Charles Mcinally Against Arcus Fm Limited
| Jurisdiction | Scotland |
| Judge | Lord Burns |
| Neutral Citation | [2014] CSOH 146 |
| Date | 01 October 2014 |
| Court | Court of Session |
| Published date | 01 October 2014 |
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...
To continue reading
Request your trial