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BURT HONEYMAN AGAINST BABCOCK DESIGN AND TECHNOLOGY LIMITED


Submitted: 11 January 2017

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

IN THE ALL-SCOTLAND SHERIFF COURT

 

[2017] SC EDIN 5

PN421/15

JUDGMENT OF SHERIFF KENNETH J McGOWAN

 

In the cause

 

BURT HONEYMAN

 

Pursuer

 

Against

 

BABCOCK DESIGN AND TECHNOLOGY LTD

 

Defender

 

 

Edinburgh, 11 January 2017

The Sheriff, having resumed consideration of the cause, assoilzies the defenders from the crave of the writ; reserves meantime all questions of expenses.

 

Note

Introduction

[1]        This is a claim for damages for personal injuries, said to have been suffered by the pursuer as a result of fault and negligence on the part of the defender during the course of the pursuer’s employment with them.

[2]        I heard evidence from the pursuer; Michael Hutt, a consulting engineer; Gary Sharpe, a work colleague of the pursuer; and David Motion, a former Divisional Control Manager employed by the defenders.

[3]        I was also referred to a number of documents, being Productions 5/1 – 5/20 for the pursuer and 6/1 – 6/5 for the defender. Numerous factual and evidential issues were agreed in a joint minute. Quantum was agreed on a full liability basis at £3,500.00 inclusive of interest to the date of proof.

[4]        Having considered all the evidence and the submissions, I made the following findings in fact. All dates are in 2014 unless otherwise stated.

 

Findings in fact

[5]        At the time of the pursuer’s accident (see below) the HMS Queen Elizabeth Aircraft Carrier (“the Carrier”) was under construction at Rosyth Dockyard.

[6]        The Carrier is a large vessel. There are several hundred stairways on it. Most, but not all, of these stairways have two handrails – one on each side. A large number of persons employed by different contractors work on board.

[7]        One such stairway (“the stair”) was located in the aft island stairwell AMV7. It was installed in about January 2014.

[8]        The stair had the following characteristics:

a.   a gradient of approximately 58.5 degrees;

b.   a width of approximately 800mm;

c.   tread depth of approximately 185mm;

d.   a handrail on the left (while descending);

e.   no handrail on the right;

f.    an adjacent bulkhead on the right: Production 5/16.

[9]        Between the date of its installation and the date of the pursuer’s accident, the stair was used regularly by employees working on board the Carrier, including the pursuer, without reported incident or difficulty. 

[10]      On 18 March, the pursuer was carrying out his duties in the course of his employment as a surveyor with the defenders. The pursuer’s role required that he carry out surveys at various areas on the Carrier, including at the aft island.

[11]      To access the aft island, he required to go down the stair. As he made his way down, he observed two fitters.  Both were standing on the stair. They began to move out of the way. The pursuer squeezed past them before they were off the stair. As he did so, his foot slipped and he fell down to the deck injuring his ankle.

[12]      On the same day, the pursuer reported his accident to the safety manager, Mr Chrystal. A written report was prepared by Mr Chrystal and signed by the pursuer: Production 5/18. The relevant parts of it are in the following terms:

“ (Q) How did the accident happen? (A) Squeezing past another person on the ladder. Didn’t put foot fully on the tread and twisted ankle…

(Q) What in your opinion could you or the company have done to prevent this accident? (A) I should have asked the other guys to move and let me past.”

 

[13]      On returning to work on 14 April, the pursuer gave an account of the accident to Mr Motion which the latter recorded in an email, Production 5/18:

“Burt Honeyman returned to work this morning – 14/04/14

Wrt his accident I have determined the following

Burt was coming down the stairs and 2 fitters were fitting rackets at the bottom of the stairs occupying the bottom two steps.

Both stopped work as Burt came down and Burt turned side on to squeeze past them but missed his footing on the step, went over on his ankle falling down the remaining steps and landed on one of the fitters who was unhurt.

The accident could have been prevented – Burt should have asked the fitters to vacate the steps so that he could go down normally. Burt acknowledges that this is what he should have done and will do so in the future.”

 

[14]      At some time between 20 June 2014 and 7 July 2015, the stairs were rotated 180 degrees. By 7 July 2015 the stairs were fitted with a handrail on both sides:  Production 6/1.

 

Submissions for Pursuer

[15]      The court should grant decree in terms of the agreed sum, as contained in the Joint Minute.

 

The Stairs

[16]      There was an inherent risk of injury in the use of stairs within the workplace. The risk posed by stairs is obvious. The steeper they are, the more obvious the risk. The court does not need an expert, or previous accidents to inform it.

[17]      In any event, there was a clear risk in the use of these stairs. They were not ordinary stairs:

a.   they were steep;

b.   much of the pursuer’s foot (or a size 10 shoe) did not fit on the step;

c.   there were wires hanging over the stairs and along the adjacent bulkhead; some of these were electrical; they may have contained gas;

d.   there was an electrical box attached to the bulkhead, containing electric wiring;

e.   they were at an angle which was within such a range that the user might be uncertain about how best, safely, to navigate them;

f.    they had been like that since installation in around January 2014;

g.   the stairs were used regularly by Babcock staff, including the pursuer.

[18]      The defenders recognised the risk in the use of stairs within the ship. They attempted to train their employees in the use of stairs. They rely upon that training: Production 6/4 as evidence that they discharged their duties to the pursuer. Unfortunately, the training was misleading.

[19]      In any event, the pursuer was deprived of the opportunity to adhere to his training, as three points of contact could not have been achieved on these stairs.

[20]      Martin Jones v Scottish Opera 2015 SLT 401 was relied on in relation to “inherent risk” of egressing the back of a lorry and the questions which the lorry company should have asked itself in addressing that risk.

 

Reasonable Care

[21]      The defenders had a duty

a.   to assess the risk to their employees in relation to risk of injury within the areas where they were asked to work; and

b.   to take such measures as were reasonable to reduce or remove risks to their employees, such as the risk posed by these stairs.

[22]      The Toolbox Talk recognised that risk. Even if it did not, a simple consideration of the stairs would have highlighted the above apparent dangers.

[23]      In any event, the defenders had at their disposal:

a.   The guidance/publications addressed by Mr Hutt which indicated that these stairs were at an angle where the user might be uncertain about how best to navigate them;

b.   The Workplace (Health, Safety and Welfare) Regulations 1992 (reg 12); Dock Regulations 1988 (reg 7); general duties in terms of Health and Safety at Work etc. Act 1974. The regulations do not apply, but are useful resources in relation to the general duty upon an employer to have in mind the risk of stairs, and the importance of addressing those risks.

 

 

The Solution

[24]      The reasonable measure which would have reduced the risk of injury on these stairs was to install a second handrail on the right hand side. It was a reasonably practicable option. It had been done shortly after the accident.

[25]      The steps had been installed incorrectly. Had they been installed correctly, the steps would have been in a position which was facing the opposite direction. It was open to the Court to consider that, but for the failure to install the stairs correctly, the fitters would not have been working at the bottom of the stairs (which would have been 3-4 metres away from the bottom of the original stairs). The risk assessment would not have changed (insofar as people could always meet on the stairs), but this event would not have unfolded as it did.

[26]      The pursuer’s core case was that, installation questions aside, the defenders could have discharged their duties by providing two handrails. That was a measure which could have been done easily by welding them on, or using versatile scaffold-type materials which had been used on the other side.

[27]      The pursuer would have used the right handrail. Indeed, he would have been bound to do so, where possible, in terms of his training.

 

Three Points of Contact

[28]      The defenders’ line in cross-examination of Mr Hutt, the pursuer and Mr Sharpe appeared to be that the pursuer’s training really meant nothing. Yet they rely on it to show that they have trained their employees in relation to what happened at the time of this accident see defenders’ averments in Answer 4.

[29]      They told the pursuer to maintain three points of contact, where possible. The essence of the training was that the risk should be reduced by securing oneself with as many limbs as possible. Three points of contact was as many as possible where the person had to actually move. If one point of contact was then lost, there were a remaining two points of contact. If two points were maintained, at least one was left.

[30]      They demonstrated that by the Toolbox Talk. In that picture, the man is walking up/down a set of stairs.

[31]      In that picture, even if the demonstrator is not maintaining three points of contact, he has the opportunity to do so. If he steps or falls one way or the other, he has the option of the handrail. He is not demonstrating an unusual, terrified dependence upon the handrail. But it is there. He can, where possible, maintain three points of contact. The rest of the Toolbox Talk is simply misleading.

[32]      The pursuer, having received that training, was not provided with the means with which to adhere to his training.

[33]      When he lost his footing, he did not have the option of a handrail.

[34]      He had to his right, a wall which was covered in wires, some electrical, and an electrical box which he said would not take his weight.

[35]      The defenders’ proposition that the training means nothing once points of contact are reduced is to “have their cake and eat it”. The training would have been appropriate had it been delivered correctly and had the stairs been equipped with two handrails.

 

The Defence Case

[36]      The defenders’ true line of defence was one based on contributory negligence.

[37]      There was no effective challenge to Mr Sharpe’s evidence that

a.   he used many other sets of stairs such as this around the ship;

b.   most of the other stairs had two sets of handrails;

c.   the stairs had been installed incorrectly in around January 2014  their proper installation was as it was in the defenders’ photographs at 6/1 of process;

d.   the stairs had been without a second handrail since around January 2014;

e.   there was a simple solution to the absence of a second handrail, which was that one could be installed, the scaffold-type materials were versatile and a handrail could be welded on to the bulkhead (right) side. (The challenge to Mr Sharpe’s qualifications was unfounded. He had worked on ships for 26 years; he had previously been a shipwright for many years; and he had experience/qualifications in welding);

f.    This was something within the defenders’ control. (Reference Mr Sharpe’s evidence about a chain of command within Babcock where health and safety issues would be attended to by them swiftly, e.g. spike in the ground or broken/missing step.)

[38]      The defenders led no evidence positively to meet this evidence. That could have been addressed by witnesses on their List of Witnesses responsible for health and safety matters (e.g. James Fotheringham and Colin Chrystal).

[39]      The Court should draw such inferences as it considers appropriate in the absence of such evidence.

[40]      It is extraordinary that the defenders led no evidence from the fitters, or evidence by their Health and Safety staff to the effect that it had been impossible to track the fitters down.

[41]      The pursuer’s efforts to track down the fitters were explored at an adjourned commission for documents, the minutes of which are in process.

[42]      The defenders’ only witness, David Motion, spoke to a discussion between him and the pursuer.

[43]      The reliance placed upon Mr Motion’s evidence was that:

a.   there had been acceptance by the pursuer that he could have asked the fitters to move (the pursuer accepted this in cross examination);

b.   that the incident involved a process of squeezing past the fitters to the effect that he must, inevitably, at some point, have released his hand from the left hand rail.

[44]      The first element is not a defence on primary liability. It is evidence of what more the pursuer might have done for himself.

[45]      The second element is a causation argument. The proposition was that once the pursuer tried to squeeze past fitters, he must have let go of the railing on the left. It does not stand up. It is met by the following:

a.   the pursuer’s evidence was that, had the right hand rail been there, he would have used it. In the event that he had had to let go of the left handrail, he would still have had the right hand rail;

b.   the training provided to the pursuer was to maintain three points of contact, where possible. It is based on an obvious premise that three points of contact are better than two. It is also obvious that three points of contact are better than one. It is a safety precaution to ensure stability by as many points of contact as possible. The absence of a second handrail deprived the pursuer of the ability to maintain three points of contact at all. On the defenders’ suggestion that the pursuer would inevitably have let go of the left handrail, he ought still to have been provided with the opportunity to maintain at least two points of contact, and to hold on.

[46]      The final element of the defenders’ defence was that the whole exercise of climbing up and down stairs was all a matter of common sense.

[47]      The pursuer’s case is not periled upon the exercise being one of technical difficulty, although the stairs were clearly awkward. It is based on the stairs presenting a risk of injury and the corresponding absence of a reasonably practicable solution which would have significantly reduced the risk (a second handrail). It is reinforced by the defenders’ own recognition of risk, in the form of training in the exercise. Unfortunately, the training was misleading (the demonstration photograph shows a man who is not executing 3 points of contact).

[48]      Indeed, even if it had not been misleading, the pursuer could not have executed it on these stairs.

 

Credibility/Reliability of the Pursuer

[49]      The defenders’ criticisms of the pursuer’s credibility and reliability are unfounded.

[50]      He made appropriate concessions. It was credible that the pursuer did not have a photographic-type memory of the incident.

[51]      The essential elements of the pursuer’s evidence about the circumstances were clear. In the event that a handrail had been present on both sides:

a.   he would have used them both when coming down the stairs;

b.   if he had had to let go of one, he would have used the other;

c.   had he moved  to the left, he would have had one on his left;

d.   had he moved to the right, he would have had one on his right;

e.   in the event, he lost his footing and started to fall;

f.    had the right hand rail been there, he would have been holding it and would have held on;

g.   had the right handrail been present, it would have prevented the fall.

[52]      There was nothing else which the pursuer could confidently have grabbed. The surrounding area had hanging electric wires and an electric box.

 

Contributory Negligence

[53]      The pursuer’s concession that he could have asked the fitters to move was not determinative of any negligence on his part. It may have amounted to a courtesy. No evidence was led from the fitters. The pursuer was unable to track them down. Evidence from the defenders’ employees to the effect that it was impossible for them to track the fitters down was not led.

[54]      The true cause of the pursuer’s fall to his injury was the absence of the second handrail. Any finding of contributory negligence on the part of the pursuer should reflect that.

[55]      The defenders’ averment that the pursuer “failed to put his foot fully on the stair tread” reflects only the inherent danger in the steps. The stairs could not accommodate the pursuer’s full foot. The pursuer should not be criticised for something which it was impossible to achieve.

 

Submissions for Defender

Summary

[56]      The defenders moved the Court to grant decree of absolvitor.

[57]      The case turned on three factors:

a.   the court being satisfied that the account of accident was credible and reliable;

b.   the absence of a second handrail was a breach of common law duty of care; and

c.   the absence of a second handrail caused the pursuer's injury.

[58]      The onus was squarely on the pursuer to satisfy the court that he had proved each of these essential elements.

 

Witness evidence

The pursuer

[59]      There were inconsistencies in the pursuer’s evidence on a number of matters.

a.   Position on stairs

i. The pursuer said he was facing forward until "just over halfway down" the stairs.

ii.            He later said he was "3 or 4 steps up ".

b.   Position of fitter(s) on the stairs

i. Confused on whether second fitter was on the left side of the handrail, or to the side.

ii.            Then he said he was not sure if they were both on the stair or "just moving" off the stair.

iii.           Then said the second fitter was on the landing and was just an observer.

iv.           Pursuer said the fitter he fell onto was:

1.   "Maybe on the bottom stair".

2.   "In the middle" of the bottom stair, and he thought he would go off to where the other guy was.

3.   Then he said "he was on the landing when I fell".

v.            He said he was "not 100%" if the fitter got off the stair before he fell or if he was on the landing.

vi.           Pursuer said he wouldn't be able to squeeze past two fitters.

 

c.   Foot on step

i. Pursuer said he saw the men at the bottom, turned slightly and went down the edge of the tread, and fell.

ii.            Then said he put his foot on the next step, "slipped on the tread" and fell.

iii.           He also said he "missed the corner of the stair tread."

d.   Asking fitters to move

i. The pursuer accepted he should have asked the fitters to move.

ii.            Then said he fell from further up, and he didn't get a chance to ask the fitters to move. 

iii.           Then he said he didn't have time to ask gentleman to move having just said he was not in a hurry.

iv.           The pursuer said if there had been a second handrail he could have held onto both handrails until the men moved out the road. He said if he asked them to move then they would, or he would find another route.

e.   Handrail

i. Said act of falling made him let go of handrail.

ii.            He could have held onto handrail down as far as the guy on the stair.

iii.           But also said if there had been two handrails, "no need to release any hands other than sliding down handrail, other guy would have seen me and moved out the way".

iv.           He accepted if he had reached two fitters on the steps would have had to let go of handrail, because arm can't pass through them while still holding rail.

v.            Now, if carrying something, he descends the stairs facing inwards.

f.    Stairs

i. Accepted they were not intended for two way traffic

ii.            But said "sidey on" you could get past someone.

iii.           Accepted there was a risk in squeezing past someone.

g.   Accident mechanics

i. Initially said he "didn't think" he squeezed past anyone, then later changed to "did not" squeeze past.

ii.            Said he was starting to turn "in anticipation". However also said hips were facing forwards.

iii.           Said "moved over because only one handrail. Wouldn't have had to move over if two handrails".

iv.           Said not side on but "moving across stair". Said "went to turn to pass".

v.            Then said he was anticipating if the guys did not move, the only way out of the area was left as he was looking at it.

h.   Toolbox Talk and method of descending stairs

i. He had seen the Toolbox Talk.

ii.            Thought would have been more secure if coming down facing the stairs but said he continues to go down the stairs facing forwards if not carrying equipment.

iii.           He thought he was responsible enough to make a call on which way to descend stairs.

iv.           Agreed forwards or backwards would not make a difference if there was a person in his way.

v.            Sign advising should descend facing inwards was probably not there at time of accident because if it was he would have done what it said.

[60]      On material matters such as the number and location of fitters, and of the accident mechanics itself, the pursuer’s evidence was confusing and difficult to follow. The evidence appeared to evolve during his time in the witness box.

[61]      In cross examination, the pursuer regularly failed to answer questions put, and regularly answered unintelligibly. He was at times evasive. A particular passage came towards the end of cross examination:

Sheriff McGowan:      “Assume for sake of argument there were two fitters on stairs, Mr Hennessy is saying if that's right, to get past them, assuming they didn't move, sooner or later you would have to let go of the handrail, is that right?”

Pursuer:          “Yes

Sheriff McGowan:      “Because your arm can’t pass through them

Pursuer:                      “Yes

Mr Hennessy: “Still on that hypothetical – were there a second handrail – best you would be able to do would be to hold onto one, right?

Pursuer:          “Well I think I’d still hold on to two until the guys moved out the road.”

[62]      His evidence was at best unreliable and on certain points, not credible.

[63]      On the crucial matter of the accident mechanics, his averments are in Article 4.

[64]      That was not his evidence. And his evidence was contradicted by that of his line manager Mr Motion, who noted in a contemporaneous email that the pursuer’s account of the accident was that it occurred when squeezing past two fitters.

[65]      The pursuer was unsure of numbers. It does not seem to be disputed that there were two fitters on the steps. Or at least, he says it does not matter.

[66]      The Court was invited to do one of two things with the pursuer’s evidence:

a.   find that in fact the mechanics have not been proved to a standard which allows judgement; or alternatively,

b.   find the accident was caused by the pursuer having to turn to squeeze past two fitters on the bottom two steps.

 

Michael Hutt

[67]      The extent to which the pursuer relied on Mr Hutt was not clear. His evidence introduced extracts from a variety of standards relating to a variety of different industries and types of access. The conclusion reached was there is no specified standard. He omitted the inclusion of certain standards which the Court was asked to consider. Although note that he accepted the stairs conformed to the only Marine Standard recently in force. The standards applied to construction, and there was no evidence that the defenders constructed the stairs. In fact, there was contrary evidence (i.e. David Motion).

[68]      Mr Hutt's assertion of the stair being dangerous was no more than an ipse dixit. There was no objective scientific evidence for danger, and Mr Hutt appeared to draw on personal experience.

[69]      The tests for skilled evidence were well known and recently examined in Kennedy v Cordia (Services) LLP [2016] USC. Elements of his evidence may have been of assistance to the court – i.e., his trawl of standards could have been of assistance though clearly ultimately it was not. There may objectively have been a need for this evidence, were it available. However, his conclusion rests on his own interpretation of the stair as being “dangerous”. Notwithstanding that, his opinion is that holding one handrail provides little or no chance of recovery if a fall occurs.

 

Gary SharpE & david Motion

[70]      Their evidence could be accepted as credible and reliable.

 

Negligence

[71]      Reference to Regulations – the defenders were not required to take cognisance of Regulations which do not apply to them. The Workplace Regulations do not apply to ships. This was not a “dock operation” to which the Docks Regulations applied.

[72]      It was accepted on behalf of the pursuer that this is a case on common law alone.

[73]      There were no averments on

a.   failure to assess risk;

b.   what might be reasonably foreseen;

c.   on common practice or precautions.

[74]      All there was by way of averments are factual averments which might support a post hoc or a hindsight argument, i.e., a state of affairs existed before the accident and a certain state of affairs existed afterwards. There are no averments to connect the two. The only relevant case which is averred relates to the absence of a second handrail.

[75]      The onus was on the pursuer to establish that the absence of a second handrail was a negligent omission.

[76]      There was no evidence of complaints or previous accidents. No witness spoke of a pre-accident cognisance of risk presented by a single handrail.

[77]      Safety was not guaranteed or absolute, but relative Baker v Quantum Clothing Group Limited (SC(E)) [2011] 1 WLR, Lord Mance, paragraph 64, thus:

“Whether a place is safe involves a judgement, one which is objectively assessed of course, by reference to the knowledge and standards of the time. There is no such thing as an unchanging concept of safety.… Further, the fact that a single person has suffered injury due to some feature of the workplace is not, without more, proof that the workplace was unsafe.”

 

[78]      Authority on what the pursuer ought to prove in the case of a negligent omission can be found in Morton v Dixon 1909 SC, per the Lord President at page 809:

“But the point is whether there ought to have been some penthouse arrangement, and whether the failure to provide such an arrangement was negligence on the part of the defenders. As to this there is no evidence whatsoever except that of one expert witness, who says he thinks such a thing might have been put there. I look upon this matter as one of great importance not merely for this particular case, but for cases of this sort generally. Where the negligence of the employer consists of what I may call a fault of omission, I think it is absolutely necessary that the proof of that fault of omission should be one of two kinds, either – to shew that the thing which he did not do was a thing which was commonly done by other persons in like circumstances, or – to shew that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it.”

 

[79]      There was no evidence to support either method of proof of negligence.

[80]      On the contrary, there was evidence that the defenders had proactively considered the manner in which employees were using stairs and sought to remind everyone to take care, and to decide on the best way to ascend or descend. All the witnesses accepted this was information they already knew. There is no relevant training case made out on Record. In any event, there is no causative training case established in the evidence: Neil v East Ayrshire Council 2005 Rep. L R. per Lord Brodie at paragraph 26:

“While there may have been some force in counsel’s criticisms of the content of the ladder safety awareness course, for any inadequacy in the information training provided to the pursuer to be of relevance, it must be possible to point to something which the pursuer did not know but which he would have known had he received adequate information and training, and which had he known would have prevented the accident.”

 

 

 

Causation

[81]      The onus is on the pursuer to establish causation. Delictual Liability, Thomson, 5th edition, 6.1:

“The first essential is that the defender’s acts or omissions are a cause of the harm suffered by the pursuer. This is a question of fact. If the defender’s conduct is not a factual cause of the harm, there is no liability even if the defender has broken a duty of care which he owed to the pursuer.… Accordingly, to determine whether the defender’s breach of duty is a factual cause of the harm suffered by the pursuer, we must ask ourselves whether ‘but for’ the breach of duty, the harm would have occurred. If it would not have occurred, the defender’s conduct is a factual cause of the pursuer’s harm: if it would still have occurred, the defender’s conduct is not a factual cause of the pursuer’s harm. The onus of satisfying the ‘but for’ test on the balance of probabilities rests on the pursuer: it is not for the defender to provide an alternative explanation.

 

and Wardlaw v Bonnington Castings Ltd 1956 SC (HL) per Lord Reid at page 31:

“It would seem obvious in principle that a pursuer or plaintiff must prove not only negligence or breach of duty but also that such fault caused or materially contributed to his injury, and there is ample authority for that proposition both in Scotland and England.… In my judgment, the employee must in all cases prove his case by the ordinary standard of proof in civil actions; they must make it appear at least that on a balance of probabilities the breach of duty caused or materially contributed to his injury.”

 

[82]      Esto there was a negligent omission to provide a second handrail, the evidence led by the pursuer does not prove causation on the balance of probabilities.

[83]      Indeed on the contrary, the evidence of Mr Hutt, if taken in conjunction with the evidence that there were two fitters present on the stairs (causing the pursuer to let go of one of the hypothetical two handrails), positively proves that access to only one handrail would not have prevented the fall.

[84]      We heard from the pursuer in cross-examination that if he was passing two fitters he would have had to let go of the handrail. Were there a second handrail, he would either have held onto that or attempted to grab that. Accepting that at face value, only one handrail could have been available to him at the critical point. Mr Hutt states in his report at 5.10 (and confirmed in his evidence) that there is little if any chance of recovery with only one hand on the rail.

[85]      Thus, if there was a breach of common law duty (which is denied), it did not cause the pursuer’s injury.

 

Contributory negligence

[86]      It is always dependent on the precise circumstances of each case. The evidence was that the pursuer clearly accepted responsibility. He apologised after the incident. He acknowledged the numerous other options available to him with an absence of an explanation as to why they were not undertaken. This is a case where, if there is a causative negligent omission, the contribution by pursuer would be high. The pursuer ought to hold the lion's share of responsibility and the Court is invited in those circumstances to apply a figure which would reflect that.

 

Disposal

[87]      The defender submitted that decree of absolvitor was the appropriate disposal.  

 

Discussion

The circumstances of the accident

[88]      The factual circumstances of the accident as foreshadowed in the pleadings is expressed thus:

“The pursuer had completed a survey and was returning to the flight deck. In order to return to his office he required to descend a flight of stairs in the aft island stairwell AMV7.… Three fitters were carrying out electrical work in the aft island stairwell AMV7. They were fitting rackets (sic) at the bottom of the stairs. One of the fitters was standing on the bottom step. As the pursuer descended the stairs the said fitter moved to the left-hand side of the stairs. He failed to get off the stairs completely. In order to pass the said fitter the pursuer required to turn side on and descend on the right-hand side of the stairs. As he turned he lost his footing. The lack of handrail on the right-hand side prevented the pursuer from steadying himself. The pursuer fell downward.”

 

[89]      So that is the account of the accident which the pursuer offers to prove.

[90]      The pursuer’s account of accident in evidence was as follows:

“I was going down the stairs to go aft on the boat. There were guys on the stairs and working at the bottom. There is a bulkhead to the right and one handrail to the left. The bulkhead (or wall) is made of steel or wood. I think there are electrical boxes on the bulkhead. I’m not sure of the size of them. They were about halfway down.

 

There is no rail on the bulkhead. There is one handrail on the left. Beyond that it is free space on the left. The handrail is about 900 mm high. About hip height. It is a cylindrical rail with vertical supports.

 

Basically the heel of your foot goes on to the step. It is not enough room for the whole foot. The front of the foot overhangs the treads. The balls of your foot are over hanging the edge of the tread.

 

I was facing forward until I got half way. I turned slightly and went over the edge of the tread at the bottom and fell. My left hand was on the handrail. My right hand was by my side. If there had been a handrail on the right I would have used it.

 

… I think they started to move before I asked them to move. I turned side on.

As I approached the guys at the bottom one was in the middle and one was to the left or at the handrail. One was on the bottom step and one was moving. One was in the middle of the stair and one was at the bottom of the stair. I basically moved to the right, at the edge of the tread I slipped down the tread.

 

The guy in the middle was on the stair.

 

I had one hand on one handrail on – the other one was flapping about. I didn’t manage to catch anything. As I slipped downstairs, I let go of the handrail. I tried to grab it. I fell on the guy in the centre. If there had been another handrail, I’d have caught myself I imagine.

 

If there had been a handrail on each side, I’d have been able to catch my weight and balance and not fall. If there had been handrail to the right it would have been something to hold onto. If I had been holding on with my right hand only, it would have been sliding down the banister. As I fell, I twisted to the left, towards the handrail. If I had been holding on to the right, I wouldn’t have twisted in that direction.”

 

[91]      Under cross examination, the pursuer said:

“The person on the bottom step was in the middle. I was three or four steps up. The second man was on the landing. I intended to move to the right. I fell when I moved to the right. Production 6/1/2 shows the stair having been rotated 180°. It does not represent what happened on the day of the accident. I wasn’t side on. I was moving across the stair… I was anticipating having to move past him.”

 

[92]      Pausing there, although this evidence was not identical to his case on record, it is not very different. But leaving aside any understandable minor inconsistences with the case on record, such as uncertainty about where exactly the fitters were located, some key parts of it must be noted, namely, that the pursuer had not reached the fitters when he fell, but instead was a number of steps above them; he may have been side on when he fell, but was moving across the stair; and that at the moment when he slipped, he was still holding the handrail on the left.

[93]      In addition to the pursuer’s oral testimony, there were other sources of evidence as to the accident circumstances.

[94]      Production 5/12 was put to the pursuer and he accepted that this was a statement prepared by Mr Chrystal and signed by both of them on the day of the accident. The pursuer did exhibit some reluctance to accept its contents, initially saying that it was “not really” accurate but when it was put to him that it was fair to conclude that it was an accurate record of what had happened he said “yes, I suppose so”. However, he did not accept that the description therein was similar to what was shown in Production 6/1. It was put to him that he fell in the process of squeezing past the fitters to which he said “No, because there was only one guy at the bottom”.

[95]      There was also the evidence about the account of the accident given by the pursuer on his return to work on 14 April to Mr Motion and recorded by the latter in an email: Production 5/18.  This too was put to the pursuer in cross examination. He denied squeezing past the fitters. He said he did not have his back to the bulkhead.

[96]      In my opinion, the content of these documents fatally undermines the pursuer’s version of events as given in evidence. I accept that there was an accident, but in my opinion, it did not happen the way the pursuer said it did, essentially because the more or less contemporaneous account given by the pursuer and the account given by him on his return to work contradict his evidence in material respects.

[97]      Lest it be thought I am being too exacting about this, I do not criticise the pursuer for not being able to describe the precise way in which he lost his footing. That is understandable in the context of a slip or trip which by its nature happens suddenly. But here, the pursuer’s account of where he was in relation to the fitters is materially different from the account given in the accident reports.

[98]      The result is that the pursuer has not proved that the accident happened in the way averred: thus he has failed to prove this part of his factual case on record. 

[99]      In my opinion, that is sufficient to allow me to dispose of the case by granting decree of absolvitor in favour of the defenders.

[100]    I did consider whether it would be open to me to consider the pursuer’s case – and potentially finding for him – on the basis of a factual matrix based around the account of the accident given in the accident report. I have concluded that it would not. Firstly, as already noted the two versions are materially different. Secondly, the defenders have not had fair notice of a case based on that factual matrix. Thirdly, such an exercise would involve potentially finding for the pursuer on a version of events which he denied. Fourthly, such an exercise would entail the court in examining issues such as breach of duty and causation in a way not contended for by the pursuer.

[101]    Notwithstanding my conclusion on the pursuer’s factual case, it is appropriate that I express my views briefly on the other main aspects of the case.

 

Negligence

[102]    Before turning to deal with the question of negligence itself, it is appropriate that I say something about two separate but related aspects of the case.

[103]    In my opinion, the various Regulations referred to add very little. It was accepted that this was a common law case. In other words, none of the Regulations referred to were specifically engaged.

[104]    I accept that Regulations or other ‘source’ materials may inform discussion and understanding about appropriate standards in any given context. But the extent to which such materials, where they are not directly “in point”, may be treated as relevant to what might be described, in the present context, as informing an employer’s knowledge of what should properly be done in fulfilment of a duty of care will depend on a number of factors. For example, a Regulation, although not directly engaged, may be of assistance if the circumstances to which it pertains are truly analogous to or consonant with the case under consideration. If that is not so, care must be taken in seeking to take too much from them. In addition, the ease with which Regulations or other materials may be found is also a relevant factor, in my opinion. Put simply, the more obscure a reference or such other ‘source’ material is, the less easy it becomes to argue that an employer should take cognisance of it.

[105]    Turning to Mr Hutt, I did have some concerns about his evidence. Firstly, it appears to me that the proposition that the ‘riskiness’ of using stairs increases as they become steeper and the treads become narrower is not really a matter requiring special knowledge. Secondly, he appeared to me to be rather determined to attach significance to the content of documents which were not relevant. For example, he seemed to be reluctant to accept that the document produced at Appendix 7 to his report was not relevant, it being concerned with the use of ‘leaning- and step- ladders, which are portable pieces of equipment. He also seemed to be unwilling to accept that paragraph 7.8 of Appendix 6 was qualified by the reference therein to clause 10, despite the fact that that is what the former says.

[106]    Ultimately, however, his opinion that the stairs were ‘dangerous’ was undermined by the factual evidence which I set out more fully below.

[107]    The pursuer’s case was periled on the alleged failure to provide a second handrail on the right hand side of the stairs. So, the question is, did the absence of a second handrail amount to a negligent omission?

[108]    In this respect, I accept and adopt the analysis put forward on behalf of the defenders. In particular, while accepting that the use of stairs carries risks and that these risks may increase with changes in variables such as the angle of the stairway and narrowness of the tread, a mere assertion that a particular stair was “dangerous” does not suffice. Likewise, as already noted the fact that a single person has suffered injury due to some feature of the workplace is not, without more, proof that the workplace was unsafe:  Baker, above.

[109]    In my view, it is necessary at this stage to consider some of the other evidence about the use of the stairway. There was no evidence that any other user of the stair had suffered any accident or difficulty in using it; or any concerns in so doing.

[110]    To put that in some context, the stair had been installed in about January 2014 i.e. about two months before the pursuer’s accident. Although there was no precise evidence about the number of persons working on board the ship, it was evident that this was a large project with employees from numerous contractors engaged on it: Production 5/19.

[111]    The pursuer himself volunteered that he had been up and down the ship’s ladders “thousands of times”. He did say that this was the only stairway with one handrail and that he did not remember seeing others with only one handrail. There were hundreds of stairs on the ship.

[112]    In his examination in chief, Mr Sharpe was asked about his knowledge of the stairs in question and volunteered that he used them “quite regularly”; “frequently”; and “daily”. Under cross examination, he said that the majority of stairs of that type had two handrails. But his position was that he did not feel that the stairway was not safe.

[113]    It appears to me that the overall tenor of Mr Sharpe’s evidence was to the effect that there were at least some other stairs on the ship which had only one handrail. But unique or not, the absence of a handrail on the right-hand side did not seem to have caused anyone any concern; and there was no evidence of any incidents or accidents on the stair whatsoever, whether or not caused or contributed to by the absence of a second handrail.

[114]    Returning to Mr Hutt’s evidence, when he was asked in cross examination whether the defenders should have done something different absent a history of problems with using stair I have noted him as saying “I don’t know”. I then suggested to him that the evidence supported the conclusion that the stair had been used by numerous employees on numerous occasions without incident or complaint. In response he said:

 “If hundreds used it without any untoward incident then the danger is more apparent than real. But a safety officer should be looking for hazards. They should have fitted a handrail.”

 

[115]    In my opinion, it is not the law that employers must respond to ‘apparent’ rather than ’real’ risks and what Mr Hutt appears to be promoting is a counsel of perfection.

[116]    In addition, it appears to me evident that this was, as accepted, a stair designed for “one-way traffic”. The evidence was that it was only 800 mm wide. The relative narrowness of it is highlighted in the defenders’ photographs: Productions 6/1/1 – 6/1/2. Furthermore, it is clear that a person descending the stair on the right-hand side could easily hold onto the handrail on the left-hand side, even if there was no handrail on the right.

[117]    In all the circumstances, it appears to me that the absence of a handrail on the right-hand side of the stair at the time of the pursuer’s accident cannot be said to have amounted to a negligent omission.

 

Causation

[118]    I examine this issue firstly on the hypothetical assumption that instead of finding against the pursuer on the issues of (i) the circumstances of the accident and (ii) negligence, I found for him on both those points.

[119]    On that hypothesis, I accept that had there been a handrail on the right-hand side, the pursuer would have used it. In my opinion, even if the left-hand handrail was still within easy reach (as I think it was) when on the pursuer’s account he moved across to the right, I think it would have been a natural movement for him to put his right hand on to a handrail at that side had one been available.

[120]    Thus, I think that if a handrail been available on the right-hand side, it is more probable than not that the pursuer would have had a hand on each handrail at the point when he slipped. In that scenario, it appears to me to be reasonable to conclude that if he was using both hands, he would have had a much improved chance of recovery from the slip and not actually fallen. Accordingly, it appears to me that – on that hypothesis – on the balance of probabilities there was a causal connection between the absence of a right-hand handrail and the accident.

[121]    Thus, had I found for the pursuer on his account of the accident and on the issue of negligence, I would have found for him on the issue of causation. 

[122]    For the sake of completeness, it appears to me that on the factual account which is, I think, more likely to be accurate, namely that of the pursuer “squeezing past” one or more fitters while they were still on the stair, the issue of causation becomes much more problematic for the pursuer.

[123]    As a matter of logic, if that is what happened, there must have come a point when the pursuer let go of the handrail with his left hand while retaining a grip on the putative right-hand handrail. The difficulty for him there is that Mr Hutt expressed the view that with only one hand, it would be difficult to prevent a fall: Production 5/20, paragraph 5.10.

 

Contributory negligence

[124]    If I had found for the pursuer on his factual account and the issue of negligence, I would not have apportioned liability. The breach of duty would have been established as would causation; and on the pursuer’s account in his evidence (which I rejected), he did nothing wrong.

[125]    On the more likely scenario, (see paragraph [122]), the pursuer accepted that the stairs were not designed for two way traffic; that he probably should have waited for fitters to move out of the way; and that there were risks in doing what he did.

[126]    In these circumstances, I have no real difficulty in concluding that what the pursuer did was blameworthy. Had it been necessary to do so, I would have apportioned liability between the pursuer and the defender and reduced any award of damages by 1/3rd.

 

Other points

Stairs

[127]    Some reliance seemed to be placed on physical features of the stair other than the lack of a second handrail and their steepness and the narrowness of the tread. These features were not foreshadowed in the pleadings nor did it appear to me that the pursuer in his evidence sought to place any significance upon them. In my opinion, they fall to be discounted.

 

Toolbox talk

[128]    I agree that Production 6/4 is potentially misleading. But there is no case on record about a lack of training and the pursuer did not suggest that he did not know how to descend the stairs. A failure by the defender to prove part of its case does not make up for deficiencies in a pursuer’s case.

 

Martin Jones v Scottish Opera

[129]    In my view, this case can be distinguished on its facts and adds nothing.  

The Solution

[130]    I accept that it would have been practicable i.e. not complicated or expensive – to install a second handrail, had I found that that was a precaution which was required.

 

Incorrect installation of the stairs

[131]    There was no such case on record.  In any event, in my view, this is irrelevant as the subsequent change was merely one of orientation and, it was accepted, the issue of risk was unaltered.

 

Summary and disposal

[132]    In summary, my conclusions are these:

a.   the pursuer has failed to prove that the accident happened the way he said it did;

b.   in any event, he has not proved a negligent omission on the part of the defender;

c.   if, contrary to the foregoing, the pursuer’s accident happened the way he said it did and there was a negligent omission in failing to provide a second handrail, there was a causal connection between the absence of a right-hand handrail and his fall;

d.   had I found for the pursuer on his version of events, I would not have found any contributory negligence to be established.

[133]    In the circumstances, and for the reasons set out above, I shall assoilzie the defenders. I reserve meantime all questions of expenses. If parties require a hearing on expenses, they should contact my clerk so that a suitable date can be arranged.