Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2014] CSOH 146

OPINION OF LORD BURNS

In the cause

CHARLES McINALLY

Pursuer;

against

ARCUS FM LIMITED

Defenders:

Pursuer:  Milligan QC;  Digby Brown LLP

Defenders:  Davidson;  Simpson & Marwick WS

1 October 2014

Introduction

[1]        The pursuer, who was born on 14 February 1961, was 50 years of age on 10 August 2011 when he suffered injury to his left shoulder as a result of falling from a stepladder on which he was working in the course of his employment with the defenders at Sainsbury’s supermarket in Drumchapel where they were facility managers.. 

[2]        It was agreed between the parties that in the event of the defenders being found liable to make reparation in respect of those injuries, the sum of £25,000 inclusive of interest to 17 June 2014 should be awarded to the pursuer.  The only issue was liability. 

The pursuer’s case.

[3]        The pursuer gave evidence to the effect that on 10 August 2011 the pursuer had 37 years experience as a joiner and was employed by the defenders in that capacity.  He was at that time 18 stone.  He is 5 feet 7½ inches tall.  His duties included working on a ceiling frame which was about 2.8 metres above the floor. 

[4]        In order to carry out this task, the pursuer had obtained a stepladder from a container which the defenders kept at the Sainsbury’s store.  The stepladder, which was 7/6 of process, was an Abru “Promaster” platform stepladder with the following information contained on adhesive labels on the stiles “BS2037:1997 Class 1 industrial duty rating 130 kgs (20 stone)”.  Accordingly, it was manufactured to meet the requirements of BS2037 Class 1 as a heavy duty stepladder and is designed for its intended purpose when the total loading of the product does not exceed 130 kgs or approximately 20 stone. 

[5]        When the pursuer collected the stepladder from the container, cable ties holding it together had to be cut off.  It had not been used prior to that day.  There were other stepladders in the container which were also similarly secured with cable ties.  Having taken the ties off, the pursuer inspected it, pressing the opening restraints down followed by the top platform and again inspected it (I use the terminology as is illustrated on photograph 1 of the report by Hawkins of 23 May 2014 number 7/7 of process).  Having pulled the legs out to open up the stepladder he ensured that the opening restraints were locked in place.  He also read the labels on the stepladder which included the information set out above together with a warning that the platform should always be locked.

[6]        He noticed nothing unusual during this inspection.  There was no kink in the right opening restraint, the stiles were straight and he noticed no other damage.  Accordingly he took it to the place of work, set up the stepladder and climbed onto the third or the fourth rung.  He had pliers in his hand and proceeded to use them to straighten out a bar on the ceiling frame in order to remove kinks from it.  He had positioned the stepladder slightly behind this area and was working with his hands in front of him while on the stepladder.  He had no difficulty reaching up to the ceiling from the third or the fourth rung.  He did not have to stretch.  He had one hand on the stepladder and one hand using the tool in his left hand.

[7]        He fell backwards and to his left and landed on his left shoulder.  The stepladder went to the right hand side.  He did not know how or why he fell but the stepladder “collapsed and he felt it going”.  He was not leaning to either side of the stepladder.  The opening restraint was not broken or damaged when he inspected the stepladder prior to using it

[8]        In cross examination the pursuer denied that his body came in contact with the left hand opening restraint.  He denied hitting the steps.  Damage to the stepladder included a failed rivet connection between the left stile of the supporting leg and the opening restraint (see photograph 5 of 7/7 of process).  The pursuer was unable to explain how that rivet connection had failed. 

[9]        The pursuer was shown a list of defects set out in an extract from a report from Alan Breakwell dated 10 August 2011 setting out the damage to the stepladder which included bent and kinked stiles and opening restraints and a rivet sheared that secures a brace at bottom of stepladder.  He stated that he would have seen these defects had they been there when he inspected the stepladder and would not have used it in that state. 

[10]      The pursuer was also taken to a number of statements  apparently made by him to other people after the accident.  6/13 of process is an accident/incident witness statement from Sandy Dolan completed on 13 August 2011.  There, Mr Dolan is recorded as saying “I asked Charles what had happened and he said that he lost balance and the stepladders gave way underneath him”.  The pursuer denied that he said that to Mr Dolan.  6/15 of process is an accident/incident witness statement from Nick Wood completed on 13 August 2011 in which Mr Wood is recorded as saying “I asked what had happened and Chick said that he had been working up his stepladders repairing ceiling tiles and he fell off the stepladders landing on his shoulder”.  The pursuer could not recall that discussion but stated that he did not tell Mr Wood that he fell off.  6/8 of process page 3 is an accident investigation form apparently completed on 10 August 2011 by Mr Dolan.  One of the boxes to be completed asks the question “Exactly what was the injured party doing?”  It is emphasised that exact details about the accident are to be given.  Against that box Mr Dolan has inserted “IP (injured party) was working at height on stepladders working on ceiling tiles.  IP stated that he lost balance and stepladders toppled to the side.  IP fell on left shoulder”.

[11]      Ian Clark was the regional facilities manager of the defenders at the relevant time and was the pursuer’s line manager.  He arrived at the Sainsbury’s store at about 16.20 on 10 August 2011.  The pursuer was sitting in a chair near to where the accident had occurred.  He took a number of photographs which are contained in 6/11 of process of the stepladder in its resultant position.  The pursuer reported to Mr Clark that the steps had “collapsed below him”.  The stepladder in question together with others had been delivered to the defender’s storage area at Sainsbury’s in Drumchapel about six months prior to the accident.

[12]      Nora O’Donnell was a customer service assistant at the Sainsbury’s store and was working on the date of the accident close to where the accident occurred.   She was about 10 or 15 meters away when she heard a crash and it took only seconds for her to get to where the pursuer was lying on the floor.  She reported that the pursuer said to her that the stepladders had collapsed.  She was asked in cross examination where the pursuer was lying in relation to the photographs 6/11 of process page 2 but was unsure of where he had been lying when she first saw him. 

[13]      Sandy Dolan was the petrol station manager at Sainsbury’s in August 2011.  He was also a first aider.  He went to the locus of the accident shortly thereafter but could not remember where the pursuer was when he arrived.  He completed the accident report form, 6/6 of process and subsequently the accident investigation form, 6/8 of process.  In 6/6 of process, it is recorded that the accident took place at 16.00 hours and the details given are “working on steps, repairing ceiling grid, stepladders gave way, Charles fell off”.  The accident investigation form contains information that the pursuer had given to Mr Dolan.  It records that the area was examined at 16.45 on 10 August 2011.  At page 4, against the summary of investigation findings, Mr Dolan had written “Stepladders side support broke causing IP to fall, IP lost balance but no evidence of malpractice”.  Mr Dolan said that that was based upon what the pursuer had told him. 

[14]      In cross examination Mr Dolan was taken to the accident/incident witness statement which Mr Dolan completed on 13 August 2011.  He said that that was a “re-wording” of what the pursuer had told him.  He had filled in the injury/accident report form while the pursuer was still present.  He said his statement was not well worded but the report form would have been used to compile his statement.

[15]      Samantha Holmes was head of Health and Safety at the defenders in August 2011 and had made an investigation into the pursuer’s accident.  She got an account of that accident from the pursuer himself.  She also obtained a report from a Mr Whittingham who was a representative of the manufactures of the stepladder and employed as an inspector.  He carried out an inspection of the stepladder on 23 August 2011.  The findings in that report were that the stepladders were not faulty but she decided to try and get a second opinion.  However that was unsuccessful.  Thereafter the manufacturers of the stepladder allowed Mr Breakwell, who was an engineer employed by the suppliers of the stepladder, to inspect a total of 14 stepladders of the same type.  His email dated 2 November 2011 to Samantha Holmes is at 6/9 of process page 7. 

[16]      This records that the 14 stepladders he inspected comprised of seven new and five used stepladders.  In two of those stepladders, one of which was new, a fault was found in which the bracket which secured the cross brace supporting the top platform had been bent in.  Mr Breakwell concluded that that damage had been sustained whilst the stepladders had been in transit.  He also wrote that on 17 October 2011 in London he had discovered a new set of stepladders of this type to have rivets missing in the main support section. 

[17]      As a result of this investigation Miss Holmes concluded that the stepladder did collapse but was safe enough to continue to use such stepladders  as long as they were inspected properly prior to being used.  In cross examination she confirmed that a hire company called HSS was approached for a second opinion but did not give one.  The defenders’ insurers had eventually instructed Mr Tranter of Hawkins.  Had she obtained that report at the time of her investigation her conclusions would have been different.  She confirmed also that her primary source of information was the pursuer himself informing her how he said the accident had occurred.  She had made no examination of the stepladder herself nor did she have any of the skills to do so.  She had not considered Mr Whittingham’s report to be independent.  She accepted however that Mr Tranter’s report was consistent with Mr Whittingham’s report. 

[18]      A joint minute between the parties was provided and the pursuer’s case closed. 

The defender’s case

[19]      The defender led the evidence of Mr Harry Whittingham of Abru’s customer services.  He had compiled the report dated 5 September 2011, 7/1 of process.  He had been a customer service manager with Abru and subsequently an inspector of their products.  Prior to that he had been in the textile industry for 35 years in measurement and control.  He had been with Abru for about 13 years.  He was a chartered civil engineer and had studied electronic engineering.  He had a HND in engineering and was a member of the Institute of Engineering and Technology. 

[20]      He described his role as one of gathering all available information and to note and record any observed damage, to take photographs and to meet and speak to the users of the products.  Although employed by the manufacturers of the stepladder, he would not allow that position to influence his conclusion.  In section 3 of his report he describes the damage to the stepladder.  He states that the frame section was “generally significantly longitudinally twisted clockwise”.  He described the damage to the opening restraint and the domed nature of the rivet connection.  He emphasised that the rivet had detached but had not sheared.

[21]      At 3.9 he observes that the platform would no longer fully locate and that was because of the distortion of the stiles.  Accordingly, the platform could not be locked.  In his conclusions he notes that the stepladder was manufactured in July 2010.  The manufacturers had received no other reports or complaints relating to the particular batch of these stepladders.  It was about 12 months old at the time of the accident.  The left stile and the opening restraint had been subject to a significant abnormal lateral force applied inwards (from left to right) which he considered could not have occurred during or as a result of normal use and could not have occurred as an initial event.  Furthermore, the nature and location of the “concentric deformation” around the rivet hole was consistent with a lateral force being applied inwards approximately midway along the left hand opening restraint bar. 

[22]      At 7.10 he concludes that a possible scenario is that when in use the stepladders were subject to incorrect sideways loading, as a result of which they toppled sideways from left to right and the user fell upon and struck the left hand side of the stepladders, bending the left hand opening restraint inwards and levering out the securing rivet. 

[23]      He could only explain what he referred to as “catastrophic failure” of the opening restraint by some object falling upon that area of the stepladder while it was lying on its right hand side.  He considered that all the damage he saw occurred during the process he had described.

[24]      In cross examination he accepted that he did not have the photographs taken by Mr Clark which are 6/11 of process when he wrote his report.  He accepted that it had been manufactured in Derbyshire and transported from there to the suppliers and then to the end user.  He knew nothing of the way in which it was stored in the period after its manufacture.  On being shown the photograph on page 3 of 6/11 he did not think that the damage to the opening restraint was inconsistent with someone landing on the stepladder in that area.  He did not agree that some pre-existing defect, causing the rivet to be partially dislodged, could have resulted in the stepladder failing while the pursuer was using it.  He was of the view that there was no evidence to support that.  On the contrary, such a situation would have applied force in the opposite direction of the force that caused the damage he observed.

[25]      The second witness for the defender was Neville Tranter.  He had a degree in engineering and a master’s degree in science.  He was a chartered engineer and a member of The Welding Institute.  His CV is contained in appendix A of his report.  The report is dated 23 May 2014 at which time he had not seen the photographs of the stepladder in situ after the accident.  He had seen those about 14 days prior to his giving evidence.  He sets out his observations of the stepladder involved in the accident in section 3 under reference to certain photographs he took which helpfully indicate the terminology used.  At 3.9 he points out that photographs 4 and 5 show the failed rivet connection on the left hand opening restraint and that the rivet had an “evenly deformed shape and appeared to have been correctly made”.  There was significant deformation and rupture of the aluminium, forming a dome where the rivet had been pulled out through the aluminium section as shown in photograph 4.  His view was that the rivet connection failure showed an “even pull out of the material”.  The damaged regions of the stepladder had a bright appearance when compared to general appearance suggesting the damage was produced around the same time.  He erected the stepladder and ascended to the third step.  Although damaged he reported that it was stable and did not deform under his weight, approximately 95kg, even with a light bouncing action.  He was unaware of the pursuer’s weight at the time of the accident or of the weight of any additional items the pursuer may have been carrying.

[26]      In the discussion section at paragraph 5.3 he notes that his inspection and testing of the stepladder did not reveal any features that might relate to a sudden failure of it.  Because the stepladder did not deform when he ascended it and was relatively stable, he did not consider that it would have given way suddenly under load.  Accordingly, he considered it unlikely that the stepladder failed due to some inherent defect such as might arise from manufacturing or assembly.  The damage was consistent with a clockwise twisting motion to the ascending leg.  Such a motion might have been produced from an impact to the left hand side of the ascending leg while the stepladder lay on its side.  The force of that twisting motion produced the bends to the stiles and the failure of the rivet connections.  At 5.5 he accepts the possibility that the stepladder or part of it failed as a consequence of being “over loaded”.  The failure of the opening restraint might then have caused the stepladder to move suddenly such that the pursuer lost his balance and fell.  However he considered that very unlikely because it is inconsistent with the physical evidence.  Further, he would not have expected the stepladder to be able to withstand his practical testing had the stepladders failed and then caused the pursuer to fall.  He emphasises at 5.6 that the rivet connection had separated and had produced an even dome of material which was consistent with a predominantly tensile “pull out” failure mode of the connection.  The rivet had been correctly formed and was not prone to failure.  Such pull out failure would have been unlikely to occur during normal use because the loads acting on the rivet would tend to be in shear.  A shear load would not tend to pull the rivet out.  That would only occur when the legs were rotated and the rivet would then be levered or pulled out as the retaining device was twisted.  He concluded that it was probable that the forces that led to the damage were as a result of the pursuer falling onto the stepladder after he fell from it.  He also considered that the damage he saw would have been immediately apparent if the stepladder had been inspected before use.  The photographs 6/11 of process did not alter his opinion in any way.

[27]      In cross examination he was asked about whether the pursuer’s injuries to the left shoulder were consistent with the pursuer’s account of the accident.  Mr Tranter was of the view that if the pursuer fell he would do so onto the stepladder and that the main impact was between the third and the fourth step on the left hand stile.  He considered that the force of an impact on the left hand stile would also cause damage to the left opening restraint.  He emphasised that the possibility raised in paragraph 5.5 of his report was very unlikely since the forces involved in such use would not cause the damage he had seen. 

[28]      Mr Davidson closed the defenders’ case. 

Submissions for the pursuer

[29]      Mr Milligan submitted firstly that, in order to succeed in terms of the Provision and Use of Work Equipment Regulations 1998 regulation 5 (the Regulation), the pursuer needed only to establish that the stepladder had given way.  He did not need to prove how or why it had done so (see Munkman on Employer’s Liability (16^th Edition) paragraph 24.60; Millar v Galashiels Gas Company Ltd 1949 SC (HL) 31; Stark v Post Office 2000 ICR 1013 and Hislop v Lynx Express Parcels 2003 SLT 785).  Secondly he submitted that while considering all the evidence, I could reject expert evidence, even if there is no obvious flaw in it, if it is contradicted by credible and reliable factual evidence (Davie v Magistrates of Edinburgh 1953 SC 34 at 40 and Armstrong and another v First York Ltd 2005 1 WLR 2751 at 2755, 2759, 2760 and 2761).  He relied in particular on Jakto Transport Ltd v Hall 2005 EWCA Civ 1327.  There the Court of Appeal found that the judge at first instance had erred in his approach to the fact finding exercise and itself reviewed the available evidence.  It found in favour of the plaintiff and respondent although the agreed expert evidence was to the effect that there were two explanations for the accident both of which were very unlikely. 

[30]      Mr Milligan invited me to find that the pursuer was a credible and reliable witness who had given a consistent account of the accident to the effect that the ladder had given way under him.  A possible cause was that the rivet securing the left hand opening restraint had “popped out” causing the stepladder to move and throwing the pursuer off balance.  The pursuer’s first account to Norah O’Donnell was that the stepladder had collapsed under him.  Although there was ambiguity in the accounts from Sandy Dolan as to what he was told by the pursuer, it was clear from his evidence that he had understood the pursuer to be saying that the stepladder had given way under him.  The fact that the pursuer had no other injury than to his shoulder was supportive of his account.  He had not put out his hand to break his fall, as he would if he had overbalanced.  The injuries he did sustain were inconsistent with a fall onto the stepladder. 

[31]      There was no evidence as to the conditions under which the stepladder was transported or stored between manufacture and the accident.  The fact that Mr Breakwell had found new ladders with defects, including bent opening restraints and missing rivets, showed that stepladders did sustain damage prior to use.  The defenders own investigation into this accident had concluded that the stepladder had collapsed.  Ms Holmes had rejected Mr Whittingham’s conclusion and I should do the same, having heard his evidence.   His evidence that the damage to the left opening restraint was caused by the pursuer landing on it was plainly wrong and contradicted by the evidence of Mr Tranter.  Mr Tranter lacked independence and had strayed beyond his area of expertise in speculating how the pursuer might have fallen. He, like Mr Whittingham, did not have all relevant material before him when compiling his report.  He did not have the photographs of the stepladder in its resultant position.  He did not know of the faults in new stepladders as found by Mr Breakwell.  In any event, he accepted the possibility that the accident was caused by a failure in the stepladder. 

Submissions for the Defenders

[32]      Mr Davidson drew attention to the stance of the defenders on record to the effect that the stepladder had been maintained and kept in a fit and suitable condition and the sole cause of the accident was his incorrect sideways loading immediately prior to his fall.  That was a complete defence to this action.  The pursuer required to show that the stepladder had failed as opposed to him overbalancing but his pleadings made no attempt to explain which of the defects seen after the accident existed before it and the evidence had not done so.  

[33]      Mr Davidson did not submit that the pursuer was incredible.  He accepted that the pursuer genuinely believed that some defect in the stepladder caused it to move suddenly so causing his fall.  He had, however, given differing accounts to the people called as witnesses on his behalf.   His account was unreliable and could not be reconciled with the expert evidence led by the defenders. 

[34]      He sought to distinguish the English case of Jakto on the basis that in the present case, the expert evidence had found defects in the stepladder which they were able to explain whereas in Jakto there was no such evidence.   Further both the defenders’ witnesses had stated that the rivet could not have popped or suddenly failed in the manner in which the pursuer apparently was suggesting it did.

[35]      So far as the accident reports were concerned, the majority of the witnesses had ascribed the accident to a fault in the ladder but none had seen any defect in it prior to the accident.  All were trying to work out how the accident had happened.  However, in providing the “exact details of the accident” Mr Dolan’s description was “he lost balance and the ladders toppled to the side” (6/8 of process page 3).  That should be regarded as an accurate and reliable summary of what happened as it coincided with the expert evidence. That evidence should be accepted.  The pursuer had failed to lead any expert evidence although he had such a witness on his Supplementary list and his report was a late production.  Mr Davidson submitted that he could legitimately make adverse comment on the failure to lead such evidence (Robertson v Anderson:  an unreported decision of the Inner House delivered by Lord Reed 5 December 2002 paragraph 100). 

[36]      There was no dispute about the proper approach to the regulation.  However, the pursuer had to demonstrate that at least one defect in the stepladder caused or materially contributed to his fall.  He had failed to establish that any defect had caused him to fall. 

[37]      The available expert evidence had shown that the rivet which had held the opening restraint in place was in good condition but the hole from which it had become detached was domed due to the leverage forces applied to it as when a large load came into contact with that area.  It was the defenders’ case that all of the damage seen on the stepladder was caused by the impact of the pursuer on it as explained by his experts.  He invited me to reject the pursuer’s account and to assoilzie the defenders. 

Discussion and decision

[38]      The issue here is whether I am satisfied that the pursuer’s fall was probably caused by some pre-existing defect in the stepladder which caused it to destabilise when the pursuer’s weight was applied to it thus causing him to lose his balance and fall to the floor.  If so satisfied, there is no dispute that the defenders are in breach of the regulation which imposes strict liability upon them.  The pursuer shoulders the burden of showing that the stepladder failed in some way but need not explain how it failed.   There are two explanations.  Either the stepladder had some defect when made or was in some way damaged prior to being used by the pursuer and that damage caused the ladder to destabilise when the pursuer had ascended it.  Alternatively, the ladder was not defective, the pursuer lost his balance for some reason and fell onto it causing the damage. 

 [39]     I do not doubt that the pursuer believes that the stepladder gave way under him, that he was neither leaning to one side or the other, did not overbalance and that it was a sudden movement of the stepladder which caused him to fall.   I note and accept his evidence that he was an experienced joiner in 2011, well used to using ladders in general and that he inspected the stepladder with care prior to using it.   He gave his evidence in a careful way and I had no reason to conclude that he was deliberately inventing his account. But in considering whether I am satisfied that his account is  reliable and can be accepted, I have to consider all the evidence presented. 

[40]      The reports of what he told others are contradictory.  He is reported as saying that the stepladder “collapsed” (Nora O’Donnell), that he “lost his balance and the ladders toppled to the side” (Sandy Dolan in 6/8 of process page 3) and that “the steps collapsed” below him (Ian Clark).  I do not find much assistance in these reports, firstly because they are contradictory and, secondly because to say that the stepladder collapsed does not provide an accurate description of what is now being said occurred.  What is being said is that a rivet popped out due to some pre-existing damage causing the ladder to become unstable as the pursuer was on the third or fourth rung.   The practical tests carried out by Mr Tranter contradict the pursuer’s description of a collapse.  In any event, I consider that to place reliance on such a report as made to the first person on the scene after such a traumatic event, as opposed to the second or third person, is not of assistance in reaching a conclusion as to what probably happened. 

[41]      The evidence led by the defenders persuades me that the pursuer’s account cannot be accepted as reliable.    Having considered the expert evidence of Mr Tranter, I have reached the view that his explanation should be accepted. I prefer it to the untutored views of Ian Clark.  I am persuaded that the damage to the stepladder seen by him is a result of the pursuer falling onto it.  In particular, I accept that the rivet which dislodged from the left hand opening restraint was in good condition but had pulled out as opposed to being sheared.  The nature of the hole from which was dislodged, described as “domed”, indicates that it was pulled out.  Common sense accords with the evidence of Mr Tranter and indeed Mr Whittingham, that such a feature would be the result of weight being applied to the area of the leg around the left opening restraint.  But I conclude that the pursuer did not land directly on the left opening restraint itself, as Mr Whittingham suggested, since I accept Mr Milligan’s submission that such an occurrence would not have resulted in the position of or damage to the opening restraint as seen in the photographs of the ladder in its resultant position.

 [42]     Since I have concluded that it was a sideways or “pulling out” action which caused the rivet to become dislocated, I accept the evidence of Mr Tranter that such an action was not caused by the sort of forces which would have been applied to the opening restraints when the pursuer, even with his considerable weight, was on the third or fourth rung.  Those forces would have resulted in the ascending legs and the supporting legs being forced apart and a shearing of the rivet which did not occur.  This is not a case on the same evidential footing as Jakto since in that case the joint expert evidence was in effect neutral.  The expert was of the view that both explanations were unlikely.  The case thus depended on the court’s view of other evidence and in particular that of the claimant and respondent.    

[43]      Here Mr Tranter gave evidence not only to the effect that the explanation of the damage was consistent with being caused by the pursuer falling onto it but that it was “very unlikely” that it failed due to being overloaded.  Moreover, he was able to explain why the damage to the rivet would only occur on rotation of the legs as opposed to the force being applied when the stepladder was under load.  He also showed by testing that the damaged ladder was not inherently unstable. 

[44]      Further, I am unable to accept that the pursuer, with all his experience, would have failed to notice damage to the stepladder, which must on his account have been present on his careful inspections of it.  In addition, he was able to lock the platform in place during that inspection and presumably immediately before he ascended it.  It was not possible to do that with the stepladder in its post-accident condition. Mr Whittingham said in evidence that the reason for that was the distortion of the stiles (see also his report 7/1 of process paragraph 3.9).  That indicates to me that substantial damage had occurred to it in the accident and accords with the pursuer’s inspection of it.    

[45]      I accept that new stepladders of this type have been found to be in a damaged condition.  That does not alter my view of the cause of the damage in this case and does not render the pursuer’s explanation more probable.  It merely demonstrates that it is possible that stepladders could be faulty when manufactured or sustain damage in storage or in transit.  The pursuer suffered no other injury than to his shoulder.  Mr Milligan submitted that he did not suffer any injuries consistent with falling onto a ladder.  However, no evidence was led to that effect and I cannot conclude that it is so. 

[46]      Having regard to all the evidence, I have concluded that the pursuer’s account cannot be accepted and that he has failed to establish, in the balance of probabilities, that the ladder failed in some way when he was on it.  I will therefore assoilzie the defenders from the first conclusion of the summons.  It was accepted that expenses should follow success and I will therefore make an award of expenses in favour of the defenders.