Matthew Coia Against Portavadie Estates Limited
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Sheriff Principal C.A.L. Scott Q.C.,Lord Bracadale |
| Judgment Date | 06 January 2015 |
| Neutral Citation | [2015] CSIH 3 |
| Date | 06 January 2015 |
| Docket Number | XA106/13 |
| Court | Court of Session |
| Published date | 06 January 2015 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 3
XA106/13
Lord Menzies
Lord Bracadale
Sheriff Principal Scott QC
OPINION OF THE COURT
delivered by LORD MENZIES
in the appeal in the cause
MATTHEW COIA
Pursuer and appellant;
against
PORTAVADIE ESTATES LTD
Defenders and respondents:
Pursuer and appellant: Fitzpatrick; Digby Brown LLP
Defenders and respondents: Cowan, sol adv; Simpson & Marwick
6 January 2015
The issues
[1] In this action for damages for personal injury three central issues arise:
(1) Was the wardrobe pole which fell and injured the pursuer “work equipment provided by the defenders for use or used by an employee of theirs at work” for the purpose of The Provision and Use of Work Equipment Regulations 1998 when the accident happened?
(2) Was the pursuer at work when the accident happened?
(3) Was the lodge in which the accident happened a workplace for the purpose of the Workplace (Health, Safety and Welfare) Regulations 1992 when the accident happened?
The factual background
[2] In February 2011 the pursuer was employed by the defenders as a chef. The defenders operated a hotel and lodges at Portavadie Marina, Loch Fyne. The pursuer had been working for the defenders for about six months. Initially, he stayed in a caravan provided by the defenders. He was not obliged by his contract of employment to stay in accommodation provided by the defenders – he was free to find his own accommodation, but the caravan provided by the defenders for his use was convenient and cheap. The pursuer paid the defenders £15 per week to stay in the caravan, which was deducted from his salary.
[3] In early January 2011 the pipes in the caravan in which the pursuer was living froze and burst. Because of this the defenders agreed to let the pursuer stay in one of the lodges which were normally used as accommodation for customers of the defenders. Again, the pursuer paid the defenders for this accommodation, payment being deducted from his salary; as before, he was not obliged to stay in accommodation owned by the defenders. The lodge which he occupied was about 10 minutes’ walk from the restaurant complex, kitchen and hotel.
[4] The pursuer was entitled to use the lodge as he wished, but was not allowed to make any structural alterations nor to hang pictures on the walls. He moved all his personal belongings into the lodge, and his girlfriend stayed with him there on occasions. From time to time the defenders inspected the lodge to ensure that it was being kept in a tidy condition, but during the time that the pursuer was staying there the defenders did not provide cleaners or housekeepers for the lodge. It was made clear to the pursuer that if the defenders had paying customers who wished to occupy the lodge, he would have to move out.
[5] At the beginning of February 2011 the pursuer was told by the defenders that they required the lodge so that it could be occupied by a paying customer. As a result the pursuer had to vacate the premises and move his personal possessions.
[6] The pursuer had stored some of his personal possessions on a shelf in a wardrobe in the lodge. Within the wardrobe was a metal pole from which clothing would normally be hung. It was not secured safely to the wardrobe. It was not of the correct size and had not been securely fixed in place nor otherwise stabilised. The edges of the pole were sharp and had not been smoothed. In the course of removing his belongings from a shelf in the wardrobe the metal pole dislodged and fell and struck the pursuer’s foot, causing him injury. After this accident the pursuer walked to the main hotel building and told the restaurant manager that he had sustained an injury. She provided him with first aid.
Procedural history
[7] The pursuer raised an action for damages for personal injuries in Dunoon Sheriff Court. The pursuer’s claim was based on the alleged breach by the defenders of various statutory duties, namely (1) regulations 4, 5, 12 and 20 of The Provision and Use of Work Equipment Regulations 1998 (“the equipment regulations”); (2) regulation 10 of the Work at Height Regulations 2005; (3) regulation 5 of The Workplace (Health, Safety and Welfare) Regulations 1992 (“the workplace regulations”); and (4) regulation 3 of the Management of Health and Safety at Work Regulations 1999. The defenders denied liability and averred that none of these regulations applied. However, in the event of liability being established, parties agreed quantum in the sum of £3,250 by means of joint minute.
[8] The matter went to proof before the sheriff on 24 June 2013. There was no real dispute that the accident had happened as the pursuer stated, but the position was maintained on behalf of the defenders that the regulations did not apply in the circumstances of this accident, and so no liability attached to them.
[9] In his judgment dated 11 July 2013 the sheriff granted decree of absolvitor. In summary he agreed with the submissions for the defenders that none of the regulations relied on applied. He did not “consider that a pole contained within a wardrobe in what is normally a lodge occupied by guests is, in relation to the pursuer, ‘work equipment’.” When the pursuer was in the lodge the sheriff took the view that he was not “at work” or “in work with work equipment”. The lodge was a property made available to the pursuer exclusively to conduct his private life within it. The pursuer was not an employee acting in the course of his employment when the accident occurred. By interlocutor dated 22 July 2013 the sheriff dealt with expenses. It is against the interlocutors of 11 and 23 July 2013 that the pursuer now appeals to this court.
Submission for the pursuer and appellant
[10] Counsel for the pursuer and appellant submitted that the sheriff fell into error in finding that the pursuer was not “at work” nor “in a workplace” when the accident happened, and that the pole was not “work equipment”. At the time that the accident happened the appellant was an employee of the defenders and was complying with a lawful instruction given to him by his employers to clear his possessions from the lodge. This instruction was given to him by the defenders in their capacity as his employers and not in any other capacity such as quasi‑landlord. Moreover, the lodge comprised a workplace for employees of the defenders and specifically for the appellant himself. There was no evidence led that the lodge comprised “domestic premises”. The appellant was expected to carry out housekeeping duties in the lodge. Although no cleaners or other housekeeping staff were provided to clean the lodge when he was occupying it, it was a workplace for other employees of the defenders, such as cleaners and yard boys who kept the exterior surroundings of the lodge tidy. Properly understood, the pole in the wardrobe was work equipment.
[11] The terms of section 52 of the Health and Safety at Work Etc. Act 1974 are relevant to the meaning of “work” and “at work”. The appellant was working as an employee of the defenders and was removing his possessions from the lodge in the course of his employment. The defenders had complete control over the whole of the site, including the lodge; the appellant was not entitled to refuse his employers access to the lodge, and he could be called on to quit the lodge at very short notice. The sheriff appears to have proceeded on the assumption that the kitchen premises in the hotel building comprised the appellant’s workplace, but it was never put to him in evidence that his sole place of work was the kitchen. The sheriff’s assumption was that the appellant’s working environment was highly demarcated (“on a par with a Downton Abbey of the 1920s”), but this was not borne out by the evidence – the appellant’s girlfriend was employed as a kitchen porter by the defenders but on her unchallenged evidence she “got switched into housekeeping four or five times”. The appellant would do his own housekeeping, and it was his responsibility to keep the lodge clean and tidy.
[12] Whether the appellant was clearing his possessions out of the lodge “in his own time” or “off shift”, he was complying with an instruction given to him in the course of his employment, and so he was doing so “in the course of his employment”. Whenever he cleared his possessions out of the lodge he was at work; he was not clearing the lodge as a hobby, nor from caprice – he was working. In answer to a question from the court, counsel accepted that if the wardrobe pole had fallen on him when he was staying in the lodge, as opposed to clearing it out, he would not have been working and the pole would not have comprised work equipment, because he would not have been instructed to clear the lodge. This, he accepted, distinguished the present case from Robb v Salamis (M & I) Limited 2005 SLT 523, 2007 SC (HL) 71. However, although counsel did not suggest that the circumstances of the present case were equivalent to those on an offshore rig, they were similar – the semi‑submersible production platform in Robb was only some five miles offshore, and the premises in the present case were in a remote rural location.
[13] It was unduly restrictive to consider the issues in this case solely by asking whether the appellant was on or off shift, or whether he was removing his possessions from the lodge in his own time. He was playing a part in the preparation of the lodge for the arrival of guests; nothing in the circumstances took him out of working in the course of his employment. He was charged by the defenders with moving his personal effects out of the lodge.
[14] Counsel suggested that there were similarities between the present case and the circumstances in Robb v Salamis, in which the pursuer had sustained injury when descending from his bunk on an offshore installation after placing his weight on a ladder which was insecurely or inadequately fixed. He relied on the...
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