessment in respect of the loading bay.
[2]The case was appointed to the procedure roll. The Lord Ordinary heard debate on the second and third defenders' first pleas-in-law, which were each to the effect that the pursuer had no title to sue them under the Workplace Regulations. No issue was taken with the relevancy of the pursuer's cases against the first defenders, or with the relevancy of the second and third defenders' case against the third party. As a result, the first defenders and the third party took no part in the hearing on the procedure roll, or in the hearing of the reclaiming motion. The relevant parties accepted that the issues relating to the liability of the first defenders and that of the third party (if it remained a live issue) would require to be resolved after proof before answer.
[3]By interlocutor dated 25 February 2004 the Lord Ordinary sustained the first pleas-in-law for the second and third defenders, and dismissed the action so far as laid against them. The pursuer reclaimed against that interlocutor.
The Workplace Regulations
[4]It is convenient to begin by setting out those provisions of the Workplace Regulations with which the case is principally concerned. In the course of argument reference was made to many other provisions of the Regulations, but it is unnecessary to refer to them at this stage.
[5]Regulation 2 defines "workplace" as meaning-
"any premises or part of premises which are not domestic premises and are made available to any person as a place of work, and includes-
(a)any place within the premises to which such person has access while at work; and
(b)any room, lobby, corridor, staircase, road or other place used as a means of access to or egress from that place of work or where facilities are provided for use in connection with the place of work other than a public road; ..."
[6]Regulation 4 provides inter alia that:
"(1)Every employer shall ensure that every workplace ... which is under his control and where any of his employees works complies with any requirement of these Regulations which-
(a)applies to that workplace ...; and
(b)is in force in respect of the workplace ...
(2)... every person who has, to any extent, control of a workplace ... shall ensure that such workplace ... complies with any requirement of these Regulations which-
(a)applies to that workplace ...;
(b)is in force in respect of the workplace ...; and
(c)relates to matters within that person's control."
[7]Regulation 17 provides inter alia as follows:
"(1)Every workplace shall be organised in such a way that pedestrians and vehicles can circulate in a safe manner.
(2)Traffic routes in a workplace shall be suitable for the persons or vehicles using them, sufficient in number, in suitable positions and of sufficient size.
(3)... traffic routes shall not satisfy [regulation 17(2)] unless suitable measures are taken to ensure that-
(a)... vehicles may use a traffic route without causing danger to the health or safety of persons at work near it; ...
(b)where vehicles and pedestrians use the same traffic route, there is sufficient separation between them."
The circumstances of the accident
[8]The pursuer avers that on 27 October 1998 she visited the Argos store in the Eastgate Centre, where she purchased some furniture. She was directed by staff of the store to go to the loading bay area to uplift her purchases. She made her way to that area. Her pleadings are not specific about the route which she followed to reach it. In the loading bay area she approached an employee of another store, C & A, to enquire about the whereabouts of the Argos collection point. To do so, she entered an area between the C & A loading bay and the first defenders' lorry. As she turned to leave that area, the first defenders' lorry reversed towards the loading bay and she was crushed between the lorry and the loading bay.
The pursuer's pleadings
[9]The pursuer sets out her case under the Workplace Regulations against the second defenders in Article 5 of the Condescendence. Regulations 4(1) and 4(2) are quoted, and the case is made against the second defenders on the basis that they were under a duty to secure compliance with the requirements of the Regulations both as employers and as persons having control of a workplace, namely the loading bay area. The particular requirements founded on are those set out in regulation 17(1) and (2). In particular, it is averred (1) that the second defenders were in breach of the requirements of regulation 17(1) in respect that the loading bay area was not organised in such a way that pedestrians and vehicles could circulate in a safe manner; and (2) that they were in breach of the requirements of regulation 17(2) in respect that the traffic route used by the pursuer in approaching the collection point, and by the lorry in reversing, was not suitable, by reason of the facts that no measures were taken to ensure that the lorry could use the route without causing a danger to health and safety, or to ensure that there was sufficient separation between the pursuer and the lorry. (Although it has no direct bearing on the issue with which the reclaiming motion is concerned, we note that the pursuer's quotation of regulation 17(3) is incomplete in that it omits the words "of persons at work near it". The result is that the averment that no measures were taken to ensure that the lorry could use the route without causing a danger to health and safety does not address the particular risk with which that provision is concerned).
[10]The pursuer's case of fault against the third defenders is set out in Article 6 of the condescendence. It proceeds on the hypothesis that the third defenders, rather than the second defenders, were in control of the loading bay area at the material time. The case is otherwise expressed in identical terms to that against the second defenders.
The pursuer's submissions
[11]Mr McAulay, senior counsel for the pursuer, identified the issue which was raised in the reclaiming motion as being whether the duties incumbent on the second or third defenders, as the party with control of the loading bay area as a workplace, were owed by them to a person, such as the pursuer, who was present in the workplace but was not at work there. The pursuer's contention was that they were. The pursuer was a "pedestrian" within the meaning of regulation 17(1). Moreover, she was a "person ... using ... traffic routes in a workplace" within the meaning of regulation 17(2). The words "pedestrian" and "person" should be given their natural ordinary meaning. To read them as if they referred only to persons who were at the material time at work in the workplace in question was to read in words that were not there in the regulations. There was no such ambiguity as would justify such insertion of qualifying words by implication.
[12]Mr McAulay sought to place the Workplace Regulations in their historical context. They were made under the Health and Safety at Work etc. Act 1974 in implement of Council Directive 89/654/EEC ("the Workplace Directive"). Mr McAulay accepted that in interpreting domestic legislation which was enacted to implement a directive it may be necessary to adopt a purposive construction in order to ensure compliance with the directive (Litster v Forth Dry Dock & Engineering Co Ltd 1989 SC (HL) 96 per Lord Keith of Kinkel at 101). He submitted, however, that a purposive construction could result in language being given a meaning broader than its natural meaning. It could not be used to restrict the natural meaning of the domestic legislation. Here there was no dispute that the Workplace Regulations gave full effect to the Workplace Directive. The question was whether the Workplace Regulations went beyond the requirements of the Workplace Directive (which was concerned with the protection of workers), and also conferred protection on others who were not workers. The Workplace Directive was, in that context, a neutral consideration. There was nothing to prevent the Workplace Regulations from providing protection to a wider category of persons than those who were entitled to protection under the Workplace Directive. It was well settled that it was open to Parliament to go further than was required by a directive (Cullen v North...
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