Scottish Court of Session Decisions

Gallagher v. Kleinwort Benson (Trustees) & Ors [2003] ScotCS 66 (12 March 2003)

OUTER HOUSE, COURT OF SESSION
A90/01	OPINION OF LORD REED in the cause GARY GALLAGHER Pursuer; against KLEINWORT BENSON (TRUSTEES) LIMITED AND OTHERS Defenders:   ________________

Pursuer: Ellis, Q.C.; Balfour & Manson

First, Second, Third, Fourth, Fifth Defenders:

R.W. Dunlop; Drummond Miller

Sixth Defenders: Marnie; Dundas & Wilson, C.S.

Seventh Defenders: P.M. Stuart; Aitken Nairn, W.S.

Eighth Defenders: Wade, Solicitor-Advocate; Simpson & Marwick, W.S.

Ninth Defenders: A.R. Mackenzie; HBM Sayers

12 March 2003

Introduction

1. On 10 July 1996 the pursuer was seriously injured in an accident. According to his pleadings, he worked at that time as an estimator for a scaffolding contractor. That company had been asked by the ninth defenders to estimate for the provision of scaffolding for a project for which the ninth defenders had been appointed as the main contractors. The project comprised renovation works to a Victorian building in Paisley, formerly known as the Globe Hotel. The renovation works had not yet started, and the ninth defenders had not taken possession of the site. The building comprised shops on the basement and ground floors, and offices on the upper floors. There was a flat roof over the rear part of the building. At one edge of the flat roof, overlooking the street to the rear of the building, was what the pursuer's pleadings describe as "a feature hand rail with the words 'Globe Hotel' cast into the rail". This rail was made of iron and was painted. It was 87 centimetres high and 12 metres long. Access to the flat roof was obtained through a door in one of the offices inside the building. The office in question was occupied by the eighth defenders. Some of their employees went on to the roof in the course of their working day to smoke cigarettes.
2. On the day in question, the pursuer arrived at the building and was met by Mr Mallon, who was a surveyor employed by the ninth defenders. Mr Mallon and the pursuer agreed to proceed to the flat roof so that the pursuer could estimate the scaffolding that would be required at the back of the building. They went through the offices of the eighth defenders, and spoke to Mr Thorburn, a safety consultant employed by the eighth defenders. They indicated that they wished to go on to the flat roof, and Mr Thorburn indicated his acceptance of this. The pursuer and Mr Mallon went through the door on to the roof. On the roof there was an ashtray and a number of cigarette ends. The pursuer indicated to Mr Mallon that it would be useful to measure the drop from the roof to the street. They approached the rail and leant on it. The pursuer lowered a tape measure to the ground with one hand, while leaning on the rail with the other. As he did so, a section of the rail, about 65 centimetres wide, gave way. The pursuer fell from the roof to the ground below, a distance of 32 feet. Examination after the accident revealed that the part of the rail which gave way had been joined to the rest with metal plates which had rusted, although superficially the rail looked in reasonable condition.
3. The pursuer has brought the present action for damages against nine defenders, each of which is averred to bear responsibility for the accident. Each of the defenders has sought the dismissal of the action against them on the basis that the pursuer's averments are irrelevant in law and lacking in specification. In the interests of clarity, I shall consider separately the pursuer's case against each of the defenders. As will become apparent, a wide range of arguments has been advanced and there is a considerable degree of overlap between the arguments advanced on behalf of the different defenders.

1. The case against the first defenders

4. According to the pursuer's pleadings, the first defenders were until June 1996 the heritable proprietors of the whole of the building. As at the date of the accident, they were the heritable proprietors of the basement and ground floors, with a right in common to the roof. They were therefore proprietors of the roof, in common with other parties. According to the pursuer's pleadings, another company obtained a lease of the ground floor shop premises in 1982; and the sixth defenders succeeded that company as tenants in 1987 and traded from those premises. It is averred that the subjects let included a right in common to the roof, and that "the roof was part of the subjects let". It is also averred that the rail was part of the roof. The lease obliged the tenant to keep "the premises" in good and substantial repair, the expression "the premises" being defined as "each and every part of the subjects hereby let".
5. The pursuer further avers that the seventh defenders are the tenants of the basement shop premises, those premises having been leased to their predecessors in 1983. The subjects let included a right in common to the roof. The seventh defenders succeeded to the tenants' interest under an assignation in their favour in 1989. Nothing is averred by the pursuer about the repairing obligations under that lease.
6. The pursuer further avers that a specification of the works required for the renovation of the building was prepared by surveyors in August 1995 on the instructions of the first defenders and a Mr Lovatt, and that the contract was put out to tender on the basis of that specification. It included a provision for "re-fixing" the rail. An architect's drawing indicated that the rail was to be "re-secured". A previous estimate for scaffolding provided by the pursuer's employers, prepared by another employee of that company and dated 7 September 1995, had provided for a scaffolding platform at the soffit or eaves level at the rear of the flat roof. It is averred that the obtaining of that estimate indicated that structural work on the rail was anticipated, since the platform would otherwise have been at a lower level to allow easier access for activities such as painting. The specification also provided for other works, in the vicinity of the flat roof, which required scaffolding at the rear of the building. The contents of the specification and of the drawing are averred to have been known to the first, second, third, fourth and fifth defenders.
7. The pursuer further avers that the rail was in any event the means by which persons were to be prevented from falling off the flat roof. Any reasonably careful occupier or person having control and responsibility ought to have had a system of inspection to see that the rail was adequate. Any such person would have been aware that, without an effective barrier, there was a risk of persons falling off the roof. Any such person would have been aware that there was a risk that persons on the roof would rely on the rail as a barrier to falling off. A reasonable system of inspection would have meant that the rail be inspected at least every six months. Any reasonable inspection of it within some years prior to the accident would have revealed its inadequacy. In that event, any reasonably careful person having occupation, control or responsibility for the rail would have acted promptly to make it safe and, in the meantime, have taken precautions such as the placing of warnings or a barrier. Any person taking reasonable care in relation to the management of the building would have known that the eighth defenders' employees had access to the roof. In any event, the first defenders knew or ought to have known that persons, including employees of the main contractors and of sub-contractors and potential sub-contractors, would have access to the roof for reasons associated with the proposed renovation works. Before full scale work could start on such a project, preparatory work would have to be carried out on site. This would include plans for necessary scaffolding. Anyone who gave reasonable consideration to the matter would be aware that preparatory work must take place on site.
8. Against this background, the pursuer alleges in the first place a breach by the first defenders of their obligations under section 2(1) of the Occupiers' Liability (Scotland) Act 1960:

"The care which an occupier of premises is required, by reason of his occupation or control of the premises, to show towards a person entering thereon in respect of the dangers which are due to the state of the premises or to anything done or omitted to be done on them ... shall ... be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger."

9. In addition, the pursuer alleges a breach by the first defenders of their obligations under the Workplaces (Health, Safety and Welfare) Regulations 1992 (S.I. 1992 No. 3004). Regulation 2(1) defines "workplace" as "any premises or part of premises which are not domestic premises and are made available to any person as a place of work". The definition includes "any place within the premises to which such a person has access while at work". Regulation 4(2) provides inter alia:

"[E]very person who has, to any extent, control of a workplace ... shall ensure such workplace ... complies with any requirement of these Regulations which - (a) applies to that workplace ... and (c) relates to matters within that person's control."

Regulation 5 provides inter alia:

"The workplace ... shall be maintained ... in good repair."

Regulation 13(1) provides:

"So far as is reasonably practicable, suitable and effective measures shall be taken to prevent any event specified in paragraph (3)."

Regulation 13(3) specifies inter alia:

"any person falling a distance likely to cause personal injury."

Regulation 13(4) provides:

"Any area where there is a risk to health or safety from any event mentioned

in paragraph (3) shall be clearly indicated."

10. I shall deal separately with (a) the case under the Occupiers' Liability (Scotland) Act 1960 and (b) the case under the Workplace Regulations.

(a) The case under the Occupiers' Liability (Scotland) Act 1960

11. Counsel for the first defenders began his submissions by arguing that the averments were not relevant to establish that the first defenders were an "occupier" of the flat roof within the meaning of section 2(1) of the 1960 Act. That issue had to be determined in accordance with the common law, by virtue of section 1(2):

"Nothing in those provisions [viz. Section 2] shall be taken to alter the rules of the common law which determine the person on whom in relation to any premises a duty to show care as aforesaid towards persons entering thereon is incumbent."

12. In relation to the common law, counsel referred me to three authorities: Kennedy v Shotts Iron Co Ltd, 1913 SC 1143; Pollock v Stead & Simpson Ltd, 1980 SLT (Notes) 76; and Murray v Edinburgh District Council, 1981 SLT 253. In the first of these cases, Lord Mackenzie, with whose Opinion the other members of the Court agreed, said (at page 1151):

"There is no liability on the owner of property ex dominio soli ... the test to be applied in fixing liability is to ascertain with whom the possession and control was at the date of the accident."

In Pollock v Stead & Simpson Ltd, Lord Jauncey said (at pages 76-77):

"It is trite law that in matters arising out of the unsafe condition of property there is no liability on the owner thereof ex dominio soli. The test to be applied in fixing liability is to ascertain with whom the possession and control was at the date of the accident (Kennedy v Shotts Iron Co Ltd, per Lord Mackenzie). Infeftment per se does not necessarily import occupation and control because the property may be the subject of a lease or indeed may be in the occupation of a purchaser consequent upon the execution of missives and payment of the purchase price ... The pursuer must prove, if she is to succeed against the second defender, that the latter was in occupation and control of the common stair at the material time, and for this purpose she must prove more than mere infeftment."

In Murray v Edinburgh District Council Lord Maxwell said (at page 255):

"The short answer to the case on this subsection [viz. section 2(1)] is that it is nowhere averred that the defenders were at the time of the accident or indeed at any other time in occupation or control of the premises ... It is, I think, clear on authority that a person is only in occupation or control for these purposes if he is in a position in law to say who shall and shall not come on the premises and in particular a landlord is not in occupation or control of premises which he has let (Devlin v Jeffrey's Trustees (1902) 5 F. 130; Wheat v E. Lacon & Co Ltd [1966] A C 552; Kennedy v Shotts Iron Co) ... in a case under section 2(1) the defenders certainly must have been and must be averred to have been an occupier and controller at some time."

In the present case, counsel submitted, nothing more was averred in relation to the first defenders than that they were, at the date of the accident, the "heritable proprietors of the basement and ground floors of the building including a right in common to the roof of the building".

13. Replying to these submissions, counsel for the pursuer submitted that although ownership was not essential, it might be relevant to control; and whether the degree of control was sufficient to constitute the defender in question an "occupier" was a question of circumstances, the facts of which would require to be investigated by the leading of evidence before a conclusion could be reached. Counsel cited Walker, Delict (2^nd ed.) at pages 581-582, and also referred to the decision of the House of Lords in Wheat v Lacon. In particular, counsel relied on the speech of Lord Denning (at page 578):

"Whenever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an 'occupier' and the person coming lawfully there is his 'visitor': and the 'occupier' is under a duty to his 'visitor' to use reasonable care. In order to be an 'occupier' it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice it that he has some degree of control. He may share the control with others. Two or more may be the 'occupiers'. And whenever this happens, each is under a duty to use care towards persons coming lawfully on to the premises, dependent on his degree of control."

Thus, counsel submitted, actual occupation could be sufficient, even in the absence of any right or obligation to effect repairs; and so might a degree of control over access to premises or over the activities carried out on premises. Counsel also cited, in this connection, Clerk and Lindsell on Torts (18^th ed.), paras. 10-07 to 10-10, and McMartin v Hannay (1872) 10 M 411.

14. Turning specifically to the case against the first defenders, counsel drew attention to the averment that the subjects let to the sixth and seventh defenders included a right "in common" to the roof, and submitted that those words might be construed as implying that the tenant's right was "in common" with the landlord's right: on that construction, counsel submitted, the leases would not deprive the landlord of possession of the roof. If a right in common was granted by a lease, and it constituted a right in common with the landlord's right, then what the tenant enjoyed was part of the landlord's right in common. Such a lease gave the tenant a right to use the common property and to be involved, along with the landlord and the other common proprietors, in the arrangements for its management. Counsel accepted that the position would be different if the lease conferred on the tenant a right to possession of the common parts, in common only with the owners or tenants of the other parts of the building. For example, if a lease of a tenement flat included a right in common to the back green, counsel accepted that that would confer on the tenant a right to possession of the back green, in common with others, but to the exclusion of any possession of the back green by the landlord of the flat. Counsel submitted that the position depended on the construction of the lease. The lease was not before the court, and it might be that that was its effect. The pursuer's averments did not, therefore, necessarily mean that the landlord had surrendered possession of his entire right to the common parts. No authority was cited in support of these submissions.
15. Under reference to Gordon, Scottish Land Law (2^nd ed.), para. 15-19, counsel submitted that a co-proprietor's right in relation to common property entitled him to carry out "necessary repairs". Such repairs would include those necessary to put the common property into a safe condition, so as to avoid liabilities in delict or under statute. "Necessary" repairs were not confined to those required to keep the building wind and watertight. No reliance was placed by counsel for the pursuer on section 3 of the 1960 Act (which concerns a landlord's liability by virtue of his responsibility for repairs); and no reference was made to that provision in the course of the discussion before me.
16. Finally, counsel submitted that the averments concerning the first defenders' involvement in the proposed works further demonstrated a degree of control over the state of the premises: in particular, the specification had been prepared partly on their instructions.
17. It is apparent from Wheat v Lacon, and the other authorities cited to me, that the ownership of premises does not in itself render the owner an "occupier" of the premises within the meaning of the 1960 Act (subject to possible exceptional situations with which I am not in the present case concerned). As Lord Denning explained, in the passage from his speech in Wheat v Lacon which I quoted earlier, the status of occupier is normally dependent on some degree of physical control. This is reflected in an observation made by Viscount Dilhorne in the same case (at page 571):

"The respondents, being a limited company, can only occupy premises by their servants."

It is also made clear by Lord Pearson's observation, at pages 589 to 590:

"The foundation of occupier's liability is occupational control, i.e. control associated with and arising from presence in and use of or activity in the premises. In Duncan v Cammell Laird & Co Ltd [1943] 2 All ER 621 Wrottesley J said:

'It seems to me that the importance of establishing that the defendant who invites is the occupier of the premises lies in the fact that with occupation goes control. And the importance of control is that it affords the opportunity to know that the plaintiff is coming on to the premises, to know the premises and to become aware of dangers, whether concealed or not, and to remedy them, or at least to warn those that are invited on to the premises'".

Putting the matter shortly, an occupier's liability is based on his capacity to act so as to make the premises safe.

18. The position of landlords was analysed by Lord Denning in Wheat v Lacon (at page 579), under reference to the English authorities:

"First, where a landlord let premises by demise to a tenant, he was regarded as parting with all control over them. He did not retain any degree of control, even though he had undertaken to repair the structure. Accordingly, he was held to be under no duty to any person coming lawfully on to the premises ... Secondly, where an owner let floors or flats in a building to tenants, but did not demise the common staircase or the roof or some other parts, he was regarded as having retained control of all parts not demised by him ... the landlord is responsible for all parts not demised by him, on the ground that he is regarded as being sufficiently in control of them to impose on him a duty of care to all persons coming lawfully on to the premises."

As Tony Weir observes in A Casebook on Tort (9^th ed., at p.39):

"Since the very reason one pays rent is in order to occupy the rented premises, it is, as Lord Denning explained in Wheat v Lacon, the tenant rather than the landlord who is under the occupier's duty to take steps to see that visitors are reasonably safe."

The Scottish authorities cited earlier are consistent with that approach.

19. Applying these principles to the case against the first defenders, it is apparent in the first place that to aver that they were on the date of the accident the owners of the ground and basement floors of the building, and of a right in common to the roof, is insufficient to establish that they were occupiers. In view of the pursuer's averment that the building consisted of basement and ground floor shops with offices above, and that the shops were let to the sixth and seventh defenders, the relevancy of the case has to be considered on the basis that the first defenders had let the premises which they owned on the ground and basement floors. So far as their interest in the roof is concerned, it is averred that under each lease "the subjects let included a right in common to the roof": in relation to the lease to the sixth defenders, it is also averred that "the roof was part of the subjects let". The natural meaning of these averments is that the leases granted by the first defenders included their interest in the roof. I do not understand the suggestion that the landlord retained a right to the possession and control of the roof (in common with others), given what is averred about the leases. In any event, the pursuer does not expressly aver that the landlord retained any such right; and, if that were the basis on which the pursuer sought to establish liability against the first defenders, fair notice of that position ought to be given. As Wheat v Lacon and the other authorities cited make clear, a landlord who lets premises to a tenant is (in the absence of special circumstances) treated as parting with all control of those premises and is not an occupier of them under the Act. The averments concerning the first defenders' interest as heritable proprietors are therefore insufficient to establish that they were occupiers of the roof.
20. There remain the averments concerning the proposed works. In that connection, the pursuer offers to prove that the specification was prepared on the instructions of the first defenders, amongst others. Proof of that averment would not establish possession and control over the premises at the date of the accident.
21. What is conspicuously absent from the pursuer's pleadings is any averment that the first defenders had, on the relevant date, physical control (to any degree) of the premises. I conclude that, on the basis of this first ground of challenge, the averments directed against the first defenders, so far as based on the 1960 Act, are irrelevant.
22. The second argument presented by counsel for the first defenders in relation to the case under the 1960 Act was to the effect that, even if the first defenders were an "occupier" of the flat roof, the pursuer's pleadings could not support the inference that the first defenders owed to the pursuer, under the 1960 Act, the duties averred, i.e. a duty to have inspected the rail at least every six months; to have provided an effective barrier at the edge of the flat roof; to have repaired the rail; to have put up warnings of the danger caused by the state of the rail; and to have put an effective barrier in front of the rail. Counsel further submitted that the pursuer's averments were also irrelevant by reason of a failure to specify a period within which the various steps should have been taken. In that connection, counsel cited the decision in Johnstone v City of Glasgow District Council, 1986 SLT 50, where it was held that an inference of negligence could not be drawn from a failure to inspect and repair a common stair for a period of three months, in the absence of evidence as to the usual practice of inspection of common stairs. Counsel also cited the decision in McGuffie v Forth Valley Health Board 1991 SLT 231.
23. Counsel further submitted that the pursuer's averments proceeded upon the basis that the first defenders had engaged the ninth defenders as the main contractor for works which included the re-fixing of the hand rail. Any duty of care arising from the first defenders' knowledge (or constructive knowledge) of the defect was fulfilled by the engagement of an independent contractor to put it right. In this connection, counsel cited a well-known passage from the judgment of Diplock LJ (as he then was) in Savory v Holland & Hannen & Cubbitts (Southern) Ltd [1964] 1 WLR 1158 at pages 1165-1166:

"In fact, the allegation of negligence here on the facts comes down to the failure of the defendant's foreman to give some advice to the plaintiff. Warnings have already been given from the House of Lords as to not extending the nursemaid school of negligence. I would certainly not extend it in this case to a duty to advise someone who is the servant of an independent contractor."

Counsel also cited observations made in Ferguson v Welsh [1987] 1 WLR 1553. Lord Keith said, at page 1560:

"It would not ordinarily be reasonable to expect an occupier of premises having engaged a contractor whom he has reasonable grounds for regarding as competent, to supervise the contractor's activities in order to ensure that he was discharging his duty to his employees to observe a safe system of work. In special circumstances, on the other hand, where the occupier knows or has reason to suspect that the contractor is using an unsafe system of work, it might well be reasonable for the occupier to take steps to see that the system was made safe."

Lord Goff said, at page 1564:

"I wish to add that I do not, with all respect, subscribe to the opinion that the mere fact that an occupier may know or have reason to suspect that the contractor carrying out work on his building may be using an unsafe system of work can of itself be enough to impose upon him a liability under the Occupiers' Liability Act 1957, or indeed in negligence at common law, to an employee of the contractor who is thereby injured, even if the effect of using that unsafe system is to render the premises unsafe and thereby to cause the injury to the employee. I have only to think of the ordinary householder who calls in an electrician; and the electrician sends in a man who, using an unsafe system established by his employer, creates a danger in the premises which results in his suffering injury from burns. I cannot see that, in ordinary circumstances, the householder should be held liable under the Occupiers' Liability Act 1957, or even in negligence, for failing to tell the man how he should be doing his work."

Counsel also cited Makepeace v Evans Brothers (Reading) [2001] ICR 241, where these dicta were applied.

24. Replying to these submissions, counsel for the pursuer submitted that the pursuer did not have to lead evidence as to usual practice (and did not intend to do so). Practice was not necessarily the touchstone. In that regard, counsel cited the speech of Lord Simonds in Paris v Stepney Borough Council [1951] AC 367, at page 377. The pursuer was in a position to establish what a reasonably careful person ought to have done, by leading evidence from a chartered surveyor as to the advice which he would give to a building owner. Even if the pursuer did not establish a duty to carry out inspections at six monthly intervals, any inspection within some years prior to the accident would have revealed the danger. The pursuer might in any event be able to argue, after proof, that the danger was an obvious one which ought to have been guarded against by inspection. Further, counsel submitted that almost a year had elapsed between the date when the specification was prepared and the date of the accident. During that period, nothing had been done to repair the defect or to take any precautions. Measures such as the placing of warnings could have been taken promptly. In relation to the argument that any duty of care was fulfilled by the engagement of an independent contractor, counsel submitted that that issue could not be determined on the pleadings. It followed from the engagement of the contractor that it was foreseeable that people would be on the roof. It was also foreseeable that the eighth defenders' employees would be on the roof. The first defenders were not in the same situation as the ordinary householder envisaged by Lord Goff. The first defenders were a commercial organisation. They were the landlords of commercial property.
25. I consider these submissions on the hypothesis that the pursuer's averments are relevant to establish that the first defenders were occupiers of the roof within the meaning of the 1960 Act. The pursuer's averments bearing on the content of the duty of care owed by the first defenders are not a model of clarity. The pursuer's approach, put shortly, is to base the duty to take steps which might have prevented the accident (the provision of a barrier, the repair of the rail, or the provision of warnings) upon actual or construction knowledge of the state of the rail; and that knowledge is attributed to the first defenders firstly upon the basis of a duty of inspection, and secondly upon the basis of knowledge of the contents of the specification. The lack of clarity arises in part from the pursuer's reliance upon the foreseeability of other persons' presence on the roof in order to establish a duty of inspection, and hence constructive knowledge of the state of the rail. A further difficulty is that the averments bearing on the duty of inspection (and hence constructive knowledge of the state of the rail) do not sit happily with the averments concerning knowledge of the contents of the specification.
26. The relevant question in relation to the alleged duty of inspection is whether such a duty was owed to the pursuer. The approach adopted by the pursuer tends to elide the distinction between that question and the question whether a duty of inspection was owed to other persons (such as the eighth defenders' employees). Thus the pursuer avers, in effect, that quite apart from the renovation works, it ought to have been anticipated by the first defenders that persons would go on to the roof and would rely on the rail for their safety. The critical averments in this regard are in the following terms:

"Any reasonably careful occupier or person having control and responsibility for the roof ... would have been aware that there was a risk that persons on the flat roof would rely on the hand rail as a barrier to falling off the flat roof ... the hand rail was at the edge of the flat roof which was a place to which employees of the eighth defenders had recourse during their working day. It was a place to which persons had access. That fact would have been known to anyone taking reasonable care in relation to the management of the building and in particular the common parts."

27. The averment that the eighth defenders' employees went on the roof does not appear to me to be relevant in this context: as I have said, it is important not to confuse the question whether any duty of inspection might have been owed to those employees with the question whether any duty was owed to the pursuer. Moreover, knowledge that those employees went on the roof could only be imputed to the first defenders on the basis of the last sentence quoted; but the first defenders are not said to have been responsible for the "management" of the building or its common parts. The averment that the roof was a place to which "persons" had access is apparently to be understood as referring to the employees of the eighth defenders: no "persons" other than those employees (and persons involved in the renovation works) were mentioned in counsel's submissions. If the expression is intended to have a wider meaning, it is lacking in specification.
28. In relation to persons involved in the renovation works, it is averred:

"In any event all the defenders knew or ought to have known that persons would have access to the flat roof for reasons associated with the proposed renovation works. Such persons would include employees of the main contractors and of any relevant sub-contractors and potential sub-contractors."

It is also averred:

"A specification of the works required for the renovation of the building was prepared by surveyors in August 1995 on the instructions of the first defenders and Mr Lovatt of the second, third and fourth defenders. The specification of works upon which the building contract was put out for tender included at item 6.3.4. a provision for re-fixing the hand rail on the flat roof. The relative architects' drawing indicated that the hand rail was to be 'resecured' ... the contents of the specification and relative drawing was known to the first defenders...".

It is not immediately clear whether these averments mean that the specification and drawing placed the first defenders on notice that the rail was in an insecure condition, or merely on notice that work was to be carried out on it. Counsel for the pursuer submitted that the former meaning was intended. I consider below, in relation to the case against the ninth defenders, the question whether the averments can be regarded as bearing that meaning.

29. One matter which is however apparent from the averments is that the first defenders (along with others) had instructed surveyors to prepare a specification of the works required for the renovation of the building. The preparation of that specification would reasonably be expected to have involved an inspection of the building, so as to establish which parts of the building required renovation, and the nature of the work (of replacement or of repair) which those parts required. If the specification and drawing implied that the rail was in an insecure condition, then there would be no need, and therefore no duty, to carry out a subsequent inspection in order to establish whether it was in such a condition. If, on the other hand, the specification and drawing did not imply that the rail was insecure, then the question arises why another inspection was called for within the following year. The pursuer would then need to have some basis in his averments for establishing that an ordinarily prudent person, who had had his premises surveyed for the purpose of drawing up a specification of renovation works, would be under a duty to have the ironwork examined again less than a year later.
30. In that regard, the pursuer avers:

"A reasonable system of inspection would have meant that the hand rail be inspected at least every six months."

It is also averred:

"It was their duty to have regularly inspected said hand rail at least every six months ...".

The pursuer does not however make specific averments as to any basis upon which such a duty, owed to the pursuer, might be established. In particular, the averment quoted above concerning "a reasonable system of inspection" is inspecific. Balustrades and other forms of ironwork are a not uncommon feature of the roofs of older buildings in Scotland, including houses and tenements in residential occupation. It is not suggested that there is any practice of inspecting such ironwork at six monthly (or any other) intervals. The pursuer's averments do not set out a basis for concluding that such a system of inspection is obviously necessary. The pursuer does not have a basis in his pleadings for leading evidence as to the advice which a chartered surveyor would give to a building owner, since he does not seek to establish that the first defenders were under an obligation to the pursuer to seek, or to follow, such advice. Following the approach adopted in Johnstone v City of Glasgow District Council, it appears to me that the averments concerning the first defenders' alleged duty of inspection are irrelevant.

31. If it is assumed, in favour of the pursuer, that the specification and drawing implied that the rail was insecure, then the question arises whether the first defenders' awareness of the content of the specification and the drawing placed them under a duty to the pursuer to take precautions. It is again important to emphasise that the question concerns the existence of a duty owed to the pursuer, rather than to other persons (such as the eighth defenders' employees). The question arises in the context of averments that the ninth defenders had been appointed as the main contractor for the renovation works after tendering for the contract on the basis of the specification; that the ninth defenders had asked the pursuer's employers to estimate for the provision of scaffolding for the job; and that the pursuer was accompanied on to the roof by the ninth defenders' surveyor, Mr Mallon.
32. I note that the authorities cited by counsel for the first defenders as bearing on this question (such as Ferguson v Welsh) were not concerned with a danger arising from the state of the premises but rather with a danger arising from an unsafe system of work. To that extent, they are not directly in point. As Lord Goff indicated in Ferguson v Welsh, however, the distinction between the safety of premises and the safety of a system of work is not always clear-cut, since the state of the premises may only pose a danger to the person in question because of the system of work which he adopts (a point which is also illustrated by such cases as Christmas v General Cleaning Contractors Ltd [1952] 1 KB 141, affirmed on a different point [1953] AC 180; Roles v Nathan [1963] 1 WLR 1117; and Fairfield v Glenhaven Funeral Services Ltd [2002] 1 WLR 1052). In the present case, for example, the accident was caused by the pursuer's using the rail to support his weight while he leant over the edge of the roof to lower the tape measure to the ground, relying for his safety on the rail's ability to support his weight. Although not directly in point, the authorities which I have mentioned nevertheless provide some support for counsel's submission.
33. The critical issue appears to me to be whether the relationship between the first defenders and the pursuer was such as to impose upon the former a responsibility towards the latter in respect of the potential risk to safety arising from the condition of the rail. In circumstances where the first defenders had engaged an independent contractor to carry out renovation works which (on the assumption which the pursuer invites the court to make) included the re-securing of the rail, it appears to me that the relationship between the first defenders and that contractor (or its employees, or the employees of sub-contractors whom the contractor brought on to the roof) did not impose upon the first defenders any responsibility towards the contractor (or any such persons) in respect of the potential risk to safety arising from the insecure condition of the rail. In such circumstances, it would be reasonable for the first defenders to expect the contractor to take any precautions necessary to protect its own employees, or other persons whom it brought on to the roof, from such a risk. I therefore conclude that the first defenders would, in such circumstances, owe no duty of care to the pursuer in respect of such a risk.
34. For these reasons I consider that, on the basis also of this second ground of challenge, the averments directed against the first defenders, so far as based on the 1960 Act, are irrelevant and lacking in specification.
35. The third argument presented by counsel for the first defenders, in relation to the case under the 1960 Act, concerned the fact that identical duties under that Act are averred to be incumbent upon each of the first to eighth defenders. Counsel submitted that the pursuer was attempting to maintain a number of inconsistent cases, and that the pursuer's averments were therefore irrelevant. I shall return to this submission when discussing the case against the eighth defenders.

(b) The case under the Workplace Regulations

36. Counsel for the first defenders also addressed me on the pursuer's case under the Workplace Regulations. Regulation 3, as it stood at the date of the accident, provided inter alia:
    "(1) These Regulations apply to every workplace but shall not apply to -

    ...

(b) a workplace where the activities being undertaken are building operations or works of engineering construction within, in either case, section 176 of the Factories Act 1961 and activities for the purpose of or in connection with the first-mentioned activities."

Subsequent to the date of the accident, regulation 3(1)(b) was amended by the Construction (Health, Safety and Welfare) Regulations 1996 (SI 1996 No. 1592); but the amendment did not have retrospective effect. Section 176 of the Factories Act 1961 (as it stood at the date of the accident) provided inter alia:

"(1) In this Act, unless the context otherwise requires, the following expressions have the meaning hereby assigned to them respectively, that is to say -

...

'building operation' means the construction, structural alternation, repair or maintenance of a building (including repainting, redecoration and external cleaning of the structure), the demolition of a building and the preparation for, and laying the foundation of, an intended building, but does not include any operation which is a work of engineering construction within the meaning of this Act."

37. The pursuer avers that the roof was a workplace within the meaning of regulation 2. In that event, counsel for the first defenders submitted, it was a workplace where the only activity being undertaken was a building operation within the meaning of section 176, namely the repair or maintenance of a building, or where in any event the only activity being undertaken was for the purpose of, or in connection with, such a building operation. That being so, the workplace was not one to which the Workplace Regulations applied.
38. In support of this submission, counsel cited the decision of the Court of Appeal in Vineer v Doidge & Sons Ltd [1972] 1 WLR 893. In that case, the defendants were in the course of building a number of homes on a building site. The plaintiff was sent to measure up the glass required for the windows of two of the houses which were in the course of construction. It was held that the plaintiff was engaged in a building operation as defined in section 176. Counsel submitted that a person sent solely to measure, as opposed to doing actual repair work, could thus be regarded as engaged in a building operation if his activity contributed to that operation. Counsel also cited Drysdale v Kelsey Roofing Industries Ltd, 1981 SLT 118, which concerned a person who was injured while surveying the roof of a factory in order to take measurements for the purpose of repairing the roof. The Lord Ordinary, Lord Grieve, said (at pages 118 to 119):

"In my opinion while an act such as measuring up for the purpose of repair could not be described as a positive act of repair, and if the person doing it was asked if he were repairing the roof might answer 'No', nevertheless if it can be regarded as an essential ingredient in an act of repair which cannot be carried out unless it is done then I think it may be regarded as an act of repair and accordingly a building operation."

In that case no-one had been sent to carry out the repair: the tender submitted by the pursuer's employer had not yet been accepted, although verbal assurances had been given that the repair work was to go ahead and that the tender was to be accepted.

39. In reply, counsel for the pursuer submitted that the activity being undertaken by the pursuer could not be regarded as a building operation. In Vineer v Doidge & Sons Ltd the homes had been under construction, and the plaintiff's activity had formed part of that construction operation. The correct approach was set out by Roskill LJ (as he then was) at page 897:

"Each case must turn on its own facts, and an infinite variety of facts can easily be imagined. In my view it is impossible to lay down in absolute terms where the dividing line will come in every case. But in general, if a workman is at the time of the accident doing an act which can fairly be seen to form part of or to be contributing to the operation of the construction of a building, he is engaged in a building operation."

Counsel also cited the earlier decision of the Court of Appeal in Sumner v R. L. Priestley Ltd [1955] 1 WLR 1202, where a workman had been sent on to the roof of a factory to take a profile of the gutter, which needed renewing. A profile was necessary before a new gutter of the right shape could be ordered and erected. Singleton LJ said (at page 1205):

"The first thing to which I draw attention is that there is a provision that the regulations shall apply to the preparation for certain things, the preparation for and laying the foundation of an intended building. There is no provisions that the regulations shall apply to the preparation for the following operations: 'the construction, structural alteration, repair or maintenance of a building' ... It seems to me that the case falls to be determined very largely upon a question of fact. This man, at the time of his accident, had gone up to the roof in order to make a profile of the gutter ... He was not told to do any repair nor did he commence to do anything by way of repair. He was, at the request or on the instructions of the foreman, to obtain something which would have enabled a gutter to be made and which would have enabled a repair to be done."

That decision had been distinguished by Roskill LJ in Vineer (at page 897) on the basis that in Sumner the factory was not in the course of construction, whereas in Vineer the homes were being constructed. The facts of the present case were analogous, in counsel's submission, to those in Sumner. Counsel also cited Ritchie v James H. Russell & Co, 1966 SC 158 and Campbell v City of Edinburgh District Council, 1991 SLT 616. In the light of these authorities, counsel submitted that Drysdale had been incorrectly decided. The test which Lord Grieve had formulated, in the passage quoted earlier, could not be correct: it would be satisfied by a lorry driver who drove the workmen and materials to the site, or by a typist who typed the tender.

40. Counsel submitted that there were a number of reasons why regulation 3(1)(b) did not cover the activity on which the pursuer was engaged at the time of the accident. The first reason was the ordinary meaning of the words used in that provision. It was clear that the activity undertaken by the pursuer was not a building operation within the meaning of section 176. The only doubt arose from the words appearing at the end of regulation 3(1)(b): "and activities for the purpose of or in connection with the first mentioned activities." The words "the first mentioned activities" however referred back to "the activities being undertaken." Accordingly, activities which were ancillary to building operations fell within regulation 3(1)(b) only if they were contemporaneous with building operations which were being undertaken. It was however apparent from the pursuer's averments that no building operation was under way at the time of the accident.
41. Secondly, counsel submitted that if regulation 3(1)(b) were interpreted as applying to activities which were merely preparatory to building operations which were to take place at a later date, then there would be a substantial gap in the statutory regime. This was because such activities would be covered neither by the Workplace Regulations nor by the Construction (Working Places) Regulations 1966 (SI 1966 No. 94), the scope of the latter being confined to building operations and works of engineering construction.
42. Thirdly, counsel submitted that the roof was not somewhere where the "only" activity being undertaken was that undertaken by the pursuer. The roof was also used by the eighth defenders' employees for smoking. On any view, the latter activity was not a building operation or ancillary to such an operation.
43. In considering these submissions, it may be helpful to begin by discussing the somewhat complex history of the relevant legislation. In that regard, I should place in context an observation which I made in English v North Lanarkshire Council, 1999 SCLR 310, to the effect that an approach to the interpretation of the Provision and Use of Work Equipment Regulations 1998 (SI 1998 No. 2306) which was based on the Factories Acts was misconceived. That case was concerned with regulations which, like the Workplace Regulations, were intended to implement a European directive; and they adopted an approach, and language, which differed in a number of important respects from the earlier legislation under the Factories Acts which they replaced. The submissions made by counsel in that case however relied entirely on authorities concerned with the Factories Acts, and ignored the European law dimension. My observation was made in that context. It is plainly necessary to take account of the European law dimension in the interpretation and application of such regulations; for EC law may require a departure from the approach adopted under the Factories Acts (even, possibly, where language identical to that of the Factories Acts is employed). It is therefore necessary to approach the interpretation of such regulations without any assumption that the approach adopted under the Factories Acts continues to apply. On the other hand, where the new regulations adopt the language used in the older regulations under the Factories Acts, or a fortiori, where the new regulations refer expressly to provisions of the Factories Acts, authorities on the interpretation of the Factories Acts may continue to be relevant. The observation made in English v North Lanarkshire Council was not intended to suggest the contrary.
44. The present case provides an example of a situation in which it is necessary both to consider the European background and to consider the authorities on the interpretation of the earlier United Kingdom legislation.
45. Under the Factories Act 1961 (and earlier legislation), most of the statutory provisions which applied generally to workplaces did not apply to building operations as defined in section 176. For example, section 29 of the 1961 Act imposed a general duty to provide a safe workplace and a safe means of access to it; but that section did not apply to building operations, by virtue of section 127 of the Act. Building operations were governed by a separate regime, contained inter alia in the Construction (Working Places) Regulations 1966 and the Construction (Health and Welfare) Regulations 1966 (SI 1966 No. 95). Hence an issue arose in cases such as Sumner, Ritchie, Vineer and Drysdale as to which regime was applicable in a particular situation. That issue depended on the interpretation of the definition of "building operation" provided in section 176, that expression being used to limit the scope of the legislation applying to workplaces generally (under section 127 of the 1961 Act) and also to define the scope of the alternative regime.
46. The Workplace Regulations were made in order to implement the Workplace Directive (89/654/EEC). They came into effect on 1 January 1993. They repealed many of the provisions of the 1961 Act, including section 29, and introduced new provisions governing inter alia the safety of workplaces. Their scope was defined by regulation 3: as already mentioned, paragraph (1)(b) excluded workplaces where the only activities being undertaken were building operations or works of engineering construction within the meaning of Section 176, "and activities for the purpose of or in connection with the first mentioned activities." The words which I have quoted did not appear in section 176 or in the 1966 regulations referred to earlier. It was common ground between counsel, in the discussion before me, that it was impossible to avoid the conclusion that the scope of regulation 3(1)(b) was wider than section 176 of the 1961 Act, by reason of the inclusion in the former (but not the latter) of the words "and activities for the purpose of or in connection with the first mentioned activities", and that there was therefore a gap between the coverage of the Workplace Regulations and that of the 1966 Regulations.
47. I note that the difference between the provisions governing the respective scope of the two regimes was removed by the Construction (Health, Safety and Welfare) Regulations 1996, which replaced the 1966 Regulations and came into force on 2 September 1996. There was therefore no gap between the two regimes prior to 1 January 1993, when the Workplace Regulations came into force; or after 2 September 1996, when the Construction (Health, Safety and Welfare) Regulations 1996 came into force. The question arises whether a gap existed during the period between those dates, when the pursuer's accident occurred.
48. As I have mentioned, the Workplace Regulations were intended to implement the Workplace Directive; and they must therefore be interpreted, as far as possible, so as to achieve the result pursued by that directive (Marleasing SA v La Comercial Internacional de Alimentación SA [1990] ECR-I 4135). As the preamble to the directive makes clear, it was intended to encourage improvements in the health and safety of workers at work, in accordance with article 118A of the Treaty of Rome.
49. Considering the Workplace Regulations in this context, it appears to me in the first place that the activity being undertaken by the pursuer at the time of the accident cannot be regarded as a "building operation" within the meaning of section 176 of the 1961 Act. The authorities which were cited on this issue offer limited guidance, insofar as the decisions depended on the facts of the particular cases. The decisions in Sumner and Vineer do however cast some useful light on the facts averred in the present case. They make it clear, as it seems to me, that work of measurement which is preparatory to the renovation of a building, where the renovation work has not yet commenced - where, indeed, the main contractor has not yet taken possession of the site, and the measurement is being obtained merely to enable a potential sub-contractor to provide an estimate - cannot be regarded as being itself a building operation (or part of such an operation) within the meaning of section 176.
50. The next question is, therefore, whether the activity being undertaken by the pursuer falls within the scope of the concluding words of regulation 3(1)(b) i.e. " and activities for the purpose of or in connection with the first mentioned activities". I reject the contention that the words "the first mentioned activities" refer back to the words "the only activities being undertaken" : in my opinion they refer rather to "building operations or works of engineering construction within, in either case, section 176 of the Factories Act 1961." On the other hand, regulation 3(1)(b) cannot, in my opinion, have been intended to exclude sites which would not be covered by the 1966 Regulations, since the consequence would indeed be the emergence of a gap between the statutory regimes protecting health and safety at work. In order to avoid that situation, it appears to me that the word "and", in regulation 3(1)(b), is not to be understood as meaning "or": the words which precede "and" and the words which follow it do not, in my opinion, describe alternative situations in which the Workplace Regulations are inapplicable, but rather are to be understood in a cumulative sense. So interpreted, regulation 3(1)(b) excludes from the scope of the Workplace Regulations a workplace where the only activities being undertaken are building operations together with activities for the purpose of or in connection with building operations. Any such workplace would, on the other hand, fall (at the material time) within the scope of the 1966 Regulations.
51. Applying regulation 3(1)(b) as so interpreted to the facts averred in the present case, there was no activity being undertaken on the roof which constituted a building operation. Regulation 3(1)(b) did not, therefore, render the Workplace Regulations inapplicable to the roof.
52. On the view which I have taken of regulation 3(1)(b), the argument that smoking should be regarded as an "activity" within the meaning of that provision does not arise. I should however add that I reject that argument. It cannot have been intended that whether a workplace falls within the scope of one regime or the other should depend on whether workers smoke or not.
53. The final submission made on behalf of the first defenders concerned regulation 4(2) of the Workplace Regulations. So far as material, regulation 4(2) provides:

"... every person who has, to any extent, control of a workplace ... shall ensure that such workplace ... complies with any requirement of these Regulations which -

(a) applies to that workplace ...

(b) is in force in respect of the workplace ... ; and

(c) relates to matters within that person's control."

Regulation 4(3) further provides:

"Any reference in this regulation to a person having control of any workplace ... is a reference to a person having control of the workplace ... in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not)."

Counsel's submission concerned the pursuer's averment:

"The first, second, third, fourth and fifth defenders had control of the workplace as part of their business activities."

Counsel submitted that no specification was given of any basis on which such control might be established. There was nothing averred to suggest, in particular, that the first defenders had control of the roof or of the rail. Counsel cited in this connection the decision of the Court of Appeal in King v RCO Support Services Ltd [2001] ICR 608. The claimant in that case had slipped on ice in a yard belonging to a bus company, where buses were cleaned. The cleaning was carried out by a cleaning company, who were his employers. He had slipped while spreading grit over the ice. His employers accepted that the gritting of the ice was a matter for them to deal with. In the present case, counsel submitted, the first defenders (and others) had engaged the ninth defenders to deal with the renovation works, including work on the rail.

54. In reply, counsel for the pursuer submitted that the Workplace Regulations had been made under section 15 of the Health and Safety at Work, etc. Act 1974. Section 11 of the Interpretation Act 1978 provides:

"Where an Act confers power to make subordinate legislation, expressions used in that legislation have, unless the contrary intention appears, the meaning which they bear in the Act."

Section 4(2) of the 1974 Act provides inter alia:

"It shall be the duty of each person who has, to any extent, control of premises ... to take such measures as it is reasonable for a person in his position to take to ensure, so far as is reasonably practicable, that the premises ... are safe and without risks to health."

Section 4(3) provides inter alia:

"Where a person has, by virtue of any contract or tenancy, an obligation of any extent in relation to -

(a) the maintenance or repair of any premises ... that person shall be treated for the purposes of sub-section (2) above, as being a person who has control of the matters to which his obligation extends."

In the light of these provisions, counsel submitted that, since a landlord was under an obligation, at common law, in relation to the repair of the premises let, the first defenders had to be treated as having control of the matter to which such an obligation extended, by virtue of section 4(3). In accordance with section 11 of the 1978 Act, they must also be treated as having control of such matters for the purposes of regulation 4(2).

55. Counsel submitted that King v RCO Support Services Ltd was distinguishable on its facts. Counsel also referred me to Austin Rover Group Ltd v HM Inspector of Factories [1990] 1 AC 619 and to Nisbet v Chief Constable, Strathclyde Police (Outer House, 10 April 2002).
56. I reject the argument by counsel for the pursuer based on Section 4(3) of the 1974 Act. That subsection confers an extended meaning on "control" which is expressly confined to section 4(2): the general meaning of "control", as that term is used in the 1974 Act (e.g. in section 2) is not affected by section 4(3). The meaning conferred by section 4(3) cannot therefore be extended to the Workplace Regulations by virtue of section 11 of the 1978 Act. In any event, the pursuer's averments are silent as to any basis on which the first defenders' repairing obligations under the leases in question might extend to maintaining the rail in a safe condition: on the contrary, it is averred that the lease to the sixth defenders obliged the tenants, rather than the landlords, to keep the premises in good and substantial repair.
57. Although I reject the argument that regulation 4(2) should be construed in accordance with section 4(3) of the 1974 Act, I accept that the antecedent of the concept of "control" in regulation 4 is to be found in the 1974 Act: it has no equivalent, in particular, in the Workplace Directive. Regulation 4(2) uses the concept of "control" in two contexts. First, it refers to a person having to any extent "control of a workplace"; and the expression "workplace" is defined by regulation 2(1) as meaning "any premises or part of premises which are ... made available to any person as a place of work". This part of regulation 4(2) is accordingly concerned with the control of premises; and section 4(2) of the 1974 Act similarly applies to a person having to any extent "control of premises". The concept of control of premises is familiar in the law of occupiers' liability, as is apparent from the discussion of Wheat v Lacon and related cases earlier in this Opinion. In that context, it is also clear that there may be different degrees of control of premises, and that more than one person may therefore have control to some extent. As Lord Denning said in Wheat v Lacon (at pages 578-579):

"In order to be an 'occupier' it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice it that he has some degree of control. He may share control with others ... If a person has any degree of control over the state of the premises it is enough."

That approach is reflected in the application of regulation 4(2), like section 4(2), to every person who has "to any extent" control of the premises in question. It seems to me that the case law relevant to the concept of "occupation" under the 1960 Act (and the equivalent English legislation) may therefore provide guidance as to the question of "control of a workplace" under regulation 4(2): that provision can be regarded as, in effect, imposing a particular form of occupiers' liability.

58. The second context in which regulation 4(2) uses the concept of "control" is in its reference to "matters within that person's control". The latter phrase reflects the fact that regulation 4(2) extends to every person who has control of a workplace "to any extent": one can say that a person has, to some extent, control of a workplace only because there are "matters" relating to the workplace which are wholly or partly within that person's control. This construction of regulation 4 enables the expression "control" to be understood in the same sense throughout the provision, rather than requiring a distinction to be drawn between the concept of "control" of premises and the concept of "control" of "matters". I shall discuss other issues relating to the meaning of "control" in the context of the cases against the third, sixth and eighth defenders.
59. In the present case there is, as I have mentioned when discussing occupiers' liability under the 1960 Act, nothing in the pursuer's averments to indicate any basis upon which the first defenders could be said to have had control of the premises at the material time to any extent. There is, as I have mentioned, an averment that "the first, second, third, fourth and fifth defenders had control of the workplace as part of their business activities", but no specification (and, therefore, no notice) is given of any basis on which that averment might be established so far as the first defenders are concerned, beyond the earlier averments concerning such matters as their ownership of part of the building and their involvement in the obtaining of the specification. Equally importantly, there is no averment that the particular requirements founded upon (under regulations 5 and 13) related to matters which were within the first defenders' control; nor is there any specification of any basis on which those matters (namely the state of disrepair of the rail, the absence of measures to prevent any person falling from the roof and the absence of indications of danger) might be proved to be within their control. I therefore conclude that the pursuer's pleadings do not set out a relevant case against the first defenders under the Workplace Regulations.

2. The case against the second defenders

60. According to the pursuer's pleadings, the second defenders became heritable proprietors of the upper floors of the building (i.e. the floors above the ground floor), with a right in common to the roof, under a disposition which was registered on 18 July 1996. The date of entry was stated in the disposition to be 3 June 1996. They were therefore uninfeft proprietors on the date of the accident.
61. According to the pursuer's pleadings, the third defenders had been since 1982 the tenants of the part of the building which was purchased by the second defenders in June 1996. The tenancy expressly included, within the subjects of let, a right in common to the roof. Nothing is averred about repairing obligations under the lease.
62. The pursuer's pleadings also refer to a Mr Lovatt, who is said to be an officer of the second, third and fourth defenders. It is averred that Mr Lovatt was able to arrange for access by prospective contractors and others on to the roof for the purpose of the second, third and fourth defenders. It is averred that on the date of the accident, the ninth defenders' surveyor, Mr Mallon, had telephoned Mr Lovatt to advise him that scaffolding estimates were to be reviewed on site that day, and that Mr Lovatt had given his permission to proceed. It is averred that Mr Lovatt knew that the works would involve both the rail and scaffolding at the rear of the flat roof. The pursuer's pleadings also state that it is believed to be true that Mr Lovatt, on behalf of the second, third and fourth defenders, would have requested the eighth defenders to allow access for prospective contractors and others such as the pursuer. As I have mentioned, the pursuer further avers that the specification of works required for the renovation of the building was prepared on the instructions of the first defenders and Mr Lovatt; and it is averred that the content of the specification and of the drawing referred to earlier was known to the first, second, third, fourth and fifth defenders. The pursuer's averments, so far as relevant to the case against the second defenders, are otherwise generally the same as those relevant to the case against the first defenders.
63. Against this background, the pursuer alleges the same breaches of section 2(1) of the 1960 Act, and of the Workplace Regulations, as those alleged against the first defenders.

(a) The case under the Occupiers' Liability (Scotland) Act 1960

64. In challenging the relevancy and specification of the pursuer's averments relating to the 1960 Act, counsel for the second defenders relied on the submissions which had been advanced on behalf of the first defenders. It was submitted that the second defenders were merely averred to have been heritable proprietors of subjects which were let to others; and that they had only acquired their interest five weeks before the accident.
65. In reply, counsel for the pursuer also relied upon the submissions made in respect of the first defenders. In relation to the averments concerning Mr Lovatt, counsel said that the pursuer was unable to say whether Mr Lovatt had been acting in the capacity of an officer of the second (or any other specific) defenders.
66. Considering first the question whether the pursuer's averments are relevant to establish that the second defenders were occupiers of the roof at the time of the accident, their ownership of the subjects let to the third defenders is insufficient. The only possible point of distinction between the positions of the first and second defenders arises from the involvement of Mr Lovatt. As I have mentioned, the pursuer avers:

"With reference to the averments in answer by the eighth defenders believed to be true that Mr Lovatt on behalf of the second, third and fourth defenders would have requested the eighth defenders to allow access for prospective contractors and others such as the pursuer."

Despite the opening words in that sentence, the eighth defenders do not aver that Mr Lovatt made such requests on behalf of the second, third and fourth defenders. The pursuer's averments do not disclose a reasonable basis for the "belief" that Mr Lovatt made such requests for access "on behalf of" the second defenders; and counsel candidly acknowledged that the pursuer could not say that Mr Lovatt was acting in the capacity of an officer of that (or any other) specific company.

67. Even taking the pursuer's averments at their highest, they do not disclose a basis for establishing that the second defenders had possession and control of the roof at the date of the accident. On the contrary, they disclose that the subjects owned by the second defenders, including a right in common to the roof, had been let to a tenant. The averments and submissions concerning Mr Lovatt are consistent with an absence of control on the part of the second defenders, and with control over access to the roof being held by the tenants or those deriving right from them. I am therefore of the view that, on the basis of this first ground of challenge, the averments directed against the second defenders, so far as based on the 1960 Act, are irrelevant.
68. I consider next the question whether, even if the second defenders were an "occupier" of the roof, the pursuer's averments are relevant to establish that the second defenders owed to the pursuer, under the 1960 Act, the duties averred. The issues arising in relation to this question appear to me to be the same as those discussed earlier in relation to the first defenders; and I arrive at the same conclusion. On the basis also of this second ground of challenge, I consider that the averments directed against the second defenders, so far as based on the 1960 Act, are irrelevant and lacking in specification.

(b) The case under the Workplace Regulations

69. In relation to the case against the second defenders under the Workplace Regulations, counsel relied upon the submissions advanced in respect of the first defenders. For the reasons which I explained when considering the case against the first defenders, I consider that the pursuer has relevantly averred that the roof in question was a "workplace" to which the regulations applied. There is however no specification given in the pursuer's averments of any basis upon which it might be established that the second defenders were at the material time in control of that workplace within the meaning of regulation 4(2). Nor is there any specification of any basis on which it might be established that the particular requirements of regulations 5 and 13 on which the pursuer relies related to matters within the control of the second defenders. I therefore conclude that the pursuer's pleadings do not set out a relevant case against the second defenders under the Workplace Regulations.

3. The case against the third defenders

70. The third defenders are averred to have been the tenants of the upper floors of the building since 1982; and it is averred that the subjects of let expressly included a right in common to the roof. According to the pursuer's pleadings, the third defenders sub-let a number of the offices on the upper floors. They are said to have sub-let two offices to the eighth defenders, including the office from which a door gave access to the flat roof. They themselves are said to have occupied another of the offices. The pursuer's averments, so far as relevant to the case against the third defenders, are otherwise generally the same as those relevant to the case against the first and second defenders. Nothing is averred by the pursuer about repairing obligations under the lease or the sub-leases.
71. Against this background, the pursuer alleges the same breaches of section 2(1) of the 1960 Act, and of the Workplace Regulations, as those alleged against the first and second defenders.

(a) The case under the Occupiers' Liability (Scotland) Act 1960

72. In challenging the relevancy and specification of the pursuer's averments relating to the 1960 Act, counsel for the third defenders addressed first the question whether the pursuer had relevantly averred that the third defenders were an "occupier" of the roof. It was submitted that the averments about their tenancy, and in particular that the lease included a right in common to the roof, were insufficient. A right in common did not in itself imply a right of access to the roof or control of the roof. The tenant could have a right to shelter from the roof, without having a right to go on to the roof or to control access to the roof. It was averred that the eighth defenders, as their sub-tenants, had physical control over the door which gave access to the roof. If the pursuer's contention was that a right in common under a lease had implications which enabled the court to draw an inference that the tenant was in possession and control of the roof, those implications needed to be the subject of averment. Counsel in addition relied generally on the submissions made on behalf of the first defenders.
73. In reply, counsel for the pursuer relied on the submissions made in relation to the first and second defenders. No reliance was placed upon section 3(2) of the 1960 Act.
74. As I have mentioned, the pursuer avers that the third defenders occupied one of the offices within the building. Except to the extent that they had sub-let the subjects of their own lease, they were prima facie in possession and control of those subjects, by virtue of the lease. The subjects of the lease are averred to have included a right in common to the roof; and that right is not averred to have been included in any of the sub-leases. According to the pursuer's averments, the door which gave access to the roof was within the premises sub-let to the eighth defenders. That might be regarded as potentially relevant, since it has sometimes been said that a person is only in occupation of premises for the purposes of the 1960 Act if he has the power of permitting or prohibiting the entry of other persons (see e.g. Murray v Edinburgh District Council at page 255). The pursuer's averments do not however suggest that the eighth defenders possessed a power to prohibit entry by the third defenders or persons acting with their authority; nor, for that matter, is such a suggestion made in the averments of the third defenders. In any event, a test based on the power to permit or prohibit entry was described in Wheat v Lacon as too narrow (at page 579 per Lord Denning, with whose observations Lord Pearce expressed his agreement). In the passage from the speech of Lord Denning at page 579 which I quoted earlier, his Lordship noted that an owner who let floors or flats in a building to tenants, but did not demise parts such as the roof, was regarded as having retained control of all parts not demised by him, and on that basis had been held responsible for the gutters on the roof. The same principle would apply, mutatis mutandis, to a tenant under a head lease who sub-let offices but did not include in the sub-lease his interest in the roof. Notwithstanding that the third defenders had sub-let the premises which contained the door giving access to the roof, they may nevertheless have retained a sufficient degree of control over the state of the roof to have owed a duty of care towards persons going on to it.
75. Although the pursuer's pleadings are not as clear as they might be, it appears to me that I cannot exclude the possibility, at this stage of the proceedings, that the pursuer may be able on the basis of his averments to lead sufficient evidence to establish that the third defenders were occupiers of the roof for the purposes of the 1960 Act.
76. The matter of the relevancy of the pursuer's pleadings does not, however, end there. Counsel for the third defenders also challenged the relevancy of the averments of duty, and adopted the submissions which had been made in relation to that issue on behalf of the first defenders. In reply, counsel for the pursuer similarly relied on the submissions advanced in relation to the first defenders.
77. As I explained when considering the case against the first defenders, it is essential to bear in mind that one is not concerned, when considering the case under the 1960 Act, with whether a duty was owed to persons in general who might go on to the roof (such as, for example, a tradesman engaged to carry out an ad hoc repair to the roof), or to the eighth defenders' employees: the issue is whether a relevant basis has been averred for maintaining that the duties averred were owed by the third defenders to the pursuer. The pursuer was brought on to the roof by the main contractor who had been appointed to carry out the renovation works. He was brought there as an employee of a potential sub-contractor, to enable his employers to tender for the scaffolding contract. If the specification of the renovation works is to be construed as including work to render secure a rail which was in an insecure condition (as the pursuer's counsel maintained), then in my opinion the third defenders were entitled to expect that those undertaking the renovation works would take the necessary precautions to protect those whom they brought on to the site, such as the pursuer, from any risk presented by the insecure condition of the rail; and the third defenders therefore owed no duty of care to the pursuer in respect of that risk. In that regard, I refer to my observations about the case against the first defenders. If, on the other hand, the specification is not to be so construed, then the implication is that the third defenders, having instructed a specification by surveyors of the works required for the renovation of the building, had not been made aware that the rail was in an insecure condition. In that event, equally, it appears to me that the third defenders would not owe to the pursuer the duties averred. I refer again to my observations about the case against the first defenders.
78. For these reasons, I conclude that the averments directed against the third defenders, so far as based on the 1960 Act, are irrelevant and lacking in specification.

(b) The case under the Workplace Regulations

79. In relation to the case against the third defenders under the Workplace Regulations, counsel relied upon the same submissions as had been advanced in respect of the first defenders.
80. For the reasons set out above in relation to the first defenders, I accept that the Workplace Regulations applied to the roof at the material time (taking the pursuer's averments pro veritate). I also accept that the pursuer's averments may enable him to establish that the third defenders had to some extent control of the roof, within the meaning of regulation 4(2). In that regard, I refer to my observations about the third defenders' status as "occupiers" within the meaning of the 1960 Act. It was not argued by counsel for the third defenders that the roof was other than a workplace, within the meaning of regulation 2(1).
81. In these circumstances, I cannot exclude the possibility that the pursuer may be able to establish that the third defenders were bound to ensure that the roof complied with any requirement of the regulations which inter alia related to matters within their control.
82. The first requirement relied upon is that imposed by regulation 5(1):

"The workplace ... shall be maintained ... in good repair."

Since the third defenders are averred to have occupied part of the building under a lease which included a right in common to the roof, I cannot exclude the possibility that the pursuer may be able to establish after proof that the third defenders had control, along with others, of the state of repair of the roof, including the rail in question. Following the same approach, I reach the same conclusion in respect of the requirements of regulation 13 on which the pursuer relies. The question therefore arises whether, in order for a matter to be "within that person's control", in terms of regulation 4(2), the matter must be within that person's exclusive control, or whether it is sufficient that that person and others have joint control of the matter in question.

83. The broad definition of "workplace" has the consequence that the regulations can cover parts of premises where a person works only temporarily, or which constitute a means of access to a place of work: for example, a roof, a lift or a staircase. Such parts of a building may constitute common parts in respect of which no particular occupier has exclusive control over such matters as maintenance and repair. Such matters may be within the joint control of a number of persons. It appears to me that such matters must nevertheless be regarded as being within the control of each such person, in terms of regulation 4(2), if the regulations are to be interpreted in a manner which is consistent with the aims of the directive which they were intended to implement. The regulations cannot in my opinion have been intended to have no application to such a situation; and I therefore conclude that matters may be within a person's control, within the meaning of regulation 4(2), without necessarily being within that person's exclusive control.
84. In these circumstances, I conclude that the case against the third defenders under the Workplace Regulations should proceed to proof before answer.
85. The conclusion I have reached in relation to the case under the Workplace Regulations is different from my conclusion in respect of the case under the 1960 Act. That difference reflects two points of distinction between the regulations and the 1960 Act. First, the 1960 Act is concerned with the duty of care, if any, which arises out of the relationship between the particular parties: in this instance, between the pursuer and the third defenders. The regulations, on the other hand, are concerned with the condition of premises which are used as a workplace. Secondly, any obligation arising under the 1960 Act is one of reasonable care; whereas the requirements imposed by the regulations may be absolute (as in the case of regulations 5 and 13, subject in the latter case to a defence of reasonable practicability).

4. The case against the fourth defenders

86. The pursuer avers:

"At the relevant time the fourth defenders had some control over the building."

It is also averred that Mr Lovatt, an officer of the second, third and fourth defenders, was noted at meetings with the ninth defenders, in relation to the contract for the renovation works, to be in a position on behalf of the fourth defenders to give instructions as to the parties to the contract and as to when and how entry and access to the site would be taken by the ninth defenders. The only other averments relating to the fourth defenders concern Mr Lovatt and the specification for the works, and were summarised earlier in the context of the case against the first and second defenders.

87. Against that background, the pursuer alleges the same breaches of section 2(1) of the 1960 Act, and of the Workplace Regulations, as those alleged against the first to third defenders.

(a) The case under the Occupiers' Liability (Scotland) Act 1960

88. In challenging the relevancy and specification of the pursuer's averments relating to the 1960 Act, counsel for the fourth defenders relied on the submissions advanced on behalf of the first and second defenders. It was submitted that there were no relevant averments that the fourth defenders had possession or control of the roof. The averments concerning Mr Lovatt's involvement in the contract for the renovation works were insufficient to establish that the fourth defenders occupied any part of the building.
89. In reply, counsel for the pursuer relied upon the submissions made in relation to the first and second defenders. He submitted that it might be possible for the pursuer to establish an element of control by the fourth defenders over the state of the premises, given Mr Lovatt's involvement in the contract for the renovation works.
90. In my opinion the pursuer's averments are not relevant to establish either that the fourth defenders were occupiers of the roof at the time of the accident or, in any event, that they owed to the pursuer, under the 1960 Act, the duties averred. I reach that conclusion for the same reasons as in the cases of the first and second defenders: the averments directed against the fourth defenders are in my opinion even more nebulous.

(b) The case under the Workplace Regulations

91. In relation to the case against the fourth defenders under the Workplace Regulations, counsel relied upon the submissions advanced in respect of the first defenders. For the same reasons as in the cases of the first and second defenders, I conclude that the pursuer's pleadings do not set out a relevant case against the fourth defenders under the Workplace Regulations.

5. The case against the fifth defenders

92. According to the pursuer's pleadings, the fifth defenders were named as the employer in the contract with the ninth defenders. The pursuer avers:

"The fifth defenders also at the relevant time had an element of control over the building. It was confirmed at a minute of a pre-start meeting with the ninth defenders on 3 July 1996 that they would be the client in respect of the building contract. The fifth defenders therefore had power to authorise and contract for works to be carried out on the building."

It is also averred that the terms of the specification were known to the fifth defenders. [93] Against this background, the pursuer alleges the same breaches of section 2(1) of the 1960 Act, and of the Workplace Regulations, as those alleged against the first to fourth defenders.

(a) The case under the Occupiers' Liability (Scotland) Act 1960

93. In challenging the relevancy and specification of the pursuer's averments relating to the 1960 Act, counsel for the fifth defenders relied on the submissions advanced on behalf of the first and second defenders.
94. In reply, counsel for the pursuer raised a new issue, relating to the Construction (Design and Management) Regulations 1994 (SI 1994 No. 3140). Counsel submitted that the fifth defenders were a "client" within the meaning of regulation 2(1). They were therefore subject to a variety of duties under the regulations: they must in particular appoint a "planning supervisor" (regulation 6); and the planning supervisor must ensure that a health and safety plan was prepared (regulation 15). Counsel acknowledged that the regulations did not create any civil liability (regulation 21: I observe that this is subject to exceptions, but no reference was made by counsel to those exceptions). Counsel did not suggest that the fifth defenders were in breach of the 1994 Regulations, but submitted that the regulations demonstrated that a "client" such as the fifth defenders could not adopt a passive role; and they were therefore relevant to the position of the fifth defenders under the 1960 Act.
95. No reference is made in the pursuer's pleadings to the 1994 Regulations, or to any measures taken or not taken by the fifth defenders in order to comply with the regulations. They are not in these circumstances germane to the relevancy of those pleadings. In any event, occupation within the meaning of the 1960 Act does not depend on whether the fifth defenders were subject to certain statutory duties, but on whether they were in possession and control of the premises in question at the material time. In relation to that issue, the pursuer's averments are in my opinion irrelevant. I also consider that the pursuer's averments are in any event irrelevant to establish that the fifth defenders owed to the pursuer, under the 1960 Act, the duties averred. I reach these conclusions for the same reasons as in the cases of the first, second and fourth defenders.

(b) The case under the Workplace Regulations

96. In relation to the case against the fifth defenders under the Workplace Regulations, counsel relied upon the submissions advanced in respect of the first defenders. For the same reasons as in the cases of the first, second and fourth defenders, I conclude that the pursuer's pleadings do not set out a relevant case against the fifth defenders under the Workplace Regulations.

6. The case against the sixth defenders

97. The pursuer avers that the sixth defenders are the tenants of the ground floor shop premises in the building where the accident happened, and that the subjects let included a right in common to the roof. It is averred that they traded from the premises. It is also averred that their lease obliges the tenant to keep "the premises" in good and substantial repair, the expression "the premises" being defined as meaning "each and every part of the subjects hereby let." The pursuer also avers:

"In the circumstances in which works were being proposed to parts of the building in respect of which they had a heritable interest in common and to which they would have been liable to make a financial contribution it is believed and averred that the content of the specification of the renovation works, and the drawing was known to the sixth and seventh defenders."

98. Against that background, the pursuer alleges the same breaches of section 2(1) of the 1960 Act, and of the Workplace Regulations, as those alleged against the first to fifth defenders.

(a) The case under the Occupiers' Liability (Scotland) Act 1960

99. In challenging the relevancy and specification of the pursuer's averments relating to the 1960 Act, counsel for the sixth defenders adopted the submissions made on behalf of the first to fifth defenders. In addition, counsel criticised the relevance of the averments which I have quoted, citing the observations of Lord Justice Clerk Thomson on the use of the formula "believed and averred" in Brown v Redpath Brown & Co Ltd, 1963 SLT 219 at page 222.
100. In reply, counsel for the pursuer submitted that the averments relating to the sixth defenders' lease, and to their repairing obligation under that lease, were relevant to establish occupation of the roof within the meaning of the 1960 Act. So far as the sixth defenders' duties under the Act were concerned, counsel relied on the pursuer's averments that all the defenders knew or ought to have known that persons would have access to the roof for reasons connected with the proposed renovation works, that the sixth defenders were believed to be aware of the specification of works, and that a reasonable system of inspection would have involved six monthly inspections of the rail.
101. I accept that the pursuer's averments may enable him to establish that the sixth defenders were "occupiers" of the roof within the meaning of the 1960 Act. I do not however consider that the pursuer's averments are relevant to establish that the sixth defenders owed to the pursuer, under the 1960 Act, the duties averred. My reasoning in relation to these issues is the same as in the case of the third defenders.

(b) The case under the Workplace Regulations

102. In relation to the case against the sixth defenders under the Workplace Regulations, counsel for the sixth defenders adopted the submissions made on behalf of the first to fifth defenders. In addition, counsel submitted that the case of the sixth defenders was in any event distinguishable from those of the other defenders, since the sixth defenders had no actual or constructive knowledge of the pursuer's presence on the roof.
103. In relation to the latter point, counsel drew attention to the definition of a "workplace", in regulation 2(1), as "premises ... which are made available to any person as a place of work". Counsel submitted that the roof did not become a workplace until it was "made available" as a place of work. A person could not be in breach of the regulations unless he had made the workplace available or knew that it was being made available, since he could not otherwise exercise the control contemplated by regulation 4. The concept of "control", in regulation 4, must therefore embrace knowledge that the place in question was being made available as a place of work.
104. In reply, counsel for the pursuer relied on the submissions advanced in relation to the first defenders. In relation to the additional issue raised, counsel submitted that, in the context of the regulations, foreseeability was relevant only to the extent that it might be material to a defence raising the question of reasonable practicability.
105. The persons to whom the regulations apply, by virtue of regulation 4(2), are "every person who has, to any extent, control of a workplace". Although the expression "workplace" is defined by regulation 2(1) as meaning "any premises or part of premises which are not domestic premises and are made available to any person as a place of work", there is in my opinion nothing in regulation 4(2) which restricts its scope to persons by whom the workplace in question has been made available, or to persons by whom it is known that the premises in question have been made available as a place of work.
106. The remaining question is whether the pursuer's averments are relevant to establish that the particular requirements founded upon (under regulations 5 and 13) related to matters within the sixth defenders' control. So far as that question is concerned, the position of the sixth defenders appears to me to be indistinguishable, at the present stage of the proceedings, from that of the third defenders. I shall accordingly allow the case against the sixth defenders under the Workplace Regulations to proceed to proof before answer. I shall not exclude from probation the averments of belief, as it appears to me to be possible that the facts averred might enable evidence to be led which would justify the inference which the pursuer seeks to draw.

7. The case against the seventh defenders

107. The pursuer avers that the seventh defenders are the tenants of the basement shop premises in the building where the accident happened, and that the subjects let included a right in common to the roof. I have quoted, in the context of the case against the sixth defenders, the pursuer's averments attributing to the sixth and seventh defenders knowledge of the specification of the renovation works and of the drawing.
108. Against that background, the pursuer alleges the same breaches of section 2(1) of the 1960 Act, and of the Workplace Regulations, as those alleged against the first to sixth defenders.

(a) The case under the Occupiers' Liability (Scotland) Act 1960

109. In challenging the relevancy and specification of the pursuer's averments relating to the 1960 Act, counsel for the seventh defenders adopted the submissions made on behalf of the first to fifth defenders. Counsel emphasised in particular that any "control" which the seventh defenders possessed could only flow from the rights conferred upon them by their lease. Nothing specific was however said about that matter in the pursuer's pleadings. There were no averments, for example, as to any right which the seventh defenders might have to inspect the rail, or to carry out work on it, or even to obtain access to the roof. Counsel drew attention to the seventh defenders' averments:

"Explained and averred that no duty or right of inspection of other parts of the building was imposed on or granted to the seventh defenders in terms of the lease. Their obligation regarding the common parts was only to pay the due and equitable proportion attributable to their premises of all costs and expenses incurred in repairing, maintaining and cleansing of the common parts as demanded by the landlord or the surveyor. Reference is made to the lease ... and in particular clauses FIRST(3), SECOND and SEVENTH(3) thereof."

Those averments were met by a bare denial. It was incumbent upon the pursuer to aver what the tenant's relevant obligations were. Counsel referred in this connection to Murray v Edinburgh District Council at pages 255 and 256, where the Lord Ordinary, Lord Maxwell, said:

"The pursuer nowhere condescends on the defenders' responsibilities under the lease in the present case or states from which of such responsibilities the alleged liability in this case arises. The significance of this omission is pointed to in this case by the defenders' averments as to the precise terms of their responsibilities ... of course in a question of relevancy I am not concerned with the defenders' averments, but in my opinion it will not do for a pursuer, relying on section 3(1) of the 1960 Act, to make no averment as to the defenders' responsibility and to meet the defenders' averments on that matter with a bare denial."

Counsel also adopted the submissions made by counsel for the sixth defenders in relation to the use made by the pursuer of the formula "believed and averred".

110. In reply, counsel for the pursuer submitted that at common law, and in the absence of agreement to the contrary, the tenant of premises was under a duty to keep them in good repair. Any dispute as to the effect of the lease could not be resolved at the present stage of the proceedings. The seventh defenders could not complain of a lack of fair notice: they were aware of the terms of their lease. It was impossible to conclude at this stage, for example, that the seventh defenders had no right of access to the roof for the purpose of carrying out inspections and effecting repairs.
111. I accept that the pursuer's averments may enable him to establish that the seventh defenders were "occupiers" of the roof within the meaning of the 1960 Act. My reasoning on that point is the same as in the case of the third and sixth defenders. As in the case of those defenders, I acknowledge that the pursuer's averments on the issue of the seventh defenders' occupation and control are not a model of specification; but I cannot at this stage determine that, so far as the matter of "occupation" is concerned, the pursuer is bound to fail.
112. In particular, I do not regard the observations of Lord Maxwell in Murray v Edinburgh District Council as being in point. Those observations concerned a case brought under section 3(1) of the 1960 Act. That section imposes a liability upon landlords which arises from their responsibility, under the lease, for maintenance or repair. As Lord Maxwell noted, such responsibilities vary from lease to lease and may arise, for example, from terms implied by the common law, from express stipulations, or from statutory provisions. Lord Maxwell's observations reflect that context. As Lord Denning explained in Wheat v Lacon at page 579 (referring to the equivalent provision, under the Occupiers' Liability Act 1957, to section 3(1) of the 1960 Act), the statutory liability of the landlord innovated upon the common law, under which the landlord was regarded as parting with all control of the subjects of let to the tenant, even where he had undertaken an obligation to repair. A tenant of premises, on the other hand, is (in general) regarded as being sufficiently in control of the subjects of his lease to owe a duty of care to persons coming on to the premises, whether the contractual obligation to keep the subjects in repair rests upon himself or upon the landlord.
113. On the other hand, I do not consider that the pursuer's averments are relevant to establish that the seventh defenders owed to the pursuer, under the 1960 Act, the duties averred. My reasoning in relation to that issue is the same as in the case of the third and sixth defenders.

(b) The case under the Workplace Regulations

114. In relation to the case against the seventh defenders under the Workplace Regulations, counsel relied upon the submissions advanced in respect of the first defenders. The position of the seventh defenders appears to me to be indistinguishable, at the present stage of proceedings, from those of the third and sixth defenders, and I shall therefore allow the case against them under the Workplace Regulations to proceed to proof before answer.

8. The case against the eighth defenders

115. The eighth defenders are averred by the pursuer to be the sub-tenants of two offices within the building, including the office from which entry is obtained to the flat roof. It is averred that they thus had physical control of access to the roof. It is also averred that, shortly before the accident, the pursuer and Mr Mallon spoke to Mr Thorburn, a safety consultant employed by the eighth defenders. It is averred that they indicated that they wished to proceed on to the roof, and that Mr Thorburn indicated his acceptance of this. They therefore proceeded on to the roof through the door in the office occupied by the eighth defenders. It is also averred that the roof was used by employees of the eighth defenders in the course of their working day as a place for smoking. The pursuer further avers that the eighth defenders were aware of proposed works in the vicinity of the roof.
116. Against this background, the pursuer alleges breaches of section 2(1) of the 1960 Act and of the Workplace Regulations.

(a) The case under the Occupiers' Liability (Scotland) Act 1960

117. The pursuer makes inter alia the following averments in relation to section 2(1) of the 1960 Act:

"The eighth defenders had control of the access to the flat roof. The flat roof was used by their staff. They were permitted subject to the other rights herein averred to occupy the flat roof. They knew or ought to have known that persons such as the pursuer would require access to the flat roof for reasons associated with the renovation works."

The pursuer then avers that the eighth defenders were under a duty to carry out regular inspections of the rail at least every six months, and were under consequential duties to have caused the rail to be repaired, or in any event to have put an effective barrier in front of the rail, or at least not to have allowed persons on to the roof without warning of the danger caused by the condition of the rail.

118. In challenging the relevancy of those averments, the solicitor-advocate for the eighth defenders adopted the submissions made on behalf of the first to fifth defenders, and in addition made the following submissions. There was no averment that the eighth defenders' sub-lease included the roof or conferred on them any right in relation to the roof; there was no averment that their sub-lease imposed on them any obligation in relation to the roof; and there was no averment that they had any involvement in the instruction of the renovation works, or any knowledge of the terms of the specification. So far as the door to the roof was concerned, it was averred that the eighth defenders had physical control of access to the roof, but not that they had any legal right to control access. It was averred that the roof was used by their employees as a place to smoke, but not that those employees or the eighth defenders had any right to make any use of the roof. So far as the conversation with Mr Thorburn was concerned, there was no averment that he had been asked for permission to go on to the roof.
119. Mere presence on premises, especially when that presence was unauthorised, was insufficient to establish possession and control: Gloag and Henderson, Introduction to the Law of Scotland (11^th ed., 2001) at page 494. Equally, the physical ability to regulate access to premises did not constitute control or occupation of the premises unless a lawful power was being exercised. Reference was made in this connection to Feeley v Co-operative Wholesale Society Ltd, 1990 SLT 547. The combination of physical presence on the premises together with the physical ability to regulate access to the premises was likewise insufficient in itself to constitute occupation of the premises within the meaning of the 1960 Act.
120. By way of illustration, reference was made to the decision of the Court of Appeal in Bailey v Armes [1999] EGCS 21. The plaintiff in that case was a boy who had been injured when he fell off the flat roof of a supermarket. He had been playing there with one of the children of the defendants, who lived in a flat which overlooked the roof. The defendants occupied the flat under a licence which did not include any right in respect of the roof. Access to the roof could be gained via the defendants' bedroom; and they permitted their children to go on to the roof and play there. The action was brought against the defendants partly on the basis of occupiers' liability, and it was therefore necessary to decide whether the defendants were occupiers of the roof. On behalf of the plaintiff, it was submitted that, since the defendants controlled access to the roof from their flat, and since they let their children go on to the roof, there was a sufficient exercise of control for them to be classified as occupiers of the roof. That submission was rejected.
121. In the event that the eighth defenders were to be regarded as occupiers of the roof, their solicitor-advocate adopted the submissions made on behalf of the first to fifth defenders concerning the alleged duties. In addition, it was submitted that the case against the eighth defenders was fundamentally based upon a duty of inspection, since the other averments of duty were based upon constructive knowledge of the defects which such an inspection would allegedly have revealed: it was not suggested, in particular, that the eighth defenders had knowledge of the contents of the specification. The case based upon a duty of inspection at six monthly intervals was however irrelevant, for the reasons advanced on behalf of the first defenders and, in addition, because of the absence of any specification of the date when the eighth defenders were supposed to have become sub-tenants (the existence of a sub-tenancy being disputed by the eighth defenders).
122. In reply, counsel for the pursuer submitted that the eighth defenders' occupation of the office through which access was obtained to the roof, together with the use made of the roof by their employees, were sufficient to constitute occupation of the roof within the meaning of the 1960 Act. If it had been one of the eighth defenders' employees who had fallen from the roof, it would have been difficult to regard the eighth defenders otherwise than as occupiers of the roof. The case of Bailey v Armes was distinguishable on its facts. The plaintiff in that case had been on the roof without the knowledge or permission of the defendants; access to the roof had been obtained, on the occasion of the accident, from a third party's garden wall, rather than from the defendant's flat; and the defendants were private householders, rather than the employers of the persons using the roof.
123. In my opinion the pursuer's averments are not relevant to establish that the eighth defenders were occupiers of the roof. Those averments, even if proved, would not establish that the eighth defenders had possession and control of the roof. The "control" of premises which brings a person within the ambit of section 2(1) of the 1960 Act is such control of the premises as enables that person lawfully to take the steps which are necessary to fulfil the duty of care imposed by that section. There is however nothing in the pursuer's pleadings which would enable the pursuer to establish that the eighth defenders were in a position, by reason of control of the roof, to take the steps specified as necessary to protect persons entering on the roof, i.e. to provide an effective barrier at the edge of the roof, or to cause the rail to be repaired, or to put up signs on the roof and the access to it, or to put up a barrier in front of the rail, or to issue a warning about the danger caused by the state of the rail. The eighth defenders may have been in a position to take certain of those steps - to put up a sign on the door leading to the roof, for example, or to issue warnings - but their ability to take those steps would not derive from control of the roof, and would not therefore found a liability under section 2(1) of the 1960 Act.
124. The submission that the eighth defenders would be regarded as occupiers of the roof, if it had been one of their employees who had fallen, begs the question in issue: in that situation, consideration would have to be given to the duty of care arising at common law out of the relationship between an employer and his employees.
125. I also have to consider the submissions concerning the averments that particular duties were owed to the pursuer, on the hypothesis that the eighth defenders were occupiers of the roof. In that context, it is again important to remember that the question is not whether the eighth defenders owed the duties averred to their employees, or to persons in general going on to the roof, but whether they owed those duties to the pursuer. The pursuer avers, as the basis of the duties in question:

"They knew or ought to have known that persons such as the pursuer would require access to the flat roof for reasons associated with renovation works."

The pursuer's averments do not however explain why an occupier of premises on which renovation works are to be carried out by independent contractors owes a duty of care to an employee of a potential sub-contractor, going on to the roof with an employee of the main contractor in connection with the works, in respect of the risk that Victorian ironwork at the edge of the roof may be in a state of disrepair and in consequence unable to support his weight. As I have mentioned, such ironwork is a not uncommon feature of older houses and tenements in Scotland, as well as of properties in commercial use. The relationship between a householder and a contractor undertaking renovation works to the roof (or those persons whom he brings on to the site) would not in my opinion, in the absence of special circumstances, impose upon the householder a responsibility to protect the contractor (or such persons) from risks arising from the state of disrepair of the roof. In particular, it appears to me that the householder would not ordinarily be under a responsibility to guard against the risk that, in the event of a contractor or potential contractor choosing to rely on such a rail for his safety, it might be unsafe for his purpose. I refer in that regard to the discussion of the case under the 1960 Act against the first defenders and the authorities cited there (e.g. Christmas v General Cleaning Contractors Ltd at page 148 per Denning LJ, as he then was). The fact that a building is in commercial, rather than residential, occupation does not appear to me to be a material distinction: no principled basis was suggested for drawing a distinction between, for example, the duty owed by the shopkeeper who occupies the ground floor of a tenement, and the duty owed by the residential occupier of a flat on an upper floor of the same building.

126. The pursuer's averments relating to a duty of inspection are in my opinion in any event irrelevant, for the reasons explained in the context of the case against the first defenders, and in addition because of the failure to make any averment as to the length of time during which the eighth defenders had allegedly been occupiers of the roof.
127. For all these reasons, the averments directed against the eighth defenders, so far as based on the 1960 Act, are in my opinion irrelevant and lacking in specification.
128. Finally, as I mentioned when discussing the case against the first defenders, it was argued that the fact that identical duties under the 1960 Act were averred to be incumbent upon each of the first to eighth defenders entailed that the pursuer was attempting to maintain a number of inconsistent cases. In view of my conclusion that the pursuer has not averred a relevant case under the 1960 Act against any of the defenders, this argument is not critical to my decision. I should however address it.
129. In support of the argument, counsel for the defenders relied upon the decision in Allison v Isleburn Ltd, 1997 SCLR 791, where it was held that the pursuer could not relevantly make a case of failure to institute a safe system of working against two different defenders in respect of the same operation, no attempt being made to identify separate contributions which required to be made by the two defenders. Counsel for the pursuer however submitted that the present case was distinguishable, in that the defenders were all averred to have been occupiers of the same premises. They could therefore be under a joint obligation to keep the premises in a safe condition.
130. In relation to this issue, it appears to me that different occupiers of the same premises may be under an identical duty, for example to warn visitors of a danger. Had I been persuaded that the pursuer's pleadings otherwise contained relevant averments of a breach of duty under the 1960 Act, I would not have refused to remit them to probation on this ground.

(b) The case under the Workplace Regulations

131. The pursuer alleges the same breaches of the Workplace Regulations as those alleged against the first to seventh defenders.
132. In challenging the relevancy of the case under the Workplace Regulations, the solicitor-advocate for the eighth defenders submitted that the eighth defenders did not have "control" of the roof, within the meaning of regulation 4(2). Even if they were to be regarded as having a degree of control over the means of access to the roof, that did not give them control of the roof itself. It was further submitted that, in order for regulation 4(2) to apply, control had to be exercised by the eighth defenders as part of their undertaking. Regulation 4(3) provides:

"Any reference in this regulation to a person having control of any workplace ... is a reference to a person having control of the workplace ... in connection with the carrying on by him of a trade, business or other undertaking ...".

Reference was made in this connection to RMC Roadstone Products Ltd v Jester [1994] ICR 456 at page 470. Finally, it was submitted that regulations 5 and 13 did not in any event relate to matters within the eighth defenders' control.

133. In reply, counsel for the pursuer submitted that the roof was the pursuer's workplace at the time of the accident, since it constituted premises which had been made available to him as a place of work. He was entitled to bring proceedings under the regulations because their requirements had not been complied with in respect of his workplace. It was also necessary to bear in mind that the roof was, in addition, a workplace of the eighth defenders' employees, since it was made available to them as a place of work, or was at least a place to which they had access while at work, within the meaning of regulation 2(1). They continued to be "at work" during their breaks, while smoking. Whether the eighth defenders had to any extent "control" of that workplace had to be assessed in the context of the use made of the roof by their own employees. The eighth defenders had a degree of control over the door leading to the roof, and therefore had a degree of control over the activities taking place on the roof. The decision in RMC Roadstone Products Ltd v Jester related to section 3 of the Health and Safety at Work Act, which was concerned not with control of premises but with the conduct of an undertaking.
134. In my opinion there is, as I explained when discussing occupiers' liability under the 1960 Act, nothing in the pursuer's averments to indicate any basis upon which the eighth defenders could be said to have had control of the roof. There is an averment that "the eighth defenders had control of the flat roof as part of their business undertaking", but no specification of any basis on which that averment might be established, beyond the earlier averments concerning their sub-tenancy of the office in which the door to the roof was located and the use made of the roof by their employees as somewhere to smoke. Equally importantly, there is no averment that the particular requirements founded upon, under regulations 5 and 13, related to matters which were within the eighth defenders' control. I therefore conclude that the pursuer's averments do not set out a relevant case against the eighth defenders under the Workplace Regulations.

9. The case against the ninth defenders

135. The ninth defenders are averred to have been appointed as the main contractor for the renovation works. According to the pursuer's pleadings, they had asked his employers to estimate for the provision of scaffolding for the works; and their surveyor, Mr Mallon, accompanied the pursuer on to the roof and leaned with the pursuer on the rail while the pursuer was measuring the distance to the ground. It was at that point that the rail broke and the pursuer fell. It is averred that the ninth defenders had tendered for the contract on the basis of the specification and drawing already mentioned.
136. Again this background, the pursuer alleges the breach of a common law duty of care, and also breaches of the Workplace Regulations.

(a) The common law case

137. The pursuer makes inter alia the following averments:

"It was [the ninth defenders'] duty to take reasonable care for the safety of persons who required to be on the roof at their invitation. They knew or ought to have known that estimators for scaffolding work, such as the pursuer, would require access to the roof to complete their estimate ... They knew or ought to have known that the hand rail on the flat roof was in such a state that it required to be refixed and resecured as part of the works which they had agreed to undertake. In any event it was their duty by reasonable inspection to have made themselves aware of potential dangers from the state of the premises to persons such as the pursuer whom they invited on to the premises."

On the basis of actual or constructive knowledge of the condition of the rail, the pursuer avers that the ninth defenders were under consequential duties to cause warning signs to be placed on and in the vicinity of the rail, or at least to have advised staff such as Mr Mallon of the danger of the rail and to have instructed him to warn visitors whom he accompanied on to the roof, such as the pursuer.

138. In challenging the relevancy of these averments, counsel for the ninth defenders observed that the pursuer accepted that the ninth defenders had not taken possession of the site by the date of the accident; and the implication of the pursuer's averments about the conversations with Mr Lovatt and Mr Thorburn was that the ninth defenders had no entitlement to go on to the roof. The pursuer also accepted that, superficially, the rail looked in reasonable condition.
139. Counsel submitted, first, that the specification and drawing were an inadequate basis for the imputation to the ninth defenders of knowledge of a danger that the rail might give way. It was not suggested that the specification provided for the repair of the rail: the specification was said to have included a provision for "re-fixing" the rail, while the drawing indicated that the rail was to be "re-secured". Those words were apt to described the replacement of the rail in position, if it had to be removed during the course of the works (e.g. for painting, or to enable work to be done on the roof). They were not apt to describe work which addressed the proximate cause of the accident, namely the rusting of the plates which held parts of the rail together. At the least, the pursuer had to explain what danger these words were supposed to indicate. The pursuer's averment that the obtaining of estimates for a scaffolding platform at the level of the flat roof "indicated that structural work on the handrail was anticipated" was equally unclear. Secondly, counsel submitted that the pursuer's averments did not explain why it was reasonably foreseeable by the ninth defenders that the pursuer would go on to the roof. Although Mr Mallon must have known at some point that the pursuer intended to go on to the roof, no case was made against the ninth defenders on the basis of vicarious liability. Thirdly, counsel submitted that the pursuer's averments did not explain why it was reasonably foreseeable that the pursuer would lean on the rail. In that connection, counsel again drew attention to the absence of a case based on vicarious liability for Mr Mallon's conduct. Fourthly, counsel submitted that the pursuer's averments were not relevant to establish that the ninth defenders were in control of the roof, and therefore did not provide a basis for those duties which could only be fulfilled by a person having such control, i.e. to place signs on and near the rail. Finally, counsel submitted that a contractor was under no duty to carry out inspections and issue warnings so as to protect an employee of another contractor going about his work. To find such a duty would be a further example of what Diplock LJ (as he then was) had described as "the nursemaid school of negligence" (Savory v Holland & Hannen & Cubbitts (Southern) Ltd at pages 1165-1166).
140. In reply, counsel for the pursuer submitted that the provision in the specification could be interpreted as meaning that the rail was insecure. It could not be said at this stage of the proceedings that the specification could not justify the inference which the pursuer drew from it. Similarly, the averment as to the inference to be drawn from the height of the scaffolding platform was a matter for proof. It was sufficient if the pursuer might be able to prove that the ninth defenders ought to have known that the rail was in an insecure condition: the pursuer did not have to prove that the ninth defenders were aware of the specific defect which caused the accident. Apart from the specification and the height of the platform, the duty of inspection provided another basis for attributing constructive knowledge to the ninth defenders. In relation to the second point, the pursuer sufficiently averred the foreseeability of persons, such as employees of potential sub-contractors, requiring access to the roof for reasons associated with the proposed works. In relation to the third point, counsel submitted that the precise circumstances in which the pursuer fell - namely, his leaning on the rail - did not require to be foreseeable: all that was necessary was the foreseeability of a person's falling, if the rail was in an insecure state. In relation to the fourth point, counsel submitted that the ninth defenders possessed the limited degree of control which was required: they could control whether, and when, estimators such as the pursuer got access to the roof; and they were in a position to provide warning signs or barriers, or to issue warnings.
141. So far as concerns the first three points made on behalf of the ninth defenders, it appears to me that it would be premature to hold at this stage that the pursuer is bound to fail. In relation to the fourth point, the issue of control of the premises is central to the statutory case, which I discuss below, but it may not necessarily be vital to the common law case. The final point - whether a contractor may owe a duty of care, in such circumstances, to an employee of another contractor - raises a more difficult issue.
142. A contractor does not necessarily owe a duty of care to the employee of another contractor involved in the same project. That is because the relationship between them is not necessarily such as to give rise to such a duty. The absence of any such duty, in the absence of such a relationship, is illustrated by several of the authorities already mentioned, such as Savory v Holland & Hannen & Cubbitts (Southern) Ltd and Makepeace v Evans Brothers (Reading). It is however well established that situations may arise in which such a relationship will be held to exist. If the relationship is such as to impose upon the contractor a responsibility for the health and safety of the employee of the other contractor, then a duty of care will be held to exist. Such a relationship has most frequently been held to exist when the pursuer has been subject to the control or supervision of the defender, or where the injury arose through other circumstances for which the defender had responsibility (e.g. by reason of control over premises, or over plant and equipment, or over other workers). The well-known case of Clay v A J Crump & Sons Ltd [1964] 1 QB 533 illustrates the wide range of circumstances which may give rise to such a relationship. The responsibility which arises in such circumstances is the counterpart of the reliance which the pursuer can reasonably place on the defender to conduct his affairs with due regard for the pursuer's health and safety.
143. In the present case, it appears to me that I cannot at this stage exclude the possibility that the circumstances were such as to impose upon the ninth defenders a responsibility for the safety of the pursuer giving rise to the duties alleged. In particular, I cannot exclude the possibility that it was reasonable for the pursuer to place reliance on the ninth defenders to inform him of any latent danger on the roof of which they were aware or ought reasonably to have been aware, such as a rail which was liable to give way if he leant against it. Whether a duty of care existed, and the scope of such a duty, might depend on a variety of matters of fact to be established in evidence, especially so far as bearing on the ninth defenders' actual or constructive knowledge of the state of the rail and the reasonableness of any reliance being placed upon them to protect the pursuer from harm. At the present stage, all that can be said is that the pursuer has made sufficient averments to warrant inquiry into the facts.

(b) The case under the Workplace Regulations

144. In relation to the case under the Workplace Regulations, counsel relied on their submissions on the issue of "control".
145. In my opinion, the pursuer's averments are not relevant to establish that the ninth defenders had control of the roof to any extent at the material time. Although there is an averment that "the eighth [sic: "ninth" is meant] defenders had control over the access to the flat roof", there is no averment that they had control over the roof itself, and no averments on the basis of which such control might be established. Nor is there any averment that the particular requirements founded upon (under regulations 5 and 13) related to matters which were within their control. I shall therefore exclude from probation the case against the ninth defenders under the Workplace Regulations.

Conclusion

146. For the foregoing reasons, I shall sustain the first plea-in-law for each of the first, second, fourth, fifth and eighth defenders and dismiss the action so far as directed against them; I shall sustain the first plea-in-law for the third defenders to the extent of excluding from probation the pursuer's averments in article 5 of condescendence (i.e. those concerning the 1960 Act); I shall sustain the first plea-in-law for each of the sixth and seventh defenders to the extent of excluding from probation the pursuer's averments in article 7 of condescendence (i.e. those concerning the 1960 Act); I shall sustain the first plea-in-law for the ninth defenders to the extent of excluding from probation the pursuer's averments in article 12 of condescendence (i.e. those concerning the Workplace Regulations); I shall repel the pursuer's first plea-in-law to the extent that it refers to the breach of duties under the 1960 Act; and quoad ultra I shall allow parties a proof before answer.