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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Pettigrew v. Tilbury Douglas Construction Ltd [2004] ScotCS 226 (07 October 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/226.html Cite as: [2004] ScotCS 226

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Pettigrew v. Tilbury Douglas Construction Ltd [2004] ScotCS 226 (07 October 2004)

On Saturday 6 June 1998 the pursuer fell from a ladder and was badly injured. From that simple fact a complex dispute has arisen between the occupiers of the premises where the accident happened (the defenders) and the liquidator of the pursuer's employers at the time (the third party) as to who should pay him damages. It is an Insurer's dispute. The pursuer sued the occupiers and they blamed his employers. By the time the matter appeared before me for proof the pursuer had settled his action with the defenders for a considerable sum of money. The proof was led to establish who was at fault for the accident as between the defenders (who admit fault), the third party and the pursuer himself. The solution of that matter raises issues of contribution and contributory negligence. I heard no separate argument at the proof on behalf of the pursuer.

I begin with a summary of what is agreed on Record. The place where the accident happened was a partly constructed building in Ormiston near Edinburgh. The building was an extension to existing premises which were owned by a company called PPL Therapeutics Ltd. The defenders were constructing an extension, within which was an office type building. Above that building, cabling for a fire alarm system was to be fitted. The defenders who are also described as the "employing contractors" had subcontracted that work to the third party whose main business was the provision of fire alarm and security systems. On Friday 5 June the pursuer went to Ormiston and met the defenders' site manager, Mr Hugh Montague, to discuss the sub-contract and to look at the job. The further detail of that day was the subject of proof. It is also admitted by the defenders that the pursuer sustained an accident on 6 June. Beyond this there are a series of admissions of other matters as between the pursuer and the third party, mainly relating to what occurred on Saturday 6^th. Before proof, these of course do not affect the defenders and I will come to them in due course. There were no issues of quantum before me (Cond. 6 and Answers). It is also important to note what is said in the pleas-in-law. The pursuer sues only the defenders and so could only get any decree against them (plea 1). The defenders wholly blame the third party (plea 4) and also blame the pursuer (plea 5). They seek contribution from the third party as being also liable to the pursuer (plea 6). They seek apportionment between themselves and the third party (plea 7). The position adopted by the third party is to blame the pursuer solely (plea 4) and in the alternative, and whoever is at fault, to blame the pursuer on the basis of contributory negligence (plea 5). They allege sole fault by the defenders (plea 6) and they also seek apportionment (plea 7). Every contingency is covered since the pursuer has not sued the third party or adopted any case made against them by the defenders (see page 16).

As I indicated at the outset the case has partly settled only as between the defenders and the pursuer. The settlement sum was, I was told £200,000 against agreed full liability of £267,000 including interest (net of C.R.U.) and the lower figure reflected a 25% deduction for the contributory negligence of the pursuer.

The defenders led at the proof and no evidence was led by the third party. The witnesses were the pursuer, David Brown and Alan Ferguson who went with him to Ormiston on the 6 June and the aforesaid Hugh Montague. The following cases were canvassed, to a greater or lesser degree before me in the argument viz. Avery v Cantilever Shoe Co 1942 SC 469; Bain v Fife Coal Co. 1935 S.C. 681; Boyle v Kodak Ltd [1969], WLR 661; Cavanagh v Ulster Wearing [1960] A.C. 145; Christie's Tutt. v Kirkwood 1991 SLT 805; Drew v Western SMT 1947 SC 222; English v Wilsons & Clyde Coal Co. 1937 SC(HL) 46; Lanigan v Derek Crouch 1985 SLT 246; Ledger v McGregor Energy Services Ltd 27 October 2000 (Extra Division); Lee v Lee's Air Farming Ltd [1961] AC 12; Lowe v Bristol Motor Company Ltd. 1934 S.C.1; McDermid v Nash Dredging [1987] 1 A.C. 906; Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 A.C. 500; Morrisons Etc Ltd v James Rome 1964 S.C. 160; Nicol v Allyacht- Spars 1987 163 CLR 611; Stapely v Gypsum Mines 1953 AC 663; S.U.N. v Gherson's Trs. 1987 S.C. 27; Ross v Associated Portland Cement [1964] 1 WLR 768.

There was no real dispute in the evidence about what actually happened on the Saturday but there was a dispute in fact and credibility as to why the men went on the Saturday and what was said about the job and a document signed on the Friday. Let me now summarise the evidence. The pursuer was the technical director of the third party. There was another sales director called Ian Smith who is mentioned in No. 31/2 of Process. The pursuer had long experience of electrical installations, design and management. His company had supplied the existing fire alarm and security system in the building at Ormiston. He had been asked to go to the site on Friday 5^th as his firm had been chosen to be the sub-contractor for the new works. He said he was told the defenders were behind with the main contract and "... could he do the job as soon as possible ..." He offered to do it the next day if he could arrange workers and was told by Montague to let him know as he would have to arrange access with weekend security. He said he and Montague met with another man in an office and he signed the proposal for the sub-contract (No.7/6 of process). He recollected being shown where the cabling was to go above the internal office and identified that on the photos (No. 6/25). He and Montague went up an unfixed ladder belonging to the defenders on to the office roof to inspect the area. At some point he contacted his office in Glasgow to confirm that Brown and Ferguson could work on the Saturday. He later phoned Montague to tell him that and was told that security would be informed.

In chief he was asked in some detail about what he had signed on the Friday and to what extend the printed and handwritten document (No. 7/7) had been discussed and completed and whether safety codes were gone over. This whole matter assumed a significance in his evidence when it appeared that there was no principal document or agreed copy. The pursuer said the meeting was short and at lunch time. He had to get back to Glasgow. The type of contract did not need a detailed discussion as the job was easy and of no high value (£2,270.00). He disputed that some parts of the document were completed in his presence. He accepted his signature was on the Minute of the Meeting (No. 7/7) but doubted he would have agreed the percentage rate. The pursuer had no clear memory of what happened on the Saturday, no doubt because of his accident. He did say that they had helmets in their van when they went on site. He would not have worked on a Sunday due to his religious beliefs. He added that the job was being done as a favour to the defenders and so that he could impress the main contractors (Foster Wheeler Ltd).

In cross-examination he added the following unchallenged evidence. He said it would cost him money to go on the Saturday paying overtime rates. If he had done the job with a Monday start he would have paid a sub-contractor as he had other jobs to do. He said that although the third party was a limited company, on site he was that company; and, as he put it, "... the buck stopped with me ...". He had long experience working on and from ladders which should always be footed or lashed. He agreed that his own advice on the use of ladders in the third party's booklet (No 31/1 p.9) was sound. He took a risk, did not think about it and should not have done it. He was responsible for his staff and himself and appreciated the folly of himself using an unfixed ladder. He was aware that certain safety precautions were enforced on the defenders after his accident by officials of Health and Safety at Work.

David Brown was at the time a sales engineer with the third party. He went in a marked company white Renault van with the pursuer to Ormiston on the Saturday having been asked to do so. He remembered seeing security people at the Gatehouse and going through or under a barrier. Alan Ferguson was there before them. He went into the area where the work was to be done (See 6/25) and the pursuer then sent him back to the van to fetch the plans for the job. When he came back the pursuer and Ferguson were on the roof of the office. The pursuer told him to stay, as they were on their way down. He saw the pursuer, who was not wearing any hat, back towards the ladder, put a foot on to it and the ladder go sideways. The ladder was not secured and the pursuer fell. He saw that the ladder had no rubber feet. This happened about 9.20 am. In cross-examination he said the site was full of working debris but when they later came to do the job the following week it was "... spotless ...", with barriers round the roof and ladders tied on at one corner. He confirmed that he was not at the foot of the ladder when the pursuer fell and had not been asked to hold it.

Alan Ferguson was a service engineer. He went to Ormiston from his home in Clydebank on the Saturday in a company car and signed in with security at the Gatehouse. He confirmed that both he and the pursuer ascended the ladder on to the office roof. Brown had gone for the plans. The pursuer showed him where the work was to be done. When Brown came back holding the drawings the pursuer said to him "Don't bother coming up, we are just coming down". There was no mention of footing or not footing the ladder. Nobody was wearing a hard hat. When the pursuer put one foot on the ladder, he and it fell. At that point Brown was some 10 feet away from it and not near enough to have supported it.

In cross-examination he confirmed he had been asked by the pursuer by phone on the Friday to work on Saturday. He was of the opinion that security were aware they were coming. He remembered a man at the gate saying "... I was expecting youse in ..." He could not remember whether he held the ladder when the pursuer went up. He was of the opinion that any hard hat worn by the pursuer would have fallen off. The site he said was "messy", but by Monday was "spotless", and by Tuesday had edge protection, scaffolding and a fixed ladder.

Hugh Montague was the final witness. He had worked with a number of employers as contracts and site manager. He was at the Friday meeting and said it only took about half an hour. On a Friday, work would finish early, about 3.00 p.m. He said it was a standard meeting with set minutes. There was also a surveyor present (possibly McLennan). Parts of the contract documents were filled in and he saw the pursuer sign. His evidence about precisely what happened was not entirely clear and he tended to say that certain things "... would be gone through ..." and "... would have been done ...". The Code of Practice (No 7/13) was signed for (No. 7/12) and given to the pursuer. Whether the pursuer read it then he could not say. (I observe that No. 7/13 is only of interest in relation to hard hats). He said that the start date was the Monday as No. 7/7 shows.

The witness was taken in some detail through the documents from No. 7/6 onwards, including for example the Method Statement and the Quality Assurance (No. 7/11). He said what parts he had completed, and emphasised that the pursuer had signed in five places. When he left on the Friday he intended to return on Sunday as there were painters working there over the weekend. He denied any arrangement to see the pursuer on site on Saturday or Sunday. After the short meeting both he and the pursuer went into the work area, and went up the metal ladder on to the internal office roof. He thought that the ladder was "footed" by a pallet of plasterboard (a matter not put to the pursuer). After the pursuer left he completed some paperwork. He maintained that the pursuer and his men were expected on Monday when he would have given them a site induction course (see 7/14). He was expecting a Risk Assessment on the Monday. Following the accident H.S.E. had issued him with a 7 day improvement notice.

So far as Saturday was concerned he said the pursuer had phoned him on the Friday later on asking for access over the weekend which he refused. In cross-examination he was again taken through the contract and the Minute, and confirmed it had all been completed at the meeting, although he conceded that two other (named) people might have had some input at a later time. He could not understand how the pursuer got access on the Saturday as security should not let in people who were not expected. Again he said he had expressly forbidden the pursuer to come on Saturday (a point not suggested in this way to the pursuer). Finally he was asked about a safety Circle Meeting held on the Monday at which he was present. He could not explain the obvious error on page 5 about the start date. (The note of the meeting is No. 31/2).

Before dealing with the submissions it is useful to look at what are said to be the duties incumbent on the third party, breach of which may entitle the defenders to contribution. These are found on page 16 of the Closed Record. There is a duty to attend on the 8^th and not the 6^th. Brown is blamed for not footing the ladder. There is a case made that the ladder should have been tied or footed. It is alleged that hard hats should have been worn. It is said that a Risk Assessment should have been prepared.

On the basis of the evidence and these duties Mr Arthurson for the defenders submitted to me as follows. The pursuer's memory of events was not reliable due to the accident. He did receive No. 7/13 of process and did not wear a hard hat even though he had them in his van. Counsel accepted, however, that there was no clear evidence that a hat would have stayed on the pursuer's head or would have lessened his injuries. Brown, he said, accepted that he should have footed the ladders and had a duty to do so. That duty was not performed and caused the fall. Further, he said, there was a duty not to go on the Saturday as that had been forbidden by Montague. They went there on that day without any induction exercise having taken place. Also because they went on Saturday no risk assessment had been prepared. The third party should make a substantial contribution to the defenders' admitted liability. Counsel then referred me to a series of familiar cases to illustrate the proposition that no matter what the status of the employee, the employers always had a duty to take reasonable care and that they could not delegate it to a third party, however competent (McDermid v Nash Dredging). The duty was a continuing one (English v Wilsons and Clyde), and took precedence over any rule of evidence about trade practice (Cavanagh v Ulster Weaving). He then examined the position where the pursuer or plaintiff was both an employee and a director under reference to causation (Stapeley v Gypsum Mines). He founded particularly on the Australian case of Nicol v Allyacht Spars where inter alia it was held that a failure by a company to provide a safe system of working was a failure by the company even if the director/employee was instrumental in making the decision which led to that failure. Lee v Lees Air Farming was to the same effect. Persons could act in dual capacities and in one capacity give orders to themselves in the other capacity. The special feature of that case was to decide whether the deceased pilot was not only a director but a "worker". The Privy Council held that he was.

That meant that the third party's own Safety Booklet (no. 31/1) could not be ignored and on page 3 the ultimate responsibility lay with the employer i.e. the third party notwithstanding that the pursuer was a director. Any contributory negligence by the pursuer should be a low figure. The third party allowed him to use the equipment on the defenders' premises and were responsible for the system he himself put in place. It became their system even though he devised it.

When he came to reply, Mr Ferguson narrated to me the history of the case and the settlement. He said the third party should not be obliged to make any contribution and referred me to the Law Reform Miscellaneous Provisions (Scotland) Act 1940 sec. 3(2). He there renewed an objection taken at the proof to two lines of evidence relating to a ground of fault and to No 7/7 of process. I shall deal separately with these later in this opinion. The success or otherwise of this objection affects the testimony of Montague in one important respect. Leaving that aside he continued with an analysis of the various common law cases he had to meet, noting that there was no common law case made against Ferguson or to use the third party's own ladders. The third party only had to meet the case plead against him, not any other case however attractive is might seem (Morrisons v Rome).

On the evidence the pursuer was the technical director, shareholder and employee. The third party was in law separate and distinct. The Friday meeting was against the background of a large contract which was behind schedule. McLennan was probably also present but he did not give evidence. It was not the kind of meeting for going over a contract in detail and it may only have lasted a half hour plus time for a "look around". What was crucial was what happened afterwards. The pursuer should be preferred on the fact that the defenders agreed to a Saturday start. On this point Montague was not truthful. The pursuer expected to do the job as soon as possible. Given the distance to Ormiston it was inconceivable they would have gone if not expected, far less if they had been forbidden. Express prohibition had not been put to the pursuer, and the Safety Circle meeting was inconsistent with a Monday start (No. 31/2 of process). The factual basis for a Monday start was not proved.

Having arrived and signed in they went to an untidy area to begin. The pursuer was in charge. Brown did not know where they were working and was sent for the drawings when the pursuer and Ferguson went on the roof. On his return he was some distance from the foot of the ladder when the pursuer told him not to come up. There was then a sudden event - a foot was placed on the ladder and the pursuer fell. Brown had no reason to know, nor could he have known that the ladder was not footed or secured. As a subordinate employee he was under no duty to tell his superior to wait, and in any case Ferguson could have held the top of the ladder. The factual basis of the duties against Brown were not proved.

The case for wearing a hard hat was not made out either. It was more than likely any hat would have come off and there was no medical evidence as to how it would have affected the severity of the injuries. The court could not make its own assessment of the brain damage. In the absence of such evidence it could not be held that non-compliance with the Code of Practice, given in No. 7/13, by not wearing a hat would have made any difference.

A risk assessment would have made no difference as the person preparing it would have been the pursuer. In any event it only related to a Monday beginning which never happened.

What of delegatable duties? These would only relate to the duties on the third party not on Brown. Since the third party was a company it could only act through individuals and here the pursuer was "the directing mind and will" of the company. He referred me to Meridian Global v Securities Commission at 509. Any fault by the third party at common law was co-extensive with that of the pursuer and in substance was due to the pursuer (McDermid v Nash at 910F). Non delegable does not mean that a duty is incapable of being delegated but only that an employer cannot escape liability if the duty has been delegated and then not properly performed. However, if the person to whom the duty was delegated brings about the breach then he cannot recover (Ross Associated Portland Cement and Boyle v Kodak). These cases showed up employees in very different categories from this pursuer. Was it their actings which put the defendants in breach of duty or were they asked to make decisions which should have been taken by others. The real question always was "whose fault caused the accident" (Lord Reid in Ross at 776/7 and in Boyle at 665). If the employee brought about the breach of duty then he could not recover if he was the injured party (see Lanigan v Derek Crouch at 347). The position was the same if the duty was under Statute or Common Law. Here only the pursuer was at fault and only he was injured.

The final argument on the facts before me related to contributory negligence on the part of the pursuer. By the time this argument reached me the whole matter was somewhat hypothetical and in a sense artificial. The pursuer and his advisors were no longer in the case. The defenders had settled with the pursuer on the basis of 25% contributory negligence vis a vis them. I could hear no contradictory argument on the subject from the pursuer (who was absent) or the defenders (who had no apparent interest having settled). However, it was a live issue for the third party if they were contributing to whatever extent.

The settlement I have already narrated. The only importance to the third party, if they were liable, was to suggest that the defenders had settled at too high a figure with the pursuer. A judicial determination of contributory negligence after proof would have shown a much higher percentage. That would then have materially reduced the quantum figure. If the third party were to have to contribute, it would only be to that lower figure. In essence the third party are saying the defenders overpaid and that should not bind them. The pursuer has no interest to see his (already paid) damages reduced.

I refer to the record and have noted already what is said in the pleas-in-law.

The only authority on the point mentioned by Counsel was Christie's Tutor v Kirkwood an Outer House decision. In that case the pursuer sued both defenders who each sought apportionment. Only one defender sought a finding of contributory negligence against the ward. The Lord Ordinary held that the defender who had no plea of contributory negligence would get the benefit of it should the other defender's plea be sustained. This is clearly correct in a situation where there had been no proof on any of the pleas, and all matters were at large. However, in the case before me one party has assessed quantum and contributory negligence and it is the basis of a settlement not binding on the other party. The argument before me, which had no real contradictor, seeks to disturb the assessment of contributory negligence. The normal rule in Christie's Tutor seems to me to sit uneasily with the situation in the present case. A different finding of contributory negligence may bring no great benefit to the defenders who have already paid.

Counsel for the third party asked me to consider contributory negligence only in the event that his clients had to make any contribution. It was really a jury question; and he looked at the various percentages in the cases cited. As the defenders were bound to be liable the pursuer could not be 100% to blame, but should be found substantially at fault. If the third party were to contribute at all any percentage should be minimal. Any breach by them was technical as the defenders had created the opportunity by leaving an unsecured ladder on an untidy site. He referred me to Drew v Western SMT at 240 (after proof) and again to Christie's Tutor v Kirkwood (before proof).

All that remains is to set out briefly the arguments on the two objections taken at the proof where I allowed the evidence subject to competency and relevancy. They relate to different matters. The first arose during the evidence of the pursuer. He was asked about a "method statement". Objection was taken and renewed at the hearing on evidence. It was argued that no case of fault was plead regarding method statements.

The second related to No. 7/7 of process, the alleged Minute of the Meeting on the Friday. In the course of the early evidence of the pursuer it became apparent to the court that he was looking at a photocopy of a document which had been compiled by at least three people (himself, Montague and McLennan who did not give evidence) and, later, possibly four (mention was made of the Chief Quantity Surveyor of the defenders, a Mr Waterfield). Objection was taken then and later on the basis that the original should have been produced or at least available (it was not) or the copy agreed as equivalent (not done here). It is the defenders' document and I was not told it was lost or destroyed. It is important as inter alia it gives Monday as the start date. No. 7/7 of process, being a copy, was not the best evidence. I was referred to Dickson: Evidence (1887 edn.) para 195 and Scottish Universal Newspapers v Gherson's Trs. 1987 S.C.27. The copy could be admissible if lost or destroyed without fault. The original had not been sought by any specification. The importance of the objection was that it could not be used to support Montague on the Monday start. He was in any case only a minimal author of the document. It was more likely that McLennan was the author. In any event the copy was not authenticated in any way to be admitted under sec. 6 of the Civil Evidence (Scotland) Act 1988. It had to be observed that the court had heard no evidence as to why the principal minute was not available or was lost or destroyed without fault in the hands of the defenders. No casus amissionis had been shown.

Let me now look at some of the authorities cited beginning with the merits. A series of cases was referred to where employees had admittedly selected competent persons to perform the employers' duties. In Bain where a mine motorman had been injured it was emphasised that the master could not divest himself of responsibility by entrusting the duty to someone else. Lord Thankerton affirmed this in English at page 57 as did Lord Wright at 64/5; and in Cavanagh where a roof worker was injured, it was emphasised that this principle was more important than any long standing formula in the law of evidence about how the duty was proved. Stapely was really a case of contributory negligence. Two experienced miners had been left to bring down an unsafe roof by the foreman. The trial judge (Sellars J.) had found that the foreman was justified in leaving them to do this and they were competent to do it. They could not get the roof down, abandoned that and went on with their normal work in different places. They both knew not to work under the roof unless it was safe. The roof fell and killed Stapely. The employer was found liable because of the fault of the other employee (20% only). This case was urged on me because the pursuer and Brown were both employees of the third party. McDermid was cited as authority for the proposition that while an employer can delegate to a competent person, if that person does not properly perform the duty the employer cannot escape liability. Lanigan was a case where it was held that the fault of an experienced workman was co-extensive with that of his employee

Two further cases should be noted concerning employees.

Boyle was a case where the injured workman was an experienced painter. He fell from an unlashed ladder having failed to use an obvious safe way to secure it. The trial judge and Court of Appeal found him solely to blame. In large measure the case turned on the evidence, and especially the failure of the employers to lead any (see Lord Reid at 667/8). The defence failed because no instructions had been given to use the fixed ladder first of all. In that case the absolute duty was incumbent on both employer and employee. I think that the importance of this case is that in securing ladders, if an employee knows what duty lies on him to secure it and does not do so, that can be a complete defence to the employer. In the case before me this has to turn on the evidence I heard. In Boyle the respondent's failure to lead evidence resulted in the defence not being established and a 50% liability on the employer.

In Ross reliance again was placed on the great skill and experience of the deceased worker, who at the time was doing a job, without instruction, which he had never done before. Once again, until the House of Lords, the widow failed, the lower courts holding sole fault by the deceased. The House of Lords held that the deceased could not be regarded as an expert in this particular type of work and he should not have been left to take the decision to work from a ladder supported only by the overhead net. The employer was found two thirds to blame. For my purposes in this case I have to decide whether on the evidence, the pursuer is an expert on safety on ladders and was entitled to decide how to use the one provided. Clearly, on any view he is in a position of greater skill and status than either employee in the cases just cited. The case of Ledger does not advance matters since no evidence was heard and before answer the case was sent for proof.

I now move to these cases where the courts have looked at and discussed the question of what happens were the injured employee is also a director of the party responsible. All of them were decided after proof, and considered whether the knowledge or actions of the employee could be attributed to the company.

In Meridian Global the appeal arose because the appellants (M.G.F.M. for short) had been found in default in not giving notice to the Securities Commission and a third party company (E.N.C.) that they had become a substantial share holder in that company. (Why this was necessary can be seen at 511C). The appellants had been found liable in substantial costs. The facts disclosed a spectacular act of deception which nearly succeeded. Using a respectable front and employing some of the appellants' funds certain institutions and individuals in the Far East made a predatory share raid on the third party "target" company E.N.C. It was very wealthy. The purpose was to resell at a profit, and was only frustrated at the last moment by actions by the directors of E.N.C. The "raid" was accomplished by two rogue dealers, a

Mr Koo, who was the chief investment officer of the appellants and Mr Ng, its senior port-folio manager. In spite of the managing director and the board being unaware of this transaction, it was held that, whether or not these two could be described as the directing mind and will of the company, Koo's knowledge of the transaction was attributable to the company. There was a very detailed proof (see 505) before the trial judge into the workings of M.G.F.M. and the role of the managing director. I heard no such detail in the case before me.

It is of some interest to note that Koo openly recorded the transactions in the books, but did not specifically report them to the managing director who did not supervise what Koo was doing. At 509 Lord Hoffman, discussing the well known Shipping case of Lennard's Carrying, analysed what Viscount Haldane had done when he looked for the person in the company who, in relation to the casualty, did the very tasks which an individual ship owner would do.

In the case before me this translates into asking who, on the evidence, would give instructions for the job to be done, devise safety systems, and organise and assess how not to proceed. The third party said this was the pursuer. Nobody supervised him and he was not answerable to anyone. He admitted as much himself. There was no evidence that the sales director Smith concerned himself in any way with the job. His only involvement was post accident when he attended and signed the Minute of the Safety Circle meeting on the Monday. The pursuer, on the other hand, was responsible for commissioning the third party's safety booklet (No.31/1 of process) which at para. 20 contains details about safe use of ladders (which he went on to ignore).

As Lord Hoffman pointed out at page 511 it is not a particular descriptive phrase or formula which matters but the purpose for which attribution has to be made.

Nicol v Allyacht-Spars presents a different set of facts. An employee was injured when he was manoeuvring an advertising banner from the horizontal spar of a flagpole. The system of working was plainly unsafe and the ladder which was used fell. It was clear from the proof that the job had been discussed by the plaintiff and a director of the company. The plaintiff was both an employee and director, and the trial judge found that he had agreed expressly or implicitly with the use of the system proposed. At first instance and on appeal his claim failed as the system adopted was his own. The High Court after a review of the authorities, found for the appellant. The majority stressed to some extent the position which the plaintiff had in the company. It was also clear that others had in part devised the system and his part was described (page 625) as minor.

On the facts it is not difficult to see why the plaintiff succeeded. However, the proof before me discloses a different situation about the pursuer as I have already stated.

Perhaps the case nearest in point is Lee v Lee's Air Farming Ltd. The appellant's late husband was the governing director of the respondent company. He was also employed by the company as the chief pilot. The deceased was also the controlling shareholder and took all decisions about contracts for aerial top dressing, prices and the use of the plane. In the course of such an operation the plane stalled, crashed and he was killed. The widow sought compensation and the question was whether the deceased was a "worker".

The case is not truly in point because what was in issue was, from the stated case, interpretation of Statute. It is clear from the stated case that the proof before the judge of the Compensation Court looked at the articles of the company, entries of the deceased's wages in a wage book and certain notification to insurers. In Lord Morris's judgement 26/7 he distinguished between the legal persona of the deceased and the company; and at 30 saw no difficulty in the concept of the deceased in the capacity of the company giving himself orders in his capacity as a "worker". This case was not founded on by the defenders to any degree perhaps because the proof before me did not examine the same issues in such detail. Indeed there was no, or very little examination of the structure of the third party.

I now deal first with credibility and later my findings on the evidence including what is also agreed or admitted.

I accept the pursuer, Brown and Ferguson. Their evidence was consistent both in general and in detail. There was no real dispute about the Saturday. I hold that security were expecting them and let them in. The site was untidy and the defenders' ladder was there from the day before. I hold that Brown was sent for the plans and when he came back was told to wait as the pursuer was coming down. It is not entirely clear whether the pursuer put his right or left foot on the ladder, but whichever, it moved sideways and he fell. He was not wearing a hard hat. He had prepared no risk assessment as that would have been for Monday.

I am further persuaded that the pursuer is a credible witness by the fact that the job was done on Saturday. His evidence and the surrounding circumstances conflict with Montague and the weight of all that evidence is against Montague whom I do not believe. Accordingly the factual basis of any case to come on Monday is not proved. There are a number of matters of importance arising out of the evidence.

By a series of phone calls, the pursuer made elaborate arrangements with his men to go on Saturday. He said Montague agreed to this. Montague said he did not and forbade any Saturday working. This point was never put to the pursuer and I am critical of that. In my opinion, Montague is not to be believed on this point. It is inconceivable that the pursuer and the others would have gone then if forbidden or not expected. For one thing, the distance was significant and Ferguson had to come by car from Clydebank. Also it cost the pursuer overtime rates which he was prepared to pay. I hold it proved that security expected them and let them in. That could not have happened if Montague was right. There were already painters working on the Saturday without supervision. The pursuer and Brown came from Airdrie in an OFS marked Renault white van.

I am also surprised that the defenders did not lead McLennan who was at the meeting on the Friday and had a hand in No. 7/7 of Process. The final problem about Montague's evidence is No. 31/2of Process. That is the signed Minute of the meeting of the Safety Circle convened on the Monday after the accident. Montague was at that meeting. The Minute unequivocally says that the pursuer was expected on the Sunday. That cannot be correct. Montague said he told the meeting he had forbidden Saturday but there is no mention of that in the Minute. All of this was done after Brown and Ferguson had been interviewed. This document also contradicts Montague's evidence that a start on Monday was agreed.

There is a quite separate reason for holding that the factual basis for a Monday start is not proved. That brings me back to the two objections. The first about "method statements" has really disappeared and was not seriously argued by the defenders. I sustain the objection and exclude any evidence about such. I also sustain the more serious objections about No. 7/7 of Process which is the appendix to the Sub Contract No. 7/6.

The evidence about the document is itself unsatisfactory. The pursuer accepted that he had signed No. 7/6 (the contract) and the Minute No. 7/7. Some of the later documents which have questions must have been completed at a later time. There could not have been time on the Friday meeting to do all the extensive paperwork produced for the proof (7/9 to 7/11). This is not inconsistent with the pursuer accepting he was given No. 7/13 at the meeting.

However, the objection only relates to No. 7/7 which specified a Monday start with all that entails. The only document produced to the court is a photocopy. There is no agreement that it be held as the principal and there is no explanation as to why the principal is missing. The tenor has not been proved and no casus amissionis is averred. Montague is not the sole author of the document. The only case cited to me of importance was S.U.N. v Gherson's Trs. which makes it clear that a party must lead the best evidence being, in the case, the relevant financial records. If these are missing the party relying on them has to show loss without fault on his part.

In the present case there is simply no explanation. Montague could not know what happened to the paperwork, and no other witness was led. I accordingly sustain the objection and exclude No. 7/7 and any evidence about it.

Returning finally to my findings on the evidence, in my view, the defenders' case against the third party fails. I have already held that I accept the pursuer, Brown and Ferguson as credible and reliable; and that I do not accept Montague as reliable on the subject of the meeting, and find him untruthful about the Saturday start.

Given that the pursuer was entitled to be there on the Saturday any case based on a Monday start and the production of the Risk Assessment cannot now succeed. The case against Brown as an individual also fails for two reasons. In the first place he had only gone there that day, did not know the job and he was told to stay where he was as the pursuer was coming down. He could not have been expected to contradict that. Secondly, at the time the pursuer put his foot on the ladder, Brown, who had not previously seen the ladder, was not near enough to foot it, even if he had wished. For all he knew the ladder could have been safe.

The case for wearing a hard hat was but faintly argued. It had to be accepted that there was no evidence that it would have stayed on the pursuer's head or that it would necessarily have lessened his injuries. Wearing the hat would not have prevented the fall.

That only leaves the case that the ladder should have been tied or footed. The ladder, of course, was the defenders' ladder and the decision as to how it was to be used was that of the pursuer himself. The decision would have been the same whether he was director or worker, and there is no room for delegation. I hold that his fault is co-extensive with that of the third party. The real question is whose fault caused the accident to the pursuer and in the present case on the evidence that admits of only one answer viz the pursuer. In my view it would be wholly wrong and completely artificial to hold the third party liable. The proof before me did not explore matters in the detail gone into in Lee and it was clear in Nicol that the directors had met and discussed, however informally, the way the job was to be done. I heard no such evidence. In the result the third party has to be assoilzied.

The argument about contributory negligence as between the pursuer and third party now becomes academic and the plea concerning it is redundant. However, in case the matter goes further, and on appeal the third party is found in any way to blame, I should indicate my view. It is very much a jury question, but on the evidence, as between these parties, I would have found the pursuer 90% to blame.

In the result the third party will be assoilzied on the evidence. I will accordingly deal with the pleas-in-law as follows. I sustain the second, third and fourth pleas-in-law for the third party. It is not necessary to deal with pleas one, five, seven and eight for the third party which are now redundant; and plea six, in view of the settlement and my findings at the proof I also sustain.

So far as the defenders' pleas are concerned, I repel the only ones argued viz four, six and seven. The defenders' plea five is covered by the settlement.