George Mcewan V. Lothian Buses Plc
| Jurisdiction | Scotland |
| Judge | Lord Emslie |
| Neutral Citation | [2006] CSOH 56 |
| Court | Court of Session |
| Date | 04 April 2006 |
| Docket Number | A781/04 |
| Published date | 04 April 2006 |
| OUTER HOUSE, COURT OF SESSION [2006] CSOH 56 | |
| OPINION OF LORD EMSLIE in the cause GEORGE McEWAN Pursuer; against LOTHIAN BUSES PLC Defenders: ________________ |
Pursuer: McCall; Lefevre Litigation
Defenders: Macpherson, sol. adv.; Simpson & Marwick WS
4 April 2006
Introduction
[1] The pursuer is an experienced motor mechanic, having qualified in 1978 and thereafter worked in that capacity both in the UK and overseas. In April 2002 he was employed by the defenders as a probationary "street fitter", maintaining and repairing buses at their Marine Depot in Seafield Road, Edinburgh. In the present action he claims damages from the defenders in respect of an accident at work in which he sustained minor injury to his right hand and wrist. Total damages on a full-liability basis are agreed at £4,500, inclusive of interest to 17 March 2006, and a proof on liability has now taken place before me.
[2] On Record it is a matter of admission that the pursuer slipped on the surface of a board partially covering an inspection pit within the depot, and that he injured himself in trying to break his fall. It is further admitted that a quantity of coolant fluid (a water/anti-freeze mixture) had spilled or splashed on to the board, and that the board was slippery. However, the parties are in dispute as to (i) the date of the accident; (ii) the circumstances in which the coolant came to be on the board; (iii) the extent of any legal liability attaching to the defenders; and (iv) the extent of any contributory negligence on the part of the pursuer.
[3] In brief, the pursuer contends that his accident occurred when he was working alone and unsupervised in the early evening of Sunday 14 April 2002; that he had gone to inspect a bus which required replacement of the header tank of its cooling system; that on arrival he discovered that a fitter on the previous shift had already started the job, disconnecting the hose at the base of the header tank and causing a spillage of coolant at the locus; that drainage receptacles positioned by the other fitter were inadequate; that the accident occurred as he (the pursuer) made to cross the pit board towards an office where, by the sound of it, a more urgent job requisition was coming over the printer; and that in the circumstances the defenders were in breach of various statutory duties giving rise to a liability in damages. The essential part of the pursuer's account of the accident was that he himself had had nothing to do with the spillage of coolant, and that he had never made any admission in that regard. It is, however, fair to say that these contentions first appeared in his pleadings by way of response to certain averments made by the defenders in their defences.
[4] By contrast, the defenders' position at the proof (although in some respects inadequately reflected in their pleadings) was that the accident occurred three or four days earlier; that, as the pursuer frankly admitted to his superiors at the depot in both April and May 2002, he himself had spilled the coolant on which he then contrived to slip and fall; that no drainage receptacles had been used at all; that in consequence of what was characterised as the pursuer's sole fault the defenders could not be found liable to him in damages; and that on any view the pursuer's contributory negligence should be assessed at a high degree.
[5] In the paragraphs which follow, I propose to deal with each of the contested issues in turn.
Date of the accident
[6] It is still a mystery to me why the defenders, after admitting the pursuer's accident, should have persisted in disputing the precise date on which it occurred. Be that as it may, I have no hesitation in rejecting their contentions on this matter. If my understanding is correct, these contentions are based solely on the fact that, in the course of recording two separate accidents to the pursuer - one to his eye, followed apparently by the present accident - his GP entered only one date in the margin, namely 11 April 2002. In my opinion that fact on its own is of no significance whatever. On the evidence, it is clear that the pursuer's eye injury was sustained on Wednesday 10 April 2002. As the records showed, he attended hospital on that date along with his wife, and very probably attended his GP on the following day. However, the present accident could not have occurred at the same time, since (a) the pursuer would not have been working alone in the depot on a weekday evening; (b) the hospital records dating from 10 April 2002 refer to the eye injury only; (c) on medical advice the pursuer was off work on 11 April; (d) the only x-ray report regarding the pursuer's hand/wrist injury was dated 14 April; and (e) all the other evidence in the case pointed to 14 April as being the date when the present accident occurred.
[7] In particular, the pursuer's wife confirmed that she had had to collect their car from the depot on the following day, which was a Monday. The cleaner who took the pursuer to hospital explained that he could only have been involved at a weekend, when few men were around, since on a weekday one of the other fitters would inevitably have been approached instead. The defenders' former assistant depot engineer, Ian Nisbet, confirmed that on the evening of Sunday 14 April he was told that the pursuer had been hurt and had been taken to hospital, following which he inspected the locus and confirmed the spillage of coolant. Evidence was also given by the defenders' depot engineering manager, Colin Campbell, to the effect that on the morning of Monday 15 April he received his deputy's report of what had happened and immediately commenced a health and safety investigation.
[8] As the solicitor advocate for the defenders agreed, there was no direct evidence at all to suggest that the accident happened on a date other than 14 April. He founded solely on the appearance of the GP records, where the two accidents were marked "1" and "2", and where the only date in the margin (opposite the earlier accident) was 11 April. However, the GP was not led as a witness at the proof, and the only relevant agreement in the Joint Minute was that the records were what they bore to be. Accordingly, as laid down by the Inner House in Lenaghan v Ayrshire and Arran Health Board 1994 SC 365, the records themselves were not admissible evidence of the accuracy of their contents where the Joint Minute was silent on that matter. Indeed the present case is a fortiori of Lenaghan, since the issue there concerned the accuracy of opinions expressed in a medical report which was agreed to be "what it bore to be". Here, in the absence of any opinion from the GP regarding the presence or absence of marginal dates in the records, the defenders have nothing to go on but the unexplained entries themselves. In any event, as it seems to me, the absence of a date in the margin opposite the present accident falls far short of justifying any inference that both accidents happened, or were reported, on the same date.
[8] For these reasons, I hold it proved that the accident to which the present action relates occurred on Sunday 14 April 2002.
Circumstances of the spillage
[9] This issue essentially turns on a sharp conflict of evidence between, on the one hand, the pursuer and, on the other, the defenders' witnesses Nisbet and Campbell supported by contemporaneous records nos. 6/6 and 7/1 of process. As previously indicated, the pursuer's position was that someone else had spilled the coolant at the locus, and that he had never accepted responsibility for doing so himself. According to him he had merely gone, without his tools, to inspect a job before deciding whether to tackle it; the coolant had clearly been released on a previous shift; and since only small receptacles had been positioned at floor level, that is, several feet below the point where the header tank hose was disconnected, spillage or splashing on to surrounding surfaces was inevitable.
[10] Nisbet's evidence, on the other hand, was to the effect that when he inspected the locus on the Sunday evening he found that the hose on a lower vessel (the oil cooler) had been disconnected and was still dripping. According to him, no receptacle at all had been used to collect the drained coolant, which was lying in substantial quantities on the floor and within the inspection pit. Moreover the pursuer's tools were lying nearby. On the basis of this inspection he formed the view that the pursuer had been the author of his own misfortune, and reported this to his superior, Colin Campbell, on the following day. At some later date, he said, he had asked the pursuer to explain why no bucket had been used, and the latter had replied that he had not expected so much coolant to come out. Furthermore, when asked why he had not cleared up the spillage, the pursuer had replied that he had panicked and slipped on the way to get a bucket. Nisbet believed that this exchange took place at a meeting on 22 May 2002, when the pursuer returned to work, but he conceded that it might possibly have been on 18 April 2002 when the pursuer attended with a sick line from his GP. Certainly, on 22 May, the allegation that the pursuer had spilt the coolant himself, and (by implication at least) that no receptacle had been used, was put to the pursuer who tacitly accepted it.
[11] Campbell's evidence was that in the course of his investigation he interviewed the pursuer on 18 April 2002, completing an Incident and Near Miss Report Form (no. 6/6 of process) at that time. In the witness box he insisted that he had gone over all parts of the form with the pursuer before completing it, with the possible exception of a box relative to the action to be taken to prevent a recurrence. Box 8 reflected the pursuer's position at that time in the following terms -
"Mr McEwan was draining water from vehicle. Some had spilt on to pit board. As Mr McEwan walked across...
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