OUTER HOUSE, COURT OF SESSION [2006] CSOH 60 |
|
PD72/05 |
OPINION OF LADY SMITH in the cause ALAN FRASER Pursuer; against Defenders: ________________ |
Pursuer:
Hofford, advocate; Digby
Brown S.S.C.
Defenders: Cowan, solicitor advocate; Simpson &
Marwick
Introduction
THE FACTS
[2] On
the evidence, the relevant facts were as follows.
The Job
[3] The
pursuer had begun his working day by meeting up with his workmates, William McKinlay and William McLafferty,
at the defender's
The Locus
[4] The
three men began work painting the rhones on a series
of houses in
[5] The
pursuer suggested that the gravel was 11/2 to 2 inches in depth but he did not
try and test the ground under the pebbles.
Neither Mr McLafferty nor Mr McKinlay gave any evidence about the depth of the gravel. Mr Devlin, who attended at the locus very
shortly after the pursuer's accident and who, given his responsibilities, had good
reason to examine the locus, indicated that the fourth of the photographs in
6/11 was indicative of the condition of the ground where the ladder feet were
at the relevant time; he examined everything of relevance including the ground
and the gravel. That photograph shows a
thin covering of gravel chips over what appears to be firm level compacted
ground. Mr Devlin indicated that the
ground under the gravel was firm and compacted at the time of his examination. His evidence on that matter was not
challenged and I accept it. I should add
that I recognise that the pursuer gave evidence in chief that the ground "must
have been soft" but it was clear that he had not examined the ground. It was but assumption on his part and in
cross examination he said that he had not tested the ground under the gravel.
[6] Mr
Devlin was a credible and reliable witness.
In response to being challenged to the effect that he had "his own
agenda", he answered in the affirmative but explained that what he meant was
that he had a personal agenda to see that people went to work safely and came
home safely. I was satisfied from
listening to his evidence that that accurately encapsulated his attitude. A further adminicle
which supported the picture of a man who took his safety responsibilities
seriously was that he had recently instituted disciplinary proceedings against
two employees who had been reported by a member of public as having been using
a ladder outdoors without it being secured.
Ladderfixes and Ladderstops
[7] The
pursuer and his two workmates all used ladderfixes
with their ladders on the day of his accident.
They were using long, extending ladders so as to enable them to reach
the rhones. A ladderfix is a security device that attaches to the top end
of a ladder. It consists of an aluminium
frame with wheels that sits at right angles to and wider than the ladder with
rubber wheels that crush against the wall when a person ascends the ladder
creating a tying effect. None of them
used ladderstops that day. Ladderstops are a device that are used at the foot of ladders. A ladderstop
consists of a flat rectangular metal framed rubber backed anti-slip base that
has a flat metal rectangular "T-piece" plate sitting at right angles to its
base along its length and about halfway across its breadth so as to form a
barrier against which the ladder feet can be placed.
[8] There
was evidence that could be regarded as conflicting as to the circumstances in
which it would be appropriate to use a ladderstop. Mr Devlin gave clear evidence on this matter
and said that it could be used anywhere to secure the lower end of a ladder
except for sloping ground or ground that was slippery with substances such as
ice or moss. It was particularly useful
if the ladderfix could not be used for some reason
such as lack of available space at the top of the ladder. He based his assessment on advice that he had
received from the manufacturers and spoke of a representative of the
manufacturers having visited the defenders' premises at Chalmers Street, on 6
August 1998 to demonstrate the use of a ladderstop. He had placed it on a surface which sloped
and had tarmacadam with loose chips on it, to show
the workings of the device. Mr Devlin's
evidence regarding that demonstration was not challenged. Mr McLafferty said
that it was not appropriate to use a ladderstop on
gravel and that he had been told by either Mr Devlin or Mr McKinlay
not to do so. Mr McLafferty
was, however, a poor witness. His
recollections were unclear in many respects.
He was a friend of the pursuer's and had discussed the circumstances of
the accident with him. He did not
impress as being reliable. Mr McKinlay said that he would not have used a ladderstop on gravel.
He did not impress as being a reliable witness either. There was much he had difficulty in
remembering, including what advice he had been given about using ladders on a
gravel surface. He did, though, accept
that it might be possible to brush away gravel on the ground and use a ladderstop at its foot, depending on the depth of the
gravel. He remembered the ladderstop demonstration by the manufacturer's
representative but he could not remember being told that it could be used in
any circumstances other than those outlined as being unsuitable by Mr Devlin.
[9] It was plain from the evidence that the respondents' painting and decorating employees had had regular "toolbox " talks which included instructions as to ladder safety and, in particular, the use of ladderfixes and ladderstops. They were also each provided with a detailed health and safety pack. The employees were given a two hour toolbox talk when provided with their health and safety manuals in the course of which they were taken through it page by page. They were, in addition to the ladderstop demonstration already referred to, given a ladderfix demonstration by a manufacturer's representative, about eighteen months prior to the pursuer's accident. Statements as to how to use ladders safely were displayed on the walls of the paintstore. Mr Devlin was clearly acutely aware of his responsibilities regarding ladder safety and took the matter seriously. In these circumstances, I had no difficulty in accepting Mr Devlin's evidence as to when a ladderstop could be used and rejecting the evidence of Mr McLafferty and Mr McKinlay insofar as it sought to suggest that a ladderstop could not properly have been used on a gravel surface.
[10] The pursuer did not use a ladderstop
on the day of his accident. As with much
of his evidence, it was not entirely clear.
In his evidence in chief he said that the reason he did not use one was
that he did not think it was worth it and that he did not need one. In cross examination he said that it was not,
in his mind, feasible to use a ladderstop as there
had been a sort of heavy dew (no-one else spoke to there
having been such conditions) and he would have endangered himself more by using
one. In re-examination, he said that in
his mind, he did not need a ladderstop. Nor did he, in examination in chief, think
that it would have had any effect if there had been a second man footing the
ladder although, in answer to some leading questions in re-examination, he said
that a second man footing the ladder could have prevented his accident. I was not satisfied that this accident would
have been prevented if a second man had footed the ladder.
The Pursuer's Fall
[11] The pursuer's injuries occurred when the ladder was in its second position, with its feet on the gravel area. The pursuer was alone. In examination in chief, he said that as he was about halfway down the ladder, descending one rung at a time, all of sudden there was a movement which threw him off balance. He was immediately concerned about hitting a coal bunker which he said was positioned in the same place that the 2006 photographs show as being the site of a raised garden (no-one else remembered there being a coal bunker there, although Mr McLafferty thought that there might have been one in a different position, under a window). He could not say whether the ladder went down on both sides; it was just a movement. He thought that it moved downwards. He just remembered slipping, in chief, although in cross examination, he sought to say that a "slip" was different from what happened. He landed on one foot, injuring his ankle and then fell. The ladder remained upright. The point at which the pursuer said he lost balance appeared to coincide with what, in cross examination, he described as being where there is always a sudden bit of movement "when you change from one bit of the ladder to another."
[12] The pursuer called for his workmates and they went round to the back of the building to assist. Mr McLafferty went to get an ambulance. According to the pursuer's evidence in chief, he told them that he had fallen but he might not have told them that the ladder moved. Both Mr McLafferty and Mr McKinlay gave evidence, however, to the effect that the pursuer had told them that the ladder moved. It was evidence that was wholly unconvincing. Neither man was a clear witness. Their recollections were poor in many respects. They were both friendly with the pursuer. Mr McKinlay was evasive in answer to questioning about the extent to which he had discussed the case and his evidence with the pursuer. There was a real likelihood that they had been influenced in their evidence by a desire to be of assistance to him. It was not credible that Mr McKinlay could remember clearly that the pursuer told him his ladder had moved, yet could not remember what was said by the pursuer to the paramedics despite the fact that on his own description of where he was, by the fence, he must have been within earshot at the time. Whilst Mr McLafferty asserted that he had also told Mr Devlin that the pursuer's ladder had moved, when he arrived at the locus, Mr Devlin was clear that that was not what he had been told. His evidence was supported by the fact that he did not proceed to treat the incident as one which required disciplinary procedures to be considered, as he would have done if he had been told that the accident happened because the pursuer's ladder moved.
[13] Further, had the pursuer told his workmates that his fall was due to the ladder having moved, it would have been only reasonable to expect him to give a similar account to those who gave him medical treatment and to Mr Devlin when he saw him but he did not do so. On the contrary, according to the written record in 6/3 of process, he simply told the paramedics who attended with the ambulance that he lost his footing and slid down to the ground but on contact with it fell over backwards twisting on his left ankle without mentioning anything about the ladder moving and the pursuer accepted as a "good possibility" that that was what he had said to them. Further, he accepted that he must have told the doctors responsible for his care in the Accident & Emergency Department of Queen Margaret Hospital that he had slipped down a ladder injuring his ankle. There was, again, no mention of the ladder having moved and there is a note in his records beside that description that reads: "accidental".
[14] So far as Mr Devlin is concerned, he visited the pursuer at the
hospital within a very short time of the accident and spoke to him about it. He required to complete and
submit an accident form within 48 hours.
The account he obtained from the pursuer is reflected in 7/1 of process
and was that he had lost his footing whilst descending a ladder and slipped to
the bottom where he landed "ok" then took one step back and tripped and fell,
injuring his ankle. Again, there was no
mention of the ladder having moved. Mr
Devlin and another of the defenders' employees, a Mr Mackay, also visited
the pursuer at home after he was discharged from hospital. Whilst the pursuer asserted in evidence that
he had told them at that point that the ladder had moved, a contrary account is
given in the pleadings (Closed Record, page 8D). Finally, when the pursuer returned to work,
an investigatory meeting was held on
"I was coming down the ladder and my foot must have slipped on the rung, and I kept hold of the ladder sliding down to the ground, and I took a step back and fell over a raised garden. If the raised garden had not been there, I would have been okay. It was an accident. It was not anybody's fault. My foot slipped."
[15] The pursuer accepted having given that account but sought to
explain it away by alleging that Mr Devlin had told him prior to the meeting
that if he could not go up ladders then he was no use to him. That explanation was not credible; it was not
reflected in the pleadings and the pursuer could still go up ladders (and is
still doing so, albeit not on a daily basis).
Further, logically, there was no obvious connection between any desire
of the pursuer's that the defenders accept that he was fit for his previous
work and his decision to tell them that his accident was no-one's fault and to
say nothing about the ladder moving. In
any event, Mr Devlin denied having made such a comment to the pursuer. He was aware of the defenders' obligations
towards employees with disability so as to make it unlikely that he would make
a comment of the sort alleged and the purpose of the meeting was, in any event,
not to assess the pursuer's fitness for work.
It was to check whether there were any breaches of safety requirements,
such as the use of a ladderfix, since, if there had
been, disciplinary proceedings would have had to
follow. I accept Mr Devlin's evidence on
this matter. I reject, as incredible,
the pursuer's explanation for having given the account of his accident that he
gave on
The Pursuer's Injury
[16] The pursuer sustained what is known as a "pilon" fracture . Mr Brenkel, consultant orthopaedic surgeon, explained that such a fracture occurs when the talus pushes up into the tibia causing a fracture at that point. It is liable to happen when a person falls from a height and could occur where a person slides down a ladder impacting on the ground from a height. The pursuer's fracture also involved the ankle joint in a manner which was consistent with his foot having twisted outwards as he fell over after landing. The pilon fracture was the least severe grade. Mr Brenkel's view was that the pursuer's initial fracture would have been caused as he landed on the ground from the ladder following a fall which could have been a slide down the ladder rather than a free fall and that the fracture would then have progressed to include the ankle joint when he fell over thereafter.
[17] The pursuer had clearly had the mechanism of his injury explained to him prior to giving evidence as he commented in cross examination that "with my type of injury, I very much doubt that it came from falling after", that is, after he had landed on the ground. That was in answer to his being questioned as to the veracity of the report contained in 7/1 of process, in which it was recorded that he landed uninjured. However, the fact that, as seems to be the case, the pursuer's injury commenced with a fracture that occurred when he landed does not necessarily indicate that the report was not an accurate record of the explanation he gave which would have depended on the pursuer's perceptions at that time and would have been unaffected by what he learned later about the mechanism of his injuries.
[18] Following his injury, the pursuer was off work for about 101/2 months. He has been working full time since then. He said that he was "alright" on a day to day basis although he struggles to work on ladders two days running. He manages that by working on a "day about" basis with his workmates so far as going up ladders is concerned. He said he was doubtful whether he would be able to carry on working to age 65 years. Mr Brenkel, however, who had examined him recently expressed the view that he should be able to remain in his present employment until age 65 years. He had only very minimal changes in the joint on X-ray and any osteo-arthritic changes that occurred would be slow. Further, the changes on X-ray did not necessarily mean that the pursuer's symptoms would get worse. If he did suffer pain, he could treat it with anti-inflammatories and painkillers. He would not, though, be able to do heavy manual work.
The Cause of the Pursuer's Fall
[19] The pursuer's case was perilled on his fall having been caused by the ladder moving. Parties were in agreement that he lost his footing about halfway down the ladder, slid down it to the ground, landed upright and then fell over. Where they were at issue was the reason for him losing his footing in the first place. Clearly, one explanation was that, as can happen, his foot slipped off a rung, without the ladder having moved, causing him to lose his balance and slide down the ladder. That explanation was consistent with the mechanism of the injury he sustained. That explanation was also consistent with the loss of footing having occurred at the point of change between one section of the ladder and the other, to which the pursuer himself referred. Another explanation was that he lost his balance because the ladder moved in some way, due to the condition of the surface on which it was resting, and he then slid down it. That explanation is also consistent with the mechanism of his injury. Contrary to what seems to have been anticipated by the pursuer, the evidence as to the mechanism of the injury did not assist with this issue that lay at the core of case at all.
[20] That leaves the oral and documentary evidence to which I have
already referred. The pursuer avers in
his pleadings and asserted in evidence that the ladder moved but he did not
make that assertion at any other time. On
his own account, he did not think that he had told his workmates that the
ladder moved. I have, for the reasons
already explained, rejected their account that he did so. The pursuer did not tell the paramedics that
the ladder moved, nor the doctors at the hospital, nor
Mr Devlin, despite having had the opportunity to do so on a number of
separate occasions, beginning with the day of his accident and up to and
including the investigatory meeting on
[21] Further, there was, on the evidence, no reason for the ladder to have moved. The gravel was shallow and the ground underneath it was firm and compacted. The pursuer had not felt the need to use a ladderstop and he did not, when he was speaking for himself, think that a man footing the ladder would have made any difference. The pursuer's workmates did not give any evidence to the effect that the base of the ladder looked as though it had sunk into the ground at all, despite the fact that Mr McLafferty lifted and moved the ladder away from where the pursuer was lying. All he said was that there were indentations in the gravel and he was vague as to whether or not he had drawn them to Mr Devlin's attention. The ladder had remained upright after his fall.
[22] On the evidence, I cannot conclude that the pursuer fell on account of the ladder moving.
STATUTORY CASES
[23] It was accepted by counsel for the pursuer that if his statutory cases did not succeed then his common law cases fell also, as they were simply a reflection of each other.
Provision and Use of Work Equipment Regulations 1998 ("the 1998
Regulations")
[24] The pursuer advanced cases under reference to paragraphs 4, 8 and 9 of the 1998 Regulations. Under reference to English v North Lanarkshire Council 1999 SCLR 310 and McGhee v Strathclyde Fire Brigade 2002 SLT 680, Mr Hofford submitted that they required to be given a purposive interpretation and should not be interpreted narrowly. He also founded on the fact that the obligations imposed by those paragraphs were unqualified and unconstrained by considerations of reasonable practicability: Skinner v Scottish Ambulance Service 2004 SC 790; Hislop v Lynx Express Parcels 2003 SLT 785. He submitted that all three paragraphs had been contravened. Mr Cowan submitted that, on the evidence, that was not so.
[25] Paragraph 4 of the 1998 Regulations provides:
"(1) Every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided.
(2) In selecting work
equipment, every employer shall have regard to the working conditions and to
the risks to the health and safety of persons which exist in the premises or
undertaking in which that work equipment is to be used and any additional risk
posed by the use of that work equipment."
[26] It is not difficult to accept that this paragraph was applicable to the operation being carried out by the pursuer at the time of his accident. I do not, however, see that the defenders had failed in any way to comply with it. The pursuer had a suitable ladder and ladderfix. He had a ladderstop available to him which he chose not to use. The surface on which the ladder was resting was firm compacted earth with only a shallow covering of gravel. Nothing in the evidence indicated that anything more was required to enable the pursuer to carry out his job safely.
"(1) Every employer shall ensure that all persons who use work equipment have available to them adequate health and safety information and, where appropriate, written instructions pertaining to the use of the work equipment.
(3) Without prejudice to the generality of paragraphs (1) or (2), the information and instructions required by either of those paragraphs shall include information and, where appropriate, written instructions on:
(a) the conditions in which and the methods by which the work equipment may be used;
(b) foreseeable abnormal situations and the action to be taken if such a situation were to occur; and
(c) any conclusions to be drawn from experience in using the work equipment.
(4) Information and instructions required by this regulation shall be readily comprehensible to those concerned."
[28] I am satisfied on the evidence that the defenders fulfilled the
requirements of this paragraph. The
pursuer and his workmates were clearly given ample safety information both in written form and
orally. Regular toolbox talks were held.
There had been specific demonstrations
of the use of the particular equipment discussed in this case, namely the ladderfix and the ladderstop. There was no indication in the evidence that
the provision of any further safety information would have made any difference.
"(1) Every employer shall ensure that all persons who use work equipment have received adequate training for purposes of health and safety, including training in the methods which may be adopted when using the work equipment, any risks which such use may entail and precautions to be taken."
[30] I am also satisfied, on the evidence, that the defenders had fulfilled their obligations under this paragraph. There was clear unchallenged evidence regarding regular training having been given to the pursuer and his workmates, all of whom were, in any event very experienced. Such employees should not require as much training as novices. I am satisfied on the evidence that the pursuer received adequate training. There was, in any event, no indication in the evidence that any further training would have prevented the pursuer's fall.
Construction (Health, Safety and Welfare) Regulations 1996 ("the 1996
Regulations")
[31] Turning to the pursuer's
case under the 1996 Regulations, Mr Hofford submitted
that the defenders' were in breach of paragraphs 5(1) and (2), 6(1) and (5)
thereof.
[32] Paragraphs 5(1) and (2) provide:
"(1) There shall, so far as is reasonably practicable, be suitable and sufficient safe access to and egress from every place of work and to any other place provided for the use of any person while at work, which access and egress shall be without risks to health and properly maintained.
(2) Every place of work shall, so far as is reasonably practicable, be made and kept safe for, and without risks to health to, any person at work there."
[33] Mr Hofford submitted that the defenders had not discharged the onus incumbent on them under these provisions. Mr Cowan, on the other hand, submitted that on the account of the state of the ground on which the ladder was resting that was given by Mr Devlin, there was no need for anything more than the ladderfix. On the hypothesis of soft ground advanced by the pursuer, the provision of the ladderstop meant that suitable and sufficient safe access was provided for the pursuer. I accept Mr Cowan's submissions.
[34] Paragraphs 6(1), (5) and (6) and Schedule 5 paragraphs 1, 2 and 3 of the 1996 Regulations provides:
Paragraph 6:
"(1) Suitable and sufficient steps shall be taken to prevent, so far as is reasonably practicable, any person falling.
(5) A ladder shall not be used as, or as a means of access to or egress from, a place of work unless it is reasonable to do so having regard to:
(a) the nature of the work being carried out and its duration; and
(b) the risks to the safety to any person arising from the use of the ladder.
(6) Where a ladder is used pursuant to paragraph 5 -
(a) it shall comply with the provisions of Schedule 5; and
(b) the provisions of paragraph (3) shall not apply."
Schedule 5:
"1 Any surface upon which a ladder rests shall be stable, level and firm, of sufficient strength and of suitable composition safely to support the ladder and any load intended to be placed on it.
2 A ladder shall -
(a) be suitable and of sufficient strength for the purpose or purposes for which it is being used;
(b) be so erected as to ensure that it does not become displaced; and
(c) where it is of a length when used of 3 metres or more, be secured to the extent that it is practicable to do so and where it is not practicable to secure the ladder a person shall be positioned at the foot of the ladder to prevent it slipping at all times when it is being used.
3 All ladders used as a means of access between places of work shall be sufficiently secured so as to prevent the ladder slipping or falling."
[35] Mr Hofford pointed out that there was no reasonable practicability qualification in these provisions. He submitted that the evidence led to the conclusion that the gravel was not of a suitable composition and that, therefore, the defenders were in breach of these regulations. The ladder should, he submitted, have been footed. Mr Cowan's response was to pose the rhetorical question: what more could the defenders have done? On the hypothesis that the ground was soft, the pursuer was provided with a ladderstop. In respect of the suggestion that there should have been a second man, firstly, paragraphs 2(c) and 3 of Schedule 5 applied only for the purpose of preventing ladders from slipping or falling. The ladder did not slip or fall in this case. Secondly, on the pursuer's own evidence, a second man would not have prevented his fall. Again, I accept Mr Cowan's submissions as being well founded.
[36] Further, the pursuer's evidence was clearly to the effect that he did not think that a ladderstop would have prevented his fall. Nor did he think that a person footing the ladder would have prevented his foot slipping on the rung of the ladder. Indeed, the pursuer who, as I have noted, was a very experienced painter, did not seem to think that there was any equipment or precaution that would have made a difference. In these circumstances, the pursuer was not able to establish a breach of the 1996 Regulations. For the avoidance of doubt, I would add that as regards paragraph 1 of Schedule 5, I do not find it to have been established that the surface on which the ladder was resting was not stable, level and firm.
[37] The overwhelming problem for the pursuer with all of the breaches of regulation that were averred is that they were founded on the assumption that the ground on which the pursuer's ladder was placed was an area of loose gravel with soft ground underneath it such that the ladder was liable to sink into it. Further, the alleged breaches could only have been of any relevance to the case if the pursuer's fall was caused by the ladder sinking into the ground as he was descending the ladder. He failed, however, to prove that the ground was of such a condition and he failed to prove that his fall was caused by the ladder sinking into the ground. In these circumstances, he could not, and did not, establish the breaches of regulation that were averred.
[38] There having been no breach by the defenders of the 1998 or 1996 Regulations, it follows from the pursuer's approach that there was also no breach by them of their common law duty of care either. No liability, whether by reason of statute or common law, attaches to the defenders.
Contributory Negligence
[39] In the event, the issue does not arise. I would simply comment that had it been
established that the defenders were at fault and that that fault caused the
pursuer's accident then, given the evidence regarding the suitability of the ladderstop for gravel surfaces, evidence which I accepted,
and the evidence that the pursuer had a ladderstop
available to him, I would have been inclined to accede to the defenders'
submission that this was a case where it would have been appropriate to make a
finding of 100% contributory negligence.
The circumstances would have been comparable to those which arose in the
case of Lanigan v
Derek Crouch Constuction Ltd 1985 SLT 346.
Quantum
[40] In the event, it is not necessary for me to determine damages but I should indicate what I would have awarded had I found the defenders liable to the pursuer.
Parties were agreed that past wage loss was valued at £1,560.14 with interest of £406.89; that Section 8 services were valued at £1,000, and that solatium should be valued at £12,000 with interest of £1,300. They were also agreed that his current net annual earnings amounted to £13,000. The pursuer sought an award in respect of loss of employability on the basis, it was submitted, of Mr Brenkel's evidence. Mr Hofford suggested that a sum equivalent to six months' earnings would not be unreasonable.
[41] Mr Cowan submitted that for a loss of employability award the pursuer required to establish that there was a real or substantial risk that he would, at some future date, find himself on the labour market (Moeliker v A Reyrolle & Co Ltd 1977 1 WLR 132; Robertson's CB v Anderson 1996 SLT 828; King v Carron Phoenix 26.1.99 Lord Kingarth). There was no such evidence.
[42] The pursuer was aged 51 years, he had worked with the defenders, a local authority employer, for over 25 years, there was no evidence that his job was in any way at risk and it was clear from Mr Brenkel's evidence that there was no reason to think, from a medical point of view, that the pursuer would not be able to carry on working in his present employment until age 65 years. On the evidence, it could not be said that there was any real risk of the pursuer finding himself on the job market prior to his normal retirement age. In these circumstances, I do not see that there would have been any basis on which a loss of employability award could have been made.
[43] Accordingly, had I been awarding damages, they would have been restricted to the sums agreed in the Joint Minute.