Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 125
PD1695/09	OPINION OF LORD MALCOLM in the cause JONATHAN TONER Pursuer; against GEORGE MORRISON BUILDERS Defender: ­­­­­­­­­­­­­­­­­________________

Pursuer: Young, Q.C., Louise Milligan: Digby Brown LLP

Defender: Love, Advocate; HBM Sayers

16 September 2010

[1] Most of the salient facts in this case are not in dispute. For reasons which I will explain, I do not consider it necessary to resolve those issues of fact which are controversial. The defender is a joiner and is in business with his son. He was asked by the owner to carry out certain renovation works at a property at 7 Charlotte Street, Ayr. The defender was to be responsible for all the work, including that done by electricians, plumbers, plasterers etc. He used people that he knew. The pursuer is an experienced slater/roofer who works for another company. He does work on his own account out of hours, sometimes called "homers". He had done such work for the defender's partner. The defender asked him to carry out certain work on the property at 7 Charlotte Street. This involved the slating of a new velux window and the installation of roof vents on an extension at the rear of the subjects. This required the pursuer to work at height on the roof of the extension. The pursuer agreed to do the work and he enlisted the assistance of a colleague, Blair Fulton. The pursuer was to be paid a small amount per roof vent, which he would then split with Mr Fulton.

[2] When they arrived to do the work they found that a short metal ladder with a loose piece of wood attached at an angle by way of a clamp had been placed on the roof beside the velux window. This was a makeshift form of ladder intended to be used by hooking the piece of wood over the apex of the roof. It was not in dispute, and in any event it was obvious that this ladder was unsuitable and dangerous. An expert instructed by the pursuer described it as a "cobbled-together arrangement". His report gives further details of the ladder and the contrast between it and a safe roof ladder. He explained that the clamp could not be expected to bear the weight of a man. Were it to be seen by an HM Health and Safety Inspector it would probably lead to a prosecution. The pursuer used this ladder when working on the roof. After some of the vents had been installed, the piece of wood came loose and both the ladder and the pursuer fell to the ground. As a result the pursuer sustained injuries for which he now seeks damages from the defender. The only issues which I am asked to resolve are liability and, if appropriate, any degree of contributory negligence on the part of the pursuer. While the pursuer pleads a case at common law, his counsel, Mr Young QC, focused on the statutory cases based upon breach of a number of regulations relating to work at height and to the safety of work equipment.

[3] The defender explained that although he had constructed the ladder and placed it on the roof, it was there only for the purpose of him fitting a windshield to the velux window, which never came, and that the ladder was for his use alone. In cross‑examination he said that he had given a similar instruction to his workmen, though one of them told the court that he had used it. The defender stated that he had told the pursuer not to use the ladder. This was denied by the pursuer. The defender expected the pursuer to use his own equipment (or that of his employer). During his evidence the defender struggled to explain why he told the pursuer not to use the ladder. It was clear that he did not want to concede that it was unsafe, though that would be the obvious explanation for any such instruction. In cross-examination the defender was unable to give any satisfactory explanation as to why he allowed the ladder to remain on the roof. On a number of occasions I formed the impression that the defender was being evasive and that his evidence lacked candour. The defender accepted that he could not know for sure whether the pursuer would or would not use the ladder.

[4] There were some factual issues in dispute, notably whether the defender prohibited or, as the pursuer would have it, encouraged the use of the ladder. However the issue of breach of the regulations can be tested in the first instance on the basis of the defender's account of events. In addition, for present purposes it is sufficient if the matter is examined in the context of only one of the regulations relied upon by the pursuer. If on the defender's version of events there was a breach of the regulations, then this leaves only the question of contributory negligence. The pursuer's common law case would not arise.

[5] Regulation 4 of the Provision and Use of Work Equipment Regulations 1998 provides that the requirements imposed by the regulations on an employer in respect of work equipment shall apply to such equipment provided for use or used by an employee of his at work. Sub-section (3) provides that the same requirements apply to a person who (in connection with the carrying on of a business) has control to any extent of (i) work equipment, (ii) a person at work who uses or supervises or manages the use of work equipment, or (iii) the way in which work equipment is used at work, and to the extent of his control.

[6] The short submission on behalf of the pursuer was that the defender had control over the relevant work equipment, namely the ladder, in the context of his business. He left it on the roof available for use. His claimed prohibition on its use demonstrated the necessary element of control over the ladder. Regulation 4 provides that "every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided". It was clear that the ladder was not suitable for purpose and as a result the pursuer fell from the roof while fixing the vents. The defender was under a duty to ensure that the ladder was only used for matters for which it was suitable. However, the defender left it on the roof knowing that men would be working on the roof. Even if the defender had told the pursuer not to use the ladder, the statutory case was made out.

[7] The equally short submission for the defender, presented by Mr Love, was that, while it was accepted that the ladder was not suitable in terms of Regulation 4, the pursuer was an independent contractor. The defender instructed the pursuer not to use the ladder, and so liability should not attach to the defender. He had no control over how the pursuer carried out the work.

[8] The difficulty for the defender is that Regulation 4 applies to anyone with a relevant degree of control of the unsuitable work equipment. On any view the pursuer had such control. It was his ladder. He made it and he was directly responsible for its unsuitability for the purpose for which it was designed. He placed it on the roof. He could have removed it, but did not do so. He left it available for use by the pursuer and others. In any event, the whole circumstances, including the claimed prohibition on the use of the ladder, indicate that the defender had the right to control whether the ladder was or was not used by the pursuer during his work on the roof. However he took no effective steps to prevent its use. In my view there was a clear breach by the defender of Regulation 4 of the 1998 Regulations which led to the accident.

[9] The authority relied on by Mr Love was Mason v Satelcom Limited and Others [2008] EWCA Civ 494. However the facts of that case were very different from the present. In Mason it was clear that the owners' control of the ladder did not extend to the purpose for which it was used by the claimant. As Longmore LJ said at paragraph 15, the owners "could not know or reasonably anticipate that Mr Mason would use a perfectly ordinary ladder for a purpose for which it was never designed". The same cannot be said in the present case.

[10] In the circumstances it is not necessary to discuss the pursuer's case based on breaches of the Work at Height Regulations 2005 and of the Construction (Design and Management) Regulations 2007, though, if necessary, I would have upheld Mr Young's submission that even the claimed prohibition on use of the ladder would have demonstrated the necessary element of control on the part of the defender, and that in the whole circumstances there was a breach of those regulations. (Control was the only issue in dispute under the regulations).

[11] As to contributory negligence, even if he was encouraged to use the ladder by the defender, it must have been obvious to the pursuer that he should not do so. He is an experienced roofer and the dangers of using such a makeshift device would have been readily apparent. The risks would be even greater when the ladder was used along the extension roof away from the main building. The pursuer defended his decision to use the ladder by claiming that he had tested it (Mr Fulton spoke of testing the ladder by both of them using it at the same time!) and that overhead cables prevented the use of the suitable but longer ladders in his van. This latter point was in dispute, but even if true it hardly excuses such obvious folly on the part of the pursuer. Whatever the content of any conversations between him and the defender about the ladder, the pursuer must take substantial responsibility for the accident. I consider that the relative responsibilities of the two parties would be properly addressed if I assess the degree of contributory negligence on the part of the pursuer at 50 per cent. I would not increase this allocation if the pursuer was told not to use the ladder, nor would I decrease it if he was encouraged to do so. It follows that I need not resolve the dispute as to what, if anything, was said between the parties about the ladder. If I had been forced to decide that issue I would have been influenced by my adverse views as to the defender's credibility and reliability, and by a concern that it seems too convenient that two of his employees, who were busy doing other things, just happened to overhear this one part of the conversation.

[12] While it was made plain that I need adjudicate only on the above issues, I am uncertain as to the order which parties would now wish the court to make. Reserving meantime the matter of expenses, I shall have the case put out by order in the event that parties fail to reach agreement on the form of an appropriate interlocutor.