Pate v Stewart Homes Ltd [2013] ScotCS CSOH

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

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 days.

(5) Every employer shall ensure that no work equipment, other than lifting equipment to which the requirement in regulation 9(4) of the Lifting Operations and Lifting Equipment Regulations 1998(1) ("LOLER") applies-

(a) leaves his undertaking; or

(b) if obtained from the undertaking of another person, is used in his undertaking,

unless it is accompanied by physical evidence that the last inspection required to be carried out under this regulation has been carried out.

(6) Every employer shall ensure that the result of an inspection under this regulation is recorded and, subject to paragraph (8), kept until the next inspection under this regulation is recorded.

(7) A person carrying out an inspection of work equipment to which paragraph (4) applies shall-

(a) before the end of the working period within which the inspection is completed, prepare a report containing the particulars set out in Schedule 7; and

(b) within 24 hours of completing the inspection, provide the report or a copy thereof to the person on whose behalf the inspection was carried out.

(8) An employer receiving a report or copy under paragraph (7) shall keep the report or a copy thereof-

(a) at the site where the inspection was carried out until the construction work is completed; and

(b)thereafter at an office of his for 3 months.

...

Inspection of places of work at height

13. Every employer shall so far as is reasonably practicable ensure that the surface and every parapet, permanent rail or other such fall protection measure of every place of work at height are checked on each occasion before the place is used.

..."

The schedules specify particular requirements that have to be met in respect of such things as guard-rails, toe-boards, barriers and similar collective means of protection, working platforms and personal fall protections systems.

The evidence

The circumstances of the accident

[5] Mr Pate was not called to give evidence. The first witness to speak to the circumstances of the accident was Scott Kerr, who was employed by the first defenders. On the morning of the accident, he was working on the site as a machine operator. Also present were his fellow employees, witnesses William Jeffrey, James Brown, Joseph Kennedy and John Gunnyon. Mr Kerr's job, he said, was to excavate a grass area to the south of the house, using a mechanical digger, which was a Caterpillar 1.5 tonne machine. In answer to a question from Miss O'Brien, he said that, while he was engaged on that task, he could see Mr Pate working on the roof. At that point, senior counsel for the first defenders, Mr Mackay QC, objected to the line of evidence, explaining that he anticipated that Mr Kerr would say that he was an eye-witness to the accident. Such evidence, argued Mr Mackay, would be inconsistent with what parties had agreed in a joint minute of admissions which was before the court, and the line was objectionable for that reason. I allowed the line to be pursued, subject to competency and relevancy, and the objection was renewed by Mr Mackay during his closing submissions. It is appropriate that I deal with the objection at this stage.

[6] The passage in the joint minute on which counsel for the first defenders relied is in the following terms:

"Number 6/8 of Process is a Factual Statement of John A. Shelton, HM Inspector of Health, Health and Safety Executive, 375 West George Street, Glasgow, G2 4LW, with attached Case Report. The contents are true and accurate, and equivalent to his oral evidence."

The factual statement reads as follows:

"I visited the domestic premises at ... Dumgoyne Drive, Bearsden, Glasgow ... on the afternoon of Thursday 23 February 2006. It had been reported to the offices of HSE earlier the same day that a worker had been injured at the site when he had fallen from the roof of the building.

I met a representative from Strathclyde Police, PC Fraser, C492, Milngavie Police Office and representatives of Stewart Homes Construction Limited ...

I also met Jim Brown, Contracts Manager who showed me to the area where he told me that the accident had occurred. I was shown to an area of a new small building extension at the rear of what was a bungalow premises. I was shown to an area in the rear yard/garden/patio where a new roof extension abutted the rear of the bungalow premises. I could see that a single run out of new build, of brick and timber framed construction, with tiled roof was in the progress (sic) of being constructed. A large opening onto the rear garden area was clad with a visqueen plastic sheeting as weather protection. Immediately below the roofline of the new extension were two trestle scaffold frames (blue painted). One of the trestle frames was positioned close to the building line at a point immediately below the gutter between the new and original roof. The second trestle was placed on a flagged patio area to the rear of the bungalow. Adjacent the trestles were building materials in the form of concrete slabs.

I measured the height of the building from ground level to lower eaves as 3m 13cm. I noted that in the lead gutter at the join between the new and original roof were a number of pieces of off-cuts of new tile and I counted some 8 or 9 of these in the gutter.

The guttering had been removed from the rear of the bungalow and a foul/down sprout had been disconnected. New timbering had been provided at the soffit and fascia.

At the rear elevation of the new extension was an independent access scaffold manufactured from Kwikstage type scaffolding components and this was set out on the grassed area to the rear of the premises. A work platform was provided at first lift and an inclined wooden ladder was tied to one stile at the open edge of the platform.

At the side elevation (driveway) two timber blue painted builders' trestles were positioned below eaves level and Kwikstage type scaffold boarding was positioned to create a temporary platform between the two trestles.

General building materials were placed in the driveway. A shelter or cabin facility was provided for the workers in the garage premises at the domestic dwelling. Temporary welfare facilities in the form of a Portaloo was provided at the site.

I took some five coloured photographs (enclosed) to illustrate the area of the roofline at the rear of the premises where was I told the injured party had fallen and the scaffolding at the rear elevation of the new extension, and the side elevation (driveway) to illustrate the builders' trestles.

I have no first hand knowledge of how this accident occurred."

The attached case report referred to in the joint minute is in, among others, these terms:

"Problem Description The IP [injured party] had told other staff that the job was done. However he fell from the roof, but no-one knows why he was up there. It is assumed that he must have forgotten something."

Under the heading "Note Summary", the report continues:

"IP likely to have returned to roof area to finish work on valley but had indicated to site manager that work completed immed prior to this and scaffold removed from below roof edge as result. (sic) No one aware IP had gone back onto roof and work appeared to have been completed."

[7] As it was developed in closing submissions, Mr Mackay's objection was to the effect that Mr Kerr's evidence contradicted what was said in the case report. As he put it, no evidence was led contradicting the material in the report except for the assertion by Mr Kerr that he was an eye-witness and that he was aware that Mr Pate had gone back on to the roof. In support of his objection, Mr Mackay referred me to B v The Authority Reporter for Edinburgh 2012 SC 23, as authority for the proposition, to be found at paragraph [14] of the opinion of the court, that "a joint minute is a form of making judicial admissions which are conclusive in a litigation." That was said under reference to The Scottish Marine Insurance Company of Glasgow v Turner (1853) 1 Macq 334 in which Lord Truro observed, at page 339:

"In the action against the insurers of this ship the jury found facts which must be coupled with other facts admitted upon the record; it being a clear principle of law that that which the parties admit by their pleadings the jury even cannot gainsay. It is not within the issue left to them".

[8] Having regard to these dicta, in my view the starting point in the process of deciding how this objection should be disposed of is to determine whether or not the evidence which Miss O'Brien sought to adduce contradicts the terms of those passages in the factual statement and case report which I have quoted. To do that, it is necessary to understand what they mean. To put it another way, what is it in these documents that is "true and accurate and equivalent to [Mr Shelton's] oral evidence"? We know from the terms of the factual statement that Mr Shelton visited Dumgoyne Drive on the afternoon of the accident. He had "no first hand knowledge of how this accident occurred". The sum of his knowledge of the circumstances of the accident came from the contracts manager, Mr Brown, and "employees also here" whom he had interviewed. According to the terms of the joint minute, the extent of the parties' agreement is that, if Mr Shelton had given oral evidence, of which the factual statement and the case report are the equivalent, he would have said that he was told that no one was aware that Mr Pate had gone back onto the roof and no one knew why he was on the roof. What the parties agreed as being true and accurate is that Mr Shelton was told these things. They did not agree that what Mr Shelton was told was true and accurate. On that analysis, in my view Mr Kerr's evidence of what he saw did not contradict the terms of the case report. Consequently, I repel Mr Mackay's objection.

[9] Mr Kerr deponed that, as he was excavating in the back yard, he could see Mr Pate on the roof, cutting tiles into the valley at the new section of roof. Mr Pate was using a Stihl saw, which Mr Kerr explained was a petrol-driven 50cc two-stroke hand held machine with a carborundum cutting disc. It made a noise, he said, like a small motorbike. It could be seen from the photographs which Mr Shelton had taken (number 6/5 of process) that the valley was what Mr Shelton describes in his factual report as "the lead gutter at the join between the new and original roof" which ran diagonally from the apex of the roof to the eaves. The new tiles nearest to the valley had to be cut in order to produce a straight line, parallel to the line of the valley. As was explained elsewhere in evidence, that could be done on the ground, before those tiles were fixed in place, or in situ, after they had been fixed. According to Mr Kerr, Mr Pate started at the top of the roof and worked his way down, moving backward holding the Stihl saw. He was on the roof for a good twenty minutes. Mr Kerr saw Mr Pate's right foot step into mid-air and he fell to the ground below. As he did so, he threw the Stihl saw away from him. Mr Brown, William Jeffrey and Joseph Kennedy then came to the scene. Mr Kerr said that there was nothing there to stop Mr Pate falling.

[10] In his closing speech, Mr Mackay urged me to reject Mr Kerr's account of the accident as incredible or at least unreliable. In support of his submission on that issue, he pointed to a number of assertions of fact made by Mr Kerr which were contradicted by other witnesses. Mr Kerr thought, for example, that the scaffolding, which had been located on the east side of the extension, had been removed the previous week. The weight of the evidence, which I accept, is that what Mr Kerr was referring to (more accurately described as a trestle construction) was moved on the morning of the accident. His recollection was that, after the fall, Mr Pate was unconscious as he lay on the ground. Other witnesses, whose evidence I prefer, spoke to Mr Pate being conscious and agitated and having to be subdued lest he cause himself further harm. Finally, by way of example, Mr Kerr testified that he had given a full account of what he had seen to Mr Shelton and Police Constable Fraser, who attended at Dumgoyne Drive after the accident. That was inconsistent with the terms of Mr Shelton's factual statement and case report, and contrary to the evidence given by the police officer, which, again I accept. In cross-examination, when he was pressed on the matter and reminded that he was under oath, Mr Kerr said that he could not say that he had told Police Constable Fraser that he had witnessed the accident. It is correct to say, as Mr Mackay submitted, that there is nothing in Mr Shelton's factual narrative or in the case report to suggest that there was an eye-witness to the accident. As I have noted in paragraph [6], there are two narratives in the case report. The first is in these terms:

The second, under the heading "Note Summary", reads:

"IP likely to have returned to roof area to finish work on valley but had indicated to site manager that work completed immed prior to this and scaffold removed from below roof edge as result. No one aware IP had gone back onto roof and work appeared to have been completed."

It was an agreed fact that number 6/7 of process was a RIDDOR report submitted in respect of the accident by the first defenders and that number 6/6 of process was one submitted by the second defender. It is clear from reading these reports that the first account in the case report was copied verbatim from what had been submitted by the second defender. He was not present when the accident happened, and there was no evidence as to the source of his information. In my view, the second account is likely to have been written by Mr Shelton, based on what he was told by Mr Brown. Although Mr Shelton records "Interviewed employees also here", I am not prepared to disbelieve Mr Kerr's evidence about what he saw on the basis of speculation as to how many employees Mr Shelton may have interviewed and in what circumstances.

[11] As I watched and listened to Mr Kerr as he gave evidence, he appeared to me to be trying his best to tell the truth. Further, I could discern no reason why he would deliberately lie about having seen Mr Pate fall. Mr Mackay did not offer any such reason. Mr Kerr said that he did not know Mr Pate, that was unchallenged, and I believed him. On the matter of reliability, Mr Kerr's recollection appeared most faulty in respect of events which he had no particular reason to remember. In my view, the inaccuracies in his evidence could all be explained by Mr Kerr's recollection of events on the day of the accident having been dimmed by the passage of time - a period of over six and a half years. By contrast, seeing Mr Pate fall from the roof is something which Mr Kerr would be expected to remember in some detail and with some clarity. Further, his account of seeing Mr Pate on the roof, trimming the tiles, is consistent with other evidence in the case which I accept as both credible and reliable. As I have noted above, Mr Shelton counted eight or nine pieces of off-cuts of new tile in the lead gutter at the join between the new and original roof. When Police Constable Fraser interviewed Mr Brown on the day of the accident, he told her that Mr. Pate was using a Stihl saw to do his work, and that they had heard a change in the tone of the saw and a cry, and had gone round and found Mr Pate lying on the patio below the roof. When he gave evidence, Mr Brown said that he had been alerted to the accident by the joiner, William Jeffrey. He said that he did not hear the Stihl saw before the accident happened, but, importantly it seems to me, when he went to where Mr Pate was lying, he saw the Stihl saw lying nearby, with the engine still running, and he "told one of the guys to turn it off". William Jeffrey told the court that, on the day of the accident he was engaged in joinery work when he heard a funny noise which he thought was the Stihl saw outside. He looked out and saw Mr Pate "on the floor". John Gunnyon became aware of the accident when he was working inside the extension. He heard a loud bang, went outside and saw Mr Pate lying there. The Stihl saw was lying there next to him, and it was Mr Gunnyon's guess that the saw was the cause of the bang he heard. When Mr Brown was asked where Mr Kerr was at the time of the accident, he replied that he was in the digger at the end of the patio, and that Mr Kerr would have been able to see Mr Pate from where he was.

[12] Having regard to Mr Kerr's s evidence which I have narrated in paragraph [9] taken together with the evidence recorded in paragraph [11], I have no difficulty in holding that the accident happened after Mr Pate went back onto the roof with the Stihl saw and when he was in the process of trimming the edges of the new tiles where they overhung the lead gutter. It is unsurprising that, according to Police Constable Fraser, Mr Brown told her that he believed that Mr Pate had gone onto the roof "to finish some trimming" and in cross-examination in the hearing before me he said that he had surmised that. Mr Brown drew that inference, according to his evidence, without the benefit of hearing Mr Kerr's account of what he saw. I would have drawn the same inference, even if I had rejected Mr Kerr's evidence that he had witnessed the accident.

[13] Mr Brown was called by the first defenders. He testified that he was 70 years of age, and that he had been a site agent, employed by the second defenders for 18 or 19 years until his retirement at the age of 65. Before that, he worked for 10 years for Mr Stewart of Kilsyth as site agent and, before that, with Johnson of Cumbernauld, for 15 to 18 years. He had served his time as a stonemason then a bricklayer and, at the age of 23, he was a site manager. In total, he spent 42 years as a site manager. He said that tiling the roof of the extension was the extent of Mr Pate's work on site. Mr Brown testified that he did not really tell him much about what he had to do - Mr Pate knew what to do as a roofer. It was for him to tile the roof as quickly as possible. Mr Pate supplied cutting materials and tools and the second defender provided the cutting saw. The first defenders provided the scaffold and an access ladder. When Mr Pate came to do the work, Mr Brown gave him men to pass the tiles to him and the tiling was done by Mr Pate on his own in one day, 22 February. Mr Brown was asked whether there was any edge protection when Mr Pate undertook the work and he responded that there was on the west side, but that, on the east side, there were metal trestles that extended to about 400mm below the roof. He later explained that there were four trestles laid along the side of the building with four planks forming a one metre wide platform from which to work. There was no handrail. The platform was not as high as the fascia, because Mr Pate needed to set the first tiles from a comfortable working height without having to bend. Mr Pate had examined the "scaffold" and said that it and its height were suitable. If he had asked for the platform to be higher, that would have been done. To the south, Mr Brown said, there was a complete scaffold, and there was edge protection on that side. The roof was low. If they had put edge protection on the east side, that would have affected Mr Pate's ability to tile the roof.

[14] Mr Brown's evidence was that, on the day of the accident, before the tea break, Mr Pate was standing on the ground at the scaffold on the south side of the extension. Mr Brown said to Mr Pate that the roof looked quite good. He asked him if he was finished and Mr Pate said "yes". Mr Brown remarked that that was good as they would able to get the scaffold down. He went to the scaffold (which I understood to be a reference to another trestle construction) on the west side, and started to take it down. He said to someone, "that's Mr Pate finished", and someone took down the scaffold (i.e. the trestles) on the east side. Mr Brown said that, after he had spoken to Mr Pate, he had no reason to suspect that the latter would go back on the roof. Mr Brown did not know that Mr Pate had gone back onto the roof until he was told that there had been an accident. He did not hear the Stihl saw while Mr Pate was on the roof. He would not have let Mr Pate use a Stihl saw on the roof because of the risk of cutting through the lead lining the valley. He expressed the view that, if the trestles had remained in place, it would have made a difference to Mr Pate because, if he had stepped off the roof, he would have landed on the platform and, instead of falling eight or nine feet, he would only have fallen 400 or 500 cm. Mr Brown's recollection was that perhaps a few minutes to a quarter of an hour passed between his speaking to Mr Pate and the accident happening. The only way Mr Pate could have accessed the roof, he said, was by the ladder serving the scaffold on the south elevation. It could be seen from Mr Shelton's photographs that the ladder was in place at the time of the accident.

[15] In cross-examination, when asked why there was no notice prohibiting access to the roof if he thought that the job was finished, Mr Brown replied that was because no one was going to go up that ladder. He said, also, that he did not think that Mr Pate would take any notice of a sign. I did not understand him to mean that he thought about putting up a sign at the time and rejected the idea for that reason, but rather that, as he stood in the witness box, that was his view. Mr Brown said that, If Mr Pate had told him that he had some cutting to do, he would have put the trestle platform up at that corner.

[16] Mr Brown was shown and was asked questions about number 7/4 of process, which was agreed by parties to be "a Risk Assessment for Work on Roofs, a Risk Assessment for Work on Scaffolds and a Roof Work Method Statement, all prepared and signed by Mr Alan Stewart and dated 12^thDecember 2005". Mr Stewart was a director of the first defenders. All three documents were prepared in respect of the Dumgoyne Drive job. Mr Brown said that he paid attention to them as much as he could. He accepted that the trestles which were at the east side of the extension did not meet the scaffold requirements as laid down in the document, but explained that they were used to allow access to attach the facia and gutters.

[17] A number of passages in the risk assessment for work on roofs are of interest. Under the side heading "Safety Information" is a reference to "Health, Safety & Regulations 1996" (sic), and to HSE publication HSG33, among others. "Falls from Heights" is cited as one of the "Main Hazards". Among the "Preventative Measures" listed are (i) adequate edge protection and (ii) "A prepared Method Statement". The risk assessment for work on scaffolds contains nothing of relevance to Mr Pate's fall from the roof, but the method statement does. It is headed "Roof Work Method Statement", and the contractor is identified as "G. O'Conner" (sic), a reference to the second defender. Included among the safety information are "Health and Safety Regulations 1996" (spelling mistake corrected) and HSG33. (The regulations are somewhat more accurately referred to in the work on scaffolds risk assessment as the "Construction Health and Safety Welfare Regulations 1996" (sic).) Under the heading "Activity", "Working on a roof" is identified as creating the "hazard" "fall from height". Against that hazard, "Control Measures or Safe Job Procedures" are specified. These include "Ensure Scaffolding is inspected and has all edge protection in place prior to commencing work". A number of the "Control Measures" are instructions to the person or persons who are to work on the roof, including Mr Pate. They include, for example, the following:

"5. Keep the soles of shoes clean.

...

8. Always maintain a minimum three point contact when climbing a ladder i.e. both hands and one foot - do not carry tools in your hands when climbing.

...

11. Roof surface to be dry - avoid wet weather when laying tiles.

12. Use dust suppression system when cutting tiles/slate and only approved personnel to operate cutting discs.

13. Keep scaffolding and roof area clean and free of trip hazards.

14. Use two pairs of shoes in damp conditions - place a pair for walking on the ground at the base of the ladder, e.g. Wellingtons for muddy conditions and suitable shoes for using the ladder to access scaffolding and roof work."

Mr Brown said that he had the responsibility to make sure that the method statement was followed.

[18] Although, in her closing submissions, Miss O'Brien asked me to find Mr Brown generally untruthful and unreliable, there were only three matters in his evidence about the circumstances leading up to the accident which were material to the issues of causation and blame. These are that: (i) he believed that Mr Pate's work on the roof was done; (ii) he instructed removal of the "scaffold" on the east elevation of the extension and (iii) he did not know that Mr Pate had gone back onto the roof. Miss O'Brien did not challenge his evidence on the first two of these, and I find these matters proved. On the third, she argued that Mr Brown's evidence that he did not hear the Stihl saw when Mr Pate was on the roof trimming the tiles ought not to be believed. He was not seen to be hard of hearing in the witness box, contended Miss O'Brien, and, looking at Mr Shelton's photographs, Mr Brown was only a few feet away from Mr Pate when he started work at the top of the valley. I am not prepared to hold that Mr Brown was lying when he gave that evidence. I noted at the time that, having regard to his demeanour and to the straightforward manner in which he answered questions, he seemed credible. Further, as Miss O'Brien herself observed, at or about the time of the accident, it is likely that there was "plenty of other noise on the site". Mr Kerr, for example, was operating the mechanical digger. When asked in cross-examination whether he heard the Stihl saw, Mr Brown said that he did not, and explained, "you shut off, there are machines going but you don't hear them, you shut off to that". It is quite likely, in my opinion, that, although the noise of the Stihl saw was audible to Mr Brown, it did not register in his consciousness.

Expert evidence

[19] One expert witness gave evidence. Stuart Walker was called by the pursuer and spoke to number 6/12 of process, which is a report, dated 12 July 2012, prepared by him. Having graduated as a chemist in 1972, Mr Walker carried out post-graduate research on occupational and environmental carcinogens between 1972 and 1975, after which he gained a postgraduate diploma in occupational safety and health, and worked for the Health & Safety Executive as an inspector of health and safety from 1977 until 1991. From 1991 until 1996, he was regional health and safety adviser to Highland Regional Council, where he was involved in developing and implementing health and safety management systems and coordinating, developing and delivering health and safety training. Since 1996, he has practised as an independent occupational health & safety management consultant. Although Mr Walker was well enough qualified to give expert evidence about the circumstances of this accident, I found his report to be of limited assistance. It covers both narratives on record of the events leading up to Mr Pate's fall. They are described as "Version 1" and "Version 2". By the time that he was called to give evidence, Version 2 had been departed from. The only conclusions in his report which are relevant to Version 1 are the following:

"vii. Two sides of the extension are shown without edge protection along the roof edge. Access to, and working on the roof in the condition illustrated would present a risk of falling and injury and such work would, in the absence of alternative protection, be contrary to the Work at Height Regulations 2005"

[20] There is no discussion in his report of the applicability of any regulations other than those of 2005, nor is any consideration given to the implications of regulations 3(2)(b) or 14, the terms of which I consider below. Further, when cross-examined rigorously on the subject of these regulations and the absence of any reference to them in his report, Mr Walker conceded that, when Mr Pate reported to Mr Brown that the roof works were completed, the first defenders' obligations to him under the 2005 Regulations "disappeared". For reasons which I give later in this opinion, I am of the view that the concession, which was, in any event, on a matter of law, was wrongly made.

[21] Mr Walker spoke to two HSE publications which were productions. These are number 6/13 of process, "Working on Roofs" and 6/14 of process, "Health & Safety in Roof Work". The latter is HSG33, which is referred in the first defenders' work on roofs risk assessment, part of number 7/4 of process, under the safety information heading. Mr Walker referenced the first of these in his report, in the following passage:

"Falls from roofs had long been an area of concern, and Guidance has been produced that outlines practical and acceptable means of protection. These broadly divide into two categories -

Edge protection - so that a slide or fall down the sloping area of the roof is arrested before anyone drops off the edge onto the ground below, either with protection fitted directly onto the roof edge or located immediately adjacent to it, or by means of a subsidiary platform constructed e.g. by scaffolding, close by the edge that will contain any fall off the roof

Modifying the level of security provided by and on the sloping area by means of a proper roof ladder or other device or arrangement so that secure foothold and handhold is provided, sufficiently adaptable to allow work or inspection to take place

Edge protection would normally be the preferred method of protection during prolonged spells of working e.g. during a construction phase and the use of roof ladders or similar would normally be the method of work for relatively short term working e.g. repair, or inspection.

It is considered that during the construction phase protection should have been provided by means of a suitably constructed and deployed scaffold platform. If minor work was identified after the main construction phase had been completed and after any scaffolding had been removed then it is considered that adequate alternative arrangements for safe access should have been provided e.g. a secure access ladder onto the roof and a properly deployed roof ladder to provide access up the roof."

[22] In cross-examination, Mr Walker denied that he had been partial and had failed in his duty to the court by not considering in his report whether the requirements imposed on an employer by the 2005 regulations applied in relation to the work being done by Mr Pate at the time of the accident. Listening to the exchange between Mr Mackay and Mr Walker, I took the view that Mr Walker had simply not thought about it, rather than that he was attempting to assist the pursuer's case.

[23] In cross-examination, Mr Walker was asked a number of questions which were directed towards the argument that the accident was caused or at least contributed to by Mr Pate's own negligence and breach of statutory duty. He said that, from the documents provided to him, he took Mr Pate to be a reasonably experienced and competent roofer. Mr Walker agreed that it would have been obvious to Mr Pate that there was no scaffold protection and that, in going onto the roof, he should have been aware of the risks that he incurred because it was obvious that there was a risk of falling. He also agreed that, whilst going onto the roof with no edge protection gave rise to risk, using a Stihl saw gave rise to a high degree of risk.

The parties' submissions on primary liability

[24] At the conclusion of the evidence, both counsel provided me with the text of their submissions in hard copy and electronic form. I am grateful to them for

doing so.

The pursuer

[25] Miss O'Brien submitted that the existence of a duty of care to workmen on a building site (whether employees or not) is not contentious, and argued that the first defenders as the main contractors had a sufficient degree of control of the site to owe that duty of care to Mr Pate. As evidence in support of that submission, she pointed to the terms of number 7/4 of process and, in particular, to the method statement, which explicitly mentions the second defender, the person who brought Mr Pate on to the job. She anticipated that Mr Mackay would argue that the duty of care ended with the conversation between Mr Pate and Mr Brown, to the effect that the roof work was finished, and submitted that it was incumbent on the first defenders to provide authority for what she described as the novel proposition that a casual conversation in the middle of a busy working day should put an end to an otherwise obvious duty of care. It was, she contended, foreseeable to any reasonable employer or contractor (if not to Mr Brown as an individual) that a roofer would go back on the roof to sort out some small defect. However, and separately, foreseeability arises because, on the facts, this was a construction site where work was far from completed, and where various workmen were on site with various jobs. Anyone could have gone up to the roof for a purpose not connected with his own work and, in any event, it was foreseeable that someone would go up to retrieve a tool, or later to inspect the works done. Access to the roof was facilitated by the ladder which remained in place, and it was foreseeable that someone would use the ladder to go up to the roof, and once there that such person would be at risk of falling. She further submitted that the difficulty that first defenders face in arguing that the accident happened as a result of Mr Pate's failure to tell Mr Brown that he was going back up to the roof is that the roof was never a made safe for work at height.

[26] Miss O'Brien expressly departed from a res ipsa loquitur case that was pleaded by the pursuer, and moved on to invite me to consider the common law case of fault on record. She submitted that, although Mr Pate was not an employee, the duties to take reasonable care to devise and maintain a safe system of work, to provide a safe place of work, and to provide safe plant and equipment extended to the employees of contractors where the first defenders assumed a duty of coordinating the work. I was referred to McArdle v Andmac Roofing Co and Others [1967] 1 WLR 356. On the facts, Miss O'Brien contended, these duties were incumbent on the first defenders in this case. They failed to assess the precise task of trimming in advance, and thus they failed to apply their mind to a safe system. The place of work, namely the roof, was not safe, and the plant and equipment (namely the trestle) was largely dismantled (and therefore not safe, and had never been safe), so that the failures in these respects caused the fall and the injuries. Although not seeking to found on the provisions of the 1999 regulations, Miss O'Brien submitted that there was a failure to carry out a suitable and sufficient risk assessment for the roof work and that such failure went to a common law failure to take reasonable care to devise and maintain a safe system of work.

[27] Turning to her statutory cases, Miss O'Brien contended that the accident was caused by the first defenders' breach of the statutory duties identified on record. She submitted that the manner of the breaches of these provisions was as follows:

The 1996 regulations, 5(2) and 5(3): the roof was a place of work and (i) it was not made and kept safe for Mr Pate working there and (ii) no suitable and sufficient steps were taken to ensure that no person gained access to any place which did not comply with the requirements of paragraph (2);

The 1998 regulations: the trestle at the east side of the extension, where Mr Pate fell, was incomplete and, therefore, not "suitable";

The 2005 regulations: the work at height was not properly planned, appropriately supervised or carried out in a manner which was safe; no suitable and sufficient measures were taken to prevent Mr Pate falling a distance liable to cause personal injury; there was no sufficient means of protection.

Many of the provisions which were relied on by Miss O'Brien have a reasonable practicability qualification, but, as she observed, no reasonable practicability defence is tabled in this case.

[28] Miss O'Brien anticipated that the first defenders would argue that they did not have control over Mr Pate and, therefore, not being his employers, they had no duty in respect of him. She submitted that the extent of the first defenders' control was established by: the risk assessment; Mr Brown's own evidence that he would have told Mr Pate to come down if he had heard the Stihl saw; and by the fact that the provision of the trestles and their removal were in the first defenders' control. On that issue, she referred me to McCook v Aloysius Lobo 2002 EWCA Civ 1760; Duncan v Acrabuild Ltd 2008 (the Lawtel transcript of this judgment does not give the neutral citation), Kmiecic v Isaacs [2011] ICR 1269 and Tafa v Matsim Properties 2011 EWHC 1302 (QB) at paragraphs 60 to 64. With reference the first defenders' averment on record, that the tile trimming work in which Mr Pate was engaged was "short duration work and a scaffold was not required", she submitted that the HSE Guidance (number 6/13 of process) makes it clear that this refers to work lasting "only minutes". She contended that Mr Pate was doing something which was integral to the whole job, which had been risk assessed in toto (albeit badly), in number 7/4 of process.

[29] On the question whether any duty that the first defenders may have owed to Mr Pate was terminated once he said to Mr Brown that the job was finished, Miss O'Brien submitted that liability in terms of the 2005 regulations lasted as long as any work was taking place at height, and indeed longer. The regulations do not impose duties on employers when they know that something is happening, she argued. It is possible for them to be liable when they did not know that work was being done at all. The employer is deemed to know. Actual knowledge is irrelevant, she contended, and the knowledge of one particular employee such as Mr Brown is "absolutely irrelevant". The regulations impose duties whenever work is taking place at height. The key obligations are mandatory, and they do not depend on knowledge or working hours or any other qualification. It is clear that the duties start before a person works at height: regulation 6 requires every employer to take account of a risk assessment under regulation 3 of the Management Regulations and regulation 7 imposes duties on employers in the selection of work equipment in advance of the work starting, and a risk assessment must be carried out. Further, argued Miss O'Brien, employers' duties continue after the work at height stops in certain situations. In that regard she referred me to paragraph 11 of schedule 3 to the 2005 regulations, which deals with the dismantling of scaffolds and the need for warning signs when not in use "preventing access to the danger zone". Moreover, said Miss O'Brien, the particular place involving work at height was still a busy construction site. Consequently, the work at height affected by the regulations was not "finished", in the sense that the first defenders' duty to adhere to the regulations ceased, until the construction work as a whole had ceased, and the site had been tidied, and vacated by the contractors. The requirement to ensure that a danger area is kept inaccessible shows that the intention is not only to regulate the currently ongoing work, but also to regulate the dangers inherent in a risk of falling, even when a site lies idle. In that connection I was referred to regulation 11.

[30] Miss O'Brien argued that, in any event, as soon as the order was given to dismantle the trestles, the access to the roof should have been barred. There was no need for immediate dismantling of the scaffold on the south side. All that was needed was what was required by the regulations, namely a warning notice ("No entry" or "No access" or whatever) to be affixed to the ladder. Alternatively, the ladder should have been roped off or taken away. The purpose of the regulations is to guard against the unexpected - such as a workman who goes up to fetch a tool.

[31] Miss O'Brien contended, further, that when Mr Pate went onto the roof and started using the Stihl saw, it was Mr Brown's duty to stop him and to call him down, because it was not safe to do the job. He understood that he had a duty to stop someone in those circumstances, but he thought that was to protect the integrity of the roof rather than of the workman. There can be no doubt that he had sufficient control over Mr Pate to do so.

The first defenders

[32] The first defenders' general position was that the pursuer had failed to establish both his common law case and his statutory case. Even if he had established any breach, Mr Mackay argued, he had failed to prove any causal connection between such breach and Mr Pate's falling off the roof valley, as opposed to the scaffold. Many of the pursuer's submissions were predicated on the premise that the trimming was a separate and distinct part of the roofing works. Mr Mackay submitted that the unchallenged evidence of both Mr Walker and Mr Brown was that it was or formed part of the roofing works.

[33] Mr Mackay contended that, if these main propositions were rejected, the accident was solely caused by Mr Pate's own fault. If liability required to be apportioned, any breaches by the first defenders were minor or technical in the circumstances, and the overwhelming cause was Mr Pate's reckless actions. Consequently, contended Mr Mackay, Mr Pate should carry the major proportion of fault. In response to the submission that Mr Brown should have instructed Mr Pate not to work on the roof after the removal of scaffolding and to come down once he was up there, Mr Mackay argued that there was no evidence that this alleged common law duty was incumbent on Mr Brown in the circumstances of an experienced workman who has said that his work was completed and where Mr Brown had no knowledge that he was on the roof.

[34] Turning to the statutory breaches which the pursuer avers, Mr Mackay submitted that regulation 4(1) of the 1996 regulations provides that they apply to persons insofar as they affect him or any person at work under his control. Control ended when Mr Pate informed Mr Brown that the works had been completed. In any event, regulation 5 relates to "places of work". The roof ceased to be a place of work, said Mr Mackay, "when all the roof works had been completed so far as was known." Regulation 5(3) refers to "any place" but refers back to regulation 5(1) or 5(2) which relate to "places of work".

[35] In response to the pursuer's case under the 2005 regulations, Mr Mackay founded on the provision that the requirements imposed by these regulations on an employer shall apply in relation to work by an employee of his or "by any other person under his control, to the extent of his control". (Regulation 3(2)) He submitted that the pursuer had failed to prove that the first defenders had any control over Mr Pate at the time of the accident, thus the obligations under the regulations did not apply. In particular: work on the roof had been completed; there was no reason for Mr Brown to anticipate that Mr Pate (or any other employee) would work at height, because the roof had been completed; and Mr Pate did not advise Mr Brown that he intended to work at height. If Mr Pate had so advised Mr Brown, the latter could have devised and implemented safety precautions.

Discussion on liability

The 1996 regulations

[36] The 1996 regulations came into force on 2 September of that year and were superseded on 6 April 2007 by the Construction (Design and Management) Regulations 2007. As I have noted above, it is submitted on behalf of the pursuer that the first defenders were in breach of regulations 5(2) and (3). For the sake of convenience, I repeat the terms of these regulations here:

"(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.

[37] In order to establish a breach of regulation 5(2), in my opinion the pursuer would have to demonstrate that, at the material time:

the roof was a "place of work";

Mr Pate was "at work there"; and

the roof was not "made and kept safe for" Mr Pate.

"Place of work" is defined as "any place which is used by any person at work for the purposes of construction work or for the purposes of any activity arising out of or in connection with construction work". (Regulation 2(1)) To borrow the words of Lord Nimmo Smith, "(t)he definition is couched in factual terms which are unqualified by the existence of any state of knowledge or reasonable foreseeability". (Williams v Farne Salmon & Trout Ltd 1998 SLT 1329, 1333) (His Lordship was referring to a different statutory definition, but the characterisation of the draftsman's language is nonetheless apt here.) It was not disputed that, immediately before he fell, Mr Pate was working on the roof and that the work that he was engaged in was construction work. Both parties submitted that the job of trimming was, in Mr Mackay's words, "part of the roofing works", and I agree. Consequently, in my judgment, the roof was a place of work, within the meaning of the regulations.

[38] The 1996 regulations were made in the exercise of powers conferred by certain provisions of the Health and Safety at Work etc. Act 1974. Section 52(1) of that Act provides that "an employee is at work throughout the time when he is in the course of his employment, but not otherwise" and "a self-employed person is at work throughout such time as he devotes to work as a self-employed person" and, subject to subsection 2, the expression "at work", in whatever context, is to be construed accordingly. Subsection 2 provides that the meaning of "at work" may be extended by regulations, but that has not been done in the case of the 1996 regulations. I am of opinion that, at the material time, Mr Pate was "at work". Whilst his status was not clearly established in the evidence, he was without doubt either employed or self-employed, and was carrying out the work which he was appointed to do.

[39] It is to be noticed that, according to its terms, regulation 5 does not seek to identify the person whose duty it is to comply with its provisions. The regulation is phrased entirely passively: a place of work is to be "made and kept safe" (5(2)) and "steps are to be taken" to bar access to an unsafe place of work (5(3)), but the regulations do not tell us by whom. To learn that, it is necessary to look at regulation 4, which provides as follows:

"(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.

(3) Subject to paragraph (5), it shall be the duty of every employee carrying out construction work to comply with the requirements of these Regulations insofar as they relate to the performance of or the refraining from an act by him.

..."

[40] I reject Mr Mackay's submission that the first defenders were not bound to comply with these regulations at the time of accident, because control of Mr Pate ended when he informed Mr Brown that the works had been completed.

[41] Regulation 4(1) performs two principal functions. It identifies those persons whose duty it is to comply with the provisions of the regulations: they are employers whose employees are carrying out construction work and self-employed persons carrying out construction work. It is accepted by the first defenders that their employees were carrying out construction work when Mr Pate fell from the roof. The regulation also delineates the scope of the duty to comply: an employer or self-employed person must comply with the provisions of the regulations insofar as they affect (i) him, or (ii) any person at work under his control; further, each must also comply with the provisions (iii) insofar as they relate to matters within his control. In my view, in the circumstances of this case, regulation 4(1) gives rise to not one but two questions involving control, which must be addressed. The first is whether or not Mr Pate was a "person at work under (the) control" of the first defenders. I have already held that Mr Pate was a person at work. The first question narrows, therefore, to become whether or not Mr Pate was under the control of the first defenders at the material time. The second question is whether or not regulations 5(2) and 5(3) relate to matters which were within the first defenders' control.

[42] Whether or not a person at work is under the control of another is, in my opinion, a question of fact. In McCook v Lobo and others [2003] ICR 89, a building owner engaged a building contractor to convert his premises. During the course of the work, an employee of the contractor fell from a ladder and was injured. He sued the owner and the contractor for damages. He claimed that the owner controlled the way in which he was carrying out the construction work and, therefore, that it was the owner's duty, in terms of regulation 4(2), to comply with the requirements of the 1996 regulations. At first instance, the judge held that the owner did not have control over the way the claimant carried out his work. The employee appealed. In expressing the view that the appeal should be dismissed, Judge LJ, with whom Pill and Hale LJJ agreed, said this:

"16 ... someone who is not an employer may also be bound by the statutory obligation under regulation 4(2). Whether the appropriate level of control over the work is or should be exercised by an individual other than an employer so as to create the duty to comply with the obligations under regulation 4(2) is, in my judgment, a question of fact."

In agreeing that the appeal should be dismissed, Hale LJ said this:

"28 Regulation 4(2) of the 1996 Regulations to my mind depends entirely on the question of factual control. Of course if a person has factual control and chooses not to exercise it, they cannot thereby escape liability. But there will still be the question of fact as to whether such control exists."

It will be borne in mind that the difference between the terms of regulation 4(2), which was under consideration in McCook, and the provisions of regulation 4(1), which I am at present discussing, is that, as Judge LJ recognised, regulation 4(2) is concerned with the imposition of a duty on "someone who is not an employer". Notwithstanding that difference, in my view there can be no reason why the question of control should be determined any differently for the purposes of regulation 4(1) than for regulation 4(2). Not only do I respectfully agree that the issue is one of fact, but I also agree that the existence of control and the exercise of control are separate and distinct.

[43] In my view, when Mr Pate was at work on the roof on 22 February, the day before the accident, he was clearly under the control of the first defenders. In terms of the roof work method statement, the roofer was directed to keep the soles of his shoes clean, to maintain three points of contact when climbing a ladder, to avoid wet weather when laying tiles, to use a dust suppression system when cutting tiles, and to wear suitable shoes for using the ladder to access scaffolding and roof work in damp conditions. Having regard to the terms of the method statement, all of these control measures and safe job procedures were intended by the first defenders to be complied with to avoid the hazard of a fall from height, and to meet their obligations under the 1996 regulations. Further, in my opinion, it is clear that the first defenders intended that, at all times when Mr Pate was at work, he should comply with the requirements of the method statement. I accept Mr Brown's evidence that he had the method statement and that he paid some attention to it. It was not established in evidence whether or not it was ever given or shown to Mr Pate. If it was, that was an exercise of the control that the first defenders had over him. If it was not, that was because, as Hale LJ might put it, the first defenders chose not to exercise the control that they had. They cannot, however, thereby escape liability.

[44] When Mr Pate went back onto the roof on 23 February to trim the tiles, the method statement remained in place. Further, had Mr Brown been aware that Mr Pate was using the Stihl saw he would have asked him to come down. Whilst that would not have been for a safety-related reason, as it should have been, it demonstrates that the first defenders had control over Mr Pate. In my opinion, the fact that Mr Brown may have believed that Mr Pate's work on the roof was finished does not impact on the fact that, when he was at work on 23 February, Mr Pate remained under the control of the first defenders. Accordingly, it was their duty to comply with the provisions of the 1996 regulations insofar as they affected Mr Pate, and, in particular, with the provisions of regulations 5(2) and 5(3). Further, in my opinion, the safety of the roof as his place of work clearly affected Mr Pate, as did his being prevented from gaining access to the roof while it did not comply with the requirements of regulation 5(2).

[45] Since, whether the first defenders had control over Mr Pate is, as I have held, a question of fact to be determined objectively on the evidence, I reject the pursuer's argument that liability under the 1996 regulations attaches to employers when work is being carried out because they have "deemed knowledge" of it.

[46] As I have recorded earlier in this opinion, Mr Brown was asked about his working relationship with Mr Pate. He said that Mr Pate would know what to do as a roofer, and that he did not give him instructions except to get the roof tiled as quickly as possible. I accept that evidence as being an accurate description of how Mr Brown regarded his relationship with Mr Pate, but it betrays ignorance of what the first defenders' responsibilities were in terms of the method statement and the relevant regulations.

[47] I have mentioned that, in addition to McCook, the cases of Duncan v Acrabuild Ltd, Kmiecic v Isaacs and Tafa v Matsim Properties Limited were cited to me. In Kmiecic, it was held that an occupier exercising her right to control access to and from her premises by workmen undertaking repairs to the premises did not thereby have control over the workmen or control over the construction work so as to incur an obligation, under regulation 4(2) of the 1996 regulations or under regulation 3(3) of 2005 regulations, to ensure the safety of the workmen at work. Duncan and Tafa were also regulation 4(2) cases, in each of which the judge determined the issue of control by applying the approach set out in McCook, quoted in paragraph [42], to the facts of the case.

[48] I said in paragraph [41] that the terms of regulation 4(1) raise two questions which fall to be determined in the circumstances of this case. I have, so far, been addressing the first. The second question is whether the provisions of regulations 5(2) and 5(3) "relate to matters which (were) within (the first defenders') control". If so, the first defenders had a duty to comply with them "insofar" as they did so relate. The matters to which these provisions relate are (i) the safety of workplaces (regulation 5(2)) and (ii) the prevention of access to unsafe workplaces (regulation 5(3)).

[49] Turning to the events of 23 February 2006, I have already held that the roof was a place where Mr Pate was at work. I hold also, on the evidence, that the safety of the roof as a place of work was a matter which was within the first defenders' control. That fact is demonstrated by the terms of their risk assessments and method statement (number 7/4 of process). The first defenders identified falls from height as among the main hazards associated with the roof works, and specified that scaffolds and edge protection were to be provided. The "Work on Scaffolds" risk assessment also identified falls from height as a hazard, and stipulated a number of control measures, all of which concerned scaffolding.

[50] On the evidence, it was the first defenders, and they alone, who controlled access to the roof during the roof works. Consequently, in my opinion, the taking of suitable and sufficient steps to ensure that no person gained access to the roof, while it was a place which did not comply with the requirements of regulation 5(2), was also a matter within the first defenders' control.

[51] Put shortly, it was the first defenders' duty to comply with regulations 5(2) and 5(3), because they controlled the safety of the roof and the means of access to it.

[52] I pause here to note that it must follow from the terms of regulation 5(3) that a place can be "a place of work" within the meaning of the regulations, even when there is no person there. That is because regulation 5(3) envisages that regulation 5(2) may not be complied with and, consequently, a place of work may not be safe. If regulation 5(3) is complied with, no one can gain access to that place of work and, therefore, there will be no person at that place. In my opinion, whether or not a place is a place of work when no one is there must be a question of fact, to be determined objectively having regard to the facts and circumstances of the particular case, rather than by reference to someone's state of mind. The relevant facts in this case are that: the roof was a place of work on 22 February while Mr Pate was laying the tiles; it remained a place of work overnight, because he still had to trim the tiles; and when Mr Pate was standing on the ground on the south side of the extension speaking to Mr Brown on the morning of 23 February, the roof continued to be a place of work for the same reason.

[53] Having held that, at the time of the accident, the first defenders were under a duty to comply with regulations 5(2) and 5(3), I hold, on the evidence, that they did not make the roof safe for Mr Pate working there. That is self-evidently so: nothing had been done to prevent or mitigate the consequences of his fall. The first defenders failed to ensure that Mr Pate did not gain access to the roof. I hold also, because it is self-evident, that the first defenders' breaches of these regulations caused Mr Pate's injuries. It will be appreciated that, on the foregoing analysis, the first defenders owed Mr Pate a duty to comply with regulations 5(2) and 5(3) even if they had no control over him when he was trimming the tiles, because these regulations related to matters which were within their control.

[54] The first defenders' averments on record might cause the reader to understand that the roof had been a safe place of work but, in consequence of things done only because Mr Pate said that his work was finished, the roof became a place of work which did not comply with regulation 5(2). These averments are:

"Acting on the pursuer's indication that the roof was complete the first defenders started to take down the scaffolding. The scaffolding on the east side of the extension was dismantled and removed. The pursuer was found lying on the east side of the extension where the scaffolding had been removed."

[55] As I have noted earlier in this opinion, what was dismantled was not scaffolding, but a trestle construction. It afforded no edge protection. Its removal did not convert what had been a safe place of work into a place of work that was no longer regulation 5(2) compliant.

The 2005 regulations

[56] At one point during the evidence, Miss O'Brien took objection to a line of evidence being led by Mr Mackay, which suggested to her that he would argue that the 2005 regulations did not apply to the first defenders. Having heard argument, I allowed the line, subject to competency and relevancy, and the objection was renewed in submissions.

[57] In answer to the pursuer's averment that Mr Pate's claim is based on the first defenders' breach of their statutory obligations in terms of the various regulations specified by the pursuer, the first defenders make a general denial and assert that the accident was caused or materially contributed to by the fault and negligence of the pursuer. Miss O'Brien submitted that, if the first defenders wished to argue that the regulations did not apply to them, a bare denial was insufficient to give fair notice of that defence: it was incumbent on them to plead that in terms. In support of that objection, she cited McNaught v British Railways Board 1979 SLT (N) 99.

[58] The nature and disposal of the objection in McNaught, which was an objection to a line of argument, not a line of questioning, can be seen from the following extract from the opinion of the Lord Ordinary:

"Counsel for the defenders ... at the conclusion of the proof ... took the point that the pursuer had failed to establish that the Railway Clauses Consolidation (Scotland) Act 1845 applied to this particular railway. This was, as far as I was aware, the first indication in the whole case that the matter of applicability of the Act might be in dispute. Counsel reminded me however that he had taken from one of the defenders' witnesses an observation that the railway was built in the period 1830 to 1840. Counsel founded upon the preamble to the 1845 Act wherein it is stated that 'the provisions of this Act shall apply to every railway in Scotland which shall by any Act which shall hereafter be passed be authorised to be constructed, and this Act shall be incorporated with such Act. There is further provision about express variations and exceptions in such railway Acts but I did not understand counsel to make any point on this provision. His general proposition was that there was an onus on the pursuer to show that this particular railway line was constructed under a statute passed after 1845. Any litigant is, of course, entitled to avail himself of such advantage as may be gained from a gap in his opponent's proof. My view, however, of the whole averments of the defenders in this case is that on a reasonable reading they must be held to have accepted the applicability of the statutory provision pleaded against them. Their case is not that s. 60 of the 1845 Act did not create a statutory duty incumbent upon them. Their case is that the cattle did not stray directly from the pursuer's field onto the railway but strayed via the property of another owner and thereafter through an open level-crossing gate. This case, if established, would show that s. 60 of the 1845 Act was not breached. On a narrower point of pleading, I consider that a reference to a particular statute for its terms and an averment that the defenders performed all statutory duties incumbent upon them, must, in the absence of a positive averment that the particular statute did not apply, or other words clearly implying its non-application, constitute an admission that the statutory duties incumbent upon them included those created by that particular statute. I do not consider that the position is in any way changed by the inclusion in the defenders' answer of the words 'Quoad ultra denied'. There are hundreds if not thousands of statutory duties incumbent upon the British Railways Board. Of these, only one was of interest to the pursuer who pleaded that the defenders were in breach of s. 60 of the 1845 Act. If the defenders were going to claim that that section of that Act did not apply to the railway line in question they could easily have said so in terms. It was of no interest to the pursuer, or conceivable relevance to the case he pleaded, that the defenders had performed all statutory duties incumbent upon them if these duties did not include that imposed by s. 60 of the 1845 Act."

[59] In my opinion, the circumstances which gave rise to the perceived problem for the pursuer in McNaught are quite distinct from the context in which objection was taken in this case. As I understand it, the only statutory case pleaded against the British Railways Board was that they had breached section 60 of the 1845 Act. The position that the defenders sought to argue was that the railway line was built before the Act came into force, and that, for that reason, it did not apply to them. The date of construction was a factual matter, which was not pleaded. To refer to the provision relied on by the pursuer, and aver that the defenders performed all statutory duties incumbent upon them, when their underlying position was that the statute did not apply to them at all is, in my view, highly misleading. In this case, the first defenders' position on the applicability of the 2005 regulations is not that they had no duties under the 2005 provisions but that, since Mr Pate was not their employee, they only owed him a duty to comply with these regulations (i) if he was under their control and (ii) to the extent of their control. It appears to me that the first defenders have pleaded all the facts necessary to advance that argument. After narrating the discussion between Mr Pate and Mr Brown, the first defenders continue:

"He did not inform the first defenders that he required to obtain access to the roof for any reason. The first defenders were thus unaware that he would attempt to go back on to the roof. It is not known why the pursuer went back up onto the roof after finishing the roofing works. There was no reason for him to go back on the roof after the scaffolding had been removed from the east side."

The pursuer knew that Mr Pate was not the first defenders' employee. It was for him to establish the necessary control and its extent, and the first defenders had pleaded everything on record that was necessary to give fair notice of the facts on which they might rely to argue absence of control. Accordingly, I repel Miss O'Brien's objection.

Regulation 6(2)

[60] The 2005 regulations came into force on 6 April 2005. Regulation 6 is headed "Avoidance of risks from work at height". Regulation 6(2) provides that 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. "Work at height" is defined as "work in any place ... where, if measures required by these Regulations were not taken, a person could fall a distance liable to cause personal injury". I find as a fact that the roof was a place where, if measures required by the 2005 regulations were not taken, a person could fall a distance liable to cause personal injury.

[61] In cross-examination, Mr Walker agreed with the following propositions put to him by Mr Mackay: when Mr Pate went back onto the roof to trim the valley tiles there was an obvious risk of his falling from the roof; using a Stihl saw to trim the tiles increased the risk; trimming can be done on the ground before fitting; that is the usual and preferred method. I accept Mr Walker's evidence on these matters. That evidence was elicited from him in the context of a suggestion, with which Mr Walker agreed, that Mr Pate took an obvious risk when he went onto the roof to trim the tiles with the Stihl saw. I will deal with the extent of Mr Pate's responsibility for the accident in due course but, on the question of the first defenders' responsibility, regulation 6(2) is unequivocal in placing on the employer the duty to ensure that work is not carried out at height where it is reasonably practicable to do otherwise. As I have noted earlier in this opinion, the requirements imposed on an employer by the 2005 regulations apply in relation to work by an employee of his or "by any other person under his control, to the extent of his control". (Regulation 3(2)) The question to be determined in respect of the application of regulation 6(2) is whether or not the first defenders had control over Mr Pate to the extent of being able to require that the valley tiles were cut safely otherwise than at height. Having regard to the whole circumstances in which Mr Pate came to do the tiling of the roof, I have no difficulty in holding that he was under the control of the first defenders to that extent.

[62] I have earlier recorded that, in their "Work on Roofs" risk assessment, the first defenders correctly identified that falls from height were among the main hazards. The risk assessment required a method statement to be prepared as a preventative measure. In the method statement, the first defenders laid down detailed control measures and safe job procedures to direct the way in which those working on the roof were to go about their task. The method statement contained instructions addressed specifically to the person or persons carrying out tiling work. Such person or persons were required to avoid wet weather when laying tiles and to use a dust suppression system when cutting tiles. Only approved personnel were to operate cutting discs. Mr Brown considered that he had the power to require Mr Pate not to trim the tiles with the Stihl saw, when they were in place, albeit that he did not appear to have considered the safety implications of the tiles being cut while in place. In my judgment, as a matter of fact, Mr Pate was under the control of the first defenders to the extent that they could require him to cut the valley tiles on the ground. They did not do so, and were in breach of regulation 6(2). Had the first defenders complied with the duty imposed on them by regulation 6(2), and if, as a result, the tiles had been trimmed on the ground, the accident would not have happened.

[63] It will be appreciated that, in holding that the first defenders were in breach of regulation 6(2), it has been unnecessary to for me to consider whether or not Mr Pate's work was under the control of the first defenders when he fell from the roof because, if the first defenders had ensured that the valley tiles were trimmed on the ground, there would have been no trimming to do after the laying of the roof tiles was complete.

Regulation 6(3)

[64] Much of the argument in closing submissions focused on the issue of whether Mr Pate was under the control of the first defenders when he went back up on the roof on 23 February at the time when Mr Brown believed that the job was finished. I reject Mr Mackay's submission, under reference to regulation 3(2)(b), that the pursuer has failed to prove that there was any control at the time of the accident and, therefore, that, as Mr Mackay put it, all statutory duties regarding work at height ceased to apply.

[65] In explaining my reasons for so deciding, it is helpful to consider whether, on 22 February, the requirements imposed by the 2005 regulations applied in relation to Mr Pate's work on the roof. On that date, in my view, and for the reasons that I have given in paragraph [43] of this opinion, Mr Pate was at work under the control of the first defenders. They could prohibit his accessing the roof while it was unsafe. They could, and did, issue instructions on safety measures to be taken by roofers while at work, for the prevention of falls from height. Consequently, in my judgment, the requirements imposed on the first defenders by the 2005 regulations applied in relation to the work carried out by Mr Pate. I have found as a fact that, while he was working on the roof, he was working at height within the meaning of the regulations. (Regulation 2(1)) It was the first defenders' duty, therefore, to "take suitable and sufficient measures to prevent, so far as is reasonably practicable, any person falling a distance liable to cause personal injury". (Regulation 6(3)) On the evidence, I hold that the first defenders failed to comply with that duty on 22 February.

[66] On 23 February, Mr Pate was again working at height, within the meaning of the regulations. I have already held that Mr Pate remained "under the control" of the first defenders on that day. (Paragraph [44]) Further, for the reasons I have given, the extent of the first defenders' control remained the same on 23 February as it had been on the previous day. (Paragraph [44]) The duties which were incumbent on the first defenders on 22 February remained so, therefore, on 23 February. It is clear to me on the evidence that the first defenders failed to comply with these duties on 23 February. I do not understand it to be the first defenders' position that, if the requirements imposed by the 2005 regulations applied in relation to the trimming work being done by Mr Pate when he fell, regulation 6(3) was complied with. In my opinion, Mr Pate's fall was caused by the breach by the first defenders of their duties under the provisions of regulation 6(3).

[67] As recorded above, the pursuer avers breaches by the first defenders of a number of other 2005 regulations. For the reasons which have led me to hold that regulations 6(2) and 6(3) were breached, I hold that regulations 4(1)(a) and (c) were also breached. That is because, if the first defenders had ensured that the work was properly planned and carried out in a manner which was safe, the tiles would have been cut on the ground. I make no finding in respect of regulation 5, because I was not addressed on it. Having found that the first defenders breached regulation 6(3) it is unnecessary for me to consider the provisions of regulation 6 which follow, because they specify the detailed means by which the requirements of 6(3) are to be met. It is also unnecessary for me to make findings in respect of regulations 8 ("requirements for particular work equipment"), 12 or 13 (inspection requirements), because the direct cause of the accident was the first defenders' breaches of the regulations that I have held were breached.

[68] In her closing submissions, Miss O'Brien pointed out that the first defenders aver on record that, on either of the two accounts of the circumstances of the accident narrated by the pursuer, "such work was of "short duration" and a scaffold was not required". Given that, as I have noted in paragraph [32], Mr Mackay's position in argument was that trimming was or formed part of the roofing works, and was not a separate and distinct part, I took him to have departed from what was averred on record. He certainly did not seek to rely on it during his closing submissions. In any event, it is clear that the length of duration of work at height is a relevant consideration only in the context of the determination of what safety measures are reasonably practicable when work at height is to be undertaken. In the publication "Work on Roofs" (number 6/13 of process), for example, the following advice is give:

"Short-duration work means tasks that are measured in minutes rather than hours. It includes such jobs as replacing a few tiles or adjusting a television aerial. Work on a roof is still dangerous even if it only lasts a short time. Appropriate safety measures are essential. For short-duration work it may not be reasonably practicable to provide full edge protection (but if it is it should be provided). This does not mean that nothing needs to be provided in its place. The minimum requirements for short-duration work on a roof are:

• a safe means of access to roof level;

• a properly constructed and supported roof ladder. Roof workers should not work directly on tiles or slates." (Original emphasis)

Mr Mackay's position as expressly stated during the hearing was that he was not seeking to take a reasonable practicability defence. I say nothing more, therefore, about the short duration point.

Common law case

[69] The first question that arises in the determination of the pursuer's common law case is whether the first defenders owed Mr Pate any duty of care. I agree with Miss O'Brien that McArdle provides support for the proposition that they did. The case appears to me to have been decided, however, not on the basis of an extension to the plaintiff of the duties owed by an employer to his employee, but on traditional Donohue v Stevenson relationship and occupier's liability principles. (See Sellers LJ, at page 363F; Davies LJ, at page 365D; and Edmund Davies LJ, at page 368G) In my opinion, the first defenders clearly owed Mr Pate a duty of care. They were in overall charge of the work that he was to do and the place where he was to do it. They carried out the risk assessments for the work on the roof and the work on the scaffolds and devised the control measures and safe job procedures to be followed by Mr Pate. It was reasonably foreseeable that, unless proper safety precautions were taken, Mr Pate and, indeed, anyone else who might gain access to the roof, would be at risk. Notwithstanding that Mr Brown believed that Mr Pate's work on the roof was completed, it was reasonably foreseeable that someone might wish to gain access to it. As Miss O'Brien argued, it was reasonably foreseeable to any contractor in the position of the first defenders that a roofer might go back on the roof to sort out some small defect, to retrieve something left behind or to make a final check on the work, and so put himself at risk. It was the duty of the first defenders to take reasonable care to prevent access to the roof while it was an unsafe place from which any person on it could fall to the ground. While the roof was accessible, it was foreseeable that someone would use the ladder to go up to the roof, and once there that he or she would fall off. In my view, the simplest and most effective precaution would have been to have removed the ladder as soon as Mr Brown thought that Mr Pate's work was done, and place it somewhere out of sight. Had that been done, Mr Pate would have been unable to gain access to the roof with the Stihl saw, and the accident would not have happened.

[70] Having held that the first defenders were in breach of regulation 6(2) of the 2005 regulations, by not having ensured that the trimming work was carried out otherwise than at height, I have not found it necessary to consider whether they were negligent at common law in not having provided for that in their risk assessment.

The parties' submissions on sole fault and contributory negligence

[71] Mr Mackay contended that, when Mr Pate went back on the roof, he was in breach both of his common law duty to take reasonable care for his own safety, and of the statutory duty imposed on him by the terms of regulation 14(1) of the 2005 regulations, which provides as follows:

"Every person shall, where working under the control of another person, report to that person any activity or defect relating to work at height which he knows is likely to endanger the safety of himself or another person."

During the course of his evidence, Mr Walker agreed with Mr Mackay that, when Mr Pate went onto the roof with the Stihl saw to trim the tiles, it would have been obvious him that there was no scaffold protection and that there was a risk of falling. As I have noted in paragraph [61], Mr Walker also agreed that the trimming could have been done on the ground before fitting, that being the usual method and that it is safer than trimming when the tiles are in place. Further, having told Mr Brown that the job was finished, Mr Pate did not report to him that he was going back onto the roof. Mr Mackay submitted that, in the event that I found the first defenders to be in breach of any of the duties incumbent on them, I should find Mr Pate solely to blame for the accident. If liability were to be apportioned, argued Mr Mackay, any breaches by the first defenders were minor or technical in the circumstances and the overwhelming cause was Mr Pate's reckless actions. Consequently, he should carry the major proportion of fault.

[72] Miss O'Brien accepted that there has to be a finding of contributory negligence, on the view that Mr Pate was a time served roofer of experience and that what he did was inherently dangerous. She submitted, however, that the degree of contributory negligence falls to be assessed in the context of a job where the site was never safe for roof work. In addition to the failure to risk assess the roof work properly in number 7/4 of process, she said, there was no attempt to risk assess any part of the trimming job on site by Mr Brown. The trestles did not accord with the method statement, and were wholly inadequate. The trestle on the east side had no guard rail, and was not tied to a building. It was approximately three feet below the base of the roof. Most of the roof had been tiled the previous day in circumstances where there was no edge protection at all on the east and west walls, and an inadequate scaffold with no guard rail on the south wall. The trimming job was a routine part of the project but, submitted Miss O'Brien, no one told Mr Pate how to do it, or even discussed how to do it with him. According to Mr Walker, it might have been done using roof ladders, or with a harness. If the job should not have been done on the roof, that too could and should have been considered in a risk assessment. Whilst accepting that Mr Pate could have asked for other equipment, Miss O'Brien submitted that the real failure was that of both the first defenders and the pursuer to address any thought to the hazards involved. Further, she argued, had the regulations been complied with, Mr Pate could not have accessed the roof at all.

[73] Miss O'Brien contended that, had Mr Pate been supervised properly, his access to and work with the Stihl saw on the roof would have been noticed. This, she said, is not analogous to a case where a workman goes back after hours, gains access to a place where he has no business to be, or does something unrelated to his job. His only failure was to assess the risks posed by the job himself. In addressing the first defenders' case on record and in submissions, that the trestles on the east side were removed only because Mr Pate had said that the job was finished, Miss O'Brien questioned whether it matters that the trestle was not in place. The evidence from Mr Walker was that a properly constructed metal scaffold, with edge protection and a guard rail, would probably have prevented the fall which caused the injury. There was no evidence, said Miss O'Brien, that the trestle platform would have prevented a fall. It had no guard rail to stop a man stumbling backwards from falling. Thus it makes no difference that Mr Pate went on the roof and did work at a time when the trestle was not in place: had it still been there, in all probability he would still have been injured.

[74] In support of these submissions, Miss O'Brien contended that the correct approach was taken by the Court of Appeal in Bhatt v Fontain Motors Ltd 2010 PIQR 305, namely to emphasise the need to assess the employee's carelessness in the context of a statutory requirement for protection against risk. In such cases, she argued, the contribution should rarely be more than 50%. I was referred to the cases of Boyle v Kodak Ltd 1969 1 WLR 661 (HL), Anderson v Newham College of Further Education [2003] ICR 212 and Reeves v Commissioner of Police of the Metropolis 2000 1 AC 360 at 371. Miss O'Brien submitted that a fair finding of contribution would be one third, or 33%.

Discussion on sole fault and contributory negligence

[75] It emerges from the authorities to which I was referred that an employer who has committed a causative breach of a statutory duty may escape a liability in damages to his injured employee on one or other of two alternative bases. The first is where it is established that the employer's breach was brought about by the fault of the employee. The second is where the negligence of the employee is such as to justify a finding of 100% contributory negligence.

[76] In Winn-Pope v CKD Galbraith 2012 CSOH 87; 2012 Rep LR 126, to which Mr Mackay referred on the control issue, the pursuer was the operator of a mobile access platform that had been hired by a firm of surveyors, the second defenders, to enable them to carry out a survey at height. The circumstances of the accident are narrated in the headnote of the report in the following terms:

"The pursuer, ... who was employed by the company which supplied the platform, positioned the platform according to the instructions given to him by the surveyor who was carrying out the survey. The pursuer operated the platform from a basket positioned at the end of a hydraulic boom. In order to carry out the survey the surveyor was in the basket with the pursuer. At one point during the survey, the surveyor decided to leave the basket and go onto the roof. After he had done so, the surveyor became aware that the pursuer had followed him onto the roof. Concerned for the safety of the pursuer he asked the pursuer to get off the roof. As the pursuer moved down the roof, part of the roof collapsed under the pursuer's weight and he fell to the ground, sustaining injuries as a result. The pursuer sought damages from the surveyors. He contended that he was under their control in relation to the work of surveying the roof, and that accordingly the duties imposed by the Work at Height Regulations 2005 applied to them, and that they were in breach thereof."

After proof, Lord Brodie held, on the facts of the case, that the pursuer was not a person under the control of the surveyors. In dealing with the question of the pursuer's fault, his lordship said this:

"... it may be that when an employer is placed in breach of a statutory obligation imposing absolute liability solely because of the fault of the employee who seeks to recover damages in respect of that breach, the employee's fault can be pled as a complete defence: Boyle v Kodak Ltd. ... However, I do not see that as a matter that I require to decide upon. Neither is it necessary or realistic for me to say anything about contributory negligence where I have found there to be no breach by the second defenders beyond observing that, following the decision of Lord Emslie in McEwan v Lothian Buses Plc, supra, had contributory negligence been in issue I would have been open to the argument that this was a case for a 100 per cent finding."

[77] In Boyle, the appellant was injured at work when he climbed an insecure ladder which fell as he did so. He claimed that his employers were in breach of a regulation which provided that both workman and employer were under a statutory duty to secure the ladder by lashing it at the top before using it. The appellant could have reached the top of the ladder by means of a staircase but he did not do so. The appellant was found by the judge at first instance to have been solely to blame for the accident. The Court of Appeal affirmed that decision, but a further appeal to the House of Lords was allowed. During the course of his speech, Lord Reid reviewed the authorities and said this:

"In my opinion, these and other cases show that, once the plaintiff has established that there was a breach of an enactment which made the employer absolutely liable, and that that breach caused the accident, he need do no more. But it is then open to the employer to set up a defence that in fact he was not in any way in fault but that the plaintiff employee was alone to blame. (Page 667C)

...

Employers are bound to know their statutory duty and take all reasonable steps to prevent their men from committing breaches. If an employer does not do that he cannot take advantage of this defence." (Page 668A)

To a similar effect, Lord Diplock expressed the following view:

"The plaintiff establishes a prima facie cause of action against his employer by proving the fact of non-compliance with a requirement of the regulation and that he suffered injury as a result. He need prove no more. No burden lies on him to prove what steps should have been taken to avert the non-compliance nor to identify the employees whose acts or defaults contributed to it, for the employer is vicariously responsible for them all. But if the employer can prove that the only act or default of anyone which caused or contributed to the non-compliance was the act or default of the plaintiff himself, he establishes a good defence. For the legal concept of vicarious liability requires three parties: the injured person, a person whose act or default caused the injury and a person vicariously liable for the latter's act or default. To say "You are liable to me for my own wrong doing" is neither good morals nor good law. But unless the employer can prove this he cannot escape liability. If he proves that it was partly the fault of the employee plaintiff, as ex hypothesi it will be in the postulated case, for the employee's own breach of statutory duty is " fault" within the meaning of section 1 of the Law Reform (Contributory Negligence) Act, 1945, this may reduce the damages recoverable but it will not constitute a defence to the action." (Page 672H)

Whilst the members of the Judicial Committee were unanimous in holding that the plaintiff and the defendants were equally to blame, nothing was said that would support Miss O'Brien's proposition that the contribution should rarely be more than 50%.

[78] In McEwan v Lothian Buses Ltd, Lord Emslie considered competing English authorities (Jayes v IMI (Kynoch) [1985] ICR 155 and Anderson v Newham College of Further Education [2003] ICR 212) on the question whether it is open to the court to make a finding of 100% contributory negligence. His Lordship favoured the view that, in principle, such a finding is possible.

[79] I have carefully considered the judgments in Anderson and Reeves. Although, as in Boyle the apportionment was, in fact, 50-50 in both, in neither of these cases do I find it said that the contribution should rarely be more than 50%. It may be that I have misunderstood Miss O'Brien's argument and that she was referring to these cases as illustrative of the proposition, rather than authoritative.

[80] Having regard to the circumstances of this case, I am of the view that the first defenders have failed to establish a Boyle defence. It was not Mr Pate who put the first defenders in breach of the 1996 and 2005 regulations, but the first defenders themselves. They had the responsibility to carry out the risk assessments and to produce the method statement, but they failed: to ensure that the work was properly planned and carried out in a safe manner; to make and keep the roof safe for Mr Pate; to ensure that no person gained access to the roof while it did not comply with the requirements of paragraph (2); to ensure that work was not carried out at height where it was reasonably practicable to carry out the work safely otherwise than at height; and to take suitable and sufficient measures to prevent Mr Pate falling a distance liable to cause him personal injury. As Richards LJ put it in Bhatt, at paragraph 34:

"The defendant's breaches of the Regulations placed the claimant in a situation of risk to which he would not have been exposed if the Regulations had been complied with. What happened is the very kind of event that the Regulations are aimed at preventing. His failure to follow the prescribed procedure when doing work he should not have been required to do at all, and when using equipment that he should not have been required to use if the work was to be done, does not mean that the accident was caused by him alone. It goes only to contributory negligence."

Sedley and Sullivan LJJ agreed.

[81] Nor, in my opinion, is this a case where a finding of 100 per cent contributory negligence should be made, even if it were open to me to do so (on which issue there was no argument before me, and on which I express no view). The risk assessment and roof work method statement specified a number of safety measures which were not taken. The most important of these was the provision of edge protection. As Miss O'Brien submitted, there was no edge protection at all on the east and west walls at any time during the tiling phase, and an inadequate scaffold with no guard rail on the south wall. Mr Brown accepted that it was his responsibility to take the steps necessary to implement these measures and he did not. He did not appear to regard the trestle platform on the east side of the extension as a safety measure, but as a convenient working platform from which Mr Pate could lay the first row of tiles.

[82] Mr Mackay argued that the accident was caused or materially contributed to by Mr Pate, not only by his failure to take reasonable care for his own safety, but also by his breach of regulation 14(1), which required him to report to Mr Brown "any activity or defect relating to work at height which he knows is likely to endanger the safety of himself". The activity in question was going back onto the roof and trimming the valley tiles with the Stihl saw. It is not possible to know from the evidence when the trestles at the east side of the extension were dismantled, and I make no finding as to that. It is quite possible that they were taken down after Mr Pate went onto the roof, as Miss O'Brien submits was the case. In that event, everything would have appeared to Mr Pate exactly as it had been on 22 February and as it was when he was talking to Mr Brown on the morning of 23 February. Whilst going onto the roof and trimming the valley tiles with the Stihl saw with no safety ladder and with no edge protection was an activity which he knew was likely to endanger his safety, the context in which that happened was created by the first defenders' breaches of the provisions of the regulations that I have identified.

[83] In my view, the greater share of responsibility for this accident lies with the first defenders. But for their breach of regulation 6(2) of the 2005 regulations, Mr Pate would not have needed to go back onto the roof to trim the tiles. But for the breaches of regulation 5(2) of the 1996 regulations and 6(3) of the 2005 regulations, for which the first defenders were responsible, the roof would have been safe, and suitable and sufficient measures would have been in place to prevent him falling a distance liable to cause personal injury. But for the first defenders' breach of regulation 5(3) of the 1996 regulations, Mr Pate would not have been able to gain access to the roof on the morning of 23 February. In consequence of these breaches, Mr Pate was exposed to a risk to which he should not have been exposed. In my judgment, having regard to Mr Pate's share in responsibility for the accident, it is just and equitable that the damages recoverable by the pursuer from the first defenders should be reduced by one third.

Decision

[84] For the foregoing reasons, I find that the accident which resulted in injury to Mr Pate on 23 February 2006 was caused by the first defenders' negligence and breaches of statutory duty; I find them liable to make reparation to him for the loss, injury and damage sustained by him in consequence of the accident; and I hold that the damages recoverable by the pursuer from the first defenders are reduced by one third. I reserve all questions of expenses.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Pate v Stewart Homes Ltd [2013] ScotCS CSOH_30 (21 February 2013) URL: http://www.bailii.org/scot/cases/ScotCS/2013/2013CSOH30.html Cite as: 2014 SCLR 1, [2013] ScotCS CSOH_30

Scottish Court of Session Decisions