Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 187
PD494/11	OPINION OF LADY DORRIAN in the cause RONALD HILL Pursuer; against NORSIDE LIMITED Defender: ________________

Pursuer: Young, QC, Fitzpatrick; Digby Brown LLP

Defender: Hanretty, QC, C Smith; HBM Sayers

14 December 2012

[1] On 23 October 2008 the pursuer fell to the ground from the first level of a scaffold, a height of about 10ft. He landed on his head and suffered injuries which resulted in an incomplete tetraplegia. Damages, on full liability, were agreed at £1,869,000.00.

[2] The scaffold had been erected by the defenders for whom the pursuer was working as a sub-contracted roofer and slater under the Construction Industry Scheme whereby income tax of about 20% is deducted by the main contractor. The pursuer was paid weekly, on an hourly basis for a 39 hour week. The purser habitually worked in a squad consisting of himself, Derek Porter, with whom he had worked for about 15 years, and his son, also Ronald Hill, with whom he had worked for about 10 years. The pursuer was the foreman of the squad. At the time of the accident, they had been doing work for the defenders from about March/April of 2008. The defenders' contracts manager, Mr. Stephen McDonald, engaged them to carry out work for the defenders. He was responsible for obtaining and tendering for work on behalf of the defenders. Once the contracts had been secured, it was his decision who would work on any given site. He was responsible for arranging the scaffolding on site, which was erected by scaffolders employed by Norside. It was left to the scaffolders to decide what sort of access to provide. Mr. McDonald would decide where the pursuer's squad was to work and what the job was to consist of. He could direct them to a job, or take them off a job and transfer them to another job. Norside provided the squad with a van and paid for the diesel. They supplied all necessary materials, including roofing materials and power tools, for the job in hand. The only tools provided by the squad were their own hand tools. Insurance was arranged by Norside.

[3] At the time of the accident the pursuer's squad was working on premises at Main Street, Coatbridge where they were engaged in stripping and retiling the roof. No risk assessment was provided, nor was there any method statement for the work. No instructions were given regarding access to the scaffold or the roof. It was not disputed that when the squad arrived to start the job they identified a number of defects in the scaffold. There was no brick guard at roof height (a mesh guard to prevent items such as slates falling from the roof and injuring passersby) nor was there a fan lift (an upwardly angled platform extending outwards along the length of the first level of the scaffolding designed to serve a similar purpose to the brick guard). Moreover, although there was a fixed ladder from the first level of the scaffold to the roof, there was no ladder provided for access from the ground to the first level, which meant the men had to climb the scaffolding poles, which had little lugs on them, to get to the first level. There was some dispute about exactly when these defects were rectified, but at any event they had been rectified by the time of the accident. The defenders supplied the men with an aluminium ladder for use in getting from the ground to the first level of the scaffold. The ladder had obviously once been part of a multi-section ladder, and at one end had guard rails into which another section would feed. At the other end, the rubber stop was entirely missing from one foot. The ladder, which had "Norside" written on the side, was generally in poor condition with stiles which moved in and out and damaged rungs.

[4] The pursuer understood that no fixed ladder access was provided to the first level of a scaffold, to prevent access by children or unauthorised persons. The scaffold had in fact been vandalised a couple of times. The system the men adopted was one which the pursuer said he had encountered elsewhere on Norside sites, and I believed him. In his evidence Mr. McDonald could not recall what reasons there might be for not having a fixed ladder leading from the ground floor, but I am satisfied that Norside, probably in the person of Mr. McDonald, told Mr. Tinson that it was because of these concerns over access being gained by unauthorised persons. When the ladder was provided the men were given no instructions how to use it: by which I mean they were given no instructions about what part of the scaffolding should be accessed from the ladder, nor were they told what method should be utilised to achieve stability in a situation where the ladder was not to be fixed in place but only to be in place when in use. In fact, because of the way the scaffold was constructed, it was necessary for the ladder to be used at the side of the scaffold, thereby gaining access to the right hand edge of the first level platform. There was no lip on the bottom edge of the platform but there was a cross bar at chest height which required to be negotiated for access to the platform. The men devised their own method of using the ladder as follows: the ladder would be stored flat on the first level of the scaffold; when the men arrived in the morning one of them, usually Mr. Hill jr, would climb the scaffold and lower the ladder; he would hold it in place from the top while the other two men climbed it; the ladder would then be placed flat on the scaffold again for storage. The pursuer said that they used a piece of blue nylon rope which they had in the back of the van to tie the ladder to the scaffold and left the rope beside the ladder, looped round the scaffold when the ladder was lying flat on the platform. He maintained that they always tied the ladder when it was in use, but it is clear from the evidence of Mr. Hill jr and Mr. Porter that this was not the case. Mr Porter said that they would not always tie the ladder to the scaffold for reasons of quickness, and when ascending together would rely on the system where one would climb the scaffold then hold the ladder for the others, reversing the process when descending. Mr. Porter was aware of the pursuer using the ladder without it being tied off but this was in the context of the men using the ladder at the same time: he was not asked generally whether there were occasions when the pursuer would have used the ladder alone, apart from this incident when he went to check the supplies. The pursuer was asked if he had ever gone down the ladder on his own, in the absence of the others. Initially he said yes but then he said that he was struggling to remember having done so, although obviously he did so in the day of his accident. Mr. Hill jr, when asked in chief if they would ever use anything to tie the ladder said "now and again, at the start I am sure we used a bit of blue nylon rope". It wasn't in use every time but when it was used it was tied onto the top rung of the ladder and attached to a cross member of the scaffolding. Mr. Hill jr said that if he was on his own the ladder would probably not be tied every time; "sometimes you just do things". However he added that in general they would only climb the ladder in the morning, for a break and then at night, when of course they would be together, unless there was a delivery or they needed a lavatory break. His position basically was that generally, whenever he used the ladder, it would either be held or tied, but it would be tied only about 50% of the time. After the accident the piece of blue nylon rope referred to was found at the foot of the scaffold at the foot of one of the innermost uprights and about 3 yds from the right hand edge of the scaffolding. The evidence was that it was a wet and windy day. There was no lip at the right side of the scaffold to stop items falling off.

[5] The pursuer was a roofer of about 40 years' experience who was foreman of his squad. He has in the past attended training courses in the use of ladders. He and the other members of the squad all knew that ladders should be tied off or footed when used and was aware of the need to take car for his own safety. Mr Porter said that he considered that the pursuer generally had a good attitude to health & safety, often spotted defects such as the absence of the fan lift and brick guard and did not often take risks with his own safety. Mr. Hill jr said that the pursuer was always conscious of safety and was always telling him to watch what he was doing. On a prior job there was an occasion when he had refused to allow the squad to work because of the extremely conditions, the result being that they were docked a half shift's pay for the period when they did not work.

[6] After the accident, HSE insisted on a fixed ladder erected through the middle of the scaffolding with a fence and gate system around it to prevent unauthorised access. No other Norside sites were affected because they all had fixed ladder access. Mr. McDonald understood the advice from HSE to be that the ladder should not have been used because it was in such bad condition. No complaint about the ladder had been made to him at the time. After the accident, as a result of discussion with the HSE, Norside introduced a ladder register and a system for checking ladders. Norisde had employed a health & safety advisor who had prepared risk assessments for other sites, but none had been prepared for this site. It had been left to the scaffolders to decide what means of access should be adopted. There were no plans prepared for setting up the scaffold. Norside had no specific policy regarding the means of access to scaffolding: it would depend on the nature of the job. The men were given no instructions about how to gain access to the scaffold at this site. They were not given instructions about securing the ladder or equipment for that purpose.

[7] As a result of his injuries, the pursuer had no recollection of the accident. Mr Porter did not think that the ladder was tied when they ascended the scaffold on the morning of the accident, Mr. Hill jr could not remember. While they were working on the roof, a delivery of materials for the job arrived and the pursuer went down on his own to check it. Sometime after he left, the men on the roof were alerted by passersby to the fact that there had been an accident. Mr. Richard Grogan had been in one of the shops underneath the scaffolding and was in the doorway texting when he was aware of a man on a ladder "in some sort of bother". The ladder was hard against the end of the scaffolding at right angles to the shop. There was a clang of metal on metal and he saw the pursuer falling with the ladder, which fell on top of him. He ran to attend to the pursuer and moved the ladder from on top of him. It seemed as if the ladder swung out from one side first, the bottom swung towards the shop fronts and the pursuer and the ladder both fell. He thought the end of the ladder to which the guide brackets were attached had been the end on the ground.

[8] After the accident, the site was visited by Mr. Adrian Timson, at the time a construction inspector with HSE. He took possession of the ladder, giving instructions on its return that it should not be used until examined by a competent person and the damage repaired. Norside told him that the reason for not having a ladder from the ground was to stop people getting unauthorised access from the ground. However, in Mr. Tinsons's view, during planning alternative safe means of access was not considered in sufficient detail. He considered that a lack of relevant information, instruction and training may have contributed to development of an unsafe means of access. He concluded that the pursuer fell when the ladder, which had not been secured to prevent movement, slipped beneath him when the guiderails were in contact with the wet sloping pavement. (ie the wrong way up). He understood that the system of work in place was that the ladder was not always tied and footed when in use. There was insufficient overlap at the top of the ladder to provide a handhold for stepping on and off the platform and operatives required to negotiate an end rail, thereby increasing the risk of a fall. It was good practice to have at least 3 rungs above the lip for handholds and the fact that the men had to duck under a chest-height end rail increased the risk of slipping. Since the accident, all Norside employees have been given health & safety and work at height training. This scaffold had not been inspected after erection. Since the accident Norside now inspect all scaffolds and document the results.

[9] In cross examination of Mr. Porter, it was suggested that the ladder could have been kept on the roof rack of the van each night, and brought to the site daily, in which case no one would ever have had to climb or descend the scaffolding itself, and he accepted that this was so. Mr. Hill jr described such a plan as "too much of a faff" to be carrying the ladder in a busy street with people about, but accepted that it could have been done. In cross examination Mr. Tinson accepted that the best way of securing a ladder is to tie it off, and a properly tied ladder will not fall. As to the "van" system, he said that is how one would set up a fixed ladder in the first place. "You would not have criticised that as a method for addressing the security issues? No" Later, amid some rather confused questioning, he was asked "if the ladder was footed and secured in the way I suggest it would be a satisfactory system? Yes", adding "I have not come across the approach of holding a ladder from the top as a means of holding it. He also said that footing is a last resort. From this I was unable to conclude that he viewed the suggestion re the "van" system as a satisfactory one for everyday use.

[10] The pursuer said that he had received verbal instructions in Norside's office from Mr. McDonald about what the job entailed, and that Mr. McDonald had never visited the site. McDonald himself said he had called at the site probably twice, but in fact on each occasion he called at lunch time and spoke to the men in their van, so he did not in fact go on to the scaffold or the roof during any period when the men were working there. He did not know how the men were gaining access to the scaffold. The pursuer said that he had received no written instructions for the job and I accept that. Mr. Hill jr/Porter said that they had been shown a written "work spec" but the evidence suggested that this would simply be a note of the general nature of the work and costings therefor, intended for the benefit of the client. It did not contain any instructions about how to go about the work safely. The pursuer said that he had refused to commence the work until the defects on the scaffold were rectified but it seems clear from the evidence of Mr. Hill jr and Mr. Porter that this is not what happened, and that the men started work before this, and gained access to the scaffold by climbing the scaffold itself to the first level.

Submissions

Pursuer

[11] The pursuer's principal criticism of the defenders was that they did not provide a fixed ladder access. The ladder which they did provide was unsuitable. They provided no instructions, method statement of H&S advice as to the proper use of ladders; no training; and carried out no scaffold or site safety inspections. The defenders maintained a plea of contributory negligence, entirely based on failure to tie the ladder off prior to descent.

[12] The evidence suggested that Norside maintained control of the site. Norside obtained the contracts for work; they would then allocate it to the tradesmen involved; they could put them on or taker them off jobs at will; the men submitted timer sheets and were paid an hourly rate; Norside provided and paid for the van; they provided all the roofing materials and any large equipment; they erected the scaffolding; they provided the ladder; and they arranged and paid for the insurance. These are factors which all indicate that the defenders had control of the site, a matter which is significant when one comes to examine the statutory regulations.

[13] Concern about security on the site led to Norisde deciding not to install a fixed ladder, but the roofing squad were not told what system of access to use. There was no evidence that the "van" system advanced in cross-examination was a system used generally in the industry, or by Norisde in particular or that they instructed the men to use such a system. There is no evidence that Norside considered all the options available to them to prevent unauthorised access. They had no policy regarding access to scaffolds. There were no written instructions regarding access, no verbal instructions and no equipment was provided specifically for the purpose of tying the ladder. The pursuer's evidence is that he always tied the ladder when using it. The blue strap was left lopped round the scaffolding at the first level when not in use. It was a wet and windy day. It was a reasonable inference from the evidence that the strap had blown off the scaffold and was not there to be used when the pursuer came to descend the ladder. The defenders cannot show that the strapping was available and the pursuer should be given the benefit of the doubt on this point see Ross v Associated Portland Cement [9164] 1 WLR 768 @775. If a party decides not to lead evidence they can't complain if the circumstances most favourable to the pursuer are drawn as reasonable inferences.

[14] Counsel relied upon the Work at Height Regulations 2005. There was no dispute that the work on which the pursuer was engaged was work at height, which included obtaining access to or egress from that place of work. By regulation 3, the requirements imposed on an employer applied not only in relation to employees but also to work:

"(2)(a) by a person under his control, to the extent of that control."

They also applied to work by a self employed person. It was submitted that the defenders were in control of the site. The pursuer did work at height but under control of the others. He had no say in what equipment should be put on the site or how access should be gained. Counsel submitted that there was a breach of regulations 4(1), which required such work to be (a) properly planned, (b) appropriately supervised; and (c) carried out in as safe a manner as is reasonably practicable. There was a breach of regulation 6(1) which requires a risk assessment; 6(3) which requires suitable and sufficient measures to prevent, so far as reasonably practicable, any person falling a distance liable to cause personal injury; and 6(4)(b) which provides that the aforesaid measures, will, when work cannot be carried out from an existing place of work or using existing means, include providing sufficient work equipment for preventing, so far as is reasonably practicable, a fall occurring. Where such measures do not eliminate the risk of a fall, regulation 6(5) requires the provision of equipment to minimise the distance and/or consequences of a fall, and provision of such additional training and instruction or the taking of other suitable and sufficient measured to prevent, so far as reasonably practicable, a person falling a distance liable to cause personal injury. There was therefore also a breach of regulation 6(5). There was a breach of regulation 7(1) which requires that certain procedures are followed in the selection of work equipment for use in work at height, setting out all the factors which require to be taken into account in the selection of such work equipment. These include working conditions, risk to the safety of those working, the distance to be negotiated for access and egress, the distance and consequences of a fall, the duration and frequency of use, and the need for easy and timely evacuation. Had such a process been gone through the likelihood is that a fixed ladder access would have been provided. Moreover there was a breach of regulation 8, which requires that, in relation to a ladder, schedule 6 is complied with. Para 1 of schedule 6 provides that a ladder is only to be used for work at height if a risk assessment has demonstrated that use of more suitable equipment is not justified because of the low risk, and the short duration of use or other existing features on site which cannot be altered. Para 3 provides that a ladder shall be positioned as to ensure its stability during use; and para 5 provides that a portable ladder shall be prevented from slipping by (a) securing the stiles at the upper or lower ends; (b) an effective ant-slip device; or (c) any other equally effective arrangement. It was submitted that the defenders were in breach of all 3 paragraphs. Counsel submitted that the defenders simply ignored their obligations under these regulations. There was a failure from the start when they did not even start to think about planning the work or carrying out a risk assessment. Instead they concentrate on criticising the workmen who, faced with no instructions or guidance, adopted their own ad hoc system.

[15] The requirements of regulation 3 of the Management of Health and Safety at Work Regulations 1999 apply only to employers, so there was no breach of those regulations. However, the regulation is relevant since the obligation to carry out a regulation 3 type assessment was imposed on the defenders under regulation 6 above. Such an assessment requires assessment not only of the risks to employees but to the risks to others not in one's employment, arising out of or in connection with the conduct of the undertaking.

[16] Counsel also relied on the Provision and Use of Work Equipment Regulations 1998. In addition to applying to employers and the self employed, these regulations apply (reg 3(3)(b)), to the extent of his control, to a person who has control to any extent of (i) work equipment; (ii) a person uses, supervises, or manages the use of work equipment; or (ii) the way in which work equipment is used at work. Counsel submitted that there was a breach of regulation 5, which required that work equipment was maintained in an efficient state, in efficient working order and good repair; and regulation 20 which provides that work equipment or any part of work equipment must be stabilised by clamping or otherwise for the purposes of health or safety.

[17] Counsel referred to Lanigan v Crouch 1985 SLT 346, in which, an employee had ignored a perfectly suitable stairwell inside a building in favour of an unsecured ladder on the outside. Although the court concluded that there was a prima facie breach of regulations requiring a ladder to be footed, there was no liability on the employer where the employer had not condoned the use of the ladder and the only basis for breach by the employer was that the acting of the employee had put the employer in breach. It was argued that this is very different from the situation in the present case. The breach of statutory duty in that case only came about because of the actions of the employee: that is not the situation in the present case.

[18] So far as contributory negligence is concerned, counsel submitted that (i) the onus of proving this lay on the defenders; (ii) when assessing contributory negligence the court should not look only at causal factors but at a mixture of factors, including the relative blameworthiness of the parties; and (iii) where primary liability involves a breach of statutory duty, it was important to recognise the purpose underlying the statutory duty, and to ensure that this purpose is not too easily defeated by an application of contributory negligence. Counsel referred to the speech of Lord Hoffman in Reeves v Commissioner of Police of the Metropolis [2001] 1 AC 360 @ 371:

"But Goddard L.J. did not say that contributory negligence could not in principle be a defence and it has always been recognised as such. Buxton L.J., at p. 182, also quoted an observation of Lord Tucker in Staveley Iron & Chemical Co. Ltd. v. Jones [1956] A.C. 627 , 648 after the Act of 1945 had come into effect:

'In Factory Act cases the purpose of imposing the absolute obligation is to protect the workmen against those very acts of inattention which are sometimes relied upon as constituting contributory negligence so that too strict a standard would defeat the object of the statute'."

This citation performs the valuable function of reminding us that what section 1 requires the court to apportion is not merely degrees of carelessness but "responsibility" and that an assessment of responsibility must take into account the policy of the rule, such as the Factories Acts, by which liability is imposed. A person may be responsible although he has not been careless at all, as in the case of breach of an absolute statutory duty. And he may have been careless without being responsible, as in the case of "acts of inattention" by workmen."

[19] Taking such factors into account, any blameworthiness to be attached to the pursuer is considerably less than that which attaches to the defenders. Reference was made to the words of King J, in Tafa v Matsim Properties Ltd [2011] EWHC 1302 at para 166, when, having concluded that to a degree the claimant must be regarded as having failed to take care for his own safety, he went on to say that:

"......the court is not concerned to apportion degrees of carelessness but the Claimant's relative blameworthiness and causal potency when set against that of the acts and omissions of the Defendants which have founded their liability to him for his injuries. Moreover the court must be mindful that it is part of the statutory purpose of the statutory regulations of which I have held the Defendants to be in breach to protect the workman against the very acts of inattention relied on against the Claimant as contributory negligence and the court should be slow to make such a finding where there has been breach of statutory health and safety duties owed to a worker. See Toole v Bolton MBC [2002] EWCA Civ 588 ."

[20] Counsel also referred to the decision of Lord Tyre in McLachlan v Early Learning Centre unreported, 3^rd February 2011, para 7 where his Lordship observed:

"It is worth recalling that the breach admitted by the defenders was one of the duty imposed by regulation 6(2) of the Work at Height Regulations 2005, [his lordship then quoted the regulation]. It is therefore a matter of admission by the defenders that the pursuer ought not to have been required, in the course of her employment, to climb a ladder to a height from which she could fall to her injury. In my opinion, the extent, if any, of contributory negligence of the pursuer has to be assessed in this context. The pursuer was injured when attempting to retrieve a box from storage at height. I regard the defenders' admission of breach of regulation 6(2) as an acceptance that she should not have been placed in that position."

Counsel submitted that were there is a proven or admitted breach of duty, the starting point is that the pursuer has been put into a position he ought not to have been put into at all. Inattention on the part of a workman is what the statutory duty is there to guard against. The pursuer was at best inattentive and the court would be entitled to make no finding of contributory negligence at all. At best the deduction for contribution should be limited, perhaps to a figure in the region of 10%.

Defenders

[21] Counsel for the defenders accepted that there were several breaches of statutory duty, namely breaches of regulations 4(1)(a) and (c), and regulations 6, 7 and 8 of the Work at Height Regulations 2005, all as specified above. He also conceded breaches of regulations 5 and 20 of the Provision and Use of Work Equipment Regulations 1998. However, he maintained that the regulations applied equally to the pursuer as to the defender. The intention is that those who are self employed should take care for their own safety. The pursuer was in control of the work in question to a significantly greater degree than the defenders. He was self employed and was the foreman, responsible for the safety of his squad and himself. His position was that he was unwilling to, and did not, commence work until the fan-lift and brick guard were in place and a ladder supplied. In fact the evidence shows that the men did commence work without these items being in place, and proceeded to work in these conditions for several days. They did not complain about the suitability of the ladder when it was provided, yet it is plain that had he done so a new ladder would have been provided. This amounted to control. The squad worked to his order. He decided what they would do, not McDonald. He proceeded to use the ladder without making sure on each occasion that it was tied on. He knew what to do, how to do it and why. He simply proceeded to take the risk, because it was quicker. The only area in which inadvertence might be prayed in aid is in respect of the fact that the pursuer put the ladder down the wrong way, but that means that even if the ladder had been fitted with rubber stops at the other end, the pursuer would not have the benefit of it. It was not a defect in the ladder which gave rise to the fall. Equally, it is not suggested that properly planned there was obviously another system which would have done so. In any event, there was a system of sorts, but when the pursuer descended the ladder at the time of the accident it was not in use. He could have summoned one of the others to hold the ladder, or he could have tied it off. Mr. Tinson's evidence was that the "van" method would be acceptable, as long as the ladder was properly secured. There were various aspects of the evidence on which the pursuer was neither credible nor reliable: in relation to refusing to start work; in relation to saying the ladder would always be tied; in relation to whether he ever used the ladder on his own.

[22] Counsel accepted that the onus of establishing contributory negligence lay with the defenders, and submitted that they had discharged that onus. The case of Lanegan is distinguishable on its facts, but the fact remains that the obligations on the defenders and the pursuer were coexistent: if the pursuer had not failed to tie off the ladder, the accident would not have happened. Counsel referred to the opinion of Lord Brodie in Neill v East Ayrshire Council [2005] Rep LR 18, where he observed, para 32:

"When exercising the power conferred by section 1(1) of the 1945 Act, the court can do little more than make a very broad judgement, as to the respective degree of responsibility of the parties..................................It may well be inappropriate to make a significant reduction from damages in respect of contributory negligence constituted by momentary inattention to the employee's own safety where the employer has been found to have failed in a statutory duty the very purpose of which is to protect the employee against such momentary inattention. The example of a statutory obligation to guard moving machinery comes to mind. It is different when the employee's fault is of a more deliberate sort."

In making that observation his Lordship had referred to Sherlock v Chester City Council [2004] EWCA Civ 201. In that case reference was made to the earlier case of Ginty [1959] 1 All ER 414, where a man fell through an asbestos roof when failing to use crawling boards supplied by his employers, and where the court had observed (p424):

"One has to enquire whether the fault of the employer of the Statutory Regulations consists of, and is coextensive with, the wrongful act of the employee. If there is some fault on the part of the employer which goes beyond or is independent of the wrongful act of the employee, and was a cause of the accident, the employer has some liability."

In addressing that issue in Sherlock, Latham, LJ, said:

"It seems to me that in answering this question we should bear in mind what Lord Tucker said in Staveley Iron and Chemical Company Ltd -v- Jones [1956] AC 672 at page 648:

'In Factory Act cases the purpose of imposing the absolute obligation is to protect the workmen against those very acts of inattention which are sometimes relied upon as constituting contributory negligence so that too strict a standard would defeat the object of the statute.'"

Applying those observations to the case in hand, he added, para 30:

"But requirements of both common law and the regulations which I have identified have as part of their purpose the objective of ensuring that both employer and employee have taken stock of a situation where an appropriate work practice has to be identified so as to ensure that each has in mind the relevant risk and the necessary measures to obviate or reduce it. For the reasons that I have given, that was an obligation on the respondents, going beyond the actions and the decisions of the appellant and which was causative of the accident. It cannot therefore be said here that the fault of the appellant was co-extensive with the fault of the respondents. The respondents' negligence and breaches of statutory duty were accordingly a cause of the accident."

As to the view, expressed in Toole v Bolton Metropolitan Borough Council [2002] EWCA Civ 588, that it was not usual for there to be marked findings of contributory negligence in a breach of statutory duty case, he commented that:

"There may well be some justification for that view in cases of momentary inattention by an employee. But where a risk has been consciously accepted by an employee, it seems to me that different considerations may arise. That is particularly so where the employee is skilled and the precaution in question is neither esoteric nor one which he could not take himself."

Submitting that the present case was not one of inadvertence but the deliberate courting of a risk by an experienced man, Counsel accordingly invited me to make a finding of 75% contributory negligence.

Discussion and decision

[23] I am quite satisfied that the defenders had control of this site, and in particular that they had control of the scaffolding, in a way and to an extent that the pursuer did not. The scaffold was erected on their instructions and by their employees. Fixed ladder access through the middle of the scaffold platform from the ground to the first floor is quite obviously a method of providing a secure access for workmen, and was indeed in use at the time on other Norside sites, yet it was not provided at this site. It seems that the reason was that there were concerns about possible unauthorised access to the scaffolding. Such concerns could easily have been addressed in a way which was consistent with fixed ladder access as can be seen by the measures put in place after the pursuer's accident. What was done then was safe and practicable and could easily have been done prior to the pursuer's accident had thought been given to the matter at the time of planning for the job. The issue of security of the site is hardly a one-off matter. The defenders could easily have devised a proper system providing safe access to the site but protecting the security of it, had they carried out a risk assessment of the type Mr. Sproule carried out for them in relation to other sites.

[24] The defenders clearly gave no thought at all to how workmen might gain access to the scaffolding: not only was the whole issue simply left to the decision of the scaffolder, when the squad first attended for work, no method of access at all had been provided. Once the men were provided with a ladder, the defenders still gave no thought as to how a portable ladder might safely be used for the purpose of access and egress; they failed to plan or provide a safe system for the use of that ladder; and they failed to provide equipment by which it could be clamped or tied off. Having failed to plan a safe means of access and egress, and knowing that a portable ladder was to be used, the defenders compounded matters by failing to inspect the scaffolding once in use or to inspect the method of access which was in operation.

[25] It was in these circumstances that the men were driven to devise an ad hoc system of their own. As to the "van" system there was no evidence that such a "system" was used generally in the construction industry; and there was no evidence that it had ever been used by Norside, instructed or even suggested by them to workers such as the pursuer. To the contrary, the evidence of the pursuer, which I accept, was that the method of access which his squad put in place was one which he had encountered previously on Norside sites where there had been similar concerns about unauthorised access. In any event, the "van" system itself had defects: for example, as the start and end of the day the only method of securing the ladder would have been footing it, a practice described by Mr. Tinson as "the last resort". Moreover, the access would continue to be at one edge of the first floor platform, rather than the middle; and would still require negotiation of the chest high end rail. Against the failings of the defenders, who gave no thought at all to providing a safe means of access to the scaffolding, the pursuer's squad can, in my view, hardly be criticised for settling for one system with defects rather than another one with defects.

[26] For the reasons above, therefore, I am satisfied that the defenders were in breach of the following regulations, and that their breach was a cause of the pursuer's accident: regulations 4(1)(a) (b) (through failure to check and supervise a means of access to the scaffolding) (c); 6(1),(3) and 4(b) and 5(a); 7(1); and 8, regarding schedule 6 paras (1), (3) and (5) of the 2005 regulations; and regulation 20 of the 1998 Regulations. Otherwise, although I consider that the defenders were also in breach of the other regulations relied upon by the pursuer but that these breaches were not causative of the accident.

[27] The pursuer was somewhat confused about entries in his accounts under "labour", suggesting that perhaps he had employed others but no evidence was led as to the basis of his accounts and I did not consider that this affected his credibility in any way. Nor did I think that his belief that Mr. McDonald had not visited the site did so, especially since it is clear that on the occasions when Mr. McDonald did visit the site he never got further than the van. The pursuer had sustained a head injury in the accident, and had no memory of it. He was clearly wrong in saying that the men did not start work until the scaffold was rectified, and in saying that the ladder was always tied off, so to that extent there was an element of unreliability about his evidence. However, given the nature of his injuries, which had included a serious head injury, I do not consider that they reflected adversely on his credibility. I was quite satisfied that the pursuer was doing his best to tell the truth, even though his memory may have on occasion let him down.

[28] The pursuer's evidence is that he always tied the ladder when using it, except for the time of his accident. It was suggested that if I found the pursuer to be generally a credible witness, then I could conclude from this evidence, the finding of the blue rope under the scaffolding and the weather on the day in question that the rope had blown off and had not been available for use at the time of the accident. I consider that this is too speculative a matter for me to conclude on the evidence which is before me. It may be that this is what happened; it may not. However, I do accept that the pursuer was not generally a careless workman. I accept the evidence of both Mr. Porter and Mr. Hill jr to that effect. I also accept that in the past he has refused, at financial cost, to allow the squad to work when he thought the weather conditions were too severe. Although the evidence was that when the men were using the ladder together they did not always tie it off, relying sometimes on it being footed or held by each other after Mr. Hill jr had climbed the scaffold, there is no evidence that the pursuer habitually used the ladder on his own without tying it off. That he did so on the day in question is without doubt: why he did so will no doubt remain a mystery; but the evidence available to me is such that I am unable to assess that failure on his part as more than inadvertence or inattention.

[29] This is an important matter when considering the relative blameworthiness of the pursuer and the defenders. For reasons relating to the much greater degree of control which they had over the site, and in particular, the scaffolding, all as explained above I consider that the blameworthiness of the defenders is of a very different degree to that of the pursuer. The fault of the defenders is not coextensive with that of the pursuer; it goes beyond, and is independent of it. The pursuer quite simply should not have been put in the position he was by the defenders. Inattention on the part of a workman is precisely one of the risks which the statutory duty is there to guard against.

[30] In the circumstances I assess the degree of contributory negligence on the part of the pursuer as 20%. I will accordingly make an award of £1,495,200 with interest at the judicial rate from 19 November 2012.