Morrow v Enterprise Sheet Metal Works (Aberdeen) Ltd
| Jurisdiction | Scotland |
| Judgment Date | 20 December 1985 |
| Date | 20 December 1985 |
| Docket Number | No. 14. |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION.
Lord Mayfield.
ReparationNegligenceEmployers' liabilityBreach of statutory duty"Place at which any person at any time works"Whether employee who had been working from a trestle and had descended and fell as a result of standing on a sheet of cardboard that slipped along the floor was engaged in the course of his employment at a place at which any person at any time workedWhether safe place of workWhether safe and suitable access to and egress from place of workConstruction (Working Places) Regulations 1966 (S.I. 1966 No. 94), reg. 6.1
During the course of his employment, the pursuer had had to install ventilation ducting between the ceiling and a lower false ceiling which had not yet been erected at a particular location. In order to reach the installation points, the pursuer required to use a trestle. The room in which the pursuer was working was approximately 40 metres by 50 metres and had a floor laid of concrete. In order to protect its surface, sheets of cardboard had been placed on the floor. The sheets had been placed there by the main contractors; from time to time the sheets were lifted so that they and the floor could be cleaned and when this was done the sheets were placed in a pile. On a particular day the pursuer collected the materials he required and went to the place he was to work taking with him a trestle and a toolbox; he placed the toolbox on the ground about 6 feet to 8 feet away from the trestle, and then put up the trestle; two feet of the trestle were resting on the cardboard, and the other two feet were resting on the concrete floor. The pursuer mounted the trestle and did necessary work and when he had completed the appropriate installation work he came down the trestle. On descending a fellow employee shouted and asked the pursuer for a loan of a screwdriver. After the fellow employee had shouted for the screwdriver the pursuer began
to move towards him and stepped onto the pile and thereafter slipped causing injury to himselfThe pursuer thereafter raised an action of damages against his employers on the basis that they were in breach of a statutory duty of care in terms of reg. 6 (2) of the Construction (Working Places) Regulations 1966 and against the main contractors on a case based at common law in that they had been negligent in placing the sheets in a pile, leaving them lying on the floor, and failing to remove grit trapped between the sheets which had caused the top sheet to shift and the pursuer to fall and sustain injury. After proof, the Lord Ordinary (Mayfield)assoilzied the employers on the basis that the locusof the accident was not the pursuer's place of work and alsoassoilzied the main contractors on the ground that it had not been proved that they were responsible for making the pile nor that they had shewn any lack of care. The pursuer reclaimed. Prior to the hearing of the reclaiming motion, the pursuer sought and was granted leave to amend his pleadings so as to add a new ground of fault against his employers based on reg. 6 (1) of the 1966 Regulations.
Held, (1) that, the Lord Ordinary had reached the correct conclusion on the case based on reg. 6 (2) for the pursuer at that time was not at his place of work; (2) that, the pursuer's working place had been on the trestle and he had completed his task and left his workplace when he stepped from the trestle; (3) that, in relation to the case based on reg. 6 (1), the locus of the accident was not an access to or (per Lord Justice-Clerk (Ross) and Lord Brand) an egress from a place of work for at the time of the accident the pursuer had left his place of work and was not engaged in egress from it but was acting in response to a call from his fellow employee; (4) that, although the question of reasonable foreseeability arose in determining whether the locus of the accident was safe or unsafe on the evidence the locus was safe; and reclaiming motionrefused.
Robertson v. R. B. Cowe & Co.SC1970 S.C. 29distinguished.
Andrew Morrow raised an action of damages against (first) Enterprise Sheet Metal Works (Aberdeen) Ltd. and (second) John Laing Construction Ltd. Third parties called in the summons were Matthew Hall Ltd.
The cause came to proof before the Lord Ordinary (Mayfield). On 17th October 1984, the Lord Ordinary assoilzied the defenders. [See:Morrow v. Enterprise Sheet Metal Works (Aberdeen) Ltd.UNK1985 S.L.T. 308.]
The pursuer reclaimed. The reclaiming motion was heard before the Second Division, comprising the Lord Justice-Clerk (Ross), Lord Dunpark and Lord Brand on 26th, 27th and 28th November 1985. On 28th November 1985, their Lordships made avizandum.
At advising on 20th December 1985,
LORD JUSTICE-CLERK (Ross).This is a reclaiming motion at the instance of the pursuer. In the action, the pursuer sought damages from both defenders and the third parties jointly and severally in respect of an accident which he had on 5th December 1978. At that date, he was engaged in his employment with the defenders as a sheet metal worker in a building then under construction at the Royal Infirmary, Glasgow. The second defenders were the main contractors in the erection of the building, and the third parties were nominated sub-contractors for the mechanical engineering services; the first defenders were sub-contractors of the third parties.
In the course of his work, the pursuer required to install ventilation ducting between the ceiling and a lower false ceiling which had not yet been erected. In order to reach the installation points, the pursuer required to use a trestle. There were several different installation points where work was to be done, but the evidence in the case related solely to the one installation point at which the pursuer was working that day. The room where the pursuer was working was approximately 40 m. by 50 m., and had a floor laid of concrete. In order to protect the surface of the floor, sheets of cardboard had been placed on the floor. The sheets had been place there by the second defenders; there was evidence that from time to time the sheets were lifted so that they and the floor could be cleaned; when this was done the sheets were placed in a pile.
On the day of the accident, the pursuer collected the materials he required and went to the place where he was to work taking with him a trestle and a tool box; he placed his tool box on the ground about six to eight feet away from the trestle, and then put up the trestle; two feet of the trestle were resting on the cardboard, and the other two feet were resting on the concrete of the floor. The pursuer then mounted the trestle and did the necessary work. When he had completed the installation work at that point, he came down the trestle. When he had just got down, a fellow employee, Fraser, who was some distance away, shouted and asked the pursuer for the loan of his screwdriver. At this time Fraser was about eight yards away from the pursuer. It was shortly after this that the pursuer slipped and fell.
The pursuer stated that he put his two feet onto cardboard when he came down the trestle, and that he turned round and made his way towards Fraser when the cardboard moved causing him to slip. Fraser, on the other hand, said that the pursuer had come down the trestle; the tool box was to the pursuer's left; when Fraser shouted the pursuer turned towards Fraser and walked towards him. There was a pile of some four to eight sheets approximately one and one-half to two feet from the trestle; as the pursuer stepped towards Fraser he stepped onto the pile which gave way causing him to slip.
The Lord Ordinary preferred the account given by Fraser to the extent that the pursuer stepped onto the pile, having taken a pace or two forward from the trestle, rather than that he mounted the pile directly from the trestle. Accordingly, the Lord Ordinary accepted that it was after Fraser shouted for the screwdriver that the pursuer began to move towards him and stepped onto the pile. I did not understand the pursuer to attack this finding by the Lord Ordinary.
There was evidence to the effect that the second defenders' employees handled the cardboard on occasion when laying the sheets of cardboard and when cleaning them, but none of the witnesses saw any employees moving the sheets prior to the accident. The pursuer attributes his slipping to the fact that the sheet on which his feet rested moved because there was rubble, dirt or dry cement adhering to the sheets. The only two witnesses present at the time of the accident were the pursuer and Fraser. There were discrepancies between their evidence, but the Lord Ordinary held that an accident had occurred as alleged by the pursuer. The Lord Ordinary stated: "However, I am satisfied that an accident occurred; that the pursuer fell whilst on a pile and that the pile was near the trestle at the place where the pursuer dismounted from the trestle. I am also satisfied that there was some rubble and dust between the sheets. I am satisfied that the top sheet moved when the pursuer stepped on it and he fell." It is clear from this that the Lord Ordinary must have accepted that the sheet moved because of the presence of rubble or dust between the sheets. I did not understand these findings of the Lord Ordinary to be challenged by the first and second defenders.
Before the Lord Ordinary, it was agreed that the pursuer had sustained injuries to his shoulder, and damages were agreed at 5,000. The pursuer's case against the first defenders was based on reg. 6 (2) of the Construction (Working Places) Regulations 1966. That regulation provides inter alia: "every place at which any person at any time works shall, so far as is reasonably practicable, be made and kept safe for any person working there". Against the second defenders, the pursuer sought to make a case at common law on the ground of alleged failure by the second defenders'...
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