Gary Gallagher V. Kleinwort Benson (trustees) Limited And Others
| Jurisdiction | Scotland |
| Judge | Lord Reed |
| Date | 12 March 2003 |
| Docket Number | A90/01 |
| Court | Court of Session |
| Published date | 12 March 2003 |
| OUTER HOUSE, COURT OF SESSION | |
| A90/01
| OPINION OF LORD REED in the cause GARY GALLAGHER Pursuer; against KLEINWORT BENSON (TRUSTEES) LIMITED AND OTHERS Defenders: ________________ |
Pursuer: Ellis, Q.C.; Balfour & Manson
First, Second, Third, Fourth, Fifth Defenders:
R.W. Dunlop; Drummond Miller
Sixth Defenders: Marnie; Dundas & Wilson, C.S.
Seventh Defenders: P.M. Stuart; Aitken Nairn, W.S.
Eighth Defenders: Wade, Solicitor-Advocate; Simpson & Marwick, W.S.
Ninth Defenders: A.R. Mackenzie; HBM Sayers
12 March 2003
Introduction
[1]On 10 July 1996 the pursuer was seriously injured in an accident. According to his pleadings, he worked at that time as an estimator for a scaffolding contractor. That company had been asked by the ninth defenders to estimate for the provision of scaffolding for a project for which the ninth defenders had been appointed as the main contractors. The project comprised renovation works to a Victorian building in Paisley, formerly known as the Globe Hotel. The renovation works had not yet started, and the ninth defenders had not taken possession of the site. The building comprised shops on the basement and ground floors, and offices on the upper floors. There was a flat roof over the rear part of the building. At one edge of the flat roof, overlooking the street to the rear of the building, was what the pursuer's pleadings describe as "a feature hand rail with the words 'Globe Hotel' cast into the rail". This rail was made of iron and was painted. It was 87 centimetres high and 12 metres long. Access to the flat roof was obtained through a door in one of the offices inside the building. The office in question was occupied by the eighth defenders. Some of their employees went on to the roof in the course of their working day to smoke cigarettes.
[2]On the day in question, the pursuer arrived at the building and was met by Mr Mallon, who was a surveyor employed by the ninth defenders. Mr Mallon and the pursuer agreed to proceed to the flat roof so that the pursuer could estimate the scaffolding that would be required at the back of the building. They went through the offices of the eighth defenders, and spoke to Mr Thorburn, a safety consultant employed by the eighth defenders. They indicated that they wished to go on to the flat roof, and Mr Thorburn indicated his acceptance of this. The pursuer and Mr Mallon went through the door on to the roof. On the roof there was an ashtray and a number of cigarette ends. The pursuer indicated to Mr Mallon that it would be useful to measure the drop from the roof to the street. They approached the rail and leant on it. The pursuer lowered a tape measure to the ground with one hand, while leaning on the rail with the other. As he did so, a section of the rail, about 65 centimetres wide, gave way. The pursuer fell from the roof to the ground below, a distance of 32 feet. Examination after the accident revealed that the part of the rail which gave way had been joined to the rest with metal plates which had rusted, although superficially the rail looked in reasonable condition.
[3]The pursuer has brought the present action for damages against nine defenders, each of which is averred to bear responsibility for the accident. Each of the defenders has sought the dismissal of the action against them on the basis that the pursuer's averments are irrelevant in law and lacking in specification. In the interests of clarity, I shall consider separately the pursuer's case against each of the defenders. As will become apparent, a wide range of arguments has been advanced and there is a considerable degree of overlap between the arguments advanced on behalf of the different defenders.
1. The case against the first defenders
[4]According to the pursuer's pleadings, the first defenders were until June 1996 the heritable proprietors of the whole of the building. As at the date of the accident, they were the heritable proprietors of the basement and ground floors, with a right in common to the roof. They were therefore proprietors of the roof, in common with other parties. According to the pursuer's pleadings, another company obtained a lease of the ground floor shop premises in 1982; and the sixth defenders succeeded that company as tenants in 1987 and traded from those premises. It is averred that the subjects let included a right in common to the roof, and that "the roof was part of the subjects let". It is also averred that the rail was part of the roof. The lease obliged the tenant to keep "the premises" in good and substantial repair, the expression "the premises" being defined as "each and every part of the subjects hereby let".
[5]The pursuer further avers that the seventh defenders are the tenants of the basement shop premises, those premises having been leased to their predecessors in 1983. The subjects let included a right in common to the roof. The seventh defenders succeeded to the tenants' interest under an assignation in their favour in 1989. Nothing is averred by the pursuer about the repairing obligations under that lease.
[6]The pursuer further avers that a specification of the works required for the renovation of the building was prepared by surveyors in August 1995 on the instructions of the first defenders and a Mr Lovatt, and that the contract was put out to tender on the basis of that specification. It included a provision for "re-fixing" the rail. An architect's drawing indicated that the rail was to be "re-secured". A previous estimate for scaffolding provided by the pursuer's employers, prepared by another employee of that company and dated 7 September 1995, had provided for a scaffolding platform at the soffit or eaves level at the rear of the flat roof. It is averred that the obtaining of that estimate indicated that structural work on the rail was anticipated, since the platform would otherwise have been at a lower level to allow easier access for activities such as painting. The specification also provided for other works, in the vicinity of the flat roof, which required scaffolding at the rear of the building. The contents of the specification and of the drawing are averred to have been known to the first, second, third, fourth and fifth defenders.
[7]The pursuer further avers that the rail was in any event the means by which persons were to be prevented from falling off the flat roof. Any reasonably careful occupier or person having control and responsibility ought to have had a system of inspection to see that the rail was adequate. Any such person would have been aware that, without an effective barrier, there was a risk of persons falling off the roof. Any such person would have been aware that there was a risk that persons on the roof would rely on the rail as a barrier to falling off. A reasonable system of inspection would have meant that the rail be inspected at least every six months. Any reasonable inspection of it within some years prior to the accident would have revealed its inadequacy. In that event, any reasonably careful person having occupation, control or responsibility for the rail would have acted promptly to make it safe and, in the meantime, have taken precautions such as the placing of warnings or a barrier. Any person taking reasonable care in relation to the management of the building would have known that the eighth defenders' employees had access to the roof. In any event, the first defenders knew or ought to have known that persons, including employees of the main contractors and of sub-contractors and potential sub-contractors, would have access to the roof for reasons associated with the proposed renovation works. Before full scale work could start on such a project, preparatory work would have to be carried out on site. This would include plans for necessary scaffolding. Anyone who gave reasonable consideration to the matter would be aware that preparatory work must take place on site.
[8]Against this background, the pursuer alleges in the first place a breach by the first defenders of their obligations under section 2(1) of the Occupiers' Liability (Scotland) Act 1960:
"The care which an occupier of premises is required, by reason of his occupation or control of the premises, to show towards a person entering thereon in respect of the dangers which are due to the state of the premises or to anything done or omitted to be done on them ... shall ... be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger."
[9]In addition, the pursuer alleges a breach by the first defenders of their obligations under the Workplaces (Health, Safety and Welfare) Regulations 1992 (S.I. 1992 No. 3004). Regulation 2(1) defines "workplace" as "any premises or part of premises which are not domestic premises and are made available to any person as a place of work". The definition includes "any place within the premises to which such a person has access while at work". Regulation 4(2) provides inter alia:
"[E]very person who has, to any extent, control of a workplace ... shall ensure such workplace ... complies with any requirement of these Regulations which - (a) applies to that workplace ... and (c) relates to matters within that person's control."
Regulation 5 provides inter alia:
"The workplace ... shall be maintained ... in good repair."
Regulation 13(1) provides:
"So far as is reasonably practicable, suitable and effective measures shall be taken to prevent any event specified in paragraph (3)."
Regulation 13(3) specifies inter alia:
"any person falling a distance likely to cause personal injury."
Regulation 13(4) provides:
"Any area where there is a risk to health or safety from any event mentioned
in paragraph (3) shall be clearly indicated."
[10]I shall deal separately with (a) the case under the Occupiers' Liability (Scotland) Act 1960 and (b) the case under the Workplace...
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