Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 87
PD811/10	OPINION OF LORD BRODIE in the cause KENNETH WINN-POPE Pursuer; against E S ACCESS PLATFORMS LIMITED and CKD GALBRAITH LLP Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: Milligan, Q.C.; Thornley; Waterman's Solicitors

Defender: McBrearty; Paterson; Simpson & Marwick

24 May 2012

Introduction

[1] I heard proof in this action for damages for personal injury. The participating parties were the pursuer and the second defenders. The first defenders had been assoilzied on 21 March 2012 following the lodging of a Minute of Abandonment on behalf of the pursuer. Proceedings before me were conducted with commendable efficiency by Mr Milligan, Q.C., and Mr Thornley on behalf of the pursuer and Mr McBrearty and Mr Paterson on behalf of the second defenders. Much was agreed either by admission in the pleadings or by way of Joint Minute. These admissions were supplemented by the evidence of three witnesses: Mr Brendan McCaughey, a building surveyor; Mr Sidney Lenford Greasly, a consulting engineer; and Mr Stephen Elgie, a product manager employed by Outreach Limited who, at all relevant dates had been the general manager of the first defenders. Among the matters addressed in the Joint Minute was that in the event of the second defenders being found liable to make reparation to the pursuer in respect of the accident referred to on Record quantum of damages was agreed (on a full liability basis and without prejudice to the second defenders' arguments in relation to contributory negligence), in the sum of £25,000 inclusive of interest to the date of decree. The agreement in relation to quantum of damages proceeded on the basis that the pursuer suffered orthopaedic injuries only as a result of an accident on 20 March 2007.

[2] I found all the witnesses whose evidence I heard to be credible. As he readily accepted, Mr McCaughey relied in large part on the statement which he had given to an inspector of the Health & Safety Executive which is dated 27 March 2007 and included within production 6/1. I understood him to have refreshed his memory by looking at a copy of that statement prior to his giving evidence. While one might have expected greater precision from a professional witness when answering questions, I accepted that Mr Greasly was doing his best. Mr Elgie was a particularly impressive witness, answering questions carefully in a manner which was self-evidently full and frank.

[3] On the basis of the admissions and the evidence of the witnesses I found the following facts to have been established.

The relevant facts

[4] The pursuer is Kenneth Winn-Pope. His date of birth is 8 November 1951. On 20 March 2007 the pursuer was working during the course of his employment as a mobile plant operator with the first defenders, E S Access Platforms Limited. The first defenders traded as Brogan Access. They carried on business hiring vehicle mounted access platforms (otherwise mobile elevating work platforms or "MEWPs"). Their Scottish fleet comprised some 15 vehicles of differing specifications. As at 20 March 2007 the pursuer had been in the employment of the first defenders for a period of about three months. He held an Operator Training Certificate confirming his competence to operate a vehicle mounted access platform extending up to 26 metres in height. This had been awarded following a training course he had attended on 1 February 2007.

[5] On 20 March 2007 the pursuer was instructed to take a lorry mounted elevating work platform to a site at 36 Shore Road, Granton, Edinburgh. The second defenders, CKD Galbraith LLP, a firm of surveyors, had requested the first defenders to provide a suitable vehicle on hire to enable them to view the roof of a building at the site as part of a dilapidations survey. The building was of single storey steel frame construction and about 7 metres high.

[6] The MEWP which the pursuer had been instructed to take to the site in order to facilitate the inspection of the roof of the building was described in evidence as a 22 metre GSR Sky King. The Sky King was a hydraulically operated extendable boom with a basket-shaped working platform, mounted on a lorry equipped with outriggers to ensure stability when the boom was extended.

[7] The pursuer brought the Sky King to the site on the morning of 20 March 2007 where he was met by two surveyors employed by the second defenders, Alistair McIntyre and Mr McCaughey. At that time Mr McCaughey was a trainee surveyor. Mr McIntyre was the senior surveyor. Prior to the arrival of the pursuer, Mr McIntyre and Mr McCaughey had walked around the outside and inside of the building to be surveyed. Mr McIntyre had assessed the roof from a ground level and identified it as being constructed from corrugated asbestos-cement panels. Mr McIntyre considered that the roof should not be walked on during the course of the survey. He instructed Mr McCaughey to carry out a survey of the external aspects of the building including the roof while he carried out an internal survey. He instructed Mr McCaughey not to stand or walk on the roof but no such instruction was conveyed to the pursuer, either by Mr McIntyre or by Mr McCaughey.

[8] On the pursuer's arrival, Mr McCaughey requested him to position the Sky King in order that Mr McCaughey might take photographs of the pitched roof of the building from the basket. The pursuer did so. This involved the pursuer and Mr McCaughey entering the basket and the pursuer operating the extendable hydraulic boom from a position within the basket. Safety harnesses attached by lanyards to the basket were available for the use of persons positioned within the basket when it was extended to height. The pursuer had been trained in the use of such harnesses at the course he attended on 1 February 2007. Neither the pursuer nor Mr McCaughey wore a safety harness while in the basket. This was contrary to the first defenders' instruction, of which the pursuer was aware, that anyone working at height, whether an operator or a client of the first defenders must wear a harness.

[9] Mr McCaughey had asked the pursuer to position the Sky King at the end of the car park at the western elevation of the building to enable him to survey the western pitch of the roof. Despite the extension of the boom and consequent raising of the basket, Mr McCaughey found that he could not get a view of the eastern pitch of the roof. He accordingly left the basket and moved on to the roof at a point where the edge of the eastern pitch abutted the edge of an adjacent pitched roof. Mr McCaughey walked the length of the valley gutter, then some distance beyond it and then turned to his right and walked up the eastern pitch of the roof following the line of a steel rafter.

[10] When he was at a point near to the end of the valley gutter, Mr McCaughey became aware of the presence of the pursuer on the roof. The pursuer had followed Mr McCaughey out of the basket. Mr McCaughey formed the impression that the pursuer wished to continue a conversation with him. There was no reason connected with his work for the pursuer to be on the roof. Mr McCaughey was intent on his survey, examining and photographing the roof. He approached but did not reach the ridge of the roof which he considered to be in poor condition and decided to turn back. When he first became aware of the presence of the pursuer on the roof, Mr McCaughey had not been concerned because he thought that the pursuer must have been someone with knowledge of roofs and the risks associated with being on them but when he saw the pursuer to be at a point on the ridge of the roof and not on the line of the rafter, Mr McCaughey realised that the pursuer "did not know what he was doing". Mr McCaughey accordingly told the pursuer to get off the roof. As the pursuer moved down the pitch of the roof he stood on a corrugated roof-light made of translucent plastic which collapsed under his weight and he fell a distance of some 7 metres to the ground. As a consequence of that fall the pursuer sustained the orthopaedic injuries referred to in the Joint Minute.

[11] Mr McCaughey had not received any training from the second defenders about working at heights or working on roofs. The second defenders had not carried out anything that might be described as a risk assessment prior to embarking on the survey of the building. They had not prepared anything that might be described as a method statement.

[12] Prior to the accident the pursuer had been instructed by the first defenders always to wear a safety harness when working at height in the basket of the Sky King. He had been instructed never to leave the basket when the boom was extended. His doing so was regarded by Mr Elgie as a matter for discipline. Because of the length of the lanyard it would be impossible for anyone wearing a safety harness to leave the basket.

The Work at Height Regulations 2005

[13] The Work at Height Regulations 2005 provide, inter alia, as follows:

"3. Application

.......

(2) The requirements imposed by these Regulations on an employer shall apply in relation to work -

(a) by an employee of his; or

(b) by any other person under his control, to the extent of his control.

(3) The requirements imposed by these Regulations on an employer shall also apply to -

.......

(b) to any person other than a self-employed person, in relation to work by a person under his control, to the extent of his control.

........

4. Organisation and planning

(1) Every employer shall ensure that work at height is -

(a) properly planned;

(b) appropriately supervised; and

(c) carried out in a manner which is so far as is reasonably practicable safe,

and that its planning includes the selection of work equipment in accordance with regulation 7.

.......

5. Competence

Every employer shall ensure that no person engages in any activity, including organisation, planning and supervision, in relation to work at height or work equipment for use in such work unless he is competent to do so or, if being trained, is being supervised by a competent person.

6. Avoidance of risks from work at height

(1) In identifying the measures required by this regulation, every employer shall take account of a risk assessment under regulation 3 of the Management Regulations.

(2) Every employer shall ensure that work is not carried out at height where it is reasonably practicable to carry out the work safely otherwise than at height.

(3) Where work is carried out at height, every employer shall take suitable and sufficient measures to prevent, so far as is reasonably practicable, any person falling a distance liable to cause personal injury.

........

7. Selection of work equipment for work at height

(1) Every employer, in selecting work equipment for use for work at height, shall -

(a) give collective protection measures priority over personal protection measures; and

(b) take account of -

(i) the working conditions and the risks to the safety of persons at the place where the work equipment is to be used;

(ii) in the case of work equipment for access and egress, the distance to be negotiated;

(iii) the distance and consequences of a potential fall;

(iv) the duration and frequency of use;

(v) the need for easy and timely evacuation and rescue in an emergency;

(vi) any additional risk posed by the use, installation or removal of that work equipment or by evacuation and rescue from it; and

(vii) the other provisions of these Regulations.

(2) An employer shall select work equipment for work at height which -

(a) has characteristics including dimensions which -

(i) are appropriate to the nature of the work to be performed and the foreseeable loadings; and

(ii) allow passage without risk; and

(b) is in other respects the most suitable work equipment, having regard in particular to the purposes specified in regulation 6.

........

9. Fragile surfaces

(1) Every employer shall ensure that no person at work passes across or near, or works on, from or near, a fragile surface where it is reasonably practicable to carry out work safely and under appropriate ergonomic conditions without his doing so.

......

(3) Where any person at work may pass across or near, or work on, from or near, a fragile surface, every employer shall ensure that -

(a) prominent warning notices are so far as is reasonably practicable affixed at the approach to the place where the fragile surface is situated; or

(b) where that is not reasonably practicable, such persons are made aware of it by other means.

..........

11. Danger areas

Without prejudice to the preceding requirements of these Regulations, every employer shall ensure that -

(a) where a workplace contains an area in which, owing to the nature of the work, there is a risk of any person at work -

(i) falling a distance; or

(ii) being struck by a falling object,

which is liable to cause personal injury, the workplace is so far as is reasonably practicable equipped with devices preventing unauthorised persons from entering such area; and

(b) such area is clearly indicated.

..............

14. Duties of persons at work

(1) Every person shall, where working under the control of another person, report to that person any activity or defect relating to work at height which he knows is likely to endanger the safety of himself or another person".

Submissions

Submissions for the pursuer

[14] Mr Milligan for the pursuer submitted that the pursuer's accident was caused by breach by the second defenders of their duties in terms of regulations 4, 5, 6, 7, 9, 11 and 14 of the Work at Height Regulations 2005. Granted, the pursuer was not an employee of the second defenders but the Regulations nevertheless imposed duties on the second defenders by virtue of regulation 3(3)(b) in relation to work by a person under their control, to the extent of that control. The relevant work was, in Mr Milligan's submission, the surveying of the roof. The pursuer was engaged in that work. The pursuer was under the control of the second defenders, on what Mr Milligan described as the broader hypothesis, as the persons organising the work with the ability to select the equipment to be used and rules to be followed or, on what Mr Milligan described as the narrower hypothesis, on the basis that Mr McCaughey had appreciated that the pursuer was unfamiliar with the dangers associated with being on the roof and had the knowledge and ability to lead the pursuer off the roof in safety. It could not be the case that where a party in fact has control he can escape liability under the Regulations by not exercising that control. There might have been a degree of contributory negligence but, in the submission of Mr Milligan, it did not exceed 50 per cent. Mr Milligan made reference to Lynch v Ceva Logistics Ltd [2011] ICR 746, Tafa v Matsim Properties Ltd [2011] EWHC 1302, Majrowski v Guy's & Thomas NHS Trust [2007] 1 AC 224 and Donaldson v Hays Distribution Services Ltd 2005 1 SC 523.

Submission for the second defenders

[15] Mr McBrearty began by emphasising what he said were the consequences of the pursuer not having been led as a witness and the frank acknowledgement by Mr Milligan that he had decided not to lead the pursuer because, having regard to matters which had been agreed by Joint Minute, he could not commend the pursuer to the Court as someone worthy of credence. In these circumstances the Court was not only entitled to draw the least favourable inferences from the perspective of the pursuer's case but it should draw such inferences: Ross v Associated Portland Cement Manufacturers 1964 1 WLR 768 and O'Donnell v Murdoch McKenzie & Co Ltd 1967 SC (HL) 63. If that was to go too far, then the pursuer's failure to give evidence on matters within his knowledge in any event had the result that he could not rely on what in other circumstances would be the natural inference: that the pursuer would have acted as a reasonable person would act.

[16] Turning to the question of control, which was central to the pursuer's case, Mr McBrearty submitted that in order for the requirements of the 2005 Regulations to be imposed on the second defenders in relation to work by the pursuer, the pursuer (and not the work) had to be under the second defenders' control. On the evidence, the first and second defenders were two entities working together but with very different roles: the second defenders were carrying out a survey, the first defenders were providing the means of access to allow that survey to be carried out. The first defenders were specialists in the provision and hire of MEWPs with trained operators. They had substantial expertise in relation to such vehicles. The first defenders had arranged the training of the pursuer. In contrast, the second defenders' first contact with the pursuer was when their employees met him on site. As a matter of generality the notion of control was very fact sensitive, as had been submitted by Mr Milligan. Mr McBrearty accepted that the failure to exercise control should not, itself, lead to the conclusion that there was no control. However, here there was little that could be done in practice by the second defenders' employees on site in order to exercise control over the pursuer. Granted, they could indicate the area where they wished the pursuer's vehicle to be positioned but the operation of the vehicle and its working platform and the associated safety precautions were matters for the pursuer himself. While it might be said, as Mr Milligan had said, that the second defenders had an obligation to plan the survey, there was no expectation that the pursuer would be taking part in that survey. An obligation to plan the survey did not give control of the pursuer. Moreover, while Mr Milligan had suggested that planning the survey in the sense of preparing a risk assessment or method statement would have revealed the need to use a vehicle with a larger boom than that which the pursuer had brought to site, there had been no evidence as to whether using an alternative MEWP would in fact have allowed a survey of the eastern pitch of the roof to be completed without the surveyor leaving the basket. It was not open to the court to find that at any stage the pursuer was under the control of Mr McCaughey. When the pursuer and Mr McCaughey were on the roof they remained two employees working for two different employers. Mr McCaughey had no reason to believe, when he first found the pursuer to be on the roof, that the pursuer did not know about roofs and the dangers that they presented. It could not be correct that to conclude that simply because the pursuer came on to the roof he was in the control of Mr McCaughey. Mr McBrearty accepted that Mr McCaughey might have said something when he found the pursuer on the roof but that did not mean that he had control over him any more than if someone shouted at another person in the street who appeared to be about to cross in front of a bus, that that meant that the person shouting a warning was in control of the careless pedestrian. The position did not change when Mr McCaughey appreciated that the pursuer did not know what he was doing. Knowledge of risk did not give control. For the second defenders to have come under any duty to the pursuer in terms of the 2005 Regulations, the pursuer must have been doing work when he stepped out of the basket and on to the roof, and the defenders must have had control of him. Even if these requirements were established, which Mr McBrearty submitted they had not been, such duties as were imposed only went the distance of the extent of the second defenders' control over the pursuer.

[17] While it was Mr McBrearty's position that there was no question of breach of any of the Regulations because of the absence of control, he emphasised that for the pursuer to succeed not only must he show breach of statutory duty but he must also establish that such a breach was causally connected with his accident and consequent injuries. There could be no such connection, submitted Mr McBrearty, because the real or effective or legal cause of the pursuer's accident was his entirely autonomous decision to leave the basket of the MEWP and go out on to the pitched roof. Even if that were not correct, to succeed on any case with an element of direction or instruction, the pursuer had to show that he would have heeded such direction or instruction: McWilliam v Sir William Arrol 1962 SC (HL) 70 at 75 and 83. Where the pursuer had not given evidence he could not succeed on such a case, particularly where there had been evidence to the effect that he had disobeyed instructions and disregarded training. Insofar as the pursuer's case depended on the proposition that the job had been inadequately planned or that there had been a failure to provide the proper equipment, the pursuer again could not succeed because there had been no evidence as to any alternative method of carrying out the survey. If contrary to his submission, the stage were to be reached of considering contributory negligence, the finding, submitted Mr McBrearty, should be substantial, perhaps even 100 per cent following the approach of Lord Emslie in McEwan v Lothian Buses 2006 Rep.LR 134 rather than the Court of Appeal in Pitt v Hunt [1991] QB 24.

Discussion

[18] The pursuer's case is restricted to one of breach of specified provisions of the 2005 Regulations. The 2005 Regulations impose duties on employers, the formulation in all of the provisions relied on by the pursuer being "every employer shall" followed by a requirement in respect of organisation and planning, competence or some other matter in relation to work at heights. However, by virtue of Regulation 3(3)(b) these "every employer shall" duties are also imposed on "any person other than a self-employed person in relation to work by a person under his control to the extent of his control". For the purposes of the pursuer's case, the second defenders are "any person other than a self-employed person"; the pursuer is to be taken as "under [the second defenders'] control"; and the duties relied on by the pursuer are "in relation to work by [the pursuer]".

[19] Parties were agreed that to be relevant any breach of duty had to be a breach of duty owed to the pursuer as a worker. While this might follow from the stipulation that the requirements of the Regulations shall apply "in relation to work by [him]", citing Donaldson v Hays Distribution Services supra, Mr Milligan expressly conceded that the pursuer could not found on any breach by the second defenders as employers in respect of any duties only owed to their own employees, Mr McIntyre and Mr McCaughey.

[20] Acknowledging that the matter was highly fact sensitive, Mr Milligan urged me to take the view that the relevant work was the surveying of the building and that what was being done by the pursuer was part of that work. It was work that was organised by the second defenders. They had the ability to control it. That they may not have exercised control by, for example, not making a risk assessment or compiling a method statement, should not lead to the conclusion that they did not have control. As an alternative to this broader hypothesis Mr Milligan put forward the hypothesis of control as exercised by Mr McCaughey once he had appreciated that the pursuer, to use the words of Mr McCaughey, "did not know what he was doing".

[21] I was not satisfied that the evidence demonstrated that the pursuer was a person under the control of the second defenders under either of Mr Milligan's hypotheses. The reason why the pursuer was on site was to provide assistance with the work of surveying the building. There could be no question but that the survey work was under the control of the second defenders. It was carried out by their employees and the second defenders undoubtedly owed duties to these employees under the 2005 Regulations. That did not, however, mean that the pursuer was necessarily to be regarded as under the control of the second defenders or, to the extent that this is a different thing, under the control of the second defenders' employees. The pursuer was a trained operator of the MEWP which had been provided by his employers, the first defenders, whose business it was to provide specialised equipment of this kind. I accept Mr McBrearty's description of the pursuer and Mr McCaughey as two individuals working together but for two different entities carrying out two different roles. The pursuer was not expected to participate in the surveying of the building, as opposed to affording the surveyors a viewpoint from which they could carry out their survey, and in fact he did he not participate in the surveying work. His was a discrete function in respect of which he had the necessary skills, these being the skills required to operate the MEWP. No doubt it was open to the employees of the second defenders to request the pursuer that he positioned his vehicle and the basket in such a way as to afford them the access they required, but how exactly he complied with such requests could only be a matter for him. He had the requisite knowledge and skills. The second defenders' employees did not. Had Mr McCaughey recruited the pursuer to help in the actual surveying in the manner averred in the pursuer's pleadings, it might have been a different matter, but on the evidence nothing occurred to take the pursuer out of his role as an employee of the first defenders doing the work which the first defenders were contracted to do: the provision and operation of the MEWP. Contrary to Mr Milligan's submission I do not see the pursuer's decision to leave the basket of the MEWP, walk on to the pitched roof and by doing so demonstrate to Mr McCaughey his unfamiliarity with the consequent risks, as changing that position. I accept that someone could come to be "under the control" of another person for the purposes of the 2005 Regulations on the basis of an ad hoc arrangement arising out of the carrying out of work and perhaps intended to have only a short duration, but I do not see the situation arose on the roof when Mr McCaughey noticed the pursuer in the position close to the ridge as being of that nature. Apart from anything else, and this would apply to the whole episode after the pursuer left the basket of the MEWP, Mr McCaughey's efforts to direct the pursuer to leave the roof and the pursuer's descent from the ridge to the point where the roof light collapsed under him were not "in relation to work" by the pursuer. What the pursuer was doing was following a project of his own when he came onto the roof and what Mr McCaughey was doing was attempting to rescue the pursuer from the consequence of his folly. I do not see that as the taking of control over the pursuer by Mr McCaughey; nor do I see it as an acceptance by the pursuer of control. Counsel were agreed that the evidence did not support a finding that Mr McCaughey told the pursuer to follow him down off the roof (which Mr McCaughey thought that he might have said, contrary to what appeared in his statement to the inspector from the Health & Safety Executive). There is therefore little to point to Mr McCaughey exercising any degree of control over the pursuer and, according to Mr McCaughey, speaking of the pursuer, "he did not follow me at all". Thus, I could not hold that in any sense the pursuer put himself under Mr McCaughey's control even in respect of his descent from the ridge of the roof.

[22] Mr McBrearty emphasised that if, contrary to his principal submission, the 2005 Regulations did impose duties on the second defenders in relation to work by the pursuer then even if these duties were held to have been breached, in order for the pursuer to succeed in obtaining damages he had to show that such breaches were causally connected with his fall. From that unexceptionable premiss, Mr McBrearty proceeded to argue for two different conclusions. First, he submitted that the pursuer could not succeed because the real and effective cause of his accident was his entirely autonomous decision to leave the basket of the MEWP and go on to the roof. Second, and in any event, insofar as the regulations said to have been breached imposed duties in relation to training or direction, in the absence of any evidence from the pursuer himself and given his history as someone who disobeyed express instructions, it could not be assumed that he would have heeded any guidance which might have avoided his fall. Mr McBrearty further submitted that in the event of a finding of liability against the second defenders, any damages should be substantially reduced to account for the pursuer's contributory negligence.

[23] Given that I have concluded that the 2005 Regulations were not incumbent upon the second defenders in relation to work by the pursuer, I do not propose to come to a conclusion on questions of causation and contribution. The pursuer founds on a number of regulations which impose a variety of individual duties. Not all relate to training or instructions or indeed the provision of equipment. I understood Mr McBrearty to accept that at least some of these duties would have to be taken to have been breached in the event of them having been incumbent upon the second defenders. Leaving aside the question of the pursuer's fault for the moment, given the terms of the relevant regulations, I would see the pursuer as being able to establish a causal connection between breach of at least some of them and his fall. Now, it may be that when an employer is placed in breach of a statutory obligation imposing absolute liability solely because of the fault of the employee who seeks to recover damages in respect of that breach, the employee's fault can be pled as a complete defence: Boyle v Kodak Ltd [1969] 1 WLR 661. However, for the employee's fault to provide a complete defence, that fault would, broadly speaking, have to be completely coterminous with the statutory breach or breaches founded on by him. Foolish as the pursuer's actions undoubtedly were, I am not satisfied that this could be said to be a case of coterminous breach, assuming there to have been breach by the second defenders. Short of coterminous breach, I very much doubt whether there is room for a theory of proximate cause or effective cause or real cause in the context of workplace accidents. However, I do not see that as a matter that I require to decide upon. Neither is it necessary or realistic for me to say anything about contributory negligence where I have found there to be no breach by the second defenders beyond observing that, following the decision of Lord Emslie in McEwan v Lothian Buses supra, had contributory negligence been in issue I would have been open to the argument that this was a case for a 100 per cent finding.

Decision

[24] As a case brought under chapter 43 of the Rules of Court there are no pleas-in-law to be disposed of. I shall accordingly simply assoilzie the second defenders from the conclusions of the summons. I shall reserve all questions of expenses.