Karen Anne Thomson & Anr V. Douglas Amateur Football Club Social Club And Leonard Wallace
| Jurisdiction | Scotland |
| Judge | Sheriff R.A. Davidson |
| Court | Sheriff Court |
| Date | 27 June 1999 |
| Docket Number | A221/93JUDGMENT |
| Published date | 29 June 1999 |
SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT DUNDEE
A221/93JUDGMENT OF SHERIFF R.A.
DAVIDSON
in the cause
KAREN THOMSON and ANR.
Pursuers
against
DOUGLAS AMATEURS
FOOTBALL CLUB SOCIAL
CLUB
First Defender
and
LEONARD WALLACE.
Seventh Defender
Act: Beynon, Advocate; Messrs. Rollo, Steven and Bond, Solicitors, Dundee
Alt: Henderson, Advocate; Messrs. Thorntons W.S., Dundee (for first defender) and
Hammond, Advocate; Messrs. Lyall Fitzpatrick, Solicitors, Dundee (for seventh
defender)
Dundee, 27th.. June, 1999
The Sheriff, having resumed consideration of the cause, finds the following facts admitted or proved:-
1. The Pursuers are Karen Anne Thomson, 32, residing at 44, Baldovie Road, Dundee,
the widow of the late John Thomson, who died on 3rd. April, 1997, and Maureen
Jane Collison, Solicitor, 21, Dock Street, Dundee, as executor-nominate of said John
Thomson in terms of a will dated 7th. February, 1997, his estate being insufficient to
warrant confirmation being sought.
2 . The first defender is an unincorporated association formed for the purposes of
providing social recreation as an adjunct to the operation of an amateur football team
and occupying premises at 21, Balmoral Terrace, Dundee.
3. The seventh defender is Leonard Wallace, 56, an unemployed labourer formerly
residing at 90, Kenmay Gardens, Dundee and now at 127, Broughty Ferry Road,
Dundee.
4. In terms of its constitution, (No.27/1 of process) the first defender's objects are to
provide social, sports and recreational facilities in the club premises at Balmoral
Terrace, Dundee. Members must be 18 and must reside within the Dundee district
of Douglas and Angus and must be approved by the committee of the first defenders
as suitable. An annual subscription is to be fixed by the committee. A member whose
annual subscription is three months overdue shall cease to be a member of the club.
The committee was to consist of twenty elected members of the club elected and
retiring annually which committee had the power annually to appoint office bearers.
5. The first defenders operate a social club at the premises at 21, Balmoral Terrace,
Dundee. Said premises formerly had a flat roof which suffered extensively from
rain water penetration. In about 1989, the first defenders resolved to replace the
flat roof over the premises with a pitched roof. The office bearers created a buildings
sub-committee to be responsible for the execution of the works.
6. Said buidings sub-committee instructed a gentleman called Derek Anderson, now
deceased, sometimes referred to as "the architect," sometimes referred to as "the
building consultant" to prepare a specification and drawings and to submit the
necessary documents for all relevant local authority approvals.
7. Once approval was obtained, the buildings sub-committee sought tenders from the late
John Thomson (hereinafter referred to as "John Thomson,") and from a Mr. Palmer,
both of whom were at the material time members of the club, for the execution of the
joinery work connected with the erection of the roof. The masonry work formed the
subject of a separate tender. The tender from John Thomson was in the sum of £3,000
and was accepted. Said tender was for the labour only element of the contract and the
first defender was to provide the materials.
8. John Thomson was the husband of the first named pursuer who he married on 17th.
July, 1993. He died on 3rd. April, 1997 from cancer, the cause of which death was
wholly unrelated to the circumstances of the accident referred to on record. He had
for a number of years prior to the accident been in self-employment as a joiner,
latterly trading as T and T Joiners and being registered for VAT purposes at 44,
Baldovie Road, Dundee, though also apparently trading from an address at Unit 7,
Perrie Street, Dundee. At no time relevant to these proceedings was he an employee
of the first defender.
9. The roofworks envisaged the erection firstly of a double cavity brick/blockwork gable
which would form the basic support for a series of 22 roof trusses which would be
erected at 600 milimetre intervals along the roof. Once the trusses were in place,
roof sarking would have been inserted and roof tiles would have been laid thereon.
10. By 11th. February, 1990, the gable end wall had been constructed and arrangements
were made for the delivery of the roof trusses to the first defender's premises. The
trusses were duly delivered by lorry on 11th. February, 1990, which was a Sunday.
A number of volunteers from the club, all of whom were members of the club,
assisted in the process of unloading the lorry and raising the trusses on to the
existing flat roof of the premises. These volunteers, who included the seventh
defender, were rewarded for their efforts with vouchers for either three or four
free drinks from the club bar.
11. Both the architect and John Thomson were present during at least part of this
process on 11th. February, 1990. One concern was that, whereas 22 trusses had
been ordered, 44 trusses were delivered. It was the architect's instruction that
the trusses be doubled up in pairs and each set consisting of such a pair was to be
regarded as one truss for conformity with the plan.
12. At the material time, John Watson Scott of 9, Balunie Avenue, Dundee, was the
treasurer of the first defenders. He was also a member of the buildings sub-
committee. On 11th. February, he asked a number of people, including the seventh
defender, if they would volunteer to assist John Thomson in the erection of the
trusses. While nothing specific was said in advance, it was the understanding of
the seventh defender that these volunteers would be rewarded by the first defender
by receiving free drink vouchers. This was a system regularly employed by the
office bearers of the first defender when requiring assistance and it is a reasonable
inference that this practice would have been followed in relation to the assistance to
be rendered in connection with the installation of the roof trusses.
13. On 13th. February, 1990, John Thomson arrived at the premises to commence the
erection of the roof trusses. He was joined by four other men, all of whom were
members of the club, namely, the seventh defender, David Dowdles, George
Mckenzie and John Joseph Scott. Though John Thomson was also a member of the
first defender, he was at the material time acting as and being paid as an independent
contractor. Contrariwise, the others, including the seventh defender, had volunteered
as club members to assist John Thomson in the erection of the trusses.
14. All five men went on to the roof of the premises. John Thomson was the only one
of them who had had any experience of erecting roof trusses. He was the only one
who was a joiner to trade. The seventh defender was a building labourer. John
Joseph Scott had normally worked as a labourer to bricklayers.
15. While John Thomson gave the other four men directions about what he wanted
them to do, he gave them no general advice about the need to exercise safety while
working on roofs and no specific instructions on how to undertake the work safely.
Nor did anyone else. The edge of the roof was unprotected.
16. The first three or four trusses were to be fixed in position by the use of 'L'
shaped metal bars which were already inserted into the cavity between the
brickwork and the blockwork of the newly constructed gable. It took all five
men present to lift and carry each twin pair of trusses into position and then
the other four held the set of trusses in position while John Thomson nailed them
to the 'L' shaped metal bars.
17. After these first trusses were erected, the remaining trusses were to be retained
in place temporarily by a series of wooden straps which would be nailed between
the trusses. It is explained that, ultimately, the trusses would be held in position
by a combination of the existing metal bars and the sarking which would be
installed later. These straps were merely to retain the trusses in a vertical position
pending the erection of the whole set of trusses and, subsequently, the sarking, at
the conclusion of the installation of which these temporary straps would be removed.
18. By about 12.00 noon, the men working on the roof had successfully erected about
14 pairs of trusses. It began to rain and, in any event, it was about time to stop for
a meal break. John Thomson instructed the others to gather up the tools, most of
which he had supplied, with a view to leaving the roof for something to eat.
19. The seventh defender had heard John Thomson say earlier that the pair of trusses
fifth out from the gable wall was not vertical and required adjustment. He had
watched John Thomson adjust the set of trusses second out from the gable wall
and thought he knew what to do. Without telling anyone, he took a ladder, set
it up against the fifth set of trusses, climbed up it and proceeded to remove the
nails from the strapping nearest to the apex of the set of trusses. As he did so,
there was a loud cracking sound, and the trusses from the set numbered five
outwards from the gable wall fell away from the gable wall, like a stack of
dominoes. Since the ladder on which he was located had been leaning on the
fifth set of trusses, the seventh defender fell with them and landed on top of the
collapsed trusses. Unfortunately, however, the trusses fell on top of John Thomson
and John Joseph Scott causing them both to sustain serious injury. The seventh
defender gave no indication or warning as to what he was about to do, nor did he
shout any warning when the trusses began to collapse. He had not been instructed
by John Thomson or anyone else to undertake this task. The seventh defender was
not an employee of John Thomson. The seventh defender was not an employee of
the first defender....
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