EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lord Bracadale Lord Glennie	[2013] CSIH 44 PD494/11 OPINION OF THE COURT delivered by LORD BRACADALE in the reclaiming motion RONALD HILL Pursuer/Respondent; against NORSIDE LIMITED Defenders/Reclaimers: _______________

Pursuer and Respondent: Di Rollo, QC; B Fitzpatrick; Digby Brown LLP

Defenders and Reclaimers: Primrose QC; C Smith; HBM Sayers

29 May 2013

Introduction

[1] On 23 October 2008 the pursuer sustained a very serious head injury resulting in an incomplete tetraplegia when he fell from the first level of a scaffold to the ground. Damages, on full liability, were agreed at £1,869,000. The Lord Ordinary (Lady Dorrian) found the defenders liable and assessed the degree of contributory negligence on the part of the pursuer as 20%. In this reclaiming motion the defenders challenge the Lord Ordinary's assessment of the appropriate measure of contributory negligence.

The findings of the Lord Ordinary

[2] At the time of the accident the pursuer was working as a sub-contracted roofer and slater under the Construction Industry Scheme whereby income tax of about 20% was deducted by the main contractor. The pursuer was paid weekly, on an hourly basis for a 39 hour week. The pursuer was the foreman of a squad consisting of himself, Derek Porter and his son Ronald Hill jr. The pursuer had worked with Mr Porter for about 15 years and with Ronald Hill jr for about 10 years. Prior to the date of the accident the squad had been doing work for the defenders for a number of months. The Lord Ordinary described the working arrangements between the defenders and the pursuer's squad as follows:

"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] The accident occurred when the pursuer's squad were engaged in stripping and retiling the roof of premises at Main Street, Coatbridge. In accordance with the working arrangements described by the Lord Ordinary, prior to the work commencing scaffolders employed by Norside had erected a scaffold to provide access to the roof. While there was a fixed ladder from the first level of the scaffold to the roof, no fixed ladder was put in place for access from the ground to the first level. The evidence indicated that the reason for this was to prevent unauthorised access to the scaffold by children and others. After the accident the Health and Safety Executive insisted on a fixed ladder being erected through the middle of the scaffold with a fence and gate system on the ground around it to prevent such unauthorised access. A system of that type had been in use at other Norside sites.

[4] When the pursuer and his squad started work no ladder of any kind had been provided for access to the first level of the scaffold. This meant that initially the men had to climb the scaffolding poles using the lugs as footholds.

[5] There were certain other defects which gave the pursuer concerns about the safety of the public. There was no mesh brick guard at roof height and no fan lift at the first level. The latter is an upwardly angled platform extending outwards along the length of the first level of scaffolding. Both it and the brick guard are designed to prevent items such as slates falling from the roof and injuring passers-by. It appeared on the evidence that while the pursuer and his squad did initially work with these defects unresolved, they complained about them. At some point a brick guard and a fan lift were fitted.

[6] In addition, for access to the first level of the scaffold the defenders at some point provided an aluminium ladder which was in generally poor condition. It had once formed part of an extension ladder; one of the rubber stops was missing; rungs were damaged and the stiles moved in and out. The Lord Ordinary found that when the ladder was provided no instructions were given as to how it should be used to gain access to the scaffold. 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".

Because of the way in which the scaffold was constructed it was necessary to use the ladder at the side of the scaffold thereby gaining access to the right hand edge of the first level platform. There was a crossbar at chest height which required to be negotiated for access to the platform.

[7] Evidence was led before the Lord Ordinary as to the practice, when the ladder was in use, of tying it to the scaffold in order to secure it and prevent it from slipping. The Lord Ordinary summarised the evidence as follows:

"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 [on] 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."

[8] The accident occurred when pursuer went down on his own to deal with a delivery of materials; the other members of the squad remained on the roof. While descending the ladder the pursuer fell and sustained serious injury. Mr. Adrian Timson, a construction inspector with Health and Safety Executive, who visited the site after the accident, 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. The Lord Ordinary recorded that, as a result of his injuries, the pursuer had no recollection of the accident. As to whether the ladder was tied to the scaffold in the morning of the accident when the squad climbed to the first level, Mr Porter did not think that it had been, while Mr. Hill jr could not remember.

[9] It was a matter of concession before the Lord Ordinary that the defenders were in breach of certain statutory duties. The Lord Ordinary was satisfied that they were in breach of a number of regulations under the Work at Height Regulations 2005 (the 2005 Regulations) and the Provision and Use of Work Equipment Regulations 1998 (the 1998 Regulations) and that these breaches caused the pursuer's accident. In particular, under the 2005 Regulations they were in breach of the following regulations:

• 4(1)(a), (b) and (c) which requires work at height to be properly planned, appropriately supervised and carried out in as safe a manner as is reasonably practicable;
• 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;
• 6(4)(b) which provides that these 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;
• 6(5)(a) which requires that where such measures do not eliminate the risk of a fall, equipment to minimise the distance and/or consequences of a fall should be provided;
• 7(1) which requires that certain procedures are followed in the selection of work equipment for use in work at height, and sets out 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;
• 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 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 anti-slip device; or (c) any other equally effective arrangement.

[10] In addition, the Lord Ordinary found the defenders to be in breach of regulation 20 of the 1998 Regulations which requires that work equipment or any part of work equipment is stabilised by clamping or otherwise where necessary for purposes of health or safety.

[11] The Lord Ordinary found it proved that the defenders had control of the scaffolding, "in a way and to an extent that the pursuer did not". At paragraph [23] she went on to say:

"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."

[12] The basis for a finding by the Lord Ordinary of contributory negligence on the part of the pursuer lay in the pursuer's failure to tie the ladder to the scaffold before descending the ladder alone. At paragraphs [28] - [29] she summarised her approach to the question of contributory negligence:

"...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."

[13] In cross-examination of the witnesses led on behalf of the pursuer, Mr Hanretty QC, who appeared as senior counsel for the defenders before the Lord Ordinary, canvassed an alternative method of using the ladder which, he suggested, would have been open to the pursuer and his squad to select. This came to be known as the "van" system. Essentially, this would have involved storing the ladder on the roof rack of the van each night and bringing it to the site each morning. This approach would obviate the need for one member of the squad to climb the scaffold each morning. The Lord Ordinary rejected the proposition that the van system would have had any significant advantage over the system which the pursuer and his squad were driven to adopt:

"[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. "

The submissions on behalf of the defenders

[14] Although the grounds of appeal were extensive, and Mr Primrose QC, who appeared on behalf of the defenders before us, developed his submissions in a number of chapters, it is convenient to consider the attack mounted on the assessment by the Lord Ordinary of contributory negligence under three heads. First, it was contended that the Lord Ordinary had failed properly to recognise and take account of the co-extensive nature of the duties on the pursuer and the defenders under the regulations. This was exacerbated by her failure to have proper regard to the experience of the pursuer. Secondly, the treatment by the Lord Ordinary of the evidence as to whether the ladder used by the pursuer and his squad was habitually tied off was open to criticism. This had led her wrongly to conclude that the pursuer's failure to tie off the ladder on the day of the accident could not be assessed as more than inadvertence or inattention. Thirdly, the Lord Ordinary had failed to take proper account of the alternative system of using the available ladder, namely, the "van" system, which had been advanced at the proof.

[15] Mr Primrose submitted that the Lord Ordinary had failed to recognise that because of the degree of control which the pursuer had over the use of the ladder and the system of access, the same statutory duties were incumbent on both the defenders and the pursuer. Both sets of regulations applied to self-employed persons and persons who had control of work. Accordingly, the statutory duties as between the pursuer and the defenders were co-extensive. The pursuer, being in control of the ladder and the men in his squad, and having day to day control of the scaffold, could have taken steps to get another ladder. He could have demanded that a fixed ladder be put in place. He ought to bear a substantial share of responsibility for what happened.

[16] Further, in this context, the Lord Ordinary failed adequately to take into account the evidence as to the pursuer's knowledge, experience and training in the safe use of ladders. He had forty years' experience; he was a foreman; and he had training in the use of ladders. Given that experience, he could have called a halt to the work had he considered it dangerous. When he had complained about defects in the scaffolding these had been rectified. The Lord Ordinary had failed to recognise the extent and degree of control by the pursuer, the extent of his experience and the fact that he was just as subject to the terms of the regulations as were the defenders. Because of her failure to take proper account of these points the Lord Ordinary had not made a sufficient finding of contributory negligence.

[17] Mr Primrose submitted that the Lord Ordinary's treatment of the question as to whether the pursuer habitually failed to tie off the ladder was flawed. There was no proper basis in the evidence for the conclusions at which she arrived in paragraph [28] of her opinion (quoted above). Under reference to the transcript of evidence Mr Primrose drew our attention to certain passages in the evidence of each of the pursuer, Mr Porter, Mr Hill jr and Mr Tinson of the Health and Safety Executive. Mr Primrose submitted that a review of that evidence showed that on occasions other than the occasion of the accident the pursuer had used the ladder without it being tied. From that it could be concluded that the failure to use it on the day of the accident was not simply inadvertence or inattention.

[18] Further, in support of the contention that the failure by the pursuer to tie off the ladder on the day of the accident was more than inadvertence, Mr Primrose drew attention to the evidence of Mr Porter that on the day of the accident the ladder had been placed on the first level of the scaffold after the members of the squad had reached that level. When the pursuer came back down he would have required physically to put the ladder in position before descending. That requirement in itself would make it much less likely that the failure to tie off was no more than a moment of inadvertence or inattention. It would be easier to explain as inadvertence if the ladder had already been standing in position.

[19] In relation to the Lord Ordinary's treatment of the reliability of the pursuer Mr Primrose submitted that the Lord Ordinary had not dealt with the conflict between the pursuer's position in relation to the tying off of the ladder as contrasted with the positions of Mr Porter and Mr Hill jr. She was in error in her assessment at paragraph [27] of her opinion.

[20] Mr Primrose submitted that the Lord Ordinary had misunderstood the evidence relating to the alternative "van" system and had failed to give proper weight to the advantages of that system. This was a safer system which could have been adopted. It was a more formal system which would require each member of the squad to concentrate on the need to foot and tie the ladder when in use. Mr Primrose submitted that a proper understanding of the evidence of Mr Tinson's evidence indicated that this system would have satisfied him.

The submissions on behalf of the pursuer

[21] Mr Di Rollo QC, who appeared on behalf of the pursuer before us (but not before the Lord Ordinary), submitted that the evidence before the Lord Ordinary demonstrated that the defenders had complete control over access and egress from the place of work. In terms of regulation 2(1) of the 2005 Regulations "work at height" included "obtaining access to or egress from such place while at work". The plain fact was that it was for the defenders to provide a suitable means of access to and egress from the place of work. The pursuer had no control over that; he had to use whatever arrangement was provided. The finding of the Lord Ordinary was that the system could easily have been changed by the provision of a suitable fixed ladder and if that had been done the accident would not have happened. Only the defenders had control of the site in order to be able to install a fixed ladder.

[22] The issue for the Lord Ordinary was whether the pursuer on the occasion of the accident, by failing to tie the ladder when he descended it, was contributorily negligent and, if so, to what extent. The cross-examination of the pursuer had been very brief. The only basis for contributory negligence put to him related to the failure to tie off the ladder. It was not put to him that he could have demanded that a fixed ladder be installed or that he could have refused to continue working until that was done. The Lord Ordinary was entitled on the evidence before her to conclude that the evidence did not indicate that the pursuer habitually, when using the ladder alone, failed to tie it off. Mr Di Rollo submitted that even if there was more than inadvertence or inattention it did not make any difference in this case. In the light of the finding of the Lord Ordinary in paragraph [28] that the pursuer was required repeatedly to use a defective system which could easily have been replaced with a ladder and locked gate, a relatively modest element of contributory negligence was appropriate.

[23] As to the alternative "van" system, Mr Di Rollo submitted that the pursuer should never have been put in the position of having to devise a system of gaining access and egress using a ladder in the first place. It was not for the pursuer to devise a system of access. It was for the defenders to do that. The Lord Ordinary had been entitled on the evidence before her to conclude as she did in relation to the "van" system.

Discussion

[24] It is important at the outset of our consideration of the assessment of contributory negligence made by the Lord Ordinary to bear in mind that the question is not what this court would have considered to be an appropriate level of contributory negligence. The court will interfere in such an assessment only in exceptional circumstances and where the Lord Ordinary has manifestly and to a substantial degree gone wrong (McCusker v Saveheat Cavity Wall Insulation Ltd 1987 SLT 24 ; Porter v Strathclyde Regional Council 1991 SLT 446).

[25] In our opinion the Lord Ordinary correctly approached the question of contributory negligence. She had regard to the relative blameworthiness and "causal potency" of the acts of the pursuer as against those of the defenders which founded their liability to the pursuer (see King J in Tafa v Matsim Properties Ltd [2011] EWHC 1302 at para 166, to which the Lord Ordinary was referred). It is clear that she was conscious that under the regulations the pursuer did owe duties to himself and to the members of his squad.

[26] On the basis of the evidence as to (a) the working arrangements between the pursuer and the defenders; (b) the arrangements for the erection of, and access to, the scaffold; and (c) the practice at other sites belonging to the defenders, the Lord Ordinary was, in our opinion, entitled to be satisfied that the defenders had control of the site, and in particular had control of the scaffolding, in a way and to an extent that the pursuer did not. As she noted in paragraph [23], "The scaffold was erected on their instructions and by their employees".

[27] The defenders were in breach of their statutory duty by not providing a fixed and secure means of access to the first level of the scaffold. As the Lord Ordinary noted, this was an arrangement that was in place on other sites operated by the defenders. It could easily have been put in place when the scaffolding was erected. Precisely that arrangement was put in place after the pursuer's accident.

[28] The Lord Ordinary recognised that the pursuer in descending the ladder alone without tying it off was negligent. We note that this was the only basis on which contributory negligence was explored before the Lord Ordinary. It was suggested before us that the pursuer could have demanded that a fixed ladder be put in place. We note that that proposition was never canvassed with the pursuer in cross-examination. As Mr Di Rollo pointed out, the cross-examination of the pursuer was brief. The pursuer was asked questions about his business arrangements. He was asked about his experience and training. It was taken from him that he was the foreman and in charge of the men working with him: he was in a position to instruct them as to how to go about their job; and he knew that he should be looking after the members of his squad. He was asked about the tying off of the ladder. It was never put to him that he could have stopped work and demanded the installation of a fixed ladder. In any event, when on a previous occasion the pursuer had refused to work in conditions which gave rise to safety concerns for him and his squad, their wages were docked.

[29] As the Lord Ordinary noted, the question as to whether the pursuer habitually failed to tie off the ladder when using it on his own was important in assessing whether it was demonstrated that his action in doing so on the occasion of the accident was more than inadvertence or inattention. In the light of the submissions advanced by Mr Primrose it is necessary to examine the evidence about tying the ladder. In examination in chief, at page 23 of the transcript, the pursuer was asked, "Did the three of you use any arrangement for securing the ladder into place when you were using it?" Answer: "Yeah, we tied it with blue nylon rope." Question: "And this blue nylon rope, where did you get that from?" Answer: "Out the back of the van. I always had blue nylon rope in the back of the van." At page 24 he said that the rope was usually kept beside the ladder. He was then asked, "When you were working at Main Street, Coatbridge and you were using the ladder, did you always tie it with the blue strap?" Answer: "Yes". At page 27-28 his position was that he could not really remember whether in the weeks or days before the accident he had occasion to go up or down the ladder on his own.

[30] In cross-examination at page 36E the pursuer was asked by counsel for the defenders, "Is her Ladyship to take it that the ladders were tied off with the blue nylon rope ...on every occasion when you used the ladder prior to your accident... Every other occasion, so far as you can recollect, the ladder was tied off?" The pursuer replied, "Yeah". He was then asked, "All right, and it would have been tied off because you knew that was the right thing to do?" Answer: "Yes".

[31] In cross-examination at pages 71-75 Mr Porter said that he knew that a ladder should be tied off to stop it moving. He agreed that the pursuer was aware of that. He was asked, "Did he insist that the ladder be tied off every day when it was being used?" Answer: "No". Under reference to his statement, which he adopted as the truth, he said "We did not always tie the ladder". By "we" he meant the squad. He was then asked again whether he was aware of the pursuer using the ladder when it was not tied off and he said, "...I suppose he did". He was then asked, "When you said ....about 'for quickness' in terms of not tying off the ladder, what did you mean by that?" Answer: "Well, it gave quick access to the first level of the building."

[32] In cross-examination at page 107-108 Mr Hill jr was asked, "Had your dad been in the habit of not tying off this ladder when he used it on the site?" He replied "I don't know. I wasn't there every single time...". He was then asked, "Were you aware of occasions when your father didn't tie off the ladder?" And he replied "Yeah". When he was asked how often that would happen he said, "I cannae remember how often it was because sometimes he would have tied it and sometimes he wouldn't". He went on to say that maybe 50% of the time they used the ladder when it was not tied off with the rope. When he was asked, "You knew it should be tied off?" he replied, "But it was to get footed if it wasnae tied". He was then asked, "How many times did you use it and it wasn't footed and it wasn't tied?" to which he replied, "It would always be footed or tied if I was using it. If I was going up myself, I would tie it. If I was going up, which usually was the case, and my dad had to get it footed or held at the top. Somebody would be at the top."

[33] Mr Tinson at page 205 stated that his understanding was that sometimes the ladder was tied and sometimes it was not.

[34] Having carefully considered these passages of evidence to which Mr Primrose drew our attention, we agree with the interpretation of that evidence made by the Lord Ordinary. She recognised that the pursuer was wrong in his evidence that the ladder was always tied off. We agree with the Lord Ordinary's analysis of the evidence of Mr Porter and Mr Hill jr. Their evidence about the occasions on which the ladder was used without being tied off was given in the context of the members of the squad using the ladder together. In our opinion the Lord Ordinary was entitled to conclude as she did in paragraph [28] that there was no evidence that the pursuer habitually used the ladder on his own without tying it off.

[35] In addition, there was nothing in the evidence to indicate that the pursuer had been careless on previous occasions. The history indicated that he was a careful man.

[36] As to the "van" system, we are unable to see what this approach would have achieved apart from obviating the requirement for one member of the squad to climb the scaffold each morning. That had no bearing of the pursuer's accident. As Mr Di Rollo pointed out, it was not for the pursuer to devise a system of access; it was for the defenders to do that. The only advantage claimed for the "van" system by Mr Primrose was that it would have focussed minds. In our opinion the Lord Ordinary was entitled on the evidence before her to conclude as she did in relation to the "van" system.

[37] In all these circumstances it seems to us that on the evidence before her the Lord Ordinary was entitled to take the view that she was unable to find that the failure on the part of the pursuer was more than inadvertence or inattention. We are of the opinion that in the light of that conclusion the assessment of contributory negligence made by the Lord Ordinary was appropriate (Toole v Bolton Metropolitan Borough Council 2002 WL 498813; Sherlock v Chester City Council [2004] EWCA Civ 201; Neil v East Ayrshire Council 2005 Rep LR 18; McLachlan v Early Learning Centre [2011] CSOH 25).

Decision

[38] For the reasons set out above we refuse the reclaiming motion and reserve meantime the question of expenses.