Ronald Pate V. Stewart Homes Limited
| Jurisdiction | Scotland |
| Judge | Lord Jones |
| Neutral Citation | [2013] CSOH 30 |
| Court | Court of Session |
| Year | 2013 |
| Date | 21 February 2013 |
| Published date | 21 February 2013 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 30 | |
| OPINION OF LORD JONES in the cause ERIC WALLACE, Solicitor, as Curator ad Litem to RONALD PATE, (Assisted Person), Pursuer; against (FIRST) STEWART HOMES (SCOTLAND) LIMITED, and (SECOND) GERALD O'CONNOR, (Assisted Person), Defenders: ________________ |
Pursuer: O'Brien QC; A C Forsyth; Bonnar &Co
First Defenders: Mackay QC; Love; HBM Sayers
21 February 2013
Introduction
[1] The pursuer in this action was appointed curator ad litem to Ronald Pate ("Mr Pate") by interlocutor of the Lord Ordinary, pronounced on 29 June 2012. The case came before me for proof, restricted to the issue of liability, on 25, 26 and 28 September 2012. By the start of the hearing, the second defender was no longer a party, the action against him having been abandoned.
The pursuer's case on record
[2] The pursuer avers that, on 22 and 23 February 2006, Mr Pate was working on a house extension at an address in Dumgoyne Drive, Bearsden, Glasgow. (It is not averred, but it is helpful to know that the extension was attached to the south elevation of the house.) The first defenders were the main contractors. The second defender, for whom Mr Pate was working, was sub-contracted to do the roofing. On 22 February, Mr Pate and the second defender strapped and battened the roof. Thereafter, it is averred, Mr Pate completed the tiling of the roof on his own. Roof tiles were passed up to him by other workers, from trestles which were situated near the east side of the extension. Mr Pate stood on the roof of the extension to receive the tiles. There was no scaffolding or working platform at that time on the east side of the extension. There was no edge protection on the roof at the east side of the extension. On 23 February, Mr Pate attended work at the site. The narrative continues in these terms:
"The first defenders' site supervisor, Mr Jim Brown, and at least 4 other workmen were present when a change to the noise of a saw, and shouts for help, were heard at about 10.45 a.m. (Mr Pate) was found on the ground close to the said extension, in a distressed and confused state. It was immediately evident that he had sustained a serious head injury."
[3] That account is followed on record by an averment which I take to be to the effect that, as a result of his fall and consequent brain injury, Mr Pate is unable to recollect the circumstances of the accident. The pursuer's pleadings continue in these terms:
"(Mr Pate) himself believes that, as he walked along the scaffolding platform he caught his foot on a scaffolding board and lost his balance causing him to fall from the scaffolding platform to his severe injury. Alternatively, it is believed and averred that (Mr Pate) fell from the roof of the east extension after any scaffolding there had been removed."
On the second day of the proof, in light of the evidence which had been led on the first day, senior counsel for the pursuer, Miss O'Brien QC, expressly departed from the first of these alternative accounts.
[4] At page 19 of the record, the pursuer avers that Mr Pate's claim is based on the first and second defenders' breach of their common law duty to take reasonable care for his safety. In particular, it is averred that Mr Pate should have been instructed not to work on the roof after the removal of scaffolding and that he should have been instructed to come down from the roof by Mr Brown. The pursuer also avers various breaches of the Construction (Health, Safety and Welfare) Regulations 1996 ("the 1996 regulations"), the Provision and Use of Work Equipment Regulations 1998 ("the 1998 regulations") and the Work at Height Regulations 2005 ("the 2005 regulations") by both defenders, and breaches of the Management of Health and Safety at Work Regulations 1999 ("the 1999 regulations") by the second defender. During the course of her closing submissions, I understood Miss O'Brien to depart from a number of the statutory cases pleaded on record, on the view these alleged breaches were not causative of the accident. It is convenient, at this stage, to set out the terms of the particular regulations which the pursuer now contends were breached by the first defenders.
The 1996 regulations, 4(1), 4(2), 5(2) and 5(3)
"4.- Persons upon whom duties are imposed by these Regulations
(1) Subject to paragraph (5), it shall be the duty of every employer whose employees are carrying out construction work and every self-employed person carrying out construction work to comply with the provisions of these Regulations insofar as they affect him or any person at work under his control or relate to matters which are within his control.
(2) It shall be the duty of every person (other than a person having a duty under paragraph (1) or (3)) who controls the way in which any construction work is carried out by a person at work to comply with the provisions of these Regulations insofar as they relate to matters which are within his control.
...
5.- Safe places of work
...
(2) Every place of work shall, so far as is reasonably practicable, be made and kept safe for, and without risks to health to, any person at work there.
(3) Suitable and sufficient steps shall be taken to ensure, so far as is reasonably practicable, that no person gains access to any place which does not comply with the requirements of paragraphs (1) or (2)."
The 2005 regulations, 4, 5, 6, 8, 12, 13, schedules 2(1) to (3), 3(11) to (12) and schedule 5(1) to (3)
"Organisation and planning
4.-(1) Every employer shall ensure that work at height is-
(a) properly planned;
(b) appropriately supervised; and
(c) carried out in a manner which is so far as is reasonably practicable safe,
and that its planning includes the selection of work equipment in accordance with regulation 7.
...
Competence
5. Every employer shall ensure that no person engages in any activity, including organisation, planning and supervision, in relation to work at height or work equipment for use in such work unless he is competent to do so or, if being trained, is being supervised by a competent person
...
Avoidance of risks from work at height
6.-(1) In identifying the measures required by this regulation, every employer shall take account of a risk assessment under regulation 3 of the Management Regulations.
(2) Every employer shall ensure that work is not carried out at height where it is reasonably practicable to carry out the work safely otherwise than at height.
(3) Where work is carried out at height, every employer shall take suitable and sufficient measures to prevent, so far as is reasonably practicable, any person falling a distance liable to cause personal injury.
(4) The measures required by paragraph (3) shall include-
(a) his ensuring that the work is carried out-
(i) from an existing place of work; or
(ii) (in the case of obtaining access or egress) using an existing means,
which complies with Schedule 1, where it is reasonably practicable to carry it out safely and under appropriate ergonomic conditions; and
(b) where it is not reasonably practicable for the work to be carried out in accordance with sub-paragraph (a), his providing sufficient work equipment for preventing, so far as is reasonably practicable, a fall occurring.
(5) Where the measures taken under paragraph (4) do not eliminate the risk of a fall occurring, every employer shall-
(a) so far as is reasonably practicable, provide sufficient work equipment to minimise-
(i) the distance and consequences; or
(ii) where it is not reasonably practicable to minimise the distance, the consequences,
of a fall; and
(b) without prejudice to the generality of paragraph (3), provide such additional training and instruction or take other additional suitable and sufficient measures to prevent, so far as is reasonably practicable, any person falling a distance liable to cause personal injury.
...
Requirements for particular work equipment
8. Every employer shall ensure that, in the case of-
(a) a guard-rail, toe-board, barrier or similar collective means of protection, Schedule 2 is complied with;
(b) a working platform-
(i) Part 1 of Schedule 3 is complied with; and
(ii) where scaffolding is provided, Part 2 of Schedule 3 is also complied with;
(c) a net, airbag or other collective safeguard for arresting falls which is not part of a personal fall protection system, Schedule 4 is complied with;
(d) a personal fall protection system, Part 1 of Schedule 5 and-
(i) in the case of a work positioning system, Part 2 of Schedule 5;
(ii) in the case of rope access and positioning techniques, Part 3 of Schedule 5;
(iii) in the case of a fall arrest system, Part 4 of Schedule 5;
(iv) in the case of a work restraint system, Part 5 of Schedule 5,
are complied with; and
(e) a ladder, Schedule 6 is complied with.
...
Inspection of work equipment
12.-(1) This regulation applies only to work equipment to which regulation 8 and Schedules 2 to 6 apply.
(2) Every employer shall ensure that, where the safety of work equipment depends on how it is installed or assembled, it is not used after installation or assembly in any position unless it has been inspected in that position.
(3) Every employer shall ensure that work equipment exposed to conditions causing deterioration which is liable to result in dangerous situations is inspected-
(a) at suitable intervals; and
(b) each time that exceptional circumstances which are liable to jeopardise the safety of the work equipment have occurred,
to ensure that health and safety conditions are maintained and that any deterioration can be detected and remedied in good time.
(4) Without prejudice to paragraph (2), every employer shall ensure that a working platform-
(a) used for construction work; and
(b) from which a person could fall 2 metres or more,
is not used in any position unless it has been inspected in that position or, in the case of a mobile working platform, inspected on the site, within the previous 7...
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