Peter Taylor Campbell V. North Lanarkshire Council And Scottish Power Plc
| Jurisdiction | Scotland |
| Judge | Lord Reed |
| Date | 30 June 1999 |
| Court | Court of Session |
| Published date | 30 June 1999 |
| OUTER HOUSE, COURT OF SESSION
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| OPINION OF LORD REED in the cause PETER TAYLOR CAMPBELL Pursuer; against (FIRST) NORTH LANARKSHIRE COUNCIL and (SECOND) SCOTTISH POWER PLC Defenders: ________________
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Pursuer: Mackie; Balfour & Manson
First Defenders: Hammond; Campbell Smith, W.S
Second Defenders: Wilson; Shepherd & Wedderburn, W.S.
30 June 1999
In this action the pursuer seeks damages in respect of a psychiatric condition which is said to have been caused by an accident at work. The action came before me for a Procedure Roll debate, at which the defenders sought to have the action dismissed.
According to the pursuer's pleadings, he was employed by the first defenders' statutory predecessors, Strathclyde Regional Council, as an electrician. On 16 March 1993 he was working in the course of his employment in the switch room of Caldervale High School in Airdrie. He and his colleague, Andrew Carr, had been instructed by their supervisor to remove a broken piece of a crank handle from equipment described as "the main air break circuit breaker", and thereafter to attempt to re-charge the circuit breaker. The pursuer and Carr began the operation of removing the broken handle, which involved drilling a hole in the broken part, tapping a thread into the hole and then drawing the part out of the unit. Four employees of the second defenders then arrived: Ian Wallace, the engineer in charge; a Mr Todd and a Mr Berry, who were both engineers; and a Mr Johnstone, an electrician. One of the engineers helped Carr in removing the broken part. The pursuer's chargehand, Donald Frew, was also present. A new handle was fetched by Fraser, but the circuit breaker did not re-charge when the handle was turned. It became apparent and it would be necessary to strip down the whole unit in order to identify the fault. There was some discussion about isolating the unit before any further work was carried out on it, but this was not possible within the switch room itself: it would be necessary to go to a nearby sub-station belonging to the second defenders. In the event Carr and others contained to work on the unit without it having been isolated. They tried heating it with a blowtorch, but this was unsuccessful. Carr took out his spanner. The pursuer left the switch room. Within the switch room, Todd held a torch and Berry used the handle to lever something in the unit. The pursuer had walked a distance of 30 to 40 yards when there was a violent explosion from within the switch room. The pursuer ran back towards the switch room. He saw flashes when he looked towards the entrance. The explosion continued for a number of seconds and was still in progress. He was aware that the other men were still inside the switch room. He feared for the lives of Carr and the other men in the room. He saw one of the second defenders' employees standing in a puddle outside the room. This man was screaming "Where's my eyes?". Smoke was coming from his head and clothes. Skin was hanging from his face and hands. His face was black and his eyes could not be made out. He looked grotesque. The pursuer was afraid the puddle was live and did not go through it. He gained access to the switch room by another way. Smoke was belching from the room. The pursuer found Carr crouching in a corner. He got a reply from him. One of the other employees of the second defenders was shouting about his eyes. His skin was blackened and falling from him in places with smoke rising from his hair and clothes. The pursuer ran out to telephone for help. The man in the puddle was moaning and in a kneeling position. His hat appeared to have melted on to his head and down the side of his face. The pursuer stayed until the others had been taken to hospital. He stayed at work but was dazed, disorientated, confused and in a state of shock.
The pursuer believes and avers that the explosion occurred as a result of the actings of Todd and Berry. In particular, he believes and avers that Berry, by inserting the handle into the unit, brought about contact between the handle and live terminals or conductors.
The pursuer's case of fault, so far as directed against the first defenders, is based first on their predecessor's breach of the duty of care which they owed to the pursuer as his employers, and in particular their duty to provide him with a safe place of work and a safe system of work. It is said to have been reasonably foreseeable that, if various specified precautions were not taken, then the pursuer and others would be exposed to the risk of an explosion. In particular it is said that the employers should have ensured that the circuit breaker could be isolated from within the switch room, or that they should alternatively have arranged for the circuit breaker to be isolated from elsewhere before the pursuer and the other men began work on it. Secondly, it is averred that the first defenders' predecessors were in breach of statutory duties under regulations 4, 7, 12 and 14 of the Electricity at Work Regulations 1989. Thirdly, it is averred that they were in breach of their duty under the Employers Liability (Scotland) Act 1960, as occupiers of the switch room, to take reasonable care that persons entering the room, including the pursuer, would not suffer injury or damage by reason of any danger due to the state of the room or anything done or omitted to be done there. The pursuer's case of fault in respect of the second defenders is based first on their vicarious liability for the failure of their employees, while working on the unit, to take reasonable care for the safety of other persons in the switch room or in the vicinity of the switch room. In particular, it is averred that Berry was negligent in inserting the handle into the circuit breaker when it was live. Secondly, it is averred that the second defenders were in breach of their statutory duty under Regulation 14 of the Electricity at Work Regulations.
The pursuer's averments in respect of his injuries being by stating:
"He experienced an extremely frightening electrical explosion. He witnesses other men suffering serious injury. He was emotionally disturbed by the experience".
They go on to aver that he developed a major depressive disorder.
Addressing me on behalf of the first defenders, Mr Hammond submitted (putting the matter shortly: I shall discuss the submissions in greater detail below) that the action was irrelevant in law in respect that the pursuer was outwith the category of persons entitled by law to recover damages for psychiatric injury. Referring to the distinction between primary and secondary victims drawn in Page v Smith [1996] AC 155 and examined more recently in White v Chief Constable of the South Yorkshire Police [1998] 3 WLR 1509, Mr Hammond argued, in effect, that the pursuer was not a primary victim because he was not sufficiently close to the explosion to suffer physical injury as a consequence of the explosion. Nor was the pursuer within any of the special categories of secondary victims who might recover: he was not entitled to recover as a rescuer, since he had not carried out a rescue and in any event had not been in any apprehension of personal danger; and he did not suggest that he had any close ties of love or affection to the injured men. These submissions were adopted by Miss Wilson on behalf of the second defenders. In addition to the case of White, she also referred me to the case of Robertson v Forth Road Bridge Joint Board, 1995 SC 364.
In reply, Mr Mackie submitted that the pursuer should be regarded as a primary victim, since he was working in the switch room shortly before the explosion and had been directly exposed to the explosion. Alternatively he should be regarded as a rescuer: he had gone to the assistance of the injured men, and had placed himself in a position of potential danger. Mr Mackie moved me to allow a proof before answer.
I would observe at the outset that cases of this general kind - where damages are sought in delict for psychiatric injury alone - are apt to raise difficult legal questions which turn on subtle, not to say tenuous, distinctions; between, for example, physical injury and psychiatric injury; primary victims and secondary victims; rescuers and bystanders; close ties of love or affection, and less close relationships. It is likely to be particularly difficult to resolve issues of this kind on the basis of pleadings alone. In the present case, for example, the pleadings do not focus these issues with crystal clarity, but they were not criticised for a failure to give fair notice of the pursuer's case. In such a case it is particularly important to bear in mind what was said by Lord Keith of Avonholm in Miller v South of Scotland Electricity Board, 1958 SC (HL) 20, 33:
"In claims of damages for alleged negligence it can only be in rare and exceptional cases that an action can be disposed of on relevancy.... It is hardly necessary to say in a Scottish case that the law of negligence in Scotland proceeds on principles of culpa, breach of the duty to take that care which the circumstances demand from a reasonable man. These circumstances in any particular case will normally have to be ascertained by evidence. They vary infinitely. The facets and details of the case on which an assessment of the law must depend cannot be conveyed to the mind by mere averments of the bare bones of the case, and the weighing of the facts for or against negligence may often present a delicate task to the tribunal charged with applying the law."
I note that all of the cases cited to me were decided after the evidence had been heard. It is also necessary to bear in mind the test of relevancy: namely, whether "even if the pursuer succeeds in proving all that he avers, still his case must fail" (Jamieson v Jamieson; 1952 SC (HL) 44, 63 per Lord Reid).
The second preliminary observation I would make is that all the authorities cited to me were concerned...
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