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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Jaffray v Grampian Test & Certification Ltd [2005] ScotSC 3 (06 January 2005)
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Cite as: [2005] ScotSC 3

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SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

A139/02

   

JUDGEMENT

of

SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC

   

in the cause

   

ALAN ORR JAFFRAY

   

Pursuer and Appellant

   

against

   

GRAMPIAN TEST & CERTIFICATION LIMITED

   

Defenders and Respondents

Act: Miss Jan McCall, advocate, instructed by Lefevre Litigation, Aberdeen

Alt: Mr Mark Donaldson, solicitor, Simpson & Marwick, Aberdeen

Aberdeen: 6th January 2005

The sheriff principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutor of the sheriff dated 15 September 2004; finds the pursuer liable to the defenders in the expenses of the appeal and allows an account thereof to be given in and remits the same, when lodged, to the auditor of court to tax and to report; quoad ultra remits the cause to the sheriff to proceed as accords.

Note

[1] In this case the pursuer and appellant seeks payment to him by the defenders and respondents of the sum of £75,000 to compensate him for the loss, injury and damage said to have been sustained by him as a result of an accident which occurred on 22 September 1999 when he was working in the course of his employment with the defenders at their premises in Aberdeen. The action was raised in January 2002. It was subsequently sisted for a substantial period of time but eventually at the continued options hearing on 21 April 2004 the sheriff closed the record and appointed parties to be heard in debate on 22 June 2004. On 11 May 2004 the sheriff allowed a minute of amendment for the pursuer to be received and form no. 21 of process. The defenders were given time to lodge answers thereto. On 14 June 2004 the sheriff discharged the diet of debate which had been assigned for 22 June 2004. By this time the defenders had lodged answers (no. 22 of process) to the pursuer's minute of amendment. A period of adjustment of the minute of amendment and answers followed, and eventually a hearing took place before the sheriff on 16 August 2004 at which the pursuer's solicitor evidently moved the sheriff to allow the record to be opened up and amended in terms of the adjusted minute of amendment and answers and of new closed. The sheriff made avizandum and by interlocutor dated 15 September 2004 he allowed amendment under exception of one particular paragraph in the pursuer's minute of amendment to which I shall shortly refer in more detail. It is this interlocutor which is the subject of the present appeal by the pursuer, and in short he maintains that the sheriff erred in the exercise of his discretion and that he ought to have allowed amendment of the pursuer's pleadings in terms of the minute of amendment in its entirety.

[2] The sheriff prepared a careful note in support of his interlocutor in which he compared the pleadings as they stood before the proposed amendment with their form as proposed by the amendment. He then rehearsed the submissions for the parties and finally explained his decision. For present purposes it is necessary to notice only his conclusion that the amendment proposed in the paragraph to which reference has already been made seemed to him to introduce an entirely new case which the defenders were being asked to meet for the first time some five years after the accident. The sheriff recorded that he had been told by the defenders' solicitor that this delay would cause them prejudice if they had to investigate the new case, and he concluded: "I can readily accept that this would be the case and I do not consider that this part of the amendment should be allowed".

[3] The pursuer lodged a motion for leave to appeal against the sheriff's interlocutor dated 15 September 2004, and on 11 October 2004 he granted leave to appeal. He subsequently prepared a further helpful note in which he concluded:

It seemed to me that the real issue was whether it might be argued, on a proper reading of the pleadings, that I had erred in seeing the amendment as introducing a new case based on the statutory requirement for clamping and the alleged statutory non-compliance of the equipment the defenders used. If I was wrong in that, the foundation of my decision would be removed. A I did not feel that I could be certain that the sheriff principal would be unable to come to a different conclusion from my own I considered it appropriate to grant leave to appeal.

[4] Before I turn to the pursuer's averments in the present case, it may be helpful to review the authorities to which I was referred during the hearing of the appeal. (In passing, I observe that I was referred to the reports of all four cases in Scots Law Times. Three of them are in fact reported in Session Cases, and it is to these reports that the court should be referred in preference to the reports in Scots Law Times). In Pompa's Trustees v Magistrates of Edinburgh 1942 SC 119 the pursuers raised an action against the defenders for the recovery of losses alleged to have been sustained by them as a result of an attack upon their premises by a riotous mob on 10 June 1940. The details of the case are not important. What is important is the well known passage in the judgement of Lord Justice Clerk Cooper at page 125 where his Lordship stated:

Further, our reports contain many decisions showing that the court will not in general allow a pursuer by amendment to substitute the right defender for the wrong defender, or to cure a radical incompetence in his action, or to change the basis of his case if he only seeks to make such amendments after the expiry of a time limit which would have prevented him at that stage from raising proceedings afresh.

[5] In Hynd v West Fife Co-operative Limited 1980 SLT 41 an apprentice butcher raised an action of damages against his employers in respect of an injury sustained to his hand while cleaning a bacon slicing machine in the course of his employment. His original case of fault was based on inadequate instruction and fault on the part of the defenders' manager in respect of inadequate supervision in relation to the cleaning operation. After the expiry of the triennium a minute of amendment was lodged by the pursuer, the effect of which was to introduce a new case of fault based on defective system. His motion to allow the minute to be received and answered was opposed by the defenders who argued that the case set out in the minute of amendment constituted an entirely new basis of case which was by then time-barred. The Lord Ordinary allowed the motion, and the defenders' reclaiming motion was refused by the First Division. In the opinion of the court consideration was given to the question whether the passage which I have just quoted from Pompa's Trustees was directed, on the one hand, to the question of competency or whether, on the other hand, it did no more than set out general principles to which the court would have regard when deciding whether to exercise its wide discretionary power to allow amendment or not. It appears from the opinion of the court at pages 42/3 that the First Division preferred the latter approach. At page 43 the opinion continued:

Whether, however, one approaches the matter as one of competency of amendment, or as one of judicial discretion, it must first be decided in a case such as this whether the proposed amendment by the pursuer does, or does not, in the words of Lord Justice Clerk Cooper in Pompa's Trustees "change the basis of his case". Whether a particular case will fall on one side of the line or another is inevitably one of degree. The Lord Ordinary clearly appreciated this and we do not differ from the conclusion which he reached. The case, if the amendment is allowed, will be about the same accident and the same danger, and all the pursuer seeks to do by this amendment is to introduce an additional ground on which it may be held that the defenders failed, in the exercise of their duty of reasonable care for his safety, to protect him against this same danger. In short the change which the pursuer seeks to introduce is neither so fundamental nor radical as to make an exercise of the court's discretion in favour of the pursuer improper ......

[6] In Greenhorn v J Smart & Co (Contractors) Limited 1979 SC 427 the pursuer in an action of damages in respect of personal injuries allegedly sustained in the course of his employment sought almost five years after the accident to amend his pleadings. The amendment which he proposed was substantial and changed not only the factual basis of the accident but also the alleged breaches of duty by the defenders. In both accounts of the accident the pursuer fell from a ladder. In the original averments it was said that he had fallen because a basin of stone chips which he had been carrying up the ladder had over-balanced causing him to fall. In the amended version it was said that he had fallen because the ladder had suddenly moved causing him to fall to the ground. His original case of fault had been based on the common law duty to provide a safe system of working. The amended case was based on the defenders' duty to provide a safe working place and access thereto and on an alleged breach of the Construction (Working Places) Regulations 1966. As a result of an error in procedure the amendment was in fact allowed and the true issue which it raised was only properly focused in a subsequent procedure roll discussion of the defenders' plea-in-law to the effect that the averments added by amendment were time-barred in terms of section 17 of the Prescription and Limitation (Scotland) Act 1973 with the result that they should not be admitted to probation and the action should be dismissed. This plea was sustained by the Lord Ordinary and the pursuer's reclaiming motion was refused by the First Division. In the opinion of the court at pages 431/2 it was stated:

As the result of the amendment the basis of the pursuer's case has been radically altered and, indeed, he has simply converted it into what is virtually a new action. The accident is now a completely different one. So too is the danger upon which he relies as the foundation of his case of fault, and that case itself has been converted from a case of faulty system of working into: (a) a common law case directed to the safety of the working place and access; and (b) a statutory case concerned with the security of ladders. Before the amendment the essence of the pursuer's case was failure to institute and maintain a system of working which would provide a secure landing place for a basin. His basic complaint was that the landing place for the basin was too narrow with the result that the basin he was attempting to place there overturned and fell on him, knocking him off a ladder the security of which was not criticised. Now the basic complaint of the pursuer is that the ladder was insecure and this insecurity caused him to fall. The alleged insecurity of the ladder is now and for the first time the danger against which, he avers, the defenders should have protected him, and the accident is now described as one of which the essential cause was the defenders' failure to secure its upper end. It is impossible not to regard this not only as a remarkable change of front but also as one constituting a change in the whole essence and foundation of the pursuer's case ..... The clear policy of (section 17(1) of the 1973 Act) was to protect defenders against stale claims which after the passage of time would be difficult to investigate and resist. In this action almost five years elapsed before the pursuer sought to make a case based upon the alleged insecurity of the ladder. Until 4 May 1978 the defenders had had no hint that the security of the upper end of the ladder was in question and to require them to investigate and attempt to meet such a case now would be quite contrary to the plain intendment of the statute. It is nothing to the point and quite inaccurate to say that the action is still concerned with an incident in which the pursuer fell from a ladder, and with the general duty of an employer to exercise reasonable care for his employees' safety. What matters is that the essence of the pursuer's case and his basic complaint have changed fundamentally and radically and the Lord Ordinary was perfectly correct in dismissing the action.

[7] In Cork v Greater Glasgow Health Board 1997 SC 321 a nurse raised an action of damages in respect of personal injuries sustained by him when he was lifting a patient in the course of his employment. He averred that he was instructed by a nursing sister to use a hoist to life the patient from his bed onto a commode, and that during the course of the lift the patient fell out of the hoist causing the pursuer to try and catch him, thereby causing him injury. The grounds of fault in the action in its original form were that there was an unsafe system of work. Shortly before the first diet of proof the pursuer lodged a minute of amendment in which he sought to amend the description of the circumstances of the accident and to amend his grounds of fault by averring that the defenders had not provided him with safe work equipment. The Lord Ordinary refused to allow the minute of amendment on the ground, inter alia, that it was time-barred in that it involved a reformulation of the grounds of fault and the substitution of a wholly different allegation as to the nature of the injuries sustained by the pursuer. The latter's reclaiming motion was allowed by the First Division. In the opinion of the court it was said at page 324:

We would agree with the Lord Ordinary that the amendments are both extensive and significant but we are unable to agree with his view that they constitute a radical alteration to the pursuer's case. There is a clear distinction to be drawn between, on the one hand, extensive and significant amendments which expand the existing case to give greater specification and perhaps enable the pursuer to lead more detailed evidence at the proof, and, on the other hand, radical alterations to his pleadings which alter the whole basis of his case, whether on the occurrence of the accident or on the grounds of fault. In our view it is clear that the amendments made here do not go to the root of the pursuer's case.

The court then considered the details of the pursuer's pleadings and continued:

Accordingly, as far as the facts are concerned we are satisfied that the amendments proposed are merely an expansion of the existing case, rather than any radical alteration to the case originally made. The new averment that it was the defenders' duty to devise a safe system of work and provide safe and sufficient equipment is in our view simply an extension of the existing case, bearing in mind that the pursuer has averred that the hoist was unsuitable and unsafe for this purpose and that it was the defenders' duty to instruct their employees as to what was the proper equipment to be used.

[8] The court went on at page 325 to consider the basis upon which an appeal court may interfere in a case of this kind. It was there stated:

The basis upon which an appeal court can overturn the exercise of discretion by a Lord Ordinary is well known and this can be done only if the Lord Ordinary has taken some irrelevant factor into account, left out some relevant factor or has produced a result which is unreasonable or unjudicial. We bear in mind that a wide range must be given to the Lord Ordinary's discretion in considering matters such as whether or not particular averments go to the root of the parties' case, but even allowing for the full discretion available to a Lord Ordinary, we are satisfied that it would be unreasonable in the present case to conclude that the pursuer's amendments can properly be described as producing a radical alteration to his case. That is sufficient to dispose of the defenders' argument that the amendment is time-barred .....

Having considered certain other matters, the court concluded at page 326:

On the whole matter, therefore, for the reasons we have given, we are satisfied that the Lord Ordinary's exercise of his discretion was flawed and it is therefore a matter for us to decide whether this amendment should be allowed.

In the result the amendment was allowed, the court being satisfied that the proposed amendments were necessary to focus the true issue between the parties.

[9] In the present case the pursuer's original version of the accident appeared in article 2 of the condescendence. There he averred that the defenders' manager instructed the pursuer's supervisor to have some Flemish Eyes made up. It was said that a Flemish Eye is a length of wire cable with one end of the cable made in the shape of an eye, and that the steel rope involved consisted of several strands of steel wire, measured approximately 30 feet in length and was approximately 12 inches in diameter. It was averred that the supervisor instructed the pursuer, a man named Darren and two others to assist him. It was averred that the pursuer had never previously been involved in the construction of a Flemish Eye. It was averred that the Flemish Eye was made using a clamping machine and that, after it had been formed, the supervisor instructed the pursuer and one of the other men to push a strand of steel wire through the eye and pass it to Darren which they duly did. It was said that Darren had confirmed that he had taken the strain and that the supervisor had then instructed the pursuer and the other man to stand back. The pursuer averred that he had then stood clear but that Darren had failed to retain hold of the strand of wire which had ricocheted towards the pursuer and had struck him on the right hand side of his head. The pursuer thereafter referred to certain regulations in terms of which the defenders were under a duty to make a suitable and sufficient assessment of the risk to health and safety to which their employees were exposed whilst at work, and it was said that, had such an assessment been carried out, it would have disclosed the risk to an employee such as the pursuer sustaining loss, injury and damage as occurred, and in particular it would have revealed the risk of the employee who had been passed the strand of wire (on this occasion Darren) letting go of the wire or otherwise letting it slip from his grasp, as occurred. Referring to the defenders' averments in answer, the pursuer admitted, inter alia, that in order to form the Flemish Eye the wire was held in a vice bolted to the ground. But there were no other references in article 2 to the clamping machine (as it was described by the pursuer) or vice (as it was described by the defenders).

[10] In article 3 of the condescendence the pursuer averred that the accident was caused by the fault and negligence of Darren in respect of whose actions the defenders were vicariously liable. It was said in short that Darren in the exercise of reasonable care had been under a duty to retain hold of the strand of wire and not to release his grasp of it until it was safe to do so. It was further said that he had failed in this duty and by reason of his failure had caused the pursuer's injury.

[11] In article 4 of the condescendence it was said that the accident had been caused by the fault and negligence of the defenders themselves and that they had failed in their duties in the exercise of reasonable care to devise, institute and maintain a safe system of work and to take reasonable care to prevent the release and subsequent and uncontrolled movement of the steel wire strand.

[12] In article 5 the pursuer averred that the accident had been caused by the defenders' breach of the duties incumbent upon them under and in terms of regulation 5 of the Provision and Use of Work Equipment Regulations 1992 which provided as follows:

(1) Every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is to be used or provided.

(2) In selecting work equipment, every employer shall have regard to the working conditions and to the risks to health and safety of persons which exist in the premises or undertaking in which that work equipment is to be used and any additional risk posed by the use of that work equipment.

(3) Every employer shall ensure that work equipment is used only for operations which, and under conditions for which, it is suitable.

It was averred that these regulations defined "suitable" as meaning suitable in any respect which it was reasonably foreseeable would affect the health or safety of any person. It was said that the defenders had failed to ensure that work equipment, namely the steel wire strand, was used under conditions for which it was suitable and in particular that it would not affect the health of employees such as the pursuer. Reference was then made back to article 2 of the condescendence.

[13] Finally, in article 6 the pursuer averred that the accident had been caused by the defenders' breach of the duties incumbent upon them in terms of regulation 4 of the Manual Handling Operations Regulations 1992. This regulation provided: "Each employer shall (a) so far as reasonably practical, avoid the need for their employees to undertake any manual handling operations at work which involves a risk of their being injured". It was said that the operation upon which the pursuer was engaged was a manual handling operation and involved the risk of his being injured and further that the defenders could have avoided the need for him to undertake such a manual handling operation at work. It was then said that, esto the need for the pursuer to undertake such an operation at work could not have been avoided (which was denied), it was the defenders' duty to comply with regulation 4(1)(b) which required the defenders, in short, to make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them and to take appropriate steps to reduce the risk of injury to their employees arising out of their undertaking any such manual handling operations to the lowest level reasonably practicable. The pursuer averred that, esto they had carried out a risk assessment, the defenders had not taken appropriate steps to reduce the risk of injury to their employees arising from the task of constructing Flemish Eyes to the lowest level reasonably practicable.

[14] In his minute of amendment the pursuer sought to amend article 2 in various respects. He proposed various alterations to his narrative of how the accident occurred. But perhaps significantly the only additional references to the clamping machine occurred in a passage which he proposed should be inserted after his original reference to the machine as follows:

The length of rope was held in a clamping machine which was a metal frame with two hydraulic clamps mounted thereon. The length of rope was held by said clamps with about 7 - 8 feet of one end of the rope protruding at one end past the clamp. This length of rope was to be bent back to the main length of rope, forming a loop, each strand unwound from the end and spliced into the main length of rope and a collar attached at the join to permanently form the eye. At the material time the rope had been clamped in the said machine. The 7 - 8 feet of rope approximately had been bent back to the main length of rope and clamped and the strands unwound. One of the strands was to be pushed through the loop formed by the rope.

[15] In his minute of amendment the pursuer went on to propose certain further alterations to article 2. It was now said that the pursuer and his fellow employee had held the rope (meaning presumably the strand) with both hands at about chest height and had pushed it through the loop and that Darren (now identified as Ross) had taken hold of it and had confirmed that he had taken the strain. It was said that the rope had been under tension and that if released it would have sprung back to its straight position. Further on, the pursuer proposed to add averments to the effect that a risk assessment carried out by the defenders shortly before the accident had identified a risk of the wire springing back and striking body parts of employees whilst forming Flemish Eyes on wire rope. It was now said that after the accident a Safety Preventative Actions Form had been completed by the defenders in which it had been stated inter alia that "...... employees should ensure that they have a secure grip of the wire so it does not strike back" and that "As this can be difficult it is wise to have more than one person carrying out the job .....".

[16] In his minute of amendment the pursuer proposed that the common law case of fault against Darren (now named Ross) previously in article 3 should be translated in an expanded version to article 5 and that the existing article 5 should become article 3. For the reference to regulation 5 of the Provision and Use of Work Equipment Regulations 1992 it was proposed that there should be substituted a reference to regulations 4 and 20 of the Provision and Use of Work Equipment Regulations 1998. The provisions of paragraphs (1), (2) and (3) of regulation 4 were said to be identical to those of the earlier regulation 5 (see paragraph [12] above). Regulation 4(4) was said to provide: "In this regulation 'suitable' means suitable in any respect which it is reasonably foreseeable will affect the health and safety of any person".

[17] The pursuer then proposed in his minute of amendment that a further passage should be inserted into article 3. This is the passage which was rejected by the sheriff, and it reads as follows:

Regulation 20 provides:

20. Every employer shall ensure that work equipment or any part of work equipment is stabilised by clamping or otherwise where necessary for purposes of health or safety.

The said clamping machine was work equipment for the purposes of said regulations. It was not suitable to be used to carry out the operation of making said Flemish Eyes. There was no means of securing the wire in position whilst it was being spliced. As hereinbefore condescended upon it was reasonably foreseeable that there was a risk that the strand of wire rope being spliced would spring back and strike an employee. It was reasonably foreseeable that its use for said operation would affect the health and safety of a person. Said machine was not constructed as to be suitable for said use. It was used under conditions and for an operation for which it was not suitable. Said wire rope was work equipment. It was not stabilised by clamping or otherwise. This was necessary for the purposes of health and safety.

[18] In his minute of amendment the pursuer went on to propose that in article 4 the common law case of fault against the defenders based on their alleged failure to devise a safe system of work should be deleted and that the case previously in article 6 under the Manual Handling Operations Regulations 1992 should be translated to article 4. Various other minor amendments to this particular case were proposed, the details of which need not be noticed here.

[19] In the proposed new article 5 there were the same averments as before to the effect that Darren (now named Ross) had been under a duty to retain hold of the strand of wire and not to release it until it was safe to do so. In addition it was said that, esto he could not keep hold of it and it slipped from his grasp, it was his duty to take reasonable care to shout a warning to his fellow employees that the rope was slipping. It was said that he had failed in this duty too.

[20] Finally in his minute of amendment the pursuer proposed certain other alterations, including a revised version of the injuries sustained by him in the accident and their subsequent effect upon him. For present purposes it is unnecessary to rehearse these.

[21] In his note of appeal the pursuer asserted in the first place that the sheriff had erred in law in holding that the passage referred to in paragraph [17] above introduced a new case and was time-barred. It was said that the sheriff had not properly considered the issue of limitation in terms of the 1973 Act and that he had misdirected himself, not having applied the proper test as laid down in Cork v Greater Glasgow Health Board. In the second place it was said in short that the sheriff had erred in his consideration of the issue of prejudice, both to the pursuer and to the defenders. In point of fact it is clear from the note which he appended to his interlocutor dated 11 October 2004 that the possibility of prejudice to the pursuer was not put to the sheriff so that the only prejudice to the pursuer of which he was aware at the time of his decision was, as he described it, "the ever present one in a case such as this that the pursuer would be deprived of the opportunity to run an additional argument if the amendment was not allowed". When she came to address me at the appeal, I did not understand counsel for the pursuer to maintain that there would be any particular prejudice to the pursuer in the event of his amendment being refused beyond that referred to by the sheriff. As for the defenders, it was evidently submitted to the sheriff that there would be a prejudice to them if the amendment were to be allowed. But at the hearing of the appeal the defenders' solicitor made it plain that it was no longer maintained on their behalf that, on the assumption that the proposed amendment did not constitute a new case against them, it should nonetheless be refused on account of the prejudice that would be sustained by them if it were to be allowed.

[22] In his note of appeal the pursuer asserted in the third place that the sheriff's decision was "manifestly inequitable". No attempt was made to specify the basis of this bald assertion. But it may be that counsel for the pursuer had this particular ground of appeal in mind when she referred me to the history of the case. She explained that the original adjustment period had expired on 7 April 2004 and that unfortunately the adjustments for the pursuer which had subsequently been incorporated in his minute of amendment had not become available until 9 April 2004. These adjustments had been intimated to the defenders' agents on 14 April 2004 with a request that they should agree to the adjustments being received although late. On 16 April 2004 the defenders' agents had responded that they would not agree to this request. At the continued options hearing on 21 April 2004 the pursuer's motion to allow his late adjustments had been refused by the sheriff, it having been argued for the defenders that, if they were allowed, it would not be possible to raise the issue of time-bar. This issue, so I understood counsel to maintain, would never have been amenable to argument at all if the pursuer's adjustments had been intimated to the defenders' agents one week earlier than they were, namely on 7 April 2004 rather than on 14 April 2004. But I did not understand counsel to suggest that this would be a reason for allowing the disputed amendment even if this did create a new case against the defenders.

[23] At the appeal the sole issue between the parties thus came to be whether or not the disputed passage in the pursuer's minute of amendment did indeed introduce a new case against the defenders and so was time-barred in terms of the 1973 Act. Counsel for the pursuer submitted that the conclusion of the sheriff to the effect that the passage in question had this effect was unreasonable with the result that the sheriff had erred in law and had not properly exercised his discretion so that the matter could be considered afresh on appeal. In this event it was submitted that the interlocutor of the sheriff dated 15 September 2004 should be recalled and an interlocutor pronounced allowing the record to be opened up and amended in terms of the pursuer's entire minute of amendment and the defenders' answers thereto, all as adjusted. Counsel drew attention to the four cases to which I have referred above and suggested that the pursuer had always had a case against the defenders on the basis that there had been an unsafe system of work at the time of the accident. In his pleadings in their unamended form the pursuer had averred that the defenders had failed to devise a safe system of work and also to prevent the release of the wire strand which had struck the pursuer. In addition, in terms of the original articles 5 and 6 there had been cases against the defenders based upon regulation 5 of the Provision and Use of Work Equipment Regulations 1992 and regulation 4 of the Manual Handing Operations Regulations 1992. Thus it had always been the case that the pursuer had been hit by the wire strand and that the defenders had failed to take appropriate steps to prevent the release and movement of the wire and further that work equipment (namely the wire) had been used in circumstances in which it was unsuitable and that there had been a breach of the Manual Handing Operations Regulations 1992. In the disputed passage in the pursuer's minute of amendment two new cases were made against the defender, namely (1) that the use of the clamping machine had been a breach of regulation 4 of the Provision and Use of Work Regulations 1998, and (2) that the operation involving the wire rope had been in breach of regulation 20 of the same Regulations. These two cases, so it was submitted, were simply an expansion of the pursuer's case based on the facts already averred by him and bore a relationship to the averments in the original article 4 to the effect that the defenders had been under a duty to prevent the release and subsequent movement of the wire strand. Thus the two cases which were sought to be introduced in the passage in question did not constitute a radical alteration to the pursuer's original case and so were not time-barred.

[24] In response, the defenders' solicitor invited me to adhere to the interlocutor of the sheriff dated 15 September 2004 and to dismiss the appeal accordingly. He submitted that there was nothing in the circumstances of the present case to suggest that the sheriff had fallen into error in the exercise of his discretion in dealing with the issue of amendment. In its original form, the pursuer's case had essentially been that an employee of the defenders had let go of the wire strand in question with the result that it had struck the pursuer. In the original article 2 no issue had been raised in relation to the sufficiency or otherwise of any piece of machinery involved in the operation. Likewise, in the original article 4 the allegation had been that the defenders had failed to provide a safe system of work, not that they had failed to provide safe plant and machinery. In the original article 5 the work equipment referred to had been the wire strand which had struck the pursuer, and the basis upon which it had not been appropriate had not been explained. As for the original article 6, this had simply been a regurgitation of the regulations in question with more or less no detail as to the manner in which the defenders had been in breach of these regulations. In his minute of amendment the pursuer had added some more details in article 2 about how the operation in question had been carried out but the fundamental cause of the accident had remained the same, namely that the wire strand had been released by the defenders' employee. Even in the amended form of article 2 there were no factual averments to suggest that the pursuer might have a case against the defenders based upon the adequacy or otherwise of the machinery involved in the operation. In the note appended to his interlocutor dated 15 September 2004 the sheriff had correctly identified the two new statutory cases which the pursuer was seeking to introduce in the passage under consideration. The sheriff had been unable to identify any factual averments in the pursuer's minute of amendment which might support these two new statutory cases. Far from being merely developments of the pursuer's existing case on record, the sheriff had been entitled to find that these were indeed new cases which were time-barred. In summary so it was submitted, the sheriff had correctly analysed the pursuer's pleadings, existing and proposed, had applied the correct test and had reached a result that could not be criticised in such a way as to allow an appeal court to interfere with his exercise of discretion.

[25] In my opinion the submissions for the defenders are to be preferred. The critical question here is whether or not the amendments proposed by the pursuer in the passage in question did, or did not, in the words of Lord Justice Clerk Cooper in Pompa's Trustees "change the basis of his case". As was pointed out in the opinion of the court in Hynd v West Fife Co-operative, "Whether a particular case will fall on one side of the line or another is inevitably one of degree". Furthermore, to borrow the language in the opinion of the court in Cork v Greater Glasgow Health Board, "a wide range must be given to the (sheriff's) discretion in considering matters such as whether or not particular averments go to the root of the party's case". As already noted, the averments in the passage in question sought to introduce two new grounds of fault against the defenders. The first of these concerned the clamping machine, the use of which was said, in short, to have been in breach of regulation 4 of the 1998 Regulations. I have already drawn attention to the fact that the clamping machine merited only a passing reference in the pursuer's averments in their original form and until his adjustments were intimated to the defenders on 14 April 2004 they had had no hint that it was to be suggested that there was anything wrong with this machine such that they required to carry out any investigation in relation to it. In my opinion the sheriff was perfectly entitled to find that the alleged breach by the defenders of regulation 4 of the 1998 Regulations in relation to the clamping machine did indeed constitute a radical alteration by the pursuer to his original case.

[26] As for the supposed breach of regulation 20, this appears at first blush to relate only to the wire rope which is said to have been work equipment. The pursuer's complaint here is that it was not stabilised by clamping or otherwise and that this was necessary for purposes of health and safety. But, given his acceptance from the outset that the operation upon which he was engaged at the time of his accident involved the use of a clamping machine (or vice as the defenders called it) in which the wire rope was held in order to form the Flemish Eye, it is implicit in this new complaint that there must have been something wrong with the clamping machine as a means of stabilising the wire rope. So the position here was essentially the same as in the case of the new complaint under regulation 4. Once again it was being said for the first time that the clamping machine was inadequate to the task upon which the pursuer and his colleagues were engaged at the time of his accident. Accordingly the sheriff was in my opinion quite entitled to find too that the proposed case based upon a breach of regulation 20 constituted a radical alteration to the pursuer's original case.

[27] Upon the whole matter I am not persuaded that there was any error on the part of the sheriff in refusing to allow amendment of the pursuer's pleadings in terms of the aforementioned passage in his minute of amendment. I have therefore adhered to his interlocutor dated 15 September 2004.

[28] I did not understand there to be any dispute that the defenders should be found entitled to the expenses of the appeal in the event of success.


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