Description
Reclaiming motion: Contributory negligence. The pursuer was awarded decree in his favour subject to a finding of 20% contributory negligence on his part at proof. The defenders reclaimed and argued that the finding of contributory negligence should have been higher. The pursuer was working as a sub-contractor for the defenders on a building site at the time of the accident. The defenders were responsible for a number of arrangements on site including the scaffolding, provision of most materials and equipment and control of entry and egress from the site. The defenders had provided an aluminium ladder to the pursuer and his squad in order to access the scaffolding. The pursuer's squad then carried out a procedure of securing the ladder at the top with a nylon piece of rope. It was accepted by the pursuer that there were occasions on which the rope was not utilised. On the relevant day, the pursuer did not use the rope. As a result, the ladder was insecure and the pursuer fell to his serious injury. His failure to use the rope was considered by the Lord Ordinary to amount to "inadvertence and inattention". The Lord Ordinary held that the pursuer had been forced to devise the ad hoc system of climbing the scaffolding because the defenders had failed to provide a proper system. She held that the defenders were in breach of a number of the Work at Height Regulations 2005. The defenders reclaimed on a number of grounds as follows: firstly, that the Lord Ordinary had failed to take account of the co-extensive nature of the duties as between the pursuer and defender and that this was exacerbated by her failure to have proper regard to the experience of the pursuer; secondly, that the Lord Ordinary had failed in her approach to the question of whether the ladder was routinely tied off and that this led her erroneously to conclude that the pursuer's failure was due to inadvertence or inattention, and; thirdly, that the Lord Ordinary had failed to take account of an alternative ladder 'van' system which could have been safely employed by the pursuer and his squad. The pursuer contended that the matter came down to one properly addressed by the Lord Ordinary which was that the defenders were solely responsible for control of access to the site; that they had failed to provide a proper system for accessing the scaffolding; that the pursuer's squad had reasonably employed a means of accesssing the scaffolding in the circumstances provided by the defenders and that the Lord Ordinary had been correct in her finding of a modest level of contributory negligence. Held: reclaiming motion refused.
