Factual and Procedural Background
The Plaintiff was employed by the Defendant Company B as a large goods vehicle driver since June 2013. Company B, a recruitment agency, supplied drivers to Company A, which operated a regional distribution centre at Bellshill. On 16 October 2015, while employed by Company B, the Plaintiff was driving a truck carrying goods loaded by employees of Company A. During transit, the Plaintiff braked sharply, causing concern that the load had shifted. Upon arrival at Company A's supermarket in Bishopbriggs, the Plaintiff informed Company A's forklift driver of the potential load movement. The Plaintiff entered the trailer without instruction to assist with stabilising a pallet that had slipped. While attempting to move the pallet using a manual pallet truck, the pallet struck the Plaintiff’s foot, causing him to fall and sustain a serious injury.
The Plaintiff had received training from Company A regarding unloading procedures, which stated that drivers were not required to assist with unloading and should remain in a safe position. Company B provided no training. The Plaintiff settled with Company A for £110,000 in December 2019, which Company A paid in January 2020. The Plaintiff continued proceedings against Company B, who contested liability and argued the settlement with Company A discharged their obligation.
The case proceeded to proof against Company B in January 2025. The Sheriff Appeal Court had previously held that the settlement with Company A did not dispose of the claim against Company B. The court considered evidence from the Plaintiff, health and safety consultants, and representatives of Company B.
Legal Issues Presented
- Whether Company B owed and breached a common law duty of care to the Plaintiff as their employer.
- Whether the settlement between the Plaintiff and Company A discharged Company B’s liability.
- The scope and content of the duty of care owed by Company B to the Plaintiff.
- Whether the Plaintiff was acting in the course of his employment at the time of injury.
- Whether contributory negligence applies to the Plaintiff’s claim.
- The appropriate quantum of damages payable by Company B.
Arguments of the Parties
Plaintiff's Arguments
- The Plaintiff was acting in the course of his employment when injured, as stabilising the load was reasonably incidental to his duties.
- Company B failed to carry out any risk assessment or provide training regarding unloading or load movement.
- There was no prohibition communicated by Company B preventing the Plaintiff from entering the trailer to assist.
- The settlement with Company A was only partial and did not discharge Company B’s liability.
- The common law duty of care owed by Company B was non-delegable, and they failed to ensure a safe system of work.
- The Plaintiff did not act negligently in entering the trailer and assisting with the load.
Defendant Company B's Arguments
- The Plaintiff accepted the £110,000 settlement from Company A as full and final satisfaction of all claims, discharging Company B’s liability.
- Company B owed a duty of care but relied on Company A to provide a safe working environment and training, which was Company A’s responsibility.
- Company B carried out annual health and safety checks with customers and did not undertake risk assessments themselves.
- The Plaintiff was not expected or authorised to be involved in unloading operations or to enter the trailer.
- The Plaintiff’s evidence that he had entered the trailer before was inadmissible due to lack of prior notice.
- If the Plaintiff was negligent in entering the trailer and using equipment he was not trained to use, contributory negligence should apply significantly.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Kennedy v Cordia (Services) LLP [2016] UKSC 6 |
Requirement for employers to carry out risk assessments; interpretation of health and safety regulations in common law duty of care. |
Used to confirm that Company B had a non-delegable duty to assess risks and that failure to do so could constitute breach of duty. |
| Kidd v Lime Rock Management LLP 2021 SLT 1499 |
Effect of settlement agreements on discharge of claims. |
Applied to assess whether the Plaintiff’s settlement with Company A discharged Company B’s liability; held it did not. |
| Gemmell v Scottish Ministers 2022 Rep LR 78 |
Failure to carry out risk assessment as indirect cause of injury; employer’s duty to provide safe systems of work and training. |
Supported the court’s analysis that Company B’s failure to risk assess was not causative as the risk did not arise in the course of employment. |
| Swierzko v Mathiesons Bakery 2024 SCLR 829 |
Role of health and safety regulations in informing common law duties. |
Approved as guidance that health and safety regulations inform but do not define common law duties. |
| McKie v Scottish Ministers 2006 SC 528 |
Costs orders where party acts unreasonably or abusively in litigation. |
Referenced in relation to awarding expenses against the Plaintiff for continuing proceedings after settlement. |
| Vaughan v Ministry of Defence [2015] EWHC 1404 (QB) |
Definition of “course of employment” for employer liability. |
Applied to determine whether the Plaintiff’s actions were within the scope of employment. |
| Smith v Stages [1989] AC 928 |
Acts reasonably incidental to employment fall within course of employment. |
Used to assess whether Plaintiff’s assisting with load was within employment scope. |
| Wilson v Exel UK Ltd t/a Exel 2010 SLT 671 |
Close connection test for course of employment, including unauthorised acts if closely connected. |
Applied to conclude Plaintiff’s entry into trailer was not authorised and not sufficiently connected. |
| Plumb v Cobden Flour Mills Co Ltd [1914] AC 62 |
Distinction between prohibitions limiting employment scope and conduct within scope. |
Considered in relation to unloading prohibition and Plaintiff’s activities. |
| Iqbal v London Transport Executive [1973] EWCA Civ 3 |
Employer’s liability for employee’s unauthorised acts within employment scope. |
Referenced in analysis of Plaintiff’s unauthorised involvement in unloading. |
| Kenny v Lightways (Contractors) Ltd 1994 SLT 306 |
Assessment of damages and inflation adjustments for personal injury claims. |
Used to guide quantum of solatium awarded. |
| Souter v Allarburn Holdings Ltd 1997 SCLR 587 |
Damages assessment for personal injury claims. |
Referenced for damages quantum guidance. |
| Noble v De Boer 2004 SC 548 |
Binding nature of procedural findings and limitations on precedent. |
Used to explain that prior appeal findings were not binding on current court. |
Court's Reasoning and Analysis
The court analysed the facts and legal principles focusing on whether the Plaintiff was acting in the course of his employment and whether Company B breached its duty of care. It was undisputed that Company B owed a non-delegable common law duty to the Plaintiff as their employer. However, the court found that the Plaintiff’s involvement in unloading the trailer was outside the scope of his employment because unloading was the responsibility of Company A, and Company B had a reasonable expectation that the Plaintiff would not be involved in such tasks.
The Plaintiff entered the trailer without instruction or training, arrogating to himself duties he was not engaged or authorised to perform. The court held that the risk which caused the injury was not one to which the Plaintiff was exposed in the course of his employment with Company B. Although Company B failed to carry out risk assessments or provide training, these failures were not causative of the injury because the Plaintiff was not expected to perform unloading tasks.
The court considered health and safety regulations, including PUWER, but concluded these informed rather than defined the common law duty. The court found no breach of duty by Company B in relation to risk assessment, safe system of work, or training regarding unloading.
Contributory negligence was assessed at 30%, as the Plaintiff voluntarily undertook an unauthorised and unsafe task without training. Regarding the settlement with Company A, the court accepted the Sheriff Appeal Court’s decision that the settlement did not discharge Company B’s liability. The Plaintiff’s acceptance of £110,000 was a compromise, not full satisfaction of all claims.
Quantum of damages was carefully assessed, including solatium and agreed heads of claim such as wage loss and pension loss. After applying contributory negligence and deducting the settlement amount, the court determined the remaining damages payable by Company B.
Holding and Implications
The court found Company B liable to the Plaintiff for damages in the sum of £56,818 inclusive of interest, subject to a 30% reduction for contributory negligence.
The court held that the Plaintiff was not acting in the course of his employment when entering the trailer to assist with unloading. Company B did not breach its common law duty of care by failing to risk assess or train the Plaintiff regarding unloading. The settlement with Company A did not discharge Company B’s liability.
The ruling clarifies the limits of employer liability where an employee undertakes unauthorised tasks outside the scope of employment. It reinforces that common law duties are informed but not defined by health and safety regulations. The decision also confirms that settlements with one party do not necessarily discharge claims against another joint wrongdoer unless explicitly agreed.
The court reserved expenses for further determination.