Scottish Sheriff Court Decisions

SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT FALKIRK

The Sheriff having resumed consideration of the cause finds the following facts admitted or proved:

(1) The pursuer is Mr Andrew Dunnachie, who resides at 28 Glenbervie Drive, Larbert. He is unemployed and is 54 years of age. The defenders are the executors nominate on the estate of the late David Gardner, who as of the relevant date resided at 8 Redpath Drive, Stenhousemuir, Falkirk and was the occupier thereof.

(2) On the 27 February 2007 the pursuer attended upon Mr Gardner's home to remove certain furniture there from. The pursuer Mr Gardner agreed that the pursuer would attempt to clean guttering above the front door of the property. The guttering appeared to be blocked by leaves and debris and was believed to be the cause of water ingress into Mr Gardner's home.

(3) The pursuer retrieved a set of stepladders from a selection of 3 such sets which were stored in Mr Gardner's garage. The ladders were of wooden construction and were at least 35 years old. The pursuer erected the ladders immediately outside the front door of the property. He had attended Mr Gardner's home that afternoon with a friend Scott Findlay, who assisted him in erecting the ladders and who held the ladders as the pursuer ascended them. The pursuer removed certain dirt and debris from the guttering above the front door. He then asked Mr Gardner if he could be supplied with a brush or trowel to facilitate the further removal of dirt and debris from the guttering. Mr Gardner left to go to his garage a few metres away to retrieve a suitable implement. While he was gone and while the pursuer remained standing on the second top step of the ladder and while Scott Findlay continued to have hold of the stepladders, the stepladders disintegrated as a result of which the pursuer fell to the ground. The pursuer suffered injuries to his spine. He required to attend Stirling Royal Infirmary, where he was treated as an inpatient for approximately 10 days.

(4) Mr Gardner had been a joiner to trade and was knowledgeable as to the uses and properties of wood.

(5) The said ladders had been used by Mr Gardner's son the first defender, two to three weeks prior to their use by the pursuer. Mr Gardner junior encountered no difficulty in the use of the ladders, nor did he perceive any defects in them.

(6)   Mr Gardner was very surprised and shocked that the ladders had collapsed causing injury to his friend.

Finds in law

1. that the pursuer has failed to prove that Mr Gardner was negligent in supplying the stepladders or in permitting their use by the pursuer;

2. that the defenders are entitled to be absolved from liability.

Accordingly assoilzies the defenders from the crave of the writ; reserves meantime the question of expenses and appoints parties to be heard thereon on at 10am

Note

I heard evidence from the pursuer and Scott Findlay and from both of the defenders on their own behalf.

Mr Dunnachie told the court that he had known Mr Gardner for several years. Mr Gardner had suffered an injury in an industrial accident as aresult of which he was paralysed from the waist down and confined to a wheelchair. He had been a joiner and had worked on offshore oil rigs and in the construction industry. On the 27 February the pursuer had gone to Mr Gardner's home to uplift some items of furniture which Mr Gardner no longer required. He went with his friend Scott Findlay who brought with him a trailer attached to his vehicle. While the pursuer and Mr Findlay were at Mr Gardner's house Mr Gardner indicated to them that he was having water entering his home above the front door and that he believed that this was caused by the guttering above the front door being blocked by leaves and other debris. It was agreed between Mr Gardner and the pursuer that the pursuer would attempt to clear that blockage. To this end he then went to Mr Gardner's garage and selected a set of stepladders from a collection of at least three sets and Mr Dunnachie and Mr Findlay took the ladders to the front door where they erected them. The ladders were stepladders which were capable of being erected on a flat surface without requiring to be placed against any vertical support; they were about six feet high and incorporated between six and eight treads or steps.

Mr Dunnachie ascended the ladders to the second top step and began to clear the debris from the guttering. He felt at one point that his task would be easier if he were provided with a trowel or a brush and asked Mr Gardner if he could supply such an instrument. Mr Gardner went to his garage to look for an implement. The pursuer remained on the second top step of the ladder which were being held by Mr Findlay to ensure that they did not become unstable and fall over, without warning the ladders disintegrated and the pursuer fell to the ground injuring his back on the steps and front door. The pursuer lay on the ground for some time after which Mr Findlay helped him up and managed to assist him into Mr Findlay's car and took him home. He was in considerable pain and required to attend hospital the next day where after investigation he was noted to have suffered a fracture of two vertebrae and damage to lumbar discs. He remained in hospital for nine or ten days.

After three or four days his wife and son visited. On being asked by the pursuer if Mr Gardner had been in touch with them to enquire as to his health they said no. The pursuer was upset by this and telephoned the pursuer. Mr Gardner had apparently not realised that his injuries were as severe as they turned out to be and no‑one had told him about the fact that Mr Dunnachie was in hospital. The pursuer said that in conversation Mr Gardner told him that "he had wondered if the ladders were up to it". At the time immediately following the disintegration of the ladders Mr Dunnachie said that Mr Gardner had said that the ladders were old. The pursuer had had no concerns about the ladders when he retrieved them from the garage, took them to the front door and erected and ascended them. He said that Mr Gardner had been a joiner and had extensive experience in the construction industry having worked inter alia on offshore oil platforms. He said Mr Gardner was knowledgeable about wood. He described asking Mr Gardner for a trowel or a brush to assist him in clearing the gutters and Mr Gardner leaving on his wheelchair to go to the garage to retrieve such an implement. Thereafter he said the ladders simply collapsed underneath him and he fell through his friend's arms to the ground striking his back on the edge of the steps and causing the injuries described. The pursuer expressed his surprise that Mr Gardner would put anyone in jeopardy given that he himself had suffered serious injuries in an industrial accident. In cross examination he was unable to describe which part of the ladders had broken, he said that Mr Findlay had mentioned woodworm when he had been collecting the broken pieces of the ladder.

Scott Findlay confirmed much of the pursuer's evidence and described how the pursuer fell through his (Mr Findlay's) arms as the ladder collapsed. Mr Findlay had been holding onto the ladders to steady them. When he was collecting the broken pieces of the ladder, of which he said there were many, to tidy them away from the front doorstep he noticed that the timber from which they were constructed was riddled with woodworm. He said that the ladders just disintegrated. He did not recall Mr Gardner say anything about the ladders except that they were old ladders. In cross examination he agreed that he had not been aware of any problems or defects in the ladders until after they disintegrated.

The first defender who is aged 35 and employed as a process operator gave evidence that he arrived home late in the afternoon on the 27 February 2007 when his father had told him what had happened that afternoon. He described having used the same stepladders only two or three weeks earlier to cut the top of the hedge in his father's garden, he had no difficulty using the ladders and perceived no defects or deficiencies in them, he did not know how old the ladders were but said that his father had had them since he, Craig Gardner, was a young child. His father was shocked and stunned at everything that had happened and about the state of the ladders which he described as having broken into several pieces. He described the ladder material as being "firewood".

Thereafter the first defender's sister Lynn Smith gave evidence. She also returned home after work that day following the accident. Because of her father's disability she called at his home everyday on her way home from work, normally between 4:30 and 5:30. Her father had been astonished that the ladder had broken particularly given that her brother had used them only two earlier. He had said that in his view they were in perfect working condition. In cross examination she denied that the ladders were old.

SUBMISSION

In submission Mr Macintyre said that this was a common law claim in which the defender owed a duty of care to the pursuer. He said it was reasonably foreseeable that if an individual was provided with the wrong or defective equipment that an accident may occur. He accepted there required to be proximity in relationship between the individual who supplied equipment and the individual who was injured thereby and that it was to be fair, just and reasonable to impose a duty of care. He said that there was an obligation on Mr Gardner to consider how Mr Dunnachie was going to reach the guttering and if he knew of any defect or if he ought to have known of any defect in the stepladders then he should have expressed his concern.

The evidence that there was a defect with the ladders came from the evidence of the pursuer and Scott Findlay who heard Mr Gardner say that the ladders were old; Scott Findlay said the timber of the ladders was as firewood; during the telephone conversation when the pursuer was in hospital Mr Gardner had told him "he wondered whether ladders were up to job". It was clear, Mr Macintyre said, that he had a concern which he must have harboured at the time and it was his duty to check the ladder if he had concerns. With reference to Mr Findlay's evidence that he perceived the timber to be effected by woodworm, he said this supported the evidence of the conversation while the pursuer was in hospital that Mr Gardner had "wondered if the ladders were up to it".

He accepted that if the court did not accept the pursuer's evidence about the conversation in hospital that the pursuer would be unable to prove his case. He accepted that liability depends on an acceptance of the pursuer's evidence that Mr Gardner wondered if the ladders were up to it.

Mr Chalmers for the defender submitted that I should grant decree of absolvitor and find the pursuer liable in expenses. He agreed it was a common law case and that liability required a failure to exercise reasonable care. It was necessary for the pursuer to prove a lack of such reasonable care. In this case the pursuer required to prove that Mr Gardner knew or ought to have known of a defect in the ladder which might give rise to a risk of injury. If he was not aware of any reason why the ladder might break then there could be no liability. Whereas the defenders admit there was a duty of care they do not admit that any duty was breached.

The evidence does not support the pursuer, it would appear that the ladders suffered a latent defect which could not have been ascertained except after rigorous inspection. No‑one had detected any deficiency in the ladders. There was no duty on a private household to carry out inspection of the ladder which might be put to use. Ladders are in the form of tools which do not require maintenance and can be used for many years without incident. They do not wear out.

The action depends on the court accepting that the second conversation about the incident which took place while the pursuer in hospital to the effect that Mr Gardner had wondered if the ladders were up to it. The first conversation which took place while the pursuer was lying injured on the ground to the effect that Mr Gardener had said the ladders were old was not enough to bring home liability. Neither the pursuer nor Mr Findlay saw anything wrong with the stepladder and if they did not see anything wrong with it it was difficult to see how Mr Gardner could be fixed with knowledge of a defect.

So far as the second alleged conversation is concerned this was never mentioned during Mr Gardner's lifetime and Mr Gardner had had no opportunity to confirm or deny that that conversation had taken place. It was surprising that this conversation had not been mentioned before it was given that the action had been raised sometime before Mr Gardner died and that allegation that this conversation had taken place was only introduced to the pleadings after his death in February 2010. The court should be extremely cautious in dealing with this alleged comment, it being the only piece of evidence which came near to fixing Mr Gardener with knowledge of a critical defect. However even if it was accepted that the statement was made it is a long way short of a piece of evidence to justify a finding in favour of the pursuer. It was a natural situation that someone might speculate in a conversation following an incident such as had occurred. There is nothing in the remark to the effect that he knew there was a particular problem; it was a natural placatory comment. He said comments made after an accident unless they indicate an awareness of a significant defect, which this one does not, do not assist the pursuer. The court should consider that if Mr Gardner had known of any defect in the ladder it is strange that he had allowed his son to use it only a few weeks before this incident. Furthermore given his former profession if there had been an obvious defect he would have been aware of it. Therefore the appropriate conclusion was that he was entirely unaware of any defect and that this is so is confirmed by the evidence of his son and daughter that he was astonished that they ladder had collapsed.

There was no evidence whatsoever as to what caused the ladder to break, and in the absence of such evidence the pursuer cannot prove that Mr Gardner ought to have been aware of the nature of the defect which resulted in the collapse. It is clear that whatever did occur happened very quickly, it was sudden, it was unforeseen and unforeseeable therefore the court should grant decree of absolvitor.

Conclusion

I prefer the submissions for the defender to those of the pursuer. There is no evidence as to what it was that caused the stepladder to fracture and collapse. Mr Findlay said that he detected evidence of woodworm infestation in pieces of timber from the ladder which he collected following the accident. There is however no evidence of any expertise of Mr Findlay in the detection of the existence of or extent of woodworm infestation in timber. Mr Findlay is plant operator. There was no evidence that it was woodworm infestation which caused the depreciation in the integrity of the timber structures such that the stepladder disintegrated. There is no evidence that even if there was woodworm in the timbers that that fact was known to Mr Gardner.

With reference to the comment attributed to Mr Gardner that the ladders were old, this comment that does not bring knowledge that injury might be caused by the use of these ladders. It is clear from the evidence of Craig Gardner which I accept that these ladders had been in the possession of Mr Gardner since Craig was a very young child and are therefore at least 35 years old. It is clear however that the age is irrelevant absent any evidence of any material deterioration caused by the effluxion of time and indeed absent the knowledge of Mr Gardner of such deterioration.

So far as is concerned the other comment attributed to Mr Gardner as having been made when the pursuer telephoned him from hospital at which is claimed to be in these terms "I wondered if these ladders were up to it", I do not accept Mr Dunnachie's evidence of this.

I accept the evidence of his son and daughter that he was, as it was variously put, shocked, stunned or astonished that the ladders had collapsed causing injury to Mr Dunnachie. Mr Gardner, on the pursuer's evidence which I accept, was a competent tradesman; he was experienced in the construction industry; he was knowledgeable about the properties of and uses of various types of wood. Furthermore Mr Gardner knew that his son had used the same ladders only a matter of weeks prior to this incident and I agree with Mr Chalmers that it would have been strange to allow his son to use these ladders had he been aware of any defect of deterioration in them.

In all the circumstances therefore there is no evidence from which I can conclude or infer that Mr Gardner was negligent in any way in allowing the pursuer to use the ladders which he provided for the purposes of accessing the guttering above his front door.

I note that this proof was restricted to determining the question only of liability. Given the conclusion I have reached, the pursuer's claim must fail. The defenders will be assoilzied from the craves of the writ. I was not addressed on expenses and have fixed a hearing so that parties may address me on this issue.

Sheriff Craig Caldwell