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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 40
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PD1658/05
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OPINION OF LORD
CARLOWAY
in the cause
THOMAS RUDDY (AP)
Pursuer;
against
(FIRST) MONTE MARCO
AND
(SECOND) M & H
ENTERPRISES LTD
Defenders:
________________
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Act : Hajducki QC, Lloyd; Anderson Strathern
LLP,
Alt : RN Thomson; Anderson Fyfe LLP
7 March 2008
1.
Facts not
in dispute
[1] On Tuesday,
5 October 2002, the pursuer was injured when working in Bay 2 of a
warehouse at 137 Shawbridge Street, Pollockshaws, Glasgow. The second defenders were the owners of the
warehouse. The first defender was, and
is, a director of the second defenders. The
first defender and his wife (the M and the H) are the only shareholders. Officially, at least, the second defenders
had no active employees and no employers' liability insurance. They had owned the warehouse for a number of
years and had rented part of it out to Glasgow Design Centre Ltd, a
shop-fitting company, for storage. Otherwise,
there was no trading taking place in or from the warehouse.
[2] In
July 2002 vandals set fire to the roof of the warehouse, causing
significant smoke damage to the internal walls and flooring of Bay 2 and
buckling some of the steel beams visible in the open roof space. A sprinkler system, installed in that space,
had been inoperative for some time. The
first defender engaged Hi-Clad Roofing Ltd to replace the roof of the bay. This was done over a period of some weeks
from about mid August to early September 2002. Invoices were rendered by Hi-Clad to the
second defenders, although the ones produced (No 7/17 of process) all post
date the accident. It was the intention
of the first defender that the warehouse space be leased or sold as soon as
possible. Particulars, dated 11 September 2002 (7/16), were prepared by
the Griffin Webster Partnership, chartered surveyors, for that purpose. The final page of the particulars is a
sketched floor plan with the second defenders' name hand written on it.
[3] The
first defender had operated a number of trading companies over the years. He had an office in Barrhead. One of his companies had been VP Packaging Ltd. This company packaged whisky and other drink
related items at Barrhead Industrial Estate.
At one time, it employed over one hundred persons. The first defender also operated Veyco Ltd,
along with a co-director, Hilton Levy. This
company had discount jewellery shops, notably one at the Pollok Centre.
[4] The
pursuer was fifty one years of age at the time of his accident. His injuries are such that he can remember
nothing of his own work history, the accident or his relationship with the
first defender. He is a fitter by trade. He had worked for Sunblest Bakeries for some
eighteen years before being made redundant in the mid 1990s. Exactly what his employment history was after
that is unclear. He had worked at VP
Packaging's premises, doing general maintenance work, some time in the
late 1990s, although the first defender had no recollection of that. Two of the pursuer's sons, Scott and Mark Ruddy
had also worked there. The pursuer had
done work at the jewellery shop in the Pollok Centre, albeit primarily
instructed by Mr Levy rather than the first defender. But the pursuer and the first defender knew
each other reasonably well and, from time to time, the pursuer did odd jobs,
such as painting and joinery, at premises owned by the first defender's
companies. The first defender trusted
the pursuer to do a good job, whatever the task, and to complete it on time.
[5] The
pursuer spoke to the first defender at some point in the Autumn of 2002
and was asked by him to carry out work at the warehouse, including cleaning and
painting the walls and washing the floor.
The arrangement was that he would be paid £40 (or £50) per day
and work five days a week from about 9am until about 4pm. Sometimes, the pursuer would ask permission
to come in late or to take an afternoon off.
If he were to be coming in late then he would tell the first defender
that he would make up the time at the end of the particular day. The first defender would call into the
warehouse two or three times a week to check on the pursuer's work. The paint was bought by the pursuer in the
expectation of reimbursement.
[6] The
pursuer was paid £200 (or £250) by the first defender in cash every
Friday afternoon. The cash did not come
from the second defenders, or at least not directly so. Rather, the first defender would pay the
pursuer and later reimburse himself from the second defenders' bank account by
drawing cheques for cash sums. He did so
on 26 September and 4 October (7/14-15), withdrawing £500 on
each occasion. In due course, the money
withdrawn from the bank was entered into the profit and loss account of the
second defenders (7/10) under "repairs and renewals" as "clean up", along
with the cost of hiring a floor cleaning machine.
[7] It was
arranged that the pursuer would remove the pipes of the sprinkler system and
some of the buckled beams from the roof space.
The pursuer obtained a Stihl saw to enable him to cut through the metal. This work was to be done at a level above the
wall height of fifteen feet six inches. It
required scaffolding. By the time of the
accident, the pursuer had been working at the warehouse for at least four weeks.
[8] There
were two tower scaffolds in the bay. The
larger of these was positioned, some distance out from a wall, at the end of a
newly painted section. The smaller one
was a narrow gauge scaffold, placed against an unpainted and only partially
cleaned wall. By the day of the
accident, the painting of the bay was 60-70 per cent complete. Some time after 9am on that day, the pursuer
was working with the saw, cutting down the sprinkler pipes. He was working from the larger scaffold. Ten minutes earlier, he had let Matt Anderson
of the Glasgow Design Centre (supra)
into the warehouse. Mr Anderson had
gone through to a different bay, where his company's storage facilities were
located. He heard the saw in operation
shortly before the occurrence of a crash and a bang. Mr Anderson went back to Bay 2 and
found the pursuer lying on the floor near the foot of the larger scaffold, with
the saw and his hard hat lying nearby. Also
near the pursuer was a sprinkler pipe, which had been cut at one end and was
hanging loosely from the roof space almost vertically defining the areas of
painted and unpainted wall. The pursuer
had fallen from the scaffold to the floor while cutting the pipe with the saw.
[9] When
the Health and Safety Executive inspector (Yvonne Wark) arrived later that
morning, photographs (6/26) were taken of the bay. These show the larger scaffold tower with no
guard rails on two sides (the front and rear) of the upper working platform
from which the pursuer was working. That
platform was at a measured height of 3.7 metres (just over twelve feet)
above the ground (see the HSE Statement, spoken to by Ms Wark, attached
to 6/28). The platform was only
half boarded out; the other half of the boarding being used to create a lower
(also half boarded) platform. There was
a plastic bucket on the upper platform. The
scaffold had four wheels, each fitted with a brake mechanism. Only one wheel had its brake applied. No prosecution in respect of the state of the
scaffolding was undertaken by the procurator fiscal or apparently recommended
by the HSE. The HSE inspector was unable
to say why that was; the decision being that of her line manager.
[10] The
first defender was telephoned and attended at the warehouse before the pursuer
was taken to the Victoria Infirmary. The
pursuer's injuries render him unfit for work and he requires a carer to look
after him. His wife Catherine fulfils
that role. Damages, on the basis of full
liability, are agreed at £450,000.
2. The Nature and Extent of the Work
[11] There was little in the demeanour of the
members of the pursuer's family or the first defender which shed any light on
their credibility or reliability. However,
there was a lasting impression that both sides, but especially Mrs Ruddy
and the first defender, were conscious of the potential significance of their
answers in relation to the pursuer's status.
This is perhaps not surprising, but there was a substantial degree of
tailoring (infra) being applied to
these answers to suit the needs of their respective cases. The assessment of their evidence proceeds in
that context. The truth and accuracy of
their testimony can be effectively tested against the evidence from witnesses
with no interest in the dispute. These
were notably Mr Anderson and Joe Gordon, both of whom gave their
evidence in a straightforward manner and whose credibility and reliability is
fundamentally sound. Their testimony can
also be tested by comparing it with other circumstances established and by
gauging its inherent likelihood. The
submissions of the parties were concerned primarily with such areas of fact and
they are not rehearsed in that regard.
(a) THE
PURSUER'S GENERAL WORK HISTORY
[11] It is difficult to describe the
nature and extent of the pursuer's general work history in the absence, at least,
of a coherent account from the members of his family. According to Mrs Ruddy, the pursuer did
odd jobs for the first defender. These
were paid for in cash, while he continued to claim state benefits. This was so even although the Department of
Social Security had challenged the pursuer over this at the time he had been
carrying out work at VP Packaging. Mrs Ruddy
was aware of the pursuer attending at the Job Centre, but nothing had come up
that had offered him a sufficient wage. Mrs Ruddy
said that she had been unaware of the pursuer working for anyone else (other
than the first defender) after leaving Sunblest, apart from volunteering to do
entirely unpaid painting and decorating at the homes of various relatives. She knew nothing of her husband's dealings
with Mr Levy in connection with the jewellery shop. She said that she had been separated from her
husband for five years before the accident, having fallen out with him over his
claiming benefits whilst working at VP Packaging. She said that he had left home at that time
and had thereafter been living with a friend of his in the Priesthill area. The family home, which Mrs Ruddy
remained in after the separation, was in Haughburn Road in nearby Pollok. Her only contact with the pursuer in the months
before the accident had been when he had come to collect their teenage son Gary
to go to the football. He would sit for
a while on these visits and talk about his work.
[12] Despite
saying that she had been separated from her husband, Mrs Ruddy accepted
that the hospital records at the time of the accident stated that the pursuer
"lives with wife and son" (6/7 pp 90-92 "Patient Profile") at the family
home in Haughburn Road. It was Mrs Ruddy who had provided this
information to the medical staff, saying that she had "automatically said" that
the pursuer was staying with her. Despite
her denial that she had been aware that the pursuer was doing casual work, Mrs Ruddy
appeared to accept that she, or another member of the family, had told
Peter Davies, an employment consultant, that the pursuer had started doing
"painting and decorating with relatives and other odd jobs for cash. He found that he was quite good at the work
and it kept him busy" (6/21, para 3.3 "Employment History").
[13] Gary Ruddy
is the youngest of the family. He was
eighteen at the time of the accident. His
recollection was that the pursuer had been a painter and decorator to trade as
long as he could remember, although he "did not really know" what the pursuer
was doing before the accident. He
remembered the pursuer working at the jewellery shop in the Pollok Centre, when
he had been at secondary school. The
pursuer drank a lot and could be quite aggressive when drunk, so Gary tended to avoid him and did
not discuss his work with him. After the
separation, he thought that the pursuer had stayed in Priesthill after the
separation, which had occurred only six months to a year prior to the accident. Although the pursuer had been in the habit of
taking Gary to the football every Saturday, Gary seemed surprisingly
ignorant of his father's activities and whereabouts during the rest of the week.
[14] Scott Ruddy
is the eldest of the family. He recalled
that the pursuer was a general maintenance man at the premises of VP Packaging. He also recollected the pursuer working at
the jewellery shop. In both premises,
the pursuer was working with a joiner, Thomas Whyte (deceased). Scott thought that Mr Whyte was in the
habit of asking the pursuer to help him out with odd jobs. Scott said that, in recent times, the pursuer
had not been working for anyone else apart from the first defender and Mr Levy
at the jewellery shop. He had done a
number of small jobs for the first defender lasting up to a week. The pursuer did go to the Job Centre but had
not found anything acceptable. His
younger brother, Mark, also remembered the pursuer helping Mr Whyte by
building offices and knocking down walls at VP Packaging, but he did not speak
about any other form of work.
[15] Perhaps
because of their awareness of the critical issues, the family (or at least some
of them) appeared to be reluctant to provide candid evidence of the pursuer's
pattern of work over the years before the accident, to state where he was
living at the time of the accident and to reveal when he had separated from his
wife. For example, as already noted, Mrs Ruddy
said that she had been separated from her husband for five years and had been
unaware of him doing any paid work for anyone other than the first defender. In contrast to that, Gary, who was living in
the same house as his mother, said that his father was a painter and decorator
and had only been separated from Mrs Ruddy for a year or less at the time
of the accident. It is difficult to
reconcile these accounts.
[16] The
first defender spoke highly of the pursuer's capacity to carry out odd jobs of
many sorts such as fixing doors, building walls and general painting and
decorating. He described the pursuer as
gifted in that way. The pursuer had done
work in premises with which the first defender had been associated in the past,
including the jewellery shop, as instructed by Mr Levy. He would sometimes quote a fixed sum for the
work and sometimes an hourly rate.
[17] Overall,
the impression created by all the evidence on this aspect was that the pursuer
was a person whose primary and regular income derived from state benefits, but
who would work casually from time to time as a painter, decorator or odd job
man to supplement his benefit. He would
have worked for persons other than the first defender or his companies, but the
extent of that work is impossible to gauge with any certainty. It was at best spasmodic. He would have been concerned to conceal his
casual engagements from the Benefits Agency and would therefore not have worked
for anything other than cash. He would
not have wanted his name to appear on any documentation; be it work records,
job schedules, invoices or receipts. He
would not have wished to enter into the PAYE scheme or to pay any National
Insurance contributions.
[18] The
pursuer probably took on some work on the basis of a fixed amount for the job
and some by stipulating an hourly, or daily, rate. But his casual work was so spasmodic that it
is not possible to classify him as a self employed person in business on his
own account, as distinct from being an occasional casual employee. He was not operating a business in any
regular way. Whether he was employed in
a legal sense on a particular job would depend on the facts and circumstances
of that job. His general work history is
thus not of great significance in assessing his status in this case, although
it is a factor to be taken into account.
(b) THE
PURSUER'S PAST WORK FOR THE FIRST DEFENDER
[19] The pursuer avers (Statement of
Fact IV, paragraph (7)) that:
"The pursuer and the first defender had known each other for a period
of some ten years prior to the accident.
They had an established relationship, whereby the first defender would,
from time to time, phone the pursuer, and engage him to do work, for one or
other of his various companies".
The essence of the pursuer's case on record is thus
that he was engaged by the first defender, but that these engagements were to
work for the first defender's companies.
There is no averment that he ever worked for the first defender as an
individual at any time prior to starting in the warehouse. In the course of the evidence of Mrs Ruddy,
the pursuer sought to adduce evidence that the pursuer had been engaged by the
first defender to carry out work at his home, where he was building a bathroom
extension. Objection was taken to this
by the defenders on the basis of lack of record. The line was allowed under reservation of all
questions of competency and relevancy. The
line was developed again in the evidence of Scott Ruddy, who spoke to
driving the pursuer to the first defender's house in Newton Mearns, where the
pursuer had said that he was building some kind of hut in the first defender's
garden in conjunction with Mr Whyte.
[20] The
pursuer responded to the objection by maintaining that the line ought to be
allowed on the basis that it was a matter within the knowledge of the first
defender and no prejudice would be suffered by him in allowing the line as the
defenders could deal with it in their own case.
The first defender did attempt to deal with it in his case. He said that he did not think that Mr Ruddy
had done any work at his house, although it was possible. He had instructed work on his house about
seventeen years ago, but there had been no extension to the bathroom. This work had been carried out by a firm of
contractors.
[21] The
absence of notice on record meant that the first defender had no opportunity to
investigate this issue or to prepare any rebuttal by, for example, calling
witnesses from the contractors carrying out the work or producing plans or
other documents. The absence of any
record averring that the pursuer had been instructed to carry out work for the
first defender as an individual renders this evidence inadmissible. I will therefore sustain the defenders'
objection. It is, in any event, unlikely
that the evidence of work at the first defender's house, which took place a
decade or so before the accident, could have had any influence on the current
decision.
(c) THE
WAREHOUSE WORK
[22] The extent to which the pursuer
appears to have discussed the nature of his work at the warehouse with members
of his family is in sharp contrast to the lack of conversation about any other
work which he performed over the years, at least if the evidence of the family
members is to be accepted on this subject.
According to Mrs Ruddy, the pursuer told her that he had met Mr Levy
at the Pollok Centre. Mr Levy had
told him that the first defender had a job available and was going to telephone
the pursuer about this. The pursuer had
subsequently met the first defender at the warehouse. His job had been to fill holes, to cut down
pipes and to paint the walls at what she described as a "factory in
Pollockshaws". Mrs Ruddy knew of no
arrangement whereby the pursuer was to be selling the pipes for scrap (infra).
As far as she knew, the pipes were being removed preparatory to the
painting. The first defender had asked
the pursuer to obtain a Stihl saw and to source the paint cheaply. The pursuer had identified and obtained the
saw and was to be reimbursed for it. Michael
McManus, a friend of the pursuer, also spoke to the pursuer telling him that he
"had taken to" buying the paint himself and was awaiting reimbursement
[23] Scott Ruddy
had actually visited his father in the warehouse one Friday, as he had been
working in premises nearby. He
understood that his father was "repairing floors and painting girders" for £50
a day. He was to make the warehouse
presentable and was working five days a week in order to obtain money for
Christmas. He was painting "stone
pillars" or "beams". The pursuer had
told him that he could not stay long that day as the pursuer was expecting the
first defender to come down and pay him.
Mark Ruddy also referred to knowing that the pursuer was working at a
"factory in Pollockshaws", but did not know the nature of this work. As already remarked, Gary Ruddy said he
did not know anything about what the pursuer was doing before the accident.
[24] Mr Anderson
spoke to seeing the pursuer at work, cleaning and painting the walls. He saw him cutting and taking down fire
damaged pipes and laying them on the ground.
He had seen the pursuer using both tower scaffolds, but he did not say
what work he had been doing from the scaffolds.
Mr Gordon was a roofer employed by Hi-Clad Roofing. He had carried out the roofing work at the
warehouse. He had ceased working in the
warehouse about three weeks prior to the accident. His work had overlapped with that of the pursuer
for about two weeks. Mr Gordon
spoke to the pursuer fixing the floors and walls preparatory to painting. He made no mention of cutting down pipes. He said that the first defender would appear
from time to time to check his, and Mr Gordon's, work. Mr Gordon had used scaffold towers for
his own work. However, Hi-Clad's
scaffolding was painted blue and cream and neither of the towers present at the
time of the accident (as shown in the photographs) appeared to belong to
Hi-Clad. Mr Gordon did not recognise
the larger tower and the narrow gauge scaffold did not belong to Hi-Clad as
they did not use such scaffolding.
[25] The
first defender said that it had been the pursuer who had approached him about
working in the warehouse, having met him by chance at the Pollok Centre. He had arranged to meet him at the warehouse
at a stage when the roofing work was almost complete. The pursuer was to paint the walls and to
wash the floor for £40 per day. The
first defender had already rented a floor washing machine (supra), but the pursuer had stated that he preferred to use a brush
and water. During the course of the
work, the pursuer had spoken to the first defender about the buckled steel
beams and the pipes of the sprinkler system.
He had asked if he could cut them down and sell them to a scrap metal
dealer. The pursuer had said "I'd
definitely do it in my own time, Mr Marco". The first defender took this to mean that the
pursuer might do it during his lunch hour, at a tea break or in the evenings or
at weekends. The first defender had
"foolishly" said that the pursuer could remove the beams and pipes. It made no difference to him as they were
surplus to requirements. The removal of
the sprinkler system was of no interest to him.
Although the buckled beams were "slightly" unsightly and dirty, the
premises were eventually sold without any further work being done to remove
them or the sprinkler pipes. The pursuer
had asked to borrow £100 from the first defender to buy a Stihl saw to cut
down the beams, promising that he would be able to repay this as he already had
a buyer for the saw.
[26] The
first defender maintained that he had not seen the pursuer using scaffolding at
all and that the pursuer was not using it to paint the walls. Rather, he had managed to paint them using a
roller on a pole perhaps ten feet in length.
He had nevertheless been able to achieve a relatively straight line
across the top of the wall head. The
first defender knew that the pursuer had planned to use scaffolding to cut down
the metal work, but he had not organised the provision of any scaffolding for
him. The scaffolding in the warehouse had
simply been left by Hi-Clad. They had
not picked it up after finishing the roofing.
The pursuer had told the first defender that he knew what he was doing
as he had worked on scaffolding "hundreds of times" and had both a hard hat and
a harness. The first defender claimed to
know nothing about scaffolding, although, standing the pursuer's assurances
about his experience, he had been happy to let him use the available towers,
pending Hi-Clad's arrival to pick them up.
[27] About a
year after the accident, the first defender telephoned a scrap merchant to
ascertain the value of scrap metal. He
discovered that it was £60 per tonne delivered but about half of that if
it required to be uplifted. At the time
of the accident, the delivered price was only £45 per tonne (see 7/7,
p 5 of 11). The first defender
accepted that it might only be around £22 per tonne if the merchant
required to uplift it. He thought that
it might take three or four days to cut down a tonne of metal but the pursuer
was an "opportunist" and his own time did not cost him anything. He thought that £22 might seem a fortune
to the pursuer, as he had often told the first defender that he had no money.
[28] Peter Cheeseman,
an expert in construction practice, explained that, although the painting might
have been done using a ladder, scaffolding would have been required to cut the
metal. The latter was a two person task. Mr Cheeseman did not consider that a
painter could obtain the straight line at the wall head (shown in the
photographs) using a roller on a pole from the floor, but he did concede that
the photographs showed two instances of the painter perhaps over-shooting the
line with a roller. He expressed the
view that, if there were a scaffold tower on site, then a painter would use it. He would then employ a roller with a short
extension of no more than a metre. Otherwise,
if he used a long pole, it would be difficult both to get paint onto the roller
and to apply the requisite pressure at height.
[29] The
issue of who approached whom for the job is immaterial. In relation to the first defender's evidence
upon the scope of the work instructed, he was, of course, the only person who
could speak directly to any exchange between him and the pursuer. The first defender's evidence that the
pursuer was only engaged to clean the floors and walls and to paint these walls
is not credible nor is his testimony that the pursuer had volunteered to cut
down the steel beams and sprinkler pipes in order to trade them as scrap. Rather, the only conclusion from the totality
of the evidence is that the pursuer was engaged to carry out a clean up of and
to decorate Bay 2, preparatory to the lease or sale of the warehouse, and
that this work included the cutting down of the beams and the sprinkler pipes. There are several reasons for this. First, despite the first defender's
protestations to the contrary, the presence of buckled beams and disused
sprinkler pipes, all no doubt discoloured from smoke damage and covered in
dust, would not have assisted the prospect of leasing or selling the warehouse. It would have been prudent for the first
defender to deal with the beams and pipes in order to improve the chances of a
sale or lease, even if ultimately a bargain was achieved without further
removal after the accident. In short, it
would have made sense for the first defender to have instructed this work. Secondly, the pursuer was a person primarily subsisting
on benefit. He had been given the
opportunity of a few weeks work, the cash for which amounted to at least £200
per week, which would be in addition to his benefit. The evidence did not suggest that the pursuer
was a general enthusiast for work, or indeed anxious to earn more cash than
might keep him going on a day to day basis, with a bit extra from time to time
for contingencies such as Christmas. It
is not likely that, for the very small return that might be made from the scrap
metal, the pursuer would volunteer to carry out the time consuming, dangerous
and heavy task of cutting down the metal using a Stihl saw and to trade it to a
scrap merchant. There was no evidence of
him engaging in that type of operation before.
Rather, the pursuer was a painter and odd job man and it is far more
likely that he was cutting down the metal because that was part of the task he
had been instructed to perform. He would
have had no reason to suppose that the sprinkler system was inoperable or that
the structural value of the buckled beams had been lost. Thirdly, at the time of the accident, the
pursuer was cutting down the metal during the normal working hours he had
agreed with the first defender. He was
not doing it in his own time, as the first defender suggested he had promised
to do. Mr Anderson had seen or
heard him cutting the pipes after his arrival on the day of the accident and on
previous occasions. This points towards
the work being part of his normal duties and not something separate, to be done
outwith the scope of these duties in his own time. The pursuer would not have wished to have
crossed the wishes of the first defender.
Had the pursuer agreed to do the metal work in his own time, he would
not have been doing it at the time of the accident. For each and all of these reasons the
appropriate conclusion is that the work on the pipes and beams was part of the
task which the pursuer had been instructed to perform by the first defender for
the daily rate.
[30] The
first defender's evidence that the pursuer was not using the scaffolding towers
in order the clean the walls or to paint them is also rejected as not credible. Bay 2 is a large area. The walls were extensively smoke damaged to a
height of more than fifteen feet. It is
barely conceivable that anyone would attempt to clean such a substantial area
in commercial premises without using some form of scaffolding. It is equally implausible that he would
attempt to paint it using only a roller attached to a ten foot pole. It would have been far easier, and quicker,
to use scaffolding. Given that it is not
disputed that the scaffold towers were on site, it is even less likely that a
person would refrain from using them to perform these tasks. Mr Cheeseman's evidence in this regard
is accepted.
[31] Mr Gordon
gave evidence that the scaffolding in the warehouse was not that of Hi-Clad. He gave sound reasons for that evidence. He was a roofer and would be familiar with
his company's equipment. There is no
reason to reject his testimony. His
evidence about the ownership of the scaffolding is also consistent with the
Hi-Clad work having finished. There is
no obvious reason for Hi-Clad to have left their scaffolding on site for
several weeks thereafter. The provision of
scaffolding for the pursuer to carry out his work would have been an obvious
necessity, especially as that work included cutting metal at height. In short, the two scaffold towers in the
warehouse must have been provided or obtained for the pursuer's use. There was no other reason for them being in
the warehouse. The first defender must
have been aware of that, since he must have seen them in use on his frequent
visits to the warehouse to check on the pursuer's work. Whether the first defender organised the
scaffolding himself or whether the pursuer did so upon his instructions may not
be certain, but the first defender's evidence that the tower scaffolds had been
left by Hi-Clad is rejected.
[32] Although
it is essentially hearsay and I doubt whether the pursuer's conversations with
his wife about his work were particularly extensive, I accept the evidence of Mrs Ruddy
that the pursuer had, at some point, told her that part of what he had been
doing was cutting down pipes as part of the preparation for the decoration of
the warehouse. It is highly doubtful
whether the pursuer went on to tell her that the first defender had asked him
to secure a Stihl saw for the work and that he had done so. That seems to be rather too much detail for
an occasional chat. But the first
defender's evidence that the pursuer asked to borrow £100 from him to buy
such a saw is rejected as lacking credibility.
That did not seem to be either a likely or a sensible arrangement. The work was temporary and hardly required
the purchase and resale of equipment. The
pursuer was only earning £200 or thereby a week and it seems unlikely that
he would take the risk of buying a Stihl saw in order to make a very small amount
of money from scrap metal on the prospect of being able to offload the saw at a
later date. It would be peculiar if, as
the first defender maintained, the pursuer had located a person to buy the saw
immediately after the work finished before he had even started using it or
borrowed the money to buy it. This does
not appear to be the kind of arrangement that the pursuer would have thought
out and proceeded with, as distinct from just getting on with whatever job he
had been asked to do with whatever equipment was readily to hand or had been
provided for him. Furthermore, there
appears to have been no attempt to return the saw to the pursuer or his family.
(d) PAYING
FOR THE STIHL SAW AND THE PAINT
[33] According to Mrs Ruddy, as
at the date of the accident, the pursuer had not been paid for the Stihl saw or
the paint. She asked her son Scott to
contact the first defender in order to obtain payment for these items. He did so and the first defender brought cash
amounting to "£200 and something" to her house and gave it to her son Gary, who
had been delegated to answer the door. The
money included, according to Mrs Ruddy, an element of wages, as the
pursuer had been paid on the Friday and the accident had occurred on the
Tuesday. The pursuer had told her that
he had been paid that Friday. Scott said
that his mother had asked him to telephone the first defender about the money
for the saw and the paint, which Mrs Ruddy had told him amounted to £200,
and he had done so. This was within a
week of the accident. The first defender
said that it would not be a problem and he would deliver the money to Mrs Ruddy. Gary spoke to meeting the first
defender at the door, being given money and being told that it was for the
Stihl saw and paint. He gave the money
to his mother.
[34] The
first defender accepted that he had been telephoned by Scott after the
accident, but his version was simply that Scott had said that he owed the
pursuer money. No sum was mentioned. The first defender had agreed that money was
due. He initially said that he had sent £200
in cash round to Mrs Ruddy's house via a driver, but later recalled that
he had taken the money personally. The
money represented a week's work and the first defender thought it "only right"
to make this payment. Although he could
not at first recall the arrangement about the purchase of the paint, the first
defender did not dispute that it was the pursuer who had bought it. He surmised that he had paid for it as the
job had progressed.
[35] The
essentials of the evidence of the first defender on this aspect of the case are
credible and reliable. In relation to
the paint, given the arrangement to pay for the work weekly, it seems likely
that the paint would have been paid for periodically as the job went on, as and
when it was bought. It is not likely
that the pursuer would have continued to buy paint without being reimbursed for
a previous batch or, if he bought it all at once, that he would have continued
working with money outstanding for several weeks prior to the accident. In relation to the saw, it is not credible that
the pursuer, having suffered serious head injuries, would have started
discussing from his hospital bed that he was outstanding a sum of money for a
Stihl saw in the week after his accident, far less that Mrs Ruddy would
have set about recovering that money with such immediacy, especially if she was
supposedly separated from the pursuer. Rather,
the first defender probably felt some form of moral responsibility for what had
happened and, upon enquiry as to whether there was money outstanding, had simply
selected the weekly rate and sent that round to the family as some form of
gesture of goodwill. Ultimately, the
pursuer's prognosis turned out to be very poor.
The first defender was not to know that at the time although, curiously,
the first defender made no contact with him after the day of the accident.
(e) ASSISTANCE
[36] Mrs Ruddy spoke to the
pursuer telling her during the works that he was going to get his friend "Mick"
to help, but that the first defender had declined to allow this as he had been
in no hurry to finish the work. Mr Anderson
also spoke to having a conversation with the pursuer during which the pursuer
had said to him that he had asked the first defender for assistance, but had
been told by him that it was a one man job.
Mr McManus spoke to the pursuer telling him that he might be able
to get him some work and would ask the first defender. However, the pursuer had later apologised and
told him that the first defender had not been willing to pay for two people to
do the job at the warehouse. The first
defender denied that the pursuer had ever asked him for assistance. If he had done, he would have considered it,
although it would have required the payment of more money. He thought that the pursuer was managing the
work adequately on his own.
[37] The
metal work was itself taxing and normally, as Mr Cheeseman said, it would
have been regarded as a two man job. It
would not have been at all surprising if the pursuer had considered the
desirability of assistance. Indeed given
that he had been cutting metal beams and pipes at, perhaps, chest height or
above, from a narrow platform almost four metres above the ground, it would
have been natural to seek assistance in, for example, holding and lowering the
pipes as he cut them with the saw. Mr McManus
was a straightforward credible and reliable witness and there is no reason for
rejecting his testimony that the pursuer had said that he would try to obtain
work for him at the warehouse. There is
no reason to suppose that he did not do so.
There is also no reason to reject his testimony that the pursuer had
reverted to him and had said that the first defender had rejected the idea as
he considered it to be a one man job. That
is what the first defender in fact thought and conveyed in his evidence. Mrs Ruddy's evidence is accepted on this
point. It is consistent with that of Mr McManus
and Mr Anderson and the nature of the work. The first defender's version is accordingly
rejected except in so far as he said that, if had he accepted the pursuer's
suggestion of assistance, then that would have involved the first defender
paying more money; that is to any assistant taken on.
3. Employment
and Employer
(a) EMPLOYMENT
or SELF EMPLOYMENT
[38] In a case such as this,
involving a manual worker in the construction or building industry, the issue
of whether the pursuer was an employee as distinct from being self employed
still falls to be determined by reference to the traditional test which draws a
distinction between a contract of service and a contract for services. A worker will generally be regarded as
employed if: (1) he is required to perform work personally in return for
pay; (2) he is directed on what work to do, if not the precise method of
doing it; and (3) there are no factors pointing away from him being an
employee, such as those which make it clear that he is "in business on his own
account" (see generally the English Court of Appeal in Bunce v Postworth (t/a
Skyblue) [2005] IRLR 557, Keene LJ at para 13 under reference to Ready Mixed Concrete (South East) v Minister of Pensions and National Insurance
[1968] 2 QB 497, MacKenna J at 515; cf the application of several
tests in King v Farmer [2004] EWHC B2 (QB), Rutherford HHJ at paras 22
and 3). In that context, it is necessary
to look at all the facts and circumstances in deciding whether, having regard
to their totality, what exists is a contract of service or not (Keene LJ (supra) at para 19 under reference
to Hall v Lorimer [1992] ICR 739, Mummery J at 744).
[39] The
pursuer was engaged to do the work personally.
He was paid not for a particular job of work but on the basis of a daily
rate, the work lasting perhaps up to two months. The agreement was that he would work a
particular number of hours per day and that, if he were late, he would make up
time that day. He could not engage extra
assistance for himself, but could ask the first defender to hire additional
staff. If that were done, the first
defender and not the pursuer would pay the assistant. The first defender controlled what was to be
done. He checked the work every day or
two and, no doubt, would direct the pursuer on anything that needed revision. If he had wanted the work done differently
then he could have required the pursuer to do that, even if, as matters stood,
he did not actually do so as the pursuer knew how to carry out the instructed
work. On this basis alone, the indices
of employment are present. In addition,
as found above, the equipment used by the pursuer, notably the scaffolding, was
provided for him and did not belong to him.
Even if the pursuer might have sourced the scaffolding, he did not hire
it.
[40] There
are no factors pointing to the pursuer being in business on his own account,
other than his desire to receive cash rather have his wages declared to central
government agencies. The first
defender's position was that, as a generality, the pursuer was a person who
"worked for himself". He would never
agree to be on the books of any company, preferring to be "his own boss and to
run his own life". This was so even
although, in his evidence, the first defender often referred to the pursuer as
working for "me". The first defender's
evidence that the pursuer said certain things indicating that he wished to
remain free of ties which would jeopardise his benefits and cash receipts is no
doubt accurate. But his evidence that
the pursuer wanted to be "his own boss" is embellishment and not credible. It is inconsistent with what the pursuer was
actually doing, namely casual work as directed by the first defender with more
or less fixed hours at a specific daily rate.
He was doing work in a manner typical of a casual employee and not in a
way consistent with a self employed trader.
He was an employee, working under a contract of service.
(b) THE
EMPLOYER
[41] The choice of who the employer
was lies between the first and second defenders. There is no dispute that the arrangement was
entered into between the pursuer and the first defender and that the pursuer's
wages were paid by the first defender out of his own pocket, even although he
might have reimbursed himself later from company funds. The issue is whether, looking at all the
surrounding circumstances found proved, the contract was with the first
defender as an individual or with him acting as an agent of the second
defenders. For it to be the latter, it
would have to have been stated by the first defender that he was engaging the
pursuer in his capacity as director of a company. Alternatively, the existence of the second
defenders as employers would have to have been clear to the pursuer from the
circumstances surrounding his engagement.
These circumstances could have involved, for example, physical signs
that the premises were being operated under the name of a company. Thus, if a person is engaged to work in a
shop, office or factory trading under a particular name, he will normally
assume that he is being engaged by the trading entity and not by the individual
who chanced to recruit him. There was no
evidence that the warehouse had any sign disclosing ownership or control under
a trade or corporate name. There was no
evidence that there was any active business being carried on in the warehouse
by the second defenders. There was
nothing to inform the pursuer that he was working for the second defenders. Interestingly, in this regard, Mr Anderson's
understanding of the position was that the warehouse was owned by the first
defender, even if he later conceded in cross examination that a company might
have been the formal proprietor.
[42] According
to the Ruddy family, the pursuer referred to himself as working for the first
defender. In the context of his
arrangement with the first defender, that would be the natural thing to do and
it is accepted as accurate. That is a
factor pointing towards him working for the first defender as an individual. It not, of course, a decisive factor. Many people may talk of themselves as working
for a particular person, even although they know that the formal arrangement is
that they are employed by a corporate entity or a firm. They will often be made aware of that by
seeing the name of the employer on their wage slips, or by being given
particulars of their employment in writing.
They may become aware of the fact that they work for such an entity by
seeing its name on the premises in which they work or on the stationery they
are working with. But there was nothing
of such a nature here to have informed the pursuer that he was working for a
corporate entity as distinct from the man who hired and paid him. Again of interest in this connection is that Mr Gordon
described the pursuer as doing odd jobs for the first defender.
[43] The
first defender referred to the pursuer as working for "me". This is again a factor. Again it is not decisive. A managing director or other person working
in the context of a limited company or partnership may talk of his staff, or at
least some one them, as working for "him", even though he is aware that the
formal employer is the corporate body or firm.
[44] Mrs Ruddy
said that, although the pursuer spoke of working for the first defender, she
knew that the first defender operated a number of companies, because her
husband had told her that. She knew that
these companies had premises in the city and that her husband would be aware
that these premises would be owned by these companies. She accepted in cross examination that the
pursuer would know that the first defender would be "representing a company" at
times, although in re-examination Mrs Ruddy explained that she did not
"personally" know about the first defender's companies and that all she had
been aware of was that the pursuer was working for the first defender. Although this passage of evidence was founded
on strongly by the defenders, it really went little further than to illustrate
that, at times, the first defender might have been acting in his capacity as a
director of a company and that the pursuer might know that. Sometimes, no doubt, it would have been
obvious. When instructed to do the work
at the jewellery shop or VP Packaging, for example, the pursuer may have been
aware that he was working for the company whose name appeared on the shop or
factory frontage and not for the first defender or Mr Levy as individuals. But all of this is not particularly helpful
in deciding the issue of the identity of the contracting parties for the work
instructed in the warehouse, other than that it provides another circumstance
for consideration, namely that the pursuer would be aware that, at times, the
first defender might operate through limited companies or other trading
entities.
[45] The
first defender maintained that the pursuer "knew perfectly well" that the
warehouse was operated by a company. The
first defender said that he had specifically offered to pay the pursuer
"through the books of the company" but, as in the past, the pursuer had
declined this offer. He said that he had
mentioned the second defenders by name to the pursuer. In cross examination, the first defender
maintained that he did not know the procedure involved in putting someone
"through the books" of the company, as he was not an accountant.
[46] The
first defender's evidence that he told the pursuer of the second defenders'
involvement with the warehouse, or indeed the involvement of any company in the
warehouse, is rejected as not credible. The
same applies to his assertion that the pursuer would have known of this
involvement. There was nothing to inform
the pursuer of this involvement. The
first defender may have offered to put the pursuer "through the books" but,
even if the pursuer might have thought that such an arrangement would have
involved him formally working for a limited company, that arrangement was
declined. There would have been little
practical purpose in the first defender mentioning the involvement of the
second defenders, unless he was actively thinking of potential legal pitfalls,
which is not likely. What the first
defender was interested in doing was selling or leasing the warehouse as soon as
possible and achieving that by cleaning up the damage caused by the fire as
cheaply as possible. He was prepared to
engage the pursuer on a purely "off the record" cash basis, as was the pursuer
to reciprocate. The name or the
existence of the second defenders would have meant nothing to the pursuer. It is not at all likely in the context of
such a cash transaction that there would be any mention of a corporate entity. It was a simple arrangement between the first
defender and the pursuer. Under it, the
pursuer would not have looked to a corporate entity to pay his wages. He would have looked to the first defender
personally to do that and the first defender did so. The first defender provided no documentation
or other material to advise the pursuer that he was contracting with anyone
other than himself as an individual. The
pursuer's contract was with the first defender as such an individual and not as
an agent for a principal, disclosed or not.
Looking at all the circumstances of the arrangement, the pursuer was
employed by the first defender.
4. Liability
(a) THE
STATE OF THE SCAFFOLDING
[47] There is no reason to suppose
that the scaffolding was in any state other than the one observed and
photographed by the HSE inspector on the day of the accident. Although the first defender maintained that
the head of the HSE in the West of Scotland had assured him after the accident
that there was nothing wrong with the scaffolding and that it complied with all
health and safety requirements, it is difficult to see how such a conclusion
could ever have been reached. Mr Cheeseman
explained, if it were not already obvious, that the larger scaffold had no
guard rails to stop persons working on it from falling off. Its working platform was not fully boarded
out. On any view, it was dangerous to
work from. There was nothing at all to
prevent a workman falling backwards or forwards the distance of 3.7 metres
or thereby from what was a narrow working platform to the floor. There is equally no reason not to hold that
this was the state of the scaffolding throughout the work being carried out.
[48] Despite
the absence of averments on the point, Mr Cheeseman gave evidence that the
scaffold was probably too high for its width in terms of stability, but his assumption
on the height of the working platform was wrong. He had proceeded on the basis of the wall
height being in excess of twenty feet and that, looking at the photographs, the
working platform was at a similar height.
He disputed the measurements of the wall height in the chartered
surveyors' particulars. He was not
convinced of their accuracy, referring to the authors as "estate agents", who
had probably not measured the heights, or at least had not done so accurately. However, the HSE inspector had measured the
height of the working platform and there is no reason to doubt the accuracy of
her figures. There is also no reason to
doubt the content of the particulars, even if they were spoken to only by the
first defender rather than their authors.
Any case based on this aspect would have failed
(b) THE
CASE AGAINST THE FIRST DEFENDER
[49] The pursuer's case against the
first defender is based first upon his failure at common law to take reasonable
care, as the pursuer's employer, to provide a safe place of work and safe plant
and equipment. Given the condition of
the scaffold tower, from which the pursuer fell, that case is made out. The pursuer was working at a height of
3.7 metres on a half boarded out scaffold with no front or rear guard
rails to stop him falling off. Allowing
an employee to work using such a scaffold at that height is a breach of the
duty of care owed by an employer to an employee not to expose him unnecessarily
to the risk of injury. There was a high
likelihood of a fall from the scaffolding used.
On the basis that it is established that the state of scaffolding in the
photographs represents its condition at the time of the accident, it was
not contested that the common law case was made out.
[50] The
pursuer also relies, if somewhat indiscriminately, upon regulations 4(1)
to (3), 5(1), 8 and 9(1) of the Provision and Use of Work Regulations
1998 (SI 2306) and regulations 5(2), 6(1) to (3) and 10(1) and (2) of
the Construction (Health, Safety and Welfare) Regulations 1996 (SI 1592). It is therefore necessary to deal with each
of these statutory cases, even if pleading rather fewer of them might have been
regarded as quite sufficient when dealing with a fall from scaffolding. In respect of the 1998 Regulations, the
pursuer founds upon them only in respect of the first defender's status as
employer. Regulation 4(1) provides
that every employer must ensure that work equipment is so constructed or
adapted as to be suitable for the purpose for which it is used or provided. Regulations 4(2) and (3) are
variants of 4(1). The scaffolding
was for the use of the pursuer and was "work equipment". It was not suitable for its purpose, because
anyone using it would be likely to fall from it for the reason already given. A breach of regulation 4 of the
1998 Regulations is therefore made out.
Regulation 5 provides that work equipment is to be "maintained in
an efficient state". It does not apply
to this case. There was no evidence of
lack of maintenance. The scaffolding was
simply not suitable in the first place. Regulations 8
and 9 relate to the provision of information and training on the work
equipment. As was accepted by the
pursuer at the stage of submissions, there was no evidence concerning these
matters and no breaches of these regulations have been established.
[51] In
relation to the 1996 Regulations, the pursuer does not specify what status
of the first defender is being relied upon to create the relevant duty, but
presumably it is again, primarily at least, that of employer. Regulation 5(2) provides that every
place of work shall be "made and kept safe for, and without risks to health to,
any person working there". The
obligation rests on, amongst others, an employer whose employees are carrying
out construction work, which includes the alteration of a structure or the
removal of part of it, as was being carried out in the warehouse. The pursuer's place of work was not safe by
reason of the inadequate state of the scaffolding. A breach of regulation 5(2) is made out.
Regulation 6, which is perhaps the
classic one applying to falls from scaffolding at the time of the accident,
provides that suitable and sufficient steps, including the provision of guard
rails and adequate working platforms, must be taken to prevent a person falling. There was a clear breach of that regulation. Regulation 10 applies to dangers caused
by the demolition or dismantling of a structure. No injury resulted by reason of any danger
arising from the dismantling of the metal beams or pipes, as distinct from the
inadequacy of the scaffolding, and the case under regulation 10 fails.
[52] The
pursuer attempted to develop a case against the first defender under the
1996 Regulations based on his control over the work (regulation 4(2)),
on the assumption that he was not deemed to be the employer. On the analysis submitted by the pursuer,
every person capable of giving instructions to a workman on site, from the
foreman of a squad to the managing director of the workman's employers, would
be deemed to be liable personally for compliance with the Regulations. However, as is normally made clear in
regulations (eg regulation 4(3) of the Workplace (Health, Safety and
Welfare) 1992 Regulations (infra)),
control must mean in connection with a person's trade, business or other
undertaking. Where employees are
instructing the manner in which the work is to be carried out, the person in
control will normally be deemed to be the employing person and not simply a
person higher up the chain of command than the particular workman injured.
(c) THE
CASE AGAINST THE SECOND DEFENDERS
[53] The action against the second
defenders is based upon a number of different grounds. However, it was not disputed that the summons
was not served upon the second defenders until January 2006, more than
three years after the accident. The
second defenders aver that the action against them is accordingly time barred,
presumably under section 18 of the Prescription and Limitation (Scotland) Act 1973 (c 52). The pursuer makes no attempt to answer this
in his pleadings. He made no attempt to
do so in submissions either. The
pursuer's case against the second defenders must fail on this ground.
[54] It
remains necessary to deal with the merits of the cases pleaded against the
second defenders. There is a case
against them at common law, in the event of the second defenders being held to
be the employers. That case fails as
they were not the employers. The next
case is founded upon the duty to take reasonable care as occupiers in terms of
the Occupier's Liability (Scotland) Act 1960. In order to succeed, it would have to have
been established that the second defenders were under a duty of care to persons
engaged by the first defender as an individual to carry out work on their
premises. Although the analysis is
somewhat artificial, if the pursuer was employed by the first defender and not
the second defenders, the pursuer's relationship with the second defenders is purely
as an employee of a third party. In
these circumstances, there is no general duty on the owner of a building to
supervise the manner in which work on it is being executed by a third party or
to inspect scaffolding being used by that third party. The pursuer's case on this ground would
accordingly have failed.
[55] The
pursuer avers breaches of regulations 4, 5, 8 and 9 of the 1998
Regulations (supra) and regulations 5,
6 and 10 of the 1996 Regulations (supra). He also adds breaches of regulations 5,
11 and 13 of the Workplace (Health, Safety and Welfare) Regulations 1992
(SI 3004). Since it has been
established that the first defender was the pursuer's employer, all of these
cases depend upon the second defenders having "control" over the pursuer's
workplace, the equipment supplied or the work itself. The pursuer relied upon an English Court of
Appeal case (McCook v Lobo (2003) ICR 89, Judge LJ
at para 16) and a later English High Court case (King v Farmer (supra) Rutherford HHJ at para 30))
in relation to what might constitute control outwith the employment setting. The defenders founded upon Matthews v Glasgow City Council 2006 SLT 88 (Lord Osborne delivering the
Opinion of the Court at para 28) relative to control by an owner of
premises instructing building work. There
was no evidence that the second defenders exercised any control over the
workplace, the equipment or the work in the warehouse in any practical sense. The second defenders were the owners of the
premises, but that was all. The work in
the warehouse was being organised by some one who was one of their directors,
but he was doing so as an individual making a private and clandestine
arrangement with the pursuer and not as the second defenders' agent, even if he
may later have reimbursed himself from the second defenders' funds. He was in sole personal control of the work
and the equipment. The cases against the
second defenders would have failed on that ground. The case under the 1992 Regulations
would have failed because, as the defenders submitted, these Regulations do not
apply to a workplace where the work being carried out is construction work (see
regulation 3(1)(b)).
(d) THE
HARD HAT AND CONTRIBUTORY NEGLIGENCE
[56] The defenders tendered pleas of
contributory negligence, but their only averments in that regard concerned the
pursuer's failure to wear a hard hat at the time of his fall. According to Mr Anderson, when he saw
the pursuer after the accident, he was unconscious and remained so until
removed by ambulance to the hospital. The
first defender said that, when he arrived on the scene, the pursuer was
conscious, lucid and said "I'm sorry Mr Marco, I didn't have my hard hat
on". The medical records (6/12 p 4)
note the pursuer as being "15" on the Glasgow Coma Scale on arrival at
hospital and, curiously, that he was wearing a hard hat when he fell. No-one was called to speak to the content of
these records.
[57] Whether
or not the pursuer made the remark attributed to him by the first defender has
no bearing on the case, in the absence of any evidence that the wearing of a
hard hat would have made any substantial difference to the injuries which the
pursuer suffered. There is no material
which would justify such a finding. It
is highly unlikely that it would have made any difference. The plea of contributory negligence on this
basis is therefore rejected. Furthermore,
from the position of the hard hat after the accident, it is more likely that
the pursuer had been wearing it at the material time, irrespective of what he
might have said to the first defender whilst in a state of, at least, shock and
distress.
[58] An
issue concerning the failure to apply the brakes of three out of the four
wheels of the scaffold was raised in the cross examination of the HSE
Inspector, Ms Wark, by the defenders.
She confirmed that only one of the brakes was on. Her evidence was in advance of Mr Cheeseman's
testimony that he could see from the photographs that not all of the
wheels had been properly braked and that any heavy lateral pressure created
during the work might cause the scaffold to move. If there were any movement then, according to
Mr Cheeseman, there would be a high likelihood of a person, who was
holding a Stihl saw on the platform, falling off.
[59] An
objection was taken by the pursuer during Ms Wark's testimony on the basis
that there was no contributory negligence case averred, based upon a failure by
the pursuer to apply all of the brakes. The
evidence was allowed under reservation of all questions of competency and
relevancy. In submissions, the defenders
attempted to advance a case of contributory negligence based upon this failure
to secure the brakes. They said that
this was a case which had emerged during the evidence and had not been known to
them before the proof. There are two
reasons why their attempt fails. First,
there is no record for such a contributory case and the pursuer's objection is
therefore sustained. In that regard, as
the defenders recognised in submissions, where they had averred one specific
contributory case, they could hardly be allowed to advance a different or
additional one at the proof (McGowan
v W & JR Watson 2007
SC 272, Lord Nimmo Smith delivering the Opinion of the Court at para 13) Secondly, there was no evidence that the
absence of a brake on three out of the four wheels had made any material
contribution to the pursuer's fall from the scaffolding. At best, the scaffold tower might conceivably
have moved while the pursuer was using lateral force to cut a pipe with the saw. But there was no evidence that it had done so. It is far more likely that the pursuer simply
fell from the scaffolding whilst using the saw without any movement of the
tower itself caused by the absence of three brakes. He could have lost his balance for any number
of reasons but the operative cause of his fall was that the scaffolding was
inadequate by reason of its half boarded condition and the absence of front and
back guard rails.
[50] Although
the defenders averred "sole fault" in the defences, there was no indication of
what facts might have constituted this plea and the defenders departed from it
in submissions.
[51] I will
grant decree against the first defender for payment to the pursuer of £450,000
and assoilzie the second defenders. Both
parties moved that the case should be put out By-Order to deal with any motions
for expenses and that will also be done.
