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Iain Armstrong QC
Ian Mackay QC
Susan O'Brien QC
Andrew Smith QC
Geoff Clarke QC
Robert Milligan QC
Barry Divers
Malcolm McGregor
Peter Milligan
David Sheldon
Astrid Smart
Calum Wilson
Kay Springham
Robin Cleland
Amber Galbraith
Steve Love
David McNaughtan
Graeme Middleton
Barry Smith
Craig Thomson
Yvonne Waugh
Craig Murray
Richard Pugh
Gavin Thornley
Steve Laing
Derek Reekie
Jillian Martin-Brown
Compass Clerking Contacts:
Irene Mackenzie
Michelle Williamson
Grace Moran
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JURY AWARDS FOR LOSS OF SOCIETY
The families of two young service men killed on 2 September 2006 when
the Nimrod XV 230 aircraft carrier they were travelling in exploded in
midair have been awarded substantial damages in two separate jury
trials.
Servicemen Oliver Dicketts and Joe Windall were travelling with other
service personnel on operations to Kandahar Air Base in Afghanistan.
Following an inflight refuelling exercise a fire broke out on board.
Before the crew could land the aircraft exploded, broke up in midair
and crashed into the desert.
The parents of Oliver Dicketts were awarded £100,000 each for
loss of society by one jury. The mother and sister of Joe Windall were
awarded £90,000 and £60,000 respectively by another.
www.bbc.co.uk/news/uk-scotland-11537773
www.bbc.co.uk/news/uk-scotland-11687955
WORK AT HEIGHT REGULATIONS
Bhatt v. Fontain Motors Limited [2010] EWCA Civ. 863
In this case the English Court of Appeal considered Regulations 6(2)
and 7(2) of the Work at Height Regulations 2005 (“2005
Regulations”).
The defendants owned a car salesroom and workshop. When they purchased
the business they brought with them a number of fibreglass bumper kits
which they had stored in the loft area above the storeroom. Access to
the loft area to recover these bumper kits was a rather convoluted
process involving the use of two different ladders. In addition, the
process involved the second ladder being footed by one employee while
another climbed the ladder to recover the bumper kits. This process was
used approximately once a month.
The plaintiff was an employee of the defendants. On the day of the
accident he required to recover a bumper kit from the loft area.
Despite being told that a colleague would assist him shortly, he
proceeded on his own without another person to foot the second ladder.
The ladder slipped while he was using it, he fell and was injured.
The plaintiff’s case was brought under Regulations 4 to 7 of the
2005 Regulations. The defendants argued that the plaintiff had been
solely at fault for the accident as he proceeded with the task without
following the prescribed process. At first instance the trial judge
found in favour of the plaintiff subject to a reduction of one third
for contributory negligence. The defendants appealed the finding of
liability.
The defendants argued that the plaintiff was wholly to blame for the
accident and therefore there could be no finding of liability against
them. In climbing the ladder without having it footed the plaintiff had
ignored direct instructions from the defendants.
The appeal revolved around the trial judge’s interpretation of
Regulation 6(2) and Regulation 7. Regulation 6 relates to the avoidance
of risks of work at height where it was reasonably practicable to carry
out work safely otherwise than at height. Regulation 7 relates to the
selection of work equipment for work at height.
The decision of the court was given by Lord Justice Richards. He found
that the correct starting point was the Regulations and not the conduct
of the employee. The Regulations are directed at avoiding or minimising
the risk inherent in working at height. Thus work at height must be
avoided altogether if reasonably practicable to carry out the work
otherwise than at height: this was the focus of Regulation 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 (Regulation
7(2)). If an employee falls while working at height when he should not
have been required to work at height at all, it is difficult to
maintain that he was wholly to blame for the fall on the basis that the
fall would not have occurred if he had followed the system prescribed
by the employer. Similarly, if he falls while using inappropriate
equipment in circumstances where he would not have fallen if
appropriate equipment had been provided, it is difficult to maintain
that he was wholly to blame on the basis that the fall would not have
occurred if he had followed the prescribed system for use of the
inappropriate equipment. In each case, it was easy enough to see why
the employer's breach of duty would ordinarily be found to be causative
of the fall, albeit the employee's failure to follow the prescribed
system may amount to contributory negligence.
In this case the bumper kits could have been stored other than at
height. In addition a fixed ladder could have been installed negating
the need to have the convoluted process of two ladders. Accordingly the
trial judge had been correct to find a breach of Regulations 6(2) and
7(7) and the appeal failed.
CONTRIBUTORY NEGLIGENCE FOR SLIP/TRIP
James Robertson v. BAE Systems Marine Limited Court of Session (unreported) 5/10/10
In this case the court when considering the issue of contributory
negligence discussed whether an employee tripping/slipping in his
workplace would have the same duties of reasonable care to keep a look
out which a pedestrian would have while walking along a pavement.
At the time of the accident the pursuer was working at the
defenders’ ship yard on a new naval destroyer under construction.
He had been working on board for some time. At some point a manhole
cover on the deck of the ship had been moved and incorrectly replaced.
As a result he slipped on the manhole cover and was injured. The
pursuer was not aware that the manhole had been moved and replaced.
At proof the defenders argued that there should be a reduction in damages for contributory negligence.
Having heard evidence Lord Bannatyne made a finding of no contributory
negligence. In his opinion due to the hazardous nature of the site when
a ship was under construction it was not reasonable for the pursuer to
pay the same attention to the floor as a pedestrian would have to do
when walking along a pavement.
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