Audrey Weir &c V. Robertson Group (construction) Ltd &c
| Jurisdiction | Scotland |
| Judge | Lord Glennie |
| Neutral Citation | [2006] CSOH 107 |
| Date | 11 July 2006 |
| Court | Court of Session |
| Published date | 11 July 2006 |
| Docket Number | PD1134/05 |
| OUTER HOUSE, COURT OF SESSION [2006] CSOH 107 | |
| PD1134/05 | OPINION OF LORD GLENNIE in the cause AUDREY WEIR AND OTHERS Pursuers; against ROBERTSON GROUP (CONSTRUCTION) LIMITED AND OTHERS Defenders: ________________ |
Pursuers: A. Smith, Q.C., Speir; Macbeth Currie (Buchanan Burton, Solicitors, East Kilbride)
Defenders: Laing; Simpson & Marwick
11 July 2006
Introduction
[1] The pursuer is the widow of the late James Weir, who died in an accident on 15 July 2002. She was 36 at the time of the accident. She sues on behalf of herself and her two children, Stacie and Steven, who were respectively 12 and 10 at that time. The pursuer and the deceased had been married for 15 years.
[2] The accident occurred whilst the deceased was working in the course of his employment with the third defenders on a large building project at Auchterarder School. The first defenders were the main contractors on the project. The second defenders were roofing sub-contractors who had in turn engaged the third defenders to provide labour for the work on the roof of the new building. The deceased was employed by the third defenders and was on site in that capacity.
[3] The roof on which the deceased was working at the time of the accident was a curved aluminium roof of about 3,500 square metres in area. It consisted of liner sheets spread over a steel frame, followed by insulating material before the top sheets were put on. At the time of the accident the liner sheets were on the roof, but not the insulation or the top sheets. The work had been programmed so that, before the liner sheets were put on, pre-cast concrete steps would be lowered into position inside the building by crane. For whatever reason, the programme was altered. The liner sheets had been in place for some 10 days or so before the pre-cast steps were ready to be lowered. Accordingly, it was necessary to remove some of the liner sheets from the roof to create a hole through which the steps could be lowered.
[4] The work was scheduled to be carried out on 15 July 2002, which was a bank holiday. The pursuer was working with one or two others on that day. Their first task was to remove certain of the sheets from the roof to create a hole measuring about 3 metres by 5 metres. Work then began on lowering the pre-cast steps through the hole. The pursuer was not involved in this part of the work. Indeed, there was no very clear evidence of what he was working on during this period, but it seems likely that he was continuing with other aspects of roofing work, including taping the joints between the liner sheets. The pre-cast steps came in a number of sections. The first section was lowered through the hole and placed in position. This involved rather more work and difficulty than had been expected, and the decision was taken by those involved to stop for a break. Within a few minutes of their stopping, the accident occurred. It is agreed that it occurred at about 10.52 on that day. The pursuer fell through the hole in the roof, landing near the foot of the pre-cast steps. There were no eye-witnesses to the fall. He appears to have died on impact. In those circumstances the pursuer has raised the case against the defenders alleging liability at common law and under statute.
[5] When the case opened before me, Mr Laing, who appeared for all three defenders, admitted liability on behalf of the first defender. Mr Smith, Q.C., who appeared for the pursuer, abandoned the claims against the second and third defenders. The proof therefore proceeded against the first defender only. The issues in dispute were confined to the issues of contributory negligence and quantum.
[6] I should add that there was originally a separate claim by the mother of the deceased. This claim settled extra-judicially before the proof.
Contributory Negligence
[7] I propose first to consider the question of contributory negligence. In dealing with this it is necessary to identify the pursuer's averments, giving rise to the case of fault laid against the defenders. These were that the hole in the roof had not been protected by suitable and sufficient guard rails and toe boards or other means of protection; that there was no safety net beneath the gap, the net which had been there when the roof panels were removed having itself been taken down by the first defenders to allow the pre-cast steps to be lowered through the hole; the deceased and his co-workers had not been informed that the safety net had been removed; and the deceased had not been required to wear a safety harness. The pursuer relied upon the first defenders having been convicted of a breach of section 3 of the Health and Safety at Work Act 1974. On behalf of the first defenders it was admitted that there was no protection around the gap; and that the safety net that had been beneath the gap had been taken away by them. They also admitted their conviction under the Health and Safety at Work Act 1974. The pursuer's averments that the deceased and his co-workers had not been informed of the removal of the safety net, and that the deceased had not been required to wear a safety harness, were met with the plea of "not known and not admitted". The first defenders' positive averments on contributory negligence were as follows:
"Explained and averred the deceased and two of his colleagues helped to remove the section of roofing which created the hole to facilitate installation of a staircase. The deceased and his colleagues were therefore aware of the existence of the whole."
In the course of his cross-examination of the pursuer, Mr Laing sought to advance a case that the deceased ought to have known that the safety net had been removed. Objection was taken to this line on the basis that there was no record for it. I upheld that objection. Although the new personal damages rules contained in Rule of Court 43 encourage abbreviated pleadings, they do not dispense with the requirements of fair notice. Rule of Court 43.2 requires the summons to contain averments "relating only to those facts necessary to establish the claim". The same approach, in my view, applies mutatis mutandis to the defences, though there is no specific rule about defences. The defences should aver the facts which the defender regards as necessary to support his defence or plea of contributory negligence. Otherwise how is the pursuer to know what investigations to make and what evidence to lead? On the basis of my ruling, the only contributory negligence case open to the defenders was that the deceased was aware of the existence of the hole. It might fairly be inferred that the first defenders were contending that he was careless in being too close to it or stepping into it.
[8] The difficulty for the defenders in advancing a case on contributory negligence is the lack of any eye-witness evidence of what happened. The evidence that there was came from two individuals employed by the first defenders, namely Mr Mackay, the site manager, and Mr Illsley, the project manager. They were both careful and patently honest witnesses who were clearly upset by what had happened. It is apparent from their evidence that they could say very little about how the accident occurred. Mr Illsley said that from his office at some point between 8 and 10am, for perhaps a split second, he observed a man working on the roof in a position that suggested he was taping the joints. But he could not say whether that was the deceased or someone else. That observation of a man on the roof occurred, on that timing, at least 50 minutes and possibly up to 2 hours and 50 minutes before the accident. Mr Illsley confirmed that there was no problem with visibility on that day. He had been on the roof either that day or the next day and was able to see the hole from a distance of 5 to 7 metres. He also said that there was no problem with the weather, but this was in an answer to a question about visibility, and I took the answer as limited to that. There was no evidence as to whether, for example, it was or had been raining so as to make the roof slippery. Mr Mackay said that when he was personally involved in lowering the pre-cast steps through the hole, the deceased approached him and offered to help. He refused that help and the deceased went away. Mr Mackay did not know what he did then. He was able to say, however, that after the accident was reported he saw some tape hanging over the edge of the hole, suggestive of the deceased having been working on taping the joints just before he fell. From this evidence it is possible to infer that immediately before the accident the deceased was doing this work on the roof. To do this he would require to work downwards from the top of the curved roof. He would be walking backwards and bending to fix the tape to the roofing. But more than that one cannot say. In particular, one cannot say whether he simply stepped backwards into the hole without looking or whether, on the other hand, he slipped or tripped on the roof. It might have been possible for some light to have been cast on this by forensic examination of the body at the foot of the steps, but no evidence of any such examination was put before me. Equally, evidence of the state of the roof might have been instructive, to see, for example, whether there were any obstructions over which the deceased might have tripped or whether the roof was wet. It might have been relevant to see whether the tape was neatly fixed all the way down until close to the edge or whether, conversely, the tape showed signs of a fall having started much higher up. Without any evidence from which to be able to determine what happened to cause the fall, it seems to me impossible for the court to find, even on balance of probabilities and by drawing inferences, that the deceased failed, in some way, to take sufficient care for his own safety so as to justify a finding of contributory negligence.
[9] Mr Laing submitted that...
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