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Cite as: [2006] ScotCS CSOH_107, [2006] CSOH 107

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OUTER HOUSE, COURT OF SESSION

[2006] CSOH 107

PD1134/05

OPINION OF LORD GLENNIE

in the cause

AUDREY WEIR AND OTHERS

Pursuers;

against

ROBERTSON GROUP (CONSTRUCTION) LIMITED AND OTHERS

Defenders:

________________

Pursuers: A. Smith, Q.C., Speir; Macbeth Currie (Buchanan Burton, Solicitors, East Kilbride)

Defenders: Laing; Simpson & Marwick

11 July 2006

Introduction

[1] The pursuer is the widow of the late James Weir, who died in an accident on 15 July 2002. She was 36 at the time of the accident. She sues on behalf of herself and her two children, Stacie and Steven, who were respectively 12 and 10 at that time. The pursuer and the deceased had been married for 15 years.

[2 ] The accident occurred whilst the deceased was working in the course of his employment with the third defenders on a large building project at Auchterarder School. The first defenders were the main contractors on the project. The second defenders were roofing sub-contractors who had in turn engaged the third defenders to provide labour for the work on the roof of the new building. The deceased was employed by the third defenders and was on site in that capacity.

[3 ] The roof on which the deceased was working at the time of the accident was a curved aluminium roof of about 3,500 square metres in area. It consisted of liner sheets spread over a steel frame, followed by insulating material before the top sheets were put on. At the time of the accident the liner sheets were on the roof, but not the insulation or the top sheets. The work had been programmed so that, before the liner sheets were put on, pre-cast concrete steps would be lowered into position inside the building by crane. For whatever reason, the programme was altered. The liner sheets had been in place for some 10 days or so before the pre-cast steps were ready to be lowered. Accordingly, it was necessary to remove some of the liner sheets from the roof to create a hole through which the steps could be lowered.

[4 ] The work was scheduled to be carried out on 15 July 2002, which was a bank holiday. The pursuer was working with one or two others on that day. Their first task was to remove certain of the sheets from the roof to create a hole measuring about 3 metres by 5 metres. Work then began on lowering the pre-cast steps through the hole. The pursuer was not involved in this part of the work. Indeed, there was no very clear evidence of what he was working on during this period, but it seems likely that he was continuing with other aspects of roofing work, including taping the joints between the liner sheets. The pre-cast steps came in a number of sections. The first section was lowered through the hole and placed in position. This involved rather more work and difficulty than had been expected, and the decision was taken by those involved to stop for a break. Within a few minutes of their stopping, the accident occurred. It is agreed that it occurred at about 10.52 on that day. The pursuer fell through the hole in the roof, landing near the foot of the pre-cast steps. There were no eye-witnesses to the fall. He appears to have died on impact. In those circumstances the pursuer has raised the case against the defenders alleging liability at common law and under statute.

[5 ] When the case opened before me, Mr Laing, who appeared for all three defenders, admitted liability on behalf of the first defender. Mr Smith, Q.C., who appeared for the pursuer, abandoned the claims against the second and third defenders. The proof therefore proceeded against the first defender only. The issues in dispute were confined to the issues of contributory negligence and quantum.

[6 ] I should add that there was originally a separate claim by the mother of the deceased. This claim settled extra-judicially before the proof.

Contributory Negligence

[7 ] I propose first to consider the question of contributory negligence. In dealing with this it is necessary to identify the pursuer's averments, giving rise to the case of fault laid against the defenders. These were that the hole in the roof had not been protected by suitable and sufficient guard rails and toe boards or other means of protection; that there was no safety net beneath the gap, the net which had been there when the roof panels were removed having itself been taken down by the first defenders to allow the pre-cast steps to be lowered through the hole; the deceased and his co-workers had not been informed that the safety net had been removed; and the deceased had not been required to wear a safety harness. The pursuer relied upon the first defenders having been convicted of a breach of section 3 of the Health and Safety at Work Act 1974. On behalf of the first defenders it was admitted that there was no protection around the gap; and that the safety net that had been beneath the gap had been taken away by them. They also admitted their conviction under the Health and Safety at Work Act 1974. The pursuer's averments that the deceased and his co-workers had not been informed of the removal of the safety net, and that the deceased had not been required to wear a safety harness, were met with the plea of "not known and not admitted". The first defenders' positive averments on contributory negligence were as follows:

"Explained and averred the deceased and two of his colleagues helped to remove the section of roofing which created the hole to facilitate installation of a staircase. The deceased and his colleagues were therefore aware of the existence of the whole."

In the course of his cross-examination of the pursuer, Mr Laing sought to advance a case that the deceased ought to have known that the safety net had been removed. Objection was taken to this line on the basis that there was no record for it. I upheld that objection. Although the new personal damages rules contained in Rule of Court 43 encourage abbreviated pleadings, they do not dispense with the requirements of fair notice. Rule of Court 43.2 requires the summons to contain averments "relating only to those facts necessary to establish the claim". The same approach, in my view, applies mutatis mutandis to the defences, though there is no specific rule about defences. The defences should aver the facts which the defender regards as necessary to support his defence or plea of contributory negligence. Otherwise how is the pursuer to know what investigations to make and what evidence to lead? On the basis of my ruling, the only contributory negligence case open to the defenders was that the deceased was aware of the existence of the hole. It might fairly be inferred that the first defenders were contending that he was careless in being too close to it or stepping into it.

[8 ] The difficulty for the defenders in advancing a case on contributory negligence is the lack of any eye-witness evidence of what happened. The evidence that there was came from two individuals employed by the first defenders, namely Mr Mackay, the site manager, and Mr Illsley, the project manager. They were both careful and patently honest witnesses who were clearly upset by what had happened. It is apparent from their evidence that they could say very little about how the accident occurred. Mr Illsley said that from his office at some point between 8 and 10am, for perhaps a split second, he observed a man working on the roof in a position that suggested he was taping the joints. But he could not say whether that was the deceased or someone else. That observation of a man on the roof occurred, on that timing, at least 50 minutes and possibly up to 2 hours and 50 minutes before the accident. Mr Illsley confirmed that there was no problem with visibility on that day. He had been on the roof either that day or the next day and was able to see the hole from a distance of 5 to 7 metres. He also said that there was no problem with the weather, but this was in an answer to a question about visibility, and I took the answer as limited to that. There was no evidence as to whether, for example, it was or had been raining so as to make the roof slippery. Mr Mackay said that when he was personally involved in lowering the pre-cast steps through the hole, the deceased approached him and offered to help. He refused that help and the deceased went away. Mr Mackay did not know what he did then. He was able to say, however, that after the accident was reported he saw some tape hanging over the edge of the hole, suggestive of the deceased having been working on taping the joints just before he fell. From this evidence it is possible to infer that immediately before the accident the deceased was doing this work on the roof. To do this he would require to work downwards from the top of the curved roof. He would be walking backwards and bending to fix the tape to the roofing. But more than that one cannot say. In particular, one cannot say whether he simply stepped backwards into the hole without looking or whether, on the other hand, he slipped or tripped on the roof. It might have been possible for some light to have been cast on this by forensic examination of the body at the foot of the steps, but no evidence of any such examination was put before me. Equally, evidence of the state of the roof might have been instructive, to see, for example, whether there were any obstructions over which the deceased might have tripped or whether the roof was wet. It might have been relevant to see whether the tape was neatly fixed all the way down until close to the edge or whether, conversely, the tape showed signs of a fall having started much higher up. Without any evidence from which to be able to determine what happened to cause the fall, it seems to me impossible for the court to find, even on balance of probabilities and by drawing inferences, that the deceased failed, in some way, to take sufficient care for his own safety so as to justify a finding of contributory negligence.

[9 ] Mr Laing submitted that notwithstanding the lack of evidence as to precisely what happened, the mere fact that the deceased had put himself in a position of proximity to the hole so that he could slip, trip or fall in some other way was itself sufficient to justify the finding of contributory negligence. I disagree. There was no case put forward that the deceased should not have been on the roof or was not carrying out instructions from his employers. Indeed, Mr Laing accepted that the analysis had to proceed on the basis that he was meant to be where he was. Equally, since I had ruled that no such case was open on the pleadings, there was no case put forward that the deceased was or ought to have been aware that the safety net had been removed. Again, Mr Laing in his submissions accepted that the analysis had to proceed upon the basis that the deceased was entitled to assume that the safety netting was in place. I do not accept the suggestion that the deceased should not have been entitled to rely upon it since it might have failed had it not been tied on properly. In circumstances where the deceased could reasonably assume that the safety net was in place, and was working according to instructions, it seems to me to be impossible to find that he was at fault in being on a part of the roof close to the hole.

[10 ] Accordingly, I reject the defenders' argument on contributory negligence.

Damages

[11 ] I turn next to the question of damages. On these questions I was addressed carefully and in some detail by both counsel, with reference to written submissions and to schedules. I found this of considerable assistance. There was also a considerable amount of agreement between counsel on a number of the items.

[12 ] Funeral expenses were agreed in the sum of £4,158.95 and it was also agreed that interest should run on this figure from 15 July 2002 until the date of decree.

[13 ] There was considerably more dispute as to the other items claimed, namely loss of support, claims under section 1(4) of the Damages (Scotland) Act 1976 and claims for loss of services under section 9(2) of the Administration of Justice Act 1982. I deal with each of these below.

Loss of support

[14 ] The award of damages for loss of support involves identifying both a multiplier and a multiplicand. In the present case the multiplier was a matter of substantial agreement between the parties. The multiplicand, however, raised issues of principle upon which there was no similar agreement.

[15 ] The first step in arriving at the multiplicand is to assess the deceased's net income. The deceased was self-employed. His tax return for the last full year before his death showed a figure for earnings, net of tax and national insurance contribution, of £17,789. However, his previous two years, in reverse order, showed figures of £11,825 and £7,392. In evidence, the pursuer explained that the deceased had been in the construction industry for about 10 years and he was starting to build up his business and getting a name for himself. In those circumstances it is not surprising that the figures should show a rise in net earnings over those three years. The pursuer might have been able to argue that earnings for the following years would have continued to show an increase, but she contented herself with reliance upon the figure of £17,789. For the first defenders, it was argued that the fact that the deceased was self-employed raised "some imponderable contingencies" (see Sargent v Secretary of State for Scotland 2001 S.C.L.R. 190 per Lord Clarke at para.[27]); and further that the use of a longer period, rather than the final year only, would tend to even out any irregularities arising from self-employment (see Prentice v Chalmers 1985 S.L.T. 168 per Lord Hunter at p.172). Absent the evidence about the deceased's business being built up and him beginning to get a name, I would have accepted that there was some merit in taking the average over a longer period. However, that would be inappropriate and unfair to the pursuer if, as I accept, she is right in her explanation of why the figures have increased over the recent years. There was no evidence led either from the pursuer or the first defenders to suggest that the building industry was susceptible to periods of downturn such as to make it unlikely that someone in the position of the deceased would have been able to maintain earnings of the rate indicated by his latest tax return. In those circumstances I am prepared to accept that figure as representing a reasonable estimate of his net earnings.

[16 ] The pursuer argued that I should take account of a likely increase in the deceased's earnings between the date of death and the date of decree. It was suggested that, as a rough and ready approach, I should increase his earnings in accordance with inflation. She did not argue that in calculating future wage loss I should make some prediction of increased earnings over the next 13 years or so. The pursuer's submissions were opposed by the first defenders. They submitted, as I understood it, that the earnings of a self-employed person in the position of the deceased were too imponderable; I should simply take the net earnings as I found them to be at the date of death. I prefer the pursuer's submission on this point. It seems to me that the court has sufficient information to make some small increase to the deceased's earnings over the 4 years to date. Logically it would be sensible to continue to take account of future increases, but no information was made available to me to enable this to be done. The pursuer's argument, therefore, tends towards a conservative approach and I think it is justified in the present case.

[17 ] On the basis that the pursuer's approach was accepted by the court, parties were agreed that the appropriate figure to take for the deceased's net earnings as they would probably have been as at today's date was £19,923. This was the figure on the basis of which to assess future loss of support. As regards past loss of support, it is appropriate to take the average between that figure and the starting point of £17,789. This leads to a calculation for past loss of support over the 4 years up to the date of decree on the assumption of an average income of £18,856.

[18 ] The next question to consider is what contribution the deceased made and would have made to the family from those net earnings. It was agreed that there were two factors relevant to this. One was to ascertain a percentage which could be applied to the deceased's net earnings to represent how much of those earnings would have been available to the family and therefore have been lost on account of his death. The second was the question of whether the income of the surviving spouse is to be taken into account.

[19 ] Before coming to deal with these two separate factors, it is necessary to summarise briefly the evidence given by the pursuer in this respect. She said that the deceased smoked cigarettes, possibly up to about 20 a day depending upon how busy he was. He did not drink much. He never went to the football. She gave the impression of a close family life in which the deceased was involved with domestic affairs and gardening as well as being a good father to his children. She felt that substantially all of his earnings came into the family and that he kept little for himself. She also had an income of £3,615.15. Both of their incomes were paid into the joint account and used for the benefit of the family as a whole.

[20 ] I am told that there is no hard and fast rule reflected in the Scottish authorities as to the appropriate percentage to apply. However, the English cases have shown the development of a standard practice, which might almost be described as a rule, to be applied in the absence of factors justifying a departure from it. In terms of this rule, the appropriate percentage is 75% where there are dependent children of the family, and 66.67% where there are no children. The justification for this that where there are children the net earnings of the deceased are divided between four equal recipients, namely the deceased himself, the spouse, the children and the household in general, whereas, where there are no children, there are only three equal participants in the net earnings. An exposition of this conventional rule is to be found in the case of Robertson v Le Strange [1985] 1 All.E.R. 950 at 955. It is not necessary for me to refer to other passages in the authorities and textbooks in support of this approach, since Mr Smith, for the pursuer, suggested that to reflect the fact that there would be dependent children in the family for a number of years but that thereafter they would leave the home, I should find a figure between these two extremes and take 70% as the appropriate percentage. Mr Laing for the first defenders was content with this.

[21 ] The more controversial matter was the question of whether any, and if so what, account should be taken of the fact that the pursuer herself was earning in the year prior to death and would, one must assume, have continued earning in the future. In Brown v Ferguson 1990 S.L.T. 274, Lord Sutherland suggested that the proper approach was as follows:

"The normal approach to the position where both spouses are earning is to add the income together and deduct say 25 per cent as being for maintenance of the deceased. The net figure so arrived at less the earnings of the surviving spouse forms the loss of dependency."

That approach, as Mr Laing pointed out, has been applied, albeit without further analysis, in a number of cases including Wotherspoon v Strathclyde Regional Council 1992 S.L.T. 1090, Beggs v Motherwell Bridge Fabricators 1998 S.L.T. 1215 and Sargent v Secretary of State for Scotland (supra).

[22 ] Mr Smith urged me not to adopt this approach. He submitted that it was "not logical". He also submitted that it was not consistent with the decision of the House of Lords in Shiels v Cruickshank 1953 S.C. (H.L.) 1. I do not accept that the decision in Cruickshank is inconsistent with the approach adopted in Brown v Ferguson and the succeeding cases. In Cruickshank the action was brought by the widow of a man killed in a road accident. The defender averred, in answer to the claim for loss of support: "The defender also believes and avers that the pursuer has a substantial private fortunate available for her support." That plea by the defender was debated on the Procedure Roll and the plea to the relevancy thereof was sustained. The House of Lords dismissed the appeal from the Inner House, which had upheld a decision of the Lord Ordinary. The reason, as I understand the speeches of their Lordships, is that that averment as it stood was irrelevant. It was not an averment which, in terms, is focused upon the extent to which the deceased's income contributed to her support. But that is not the same as saying, as the rubric summarised the decision, that the widow's private means did not fall to be taken into account in assessing damages. Their Lordships left open the possibility that the widow's own means might be relevant to an averment of the extent to which she was in fact dependent upon the deceased's income.