Stuart Mcgowan V. W & J R Watson Limited
| Jurisdiction | Scotland |
| Judge | Lord Macphail |
| Neutral Citation | [2005] CSOH 172 |
| Court | Court of Session |
| Docket Number | PD1456/04 |
| Published date | 16 December 2005 |
| Date | 16 December 2005 |
| Year | 2005 |
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 172 | |
| PD1456/04
| OPINION OF LORD MACPHAIL in the cause STUART McGOWAN Pursuer; against W & J R WATSON LIMITED Defender: ________________ |
Pursuer: Allardice; Thompsons
Defenders: Davidson; Simpson & Marwick WS
16 December 2005
Introduction
[1]The pursuer sues the defenders for damages for personal injuries he sustained while he was working for them as a joiner, engaged on construction work. He cut his left middle finger on the blade of a circular saw provided by the defenders. He claims that the defenders were in breach of their statutory duties under Regulations 5(1) and 11(1) of the Provision and Use of Work Equipment Regulations 1998. The defenders admit that he was working for them on the date of the accident, that he was engaged on construction work, and that they provided the circular saw. They aver that the accident was caused wholly or partly by the pursuer's own fault. Parties are agreed as to the quantum of total damages in the event that liability is established.
Amendment
[2]It is necessary to deal at the outset with a motion for leave to amend which was made by the defenders at the hearing on evidence. In Statement 6 of the statement of claim the pursuer avers:
"The pursuer's claim against the defenders is based on their breach of the statutory duties incumbent upon them by virtue of Regulations 5(1) and 11(1) of the Provision and Use of Work Equipment Regulations 1998."
The defenders' Answer 6 is in these terms:
"Denied that the defenders are in breach of Regulation 11(1) of the Provisions and Use of Work Equipment Regulations 1998. Explained and averred that the accident was solely caused, or at least materially contributed to, by the pursuer's own fault. Reference is made to the Law Reform (Contributory Negligence) Act 1945."
At the hearing on evidence counsel for the pursuer pointed out that in that Answer there was no denial by the defenders that they were in breach of Regulation 5(1) and he submitted that the Answer was an admission that they were in breach of that Regulation. Counsel for the defenders explained that the pursuer's averments in the summons had referred only to Regulation 11(1): the reference to Regulation 5(1) had been added by adjustment and had not been dealt with by the defenders. Counsel nevertheless maintained that the defenders had not admitted, expressly or by implication, that they had been in breach of Regulation 5(1). That was clear from their Answer 4. While that was counsel's primary position, he moved for leave to amend by inserting in Answer 6 "5 and" before "11(1)". Counsel for the pursuer opposed the motion. He explained that he had been instructed only a few days before the proof. He considered, however, that if the defenders had denied being in breach of Regulation 5(1), the pursuer's counsel might have expanded the pursuer's pleadings to specify the nature of the defect in the saw. He himself had conducted the proof and made submissions on the basis of the existing pleadings. If the amendment were to be allowed, the pursuer should be awarded the whole expenses to date.
[3]Regulation 5(1) provides:
"(1) Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair."
In my opinion it is clear from their pleadings in Answer 4 that the defenders had joined issue with the pursuer as to whether they had failed in this duty relative to the saw. They aver:
"With regard to the circular saw, the saw blade was protected by a plastic guard. The guard opens as the blade is lowered onto the material to be cut. Following upon the accident, the saw and the guard were checked and no fault was found in either."
The pursuer replies:
"With reference to the averments in answer, it is admitted, under explanation following, that the saw had a guard. Not known and not admitted that, after the accident, the saw and the guard were checked, and no fault was found in either. Quoad ultra denied. Explained and averred that the guard was designed to prevent the operator from coming into contact with the blade. The guard was not functioning properly. The suppliers of the saw recommended that the saw was re-tested every sixty days together with a daily site inspection. The defenders are called upon to identify the person or persons who they maintain checked the saw after the accident."
[4]In my opinion it is plain from these averments that one of the factual issues in dispute was whether the defenders had ensured that the saw was maintained as required by Regulation 5(1). While the defenders' Answer 6 could be construed, by the application of the rule in Pegler v Northern Agricultural Implement Co (1877) 4 R 435, as an admission that they were in breach of Regulation 5(1), a reading of the pleadings as a whole makes it plain that no such admission can have been intended. Counsel who appeared for the pursuer at the proof brought a fresh mind to the pleadings and was entitled to make the submission and oppose the motion for leave to amend. I consider, however, that while amendment at the stage of the hearing on evidence is unusual, the pursuer is not prejudiced by the proposed amendment. I shall allow it on the view that it cures a technical error in the defenders' pleadings, and I shall dispense with reprinting. There is no need for any award of expenses relative to the amendment.
The accident
[5]I heard the evidence of four witnesses: the pursuer; two of his fellow employees, Mr Keith Jones and Mr Martin Henderson; and the only witness for the defenders, Mr Andrew Baillie, a time-served joiner who was acting as the defenders' site agent on the day of the accident. The pursuer appeared to me to be a rather diffident witness who was doing his best in the witness box to tell the truth as he remembered it. He was clearly in difficulty, however, when trying to explain exactly how he had come to be injured. I shall deal with that, and with the defenders' challenges to his veracity, in the following paragraphs. Mr Jones and Mr Henderson were not cross-examined. Mr Jones gave his evidence in a straightforward manner and I accepted his evidence as credible and reliable. Mr Henderson had been called under the misapprehension that he had been present at the time of the accident. He explained at the beginning of his evidence that he had been elsewhere. He was not examined further. Mr Baillie was an impressive witness. He did not see the accident itself, but he gave evidence as to the circumstances of the accident which I regarded as entirely trustworthy.
[6]It will be convenient to make findings, first, as to the background circumstances of the accident, then as to how the accident occurred. It is common ground between the parties that on 28 March 2003 the pursuer was employed as a joiner by an employment agency, Blue Arrow Construction Ltd, but was working for the defenders at "the Trades Hall" (the Trades House) in Glassford Street, Glasgow, where he was engaged in construction work. He had to cut a piece of wood. To do so he used a circular saw provided by the defenders. The defenders say on record that he should have been using a handsaw, but at the hearing on evidence their counsel expressly refrained from founding on these averments. The first contentious matter is the dimensions of the piece of wood. The pursuer said that it was mahogany or some other hardwood in the form of beading which was about 1 metre x 300 mm x 12 mm. The defenders, on the other hand, produced a small piece of wood (No. 7/1 of process) which Mr Baillie said a foreman joiner had shown to him after the accident as the wood the pursuer had been cutting. Mr Baillie described it as "a wee bit of mitred beading". The pursuer said that No. 7/1 of process was beading of the same thickness as the wood he had been cutting, but No. 7/1 of process had been cut at an angle, whereas he had been making a "straight cut", that is, so that the blade of the saw was at an angle of 90 degrees to the wood. He said that it was impossible that No. 7/1 of process could have been the piece he had been working on and that it would have been very dangerous to put a piece of wood that size in a circular saw. The defenders' counsel criticised the pursuer for not rebutting with sufficient alacrity the suggestion that he had been cutting No. 7/1 of process. I do not consider, however, that there was anything sinister in that: the pursuer appeared to me to be initially bemused by being asked to open the sealed envelope containing No. 7/1 of process and to unwrap it, but his position that that was not the wood concerned appeared to me to be clear from the outset. I find that he was cutting the piece of wood one metre long which he described.
[7]The pursuer did not use any clamp to secure the wood in place while it was being cut; and the second contentious matter is whether the pursuer should have been using clamps. The defenders aver:
"On either side of the saw, there are clamps. The clamps are adjustable. They hold the material in place whilst it is being cut. The need for an operator's hands to be in close proximity to the blade whilst it is being unguarded is thereby obviated."
When the pursuer was asked in examination-in-chief whether there were any clamps on the saw, counsel for the defenders objected to the line of evidence on the ground of no record. The pursuer's counsel replied that the pursuer in answer had denied, within the scope of a general denial, the averments quoted above. I allowed the evidence to continue under reservation. I have decided that the pursuer's denial gave the defenders sufficient notice that these averments would be challenged, and that the objection should be repelled. In the event the question of the clamps was of no consequence. Counsel for the pursuer stated at the hearing on evidence that the pursuer was not making any case based on the absence of clamps. The pursuer said...
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