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ANDREW MACLACHLAN AGAINST STRATHCLYDE PARTNERSHIP FOR TRANSPORT


Submitted: 22 March 2017

SHERIFFDOM OF LOTHIAN & BORDERS AT EDINBURGH

(IN THE ALL‑SCOTLAND SHERIFF COURT)

 

[2017] SC EDIN 15

PIC-PN115-16

JUDGMENT OF SHERIFF FIONA LENNOX REITH, QC

 

In the cause

 

ANDREW MACLACHLAN

 

Pursuer

 

against

 

STRATHCLYDE PARTNERSHIP FOR TRANSPORT

 

Defenders

 

Pursuer:   Forsyth, Advocate;  Allan McDougall, Solicitors, Edinburgh

Defenders:   Murray, Advocate;  Clyde & Company, Edinburgh

 

Edinburgh:  22nd March 2017

The sheriff, having resumed consideration of the cause, finds in fact:

[1]        The pursuer is 55 years of age.  He is employed by the defenders as a Planning and Logistics Coordinator.  He has been in the defenders’ employment for about 15 years.  He works at the defenders’ Broomloan Depot in Glasgow.

[2]        The defenders are a transport authority established under the Transport (Scotland) Act 2005 and have a place of business at 131 St Vincent Street, Glasgow.

[3]        On 26 March 2013 the pursuer was working in the course of his employment at the Broomloan Depot.  His office was in the workshop on the ground floor of the depot.  He had been working there for between about six and 12 months at that point.

 

[4]        The defenders were responsible for maintaining said depot and workshop. 

[5]        The workshop was the pursuer’s workplace for the purposes of the Workplace (Health, Safety and Welfare) Regulations 1992. 

[6]        At about 7.30 am on said date the pursuer was making his way through the main workshop at said depot towards the workshop office where he worked.

[7]        There was a designated walkway to the workshop office through the main workshop at the depot.  The designated walkway was a traffic route for the purposes of the said regulations (“the designated traffic route”).  The designated traffic route provided a safe means of access to and egress from the said workshop office over embedded rails which crossed through the designated traffic route in the concrete floor of the workshop. 

[8]        Trains and rolling stock, including locomotives, are maintained in the said workshop.  Trains and rolling stock are brought into and removed from the workshop by means of embedded rails running through the length of the concrete floor of the workshop. The defenders need to be able to move trains and rolling stock into and out of the workshop in connection with maintenance operations.  There are no points in the depot where designated traffic routes are other than at right angles to embedded rails.  The depot could not operate without embedded rails.

[9]        Embedded rails are embedded in the floor so that they are flush with the floor.

[10]      The designated traffic route to the workshop office took a perpendicular route across the said embedded rails running through the workshop.  It was a safe and suitable route to use to cross said embedded rails if not obstructed.  It is shown in the photograph, number 5/10 of process.  The pursuer had made his way to and from said workshop office by means of the designated traffic route numerous times every working day without incident prior to the accident referred to hereafter.

[11]      The said photograph was taken by the pursuer at about 11.30 am on 26 March 2013.  It shows the designated traffic route and surrounding areas within the said workshop as it was on said date, including at the time of the accident referred to hereafter.

[12]      The designated traffic route was designated by two white lines painted on the concrete floor within which there was a grey painted area.  The embedded rails run through an area of the designated traffic route which is marked in yellow.  At about 7.30am on said date, a parked locomotive and coupling took up a significant part of, and blocked to a substantial extent, the designated traffic route.  The coupling at the end of the locomotive was covered in thick grease.

[13]      The designated traffic route was also partially obstructed by two forks from a parked forklift truck.  On said date the pursuer stepped over the two forks when attempting to make his way to the workshop office by means of the designated traffic route.  He then encountered the said partial blockage of the designated traffic route with the locomotive and greasy coupling.  The said locomotive represented a hazard as blocking the designated traffic route partially.

[14]      The designated traffic route was also entirely blocked beyond the locomotive by a black box and a desk.  These also represented a hazard.

[15]      The pursuer’s office was at the other side of the embedded rails.  In order to avoid said blockages the pursuer diverted from the designated traffic route prior to the partial blockage by the locomotive and coupling and made his way diagonally across the embedded rails in the direction of his office.  A gap associated with, and running alongside, the embedded rails was about two inches in width.

[16]      As the pursuer was making his way across the embedded rails whilst distracted by the said hazards presented unexpectedly on the designated traffic route, his right foot went down into the said gap and he fell over sustaining an injury to his right ankle, namely a fractured distal fibula.

[17]      Had the designated traffic route not been obstructed by said blockages the pursuer would not have diverted from it and the said accident would not have occurred.

[18]      The defenders knew or ought to have known that the embedded rails presented a risk of injury to any employee, such as the pursuer, requiring to cross them in the course of their employment.

[19]      The defenders knew or ought to have known that, if the designated traffic route was blocked or blocked to a substantial extent and was not suitable for use by pedestrians, there was a risk that an employee, such as the pursuer, making his way to the workshop office would divert from the designated traffic route in order to reach said office at the other side of the embedded rails with a consequent risk that he would lose his footing whilst attempting to cross the embedded rails outwith the designated traffic route and sustain injury.

[20]      The pursuer would not have been able to reach said workshop office without diverting from the designated traffic route at the material time due to said blockages.

[21]      The workshop was not organised in such a way that pedestrians such as the pursuer could circulate in a safe manner at the material time on said date.

[22]      The designated traffic route was not suitable for the pursuer to use at the material time on said date.

[23]      There would not have been sufficient separation between the locomotive and coupling and the pursuer on the designated traffic route at the material time on said date. 

[24]      The defenders failed to provide the pursuer with a safe place of work at the material time on said date.

[25]      It was not proved that the pursuer had been trained to approach embedded rails in a direction perpendicular to their direction of travel.

[26]      As a result of the said accident the pursuer sustained loss, injury and damage which is agreed to amount to £5,500 inclusive of interest until the date of decree.

 

Finds in Fact and Law
[1]        The pursuer having suffered loss, injury and damage through breach of statutory duty and fault and negligence on the part of the defenders is entitled to reparation therefor from them.

[2]        The said accident was not caused to any extent by fault on the part of the pursuer.

 

Therefore grants decree for payment by the defenders to the pursuer of the sum of FIVE THOUSAND FIVE HUNDRED POUNDS (£5,500) STERLING with interest at the rate of 8% per annum from 22nd March 2017 until payment; reserves meantime all questions of expenses and appoints parties to be heard thereon on 6th April 2017 at 9.30 am within the Sheriff Courthouse, Chambers Street, Edinburgh.

 

 

 

 

 


NOTE

Introduction
[1]        This is a case in which the pursuer seeks reparation for injuries sustained in the course of his employment with the defenders.  Quantum was agreed at a figure of £5,500, inclusive of interest until the date of decree, subject to any finding of contributory negligence.  The proof was accordingly restricted to the question of liability.  The pursuer’s claim was based on a breach of the common law and a breach of regulation 17 of the Workplace (Health, Safety and Welfare) Regulations 1992 (“the 1992 Regulations”).  The defenders pled that the accident was solely caused or at least materially contributed to by the pursuer’s own fault.

[2]        Medical evidence was agreed.  The pursuer gave evidence on his own behalf.  Martin Doyle (Services Delivery Manager) and Mrs Eileen Russell (Head of Engineering and Maintenance), both in the defenders’ employment, were led in evidence on behalf of the defenders.

 

Objections Renewed on Behalf of the Pursuer
[3]        Mr Forsyth objected to questions put to Mrs Eileen Russell in the course of re-examination on behalf of the defenders by Mr Murray.  She confirmed that she had not been involved in training the pursuer.  She was asked whether, to her knowledge, there had been any change in personal track safety training in the last five years and answered “yes”.  She was asked about the personal track safety training having been adapted from the national model and asked how long there had been the standard national model.  She responded “decades”.  She was asked about the defenders’ training based on the national model and was asked to answer “yes” or “no” to this.  Mr Forsyth objected at this point.  He submitted that there was no record for this and that it had not been put to the pursuer.  Mr Murray responded that it had come out of the last question put in cross-examination of Mrs Russell (the last question in cross-examination had been to the following effect: “whatever else, you were not involved in training the pursuer as you were not working for the company then?” and she had responded “no” to that).  Mr Murray told the court that he wanted to establish what the historic position was in relation to the defenders following the national model of training.  I allowed the question subject to all questions of relevancy and competency.  Mrs Russell was asked again if she was aware from her own knowledge whether the defenders’ personal safety training followed the national model, and she replied “yes”.  Mr Murray asked whether historically the defenders’ personal track safety training had followed the national model, and she replied “somewhat”.  She confirmed that this is what she had been meaning when she had said that the defenders’ training had been adapted from the national model.  

[4]        Mr Forsyth renewed the objection in the course of his submissions.  He reminded the court that there had been no evidence about the content of national standards.  There had been no evidence as to how these had been “adapted” and what relevance this might have.  The details of training relevant to the accident had never been put to the pursuer.  There was no evidence if the practice now was the same as at the date of the accident or earlier.  He submitted that this evidence was, first, irrelevant, second, it had not been put to the pursuer and, third, there had been no record for the line of evidence.

[5]        Mr Murray submitted that the argument to the effect that there was no record was double edged.  The pursuer had brought out the issue of training in evidence-in-chief.  The pursuer had said that he had been given no training.  Mr Murray submitted that the issue of training really played no part in this case.  I reminded him that he had included three suggested findings-in-fact in his outline submission on the question of training.  He told the court that he would be inviting the court to make his proposed findings-in-fact about training only if the court attached any weight to the question of training and that they had, therefore, been included in his proposed findings-in-fact in effect only on an esto basis.  In summary, his position was that the evidence about training was unsatisfactory and unnecessary.  It played no part on record.  He invited the court to treat the issue of training with “particular caution”. 

[6]        In my opinion, the objection falls to be sustained.  There was no basis on record for the evidence in question, it was not put to the pursuer in cross-examination and I was not satisfied that it had any relevance to the issues before the court.  It was, in any event, in the vaguest of terms and, even if the objection had been repelled, it would not in the circumstances have made any difference to my conclusions.

 

Objections Renewed on Behalf of the Defenders
[7]        In his evidence-in-chief the pursuer had been asked to read out passages from the accident report form, number 5/9 of process (incorrectly referred to as 6/9 of process in evidence).  He confirmed that the accident report he had filled in read as follows:

 

“Crossing main workshop to office at beginning of shift.  Had to deviate from walkway as loco was parked across it.  Right foot went down rail and twisted causing fractured distal fibula”.

 

He then confirmed that, under the heading “What measures were taken or could be taken to prevent recurrence?”, he had written “Clear walkways and plate rail gaps”.  He was then referred to the photograph, number 5/11 of process (incorrectly referred to in evidence as 6/11 of process), and he was asked “Is this what we are looking at in 6/11 (sic)?”  This question was objected to by Mr Murray.  [I pause to record that the pursuer had already been referred to this photograph earlier in his evidence when he confirmed that he had taken this photograph (as well as the photograph, number 5/10 of process) after the accident in relation to the gap beside the embedded rails.]  Mr Murray objected to the question on the basis that there was no record for this.  Mr Forsyth told the court that he was not seeking to establish a case that the defenders should have plated the rails, but that he was seeking to establish that there was a gap and the fact that it had been acknowledged by the defenders as a risk and a tripping hazard.  I allowed the question subject to all questions of relevancy and competency.  The pursuer confirmed that the photograph had been taken elsewhere in the workshop, about 40 feet away from where he had had his accident.  He agreed that this photograph was of a walking route in the area plated in that manner.  He was asked whether he knew why this plating had occurred.  This was objected to.  The same objection was taken and the same reason was given for seeking to lead it, namely to focus on acknowledgement of risk.  I again allowed this subject to all questions of relevancy and competency.  The pursuer went on to give evidence to the effect that he believed that plating had been fitted in the area (shown in the photograph) as it was seen to be a hazard as there had been previous incidents of people tripping.  He also confirmed that the rail was sunken in the photograph, number 5/10 of process (which had in error been referred to as 6/10 of process in evidence).  He confirmed that they are all exactly the same.  He was asked what sort of hazard would be envisaged and replied: “Tripping on the rail”.

[8]        Mr Murray renewed his objections in the course of his submissions.  In the first place, there was no record for a case that the defenders ought to have plated the embedded rails elsewhere in the workshop.  In the second place, evidence of rails having been plated did not found the inference that it had been done for any reasons for health and safety.  In the third place, it did not provide a basis for submitting that embedded rails presented a foreseeable risk of injury.  He also reminded the court that there had been no evidence as to how extensive the plating had been, the locations of the plating (beyond the pursuer having given evidence to the effect that it was about 40 feet away from where he had his accident) and the reasons for plating elsewhere where it existed.

[9]        Mr Forsyth invited the court to repel the objections.  He reiterated that he was not seeking to establish a case that the embedded rails in question should have been plated.  He had led evidence in relation to the accident report form, including the section about the two measures which could be taken to prevent a recurrence, namely, first, clearing walkways and, second, plating of rail gaps.  He was only seeking to make a case that the defenders ought to have cleared the designated walkway.  He had sought to refer the pursuer to the photograph, number 5/11 of process, to confirm that this showed the plating of an embedded rail in one part of the depot.  That evidence had, therefore, flowed from the evidence about the accident report form (to which no objection had been taken).  It, along with other evidence, was relevant to foreseeability of the risk of tripping on embedded rails.  The other evidence was evidence from the defenders’ witnesses to the effect that, when approaching embedded rails, they would try to cross over at the perpendicular and that they would step over the embedded rails rather than stepping directly onto the embedded rail.  The embedded rails had therefore been seen as a hazard.

[10]      In my opinion, the objections fall to be repelled.  The primary basis for the objections was that there was no record that the defenders ought to have plated the embedded rails elsewhere in the workshop.  However, Mr Forsyth confirmed that he was not seeking to establish such a case.  The evidence was, therefore, limited to the question of foreseeability of risk and would fall to be viewed together with the evidence from the defenders’ own employees about the way they would approach and cross over embedded rails.  Evidence had already been led, without objection, in relation to the accident report form and the reference therein to plating of rails.  It was also not clear to me that the pursuer’s evidence about plating added anything materially to the other evidence about foreseeability of risk.  Beyond the pursuer’s evidence about the plating shown in the photograph having been about 40 feet from where he had had his accident and his belief that the very small area shown there had been seen to be a hazard as there had been previous incidents of people tripping, there was no evidence about how extensive plating had been at the depot or the reasons for any such plating.  Even without the evidence of plating, I would, therefore, still have come to the same view on the question of foreseeability of risk presented by embedded rails.

 

Legal Framework
[11]      On record, the pursuer avers that his claim is based on breach of the common law and breach of regulations 4, 5 and 17 of the 1992 Regulations.  Mr Forsyth told the court that he was not insisting on any case based on an alleged breach of regulation 4 or 5. 

[12]      The 1992 Regulations provide inter alia as follows:

Interpretation:

“2. – (1) In these Regulations, unless the context otherwise requires –

 

‘traffic route’ means a route for pedestrian traffic, vehicles or both and includes, any stairs, staircase, fixed ladder, doorway, gateway, loading bay or ramp;  ‘work place’ means… any premises or part of premises which are not domestic premises and are made available to any person as a place of work, and includes –

 

‘(a) any place within the premises to which such person has access while at work; and

(b) any room, lobby, corridor, staircase, road or other place used as a means of access to or egress from that place of work…’

 

(3) Any requirement that anything done or provided in pursuant of these Regulations shall be suitable, shall be construed to include a requirement that it is suitable for any person in respect of whom such a thing is so done or provided…”

 

Organisation etc of traffic routes:

“17. – (1) Every workplace shall be organised in such a way that pedestrians and vehicles can circulate in a safe manner.

 

(2) Traffic routes in a workplace shall be suitable for the persons or vehicles using them, sufficient in number, in suitable positions and of sufficient size.

 

(3) Without prejudice to the generality of paragraph (2), traffic routes shall not satisfy the requirements of that paragraph unless suitable measures are taken to ensure that –

 

‘(a) pedestrians or, as the case may be, vehicles may use a traffic route without causing danger to the health or safety of persons at work near it;

 

(b) there is sufficient separation of any traffic route for vehicles from doors or gates or from traffic routes for pedestrians which lead onto it; and

 

(c) where vehicles and pedestrians use the same traffic, there is sufficient separation between them’.

 

(4) All traffic routes shall be suitably indicated where necessary for reasons of health or safety…”

 

Summary of Evidence by the Pursuer
[13]          On 26 March 2013 the pursuer was making his way to work at the Broomloan Depot.  This was at about 7.30 am.  He confirmed that, although he had worked for the defenders for 15 years, he had been working in his present office for between about six and 12 months prior to the accident and that all his work is done in an office.  After entering the front entrance he required to cross the workshop in order to get to his office at the other side of the workshop.  Trains and rolling stock are maintained in the depot.  They are brought into the depot on embedded rails which run through the workshop.  He required to cross over the embedded rails in order to get to his office.  His office was just off to the top right of the photograph, number 5/10 of process.  He would usually follow the designated walkway shown between the two white painted lines in the photograph.  The designated walkway (otherwise referred to in the course of evidence and submissions as the traffic route or the designated traffic route) crosses over the embedded rails.  He had made the journey along the designated walkway to his office without blockages hundreds or thousands of times going backwards and forwards and had never had an accident.  The designated walkway crosses over the embedded rails in a perpendicular fashion, it then takes a right turn to the office where the pursuer worked. 

[14]          He could not use the designated walkway that morning to get to his office due to the presence on it of a locomotive with a coupling, the end of which was covered in thick grease.  He did not wear overalls.  The grease is difficult to get off clothing such as trousers.  The photograph was taken by the pursuer at about 11.30 that morning.  The scene was the same as it had been at about 7.30am when the pursuer was attempting to reach his office.  The designated walkway was also blocked beyond the locomotive by a desk and a box.  Before the locomotive there were also two forks from a forklift truck protruding into the designated walkway.  The pursuer stepped over the forks.  He then diverted from the designated walkway to avoid the greasy coupling at the end of the locomotive immediately ahead of him on the embedded rails running through the walkway and the desk and box blocking the designated walkway at the other side of the embedded rails.  When he diverted from the designated walkway, he took a direct route to his office to the right hand side of the desk in the photograph.  As a result, he crossed the embedded rails running through the workshop at a diagonal.  As he did so, his right heel went down into the gap associated with the embedded rails and he fell over injuring his right ankle.  The gap was about two inches in width.  He was asked how he had fallen.  He replied to the effect that, if you stick to the designated walkway, there is less of a hazard presented because you are crossing the gap in front of you at a perpendicular angle, but that (when diverted) he was crossing the gap in front of him diagonally.  He explained that he has a size 10 foot and that, if he placed his foot over the top of the embedded rails square to them, this presented no hazard but that, when he approached them at an angle (as he did at the material time), his heel had gone down into the gap.

[15]          The pursuer also gave evidence to the effect that there were no points at the depot where designated walkways were other than at right angles to the embedded rails.  His understanding was that the designated walkways signified a safe access and egress to various parts of the workshop. 

[16]          He was taken to hospital following the accident.  A fracture to his right fibula was diagnosed.  He returned to work later that morning and took the photographs, numbers 5/10 and 5/11 of process.  He also completed the accident report form, number 5/9 of process. 

[17]          The accident report read as recorded above at paragraph [7].  He believed that the embedded rails in the area shown in the photograph, number 5/11 of process, had been fitted with plates as the area was seen to be a hazard as there had been previous incidents of people tripping.  The embedded rail was sunken in the photograph, number 5/10 of process.  The rails are all exactly the same.  On being asked what sort of hazard would be envisaged, he replied “tripping on the rail”.  The pursuer gave evidence (to which no objection was taken) to the effect that he had not been given any instructions in relation to the use of walkways by the defender.  Neither had there been “tool box talks” about traffic routes or any health and safety meetings about traffic routes, and neither had he been given any instructions about what to do if walkways were impeded by obstacles.

[18]          The pursuer gave further evidence to the effect that the coupling at the front of the locomotive with grease on it had been his biggest concern.  He confirmed that, when crossing diagonally to his office, he had been looking at the hazards presented by the locomotive and greasy coupling and the desk and box at the other side of the embedded rails on the designated walkway.

[19]          In cross-examination, the pursuer confirmed that he had been working at the depot for 15 years and that he had completed personal track safety training.  He explained that this was a requirement for all personnel accessing tracks at night who went into tunnels.  He told the court that part of the training was to avoid electric tracks and to avoid losing your footing on “raised rails”. 

[20]          The pursuer accepted that the depot could not operate without embedded rails allowing locomotives to be brought into the workshop.  He was asked, in what I recalled as having being a rather rushed passage of evidence, a question about whether there was a gap of about 80 cm between the coupling at the end of the locomotive and the edge of the designated walkway, and replied “yes” to this.  This was the only evidence led from any witness about the dimensions of the designated walkway.  He agreed that the embedded rails through the walkway were identical to the embedded rails outside the walkway.  He agreed that there was the same surface.  He confirmed that it was because of a piece of the locomotive that he had deviated from the walkway.  It was put to him that he had had no need to deviate as he could have walked straight ahead across the embedded rails perpendicular to them and then turned 90 degrees to follow the embedded rails to his office.  He replied: “I could have done, but I didn’t”.  He had been keen to avoid the hazards, namely the locomotive and the blocked walkway beyond that due to the desk and the box.  He explained that, if he had gone straight ahead, his concerns would have been the locomotive and the other obstructions.  It was suggested to him that, when he approached the embedded rails at a perpendicular angle using the traffic route, that was perfectly safe and he replied: “If it is clear, I accept that”.  His position was that it was a “low hazard” crossing it at 90 degrees.  He confirmed that he knew the rails were there.  He confirmed that when he diverted from the walkway he was looking at the hazards (the blockages on the walkway with the locomotive, desk and box) and that he was not looking down at his feet.  He denied that the photographs had both been taken on 23 April 2013.  He confirmed that in his previous job he briefed contractors in relation to health and safety, but he no longer does this.  A briefing would include “sticking to walkways”.  He confirmed that he had taken himself off the safe route because it was obstructed.    His position was that he had had to take an alternative route and that this had been by using a direct route to get to his office.

[21]          In re-examination, he confirmed that there would have been a risk from the coupling of walking straight ahead, on the designated walkway, that risk being of getting grease on his clothes.  He confirmed that this had been on his mind when he decided to take the route that he did.  The risk from the coupling was a risk that he was seeking to avoid.  He also confirmed that, even if he had got past it, he would not have been able to proceed along the designated walkway as it was blocked.  In relation to his role about teaching visitors previously, he was asked whether he had been given any training in relation to this and he said that he had not.  He confirmed that this teaching role had been on an ad hoc basis.  It was described as being a pro forma tick box exercise to say that the person had been briefed about the hazards, for example, working at height and with electricity. 

 

Summary of Evidence on Behalf of the Defenders
Martin Doyle
[22]          Mr Doyle gave evidence to the effect that he is employed by the defenders as Shift Service Delivery Manager.  He is responsible for the maintenance of the trains, the lines, signalling and tunnels.  He is normally based at the Broomloan Depot in an office there.  He confirmed that he had come to work at about 7.50 on the morning of the pursuer’s accident.  His office was directly above the pursuer’s office.  He said that nothing untoward had stuck in his mind about the area outside the office on that date.  He confirmed that he had had to cross the embedded rails to get to his office.  There had been nothing out of the ordinary.  He had signed the accident report form agreeing that he had receipted the form.  He had not, however, investigated the circumstances of the accident.  He confirmed that the depot could not operate if embedded rails were not there.  He was asked to describe what he himself does when approaching embedded rails and said that he will step over the rail rather than stand on it.  He said that when he is approaching the embedded rails he tries to be perpendicular to them rather than walk along them.  The gap is between about 40 and 50 mm wide.  If you stand on them when crossing perpendicular the foot will not go down the gap.  He confirmed that he has this in mind when he is walking around the depot.  He confirmed that in relation to the working environment you have to be aware of your surroundings and the conditions you are working in in the work area and have a degree of concern for your own safety.

 

Mrs Eileen Russell
[23]          Mrs Russell gave evidence to the effect that she is employed by the defenders at the Broomloan Depot in her role as Head of Engineering and Maintenance.  She had been with the defenders for ten months by the time she was giving evidence at the proof.  She confirmed that she is familiar with embedded rails in depots.  She could not recall ever having been in a depot without embedded rails.  She said that she did not believe that it would be possible to have a depot without embedded rails as you need to be able to move vehicles around for maintenance operations.  She could not see it as being feasible to have an alternative to embedded rails.  She confirmed that there were embedded rails in places in Glasgow Subway and in some tunnel sections, as well as in tram systems.  They are also found at level crossings so that pedestrians and cars can cross.  Embedded rails are to allow rolling stock to be brought into the depot.  She confirmed that, from a management and health and safety perspective, she would describe the working environment in a rail depot as being hazardous and, therefore, there are safety management systems, policies and protocols and risks are identified.  Hazards include slips, trips and falls.  She was asked: “Could an operational rail depot ever be hazard free?” and answered: “I would say no”.  She gave evidence to the effect that personal track safety training was given to all staff expected to be working in the railway operational environment.  She confirmed that it is tailored from national training.  Personal track safety training is given to individual employees as safety training for their own safety.  She confirmed that training applies to track safety on the network and within the depot.  She confirmed that she walks around the depot day to day and she encounters embedded rails.  She was asked how she personally approaches embedded rails in terms of her own safety and replied to the effect that she did so with caution and awareness crossing at right angles and not putting her feet directly on the rail, and that she steps over the rails.

[24]          In cross-examination, Mrs Russell confirmed that she was not around at the time of the accident.  She was asked to look at the walkway in the photograph, number 5/10 of process.  It was put to her that it was not good practice for the forks in the photograph to be there and she responded: “It is a hazard, yes”.  It was also put to her that the train should not be there if it is stationery, and she responded: “Again, it is not good practice”.  It was suggested that it may represent a hazard as blocking the traffic route partially.  She responded “yes”.  She confirmed that she was replying “yes” to both parts of that question.  In relation to the traffic route at the top of the photograph, it was pointed out to Mrs Russell that the traffic route to the right had been completely blocked by a table and bucket (elsewhere in the evidence referred to as a desk and box) and that these represented a hazard, and she responded “yes”.  It was put to her that, if this completely blocked the traffic route, that was not suitable to be used as a traffic route.  She responded: “It is not good practice”.  She was then asked if the traffic route was completely blocked by the table and bucket it could not be used as a traffic route, and she responded “no”.  She confirmed that she would have instructed that those obstacles be removed as soon as possible.  She also confirmed that she had not been involved in training the pursuer as she had not been working for the defenders at that point. 

[25]          In re-examination, she confirmed that there had been a change in personal track safety training in the last five years, that it followed the national model and that historically it had followed the national model “somewhat”.  She confirmed that this is what she had been meaning when she had said earlier that the defenders’ training had been adapted from the national model.  However, she did not go into any detail about this at all.

 

Summary of Submissions on Behalf of the Pursuer
[26]          Mr Forsyth helpfully submitted an outline written submission to which he added orally.  He said that he did not understand there to be any dispute that the designated walkway was a traffic route within the meaning of regulation 2(1) of the 1992 Regulations or that the depot fell within the broad definition of a “workplace” in that regulation. 

 [27]         Mr Forsyth submitted that, contrary to regulation 17(1), the workplace in this case was not organised in a way that pedestrians could circulate in a safe manner.  That was because of blockages on the only designated traffic route.  He further submitted that regulation 17(2) was breached in that designated traffic routes were not suitable for persons using them owing to blockages and obstruction and were not of sufficient size for the same reason.  He also submitted that regulation 17(3)(c) was breached as it required sufficient separation between the vehicles and people and that that was not the case in the present case.  He further submitted that regulation 17(4) was breached as there was no demarcation of any alternative traffic route necessary for the purposes of health and safety.  He submitted that this was especially so given the necessity of traversing embedded rails in a perpendicular fashion.  Mr Forsyth referred me to Munkman on Employer’s Liability (16th edition) at pages 621 and 622; Wallis v Balfour Beatty [2003] EWCA Civ 72; Nichols v Beck Electronics Limited, 30th June 2004, Norwich County Court (unreported); Pratt v Intermet Refractories Limited, 21st January 2000 Court of Appeal (unreported), and Mains v Uniroyal Englebert Tyres Limited, 1995 SC 518.

[28]          Mr Forsyth also reminded me that there was no averment or evidence in this case to the effect that it would not have been reasonably practicable to have secured measures to keep the traffic route clear.

[29]          In relation to Wallis v Balfour Beatty, Mr Forsyth distinguished that case from the present case because, even though there had been a breach of regulation 17(2), the sole cause of the accident in that case had been the employee’s decision to take the hazardous route in and out from the track which he did.  In the present case, however, it was not possible for the pursuer to reach his office safely on the designated traffic route, he could not have reached his office without diverting from the designated traffic route and there was no alternative traffic route for the pursuer to use in a suitable position. The accident had been of the type one would expect if digressing from the designated traffic route.  The whole purpose of a traffic route is so that employees such as the pursuer can safely traverse from one side of the workshop to the other.

[30]          Under reference to Nichols v Beck Electronics Limited, Mr Forsyth submitted that a locked door does not itself render a traffic route unsuitable per se.  However, in the present case, he submitted that the desk and box represented a hazard, as did the locomotive coupling.  This was not a case of a locked door with an alternative safe traffic route provided.  This was a sole designated traffic route used to store plant and office detritus rendering the route hazardous and blocked with no designated alternative route.  The breach of regulation 17(2) in this case lay in the defenders’ failure to maintain suitable traffic routes within the depot.  He submitted that it was common sense when looking at the photograph, number 5/10 of process, to ask, having regard to health and safety, whether the designated traffic route was a suitable traffic route, and that the answer to this should be “no”.

[31]          In relation to Pratt v Intermet Refractories Limited, my attention was drawn to paragraph [17] of the opinion of May LJ in particular.  I was reminded that the facts of that case were very different from the present case.  There were substantial obstructions in the present case. 

[32]          I was reminded that the pursuer explained how he had digressed from the traffic route as the greasy coupling had been a hazard to him.  The coupling at the end of the locomotive had encroached over more than half of the designated traffic route which was a pedestrian traffic route.  Further along it had been entirely blocked by the desk and box.  He, therefore, could not have got to the office by the traffic route in any event.  Fixing upon the obstructions and wanting to keep away from the greasy coupling, he had taken a diagonal direct route to the office.  Mr Forsyth submitted that it was apparent, looking at the scale of the box and chest of drawers in the background in the photograph that, because of the greasy coupling, there had been very little room for someone to pass between the end of the greasy coupling and the edge of the designated traffic route without risk of coming into contact with the greasy coupling.  The pursuer could have walked around the end of the coupling, but he had been nervous about keeping away from it. 

[33]          In relation to Mains v Uniroyal Englebert Tyres Limited, Mr Forsyth submitted that, although that was a case involving section 29(1) of the Factories Act 1961, it nevertheless provided support for the proposition that reasonable foreseeability only came to play a part at the later stage of considering whether an employer had discharged the onus upon them of showing that there were no reasonably practicable precautions which could have been taken.  Reasonable foreseeability did not, however, come into play at the initial stage.  The duty was to organise the workplace in such a way that pedestrians can circulate in a safe manner (regulation 17(1) of the 1992 Regulations).  He submitted that there had been a clear breach of regulation 17 in the present case in that the workplace was not safe.

[34]          In relation to the question of causation, Mr Forsyth submitted that the breach of regulation 17 was factually causative in the sense that “but for” the breach the accident would not have occurred.  He submitted that the accident occurred because the pursuer was approaching the embedded rails at 45 degrees instead of the normal perpendicular manner on the walkway.  Mr Forsyth reminded the court that it was never put to the pursuer that he would have cut the corner even if the obstructions had not been there.  He digressed because he could not get to his office along the designated traffic route.  The greasy coupling prevented this and was a hazard.  But for the greasy coupling and the blockage the pursuer would have followed the designated traffic route.  Had he not digressed from the designated walkway he would not have been injured.  The pursuer had also been distracted by the locomotive hazard and the blockage.  A tripping hazard was precisely the type of injury that one would expect from a deviation from a marked and allocated walkway in a busy workshop.  Mr Forsyth referred to Hughes v Lord Advocate [1963] AC 837 at pages 845 and 853.  He submitted that in the present case the witnesses for the defenders had in effect accepted that embedded rails were a known source of danger.  They had both indicated that they would have stepped over the embedded rails.  One would not step over embedded rails unless they were a known source of danger.  Mrs Russell had also said that she would cross embedded rails at a right angle.  All of this was only consistent with embedded rails being a hazard.  This included embedded rails outwith the designated traffic route.  They too were unsafe.  There was plating somewhere else in the workshop which indicated that it was related to risk.  The whole purpose of having a traffic route was to control the risk of persons tripping on embedded rails.  There was no argument that when approached at 90 degrees they were not safe. 

[35]          Mr Forsyth submitted that in so far as it might be argued, under reference to authorities produced on behalf of the defenders, that there was the application of foreseeability in assessing the “suitability” of a traffic route, this overlapped to an extent with legal causation.  It was difficult to see that a traffic route which did not go from A to B because it was blocked was suitable.  Similarly, it was difficult to see that a traffic route covered with hazards was suitable.  In relation to Marks and Spencer Plc v Palmer [2001] EWCA Civ 1528, that was a case in which an employee tripped over a weather strip inserted in the floor of a doorway.  I was reminded that in that case, Waller LJ had, at paragraph [23], quoted a passage from the judgment of Hale LJ in Koonjul v Thameslink Healthcare Services [2000] P.I.Q.R.123 where Lady Hale had said, at page 126: “For my part, I am quite prepared to accept those statements as to the level of risk which is required to bring the case within the obligations of regulation 4 (of the Manual Handling Regulations 1992); that there must be a real risk, a foreseeable possibility of injury; certainly nothing approaching a probability.  I am also prepared to accept that, in making an assessment of whether there is such a risk of injury, the employer is not entitled to assume that all his employees will on all occasions behave with full and proper concern for their own safety.  I accept that the purpose of regulations such as these is indeed to place upon employers obligations to look after their employees’ safety which they might not otherwise have.”  Waller LJ then went on to say, at paragraph [27]: “The court, as it seems to me, should stand back and ask itself, by reference to the above factors as they existed before this accident took place and not with any benefit of hindsight, was this floor suitable?  Was it uneven to an extent which exposed persons to risk of their health and safety?  My answer to those questions would be that it was suitable and that it did not expose persons to that risk”.

[36]          Mr Forsyth submitted that, in the present case, the court should stand back and ask itself in the same way “was this traffic route suitable?”  I was reminded that the un-contradicted evidence of the pursuer was that the designated traffic route was safe when not obstructed and that the traffic route, crossing as it did in a perpendicular fashion, was safe.  His position had also been that traffic routes were only ever perpendicular to embedded rails.

[37]          I was also reminded that regulation 17(4) provides expressly that all traffic routes are to be suitably indicated where necessary for reasons of health and safety.  No one had argued that the embedded rails outwith the traffic route presented no risk.  The existing safe traffic route should not have been rendered unsuitable.  If it was rendered unsuitable, a safe alternative designated route could have been provided with appropriate signage.

[38]          In relation to the pursuer’s common law case, Mr Forsyth submitted that the defenders as employers owed the pursuer a common law duty to exercise reasonable care to provide the pursuer with a safe place of work and to institute a safe system of working.  There was no safe place at work in the sense that the traffic route was blocked and cluttered with hazards.  The blockage required the pursuer to deviate from what would otherwise have been a safe traffic route to his workplace.  It was reasonably foreseeable that someone deviating from the traffic route might trip over something such as embedded rails which were a recognised hazard.  The traffic route would otherwise have been safe to get to his office.  It was not safe in that it was entirely blocked and a detour had been required which had caused his to trip.  The accident had therefore been caused by fault and negligence on the part of the defenders by not providing a safe place of work.

[39]          Mr Forsyth further submitted that the fact that the defenders had no safe system of work was evident from the fact that the hazard was still there later the same day once he had returned from hospital.  However, beyond submitting that the traffic route was not safe and that it would have been reasonably practicable to provide a clear traffic route, he did not elaborate on this submission.

[40]          In relation to the question of any contributory negligence, Mr Forsyth submitted that the burden of proof rested with the defenders.  The critical issue was that they must prove fault on the part of the pursuer.  He submitted that there was no basis to do this.  I was referred to Munkman on Employer’s Liability supra at pages 207, 216, 221, 222, 223, 224 and 231.  Mr Forsyth also referred to Boyle v Kodak Limited [1969] 2 All ER 439, Ashbridge v Christian Salvesen 2006 SLT 697 and McGowan v W and JR Watson 2007 SC 272.  I was, in particular, reminded of what the Lord Ordinary, Lord Glennie, had said in Ashbridge v Christian Salvesen at paragraphs [25] and [26].

[41]          In McGowan v W and JR Watson the Inner House recorded at paragraph [13]:  “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…”.  Mr Forsyth submitted that, if it was suggested in the present case by the defenders that the pursuer had received specific training, this ought to have been put to the pursuer (which it was not) or, if it were to be suggested by the defenders that the pursuer should have stepped over the rails or should have done anything else or taken any other measure for his own safety, that required to be clearly formulated and put to the pursuer and evidence led from the defenders’ own witnesses in support of such propositions.  In McGowan at paragraph [15] the Inner House had then said: “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…”

[42]          Mr Forsyth submitted that, if the court was to find contributory negligence proved in the sense of fault, the court should assess what the reduction should be.  In this connection he referred to Munkman supra at paragraph 6.08 about the need to be satisfied that there was fault on the part of the pursuer.  He also referred to paragraphs 6.35, 6.36 and 6.50.  These and the following paragraphs were concerned with “momentary inadvertence”.  I was reminded that, when considering relevant conduct, it was clear that mere inadvertence on the part of an employee was not sufficient to amount to contributory negligence, the care to be expected of a pursuer will vary with the circumstances and that a different degree of care may well be expected from a workman in a factory or a mine from that which might be taken by an ordinary man not exposed continually to the risks of a factory, that a line has to be drawn where mere thoughtlessness or inadvertent ceases and where negligence begins.   I was also reminded that due regard should be given to the actual conditions under which a man works in a factory including his pre-occupation on what he is actually doing at the cost perhaps of some inattention to his own safety. He further submitted that the argument against finding contributory negligence for momentary inadvertence is even stronger if the employer is under a relevant statutory duty.  I was also referred to Munkman at paragraphs 6.54, 6.55, 6.56, 6.58, 6.59, 6.60 and 6.76.  These were in support of propositions to the effect that all the circumstances must be taken into account and that it was foreseeable on the part of an employer that workmen may from time to time be inadvertent.  I was reminded that, in the present case, the pursuer had been walking backwards and forwards along the same traffic route day in and day out for about six to 12 months before the accident and crossing the embedded rails without an accident but that, that morning, he had been faced with what was shown in the photograph, number 5/10 of process.  The court should take account of the fact that the pursuer was taking a decision on the traffic route in the heat of the moment in what was a highly unusual situation.  I was reminded that the court in Wallis had taken the view that the pursuer in that case had been cavalier.  That case had been far beyond inadvertence.

[43]          In conclusion, Mr Forsyth submitted that the defenders were liable for breach of statutory duty and had caused the injury to the pursuer thereby.  He submitted that they were also liable at common law.  A designated traffic route was provided which was perfectly safe (if not obstructed).  It crossed the embedded rails in a safe perpendicular fashion.  All traffic routes do this.  This is to ameliorate the risk of tripping.  The traffic route was designated so as to comply with regulation 17 of the 1992 regulations.  The policy and practice in the workplace was that employees such as the pursuer must use designated safe traffic routes.  There was no evidence of any other designated traffic route to the pursuer’s place of work.  The designated traffic route was littered with hazards and was blocked.  He could not get to his place of work by means of a “suitable” traffic route.  He therefore required to detour outwith the designated traffic route and, whilst distracted by the obstacles presented unexpectedly on the designated traffic route, he tripped and fell.  Outwith traffic routes there are tripping hazards including the embedded rails.  They present a foreseeable risk to the pursuer.  They are plated in parts.  Evidence from the defenders’ own witnesses indicated that embedded rails presented a risk.  He submitted that it was clear that, “but for” the hazards, he would not have deviated as he did.  The accident was precisely the type and manner of accident that would be a foreseeable consequence of deviating from a designated traffic route in the face of the hazards presented on that route.  The whole point of the regulations and the common law pertaining to having traffic routes was to guard against the inadvertence of employees.  The defenders’ position in this case would result in their statutory and common law duties having no content.  Esto there was an element of contributory negligence, which was denied, that should be a low finding of less than 20% in the unusual circumstances of this case.  However, Mr Forsyth recognised that it would be unusual to have a finding of contributory negligence under 20%.

 

Summary of Submissions on Behalf of the Defenders
[44]          Mr Murray helpfully provided an outline submission in written form to which he then added orally.  He invited the court to grant decree of absolvitor and to reserve all question of expenses.

 [45]         Mr Murray submitted that the pursuer was aware of and familiar with the locus.  He was aware of the presence of the embedded rails.  The photograph, number 5/10 of process, makes it clear that the pursuer could have walked along the right hand side of the designated walkway, “parallel to it”.  Mr Murray then said that the pursuer could have walked within the walkway.  Alternatively, he could have walked along the white line designating the right hand side of the walkway.  The pursuer had accepted the proposition that there would have almost been no risk if he had crossed the embedded rails perpendicular to them.  He could have then turned 90 degrees right and followed the direction of the embedded rails to his office.  What the pursuer chose to do was to take a straight line (which Mr Murray sometimes described as “cutting the corner”) from the forklift truck to the office door.  Mr Murray submitted that the nub of the case was whether the pursuer was entitled to take a direct route from A to B, or whether he ought to have continued on the designated walkway to the other side and then turned 90 degrees to the office.

[46]          In relation to the question of liability, Mr Murray submitted that the common law did not place any stricter duties on the defenders than those under the 1992 regulations.  The pursuer made no averments as to previous accidents or foreseeability in any event.  Beyond this, Mr Murray made no submissions in relation to the pursuer’s common law case.

[47]          Mr Murray confirmed that there was no dispute that the locus is a workplace to which the 1992 regulations applied in respect of any injury to the pursuer, and he accepted that the defenders had the requisite degree of control over that workplace for them to be subject to the 1992 regulations.

[48]          Mr Murray submitted that the Framework Directive (Council Directive 89/391/EEC), implemented in the UK by inter alia the 1992 Regulations, did not require an employer to provide a “zero-risk” working environment: Commission of the European Communities v United Kingdom [2007] 3 CMLR 20 at paragraph [53].  He also submitted that, in construing regulations made under the Framework Directive, a common sense approach had to be taken: cf Hughes v Grampian Country Food Group Limited 2007 SLT 635 per Lord President (Hamilton) at paragraph [21] and Lord Eassie at paragraph [37].

[49]          Albeit that regulation 5 was no longer being founded on by the pursuer, Mr Murray submitted that there were nevertheless cases under that regulation which were relevant.  In a case where a police cell door was left open, it could not be said that it had not been maintained in an efficient state: Cruz v Chief Constable of Lancashire Police [2016] EWCA Civ 402.  At paragraph [11] dicta of Hale LJ in Koonjul v Thameslink Healthcare Services [2000] P.I.Q.R 123 were followed where she had referred to the need for an element of realism.  Tomlinson LJ in Cruz went on to say, at paragraph [11]: “The same is true in my judgment of the assessment which the court must make of the foreseeability of risk of injury in the context of the present regulations.  That is why the risk must be real or material, although it does not have to approach a probability.” 

[50]          Mr Murray submitted that any obstructions in the designated walkway did not themselves give rise to injury.  Nor was the situation one in which any worker, by leaving the walkway, was immediately at risk of injury.  The floor around the walkway was not itself hazardous.  It was not like a path through a construction site where the surrounding ground was uneven or unstable.  The floor around the walkway was not cluttered with items through which a path had to be found.  There was no mixing of traffic in this area which might give rise to a risk of injury.

[51]          Mr Murray also submitted that the embedded rails at the defenders’ premises were not defective or in any way ill maintained.  No rail depot could function without embedded rails.  It is common sense that it is more hazardous to have rails at floor level.

[52]          Turning to regulation 17, Mr Murray submitted that the purpose of this provision was to allow pedestrians and vehicles to move around the workplace in a safe manner.  He submitted that it was notable that the regulation did not require the creation of traffic routes within the workplace.  There was, therefore, no duty to create a traffic route.  The primary obligation was simply to organise the workplace in such a way that pedestrians and vehicles can circulate in a safe manner.  If that can be done without the creation of a designated traffic route then there is no breach of the regulation.  Where traffic routes do exist, they are subject to the requirements of regulation 17(2): that they be suitable for the persons or vehicles concerned, that they are sufficient in number, in suitable positions and are suitable size.

[53]          Mr Murray referred me to Wallis v Balfour Beatty supra.  In that case the traffic route was unsuitable because it was blocked by a locked gate.  There was no other way to access the work area.  Mr Justice Morland had concluded that it was for Mr Wallis to choose a safe means of access as an alternative to the one blocked by the gate.  The court held that, although there was a breach of statutory duty under regulation 17(2), the sole cause of the accident was Mr Wallis’ decision to take the hazardous route in and out from the track.

[54]          Mr Murray also referred to Nichols v Beck Electronics Limited supra.  In that case, the blockage of a traffic route did not render it “unsuitable” in the sense required by the regulations.  He submitted that a traffic route is “unsuitable” if there is some risk on the traffic route itself importing a sense of danger.  He submitted that simply taking a traffic route out of use by closing it does not render it unsuitable. He also submitted that there had been no breach of regulation 17 because the injury in the present case had not been sustained within the confines of the traffic route.  Further, the box and desk did not render the traffic route unsuitable.  There had to be some risk on the traffic route itself importing a sense of danger.  That was, he submitted, consistent with the approach in the court in Cruz at paragraph [22] and with the decision in Pratt v Intermet Refractories Limited at paragraphs [17] and [19]. 

[55]          Mr Murray then summarised his submissions by making five points.  First, regulation 17 does not place a duty on an employer to provide a traffic route.  Second, where a traffic route is provided it must be suitable.  Third, where a traffic route is taken out of use by the employer for whatever reason that does not give rise to a breach of regulation 17.  Fourth, a breach of regulation 17 arises if there is some risk on the traffic route itself importing danger.  Fifth, where there is a way around a blockage on a traffic route which is reasonably safe there cannot be that risk of danger.

[56]          Mr Murray also submitted that context is important.  In Marks and Spencer Plc v Palmer [2001] EWCA Civ 1528, the claimant had used the route many times.  She had been working at the premises for 10 years.  In Palmer, the judge at first instance held that there had been a breach of regulation 12 (not 17) of the 1992 regulations: paragraph [6].  This was a hazard on the traffic route which directly gave rise to injury.  Mr Murray also reminded me of what the Court of Appeal in Palmer had said, at paragraph [27], namely, that the question of suitability was not to be assessed with the benefit of hindsight.  He suggested that the question was whether the factors in the photograph in the present case rendered the traffic route unsuitable or exposed persons to risk to their health and safety.  He submitted that, when looking at the photograph, it was very clear that there was an obvious path for employees to take which was to continue on the designated traffic route to the far side of the embedded rails and then turn 90 degrees right and follow the embedded rails to the office.

[57]          Mr Murray accepted that, in the present case, the desk and the box on the walkway at the top of the photograph, number 5/10 of process, ought not to have been there.  He submitted, however, that the question under regulation 17 was whether pedestrians could circulate round the depot in a safe manner.  As employees such as the pursuer “could walk alongside and directly adjacent to” the walkway there was a route that was “safe”.

[58]          Mr Murray also submitted that the pursuer would have had to cross the embedded rails whether he followed the designated walkway or not.  Instead of crossing the rails at the perpendicular angle, which the pursuer accepted was safe, he walked over them at an oblique angle whilst looking elsewhere.  No sensible person in the pursuer’s workplace, “being trained” (being Mr Murray’s assertion) and experienced in track safety and the layout and workings of the depot, would have left the walkway then crossed embedded rails diagonally without looking where he was placing his feet. 

[59]          Mr Murray submitted that there was no analogy with a pedestrian having to leave a designated path to walk on uneven or hazardous ground.  There has to be an element of realism in asking whether there is a risk of injury.  He submitted that there was no breach of regulation 17 for the five reasons he advanced as recorded above at paragraph [55].  Esto there was any breach, he submitted that it was a “technical breach” and was not causative of the accident in the sense that it was caused by the pursuer’s own “inattention” (Mr Murray’s word) as had been the case in Pratt (as recorded at paragraph [19] in that case).

[60]          In relation to his proposed findings-in-fact, esto the presence of the desk and box on the walkway was a breach of duty at common law or a breach of regulation 17, Mr Murray submitted that this was not causative of the accident.  The accident was caused by two factors.  First, the pursuer was approaching the embedded rails at an oblique angle and not perpendicular.  Secondly, he was not watching where he was placing his feet.  He submitted that the presence of the desk and box could not justify the pursuer taking the course which Mr Murray suggested had “essentially” been accepted by the pursuer as one which would give rise to a risk (I pause to record that this was not put to the pursuer in cross-examination and had not, therefore, been accepted by him).  Mr Murray went on to submit that it must be the de quo of the pursuer’s case that to approach embedded rails at an oblique angle is unsafe.  The presence of items on the shop floor did not justify him doing this.  The accident was due to the sole fault of the pursuer.

[61]          In relation to the question of contributory negligence, on an esto basis, Mr Murray submitted that a finding of contributory negligence should be made.  He submitted that there were two factors to consider.  First, the causative potency of the pursuer’s and defenders’ actions: Munkman at paragraphs 6.24 and 6.76(c), and, second, the relative blameworthiness of their conduct. He also referred to Munkman at paragraph 6.08 and the reference there to a passage in Pitts v Hunt [1991] 1QB 24 as authority for the proposition that there cannot be 100% contributory negligence.  He submitted that, in the present case, the pursuer had taken a “calculated risk” in departing from the designated walkway in the way that he did, in particular in approaching the embedded rails at an oblique angle and, in addition to which, whilst taking that risk, he had been careless for his own safety in not looking where he was placing his feet.  It was not possible for this to be momentary inadvertence.  He, therefore, submitted that any finding of contributory negligence ought to be very significant because of, first, the “calculated risk” and, second, carelessness on the part of the pursuer.  The pursuer could have continued to the other side of the embedded rails and then turned 90 degrees and walked to his office.  His decision to do otherwise caused the accident.  At the very least, this indicated a high degree of contributory negligence on his part.  He invited the court to make a finding in the range of 60% to 75% as being justified on the evidence.

 

Summary of Response for the Pursuer
[62]          Mr Forsyth submitted that the court should not accept the proposition that the gap between the coupling and the edge of the designated walkway was 80 centimetres.  He further submitted that the pursuer’s evidence was that he had “cut the corner” because of the hazards of the greasy coupling and the box and table further along.  He submitted that the kernel of the defenders’ position appeared to be that the pursuer could have self-designated his own “traffic route”.  This would entirely defeat the statutory duties imposed upon the defenders.  In terms of regulation 17(1), every workplace shall be organised in such a way that pedestrians can circulate in a safe manner.  The defenders are, therefore, under a statutory obligation to organise the workplace in such a way.  They did so in this case by the provision of the designated traffic route.  It is not for employees themselves to seek to organise the workplace in some other manner.  Given the presentation in the photograph, number 5/10 of process, it was entirely foreseeable that an employee might cut the corner.  He would not have done so if the hazards were not present on the walkway. 

[63]          Mr Forsyth took issue with the suggestion made that the pursuer was past the locomotive coupling and the desk and box when he crossing the embedded rails.  He submitted that he had been roughly parallel to the locomotive when he tripped on the embedded rails.  Ahead of him was the box and desk.  The record was never put to the pursuer by way of challenge as an inconsistent position.  If this were to be suggested in submissions, it should have been put to the witness as being an inconsistent statement.  In any event, Mr Forsyth submitted that the record was not necessarily inconsistent.  The pursuer’s evidence about having had no training on traffic routes, no “tool box talks” on traffic routes, no instruction on how to approach embedded rails and not having been aware of any risk assessments had not been challenged.  The evidence from Mr Doyle was that not all employees had had training on track safety.  There was no evidence that the pursuer gave “induction training” to visitors.  He simply told visitors to stick to traffic routes.  He had confirmed in re-examination that this had been ad hoc.  To call it “induction training” was too high and was inaccurate.  If he had had no training how could he have possibly given training to others?  In so far as Mr Murray’s position in submissions had been to the effect that the pursuer had been “responsible for instructing the safety of others”, this was contrary to the undertaking given by Mr Murray in cross-examination of the pursuer on day one of the proof.  Any finding of contributory negligence amounting to fault as having been causative might have been an important factor if he had been responsible for instructing others.  I was invited to take into account the pursuer’s un-contradicted evidence that he had not had any training.  It had not been suggested to the pursuer in cross-examination that he had had training involving embedded rails.  If this was to be an issue, Mr Forsyth invited the court to make a finding-in-fact on this.  Neither had the pursuer had any instructions about what to do if a traffic route was blocked or obstructed. 

[64]          Mr Forsyth submitted that the pursuer’s position had been to the effect that traffic routes always cross embedded rails at right angles to reduce the hazard.  Mrs Russell had talked of stepping over embedded rails and approaching them at a perpendicular.  He questioned why should this be attended to if embedded rails were not hazardous in themselves.  All traffic routes approach at a perpendicular to eliminate risk.  He reminded me of Koonjul where Hale LJ had referred, at page 126, to the fact that there must be a real risk, a foreseeable possibility of injury; certainly nothing approaching the probability.  Mr Forsyth submitted that there was a hazard presented by the embedded rails and that there was at least a foreseeable possibility that somebody might trip and be injured, first, because of the embedded rails and, second, the evidence of Mrs Russell and Mr Doyle that they would have stepped over them and taken special measures.

[65]          Mr Forsyth also submitted that the regulations expressly provide for the designation of traffic routes where necessary for health and safety and, in this case, the traffic route was designated. 

[66]          In relation to Wallis v Balfour Beatty, Mr Forsyth submitted that the defenders’ contention that the breach depended upon there being no alternative means of access to the tracks in that case was misconceived.  He submitted that the point of Wallis was that there was no alternative safe traffic route to the tracks provided in the vicinity.  The issue of causation then applied to the particular circumstances of that particular case. 

[67]          In contrast to Nichols v Bett Electronics, the present case was not a case of a locked door with an alternative safe traffic route provided.  This was the sole designated traffic route used to store plant and office detritus rendering the route hazardous and blocked with no designated or alternative route.  The defenders’ breach lay in failing to maintain suitable traffic routes within the depot as required by regulation 17(2).

[68]          Insofar as the defenders maintained that there was a safe traffic route as employees could walk “parallel or alongside” the route and that would have been safe, Mr Forsyth submitted that this was entirely misconceived.  Regulation 17(1) refers to the fact that every workplace shall be “organised” in such a way that pedestrians can circulate in a safe manner.  Regulation 17(2) also emphasises that traffic routes should be suitable for the persons using them, and that would include those such as the pursuer without specific training on traffic routes or embedded rails.  The hazard was an obvious one compared with the position in Pratt where the obstruction was only minimal.  It had been perfectly reasonable for someone faced with the view in the photograph, number 5/10 of process, to have altered their course.  It might have been possible to get round the locomotive, but it was blocked further on.  It had, therefore, depended on going around, first, the greasy coupling and, second, the box and desk.  A traffic route required to be kept clear and to be there to look after employees’ inadvertence.  If it is suggested that someone has to work round hazards and work out their own route, that flies in the face of the obligation to provide and organise in a safe manner traffic routes which are suitable.

[69]          I was reminded that the un-contradicted evidence of the pursuer was that he had not been trained in relation to traffic routes or approaching embedded rails or what to do if routes were obstructed or blocked.  Mr Forsyth submitted that the defenders were doing their best in this case to delegate health and safety, including their own responsibilities, to the pursuer.  It is not for employees to organise their own access within a busy and dangerous depot.  He also submitted that there was no such thing as a “technical breach” of statutory duty.  The Pratt case had turned on its own facts.  The roadway was large enough for quite large lorries in Pratt.  That was not the case in the present case. 

[70]          Mr Forsyth submitted that the case of Cruz was not in point.  It involved a cell door.  The door was not something which should not have been there.  It was necessary.  It was not itself a hazard.

 

Discussion of the Evidence
The pursuer
[71]          I did not accept Mr Murray’s criticisms in relation to the evidence given by the pursuer.  I formed the view that the pursuer was a credible and reliable witness in all material respects in relation to the points which mattered.  He gave his evidence in a straightforward and measured manner without any element of exaggeration.  I therefore accepted his account of events, including his account of the accident.

[72]          In arriving at this view, I took into account the various criticisms of the pursuer’s evidence advanced on behalf of the defenders by Mr Murray.

[73]          For example, in relation to Mr Murray’s submission that the pursuer had confirmed that there was a gap of 80 cm between the coupling and the other side of the designated walkway in cross-examination, I (and Mr Forsyth) had had no recollection or note of this.  The recording of this part of the pursuer’s evidence was replayed.  I had recalled this as having been part of a series of quite rapid questions and, on being replayed, it transpired that Mr Murray had put to the pursuer, not only that there had been “a gap” between the coupling on the locomotive and the edge of the walkway, but that he had put it that there had been “a gap of 80 cm” between the coupling and the edge of the walkway.  The pursuer had simply said “yes” to this overall proposition.  Neither before nor after this was there any evidence from any witness about such dimensions.  I am not at all clear that the pursuer was agreeing to this precise measurement.  Initially, Mr Murray thought that this figure of 80 cm had also been referred to by Mr Doyle in the course of his evidence but, on checking this, that was not the case.  The defenders led no positive evidence to this effect.  My impression was that the pursuer was simply agreeing that there was a gap between the coupling and the edge of the walkway.  I am not prepared to accept that the pursuer adopted the specific measurement when it was put to him quickly in cross-examination.  I am therefore not prepared to hold it established on the balance of probabilities that the gap at this point had the specific measurement of 80 cm.  The pursuer in any event accepted that he could have walked across the embedded rails on the designated walkway and then turned 90 degrees to follow the embedded rails to his office but that he had not done this, although he confirmed in re-examination that the risk of getting grease on his clothes from the coupling was a risk he was seeking to avoid.  I also pause to record that, although the pursuer accepted that he could have made his way past the greasy coupling on the designated walkway, there was no explanation as to the manner in which he could have done so, such as the angle at which he would be likely to have crossed the embedded rails if he was seeking to make his way around the greasy coupling safely. 

[74]          Mr Murray also submitted that the pursuer had in his evidence initially indicated a line to the nearest corner of the desk in the photograph, number 5/10 of process, and that he had then changed the direction to a location on the right hand side of the photograph.  That was not my recollection of or impression from the pursuer’s evidence and I did not accept that submission.  My recollection is that the pursuer indicated that he had made his way to his office by passing to the right hand side of the desk in the photograph and that his office was off the right hand side of the photograph, and I accepted his evidence about this.

[75]          Mr Murray reminded me that the pursuer had given evidence that both of the photographs, numbers 5/10 and 5/11 of process, had been taken on the morning of the accident but that, as originally lodged as number 5/3 of process, the photograph, number 5/11 of process, was dated 23 April 2013.  In effect, Mr Murray invited the court not to accept the pursuer’s explanation.  However, the pursuer had given evidence to the effect that he believed that the note of the date 23 April 2013 on the photograph had probably happened when he had sent the photograph to his new phone from his previous phone.  The suggestion being made by Mr Murray seemed to be that both photographs had in fact been taken on 23 April 2013 and, therefore, that the photograph, number 5/10 of process, had not shown the scene of the accident as it was on 26 March 2013.  Having had the benefit of having heard the pursuer in evidence, I am satisfied that his evidence about these photographs was a truthful account.  I therefore reject Mr Murray’s submission about this.

[76]          In relation to the photograph, number 5/10 of process, Mr Murray submitted that this photograph showed that the pursuer need not have taken the diagonal line he said he had taken to his office to avoid other obstructions.  Mr Murray also submitted that it appeared from the pursuer’s evidence that he said that he had been looking at the obstructions when he lost his footing.  However, he submitted that by the time the pursuer had lost his footing he had passed any obstructions.  He submitted that it was not “necessary” for the pursuer to be looking at any obstructions to make his way to the office after he had left the designated walkway.  I did not accept that the pursuer had “passed” the locomotive, desk and box by the time he lost his footing.  At that point he would have been approximately parallel to the locomotive.  I am satisfied that they would still have been within his line of sight.  My impression was that he was distracted by these obstacles which were an unusual and unexpected occurrence. 

[77]          Mr Murray submitted that, insofar as the photograph, number 5/10 of process, showed the coupling of a locomotive partially blocking the designated walkway, it was not at all obvious that an employee would have to leave the walkway to negotiate a route past the coupling.  He then submitted that, even were an employee to do so, a path parallel to and immediately beside the walkway would, on the pursuer’s evidence, have presented nearly no risk of losing footing on the embedded rails.  I have to record that this was not put to the pursuer in cross-examination.  Mr Murray then submitted that, “contrary to the pursuer’s case on record”, even if the locomotive was not blocking the path, he would have had to walk over the embedded rails.  This was the first time that there had been any suggestion that there was any such variance between the pursuer’s evidence and the averments on record.  It is in any event not clear to me that the record included averments to the contrary.  The pursuer had himself said that he would have walked over the embedded rails on the designated walkway in a perpendicular fashion as he had done hundreds or thousands of times without an accident.  If it really was the defenders’ position that the pursuer’s evidence was contrary to the averments on record, I would have expected such a proposition to have been put in fairness to the pursuer in cross-examination.  It was not. 

[78]          Mr Murray submitted that the pursuer’s apparent justification for taking the route “from A to B” (namely, directly from designated traffic route to his office) was the existence of the desk and the box, and the locomotive.  He submitted that this was a bad justification.  Any obstruction on the walkway after it “turned the corner” in no way necessitated the pursuer walking in a diagonal line from the forklift truck directly to his office.  He submitted that, on any view of the evidence, the pursuer had “cut the corner”.  The pursuer had accepted this expression in his evidence when put to him by Mr Murray in cross-examination.  However, in his submissions, Mr Murray confirmed that he had not been using this expression in a pejorative sense. 

[79]          Mr Murray submitted that, although the pursuer had given evidence that he had had no training on traffic routes and no instruction on how to approach embedded rails, this evidence had been “unsatisfactory”.  However, I have to record, first, no objection was taken to the pursuer’s evidence on these points and, second, it was not put to the pursuer in cross-examination that he had had any such training or instruction (and, indeed, there were no averments on record that the pursuer had had any such training or instruction).  Mr Murray went on to submit that none of the evidence about lack of training had formed a case on record.  He submitted that the pursuer had accepted in cross-examination that he had given guidance to visitors on how to safely move around the depot and that the pursuer, like his colleagues in the depot, was trained in “track safety”, as well as having had over 15 years’ experience of working within the depot.  However, I have to record that there was no detail about the content of any “track safety” training beyond the pursuer’s own evidence in which he said that part of the training had been to avoid electric tracks and to avoid losing your footing on “raised rails”.  There was no suggestion that this had included training in relation to avoiding losing one’s footing on embedded rails, and it was not suggested to him in cross-examination that it had.  There was, therefore, no evidence that the pursuer had received any track safety training in relation to crossing over embedded rails.  Such evidence as there was about “track safety training” was, therefore, lacking in detail and did not appear to have much, if any, relevance to the issues arising in the present case.

[80]          Mr Murray also referred to what he said had been the pursuer’s evidence about having given “induction training” to visitors to the depot and submitted that this was a significant adminicle of evidence.  Mr Murray submitted that this established that the pursuer was responsible for instructing the safety of others in moving around the depot.  I again have to record that this was not put to the pursuer in cross-examination.  Mr Murray submitted that this was inconsistent with the pursuer’s evidence that he was inadequately trained to move around the depot safely.  However, this also was not put to the pursuer in cross-examination.  Mr Forsyth also reminded me that the expression “induction training” had not featured in the evidence and that the pursuer’s evidence was simply that he had told visitors to stick to traffic routes.  Mr Forsyth also submitted that the defenders’ position that the pursuer was “responsible for instructing the safety of others” appeared to be contrary to the undertaking given by Mr Murray in the course of cross-examination of the pursuer.  That is correct.  Mr Murray told me in the course of cross-examination that he was not seeking to set up a case that the pursuer had specialist responsibilities and that he was not seeking to make a case that the pursuer had the status of a responsible person.  It was on that basis that I had allowed Mr Murray’s question in cross-examination about risk assessments.  In all the circumstances, I do not accept Mr Murray’s suggestion that the pursuer gave “induction training” to visitors.

[81]          Mr Murray submitted that the pursuer’s evidence on lack of training was not credible.  He submitted that the pursuer had sought to justify and support his action of walking diagonally across the embedded rail “which he well accepted was not the correct way to approach it”.  I asked Mr Murray where and when the pursuer had “well accepted” this proposition.  Mr Murray conceded that the pursuer had not specifically accepted this, but he then said that he would be asking the court to infer this.  I have to record, however, that this proposition was not even put to the pursuer in cross-examination.  According to my note, what the pursuer accepted was that the correct approach to embedded rails was to cross them in a perpendicular way.  He seemed to be under the impression that crossing embedded rails in such a way with a size 10 shoe presented no hazard.  He accepted that, on designated walkways, there was a minimal risk.  When it was put to him that, if he was walking towards embedded rails on the designated traffic route at 90 degrees and crossed the rails, this would be perfectly safe, he replied that this would be a low hazard.  He had also agreed that, as long as he approached embedded rails at 90 degrees, this was a low level hazard.  Mr Murray went on to submit that the pursuer had also accepted that he was not looking where he was placing his feet.  I accepted this, although I also accepted the pursuer’s evidence to the effect that he had been distracted by the locomotive, desk and box which were, unusually in his experience, on the designated traffic route.  Ultimately, Mr Murray submitted that it was highly unlikely that the pursuer did not receive training in track safety.  I did not accept this submission.  I accepted the pursuer’s evidence on the issue of training, including lack of training.

 

The Defenders’ Witnesses
[82]          Mr Doyle’s evidence was not challenged.  I had no reason not to accept it. 

[83]          Mr Forsyth submitted that Mrs Russell’s evidence lacked credibility and reliability and that, at times, she had appeared to give evidence that might prejudice the pursuer whether she was asked or not.  It was not clear to me what evidence Mr Forsyth had in mind in this respect, and he did not elaborate on this.  That was, in any event, not my impression of her evidence.  I formed the view that she was a relatively straightforward witness and I saw no particular reason not to accept her evidence.

 

Discussion of the Pursuer’s Statutory Case
[84]          Turning now to regulation 17, I accept that this regulation does not require the creation of traffic routes within the workplace.  However, where traffic routes are provided, they require to be suitable for the persons using them, sufficient in number, in suitable positions and of sufficient size.

[85]          Both parties referred to Wallis v Balfour Beatty.  In that case, it was held that there had been a breach of regulation 17(2) because there had been no traffic route that was suitable for Mr Wallis to use in a suitable position.  However, it was held that even although there was a breach of statutory duty, the defenders were not liable because the sole cause of the accident had been Mr Wallis’ decision to take a hazardous route in and out from the track.  The circumstances in that case were, in my opinion, quite different from those in the present case.  In the present case, the pursuer gave evidence to the effect that he had had no training in relation on how to cross embedded rails.  That was in contrast to the position in Wallis where the pursuer there had been responsible for safety, was fully familiar with the safety regulations of his employer and was himself responsible not only for his own safety but the safety of the men working under him.  It was implicit that the alternative access that Mr Wallis should look for should have been a safe traffic route to the track.  By contrast, in the present case, I am satisfied that no alternative traffic route had been provided that was suitable for use or in a suitable position.  Mr Murray submitted that in the present case there was a workshop floor immediately adjacent to the designated walkway which could have been used.  However, this had not been put to the pursuer in cross-examination and there was no evidence that the pursuer had been trained to improvise in this way.  I also noted at one point in Mr Murray’s submissions that he suggested that the pursuer in the present case had taken a “calculated risk” in taking the route that he did.  This proposition had not, however, been put to the pursuer in cross-examination.  By contrast, it was a proposition that had been put to, and accepted by, Mr Wallis (as recorded at paragraph [6] of the judgment in that case).  But this was against the background of Mr Wallis’ training, responsibility, knowledge and experience, all of which was in marked contrast, in my opinion, to that of the pursuer in the present case.

[86]          Mr Murray also founded particularly on the cases of Nichols, Pratt and Marks & Spencer v Palmer.  However, the circumstances of the present case are not on all fours with the circumstances in any of those cases.  In Nichols, it was held that an employer could lock a door across a passage and the fact that a route could thereby not at the time being be used as a route did not render that (my emphasis) route unsuitable in the sense required by the regulations which imported some element of danger.  Nevertheless, it was also held in that case that the securing of the door without giving a suitable warning constituted a breach of regulation 17(2) to maintain suitable traffic routes (my emphasis) for pedestrians within the factory.  As regards any comparison with the circumstances in the present case, I would observe, in the first place, that the locking of a door stopping use of a traffic route is not what happened in the present case.  In the present case, the designated traffic route was obstructed by a number of items which I understood the defenders to accept ought not to have been there (at least, Mrs Russell of the defenders accepted this), and it seems to me to be pretty obvious that the obstacles did present an element of danger to any pedestrian using the traffic route.  Otherwise, it is difficult to see why Mrs Russell should have been of the view that they should not have been there.  Indeed, she accepted that the locomotive, desk and box represented hazards (as reflected in findings-in-fact (13) and (14)).  In the second place, there in any event remained the duty under regulation 17(2) to maintain suitable traffic routes for pedestrians in the workplace.  In the present case the designated traffic route was the only designated traffic route to the pursuer’s office.  It seems not unreasonable to suppose that the purpose for which a designated traffic route is so designated, having regard to regulations 2(3) and regulations 17(1) and (2), is to enable employees, such as the pursuer, to make their way to their workplace in a safe manner. 

[87]          It was difficult to understand why Mr Murray was making a point about simply taking a traffic route out of use not rendering it unsuitable if his position was – as it appeared to be - that the designated walkway in the present case was in fact still suitable for use by an employee, such as the pursuer, to get to his office.

[88]          Mr Murray submitted that the question under regulation 17 was “whether pedestrians could circulate around the depot in a safe manner”.  He submitted that a worker, such as the pursuer, “could walk alongside and directly adjacent to the walkway”.  There was, therefore, he submitted a “route” that was “safe”.  However, it was not put to the pursuer in cross-examination that he could, or should, have “walked alongside and directly adjacent to the walkway”.  There was also no evidence (a) that any route other than that shown in the photograph, number 5/10 of process, had been designated as an alternative safe traffic route or (b) that the pursuer had been trained that he should improvise in such a way if the designated traffic route was not suitable for persons using it to enable them to make their way to their place of work in a safe manner.  Mr Murray’s position appeared to me to be a rather confused and confusing one.  On the one hand, in the light of his submission about this, there seemed to be an implicit recognition that the designated traffic route was not safe or suitable as a result of which the pursuer ought to have been identifying and selecting an alternative “safe” route “alongside and directly adjacent to the walkway”.  On the other hand, he also appeared to be maintaining that the designated traffic route was suitable because the pursuer had accepted in cross-examination that he “could” have crossed the embedded rails on what remained of the designated traffic route by walking between the end of the greasy coupling and the white painted edge of the designated traffic route and then turning 90 degrees to follow the embedded rails to his office.  The pursuer had, however, also made it clear that he had been seeking to avoid the risk of getting grease on his clothing (which he had said was hard to get off in his experience) and that this had been in his mind when he decided to take the route that he did.  It is not clear how or in what manner (as this was not explored in evidence) the pursuer would, or could, have crossed the embedded rails on what remained of the designated traffic route if he was to avoid getting grease on his clothing.  In my view, the pursuer had an understandable and unsurprising concern about this.

[89]          At one point, Mr Murray submitted that a breach of regulation 17 arises if there is some risk on the traffic route itself importing a danger (Nichols).  However, he then appeared to suggest that any breach of regulation 17 could not be regarded as having been causative of the injuries sustained because they had not been sustained within the confines of the traffic route itself.  The implication of this submission was that, if a pursuer in any case cannot use a traffic route, however unsuitable it may be, if he then has an accident outwith the traffic route, the employer escapes liability.  This would defeat the purpose of the regulation and I do not accept this as a general proposition if that was what was intended.

[90]          The circumstances in the present case were, again, quite different from those in Pratt.  In that case, it is recorded at paragraph [17] that the path concerned there was a “wide path, adequately lit, swept every morning at the start of the dayshift and where employees including Mr Pratt would know that pallets were stored from time to time at the side of the building…It was plainly possible for people to walk along it safely and it was big enough and in a suitable position.  The fact that there was a bit of wood at its edge has little, if anything, to do with regulation 17(2).”  That description of the scene presented in Pratt is, in my opinion, quite different to the scene presented to the pursuer in the present case where he was faced with the scene shown in the photograph, number 5/10 of process, and, in an attempt to make his way to his office, stepped over, first of all, fork lift truck forks which protruded into the designated traffic route.  He was then faced with a locomotive and greasy coupling at its end which took up a significant part of, and therefore blocked to a substantial extent, the designated traffic route.  The pursuer was concerned about getting grease on his clothes from the greasy coupling and he could also see that, beyond the locomotive, the designated traffic route was completely blocked by a desk and box.  Faced with these unexpected obstacles he decided to divert from the designated traffic route to enable him to make his way to his office.  In my opinion, in contrast with the circumstances in Pratt, it cannot be said in the present case that it was “plainly possible for people to walk along it safely and it was big enough”.  In my opinion, adopting - as I had been invited to do by Mr Murray - “an element of realism”, it was not in the least bit surprising that the pursuer, faced with such an unexpected scene, would divert from the (only) designated traffic route provided. 

[91]          Marks & Spencer Plc v Palmer was a case concerned with regulation 12 of the 1992 Regulations rather than regulation 17.  The alleged hazard which had given rise to the injury in that case was described as being a weather strip which was said to have been a small or slight rise and which had only been 8 to 9.5 millimetres high.  It was held that the unevenness of the weather strip was not to an extent which exposed persons to risk of their health and safety (as required for regulation 12) and, therefore, that the floor was not unsuitable for the purpose for which it was used and did not expose persons to the risk within the ambit of regulation 12(2)(a) which includes reference to “a risk to (the person’s) health and safety”.  In the present case, in my opinion and adopting an element of realism, the embedded rails in the workshop plainly presented a real risk to health and safety.  I am satisfied that it was because of this that both Mr Doyle and Mrs Russell would step over embedded rails rather than stand on them and would cross them in a perpendicular manner.  (The limited evidence of plating elsewhere in the workshop did not seem to me to assist materially in view of the lack of evidence about how extensive it was or the reasons for any plating elsewhere beyond the pursuer’s belief as to the reasons for the very small area of plating shown in the photograph, number 5/11 of process.)  In principle, the designated traffic route provided a way in which the embedded rails could be crossed in a safe manner as it was perpendicular to the embedded rails.  However, in my opinion, having regard to the obstacles on the designated traffic route, it cannot be said in the present case that the traffic route was “suitable” for use by the pursuer at the material time. 

[92]          In addition, in Marks & Spencer Plc v Palmer, reference was also made to a passage in the judgment of Hale LJ in Koonjul v Thameslink Healthcare Services where she said: “For my part, I am prepared to accept those statements as to the level of risk which is required to bring the case within the obligations of regulation 4; that there must be a real risk, a foreseeable possibility of injury; certainly nothing approaching a probability.  I am also prepared to accept that, in making an assessment of whether there is such a risk of injury, the employer is not entitled to assume that all his employees will on all occasions behave with full and proper concern for their own safety.  I accept that the purpose of regulations such as these is indeed to place upon employers obligations to look after their employees’ safety which they might not otherwise have.”  In the first place, I am satisfied that there was a real risk of injury in the present case.  In the second place, the defenders were not in my view entitled to assume that all their employees would on all occasions behave with full and proper concern for their safety.  The purpose of regulations such as regulation 17 is to place on employers, such as the defenders, obligations to look after their employees’ safety which they might not otherwise have done.  In other words, regulations such as these are intended to protect employees against accidents arising from momentary inadvertence or carelessness.  In the present case, in all the circumstances, I am satisfied that the pursuer’s actions in diverting from the designated traffic route and attempting to cross the workshop directly to his office, which involved crossing embedded rails at an angle rather than perpendicular to them whilst distracted by the obstacles presented unexpectedly on the designated traffic route, were as a result of momentary inadvertence or carelessness on his part rather than having been a “calculated risk” on his part as suggested on behalf of the defenders, and still less “cavalier”.  If there had been evidence that the pursuer had been trained to approach embedded rails in a direction perpendicular to their direction of travel, this might have provided a basis for maintaining that he would, in the light of any such training and knowledge, have been in a position to “calculate” the risk.  However, there was no such evidence in this case.

[93]          In that connection, and in support of the contention that the pursuer was solely responsible for the accident, the submissions on behalf of the defenders included the following proposition at paragraph 3.5.7 of Mr Murray’s written outline submission: “No sensible person in the pursuer’s workplace, being trained and experienced in track safety and the layout and workings of the depot would have left the walkway, then crossed embedded tracks diagonally without looking where he was placing his feet.”  The issue of training was, therefore, material to this proposition and, indeed, one of the findings-in-fact proposed on behalf of the defenders was as follows: “(xi) The pursuer had been trained to approach embedded rails in a direction perpendicular to their direction of travel.” However, no evidence was led to this effect (and neither had this been averred).  This was, therefore, not proved.

[94]          In conclusion, therefore, I am satisfied that the obstacles on the designated traffic route, including the locomotive, were such that the traffic route was not suitable for the pursuer to use that day, that no alternative safe traffic route was provided and, consequently, that the pursuer’s workplace was not organised in such a way that pedestrians, including the pursuer, could circulate in a safe manner and, therefore, that there was a breach of regulation 17.  The suggestion seemed to be that the pursuer ought to have been, in effect, improvising by working around hazards and working out his own route.  In my opinion, this runs counter to the obligations placed on employers, such as the defenders, in regulation 17(1) to organise the workplace and regulation 17(2) to provide traffic routes which are suitable for persons using them.

[95]          I am also satisfied that the breach of regulation 17 was causative of the accident.  Had the designated traffic route been suitable for use by the pursuer as it ought to have been, he would not have diverted from the designated traffic route and the accident would not have occurred.  The circumstances are quite unlike those in Wallis where, although there was held to have been a breach of regulation 17, the pursuer in that case was held to have been solely responsible for the accident because he was inter alia responsible for safety, was fully familiar with the safety regulations of his employers, was responsible for not only his own safety but the safety of the men working under him, and he knew that the route he was taking was dangerous and that it was implicit that he should have been finding a safe alternative traffic route.  That is in marked contrast to the present case in which, despite the defenders’ submissions founding on the proposition that the pursuer had been trained, this was not established in evidence, and I am satisfied that at the material time the pursuer did not appreciate the real risk that he was taking in attempting to cross the embedded rails at an angle.

 

Discussion of the Pursuer’s Common Law Case
[96]          The pursuer also had a case at common law.  I agree with Mr Murray’s submission that it does not place any stricter duties on the defenders than those under the 1992 Regulations.

[97]          I am satisfied that the defenders failed to provide the pursuer with a safe place of work.  In my view, the embedded rails presented a real risk of injury to employees, such as the pursuer, requiring to make their way across the embedded rails to get to their place of work at the other side of the workshop.  In my opinion, it was reasonably foreseeable that, if the designated traffic route was blocked, or at least substantially blocked, and was not suitable for use, there was a real risk that an employee such as the pursuer would divert from the designated traffic route and attempt to cross the workshop directly to his office which involved crossing embedded rails at an angle rather than perpendicular to them with a consequent real risk that he might lose his footing on the embedded rails and thereby sustain injury.  In that connection, I noted Mrs Russell’s acceptance that the locomotive in the photograph, number 5/10 of process, may have represented a hazard as blocking the designated traffic route partially, and that the desk and box beyond that also represented hazards. 

[98]          There was no suggestion that it would not have been reasonably practicable to have provided the pursuer with a safe traffic route to his office.  In my judgement, the pursuer sustained injury as a result of the defenders’ failure to provide him with a safe place at work by providing him with a safe designated traffic route.  I am, therefore, satisfied that the defenders are also in breach of their duty at common law to take reasonable care to provide the pursuer with a safe place at work.

[99]          Mr Forsyth’s general submission that the defenders’ failed to institute a safe system at work was not elaborated upon or explained to any great extent.  I did not feel that I could be satisfied that this was established. 

 

Discussion of the Issue of Contributory Negligence
[100]        As Lord Glennie said in Ashbridge v Christian Salvesen at paragraph [25]: “The question of contributory negligence involves not only a consideration of the conduct of the pursuer but also an analysis of what it is the statutory regulations and the common law duty of the care are designed to guard against”.  Regulation 17 deals with the provision and layout of traffic routes and requires that every workplace is to be organised in such a way that pedestrians can circulate in a safe manner and traffic routes in a workplace require to be suitable for persons using them.  As Lord Glennie also observed in Ashbridge at paragraph [25]:

“It is a feature of every working environment that there will be moments of carelessness or lack of concentration.  It is in part to guard against danger arising in such an environment from such carelessness or lack of concentration that the regulations assume a role of great importance.  It follows that the purpose of the regulations would be defeated if a finding of contributory negligence were made whenever an employee was careless and by his carelessness contributed to the accident…It is, therefore, the exceptional case rather than the norm where a finding of contributory negligence will be made.” 

 

[101]        In that case, Lord Glennie held, at paragraph [26], that the pursuer’s actions had gone beyond the sort of carelessness or inadvertence he had described and that his attitude had been “cavalier in the extreme”.  The pursuer in that case had known what he was doing “was dangerous”, and his responsibility for the accident was assessed at 50 per cent. 

[102]        In the present case, the pursuer’s actions came nowhere near such description and, in my assessment, did not go beyond momentary inadvertence or carelessness.  Mr Murray submitted that the pursuer had taken a “calculated risk” in diverting from the designated traffic route but, as I have already said, in my judgement (and in marked contrast to Wallis) that would not be a fair and accurate description of what happened in the present case.  The defenders’ position included a proposition to the effect that the pursuer had been trained to approach embedded rails in a direction perpendicular to their direction of travel. However, this was not established in the evidence.  It was also not put to the pursuer in cross-examination that he had had such training or that he should have stepped over the rails.  In my view, the actions taken by the pursuer in the heat of the moment when faced with the unexpected scene shown in the photograph, number 5/10 of process, when not specifically watching where he was placing his feet due to being distracted by the obstacles, would more fairly and accurately be described as amounting to momentary inadvertence or inattention.  A momentary lapse such as that which I am satisfied occurred in the present case falls short of amounting to a lack of reasonable care on the part of the pursuer.  I am, therefore, not persuaded that there should be any finding of contributory negligence in this case.

 

Decision
[103]        In conclusion, I find that both the case under regulation 17 and the common law case (in relation to the provision of a safe place of work) succeed and that the accident was not caused to any extent by the fault on the part of the pursuer.  I, therefore, find the defenders liable to the pursuer in the agreed sum of £5,500 with no reduction.