Iain Charles Macechern V. The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton |
| Neutral Citation | [2011] CSOH 135 |
| Court | Court of Session |
| Published date | 16 August 2011 |
| Year | 2011 |
| Date | 16 August 2011 |
| Docket Number | PD2068/10 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 135 | |
| PD2068/10 | OPINION OF LADY CLARK OF CALTON in the cause IAIN CHARLES MacECHERN Pursuer against SCOTTISH MINISTERS Defenders ___________ |
Pursuer: Campbell Q.C.; Thompsons
Defenders: Haldane Q.C.; Tods Murray
16 August 2011
Summary
[1] The pursuer is employed by the Forestry Commission (hereinafter referred to as "the Commission") and seeks £80,000 as damages from the Scottish Ministers as representing the Commission, his employers.
[2] This is a personal injuries action which came before me for a procedure roll hearing on the motion of the defenders. On behalf of the defenders, I was invited to dismiss the action on the basis that the pursuer's case both under common law and under the various statutory provisions founded upon was fundamentally irrelevant.
[3] There was a short written note of arguments for the defenders. At my request, at the start of the hearing, this was supplemented by outline written notes from both counsel. Senior counsel for the defenders made available a supplementary note. Senior counsel for the pursuer made available some informal notes. I am grateful to counsel for their assistance.
The facts set out in the pleadings
[4] In statement 4 of the Record, it is averred by the pursuer:
"On or about the 3rd of September 2007 the pursuer developed serious symptoms, which were diagnosed later in Hospital as caused by Lyme Disease. That is a disease caused by the bite of an infected tick. The latent period between the bite and the development of serious symptoms is variable, but is likely to be at least some weeks rather than days. As a result of the said condition the pursuer has suffered loss, injury and damage. The pursuer worked as a forester for the Forestry Commission in the Lorne District for over 20 years. Between about April and October of each year the pursuer would be bitten by ticks approximately 2 or 3 times per week. He was bitten by ticks only in course of his work. The ticks came from the environment in which he worked on a daily basis."
[5] At pages 6 to 9A of the Record, the pursuer sets out detailed averments relating to the absence of a suitable or sufficient assessment by the defenders of the risks to employees from the bite of ticks. It is averred that there was a failure to institute and enforce an adequate system for obviating or minimising the risks from tick bites which included failure to instruct routine use of "jungle formula" repellent, failure to give advice to wear cover-all clothing and failure to issue various specified protective clothing and footwear. There are also averments critical of the methodology for the extraction of the tick which involved the use of Vaseline. It is then averred that
"the failure of the Commission to carry out a suitable and sufficient assessment of the risks to their employees from tick bites, and their various failures of provision and instruction and enforcement as above set forth, were causative of the pursuer sustaining the loss, injury and damage which he has sustained."
[6] It should be noted that the parties in their pleadings at page 8 D-E and 9 B-C agree "that Lyme Disease is a bacterial infection transmitted by the bite of a tick".
[7] In answer, the defenders aver the guidance and policies which they aver they had in place and various provisions which they aver they made in relation to informing the pursuer and protecting the pursuer against Lyme Disease. At page 10 C to E, the defenders call upon the pursuer
"to aver the basis upon which he asserts that all or any of the measures put in place by the Forestry Commission in relation to the prevention of Lyme Disease were 'inadequate' such as to amount to a breach of their duty of care or breach of any statutory duty they may have had towards the pursuer. He is further called upon to state the manner in which he asserts that the tick bite giving rise to the contraction of Lyme Disease could reasonably have been prevented by the Forestry Commission. His failure to do so will be founded upon".
The legal basis of the action
[8] The averments of the pursuer relating to the legal basis are to be found in Statement 6. The action is based on the fault and negligence at common law of the Commission. It is also based on breach of various statutory duties namely:
(1) Regulation 3 of the Management of Health and Safety at Work Regulations 1999 (as amended) (the 1999 Regulations).
(2) Regulations 4, 8 and 9 of the Provision and Use of Work Equipment Regulations 1998 (the 1998 Regulations).
(3) Regulations 6, 7, 8, 9, 12 and 13 of the Control of Substances Hazardous to Health Regulations 2002 (the 2002 Regulations) .
(4) Regulations 4, 6, 9 and 10 of the Personal Protective Equipment at Work Regulations 1992 (the 1992 Regulations).
[9] In answer, the defenders call upon the pursuer "to specify the nature of the alleged breaches of the Regulations relied upon that are said to arise from the factual background averred".
Discussion
A comment on the pleadings
[10] The pleadings refer to the defenders, who are designed as the Scottish Ministers, being in breach of duty. In parts of the pleadings, reference is also made to failures of the "Commission" which I understand to be a reference to the employers of the pursuer. This confusion in the pleadings was not made an issue in the case and I merely note it. The pleadings, as I read them, are directed to factual matters relating to the employers and alleged failures by the employers of the pursuer. It is admitted by the defenders that the employers are "the Forestry Commission". I understand that in substance this case is directed against the employers of the pursuer for alleged breaches of duty at common law and under certain specified statutory provisions. The relationship and responsibilities of the employers and the defenders inter se was not canvassed.
The common law case
[11] The submissions by senior counsel for the defenders in relation to the common law case are summarised in paragraph 1 of her supplementary note. Senior counsel claimed that problems arose when one tried to give content to the pursuer's averments in the context of the dispute between the parties. She submitted that this is a case in which the defenders aver that protective equipment and training were provided to the pursuer in relation to Lyme Disease. Senior counsel was critical of the pursuer's pleadings and submitted that there was a lack of candour in the pursuer's response to the defenders' averments. She submitted that it was not clear from the pursuer's pleadings whether the alleged failure was one of training or of enforcement. She submitted that these difficulties were compounded by the issue of causation. She submitted that the causa causans of the pursuer's injury was a bite by an infected tick. She said that must be seen in the context of a situation where tick bites are common and for the most part non-infective. She criticised the pursuer for failing to aver how the defenders ought to have prevented infection. She was critical also of the absence of any averments that the pursuer would have complied with instructions about precautions. She submitted that there was a lack of fair notice and that the common law case as pled was irrelevant.
[12] Senior counsel for the pursuer submitted that the pleadings set out the factual background. The starting point of the pursuer's case are the averments that he contracted Lyme Disease when employed by the Commission. It is averred that he contracted said disease as a result of being bitten by ticks only in the course of his work. The parties have agreed that Lyme Disease is a bacterial infection transmitted by the bite of a tick. It is averred that Lyme Disease has the potential to have very serious consequences. Against the factual background averred, the pursuer offers to prove that as an employee he was exposed to regular and frequent circumstances of being bitten by ticks in the course of his employment leading to potentially serious injury and that the defenders knew of the risks but they made no suitable or sufficient assessment of the risks. Senior counsel for the pursuer submitted that the pleadings at pages 6 to 8 set out in some detail the specific failures of the Commission which underpin the case of the pursuer to the effect:
"the failure of the Commission to carry out a suitable and sufficient assessment of the risks to their employees from tick bites and their various failures of provision and instruction and enforcement as above set forth, were causative of the pursuer sustaining the loss, injury and damage which he has sustained." (8C-D).
[13] In my opinion, the submissions of counsel for the defenders seemed sometimes to be influenced by her understanding of the contentions of the Commission. I consider that the pursuer's pleadings are not to be judged from the perspective of the Commission's understanding of the factual position. It is necessary to concentrate attention on the pursuer's pleadings in assessing their relevancy. In doing that, I bear in mind the well known dicta in Jamieson v Jamieson 1952 SC (HL) at p.50. Lord Normand stated:-
"... an action will not be dismissed as irrelevant unless it must necessarily fail even if all the pursuers' averments are proved. The onus is on the defender who moves to have the action dismissed, and there is no onus on the pursuer to show that if he proves his averments he is bound to succeed ...".
[14] The pursuer offers to prove that he was bitten only in the course of his work. There are averments that the defenders knew that tick bites could cause Lyme Disease and that this could be very serious. I consider that the pursuer's pleadings set out in some detail the facts underpinning a case of a failure to carry out a suitable and sufficient risk assessment, and a failure of provision, instruction and enforcement for obviating or minimising the risks to employees...
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