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

RECLAIMING MOTION

in the cause

STUART McGOWAN

Pursuer and Respondent;

against

W & J R WATSON LIMITED

Defenders and Reclaimers:

_______

Act: MacAulay, Q.C., Lloyd; Thompsons

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 90^o 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 being cut. The need for an operator's hands to be in close proximity to the blade whilst it is unguarded is thereby obviated."

He then continued, in paragraph 19 in these terms:

"In my opinion this point is well taken. The only indication of an averment of fault on the pursuer's part is to be inferred from the defenders' averments about clamps, which I have already quoted. I have already expressed the view that the pursuer is not to be faulted for failing to use a clamp. The pursuer has not been given any notice of any other ground of fault, and I have no note or recollection of any other ground being put to him in cross-examination. I would therefore make no reduction of the pursuer's award in respect of contributory negligence. If I am wrong about that, and some deduction should be made in respect of what I have found to be inattention or inadvertence, I would assess contributory negligence at 50 per cent, as in the somewhat similar circumstances of Prentice v Fleming 1978 SLT (Notes) 40. Other comparable cases are cited in McEwan and Paton on Damages for Personal Injuries in Scotland (2nd Ed.), page 100."

Submissions for the defenders

[7 ] When asked why a reclaiming motion had been brought when the sum of money at stake was so small and no point of principle arose, Mr Thomson (who did not appear at the proof before the Lord Ordinary and, as we understand it, had been instructed for the first time for the defenders shortly before the hearing of the reclaiming motion) explained that steps had been taken to try to prevent the reclaiming motion from being heard. The Lord Ordinary's decision, however, had attracted some attention from pleaders and the question was what defenders required to do in order to plead a case of contributory negligence. The key to his submissions lay in the Lord Ordinary's conclusion that the pursuer's finger came into contact with the blade as a result of human fallibility, some aberration or lapse in attention, or inadvertence on his part. Counsel referred to passages in the transcript of evidence, which it is unnecessary for us to quote, from which this conclusion was derived. Counsel accepted that it had not been put to the pursuer at the proof that he had failed to take reasonable care for his own safety. It was no doubt normal to do this in cross-examination, but the pursuer's own account in his evidence in chief was redolent of contributory negligence.

[8 ] On the pleading issue, counsel submitted that the defenders had given fair notice. He accepted that even under the procedure for actions for damages for personal injuries, fair notice was required, but this depended on the circumstances of each case. The requirements of fair notice should not be more burdensome on one party than on the other: there should be no unfair disparity between the parties. The requirement of what the defenders must do by way of fair notice depended upon what notice was given by the pursuer. Under Rule of Court 43.2 the pursuer required to give no more than a "brief statement". The Lord Ordinary had expected the defenders to do more than was required of the pursuer, and therefore erred. Reference was made to the Opinion of Lord Osborne in Dalson v Tayside Health Board 1998 S.L.T. 1304, at the conclusion of which, at page 1305D, his Lordship said:

"It appears to me to be in accordance with normal principles of fairness, in an optional procedure case where a pursuer does not require to aver specific duties of care, that defenders should not be under any greater duty in relation to a case of contributory negligence."

Adopting this approach, counsel submitted that the defenders were entitled to table a general plea of contributory negligence and not to set out the specific duty or duties which the pursuer was alleged to have breached. Moreover, having regard to the evidence given by the pursuer, it was not necessary to put to him in cross-examination any specific ground upon which it was alleged that he had been negligent.

Submissions for the pursuer
[9] On behalf of the pursuer, Mr MacAulay submitted that the Lord Ordinary was correct in concluding that no finding of contributory negligence should be made in the absence of averment and in the absence of the matter having been put to the pursuer. In any event, inadvertence or inattention on the part of the pursuer would not support a finding of contributory negligence on his part. Counsel emphasised the point that the defenders had specific averments in their pleadings about the use of clamps on the saw, and this had been explored in evidence with the pursuer and other witnesses. Having put forward one specific line of defence, the defenders were not entitled to put forward another line of which no specification and accordingly no fair notice had been given. Reference was made to the Opinion of Lord Glennie in Weir v Robertson Group (Construction) Ltd [2006] CSOH 107, where at paragraph 7 his Lordship gave his reasons for upholding an objection to a line of cross-examination of the pursuer on the basis that there was no record for it. He said:

"Although the new personal damages rules contained in Rule of Court 43 encourage abbreviated pleadings, they do not dispense with the requirements of fair notice. Rule of Court 43.2 requires the summons to contain averments 'relating only to those facts necessary to establish the claim'. The same approach, in my view, applies mutatis mutandis to the defences, though there is no specific rule about defences. The defences should aver the facts which the defender regards as necessary to support his defence or plea of contributory negligence. Otherwise how is the pursuer to know what investigations to make and what evidence to lead?"

Counsel submitted that in the defenders' pleadings the case of contributory negligence rested on the averments about the use of clamps. This was why the cross-examiner did not suggest to the pursuer that he was doing anything else wrong. It was not put to him that he was at fault in any other way, for example in the way that he operated the saw.

[10] Counsel further submitted that in any event there was no evidence on which a finding of contributory negligence could be based. The Lord Ordinary had held that neither the pursuer nor the defenders were at fault in respect that a clamp had not been used for the task which the pursuer was performing. Inadvertence or inattention did not constitute negligence in law. Reference was made to a line of authority to support this proposition. In Caswell v Powell Duffryn Associated Collieries Ltd [1940] A.C. 152 Lord Wright said at page 176:

"The degree of want of care which constitutes negligence must vary with the circumstances. What that degree is, is a question for the jury or the court in lieu of a jury. It is not a matter of uniform standard. It may vary according to the circumstances from man to man, from place to place, from time to time. It may vary even in the case of the same man. Thus a surgeon doing an emergency operation on a cottage table with the light of a candle might not properly be held guilty of negligence in respect of an act or omission which would be negligence if he were performing the same operation with all the advantages of the serene atmosphere of his operating theatre; the same holds good of the workman. It must be a question of degree. The jury have to draw the line where mere thoughtlessness or inadvertence or forgetfulness ceases and where negligence begins."

In John Summers & Sons Ltd v Frost [1955] A.C. 740 Lord Keith of Avonholm said at page 777 that the employers in that case had failed to prove contributory negligence against the workman. He said:

"The type of accident that happened here is just the type of the accident against which section 14 [of the Factories Act 1937] is directed. There is no question here of disobedience to orders, or of reckless disregard by a workman of his own safety. At most there was a mere error of judgment by the plaintiff as to how the work on which he was engaged could best be carried out, and possibly only a mere momentary inadvertence."

He agreed that what the plaintiff did fell short of negligent conduct. These passages were quoted by Lord McCluskey in McNeill v Roche Products Ltd 1989 S.L.T. 498 at page 504D-E. His Lordship said:

"[T]he tribunal of fact has to draw the line between mere thoughtlessness or inadvertence on the one hand and real negligence on the other and to give due regard to the actual conditions under which men work, to the fatigue, to the slackening of attention which naturally comes from constant repetition of the same operation and other such factors. The authorities illustrate the point that, particularly in a case where the employers are in breach of their section 14 [of the Factories Act 1961] duty, the court must be cautious about making a finding of contributory negligence against a workman based simply upon his departing marginally from the ordinary routine. The whole purpose of a provision such as section 14 is to avoid the risk of accident to the inadvertent workman or passer by."

[11 ] On the basis of these authorities, counsel submitted that if there was an absolute statutory duty, a finding of inadvertence or inattention on the part of the injured employee did not constitute contributory negligence. This was what the Lord Ordinary had found. In any event, a finding of contributory negligence of as much as 50% would not be justified. The defenders had been in breach of an absolute statutory duty to protect their employees from dangerous machinery. At worst, the pursuer was guilty of inadvertence, not blatant lack of care or failure to follow working practices. On any view he was doing his job in a way in which he would generally be expected to do it. So if there was to be a finding of contributory negligence, it should be at the bottom end of the scale.

Discussion
[12] In our opinion the Lord Ordinary did not err in making no reduction of the pursuer's award in respect of contributory negligence. Two points arise: first, whether the Lord Ordinary's approach to the pleading point was correct; and, secondly, whether in any event on the evidence accepted by the Lord Ordinary there was a basis for a finding of contributory negligence.

[13 ] It is clear that in an action of damages for personal injuries to which the provisions of Chapter 43 of the Rules of Court apply, it is not necessary for either party to engage in elaborate pleading. There is, nevertheless, as Mr Thomson recognised, a requirement, which is imposed on defenders as much as on pursuers, to give at least fair notice of a case which it is proposed to make. Thus defenders could not secure a finding of contributory negligence if they had not at the very least made some reference to it in their pleadings. How much beyond that is required depends very much on the circumstances of each case. It may be that the pursuer's own pleadings would support a plea of contributory negligence, in which case very little need be said. But if defenders choose to give notice of a specific case of contributory negligence, as was done here in relation to the use of clamps, they may be precluded from seeking to argue for a finding of contributory negligence on any other ground because they have not given fair notice of it. We agree with the approach of Lord Glennie in Weir v Robertson Group (Construction) Ltd, in the passage quoted above. Accordingly, in circumstances such as arose in that case, an objection to a line of cross-examination of which no fair notice had been given in the defenders' pleadings would appropriately be upheld. In the present case, the lack of fair notice went further. There was no attempt to put it to the pursuer in cross-examination that he had been negligent in any respect except that of failing to use clamps. The pursuer accordingly had no opportunity to contradict any suggestion that there had been a lack of reasonable care on his part in any other respect. Indeed, it does not appear from the Lord Ordinary's opinion that he was invited to make a finding of contributory negligence on any other ground. In our opinion, he had no alternative but to dispose of the matter as he did.

[14 ] It was only before us that counsel sought to build a case of contributory negligence on the Lord Ordinary's conclusions that the accident happened as a result of human fallibility, aberration or lapse in attention, or inadvertence on the part of the pursuer. The authorities quoted above are ample support for the proposition that such a failure does not form the basis for a finding of contributory negligence on the part of an employee who has been injured as a result of a breach by his employers of an absolute statutory duty such as that imposed by Regulation 11(1) of the 1998 Regulations. The reason for this is that statutory provisions of this kind are intended to protect employees against inter alia accidents caused by inattention or inadvertence. The protection does not extend only to employees who are fully alert. A momentary lapse, such as occurred in the present case, falls short of being described as a lack of reasonable care on the part of the pursuer.

[15 ] Where, however, in our opinion the Lord Ordinary has fallen into error is in saying that if some deduction should be made in respect of what he had found to be inattention or inadvertence, he would assess contributory negligence at 50%. As we have said, inattention or inadvertence do not support a finding of contributory negligence, and there was no other evidence which the Lord Ordinary accepted which would support such a finding. Clearly he was not addressed on the authorities which distinguish between inattention or inadvertence on the one hand and contributory negligence on the other, otherwise he might not have made this statement. But in our opinion, having reached the conclusion he did on the evidence, there was no need to express an alternative conclusion on a hypothetical basis.

Result
[16 ] For these reasons we shall refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary. We would only add that it is regrettable that so much time and expense, particularly court time, should have been taken up with a dispute about such a relatively trifling sum of money in a case which was dependent upon its own particular circumstances and which raised no issue of principle. If it is part of a wider dispute, as to which we can only speculate, we would deprecate it.