Scottish Sheriff Court Decisions

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT ALLOA

 

Judgement

 

by

 

Sheriff Derek O'Carroll,

Advocate

 

in causa

 

SANDY HARROWER

PURSUER

 

against

 

CLACKMANNANSHIRE COUNCIL

DEFENDERS

 

Act: McElroy, solicitor, Dallas McMillan

Alt: Cartney, solicitor, Ledingham Chalmers LLP

 

ALLOA, 24 June 2013

 

The Sheriff, having resumed consideration of the cause:

 

Finds the following facts admitted or proved:

1. The pursuer is aged 46 and is a painter and decorator. As at March 2013, he had been employed as such by the defenders for a period of about 15 years and was so employed as at the date of the accident forming the subject matter of this action.
2. The pursuer is a time served painter and is experienced. He is experienced at working at height.
3. The pursuer has received from the defenders a substantial amount of training on health and safety issues including matters particularly concerned with working at height. The training that he has received from the defenders is accurately recorded at 6/3/7, 6/3/8, 6/3/6, 6/3/9, 6/3/10 of process.
4. There is no further training in health and safety issues which the defenders ought to have provided to the pursuer. The pursuer understands well the steps he should take in order to avoid injury whilst working at height.
5. The defenders prepared a generic risk assessment which is relevant to the risks associated with working at height and control measures that require to be taken. That risk assessment is accurately recorded at 6/3/13 of process. That risk assessment was adequate in relation to all relevant parts of the pursuer's occupation in employment with the defenders.
6. The defenders are a local authority whose responsibilities include the maintenance of housing stock comprising approximately 4500 houses. Every house is painted once every 5 years on a cyclical basis. The defenders employs between 15 and 18 painters. Painting houses is therefore a full-time occupation for the Council. The pursuer is experienced at doing work for the defenders.
7. Some of the defender's housing stock comprises buildings containing 4 flats or houses with entry to two of the flats being made from the rear of the building. The design of the building is such that access to the 2 rear flats is by a short staircase running from the ground to the rear wall before turning 90° and ending in a small landing immediately in front of the door which provides access to the house. The landing is between 1.3 and 1.5 m from the ground. There are about five steps from the ground at which point the stairs begin to turn. There are about three steps involved in the turn. There are about 2 steps between the end of the turn and the landing.
8. Bounding the stairs and the landing are railings which are attached to the side of the stairs and the landing. The dimensions, condition, design capabilities and strength of the railings are unknown. Number 6/2 of process contains photographs of the locus.
9. In order to paint the exterior of such a building, the standard practice is that the painting is done manually by a painter using standard spraying equipment.
10. In order to paint the exterior of such a building, the standard practice is that the painting of the parts of the building immediately above and around the stairs is done by the painter while standing on stairs. The painter then moves along and down the stairs as the painting progresses.
11. When painting from the stairs, the painter is working at height within the meaning of the Work at Height Regulations 2005.
12. To paint the whole of the rear and the side of the building by an experienced painter will normally take around an hour. Of that hour, 5 minutes or less would be spent in painting from the stairs.
13. When painting from the stairs, there is present an unguarded fourth edge, being the open stairs.
14. The standard method of painting part of the exterior wall from the stairs used by the defenders does not involve the use of any safety equipment.
15. There is no industry practice of the use of any safety equipment to be used by painters painting the exterior of houses from short stairs whether the painters are employed by local authorities or otherwise.
16. There have never been any falls suffered by painters employed by the defenders painting the exterior of houses from short staircases.
17. There is a risk inherent in painting from the stairs of buildings such as those described in finding of fact 7 being that of a fall which is liable to cause personal injury. The risk of such a fall is very small. The hazard is low.
18. On 12 April 2010, the pursuer was instructed by the defenders to commence work on a building at Hillside Terrace, Alloa. That building is of the kind described in finding of fact 7. The work involved was the painting of the rear and the sides of the building using spraying equipment. The pursuer had painted that type of building on many occasions in the past.
19. The pursuer was standing on the third step down from the top of the stairs. That step was on the turn of the stairs. The pursuer stepped back to look at his work to check he had done it properly. As he stepped back, he slipped off the step. He lost his balance. He put out his hand to catch the railing. He missed it. He fell down about 6 steps, about 1 metre, to the bottom. He injured himself as a result.
20. Number 5/1 of process is a medical report prepared by Mr Lindsay, consultant orthopaedic surgeon and contains a true and accurate account of the nature of the injuries from which the Pursuer was suffering when examined by Mr Lindsay on 16 March 2012, and his prognosis.
21. Numbers 5/2 and 6/4 of process are the records of Tillicoultry Medical Practice as they relate to the Pursuer.
22. Number 6/5 of process contains the records of Stirling Royal Infirmary as they relate to the Pursuer.
23. Page 27 of 6/5 of process is a true and accurate copy of the referral letter from the Pursuer's general practitioner to the physiotherapy service of Stirling Royal Infirmary and contains an annotation from that physiotherapy service which is also true and accurate.
24. There was no simple effective method which could have been employed to provide a guardrail or similar barrier to prevent the type of fall suffered by the pursuer. In particular, there was no method available involving the use of scaffolding poles with attachments at each end which could have been used to provide protection against falling a distance liable to cause personal injury.
25. Even if there was a method available involving the use of scaffolding poles with attachments at each end which could have been used to provide protection against falling a distance liable to cause personal injury, it would not have been reasonably practicable for the defenders to have provided such a method.
26. The only method which could have been employed in order to provide physical protection against a fall from the stairs by a painter involved in doing the type of work engaged in by the pursuer would have been by means of erection of custom designed scaffolding around the stairs. Such scaffolding would take between one hour and one and-a-half hours to build and dismantle. That would cost between £500 and £700 on each occasion. The erection of such scaffolding would also result in staff time being wasted waiting for the scaffolding to be erected. That method was not reasonably practicable.
27. A harness system was not capable of being employed by painters carrying out that type of work.
28. If the defender had been found liable to make reparation to the pursuer in respect of the subject matter of this action, the quantum of the Pursuer's loss would have been £3,000 inclusive of interest to 11 April 2013 subject to a deduction in respect of the Pursuer's contributory negligence of 20%.

FINDS IN FACT AND IN LAW

1. There was no reasonably practicable method of guarding the fourth edge to the stairs from which the Pursuer fell.
2. The defenders were not in breach of their duty in terms of regulation 6(3) of the Work at Height Regulations 2005 to take suitable and sufficient measures to prevent so far as is reasonably practicable the pursuer falling from the stairs a distance liable to cause personal injury while carrying out his painting duties.

 

THEREFORE

Grants decree of absolvitor in favour of the defenders; Finds the pursuer liable to the defenders in expenses; Allows an account thereof to be given in and remits the same, when lodged, to the auditor to tax and report.

 

 

NOTE:

 

[1]  Introduction. This is an action for damages arising from an accident at work in which the pursuer fell while painting a wall and suffered an injury. The defenders deny liability. The parties lodged a joint minute at the commencement of the proof on 11 April 2013. That joint minute agrees inter alia the quantum at £3,000 subject to a deduction for contributory negligence of 20%. I heard evidence from four witnesses, two for each side. They were: Sandy Harrower (Pursuer); George Stewart (health and safety consultant); Robert Anderson (the defender's health and safety officer); Fergus Lindsay (defender's maintenance team leader). On 17 May 2013, I heard submissions from the parties and made avizandum.

The evidence

[2]  The following provides a summary of the pertinent parts of the evidence.

[3]  Sandy Harrower. I am 46. I am a painter and decorator. I have worked for the defenders for 15 years and before that I worked for other employers. I identify 5/4/4 and 6/1/2 as photographs of the locus of the accident.

[4]  I am a time-served painter. I am experienced. I work at height a lot. I have been trained. I have attended a number of courses provided by the defenders regarding health and safety and working at height. I know that before I move that I must check my feet.

[5]  I was instructed to paint the outside of the house shown in the photograph using paint spraying equipment. At the back of the house, access to the entrance is by a short flights of steps which turn in an arc 90 degrees to the left after about five steps before continuing for a few steps more then reaching a small landing giving access to the door which is the entrance to the house. The steps and the landing have metal railings around them. That means that although there is a barrier on three sides formed by the wall of the house and the railings, there is no barrier on the fourth side, that is, going up and down the stairs.

[6]  There was no protection provided by my employers against the possibility of a fall on the fourth side. In all my time working for the council doing jobs like this, a guardrail has never been provided on the fourth side. In the firms that I worked for before the council, I never had a guardrail on that type of staircase.

[7]  I accept that if a guardrail had been placed across the stairs a few steps down and if I had fallen I could still have hurt my back. I was aware that an 'easy-deck' and full scaffolding was potentially available but I did not request either. They would have got in the way of doing the job. The only place a guardrail could have been placed is across the stairwell connecting one railing to another. If a guardrail had been attached partly to the wall of the house and partly to a railing it is possible that damage might be caused to the wall which would require somebody to fix it. That would cause a delay. I accept that fixing the war might again in turn require affixing a fresh guardrail.

[8]  Painting the part of the wall from the stairs took about 2 to 3 minutes. It would take about one hour to complete the painting of the wall at the back of the house and round to the side of the house. When painting the other parts of the wall, I would not be using the stairs. I accept that the erection of a guardrail that is strong enough might need scaffolders to be instructed. I am not trained in the direction of scaffolding and I am not authorised to erect scaffolding. I accept that might lead to additional cost.

[9]  I was not given any risk assessment or tool box talk or special instructions as regards safety immediately before I started the job. If I had been provided with further training by the defenders, that would have added nothing to what I already knew about working at height. I have received training from my employer about working at height. That includes training on 11 April 2007 (see 6/3/8), 23 November 2005 (see 6/3/6), training on use of paint spray equipment (see 6/3/9).

[10] In order to paint the part of the wall immediately above the steps, it was necessary to climb the steps and paint from there. I was at one point painting the wall to the right side of the door. I was standing on the third step from the top of the stairs. That step was on the turn of the stairs. I stepped back to look at my work to check I had done it properly. As I stepped back, my foot slipped off the step. I lost my balance. I put my hand out to catch the railing. I missed it. I fell down the stairs to the bottom. That was a fall of six steps. I injured myself.

[11] George Stewart. I am an independent health and safety consultant. I am a chartered member of the institution of occupational safety and health and have been for 15 years. I have been a consultant for 26 years. I produced a report dated 28 September 2012 which is at 5/3. I have seen photographs of the locus of the accident. I have never visited the locus.

[12] When working on these stairs, there was one open side, the fourth edge, which was unfenced. That created a foreseeable risk of injury, the risk being falling down the stairs. There was no physical barrier to prevent that happening at the open edge. It is as simple as that. In my view, there should have been a guardrail forming a barrier. There could have been a piece of scaffolding attached to a screw ring and pressure pad attached to the wall at one end and the railing at the other. A scaffolder is not needed put it in place. That costs about £20 and is portable. Given there was a potential for a fall for a person working at height, the employer must take steps to prevent a fall using a barrier. There was an obvious danger of fall. If not a guardrail, there should have been a harness.

[13] Given that the stairs turned to the left, as the painter progresses painting, the guardrail would have to be moved down as the painter moved. The guardrail would then need to be fixed to each of the two railings. So two different systems would need to be used on the stairs. Using these two systems would increase the time taken to do this part of the job by about 30 minutes.

[14] I accept that this method would depend on the railings being of sufficient strength to bear the pressure from the guardrail and to bear the weight of a person falling against the guard. Therefore, the strength of the railings would also have to be assessed before that method could be used. A scaffolder could not do that. It would have to be someone else from the employer's construction branch. A painter could not do it. From the photographs put before me, it seems to me that the railings comply with British Standards. There might be some damage caused to the wall by fixing the guardrail against the wall. It is not normal to paint off staircases since the 2005 Regulations.

[15] I would have expected there to be refresher training for workers exposed to working at height. They should also have tool box talks in which basic precautions should be repeated. I would also expect there to be a method statement.

[16] Robert Anderson. I am the health and safety officer for the defenders. I have been in that position for 25 years. 6/3/13 contains the risk assessment for the use of paint spraying machines. So far as slips trips and falls are concerned, the control measure used is training in proper techniques and use of proper equipment. 6/3/9 is a record of training undertaken by the pursuer in using the paint spraying machine in various places including at height. He has received training in checking around his feet before moving. Further training attended by the pursuer is shown at 6/3/10. 6/3/6 is a record of specific training attended by the pursuer on the working at height regulations. 6/8 shows specific training on work at height as regards equipment that can be used when working at height. In order to ensure that training is complied with on site, there are regular visits on site to check. Compliance and checking that health and safety systems are being properly used is always done. Visits are done to the work sites before during and after work.

[17] Before this particular work was started, I went with the chargehand to inspect all the jobs including this one. There were a lot of houses to be painted on this site. I inspected this and the other houses. The staircase in question is between 1.3 and 1.5 m high. The step from which the pursuer fell is 1 m from the ground.

[18] Following my inspection, I decided that there were no changes required to the existing risk assessment.

[19] The council has 4,500 houses. Each house is painted once every five years on a cyclical basis. The Council employs between 16 and 18 painters. Painting houses is therefore a full-time occupation for the Council. The houses on this particular site will have been painted around 10 times each.

[20] There have never been any falls by any painters on any of the houses at any time that I am aware of. Painting off staircases is common.

[21] If I was carrying out a fresh risk assessment of the job carried out by the pursuer, even with hindsight, I would not change the control measures. In my view, there was no necessity for a guardrail on the steps. I am not aware of any system that could have been placed across the stairway. If there was one, I would have been aware of it. I am not aware of any proprietary system of pole and brace. Even if such thing did exist, it would not be necessary in my view considering the time that this particular part of the job takes and the very low risks involved. I do not believe a pole and brace system would work.

[22] The only way of providing a physical barrier would be to get an external contractor to design and install the system. That would cost a lot of money would take at least one hour to install at each staircase. Contractors would have to be kept on site in order to collapse the scaffolding when it had been used and then re-erect it at the next house. In my view it would take between an hour and one and a half hours to build and dismantle at each side at a cost of £500-£700 minimum, in addition to staff time wasted waiting for the scaffolding to be done. Furthermore, the pole by itself could not provide sufficient protection since a person falling could slip under the guardrail. Therefore there would need to be another rail underneath. By contrast, to do the painting from the staircase takes about five minutes.

[23] The use of a scaffolding pole system might well cause damage to the wall. In addition, you would need to make sure that the railings were secure enough to take the weight. That could only be assessed by a competent engineer. There are Council engineers who could do this but that would be at a high cost. It would lead to delay in carrying out the work.

[24] I am part of the ABC benchmarking group concerning health and safety. I liaise with 12 other Councils on a regular basis regarding health and safety issues. I am not aware of any of these Councils using any kind of barrier system for painters painting off staircases like the present case. If we had to introduce such a system, the effect on the Council would be that we would have to stop or reduce the painting program. In my view, the risk posed to painters in the situation is not significant. Painters work at height most weeks.

[25] The risk assessment at 6/3/13 was prepared in 1994. It was reviewed when the working at height regulations were introduced in 2005. However, no changes were made to that generic risk assessment because in my view, the measures already provided in the original risk assessment were still suitable for dealing with the provisions in the 2005 regulations. Working at height training is an absolute requirement for all staff and is done on a rolling programme. Between 2005 and 2010, the pursuer would have gone through other courses other than those I have mentioned. For example there was a training course which you can see at 6/3/7. 6/3/8 was a demonstration in various safety systems when working at height.

[26] I accept that there is always a risk in carrying out work such as the pursuer was carrying out. However, my view the risk was adequately controlled by means of the training the pursuer received and his experience having regard to the nature of the work that he was carrying out at that time. I assessed there to be a low risk and a low hazard. If the risk had been the same but the hazard had been higher, for example the staircase had been 10m high instead of 1.3 m high, I would have put in place alternative measures.

[27] It is absurd to suggest that the use of a harness should have been employed. It would not work and it would be totally impracticable: there is no suitable anchor for a harness.

[28] Fergus Lindsay. I am a maintenance team leader for the defenders and have been since 1983. I am a time-served painter. I was the supervisor of the pursuer on the date of the accident. I did a site visit the month before the work started. Part of the reason for the site visit was to check health and safety considerations. 6/3/13 is the risk assessment relevant to painters and it deals with slips and trips and falls. For the control measures, we have a full health and safety regime. When carrying out the inspection of the site, I had a good look considering anything that might have posed a risk to the health and safety of Council employees.

[29] Working from external staircases is a regular feature of a painter's job. I am not aware of anyone falling while painting external staircases. Even with hindsight, I would not have recommended a change to control measures.

[30] I myself have painted the same external staircase that the pursuer fell from. Part of the job of painting the rear of the house involves going up the external stairs and spraying from the step. That exercise takes minutes only. I have never seen or heard of any guard rail being used consisting of a scaffold pole and a pressure pad to carry out such work. I doubt it would work. The only edge protection suitable in my view would be a fixed scaffold. If damage was caused to the wall, it would need to be repaired by somebody else.

[31] In addition, if there was a guard rail installed around the third step I would be concerned about the height of the bar. The bar would have to be to be at least 950 mm high in terms of the Regulations. I am not sure that the railings are that high. Before any such guardrail could be fixed, the railings would have to be checked to see if they were suitable. If the installation of the guardrail was required, it would completely change the way in which the painting of the houses was done. It would cause delay. There are 5000 stairs in the estate. They would all require to be re-surveyed and assessed. In addition, all the rails would have to be assessed and this would have to be done on every occasion prior to the walls being painted. In my knowledge and experience, there is no practice of such guardrail is being put in place and if there was, I would have known about it.

[32] I accept that when standing on the stair to spray paint the wall, you would have your back to the stairs. If you need to check the work, he would need to move back from the wall but that should be done from the bottom of the stairs. If a guardrail was to be put in place one across the top of the rails, that would not be sufficient, they would have to be further rails lower down to stop someone falling under the top rail.

[33] Even with hindsight, I do not see that there would be any other way of doing the job other than the way in which it was done.

Submissions

[34] Although evidence was economically concluded on the first day of proof, there was insufficient time for submissions. The proof was continued for submissions to be made. Agents for the parties were asked to prepare written submissions and lodge them prior to the second day of proof. I am very grateful to both solicitors for their co-operation in doing this and for the content of their submissions which has been of great assistance to me and which has shortened the length of court time taken up in dealing with them. It is unnecessary, given that the written submissions are now in process, for me to rehearse their contents. It is appropriate however to note here both the essential content of those submissions and amendments made to the written submissions following discussions.

[35] Pursuer's submissions. Although the pursuer's case on record founded on inter alia an alleged breach of regulation 3 of the Management of Health and Safety at Work Regulations 1999 ("the 1999 Regulations"), being an alleged failure to carry out a suitable and sufficient risk assessment of the work carried out by the pursuer, in the light of the observations made by Lord Eassie in Logan v Strathclyde Fire Board [1999] CSOH 11 to the effect that the breach of the duty to make an assessment does not in itself give rise to liability for damages and that "it is the failure to fulfil the substantive duty of taking proper precautions to reduce the risk of injury which will give rise to liability rather than the procedural obligations to carry out an assessment", the Pursuer's agent no longer founded on that part of the pursuer's case. Similarly, in so far as regulation 4 of the Work at Height Regulations 2005 ("the 2005 Regulations") is concerned (organisation and planning of work), the alleged failures on Record are not founded on.

[36] The substance of the pursuer's case is founded on regulation 6(3) of the 2005 Regulations which provides in short that where work is carried out at height, the employer is obliged to take suitable and sufficient measures to prevent, so far as is reasonably practicable, any person falling distance liable to cause personal injury. Regulations 6 goes on further to specify the measures required which include inter alia the obligation to provide, so far as is reasonably practicable, work equipment to minimise the distance and consequences of a fall.

[37] It was then submitted that it was common ground that the pursuer was working at height, that he fell a distance and sustained personal injury. The onus was on the defenders to prove he did all that was reasonably practicable to put sufficient measures in place. The defenders failed to prove that. The defenders, on the evidence, had not considered that there was a risk of a fall and therefore had not considered what measures, if any, could reasonably practicably have been taken to prevent a fall. The defenders had not properly applied their mind either to the risk or to measures to avoid the risk. The evidence of Mr Stewart was that there was an obvious risk of a fall and simple steps could have been taken to reduce the risk were cheap and practicable. The defenders therefore failed to prove that there were no reasonably practicable measures which could have prevented the fall and since on the evidence there was such a measure, the pursuers should succeed. Agents did not rely on any authorities in his submissions other than those referred to by the defenders. However, his list of authorities makes reference to the case of Bhatt v Fontain Motors Ltd [2010] EWCA Civ 863; [2010] PIQR P17, one of the few reported cases specifically concerning the 2005 Regulations. I found that case of some assistance and will refer to it later.

[38] Defenders' submissions. Agents for the defenders briefly supplemented her submissions by summarising the defenders case as follows. There were three main contentions. First, it was submitted that the guardrail systems described by Mr Stewart would not as a matter of fact have reduced the risk of injury in the circumstances of this particular accident. Secondly, the evidence of Mr Stewart as to whether his proposed systems could be used was neither sufficient nor convincing. That is to say, there was no convincing evidence that the guardrail systems he described could in fact have been installed in the particular conditions. Thirdly, even if the Court found that such systems described by Mr Stewart would have reduced the risk of injury and that such a system could have been installed in the particular conditions, it was not in any event reasonably practicable for the defenders to have instigated such measures. I was referred to the following authorities, some of which I will mention later in this judgement. They are: Logan v Strathclyde Fire Board 1999 CSOH 11; Uren v Corporate Leisure (UK) Ltd and Ministry of Defence [2011] EWCA Civ 66; Strange v Wincanton Logistics [2011] CSIH 65A; Baker v Quantum Clothing Group Limited [2011] UKSC 17; Pratt v Intermet Refractories Limited [2000] ALL ER (D) 1560; Edwards v National Coal Board [1949] 1 KB 704; Davie v Magistrates of Edinburgh 1953 SC 34.

[39] Following submissions, I made avizandum.

Discussion.

[40] The law. The pursuer founds only on regulation 6 of the 2005 Regulations. It is helpful to set out that regulation in full.

6.- Avoidance of risks from work at height

(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

[41] As Richards LJ observed at paragraph 28 of Bhatt: "The Regulations are directed at avoiding or minimising the risks inherent in working at height. The point is well made in the simple hierarchy set out in the Health and Safety Executive's guide [referred to earlier]. Thus, work at height must be avoided altogether if it reasonably practicable to carry out the work otherwise than at height: that is the focus of reg.6(2). If work at height cannot be avoided, the risks must be minimised by, inter alia, the selection of work equipment which is appropriate and meets the other requirements of reg.7(2)". I accept that analysis.

[42] The meaning of reasonable practicability. This regulation, in common with much of the legislation in this field, imposes obligations on an employer subject to the qualification in many instances that the measure referred to is reasonably practicable or not reasonably practicable. That term was considered in Edwards, a case concerned with the duties of the National Coal Board under the Coal Mines Act 1911 following the death of a miner who was crushed to death by a latent defect called a "glassy slant" (in this case, a fossilised tree) that fell from the side of the underground road along which he was travelling. The glassy slant could not have been detected by examination and its existence was not to be expected. The duty of the NCB under the statute was to make secure the roof and sides of the travelling road but the statute also provided that the NCB would not be liable in damages for a breach of that duty if it were shown that it was not reasonably practicable to avoid or prevent the breach. NCB argued that the danger could only have been avoided by propping and lining not only the travelling road in question but every travelling road in every pit in the UK (since even detailed inspection of walls in travelling roads would not be capable of revealing such latent defects). That they said was impracticable. The judge at first instance agreed.

[43] On appeal, the Court found for the plaintiff. On the question of reasonable practicability, Asquith LJ held:

"The onus was on the defendants to establish that it was not reasonably practicable in this case for them to have prevented a breach of s. 49. The construction placed by Lord Atkin on the words "reasonably practicable" in Coltness Iron Co. v. Sharp ¹² seems to me, with respect, right. "Reasonably practicable" is a narrower term than "physically possible" and seems to me to imply that a computation must be made by the owner, in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other; and that if it be shown that there is a gross disproportion between them - the risk being insignificant in relation to the sacrifice - the defendants discharge the onus on them. Moreover, this computation falls to be made by the owner at a point of time anterior to the accident. The questions he has to answer are: (a) What measures are necessary and sufficient to prevent any breach of s. 49? (b) Are these measures reasonably practicable?" Tucker LJ, also referring to the decision in Coltness held that: "in every case it is the risk that has to be weighed against the measures necessary to eliminate the risk. The greater the risk, no doubt, the less will be the weight to be given to the factor of cost". Singleton LJ was unsure, due to a special feature of the associated legislation, that cost was a relevant factor. He opined that the reasonable practicability defence was "intended to cover a case in which everything reasonably possible had been done to make roof and sides secure, but through a fault, or the like, something happened and an accident took place. In such a case the defendants might well be able to establish that it was not reasonably practicable to comply with the provisions of s. 49."

It is also worth noting that there was a difference in view between the judges as to whether to reasonable practicability has to be assessed by reference to all travelling roads in all UK pits (Asquith LJ) or only the travelling road in question (Singleton LJ). Nonetheless, the appeal was allowed on the basis that the question of reasonable practicability could only be decided on the evidence and there was insufficient evidence put before the court by the NCB to demonstrate that the test had been met, regardless of whether a pit specific or UK pits approach was taken.

[44] This term has of course been considered in many cases since, not always with the same degree of analysis. In Pratt, the claimant tripped over a broken piece of pallet on a company roadway at night while walking to the lavatory and injuring himself. May LJ, of the Court of Appeal, after noting that the Court had been referred to various (unspecified) cases on the meaning of the term said: "I think that in such a simple case as this, what is reasonably practicable is a matter of common sense fact to be determined by the trial judge on the evidence.". On the evidence the defence was made out and the claim failed.

[45] In the Baker case, the facts of which were diametrically different from Pratt, the Supreme Court analysed in considerable depth the law in a number of conjoined cases all concerning historic noise-induced hearing loss suffered by many claimants in the factory knitting industry. Lord Mance makes the following, obiter, remarks at paragraph 82: "The criteria relevant to reasonable practicability must on any view very largely reflect the criteria relevant to satisfaction of the common law duty to take care. Both require consideration of the nature, gravity and imminence of the risk and its consequences, as well as of the nature and proportionality of the steps by which it might be addressed, and a balancing of the one against the other. Respectable general practice is no more than a factor, having more or less weight according to the circumstances, which may, on any view at common law, guide the court when performing this balancing exercise ..." He also went on to say at paragraph 84, disapproving part of the judgement of Smith LJ in the Court of Appeal: "the suggestion that "there must be at least a substantial disproportion" before the desirability of taking precautions can be outweighed by other considerations... represents, in my view, an unjustified gloss on statutory wording which requires the employer simply to show that he did all that was reasonably practicable". Lord Dyson, at paragraph 129, agreed with what Lord Mance said at paragraphs 82 and 83 and approved "the classic exposition of reasonable practicability" by Tucker LJ ... in Edwards v National Coal Board (noted above), thus apparently preferring the formulation of Tucker LJ to that of Asquith LJ.

[46] Lord Kerr, while agreeing with the majority as to the ultimate disposal of the appeals differed from his colleagues to some extent as to the interpretation of the test. He said at paragraphs 183 and 184 as follows: "[183]. Once it is clear that the employer knew or should have known that there was a risk, an evaluation of the chances of the risk materialising is relevant to an examination of what it is reasonably practicable for an employer to do-as Lord Goff of Chieveley put it in Austin Rover Group Ltd v HM Inspector of Factories [1990] 1 AC 619 , 626-627: "for the purpose of considering whether the defendant has discharged the onus which rests upon him to establish that it was not reasonably practicable for him, in the circumstances, to eliminate the relevant risk, there has to be taken into account (inter alia) the likelihood of that risk eventuating. The degree of likelihood is an important element in the equation. It follows that the effect is to bring into play forseeability in the sense of likelihood of the incidence of the relevant risk, and that the likelihood of such risk eventuating has to be weighed against the means, including cost, necessary to eliminate it. [184] I agree with Smith LJ in her conclusion (at paragraph 84 of her judgment) that for the defence to succeed, the employer must establish a gross disproportion between the risk and the measures necessary to eliminate it. In the words of Asquith LJ in Edwards v National Coal Board [1949] 1 KB 704 , 712, "the risk [must be] insignificant in relation to the sacrifice."

[47] It is worth noting perhaps that while Smith LJ does indeed use the term "gross disproportion" at paragraph 84 of her judgement, that is a reference to what Asquith said in Edwards. However, she concludes that paragraph, after considering two other cases by saying "It appears to me therefore that there must be at least a substantial disproportion before the defence will succeed [emphasis added]" which is the term referred to by Lord Mance when referring with disapproval to her finding on this point.

[48] The next case in this series that I was referred to is the relatively recent Scottish case of Strange v Wincanton Logistics Limited, decided after Baker, in which the Pursuer injured his back while moving pallets and sought damages. He founded on the Manual Handling Operations Regulations 1992. He claimed inter alia that there were various alternative methods of moving the pallets which would have removed or reduced the risk of injury and that those alternatives were reasonably practicable. He lost at first instance. On appeal, the question of reasonable practicability was live again.

[49] At paragraph 24, Lord Eassie noted that the parties were agreed that the meaning of the term "reasonably practicable" was authoritatively defined by Asquith LJ in the Edwards case (noted above) but, under reference to the remark of Lord Mance at paragraph 84 of Baker anent the need to demonstrate "substantial disproportion" (which is noted above) said that that remark put the Asquith LJ formulation in question. However, Lord Eassie's attention does not seem to have been drawn to the express approval of that term by Lord Kerr in the same case at paragraph 184 (which remark is noted above). Nonetheless, Lord Eassie went on to give his Opinion based on the agreement between the parties that the Asquith LJ formulation (including the need for the employer to satisfy the Court that there was a "gross disproportion" before the defence could succeed) was an accurate statement of the law.

[50] In upholding the decision of the sheriff to dismiss the Pursuer's claim, and in particular, his conclusion that there was a gross disproportion between the quantum of risk and sacrifices involved, Lord Eassie, at paragraph 25, noted the Sheriff's finding that the relevant operation "had been carried out routinely by many employees, including the appellant, over many years, both in the respondents' immediate premises and almost universally elsewhere in the warehousing industry. That in our opinion was a powerful consideration pointing to the conclusion that it would not have been reasonably practicable for the respondents to adopt the alternative method averred by the appellant." Under reference to extensive parts of Lord Mance's judgement in Baker, (including paragraph 82 of that judgement, noted above) Lord Eassie concluded that "Thus, albeit as one factor among others, the fact that an employer has followed general practice in the industry weighs significantly in the balance against the conclusion that it would have been reasonably practicable for him to do more".

[51] At the risk perhaps of over-simplification what can be drawn from these cases and the legislation, relevant to the matters that are before me, is as follows. The 2005 Regulations taken as a whole form one part of the intricate jigsaw of measures put in place by Parliament which seek to ensure, so far as possible, specific protection for employees and others while at work. The 2005 Regulations, against the background of the primary legislation and certain secondary legislation, seek to provide specific protection fro those who are required to work at height, which means working in a place where a fall is liable to cause personal injury.

[52] Regulation 6 of the 2005 Regulations imposes certain duties on the employer according to a simple hierarchy of risk reduction. Those duties are not absolute: the duties in paragraphs (2) to (5) are all qualified by the term "so far as reasonably practicable" or cognate expressions. Thus, an employer faced with an allegation that it did not take certain measures which might have reduced or obviated the possibility of a fall or its consequences may respond that the particular measure was not put in place because it was not reasonably practicable to do so. It is for the court to determine whether that response, or defence, is made out. In doing so, the court is required to carry out a balancing exercise. All relevant circumstances are to be considered in that balancing exercise. They include the nature of the risk, the likelihood of that risk eventuating, the consequences on the employee or worker if the risk eventuates, the risk assessments and their content, the employer's experience of the dangers inherent in a particular operation, normal industry practice, the cost of the measure not taken, the effect of that measure if it had been taken on the employers' business, the effect on other employees, to what extent application of the measure would have been likely to have prevented injury to the employee. This list is not exhaustive.

[53] The court, having evaluated all factors relevant to the balancing exercise, needs then to assess whether the application of the measure was or was not reasonably practicable. That is done by the Court conducting a balancing exercise, by balancing the risk of injury on the one hand with the "sacrifice" involved on the other. In conducting that balancing exercise, the scales are not evenly balanced. On my reading of the authorities, in considering the precise interpretation of the term reasonably practicable, it is unclear whether it is a "gross disproportion", or alternatively a "substantial disproportion" which requires to be shown by the employer to establish the defence or whether, on a straightforward application of the statutory formulation, the employer simply requires to show that it has done all that is reasonably practicable, the terms "gross disproportion" and "substantial disproportion" being unwarranted glosses. I conclude that the majority view appears to be that the balancing process is one that requires an assessment of the relationship that the quantification of risk bears to the quantification of "sacrifice" and that in assessing that relationship to see whether the defence is made out, in so far as there is a difference between "gross disproportion" and "substantial disproportion", that difference is one of degree only. Moreover, in practice, it seems to me that there are unlikely to be many cases which would be likely on their facts to turn on such a distinction.

[54] Before I leave the discussion of the law, I should say a little about the burden of proof of the reasonably practicability defence in such cases. It seems clear, as the parties submitted, that the burden lies on the defender, once the defence is pleaded: see Logan v Strathclyde Board per Lord Eassie at page 8. See also Lord Carloway at paragraph 19 in Taylor v City of Glasgow Council 2002 SC 364, 380 where he held that "it is a well-established principle of our rules of evidence and procedure that the onus of pleading and proving such a qualification rests on the employer...it is for the defender, under our current system of pleading, to raise in averment the fact that he maintains that the avoidance of the need for the manual handling of, for example, furniture is not reasonably practicable in order to establish a defence to a case under reg 4(1)(a). If he does not do so then the issue of reasonable practicability need not be considered. If he does, then no doubt he has to explain why avoidance is not reasonably practicable". . That is authoritative and binds me.

[55] The structure of Regulation 6 is similar. It seems to me mutatis mutandis that similar reasoning applies. In this case, it is accepted on both sides that working at height was necessary. The case turned on the pursuer's reliance on Regulation 6(3) of the 2005 Regulations and the Pursuer's contention that the defender was in breach of its duty "to take suitable and sufficient measures to prevent, so far as is reasonably practicable, any person falling a distance liable to cause personal injury", the defender pleading that it took all reasonably practicable steps to avoid injury. I now turn to discuss the evidence in the case.

Discussion

[56] Matters agreed or not seriously in dispute. It seems to me that many of the facts in this case are agreed or are not seriously disputed. That includes the following. The pursuer is an experienced and time-served painter. He is a man of mature years. He has been employed by the Defenders as a painter for many years and had acquired substantial experience before that. He received training from the Defenders over the years on health and safety matters, including on the subject of working at height. He understood the risks of the job. He knew what he had to do to ensure his safety. The Defenders had prepared a generic risk assessment pertaining inter alia to the risks of falls, as was their duty under the 1999 Regulations.

[57] The job that the Pursuer was employed to do was to paint the rear of the house using spray equipment. To the rear of the house is a short flight of stairs which lead to a flat in the house. The landing at the top of the stairs is less than the height of a man from the ground. There are a small number of steps from that landing to the ground. Those steps turn 90 degrees as they go down. There are railings on both sides of the stairs. To do the job, the pursuer expected to stand on the stairs to paint those parts of the wall immediately above the stairs. The defenders expected him to paint from the stairs. No-one suggested that there was a reasonable alternative to that. The painting to be done from the stairs would take a matter of minutes, less than five according to the Pursuer. The painting of the whole wall of the house by contrast would take over an hour. Painting from the steps involves a risk. The risk is of falling down the stairs accidentally.

[58] There are about 4,500 houses in the defender's housing stock. Painters are employed on a continual basis to paint and re-paint the exterior of these houses on a cyclical basis. That has been done for many decades. An unspecified number of that stock comprises houses of a similar design to the house in question, having external stairs. It is normal practice for painting of the wall to be done off those stairs. No-one employed by the Defenders to do this type of work on this type of stairs has ever fallen.

[59] The Pursuer was working on the steps when he fell. He fell down a number of steps, no more than five, to the ground and injured himself. The reason the accident happened was because he stepped back to look at his work and lost his footing. It is agreed that he contributed to the accident to the extent of 25%. His injuries were not severe, and damages were agreed at £3,000.

[60] What is in dispute is as follows. The Pursuer says that the Defenders should have ensured that he did not work on the stairs without a guardrail to protect against the risk of falling down the stairs. He says that the way that should have been done was to put in place the two types of guard rails described by Mr Stewart in his evidence. If that had been done, he says, he would not have been injured or at least, the consequences of a fall would have been mitigated. No other method was proposed by the pursuers. Although the use of a harness was mentioned by Mr Stewart, that was only in passing, appeared to have come as a surprise to the Pursuer's agents, was not explored in evidence and was not seriously pursued in the Pursuer's submissions.

[61] The Defenders say by contrast that the risk of a fall and injury was very unlikely, that they had put in place all reasonably practicable control measures to deal with that remote risk and that there were no other reasonably practicable measures that could have been put in place. In particular, they say, the methods proposed by the Pursuer's expert are not available, are never used in their industry, would not work in any event and would be wholly impracticable. Further, there are no other measures which would be reasonably practicable due to the cost of putting them in place, the time that would need to be taken to assemble and disassemble them, the cost in terms of time and the effect on their operations.

[62] I prefer the submissions of the defenders for the following reasons. I accept the contention of the Defenders that although the fact of working at height did pose a risk, the risk of injury was very small, as was the hazard. I am particularly influenced by the evidence that there had never been any falls by any workers painting from steps. That undisputed evidence was particularly strong given the repeated nature of that sort of work being done from these types of stairs over a period of decades and is indicative of there being a low risk: see the Opinion of Lord Eassie in Strange which I refer to above at paragraph [50]. I also take into consideration that the height of the stairs was low and that even if there were to be a fall, the likelihood of injury would not be great. In assessing the degree of risk, I take account also of the precautionary measures that had already been taken by the defenders. They included regular training of the Pursuer and his colleagues as regards various aspects of health and safety including when working at height using spraying machines. The Defenders were entitled to believe that their employees, including the Pursuer, were well aware of what they required to do and the precautions they should take when working at height. Indeed, the Pursuer acknowledged that he needed no further training. I take into account also that the locus was inspected by the defenders' experienced health and safety manger before the work was done and his assessment was that there was no risk which needed to be guarded against by additional measures. In quantifying risk, I take account also that there was a similar inspection by the Pursuer's supervisor, who was himself actually experienced in that kind of work, and that he came to the same conclusion as Mr Anderson. I consider that the Defenders' assessment of risk was justified.

[63] I now turn to considering whether there were reasonably practicable measures which could have been taken to obviate the risk, small though it was, of injury by falling from the stairs. I find that there were no other reasonably practicable measures that the Defenders could have taken.

[64] Taking first the contention of the Pursuer that a system of guardrails should have been employed, in my view, the evidence on that point was seriously deficient. Mr Stewart said that two different types of guardrails should have to be employed, using the existing railings as support. Thus, those railings would become a part of the guardrails structure he describes. The strength and safety of the guardrails would be dependent to some extent on that of the railings. To be an effective guardrail, the combined guardrail and railing mechanism would have to support the weight of a man falling against it. Mr Stewart assumed that the railings would be suitable for this purpose and that they conformed to "British Standards". I do not see how he could have been so confident in making either assertion. Notably, he had never visited the locus. He had never examined the railings. He knows nothing about them apart from what can be seen in the photographs. He could not tell their strength. He did not know their dimensions or material. Those railings plainly were not designed for the purpose of being part of a guardrail for workers. I fail to see how Mr Stewart could have been satisfied that the railings would be suitable for the purpose to which he proposed they could have been put. The 2005 Regulations themselves are perfectly clear that systems used and measures adopted for safety purposes must have sufficient strength before they can be used: see for example schedule 2 (2), schedule 4(3) and schedule 5(2). That of course is only obvious. I do not accept the evidence of Mr Stewart that the guardrail system that he recommended was one that could actually be used. It follows that that system was not a reasonably practicable method which ought to have been in place[1].

[65] Notwithstanding that conclusion, I ought, nevertheless, to consider whether, if the system proposed by Mr Stewart were available, it would have been reasonably practicable for the Defenders to have installed it. In my view, it would not have been. The cost of purchasing the systems would not have been high, on Mr Stewart's evidence. However, the systems he proposes would involve an additional four steps in the painting process, assembling and dis-assembling the two different types of guardrail. That is a process which would take around 30 minutes. That may be contrasted with the time during which any painter would be on the stairs, a manner of minutes, certainly no more than five minutes. There is therefore a substantial disparity in time which needs to be considered in the balancing process: a job of five minutes or less becomes one of around 30 minutes; the time to paint the whole house wall increases from about an hour to about 11/2 hours. The guardrail system proposed by Mr Stewart, utilising as it does the existing stair railings, would require those railings to be checked for suitability before being used. The railings were not built for that purpose. It could not be assumed that the railings would serve that purpose without inspection. Painters are not suitably qualified. So some other skilled person would have to be employed to do the job. That would entail the inspection of every set of railings around every external stair in the housing stock before painting off the stair could commence. Moreover, that inspection would have to be repeated regularly to ensure that the railings continued to be suitable for the job. All that would increase the time and expenses of completing the painting work of the housing stock. That, I accept, would have a major effect on the ability of the defenders to carry out the regular maintenance of their housing stock and lead to a significant amount of increased expense and delay as explained by Mr Anderson.

[66] Carrying out the balancing exercise, comparing the risk against the "sacrifice", I conclude that Mr Stewart's system, even if it could work in the manner he recommended, would not be reasonably practicable. The Pursuer therefore fails to establish his positive case in this regard.

[67] Although I have concluded that the guardrail system was not available, and that even if it were, it would not be reasonably practicable to employ it, I should say a little about alternatives that were to some extent raised in the Pursuer's evidence. Mr Stewart briefly and faintly suggested that the use of a harness would be an alternative to the guardrail. I note that there was no record for this and that this suggestion was made by him in evidence in a manner that suggested it had just come to him while giving evidence. It was not a possibility explored in any detail by agents for the pursuer, or for the defence and it was not relied on by the pursuer in submissions to any extent. I note that a harness requires as a minimum of course some sort of anchor point. There was no evidence as to whether such an anchor point was available. Mr Anderson described the use of a harness as "absurd" and no attempt was made in examination to contradict that description. I cannot conclude that use of a harness was a reasonably practicable method which was available for use.

[68] However, even though I reject the Pursuer's evidence on measures which ought to have been put in place, I take the view that the burden of proving the statutory defence still rests on the defenders, notwithstanding my conclusion that the Pursuer has failed to prove his positive case on particular measures that he says should have been put in place.

[69] As regards other possibilities for providing a fourth edge, Mr Anderson said that since he did not believe that a guardrail system was possible, the only other alternative was to employ scaffolders to erect scaffolding around the stair and dismantle it on each occasion. That he said was quite impracticable and would be very expensive and time-consuming, much more so than even Mr Stewart's system. He was not contradicted in cross-examination. I accept his evidence on this point. I have already found that even if the guardrail system were available, it would not have been a reasonably practicable step to have taken to obviate the small risk of a fall. Similar considerations apply in the case of a scaffolding system, but with much greater force.

[70] No other measure was or system was suggested or proposed by any of the witnesses or the parties or their representatives. In my view, the defenders succeed in their defence. That is, although there was a risk of the Pursuer falling, and he did fall and injure himself, the defenders did not fail in their duty to take suitable and sufficient measures to prevent, so far as reasonably practicable, the pursuer falling a distance liable to cause personal injury. The measures that they did take, which I have referred to above (principally training and pre-work inspection), were suitable and sufficient and no other reasonably practicable measure could have been taken by the defenders to prevent the Pursuer's fall. Though it may sometimes almost appear to be so, the Regulations do not impose strict liability on employers. Further, even though the Regulations, and their associated legislation, provide considerable and well-needed protection for employees and the public, they cannot eliminate risk in all cases, even when properly applied. This is one such case, regrettable though the Pursuer's injuries are. I will grant decree of Absolvitor. As regards expenses, I understood that the parties were content that expenses should follow success and I have accordingly made the appropriate order.

 

 

Sheriff Derek O'Carroll, Advocate

Sheriff of Tayside Central and Fife at Alloa

24 June 2013