Raymond Campbell V. East Renfrewshire Council
| Jurisdiction | Scotland |
| Judge | R.F.Macdonald, Q.C. |
| Date | 31 March 2004 |
| Docket Number | A3090/01 |
| Court | Court of Session |
| Published date | 31 March 2004 |
| OUTER HOUSE, COURT OF SESSION | |
| A3090/01
| OPINION OF R F MACDONALD QC (Sitting as a Temporary Judge) in the cause RAYMOND CAMPBELL Pursuer; against EAST RENFREWSHIRE COUNCIL Defenders: ________________ |
Pursuer: R.G. Milligan; Digby Brown, SSC
Defenders: Miss A. E. Smart; Reid Cooper Partnership
31 March 2004
Introduction
[1]In this action of damages for personal injuries the pursuer, who was born on 8 September 1961, sues his employers for injuries which, he avers, he sustained in the course of his employment on or about 10 January 2000. The averments in condescendence 2 relating to the circumstances of the accident are as follows:
"On or about 10 January 2000 the pursuer was working in the course of his employment with the defenders as a Groundsman. He was working with Pat Gallagher, the supervisor, Thomas Pendergast, the chargehand and Alan Bruce. They were all working on an embankment at the roundabout at Arthurlie Street, Barrhead. The embankment was the pursuer's workplace in terms of Regulation 2(1) of the Workplace (Health, Safety and Welfare) Regulations 1992. The embankment was very steep. It had been raining heavily all day. The weather was wet and windy. The embankment was saturated, making it very slippery. At about 1.45pm, the pursuer was pulling shrubs out of the embankment. He was working near the top of the embankment. As he pulled one of the shrubs, he lost his footing in the mud. He fell about 20 feet to the bottom of the embankment, causing the loss, injury and damage hereinafter condescended upon. The pursuer reported the accident to the defenders. On 10 January 2001 Pat Gallagher completed and internal Accident/Incident Report Form in which he described the accident in the following terms: 'When he was digging out shrubs from the banking he slipped and fell down the banking injuring his left knee'. At the end of that form, under the section relating to prevention of recurrences of such accidents, it was recommended that employees should be advised to assess site conditions before carrying out any work. On 12 January 2001 Stephen Thain completed the defenders' HSE Report of an injury or dangerous occurrence in which he described the accident in the following terms: 'When Raymond was digging out shrubs from the soil, he slipped and rolled down the banking injuring his right knee'."
An averment by the defenders in answer that the pursuer had been issued with protective footwear for use in such circumstances is admitted by the pursuer, under explanation that he was wearing the footwear at the time of the accident.
[2]A case of common law fault is pleaded by the pursuer in condescendence 3 and a case of breach of statutory duty is pleaded by him condescendence 4. The case of breach of statutory duty is based upon Regulations 12 and 13 of the Workplace (Health, Safety and Welfare) Regulations 1992. These Regulations, so far as relevant, provide as follows:
"12.-(1) Every floor in a workplace and the surface of every traffic route in a workplace shall be of a construction such that the floor or surface of the traffic route is suitable for the purpose for which it is used.
(2)Without prejudice to the generality of paragraph (1), the requirements in that paragraph shall include requirements that -
(a)the floor or surface of the traffic route shall have no hole or slope, or be uneven or slippery so as, in each case, to expose any person to a risk to his health or safety; and
(b)every such floor shall have effective means of drainage where necessary.
(3)So far as is reasonably practicable, every floor in a workplace and the surface of every traffic route in a workplace shall be kept free from obstructions and from any article or substance which may cause a person to slip, trip or fall.
13.-(1) So far as is reasonably practicable, suitable and effective measures shall be taken to prevent any event specified in paragraph (3).
(3) The events specified in this paragraph are -
(a) any person falling a distance likely to cause personal injury; and
(b) any person being struck by a falling object likely to cause personal injury."
The pursuer avers that the defenders were in breach of Regulation 12 because the floor of the workplace had a slope and was slippery so as to expose him to a risk to his health or safety, and the defenders did not take all reasonably practicable measures to keep the floor of the workplace free from mud, which was a substance likely to cause a person to slip. So far as Regulation 13 is concerned, he avers that the defenders did not take all reasonably practicable measures to prevent any person falling a distance likely to cause personal injury. In answer the defenders aver that the embankment was not a floor in a workplace and that in any event, if it was, it was not reasonably practicable for the defenders to keep the surface of the embankment free from substances likely to cause a person to slip or for them to take measures to prevent his fall.
[3]When the case called before me on procedure roll Miss Smart, for the defenders, moved me to sustain the defenders' first plea-in-law (a general plea to the relevancy) by withholding the pursuer's statutory case in condescendence 4 from probation. She intimated that no challenge was being made to the common law case of fault in condescendence 3.
Submissions for the Defenders
[4]Miss Smart began her submissions by accepting that a workplace could be out of doors. Regulation 2(1) provided that "workplace" meant any premises or part of premises which are not domestic premises and are made available to any person as a place of work. "Premises" meant any place , including an outdoor place: see Sections 52 and 53 of the Health and Safety at Work Etc Act 1974 ("the 1974 Act"). The question which arose in this action, said Miss Smart, was whether the workplace in which the pursuer was working could be said to have a floor. She submitted that Regulations 12 and 13 were not applicable in this case as the embankment was not a floor. She pointed out that Regulation 12(1) provided that every floor in a workplace "shall be of a construction such that the floor is suitable for the purpose for which it is used", and submitted that the phrase "shall be of a construction" connoted that a floor had to be a manmade structure. The use of the word "construction" connoted some human intervention in the constructing of a floor. The word "floor" did not apply to mother earth or the natural features of the landscape. Regulation 12 referred to "every floor in a workplace and the surface of every traffic route in a workplace". The expression "every floor in a workplace" was not synonymous with the expression "the surface of every traffic route", and, if the word "floor" included the ground, the latter expression was otiose. The Guidance Notes to the Regulations referred to floors and traffic routes being of sound construction and having adequate strength and stability, taking account of the loads placed on them and the traffic passing over them (Note 89) and to the surfaces of floors and traffic routes being free from any hole, slope, or uneven or slippery surface (Note 90). It was also permissible to have regard to the Directive which the Regulations implemented. The Directive in question was the Workplace Directive 89/654/EEC. So far as floors were concerned, Sections 9.1 and 9.2 of Annex 1 of the Directive provided as follows:
"9.1The floors of rooms must have no dangerous bumps, holes or slopes and must be fixed, stable and not slippery ...
9.2The surfaces of floors, walls and ceilings in rooms must be such that they can be cleaned or refurbished to an appropriate standard of hygiene."
Miss Smart underlined that Section 9.1 dealt only with "the floors of rooms". So far as traffic routes were concerned, Section 12.1 of Annex 1 provided as follows:
"Traffic routes, including stairs, fixed ladders and loading bays and ramps, must be located and dimensioned to ensure easy, safe and appropriate access for pedestrians or vehicles in such a way as not to endanger workers employed in the vicinity of these traffic routes."
Section 21 of Annex 1 contained special provisions relating to outdoor workplaces and, so far as relevant, was in the following terms:
"21.1Workstations, traffic routes and other areas or installations outdoors which are used or occupied by the workers in the course of their activity must be organised in such a way that pedestrians and vehicles can circulate safely ... Section 12 is also applicable to outdoor workplaces.
21.3When workers are employed at workstations outdoors, such workstations must as far as possible be arranged so that workers ... (d) cannot slip or fall."
Miss Smart pointed out that the pursuer was not at the material time working at a workstation, and that Section 21 did not cover people who were simply going from place to place outdoors.
[5]Miss Smart next considered the dictionary meaning of the word "floor". She referred to the Oxford English Dictionary (2nd Ed, 1989) at pages 1077-1078. The first meaning of the word, which Miss Smart submitted was its normal meaning, was "the layer of boards, brick, stone etc. in an apartment, on which people tread; the under surface of the interior of a room". It was only when it came to give a seventh meaning for the word "floor" that the Oxford English Dictionary provided the synonym "the ground". Two instances of this meaning were given, one of which was obsolete in dialect, and the other of which was colloquial in the context of cricket. Miss Smart submitted that when Parliament used the word "floor" in the Regulations it did not intend to refer to "the ground".
[6]Miss Smart thereafter went on to consider the judicial construction of the word "floor" in the cases under the Factories Acts. Before she embarked on this exercise she referred me to two statements of judicial disapproval (both in the Outer House) of such an approach to the construction of the...
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