Christopher King V. Fife Council And Another
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Date | 05 December 2003 |
| Docket Number | A225/03 |
| Court | Court of Session |
| Published date | 05 December 2003 |
| 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...
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