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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 60
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PD72/05
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OPINION OF LADY SMITH
in the cause
ALAN FRASER
Pursuer;
against
FIFE
COUNCIL
Defenders:
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Pursuer:
Hofford, advocate; Digby
Brown S.S.C.
Defenders: Cowan, solicitor advocate; Simpson &
Marwick
7 April 2006
Introduction
[1] On
24 January 2002, the
pursuer fractured his distal tibia when he fell to the ground as he was
descending a ladder. He was working at
the time, in the course of his employment with the defenders as a painter and
decorator, at an address in Dunimarle
Street, High Valleyfield,
Fife. He had been sent, along with two workmates,
to paint the rhones on some two storey houses there. In this action, he seeks to recover damages
from the defenders.
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 Valleyfield
store where they got their instructions for the day, which was to go and paint
the rhones at Dunimarle
Street and they got the materials they required for the job. They travelled from there to Dunimarle Street in a van. There were ladders, safety devices known as "ladderfixes" and safety devices known as "ladderstops" or "ladderplates" in
the van.
The Locus
[4] The
three men began work painting the rhones on a series
of houses in Dunimarle
Street. The
pursuer worked on his own at the back of the houses
and his two workmates worked at the front.
There was a level garden area at the rear with concrete slabs, grass and
an area of shallow gravel. The pursuer
painted the rhones with the feet of his ladder
resting on either the grass or the slabs initially. He then moved his ladder along and its feet
were placed on the gravel. He climbed
the ladder again and continued his work.
Photographs of the garden taken in January 2006 were part of the
pursuer's productions (6/11 of process).
Photographs had been taken on the day of the pursuer's accident but have
been lost. An effort was made on behalf
of the pursuer to suggest that there was some impropriety surrounding the loss
of the photographs but I accept the evidence of Mr Devlin, the defenders'
painting supervisor, that they were genuinely lost at the time of an office
move and despite strenuous efforts to locate them for the purposes of this
litigation, he has been unable to find them.
His explanation was straightforward and convincing. Further, apart from the pursuer and Mr McLafferty speaking to there having been a coal bunker
there in 2002 that was not present in 2006, the witnesses who had been present
at the locus accepted that the 2006 photographs showed the layout of the garden
at the relevant time.
[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 9
December 2002 into the cause of the pursuer's accident. A note of that meeting was contained in 7/4
of process and contained the following quotation from the pursuer:
"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 9 December 2002. What is much more likely is that he gave that
account because it was true.
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 9
December 2002. The latter
was, in particular, an obvious occasion for the pursuer to tender that explanation
if that was what happened.
[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.
[27] Paragraph 8 provides:
"(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.
[29] Paragraph 9 provides:
"(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 г1,560.14 with interest of г406.89; that Section 8 services
were valued at г1,000, and that solatium should be
valued at г12,000 with interest of г1,300.
They were also agreed that his current net annual earnings amounted to
г13,000. 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.
