England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Ct 10, St. Dunstan's House
		28th April 2005

HHJ Peter Coulson QC :

Introduction

1. By an action commenced on 7^th May 2004 the Claimant, Mr. Darren Milstead, seeks damages against the Defendants, Wessex Roofline Limited, as a result of injuries he suffered on 14^th May 2001 during the course of his employment by the Defendants. The claim is put by way of negligence and, following an application to amend the Particulars of Claim which I allowed at the outset of the hearing before me, for breach of statutory duty. By an order of Master Fontaine dated 1^st March 2005 it was directed that there should first be a trial on liability only. That hearing took place yesterday, 27^th April 2005, and was adjourned until today in order for me to hand down this judgment. I should say that that short hearing was conducted with skill and efficiency by both counsel, and I am also extremely grateful to them for their careful submissions.

Background

2. Mr. Milstead began work in the building industry in 1983 and until 1999 worked for a variety of small companies engaged in various aspects of construction. In May 1999 he was engaged by the Defendants as a fitter of their UPVC cladding, soffits, barge boards, fascias and guttering. He worked exclusively on domestic premises, which meant that from the outset he had to work with scaffolding and ladders on a daily basis. As he put it at paragraph 8.1 of his statement:

"I was very aware of the need to be especially careful in the use of ladders. During a normal day you would be going up and down the ladder regularly. Tying off the ladder was therefore a matter of routine for me. It was also a matter of routine for me to ensure that my trainee knew how to use ladders and to foot them when necessary, especially when the ladder was tied on at the beginning of the day and tied off at the end of the day."

3. It was clear that Mr. Milstead was careful in his work. At paragraph 8.2 of that same statement he said:

"I like to work slowly but carefully and I was keen to ensure that the job was done well to the client's satisfaction."

In his cross-examination he described himself as "a very careful person". That was borne out by the oral evidence of the trainee, Mr. Calder, who was working with him on the 14th May 2001 when the accident occurred. He described Mr. Milstead as "a perfectionist". Mr. Calder also said that Mr. Milstead always made sure that the work was done to a proper standard. He confirmed in his cross-examination that there was "nothing slapdash" about Mr. Milstead.

4. Mr. Calder was just eighteen in May 2001. He had been working for the Defendants for about a year. In his first few days with the company he had spent a certain amount of time looking at health and safety manuals, but he then went out with the Defendants' fitters to learn how to do the work safely. He had worked with Mr. Milstead on about six previous jobs over the previous four months.
5. On 14^th May 2001 Mr. Milstead and Mr. Calder were working at a house called 'Peveril' in Hockering Gardens, Woking where they were engaged in replacing and renewing the fascias, guttering and downpipes. It was, according to Mr. Milstead, "a typical job." Although much of what happened that afternoon is in issue (and I will return to my detailed findings later in this judgment), what is not disputed is that, at about 5 o'clock in the afternoon, Mr. Milstead was at the top of an unfooted and unsecured ladder when he fell, causing such damage to his right knee that he has been unable to work since the fall and can only walk with great difficulty and with the help of a knee brace and a walking stick.
6. On 15^th May 2001 Mr. Milstead was able to dictate a letter which his mother typed up and sent to the Defendants. That letter identified that an accident had happened and said:

"The incident occurred whilst coming down a ladder on site in Woking, the address of which you will be aware of. As a result of the accident an ambulance was called and I was taken to St. Peter's Hospital in Chertsey where the extent of my injuries were established."

The letter then went on to identify the full nature of Mr. Milstead's injuries, as they were then known.

7. Shortly after the accident a director of the Defendants, Mr. Clarke, went to see Mr. Milstead in hospital. By reason of the unfortunate death of his mother, Mr. Clarke was unable to attend court personally, but paragraph 5 of his written statement described that conversation as follows:

"I had gone to see the Claimant to see how he was. At no time during our conversation did the Claimant say that he had fallen off the ladder as a result of Andrew Calder, the trainee, walking away from the ladder and ignoring the Claimant's instructions. Although I cannot recall the exact conversation word for word, the Claimant did not state that anyone else was involved but that he had slipped and fallen."

When that point was raised during Mr. Milstead's oral evidence, he very fairly said that he had no memory of the conversation and described himself as being "pretty well doped up" at the time.

8. It appears that the first indication that Mr. Milstead was going to make a claim against the Defendants as a result of the injuries he sustained in his fall was by way of a lengthy letter sent by his solicitors to the Defendants and dated 22^nd December 2003, over two and a half years after the accident. This letter alleged that Mr. Milstead had gone up the ladder to untie the restraining rope at the top and that Mr. Calder, in breach of express instructions given to him by Mr. Milstead, had stopped footing the ladder and had gone back to the van, so that when the ladder was untied there was nothing to prevent it from losing its stability. The letter blamed the Defendants for Mr. Calder's default in ceasing to foot the ladder.
9. As noted above, the action was commenced on 7^th May 2004 shortly before the expiry of the three year limitation period. The delay in commencing the proceedings was a matter debated with Mr. Milstead in his cross-examination, and he accepted that his explanation for this, that he was in hospital for three months and "just wanted to get better", could not be a full explanation for the period between the fall and the commencement of these proceedings.

Principles/Law

10. Before coming on to consider the facts which are in issue, it is appropriate to set out the relevant principles of law which seem to me to apply in this case.

The Construction (Health Safety and Welfare) Regulations 1996

11. These regulations provide detailed rules, in clear language, as to what is and what is not safe practice on building sites. They were redrafted and reissued in 1996 because of the worryingly large number of deaths and serious injuries happening on such sites all over the country. The parts of the Regulations which are relevant to this case are Section 4, Section 6 and Schedule 5.
12. Section 4 is headed "Persons upon whom duties are imposed by these Regulations". Sub-section 4(1) reads:

"Subject to paragraph (5) it shall be the duty of every employer whose employees are carrying out construction work and every self-employed person carrying out construction work to comply with the provisions of these Regulations in so far as they affect him or any person at work under his control or relate to matters which are within his control."

Sub-section 4(3) reads:

"Subject to paragraph (5) it shall be the duty of every employee carrying out construction work to comply with the requirements of these Regulations in so far as they relate to the performance of or the refraining from an act by him.

13. Section 6 is headed "Falls". Sub-section 6(1) reads:

"Suitable and sufficient steps shall be taken to prevent, so far as is reasonably practicable, any person falling."

Sub-section 6(5) reads:

"A ladder shall not be used as or as a means of access to or egress from a place of work unless it is reasonable to do so having regard to

(a) the nature of the work being carried out and its duration, and

(b) the risks to the safety of any person arising from the use of the ladder."

Sub-section 6(6) reads:

"Where a ladder is used pursuant to paragraph (5):

(a) it shall comply with the provisions of Schedule 5 …."

Schedule 5 is entitled "Requirements for Ladders". Sub-section 1 is concerned with the stable, level and firm surface on which the ladder should rest. Sub-section 2 is important and relevant to these proceedings:

"A ladder shall …

(c) where it is of a length when used of 3 metres or more be secured to the extent that it is practicable to do so and where it is not practicable to secure the ladder a person shall be positioned at the foot of the ladder to prevent it slipping at all times when it is being used."

All references in this judgment to "footing" are to the positioning of a person at the foot of the ladder to prevent it slipping, as required by Schedule 5(2)(c) of the Regulations.

The Common Law

14. As to the relevant principles arising out of the Defendant's duty of care at common law to Mr. Milstead, the following seem to me to be applicable in the present case:

(a) The duty of care owed by an employer to an employee is non-delegable, so the employer must see that care is taken by whoever he employs. What is personal is not the actual performance of the duty but the responsibility for its bad performance: see Clerk and Lindsell on Torts (18^th edition, 2000), paragraph 7-215, and the decision of the House of Lords in Wilsons and Clyde Coal Co. v. English [1938] AC 57.

(b) The scope of the duty to see that reasonable care is taken extends to the provision of safe fellow employees, safe equipment, a safe place of work and a safe system of work: Wilsons and Clyde Coal (supra).

(c) An employer is vicariously liable for the torts of his employee if they are committed in the course of the employee's employment: Clerk and Lindsell (supra), paragraph 5-23.

(d) The taking of all reasonable care by the employer himself, as well as by the person engaged by him, constitutes a defence to a claim in negligence: James v. Hepworth & Grandage Ltd. [1968] 1 Q.B. 94.

15. In Boyle v. Kodak [1969] 1 WLR 661 the plaintiff fell from a ladder that he had mounted with the intention of lashing it to the top of an oil storage tank. There was an iron staircase on the side of the tank which would have given access to the top of the ladder, but the plaintiff was not instructed by his employers to use it. In the House of Lords (where the principal speech was given by Lord Diplock) the plaintiff's claim succeeded: their Lordships concluded that the employers owed a duty to instruct a skilled workman on the application of regulations which affected his work, even in situations where no danger was apparent. They found that, on the evidence, it was plain that a skilled craftsman might easily fail to appreciate the necessity of using the alternative means of access to reach the top of the tank to lash the ladder, and that, because the employers had not proved that they had done all that they could reasonably have been expected to do to ensure compliance with the regulations then in force, they could not avoid liability.
16. Before me, both counsel have identified as relevant to this case a lengthy passage in the speech of Lord Diplock, starting at p. 672. I have had regard to the entirety of Lord Diplock's speech and particularly the part from pp. 672 through to the end of his speech at 675. I shall simply identify two particular parts of his speech which seem to me to be of particular relevance. The first starts at p. 672.

"The plaintiff establishes a prima facie cause of action against his employer by proving the fact of non-compliance with a requirement of the regulation and that he suffered injury as a result. He need prove no more. No burden lies on him to prove what steps should have been taken to avert the non-compliance nor to identify the employees whose acts or defaults contributed to it, for the employer is vicariously responsible for them all. But if the employer can prove that the only act or default of anyone which caused or contributed to the non-compliance was the act or default of the plaintiff himself, he establishes a good defence. For the legal concept of vicarious liability requires three parties: the injured person, a person whose act or default caused the injury and a person vicariously liable for the latter's act or default. To say 'You are liable to me for my own wrong doing' is neither good morals nor good law. But unless the employer can prove this he cannot escape liability."

The second passage, a little further down p. 673, reads as follows:

"Since it is only through other persons that the employer can perform his duty of compliance with the requirements of the regulations it is incumbent upon him to ensure that all of those persons understand those requirements and their practical application to the particular work being undertaken and possess the skill and are provided with the plant, equipment and personnel needed to secure compliance. Although in the present case the necessary plant, equipment and personnel were provided for the plaintiff and he possessed the necessary skill the employers, who called no evidence, made no attempt to prove that they had taken any steps to ensure that the plaintiff understood the requirements of regulation 4 of the Building (Health, Safety and Welfare) Regulations 1948, or understood that in the particular circumstances of the work which he was undertaking these requirements would not be satisfied unless he lashed the ladder at the top to the rail of the tank before he mounted it.

It has been contended on their behalf that as the plaintiff was a skilled and experienced craftsman they were entitled to assume that he understood all these things. But however reasonable such assumption might be they would not escape liability unless they proved that the plaintiff did in fact understand them, although the reasonableness of their assumption if mistaken would be relevant to their share in the responsibility for the damage for the purpose of reducing the damages recoverable under the Law Reform (Contributory Negligence) Act, 1948."

17. In this case, Mr. Peebles on behalf of the Defendants argues that the plaintiff in Boyle v. Kodak succeeded in large measure because the employers called no evidence at all. He accepts that Lord Diplock made it plain that the employer must prove that any breach on his part was no more than that created by the injured employee, i.e. that the employer's breach and the injured employee's breach were co-extensive. But he argues that in this case, on the Defendants' version of the facts, Mr. Milstead knew exactly what was required of him; Mr. Calder was not in any way at fault; and there could be no grounds for contending that the Defendants had not done all that they reasonably could to ensure that the Construction Regulations were understood and put into practice by their employees. Mr Peebles accepts, as I have said, that this defence is only open to him on the version of the facts set out by the Defendants' witnesses. It would not be available on the Claimant's account of what happened, because, if the Claimant is right, his claim is based on a refusal or an omission on the part of an employee for whom the Defendants were vicariously liable. It is therefore appropriate now to turn to the facts to see if and how the principles in Boyle v. Kodak (and the other principles that I have outlined above) are relevant to the present case.

Mr. Milstead and Mr. Calder

18. I should make one general point at the outset of my consideration of the facts. I found Mr. Milstead to be a thoughtful witness who carefully considered the questions put to him before replying. He was patently honest. It was easy to see how he had acquired his reputation at work for being a perfectionist. Mr. Calder's demeanour, on the other hand, was not as careful or considered, and often when giving his evidence he did not listen or respond to the question that he was being asked, although I have no doubt that Mr. Calder was endeavouring honestly and truthfully to answer the questions being put to him. Of course, another important point of comparison between the two men is that Mr. Milstead was a much more experienced operative in this type of fitting work. His experience has been set out above. By contrast, Mr. Calder had only been doing the job for a year at the time of the accident and is now employed as a bricklayer. For those two reasons, where there is a direct conflict between their accounts, I generally prefer the evidence of Mr. Milstead to that of Mr. Calder.

Defendant's Training and Health and Safety Regimes

19. The on-the-job training and health and safety instruction provided by the Defendants was, in my judgment, typical of a relatively small building company. Although in both his cross-examination of Mr. Price and his closing submissions Mr. Weddell, on behalf of Mr. Milstead, made a number of criticisms of the Defendants' systems of safety and training, I do not believe that those general criticisms are justified. In my judgment, the best way of ensuring that new employees learn a particular job, together with the vital health and safety aspects of that job, is to ensure that they go out with the more senior employees for a period of induction and on-the-job training. That is how the Defendants operated and indeed, as Mr. Milstead made clear in his evidence, that was how he himself had learned to do the work both competently and safely. In a similar way, it seems to me that the system of spot checks by the management team, which the Defendants used regularly, was an entirely reasonable system by which they could check that work at a particular site was progressing both promptly and safely. I therefore do not accept the general criticisms that were made of the Defendants' safety and training regimes.
20. There was, however, one specific aspect of the Defendants' health and safety instruction which, at least in relation to Mr. Calder, did not appear to have been successful. That was concerned with the basic safety procedures relating to the use of ladders. I have already referred to Schedule 5(2)(c) of the Construction Regulations. That makes it crystal clear that a ladder of three metres or over must always either be secured at the top or footed at the bottom. There are no alternatives and there are no exceptions. Mr. Calder however repeatedly said in cross-examination that in his view footing was only necessary if the ladder in question was unsecured at the top and was resting on some sort of slippery surface. At one point he said that if the ground was safe the ladder "was not going to go anywhere" even if it was not secured at the top. This view led him to say that the untied ladder from which Mr. Milstead fell did not need to be tied; in his words, "You wouldn't tie that". Such a view was most definitely not in accordance with the Construction Regulations set out above and, as we shall see, may have been one factor in the events on 14^th May 2001.

The Situation at about 5 o'clock on 14^th May

21. There was a dispute about the ground surface at 'Peveril' where Mr. Milstead and Mr. Calder were working on 14^th May. In his evidence Mr. Calder suggested that the drive was made up of pea shingle and Mr. Price, who saw it after the event, said the same thing. That was, as far as I could tell, the first time that such a suggestion had been made. Mr. Milstead, on the other hand, said that the drive was made up of pavings as shown in the photographs. That recollection might be thought to be supported, at least broadly, by Mr. Calder's original description of the surface as "flat concrete". I find therefore, to the extent that it is relevant, that the bottom of the ladder was resting on a relatively flat surface, albeit one which sloped slightly downwards away from the garage and past the front door of the house. It seems to me that, in truth, the only (marginal) relevance of this finding is that some wedges were required at the bottom of the ladder to compensate for this slight slope.
22. There was a big debate about scaffolding. Mr. Milstead said that there was scaffolding up on the left-hand side of the house (as viewed from the drive) and that the ladder was tied to that scaffolding for the work that day. That is disputed by Mr. Calder and to an extent by Mr. Price. Mr. Price said that when he viewed the house some days later the scaffolding was on the right-hand side of the house. That was also apparently where Mr. Calder said the scaffolding was at the end of 14^th May, in the vicinity of the gable to the right of the front door of the house.
23. It is clear on the evidence that some scaffolding was in place at the house at the end of the day on 14^th May. The dispute as to where precisely that scaffolding was may not matter very much for this reason. Mr. Milstead said that his fall from the ladder happened when the ladder was untied from the scaffolding which, as I have said, he maintained was on the left-hand side of the front door of the house. Mr. Calder said that the fall from the ladder which he saw happened on the right-hand side of the front door in the vicinity of the scaffolding which he said remained in place. In other words, both men were saying that, wherever the scaffolding was, the ladder was positioned, and the fall happened, in the vicinity of that scaffolding. That may be important for a reason which I will come to.

Length of Ladder

24. I find that the ladder was in excess of three metres in length. It is not disputed that the vertical distance from the ground to the top of the porch at the front of the house is 2.77 metres. Mr. Calder's evidence was that the ladder projected beyond that by at least 12 inches, or another 30cm. That would give a vertical distance of just over 3 metres. In addition, the ladder would of course be running at an angle to the vertical. Therefore its length would have been longer than the simple vertical measurement. Therefore on the evidence it is plain that the ladder was in excess of 3 metres in length and Schedule 5(2)(c) of the Construction Regulations was triggered.
25. There was a debate about whether Mr. Milstead was using the longer or the shorter of the two ladders which he had on site at the time. That seems to me to be an irrelevant dispute, since what matters is the length of the ladder that was actually being used when Mr. Milstead fell. As I have found, that was in excess of three metres.

Packing Up

26. At about 5 o'clock on 14^th May Mr. Milstead and Mr. Calder were packing up for the day. There was a suggestion during Mr. Calder's cross-examination that he was in some sort of a hurry because he was attending football training. I am bound to say that the evidence does not support that and I have seen nothing to suggest that when the packing up was going on there was any particular need or requirement for undue haste. The last things that needed to be done at the end of that day, in addition to the general tidying up, were the bringing down of the tools from the scaffolding, the untying of the ladder and the putting away of the ladder. I find that, whichever side of the front door the scaffolding was, the ladder was tied to that scaffolding until the end of the day when Mr. Milstead went up to untie it.

Instructions from Mr. Milstead

27. Mr. Milstead said that he wanted to get the tools down from the scaffolding and then to untie and store the ladder. He said that he instructed Mr. Calder to foot the ladder whilst he carried out those tasks. During his evidence in chief he was asked what he had done or said. He said that he had asked Mr. Calder to foot the ladder. He said he had told Mr. Calder that he was going to untie the ladder. He said he was passing the tools down to Mr. Calder, and he said he stayed on the ladder when he was telling Mr. Calder to foot it. In answer to that instruction, he said that Mr. Calder had said 'okay', and that he then stood by the ladder waiting to foot it.
28. As Mr. Peebles pointed out during his very fair cross-examination of Mr. Milstead, Mr. Milstead's written statement described the instructions to foot the ladder in rather convoluted terms. Furthermore, it was plainly unnecessary for Mr. Calder to foot the ladder whilst the tools were being brought down because, of course, the ladder remained tied to the scaffolding at that time. But during that cross-examination Mr. Milstead remained adamant that he had asked Mr. Calder expressly to foot the ladder when it was untied from the scaffolding.
29. Mr. Calder denied that he was given any such instruction. In his oral evidence he gave the impression that he did not know what Mr. Milstead was doing until he saw him up the ladder almost immediately before he fell. But in one of his three written statements he said: "We were tidying up and I was putting the tools back into the van. I recall that Darren mentioned that he had left a tool up on the flat roof and that he had to go and get it." That seems to me to demonstrate that Mr. Calder was much more aware of what Mr. Milstead was doing at the critical moments at the end of that day than he indicated in his oral evidence.
30. The question of whether or not there was an oral instruction is one of the most important differences of recollection between Mr. Milstead and Mr. Calder. I am satisfied that Mr. Milstead's evidence, that there was such an instruction, is to be preferred for the general reasons which I have noted in paragraph 18 above. In particular, given Mr. Milstead's reputation as a careful and safety-conscious employee, it seems to me wholly unlikely that he would have carried out the untying operation without requiring somebody to be there to foot the ladder. I therefore find that Mr. Milstead did order Mr. Calder to foot the ladder when it was being untied at the top.
31. However, even if I am wrong about that, it is clear that Mr. Calder should have footed the ladder in any event. I have already referred to that part of his written evidence which showed that he was aware that Mr. Milstead was going to go back up the ladder. He should therefore have known that, pursuant to the Construction Regulations, the ladder needed (or, at the very least, may have needed) to be footed. Since, on his version of events, he made no move to go to foot the ladder, the only conclusion I can draw is that his erroneous view of the circumstances in which footing was required (which I have set out in paragraph 20 above) operated to prevent him from acting in accordance with the Construction Regulations.

Footing

32. There is no dispute that Mr. Calder was not footing the ladder at the moment that both it and Mr. Milstead fell to the ground.

The Fall

33. At some point after the ladder was untied it became unstable and it fell one way; Mr. Milstead fell the other. In reality, the fall must have been due either to Mr. Milstead missing his footing on the ladder or over-stretching (the Defendant's case), or the absence of Mr. Calder footing the ladder at the bottom causing the ladder to be unstable and slip (the Claimant's case). It is certainly right that, as Mr. Milstead accepted in his cross-examination, it was not entirely clear what had caused the ladder to move when it did, since it apparently did not move the very moment that it was untied. Mr. Milstead rejected the suggestion that he had leaned out or caused it to move in any way, and indeed it was not clear what Mr. Milstead could have been reaching out for, given that he had already untied the ladder and there was therefore nothing else for him to do at the top of the ladder.
34. In all the circumstances I am satisfied on the evidence that the fall was due to Mr. Calder's failure to foot the ladder. This was a ladder in excess of three metres in length which was, at this point, both untied and unfooted. Instability was therefore very likely: indeed, it was to avoid that very situation that Schedule 5(2)(c) of the Construction Regulations was drafted in the clear terms noted in paragraph 13 above. The alternative explanation, that it was somehow Mr. Milstead's mistake, was not only unexplained, but seemed to me to be contrary to the evidence I have heard about his perfectionist tendencies and careful attitude on site. I find it highly unlikely that Mr. Milstead would have broken the rules of a life-time and done something silly or careless when standing at the top of a three metre plus ladder, particularly given the fact that, having untied it, he had no remaining reason to stay there. I also take into account on this point the fact that Mr. Calder's evidence as to what he saw when Mr. Milstead fell was expressed in relatively vague terms and the expression "it appeared that" was used on more than one occasion to describe what it was that Mr. Calder said he saw.
35. I therefore find that the principal cause of the fall was the failure on the part of Mr. Calder to foot the ladder.

Aftermath

36. Mr. Milstead's evidence in his statement following the fall was that "immediately following the fall Andrew [that is Mr. Calder] came rushing over to me as I lay on the ground and told me not to get up. He also apologised saying 'I am sorry, mate. I just went over to the van.'" Mr. Milstead was not cross-examined about that. Mr. Calder did not address the point in any of his three statements and did not deal with it in his oral evidence. It therefore seems to me, certainly on the balance of probabilities, that Mr. Milstead's evidence at paragraph 21 of his statement should be accepted and, whilst not of itself particularly significant, it does provide some corroboration for the view that, at the time, it was thought by both men that the fall had occurred as a result of Mr. Calder's absence at the foot of the ladder.

The Claim for Breach of Statutory Duty

37. There are two allegations in respect of the breach of the Construction Regulations. The first is that the Defendants failed to provide a person at the foot of the ladder to prevent it slipping contrary to Regulation 6(6) and Schedule 5. The second is that the Defendants failed to provide a sufficient system to prevent the Claimant from falling.
38. On the basis that the ladder was in excess of three metres long, a fact which I have found and which seems to me to be incontrovertible on the evidence, the first breach is properly admitted by the Defendants. Of course their defence is to say, by reference to Boyle v. Kodak , that the circumstances that gave rise to that admitted breach, namely the absence of Mr. Calder at the foot of the ladder, were entirely due to Mr. Milstead, because they say that Mr. Milstead went up the ladder without reference to Mr. Calder and without asking him to foot the ladder.
39. For the detailed reasons which I have already given I reject that defence on the facts. I have found that Mr. Milstead did indeed ask Mr. Calder to foot the ladder and that, at the crucial point, he did not do so. I have also found that it was that failure which led the ladder to fall. Accordingly Mr. Milstead was not at fault and thus the Boyle v. Kodak defence does not apply in this case. As I have already said, the Defendants are of course vicariously liable for Mr. Calder's default in failing to comply with a specific instruction.
40. I should add that, even if I was wrong about the express instruction by Mr. Milstead to Mr. Calder, it makes no difference to my conclusion that the Boyle v. Kodak defence must fail. Let us assume, contrary to my primary finding, that there was no instruction from Mr Milstead, but that, as I have also found, Mr. Calder was aware that Mr. Milstead was going to go up an unsecured ladder. He should therefore have gone to foot it, but he failed to do so, for the reasons set out at paragraph 31 above. Lord Diplock made it clear in Boyle v. Kodak that where, as here, an employer is in breach of a regulation, he has to demonstrate that he had done all he could to instruct and train his employees in respect of the relevant regulation so that there was essentially nothing more that the employer could do to instruct them in safe practice. Here, Mr. Calder's misunderstanding, even now, of the strict rules relating to ladders in excess of three metres in length is testimony to the fact that, however the omission occurred, he had not been adequately instructed in Schedule 5 of the Construction Regulations. Even on his version of events, that was the reason why he did not go to foot the ladder, and that therefore provides a direct link between the Defendant's failure to instruct Mr. Calder and the fall on 14^th May.
41. It seems to me that the second allegation of breach of statutory duty, namely that there was not a sufficient system to prevent the Claimant from falling, adds nothing of substance to the first allegation with which I have already dealt. I therefore say nothing further about it.

The Claim in Negligence

42. Similarly, in my judgment, the claim in negligence does not add anything to the claim for breach of statutory duty, with which I have dealt in paragraphs 37-41 above. The principal breach of statutory duty, which would also sound in negligence, was the failure on the part of the Defendant's employee, Mr. Calder, to foot the ladder contrary to Mr. Milstead's instructions. The Defendants are vicariously liable for that failure. The additional breach of statutory duty was the failure to instruct Mr. Calder in respect of the proper and safe method of using ladders in accordance with the 1996 Regulations and again, to the extent it is relevant, that failure would, in my judgment, also constitute negligence on the part of the Defendants.
43. Mr. Peebles submitted that in Boyle v. Kodak the claim in negligence did not succeed because the employer was entitled to rely on the experience of the plaintiff employee. He argues that the same should apply in this case, particularly given that Mr. Milstead was a very experienced employee. However, it seems to me that that argument can only work on the basis of the factual case put forward by the Defendants and, in particular, on the assumption that there was no causative default on the part of the Defendant's employee Mr. Calder. I have rejected the Defendants' case on the facts and I have found that there was causative default on the part of Mr Calder. It therefore seems to me that the negligence claim must succeed.

Contributory Negligence

44. The Defendant's submissions in respect of contributory negligence were again based on their version of the facts and I have, for the reasons which I have been through, rejected that case. On the facts that I have found, it seems to me impossible to say that there was any contributory negligence on the part of Mr Milstead or indeed any criticism that could fairly be made of him. Mr. Peebles helpfully put the contributory negligence argument in a nutshell to this effect: that Mr. Milstead knew or ought to have known that Mr. Calder was not at the foot of the ladder. Again very properly, Mr. Peebles explored that point with Mr. Milstead in cross-examination. Mr. Milstead rejected that suggestion. He said that he did not look down when he untied the ladder and that it was not his practice to look down when he was working at the top of a ladder. I accept that evidence. I therefore accept that there was no reason for Mr. Milstead to know that Mr. Calder was not at the foot of the ladder. It therefore seems to me that there was no contributory negligence on the part of Mr. Milstead.

Conclusion

45. For all those reasons I find that the Defendants are liable to the Claimant for breach of statutory duty and in negligence. If quantum cannot be agreed there will be a further hearing (to be fixed sooner rather than later) at which the precise quantification of Mr. Milstead's damages claim will be ascertained.
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