McIlwraith against Blue Vale Structures LTD (Court of Session)

Factual and Procedural Background

The Plaintiff, a diabetic demolition worker, required a below-knee amputation of his right leg and sought damages from his employer, Company A, alleging that the injury was caused by the employer's breach of common law duty and health and safety regulations. The core factual dispute concerned whether the Plaintiff’s amputation was caused by his feet being wet during his employment at a demolition site following a roof collapse. The Plaintiff claimed to have worked standing in stagnant water on the Site for several days, wearing non-waterproof boots provided or reimbursed by the employer, which led to maceration, ulceration, infection, and ultimately amputation.

Procedurally, the proof was scheduled to commence on 18 June 2024. Shortly before, the Plaintiff sought to amend the pleadings to reflect a different timeframe for the injury, which was opposed by the Defendant as late and prejudicial. The court allowed the amendment motion to be received but the Plaintiff did not pursue it at proof, proceeding on the original record. Evidence was heard subject to objections about relevancy and competency, particularly concerning the dates of the alleged injury.

The Plaintiff’s pleadings originally stated the injury occurred between 28 May and 1 June 2018, while the evidence showed the Plaintiff worked with wet feet on 9, 10, and 11 May 2018, after which he purchased waterproof boots. The court found the evidence of standing in water on 9-11 May admissible as a variation of the pleaded case and made factual findings supporting the presence of standing water and wet feet during that earlier period. The Plaintiff presented multiple witnesses, including himself, a site project and health and safety manager, a health and safety consultant, a photographic evidence custodian, and a vascular surgeon. The Defendant called a site supervisor as a witness.

At proof, the court heard detailed evidence about the Site conditions, the Plaintiff’s footwear and working conditions, and medical evidence addressing causation, particularly the role of Immersion Foot Syndrome in the Plaintiff’s injury. The Defendant challenged causation, arguing the Plaintiff’s diabetic condition was the likely cause of the amputation.

Legal Issues Presented

1. Whether the Plaintiff’s injury was caused by exposure to wet conditions at work, specifically standing in water while wearing non-waterproof boots, constituting a breach of the employer’s duty of care and health and safety regulations.
2. Whether evidence of the injury occurring on dates earlier than those pleaded was admissible as a variation or required amendment of the pleadings.
3. Whether the Plaintiff proved causation on the balance of probabilities given the complex medical background of diabetes and multiple possible causes for amputation.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff argued that the injury was caused by working in standing water with wet, non-waterproof boots over several days, leading to Immersion Foot Syndrome, ulceration, infection, and amputation.
• The Plaintiff contended that the evidence of working in water on 9-11 May was admissible as a variation of the pleaded case and did not require formal amendment of the pleadings.
• The Plaintiff submitted that the Defendant breached common law duties and health and safety regulations by failing to provide adequate risk assessment, waterproof footwear, and proper drying facilities.

Defender's Arguments

• The Defendant objected to the admissibility of evidence relating to dates outside the pleaded period (28 May to 1 June), arguing that the change was a new, separate, and distinct case causing prejudice.
• The Defendant maintained that the pleadings had remained unchanged for years and that the Defendant had prepared its case on the basis of the original dates, with some witnesses unavailable due to the date change.
• On causation, the Defendant argued that the Plaintiff’s diabetic condition was the most likely cause of the ulceration, infection, and amputation, and there was no evidence that wet feet caused the injury.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Burns v Dixon's Iron Works Limited 1961 SC 102	Distinction between a variation/modification of a case and a new, separate, and distinct case requiring amendment of pleadings.	The court applied this principle to allow evidence of a variation in dates without requiring formal amendment, as the factual and legal basis remained the same.
Cleisham v British Transport Commission 1964 SC (HL) 8	Similar to Burns, concerning pleadings and amendments.	Supported the court’s approach to treating the date change as a variation rather than a new case.
O'Hanlon v John G Stein & Co Limited 1965 SC (HL) 23	Principles on pleadings and evidence variations.	Used to justify the admissibility of evidence despite the date change.
Hamilton v John Brown and Co (Clydebank) Limited 1969 SLT Notes 75	Further authority on pleadings and variations.	Reinforced the court’s position on admitting evidence without formal amendment.
McCuskar v Safe Heat Cavity Wall Insulation 1987 SLT 24	Pleadings and fair notice principles.	Considered in assessing whether the Defendant had fair notice of the case.
McCluskey v Wallace 1998 SC 711	Fair notice and pleadings.	Supported the court’s conclusion that the Defendant was not prejudiced by the date variation.
Esso Petroleum Co v Southport Corp [1956] AC 218	Function of pleadings is to give fair notice.	The court balanced fair notice against prejudice in deciding admissibility of evidence.
D v Amec Group Limited [2016] CSOH 176	Fair notice depends on circumstances.	Considered in the context of fair notice to the Defendant regarding the injury dates.
Baillie v ECG Group Limited [2005] CSOH 40	Fair notice and procedural fairness.	Used to assess prejudice and fair notice in pleadings.
Morrisons Associated Companies Limited v James Rome & Sons Limited 1964 SC 160	Fair notice and pleadings.	Applied in evaluating the Defendant’s objection to the date change.
Kennedy v Cordia (Services) Limited 2016 SC (UKSC) 59	Qualification and admissibility of expert witnesses.	The court accepted the Plaintiff’s health and safety consultant as a qualified expert witness.

Court's Reasoning and Analysis

The court carefully examined the pleadings, evidence, and legal submissions regarding the admissibility of evidence relating to injury dates. It found that the change in dates from late May to early May was a variation, not a new cause of action, as the factual and legal basis remained consistent. The Defendant was deemed to have had fair notice of the conditions at the Site, supported by witnesses on both sides and photographic evidence. The court rejected the Defendant’s objection to the evidence on the ground of prejudice, noting that potential defense witnesses had not been called and that the Defendant had investigated the original allegations.

On causation, the court considered the medical evidence, particularly from the Plaintiff’s vascular surgeon expert, who opined that working in a wet environment with inadequate footwear likely caused Immersion Foot Syndrome leading to ulceration and infection. However, the court found that the Plaintiff failed to prove this on the balance of probabilities. The Plaintiff’s feet were wet only intermittently for a few days, with dry periods overnight, inconsistent with the continuous soaking required for Immersion Foot Syndrome. There was no evidence of visible ulceration until the hospital presentation, and symptoms like pins and needles were longstanding diabetic issues. The court found no causal link between the wet feet at work and the amputation.

Consequently, the court concluded that the injury was not caused by the Plaintiff’s wet feet at work but was more likely attributable to the Plaintiff’s diabetic condition and its complications.

Holding and Implications

The court’s final decision was to GRANT DECREE OF ABSOLVITOR, dismissing the Plaintiff’s claim for damages.

The direct effect of this decision is that the Plaintiff’s claim against the Defendant for breach of common law duty and health and safety regulations fails due to lack of proof of causation. The court did not establish any new legal precedent; the ruling primarily applied established principles on pleadings, admissibility, and medical causation in the context of occupational injury and diabetes-related complications.