Our Scottish Casualty team have had a busy first half of the year. As we enjoy the last of the summer months, we have been reflecting on what the team has achieved for our clients. This article offers a summary of those successes, together with some insights as we look forward.
We continue to support clients with the defence of contentious cases to proof (trial) in both employers and public liability claims. Since the last update in December 2022, the team has secured four further successes at proof for our clients. In all but one of the cases so far in 2023, the specialist Personal Injury Court has issued ex tempore (and so, unreported) decisions in our clients’ favour.
No employers’ liability for ice slip – One of our supermarket clients defended an action to trial. The employee claimed to have slipped on ice on a pallet. He alleged that he had been working in the cold store and that as he reached forward to pick up a box suddenly and without warning, the pallet slipped from underneath him.
Our position was that the claimant had failed to prove what he slipped on or even what caused him to fall. It was telling that in evidence, the claimant did not seek to argue there was ice on the pallet. But rather, he suggested that Ice had formed under the pallet. The claimant also urged the court to accept that his memory of events at the hearing should be preferred over his contemporaneous written statements.
A decision was taken not to lead evidence on behalf of the defender. This case was a reminder that the claimant must set out a case and take steps to prove it. In most cases, for the types of claims we deal with, the claimant must prove negligence.
No employers’ liability for falling object – This was another claim in which we recommended against leading evidence to rebut the claim. The claimant in this case worked for a hardware company. Part of her duties involved cutting work tops to customer specifications. In this case she alleged that she had been tasked with cutting a worktop and that, following the cut, it had fallen from the saw and struck her.
The claimant contended that she ought to have been trained to ensure the material on the saw was secure following a cut. This sat somewhat uncomfortably with her acceptance that she had been trained to ensure the material was secure prior to the cut and before beginning a new cut. The defender decided not to lead evidence on the basis that the claimant was unable to prove what had caused the material to fall, or what the employer could reasonably have been expected to do which would have prevented the accident. The court agreed on both counts.
No public liability for customer volunteering to assist with lift – The claimant in this case was a customer at a hardware store. He alleged that he was injured after bag of compost he was carrying with a member of staff was unexpectedly dropped by that member of staff.
The claimant’s evidence in court differed to his case in his written pleadings, and his evidence in respect of the accident mechanics was insufficiently detailed. For a third occasion, no evidence was led by the defender. The court held that the factual matrix the claimant proved (at proof) neither established a duty of reasonable care on the part of the defender or, more fundamentally, that any such duty of care had been breached by the defender.
The claimant initially appealed to the Sheriff Appeal Court. At our request, the Sheriff Appeal Court fixed a competency hearing. Prior to the hearing, the claimant abandoned his appeal and agreed to pay the defender’s wasted expenses.
As practitioners, we need to be cognisant of the trends from court. The common thread in liability claims continues to be the standard of the duty to take reasonable care. Claimants must now prove that the actions or inaction of the employer amounted to a failure to take reasonable care and that the failure was causative of the injury claimed. In a large number of our cases the claimants have fallen short, usually due to the absence of evidence to point towards the reasonable standard (and why it was not met).
Going forward it is also interesting to track the trend of ex tempore decisions. A lack of reported cases might be seen as stalling the development of the common law. Parties also wait with bated breath for further informative decisions on QOCS which remains a new and relatively untested procedure in Scotland.
If you would like to know more, please get in touch with:
David Hennessy - Partner
John Stringer - Solicitor
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