Jacqueline Donoghue v. Greater Glasgow Health Board & Laing O'Rourke Scotland Limited [2009] CSOH 115

In this action the pursuer, a porter at Glasgow Royal Infirmary, sought damages from the defenders, her employers, for an accident which occurred during the course of her employment when she slipped on loose stones on the stairs at the GRI and fell and injured her back. The basis of the pursuer's claim was a breach of the defenders common law duty to take reasonable care for the pursuer's safety and their breach of statutory duties in terms of Regulations 5 and 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 and section 2 of the Occupiers' Liability (Scotland) Act 1960. The defenders brought in a third party who, in 2004, undertook to construct a path leading to the top of the stairs on which the pursuer avers that she fell. The third party was also responsible for landscaping the area adjacent to the path. The defenders aver that the third party was in breach of the sub-contract which regulated the work in particular they failed to "exercise the reasonable skill, care and diligence to be expected of a properly qualified and competent engineer or other appropriate designer who is experienced in carrying out such services in relation to works of a similar scope, nature, timescale and complexity, and on a similar site at a similar location in the sub-contract works". The third party claimed that it was under no obligation to make payment to either the pursuer or the defenders. The third party avers that the defenders' averments against it are irrelevant and lacking in specification and that the action should be dismissed insofar as directed against the third party. At debate the defenders conceded that it was accepted that the pursuer would not have any right of action directly against the third party, however, that did not necessarily mean that the defenders had no claim against the third party. The defenders claimed against the third party in terms of Rule of Court 26.1(1)(b)(ii). Here the court considered whether the defenders' claim for damages for breach of contract against the third party was too remote, having particular regard to the gap in time between 27 May 2004 when the work was done by the third party and when the accident was said to have occurred on 27 April 2007, and should be dismissed.