Stuart Grant V. Fife Council+the Advocate General For Scotland On Behalf Of The Ministry Of Defence
| Jurisdiction | Scotland |
| Judge | Lord Stewart |
| Neutral Citation | [2013] CSOH 11 |
| Court | Court of Session |
| Docket Number | PD74/12 |
| Published date | 18 January 2013 |
| Date | 18 January 2013 |
| Year | 2013 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 11 | |
| PD74/12 | OPINION OF LORD STEWART in the cause STUART GRANT Pursuer against (FIRST) FIFE COUNCIL and (SECOND) THE ADVOCATE GENERAL FOR SCOTLAND on behalf of THE MINISTRY OF DEFENCE Defenders ________________ |
Pursuer: McNaughtan; Digby Brown LLP, Solicitors
First Defenders: C S Wilson; Simpson & Marwick, Solicitors
Second Defenders: no appearance
18 January 2013
[1] This is a case about an accident that happened during a team-building exercise. The pursuer was injured and claims damages in the sum of £50,000 with interest. He is suing his employers, Fife Council, the first defenders, who "organised" the event. He is also suing the Ministry of Defence who "owned, occupied and operated" the army assault course at Barry Buddon where the accident happened. The United Kingdom government minister who answers for the Ministry of Defence in this jurisdiction is the Advocate General for Scotland. He is the second defender. The action has been remitted to Procedure Roll on the first defenders' motion, unopposed, to debate the relevancy of the pursuer's pleadings directed against the first defenders. I heard the debate on 31 October and 1 November 2012 and made avizandum. Having considered the points made by counsel and the authorities to which they referred me I have decided that the case can properly be allowed to proceed to proof. The second defender is apparently content that the action should go to proof and has not participated in the debate.
The claim and the submissions
[2] This is a personal injuries action for damages in terms of the Rules of the Court of Session [RCS] chapter 43. It follows (1) that the pleadings are in abbreviated form and (2) that I believe I am bound by the words and spirit of the ch 43 rules not to decide the case against the pursuer on paper unless, taking the most favourable view of the pleadings, there is no arguable basis of liability. What I have heard in this case confirms me in the views to that effect I expressed in a previous decision [Bruce v Brown and others [2011] CSOH 165, §§ 17-26].
[3] The 26 June 2009 was a Friday, according to the calendar. On that Friday, so the pursuer's pleadings tell us, sixteen workers took part in a team building exercise organised by their employers the first defenders. The group included the pursuer. The pursuer was at that time a 46-year old social care worker. The exercise included an assault course at the Barry Buddon army training centre. There were seventeen obstacles. One of the obstacles, as the pursuer describes it, was a set of seven parallel, overhead "monkey bars" spanning a ditch. The bars were eight feet above the ground. My understanding is that the feature might be better described as a water obstacle designed to be crossed by using the overhead bars, swinging from one bar to the next using alternate hands. The pursuer lost his grip and fell into the ditch.
[4] The pleadings highlight a specific problem with the monkey bars and so-called ditch on the morning in question, namely that the ditch was only partially filled with water. The implication is that if the ditch had been full the impact of the pursuer's fall would have been absorbed and the risk of injury would have been reduced. As it was the pursuer injured his right knee. He ruptured the anterior cruciate ligament and sprained the postero-lateral ligaments. As at the date of the raising of the action in 2012 the pursuer was still off work.
[5] The pursuer avers a threefold basis of liability against the first defenders, namely (1) a failure by the first defenders to fulfil their common law duty of care, (2) breaches by the first defenders of their duties in terms of the Work at Height Regulations 2005 and (3) breaches by the first defenders of their duties in terms of the Management of Health and Safety at Work Regulations 1999. I should say at once that if any one these cases reaches the threshold for proof then there would be an argument for sending all of them to proof if no additional evidence or court time would be required. The case against the second defender based on alleged breaches of (1) the Occupier's Liability (Scotland) Act 1960 and (2) the Work at Height Regulations 2005 is set for proof anyway.
[6] Going back to the common law case against the first defenders, counsel for the first defenders cites the English case of Reynolds to support his argument that the pursuer's claim at common law is bound to fail. In Reynolds the learned deputy judge found that the "team building" "fun day out" was not an "ordinary incident" but was rather an "extraordinary incident" of the plaintiff's employment with a firm of estate agents. On that basis he found that the accident during one of the activities, a bicycle race, did not happen in the course of the plaintiff's employment; and he held that the plaintiff had no common law remedy against the firm on the basis of the firm's direct liability to the plaintiff qua employee. Because of his finding that there was no course of employment at the material time, the learned deputy judge necessarily concluded that the defendant firm were not liable as employers in terms of the Personal Protective Equipment Regulations 2002 for failing to provide cycle helmets.
[7] I do not find Reynolds altogether persuasive on the "course of employment" point. The distinction drawn by the learned deputy judge between "ordinary" and "extraordinary" incidents of employment is not sourced. The phrase "ordinary incident of employment" may have a deceptive familiarity because of its use to mean a definitional or standard term of contracts of employment. In the present context my feeling would be that if an activity is incidental, in the sense of being a minor accompanying feature, it does not matter whether it is ordinarily or extraordinarily incidental: in both situations it is capable of being within the course of employment. Further, the textbook and cases cited to me, including Reynolds, support the view that whether or not an incidental activity is within the course of employment is something to be decided once the whole facts and circumstances have been ascertained [Munkman on Employer's Liability, 15th edn, (London, 2009), §§ 2.48-2.49, 4.68-4.71; Reg v National Insurance Commissioner Ex p Michael [1977] 1 WLR 109; Faulkner v Chief Adjudication Officer (CA) [1994] PIQR P244; Nancollas v Insurance Officer [1985] 1 WLR 109; Smith v...
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