Stuart Mcgowan V. W & J R Watson Limited
| Jurisdiction | Scotland |
| Judge | Lord Osborne,Lord Carloway,Lord Nimmo Smith |
| Neutral Citation | [2006] CSIH 62 |
| Court | Court of Session |
| Published date | 28 December 2006 |
| Year | 2006 |
| Date | 28 December 2006 |
| Docket Number | PD1456/04 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Osborne Lord Nimmo Smith Lord Carloway | [2006] CSIH 62 PD1456/04 OPINION OF THE COURT delivered by LORD NIMMO SMITH in RECLAIMING MOTION in the cause STUART McGOWAN Pursuer and Respondent; against W & J R WATSON LIMITED Defenders and Reclaimers: _______ |
Alt: R Thomson Simpson & Marwick
28 December 2006
[1] This is a reclaiming motion by the defenders against an interlocutor of the Lord Ordinary dated 16 December 2005 whereby he awarded to the pursuer damages of £5,150, with interest as specified therein, for an injury sustained by him in the course of his employment by the defenders. The Lord Ordinary held that the accident was caused by the defenders' breach of their statutory duty under Regulation 11(1) of the Provision and Use of Work Equipment Regulations 1998. He declined to make any reduction of the pursuer's award in respect of contributory negligence. The defenders originally lodged two grounds of appeal, the first of which alleged that the Lord Ordinary erred in holding that the defenders were in breach of statutory duty, and the second of which alleged that he erred in failing to reduce the pursuer's award in respect of contributory negligence. Shortly before the hearing of the reclaiming motion, however, the court was informed that no argument was to be advanced in support of the first ground of appeal, and at the hearing of the reclaiming motion we were accordingly addressed on the second ground of appeal only. The question for us was therefore whether the Lord Ordinary ought, as is alleged in that ground of appeal, to have reduced the pursuer's award by 50% to reflect contributory negligence on the part of the pursuer. It can be seen from this that the sum at stake in a reclaiming motion which was set down for one day and required the attendance of three judges, court staff, counsel and solicitors was £2,575, with interest.
[2] In the foregoing circumstances it is not necessary to do more than refer briefly to the Lord Ordinary's findings in fact about the manner in which the pursuer came to be injured and his reasons for holding that the defenders were in breach of their statutory duty. The pursuer was working for the defenders as a joiner, engaged on construction work. He had to cut a piece of wooden beading 1 metre long on a circular saw provided by the defenders. The saw consisted of a base on which the workpiece (the wood) could be laid against a metal guide, and above which the saw was suspended on an arm which could be moved so as to cut the workpiece from various angles. One half of the circular blade of the saw was within a metal frame on the arm, while the other half was protected by a Perspex guard. The saw could be brought down to cut the workpiece by moving the arm, on which there was a trigger which caused the blade of the saw to rotate. When the trigger was engaged and the saw was brought down towards the workpiece, the guard was retracted so as to allow the blade to cut the workpiece. The pursuer had to cut the 1 metre long piece of wooden beading with the saw so as to make a straight cut, that is, so that the blade was at an angle of 90º to the wood. He placed the piece of wood on the base of the saw without using a clamp. There was no clamp on the saw. He kept it in position by using his left hand. With his right hand on the arm he operated the saw, activating the trigger to make the blade rotate. With his right hand he lowered the arm and thus brought down the blade, and the blade made contact with the wood. The fingers of his left hand were 2 or 3 inches from the blade. As the teeth of the blade cut through the wood, there was what the pursuer described as a "jarring" or "jamming", the effect of which was to prevent the blade from rotating: it stopped completely. The piece of wood, which the pursuer was still holding in his left hand, moved upwards. With his left hand, the pursuer pushed it back down to force it beneath the saw. With his right hand, he was still pressing the trigger. The blade started to rotate again. It was not yet in contact with the wood. The pursuer's left hand was still on top of the wood. It was at this stage that his left middle finger came into contact with the rotating blade and was injured. The saw was tested after the accident and it was found that the guard worked as it should.
[3] Having assessed the evidence, the Lord Ordinary found that the pursuer's left middle finger came into contact with the rotating blade when his left hand was on the piece of wood. He concluded that his finger came into contact with the blade as a result of human fallibility on the pursuer's part. He said that it was clear that, as a result of some aberration, the pursuer inadvertently let go of the wood and allowed his finger to come into contact with the blade. He also found that it was proved that the guard was functioning properly, as it was designed to do.
[4] So far as liability for the accident was concerned, the Lord Ordinary held that the defenders could not be faulted for the fact that there was no clamp on the saw. He also held that the pursuer could not be faulted for failing to find and use a clamp. He also held that the pursuer had failed to establish that the defenders were in breach of Regulation 5(1) of the 1998 Regulations. Regulation 11 of the 1998 Regulations provides, so far as material:
"(1) Every employer shall ensure that measures are taken in accordance with paragraph (2) which are effective -
(a) to prevent access to any dangerous part of machinery ... ".
The Lord Ordinary held that the blade was such that a danger was reasonably to be anticipated from its use unguarded by a workman such as the pursuer who through inattention might inadvertently expose himself to the risk of injury from it. Given the acceptable evidence about the non-use of clamps, it could reasonably be anticipated that joiners would not use clamps but would hold in position by hand wood they had to cut with the circular saw. There was nothing to prevent such a joiner from having access to the revolving blade. Accordingly the result required by the regulation was not achieved. The defenders were therefore in breach of their statutory duty under Regulation 11(1), but for which breach the accident would not have occurred.
Contributory negligence
The pleadings
[5] Statement and answer 6 of the pleadings on which the parties went to proof are in these terms:
"STAT. VI. The pursuer's claim against the defenders is based on their breach of the statutory duties incumbent on them by virtue of Regulations 5(1) and 11(1) of the Provision and Use of Work Equipment Regulations 1998. The averments in answer are denied. The defenders give no fair notice of the basis of their averments of sole fault or contributory negligence. They are called upon to specify the basis of these averments, and to say what they allege the pursuer did, or failed to do, which caused, or contributed to, the accident. Their failure to answer this call will be founded upon.
Ans. 6 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."
The Lord Ordinary's decision
[6] In paragraph 19 of his Opinion the Lord Ordinary quoted from statement 6 for the pursuer, with particular reference to the call for further specification of the averments of sole fault or contributory negligence. He also referred to an averment for the defenders in answer 4, in these terms:
"On either side of the saw, there are clamps. The clamps are adjustable. They hold the material in place whilst it is...
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