Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 137
PD1020/06	OPINION OF LADY DORRIAN in the cause RAYMOND ALLAN SINCLAIR McGREGOR Pursuer; against ALPHA AIRPORTS GROUP PLC Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: Party

Defender: Dawson; Simpson & Marwick

6 October 2010

[1] The pursuer is a party litigant in an action in which he seeks damages of £383,500 in respect of an injury allegedly sustained at work on 18 June 2003. The pursuer avers that he was carrying two cases of juice cartons which weighed around 12 kgs each and that as a result he felt pain in his back which caused him loss, injury and damage. The continuing loss, injury and damage are said to include continuing acute back pain, urinary infections and a deterioration in his psychiatric condition. The case came before me on the defenders' motion for caution in the sum of £25,000. A proof in the case is fixed for 23 November 2010.

[2] The case has a complicated procedural history. The proof due to take place in November is the fourth proof diet. An original proof diet in May 2007 was discharged by the pursuer's agents on the basis that four days would not be sufficient. A further proof date was fixed for 27 January 2009 but the pursuer's agents withdrew from acting a week before the proof. No expert reports had been lodged for the pursuer nor had any witnesses been cited. His motion to discharge the proof was granted. A further proof was fixed for 1 December 2009. This proof was discharged ex proprio motu by the Lord Ordinary. The Lord Ordinary had concerns that the pursuer intended to prove a case which was not on record and decided to discharge the proof. A motion by the defenders for caution had been refused on 25 June 2009 and again in November 2009 on the basis that there had not been any change of circumstances. Following the discharge of the proof in December 2009 a further motion for caution was made in March 2010. In an Opinion dated 8 April 2010 the Lord Ordinary granted the defenders' motion for caution in the sum of £1,000. The Lord Ordinary concluded that there were grounds for granting such a motion based on (a) the impecuniosity of the pursuer and (b) the lack of merit in his case on record. However, since the pursuer had indicated an intention to lodge a Minute of Amendment the caution was restricted to a sum sufficient only to cover a short procedural hearing to determine whether the Minute of Amendment should be allowed.

[3] A motion to allow the Minute of Amendment to be received came before the court in July 2010. In an Opinion dated 10 August 2010 the court refused that motion. It was the refusal of that motion which brought about the change of circumstances since April 2010 and which justified the motion being made before me.

[4] Counsel submitted that the basic legal propositions were uncontentious. Before granting a motion for caution the court required to be satisfied that a party was impecunious. However impecuniousity was not in itself a sufficient reason for caution since the result would mean that impecunious litigants were effectively barred from access to justice. There must therefore be other exceptional circumstances to justify caution. In determining whether there are such exceptional circumstances the court is entitled to ask whether or not the case being advanced has serious merit. Reference was made to Will v Sneddon Campbell & Munro 1931 SLT 125, Thom v Andrew 1888 15R 780, Stevenson v Midlothian District Council 1983 SC (HL) 56 and Rush v Fife Regional Council 1985 SLT 451. That this was the appropriate test which had been recognised by the Lord Ordinary on 8 April 2010 when he noted

"in approaching the question I recognise that in exercising the discretion to require caution, a balance requires to be struck as between the interests of the party faced with an impecunious opponent in not being put to uncontrolled and irrecoverable expense and the interests of the impecunious party to have his claim considered by the courts. This balancing exercise is recognised in both Rush v Fife Regional Council and in Stevenson v Midlothian District Council. However, it is clear from both of these cases that in carrying out that balancing exercise an important factor is this: whether there is any merit in the impecunious litigant's case".

[5] There was no dispute in the present case as to the impecuniosity of the litigant. The issue before the court therefore was whether there were other circumstances making it appropriate that caution should be fixed. Counsel then turned to the question of whether there was any merit in the pursuer's case. Counsel's primary submission was that the case was devoid of merit and he relied on the Opinion of the Lord Ordinary of 8 April 2010 as accurately summarising the defenders' position. Counsel submitted that it was appropriate to have regard to the material which was before the court to determine the likelihood of the pursuer being successful. That was done by the Lord Ordinary on 8 April 2010 in respect of exactly the case which is currently on record. As the court previously recognised, in order to be successful, either at common law or under the Manual Handling Regulations, the pursuer required to persuade the court that the manual handling task in question presented a foreseeable risk of injury. It was appropriate therefore to consider how likely he was to succeed on that fundamental point. The pursuer does not intend to lead any expert witnesses nor has he cited any expert witness to support his contention of serious risk to injury. The defenders have an ergonomist, Joanne Crawford, who has prepared a report in which she concludes the following:-

"7.1 From the summons and precognitions it is currently unclear what Mr McGregor was doing when the accident occurred. If it was lifting a stack of polystyrene cups this is not a risk of injury under the Manual Handling Operations Regulations (1992) (as amended 2004).

7.2 The data supplied regarding the lifting of juice cartons has been total weights of either 12 or 24kgs. According to both inter-abdominal pressure calculations and biomechanical analysis, the weights lifted are not perceived to present a risk of injury as they fall within predictive limits from two sources".

[6] Turning to the medical evidence the position was the same. Before the Lord Ordinary on 8 April 2010 the pursuer had indicated that he was perhaps prepared to agree the terms of a medical report prepared on behalf of the defenders by Mr Peter Gibson, Consultant Orthopaedic Surgeon. Since Mr Gibson had retired (and had not in any event been available for the previous proof) the defenders did not intend to lead him and had obtained a further report from Mr Ian Mackay. It appeared however that it was from the content of Mr Gibson's report that the pursuer sought to establish his medical condition. As the Lord Ordinary recorded on 8 April that report contains the following conclusions:-

"I think one would expect that following the type of accident he had in June 2003, Mr McGregor would have had at worst a lumbar sprain, a musculo-fascial sprain of some sort which one would expect to produce acute low back pain which would have lasted two or three months at most. His current level of complaints and his state on physical examination is difficult to explain on the basis of his injury. There is no doubt that he presents as a person who is significantly disabled but the physical signs do not match with the history or the investigations which have been carried out. He presents with all of the inappropriate physical signs that one would expect in patients with non-organic back pain:"

Mr Mackay's opinion was that "it does not seem to me that the specific events of 18 June 2003 in themselves would have caused any symptoms beyond a very few months at most in the above situation". As to the psychiatric condition of the pursuer, the defenders have a report from Dr Alan Carson, Consultant Psychiatrist, in which he concludes false reporting may play a significant part in this case and that Mr McGregor is deliberately exaggerating his symptoms.

[7] Counsel submitted that these factors, which led the Lord Ordinary to conclude on 8 April that the case was without merit remained valid today and renewed the motion for caution.

[8] In asking the pursuer to respond to this I thought it appropriate to ask him, in light of the procedural history, what was the nature of the case that he now wants to prove. He said that he would be using the pleadings on record to demonstrate that the defenders were negligent throughout his employment since all driver employees had to lift catering carts and bars for the aircraft, sometimes working until late and starting again at 4.30 in the morning. The accident on 18 June was a combination of a lot of things. Asked what it was a combination of he said:

"I hurt myself when I was carrying the bars and had to keep on working and got to the point where I could not work any more. On the day in question we put away a lorryload worth of British Airways stock, six pallets of which were on a hill and we had to lift them by hand from one place to another. We did that prior to going to the top store where I felt my back go".

He said that the effect of moving these pallets was that he just could not carry on any more. He was complaining about the effect which work practices had on him. I also asked him which witnesses he intended to call and what he anticipated that they would say. He intended to call Victoria Ann Brown with whom he formerly lived and who used to work with the defenders. She would speak to the lengthy hours which he had to work, sometimes finishing at 11 and starting again at 4.30 in the morning. Her evidence would show the illegal work practices engaged in throughout his employment. Serena Reid was another ex-employee who did the same job as the pursuer and who could verify what he said about the procedures. She was not there on the day of the accident but would speak about general work practices and the illegal weights lifted. A further witness, Jimmy Potts, was a security guard who oversaw the operations of lifting of inflight carts and bars. He could speak to the fact that employees had to carry these rather than place them on a truck which they should have done. He could also speak to the dimensions of the carts and the weight of the bars as being over 80kgs. He did not intend to lead any medical experts but intended to rely on those of the defenders. That was how he intended to prove the nature of his medical condition. As to the link between his medical condition and the work he was employed to do, he would rely on the defenders' ergonomist and was looking forward to hearing her opinion of the effect that weights of 80kgs had on his back.

[9] From this it will be seen that the case which the pursuer wishes to advance is not the case which is pled on record. It is, on the contrary, the case which he sought to advance in the Minute of Amendment which was refused on 10 August 2010.

[10] In the light of all these circumstances it seems to me that the defenders' submission that the pursuer's case is without merit must be accepted. I have accordingly decided to grant the defenders' motion for caution. The pursuer expressed concern that if this motion were granted it would be "the end of the line" for him. I am very conscious that this is so. That however is in the nature of the difficult balancing task which must be carried out in a motion such as this. As the court put it in Rush v Fife Regional Council:

"Ordering caution on a man who is manifestly not in a financial position to provide any sum of substance may appear to be a draconian order, but justice has to be even-handed, and on the other side of the coin it would be grossly unfair to oblige the defenders to carry on defending an obviously irrelevant action without any hope of recovering any expenses if successful, particularly against an adversary who has shown that he is prone to table all kinds of procedural motions which have no merit and no justification".

[11] The defenders in this case have already been put to significant expense. The pursuer seeks to run a proof on a case which is not before the court and which the court has refused to entertain. Any attempt to lead evidence of general work practices, carrying of carts, the carrying of bars or the weight of these items is doomed to failure.

[12] The defenders sought caution in the sum of £25,000 which they submit reflected the prospective expenses in the case. I propose to make an order for caution in the sum of £20,000 and to allow 28 days for that to be found.