Duncan Mcdougall V. Emtec Building Services Limited+clark Contracts Limited
| Jurisdiction | Scotland |
| Judge | Lord Doherty |
| Neutral Citation | [2012] CSOH 90 |
| Court | Court of Session |
| Published date | 29 May 2012 |
| Year | 2012 |
| Date | 29 May 2012 |
| Docket Number | PD125/11 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 90 | |
| PD125/11 | OPINION OF LORD DOHERTY in the cause DUNCAN McDOUGALL Pursuer; against (First) EMTEC BUILDING SERVICES LIMITED and (Second) CLARK CONTRACTS LIMITED Defenders: ________________ |
Pursuer: Hastie; Digby Brown LLP
First Defenders: Batchelor, Solicitor Advocate; Simpson & Marwick
29 May 2012
Introduction
[1] The pursuer is now aged 57. He was formerly employed by the first defenders as a plumber. In this action he seeks reparation from them for loss, injury and damage he avers has been caused as a result of an incident which occurred while he was working in the course of his employment with them at Castlehead High School, Paisley on 1 February 2008. The case came before me for proof. (The pursuer had also sued the second defenders ("Clark"), the main contractors in respect of construction work being carried out at the school, but they were assoilzied shortly before the proof diet).
The pleadings
[2] The pursuer avers:
"Cond. 4 At or about 2 p.m. on Friday 1st February 2008, the pursuer was working in the course of his employment with the first defenders at Castlehead High School in Paisley. The school was being completely refurbished. The second defenders were the principal contractors. The first defenders were engaged to carry out pipework. In particular, the first defenders were instructed to fit supply pipes to the classroom walls. The pursuer was instructed to carry out re-fitting work in the science laboratory classrooms by the first defenders. There were units fitted around the walls of the classrooms. The framework and tops of the units had been left in place. The framework was fitted to the walls. The doors had been removed and were to be replaced. There were single and double units. Single units were approximately 18 inches - 2 feet wide by 2 1/2 - 3 feet high. Double units were the same height but twice the width. The pipes required to be fitted at heights of between 10 and 14 inches from the floor. The pipes work (sic) ran along the walls through the framework of the units. The pursuer required to use a gas torch to melt flux and solder into the joints of the pipes. He required to place his head close to the area of welding to ensure that the flux was running. To enable him to do so the pursuer required to get as much of his body into the framework of the units as he could to enable him to get as close as possible to the pipes. Space was restricted. It was very awkward to manoeuvre his body into the framework and very cramped while in there. Prior to the 1st February the difficulties in manoeuvring within the framework had been reported to Dougie Tawse, a foreman on site. No alternative means of carrying out the work was put in place. By virtue of Architect's Instruction dated 25th October 2007 it was provided that the shelving and the backs of the units within the classrooms were to be removed to facilitate removal of existing pipe-work behind those units. The first defenders intimated to the second defenders that in view of that that (sic) instruction made it difficult to remove and renew the existing pipe-work. As a result the second defenders approached the client (Renfrewshire Council) in consequence of which a fresh Architect's Instruction was issued on 28th November 2007. In terms of that Instruction the whole units were to be removed to enable the Mechanical & Electrical work (including the pipe-work being carried out by the first defender's employees) to be carried out. The second defenders were responsible for removal of the units. The units were to be stored for re-use. Storage space was limited. Units were to be removed as and when required. The first defenders were responsible for informing the second defenders where they were working so the units could be removed from a classroom or classrooms before employees of the first defenders started working there. The first defenders did not inform the second defenders that they were working in the classroom in which the pursuer was injured. As a result the units were not removed. In any event the first defenders put the pursuer in to work in a classroom where they knew or ought to have known the units had, contrary to Architect's Instruction of 28th November 2007, not been removed. The pursuer is right handed. As the pursuer was working with his blowtorch, his head and neck were twisted towards the area where he was working. Suddenly the pursuer felt pain in his neck. He was unable to continue working. He attempted to report the incident to both defenders but the site office of each was unstaffed at the time, the staff having left for the day. Following the pursuer's incident, the whole of the units within the classrooms were removed to allow access to the pipes. This was in accordance with the Architect's Instruction dated 28th November 2007 ... (T)he pursuer attended his work approximately 2-3 weeks after the incident and reported it to Joe Workman...
Cond. 5 As a result of the accident, the pursuer sustained loss, injury and damage. Following the incident he began to experience paraesthesia. He felt pain in his neck and in his back and had pins and needles in his left arm. Two days later he attended the accident and emergency department of Hairmyres Hospital... complaining of chest, neck and arm pain. He thought he was suffering a stroke. The pain was diagnosed as musculoskeletal pain... He has continued to suffer from pain in his neck, left arm, and left hand and fingers. He suffers pins and needles in his fingers. His neck movement has been restricted. As a result of the incident at work on 1st February 2008 the pursuer suffered an aggravation of an underlying cervical spondylosis of the neck with nerve root irritation into the left arm. The incident accelerated the onset of symptoms by up to one year... As a result of the accident the pursuer has been unable to return to work. He has lost earnings. Following the incident the pursuer's daughter Kerry-Anne provided assistance to him (including dressing, tying shoelaces and bathing) and undertook domestic duties, including cooking and housework ...The pursuer's heads of claim are (i) solatium (ii) past loss of earnings and (iii) past necessary and personal services..."
The evidence
[3] In terms of a Joint Minute of Agreement it was agreed that at the material time the pursuer was working in the course of his employment with the first defenders as a plumber at Castlehead High School; that the school was being refurbished; that it was a construction site within the meaning of the Construction (Design and Management) Regulations 2007; that the first defenders were contractors carrying out construction work in terms of Regulation 25; that the pursuer was a person carrying out construction work under the control of the first defenders in terms of Regulation 25; and that the first defenders were bound to comply with the requirements of Regulation 26.
[4] The pursuer stated that prior to 1 February 2008 he had had no problems with his neck. He had suffered from chronic low back pain for many years before 2001 which had prevented him working. This had stopped troubling him (the last occasion he had attended his G.P. in relation to low back pain had been in 2005) and he had been back working for about two years prior to 2008. He had worked for the first defenders since October 2007. He was puzzled by an entry in his G.P. records dated 5 October 2007 which included the words "cervical spondylosis". He had not complained at that time to his GP about any neck symptoms - he had not had any. When he had begun working in the science classrooms he had asked his foreman, Dougie Tawse, why the units were not completely stripped out before the pipefitting was done. This had not been a complaint - he had made the inquiry because it appeared to him that the units were scrap. Mr Tawse had said that they were not being stripped out because they were being kept. The pursuer had not been given a method statement for this work. On Friday 1 February 2008 he was in a science classroom welding pipe fittings together. The tops and doors of units along the walls of the science classroom had been removed leaving the framework of the units and solid side spacers. The units were about 800-900 mm high and about 500 mm deep. Some were about 500-600 mm wide (single) and others were about 1 metre wide (double). The pipe fittings he was welding had been fed in at the back of the units and fixed to the wall with clips. They were about 16 inches off the floor and about 11/2 - 2 inches from the wall. The pursuer had solder wire in his left hand and a small burner in his right hand. He eased his upper body into a single unit. He was crouching sideways resting his left shoulder on the classroom wall with his left buttock on the base of the unit. His legs were outside the unit. He started to heat the joints of a pipework T-piece. In order to be sure that the joint was properly sealed he had to turn his head to the right so that he could look down on to the top of the fitting with his left eye and see that the solder was running right round the circumference of the fitting. That entailed his neck and body being twisted. He was about 5 feet 10 inches tall and about 121/2 - 13 stones in weight. As he was in that position looking down on the fitting he felt a sharp pain and let out a scream. He described it as "a shock right down the left hand side of my neck, left arm and left hand side" and as "an excruciating pain down my left side - I wasn't too sure at the time what had gone." Patrick Nixon and Colin Johnston came to see what had happened. In examination-in-chief the pursuer's account of the exchange between them was "All I could say to them was I've done something to my neck and my back. I wasn't too sure which part of it it was." A little later he said "They said to me 'Did you burn yourself?' I said "No - my neck or my back has went"". Nixon and...
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