Sandy Harrower V. Clackmannanshire Council
| Jurisdiction | Scotland |
| Judge | Sheriff Derek O'Carroll |
| Court | Sheriff Court |
| Date | 24 June 2013 |
| Published date | 26 June 2013 |
SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT ALLOA
Judgement
by
Sheriff Derek O'Carroll,
Advocate
in causa
SANDY HARROWER
PURSUER
against
CLACKMANNANSHIRE COUNCIL
DEFENDERS
Act: McElroy, solicitor, Dallas McMillan
Alt: Cartney, solicitor, Ledingham Chalmers LLP
ALLOA, 24 June 2013
The Sheriff, having resumed consideration of the cause:
Finds the following facts admitted or proved:
- The pursuer is aged 46 and is a painter and decorator. As at March 2013, he had been employed as such by the defenders for a period of about 15 years and was so employed as at the date of the accident forming the subject matter of this action.
- The pursuer is a time served painter and is experienced. He is experienced at working at height.
- The pursuer has received from the defenders a substantial amount of training on health and safety issues including matters particularly concerned with working at height. The training that he has received from the defenders is accurately recorded at 6/3/7, 6/3/8, 6/3/6, 6/3/9, 6/3/10 of process.
- There is no further training in health and safety issues which the defenders ought to have provided to the pursuer. The pursuer understands well the steps he should take in order to avoid injury whilst working at height.
- The defenders prepared a generic risk assessment which is relevant to the risks associated with working at height and control measures that require to be taken. That risk assessment is accurately recorded at 6/3/13 of process. That risk assessment was adequate in relation to all relevant parts of the pursuer's occupation in employment with the defenders.
- The defenders are a local authority whose responsibilities include the maintenance of housing stock comprising approximately 4500 houses. Every house is painted once every 5 years on a cyclical basis. The defenders employs between 15 and 18 painters. Painting houses is therefore a full-time occupation for the Council. The pursuer is experienced at doing work for the defenders.
- Some of the defender's housing stock comprises buildings containing 4 flats or houses with entry to two of the flats being made from the rear of the building. The design of the building is such that access to the 2 rear flats is by a short staircase running from the ground to the rear wall before turning 90° and ending in a small landing immediately in front of the door which provides access to the house. The landing is between 1.3 and 1.5 m from the ground. There are about five steps from the ground at which point the stairs begin to turn. There are about three steps involved in the turn. There are about 2 steps between the end of the turn and the landing.
- Bounding the stairs and the landing are railings which are attached to the side of the stairs and the landing. The dimensions, condition, design capabilities and strength of the railings are unknown. Number 6/2 of process contains photographs of the locus.
- In order to paint the exterior of such a building, the standard practice is that the painting is done manually by a painter using standard spraying equipment.
- In order to paint the exterior of such a building, the standard practice is that the painting of the parts of the building immediately above and around the stairs is done by the painter while standing on stairs. The painter then moves along and down the stairs as the painting progresses.
- When painting from the stairs, the painter is working at height within the meaning of the Work at Height Regulations 2005.
- To paint the whole of the rear and the side of the building by an experienced painter will normally take around an hour. Of that hour, 5 minutes or less would be spent in painting from the stairs.
- When painting from the stairs, there is present an unguarded fourth edge, being the open stairs.
- The standard method of painting part of the exterior wall from the stairs used by the defenders does not involve the use of any safety equipment.
- There is no industry practice of the use of any safety equipment to be used by painters painting the exterior of houses from short stairs whether the painters are employed by local authorities or otherwise.
- There have never been any falls suffered by painters employed by the defenders painting the exterior of houses from short staircases.
- There is a risk inherent in painting from the stairs of buildings such as those described in finding of fact 7 being that of a fall which is liable to cause personal injury. The risk of such a fall is very small. The hazard is low.
- On 12 April 2010, the pursuer was instructed by the defenders to commence work on a building at Hillside Terrace, Alloa. That building is of the kind described in finding of fact 7. The work involved was the painting of the rear and the sides of the building using spraying equipment. The pursuer had painted that type of building on many occasions in the past.
- The pursuer was standing on the third step down from the top of the stairs. That step was on the turn of the stairs. The pursuer stepped back to look at his work to check he had done it properly. As he stepped back, he slipped off the step. He lost his balance. He put out his hand to catch the railing. He missed it. He fell down about 6 steps, about 1 metre, to the bottom. He injured himself as a result.
- Number 5/1 of process is a medical report prepared by Mr Lindsay, consultant orthopaedic surgeon and contains a true and accurate account of the nature of the injuries from which the Pursuer was suffering when examined by Mr Lindsay on 16 March 2012, and his prognosis.
- Numbers 5/2 and 6/4 of process are the records of Tillicoultry Medical Practice as they relate to the Pursuer.
- Number 6/5 of process contains the records of Stirling Royal Infirmary as they relate to the Pursuer.
- Page 27 of 6/5 of process is a true and accurate copy of the referral letter from the Pursuer's general practitioner to the physiotherapy service of Stirling Royal Infirmary and contains an annotation from that physiotherapy service which is also true and accurate.
- There was no simple effective method which could have been employed to provide a guardrail or similar barrier to prevent the type of fall suffered by the pursuer. In particular, there was no method available involving the use of scaffolding poles with attachments at each end which could have been used to provide protection against falling a distance liable to cause personal injury.
- Even if there was a method available involving the use of scaffolding poles with attachments at each end which could have been used to provide protection against falling a distance liable to cause personal injury, it would not have been reasonably practicable for the defenders to have provided such a method.
- The only method which could have been employed in order to provide physical protection against a fall from the stairs by a painter involved in doing the type of work engaged in by the pursuer would have been by means of erection of custom designed scaffolding around the stairs. Such scaffolding would take between one hour and one and-a-half hours to build and dismantle. That would cost between £500 and £700 on each occasion. The erection of such scaffolding would also result in staff time being wasted waiting for the scaffolding to be erected. That method was not reasonably practicable.
- A harness system was not capable of being employed by painters carrying out that type of work.
- If the defender had been found liable to make reparation to the pursuer in respect of the subject matter of this action, the quantum of the Pursuer's loss would have been £3,000 inclusive of interest to 11 April 2013 subject to a deduction in respect of the Pursuer's contributory negligence of 20%.
FINDS IN FACT AND IN LAW
- There was no reasonably practicable method of guarding the fourth edge to the stairs from which the Pursuer fell.
- The defenders were not in breach of their duty in terms of regulation 6(3) of the Work at Height Regulations 2005 to take suitable and sufficient measures to prevent so far as is reasonably practicable the pursuer falling from the stairs a distance liable to cause personal injury while carrying out his painting duties.
THEREFORE
Grants decree of absolvitor in favour of the defenders; Finds the pursuer liable to the defenders in expenses; Allows an account thereof to be given in and remits the same, when lodged, to the auditor to tax and report.
NOTE:
[1] Introduction. This is an action for damages arising from an accident at work in which the pursuer fell while painting a wall and suffered an injury. The defenders deny liability. The parties lodged a joint minute at the commencement of the proof on 11 April 2013. That joint minute agrees inter alia the quantum at £3,000 subject to a deduction for contributory negligence of 20%. I heard evidence from four witnesses, two for each side. They were: Sandy Harrower (Pursuer); George Stewart (health and safety consultant); Robert Anderson (the defender's health and safety officer); Fergus Lindsay (defender's maintenance team leader). On 17 May 2013, I heard submissions from the parties and made avizandum.
The evidence
[2] The following provides a summary of the pertinent parts of the evidence.
[3] Sandy Harrower. I am 46. I am a painter and decorator. I have worked for the defenders for 15 years and before that I worked for other employers. I identify 5/4/4 and 6/1/2 as photographs of the locus of the accident.
[4] I am a time-served painter. I am experienced. I work at height a lot. I have been trained. I have attended a number of courses provided by the defenders regarding health and safety and working at height. I know that before I move that I must check my feet.
[5] I was instructed to paint the outside of the house shown in the photograph using paint spraying equipment. At the back of the house, access to the entrance is by a short flights of steps which turn in an arc 90 degrees to the left after about five steps before continuing for a few steps...
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