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Sharp v Top Flight Scaffolding Limited, High Court, 8 March 2013

19 March 2013
The issues

Scaffolding – employer’s liability – contributory negligence – scaffolder

The facts

The claimant fell from a scaffold that he had erected on 23 November 2009 at the rear of a domestic property in Erith. Liability was ordered to be tried as the preliminary issue. The claimant was 40 at the time of the accident and had many years of experience as a scaffolder. He had worked for Top Flight, owned by Mr Bolton who was the sole director, for many years and for a previous company owned by Mr Bolton. On the 23 November he was working with his nephew who was employed on a self employed basis from time to time as an unqualified scaffolder’s labourer. On this day they had a job involving the erection of a scaffold for the use of a roofing company. There was no rear access to the property and the scaffolding had to be taken through the house. The ladders were not taken through the house. The claimant built up the scaffold to the eaves with Mr Eastman standing on the ground handing poles up. The scaffold was complete except for external ladder access. At this point the claimant was at the top of the scaffold with no safe means of descending. The long ladder which was the only ladder which would have reached where the claimant was could not be taken through the property. The claimant sent Mr Eastman back to the lorry to telephone Mr Bolton. Whilst Mr Eastman was making the call the claimant fell from the scaffold. No one saw him fall and the claimant was unable to give evidence at trial. Either he fell through the gap where the external ladder was to be fitted or he fell while attempting to climb down the outside of the scaffold. On the balance of probabilities the judge found that the latter conclusion was the more likely. The claimant brought a claim alleging failure to make a suitable and sufficient assessment under the Management of Health & Safety at Work Regulations 1999 and under the Work at Height Regulations 2005 and in particular regulations 4, 5 and 6 requiring proper planning and supervision of work; competency and training of a person engaged in the work or supervision by a competent person; and the taking of suitable and sufficient measures to prevent as far as was reasonably practicable, any person falling a distance liable to cause personal injury.

The decision

Although the claimant was an experienced scaffolder, there was little or no evidence of any formal training. Although the defendant asserted that the claimant had told Mr Bolton that he had passed his part 2 qualification, there was no documentary evidence to support that assertion. The claimant had been given a copy of SG4 You: User Guide to SG4 05, PreventingFalls in Scaffolding and Falsework but there was no credible evidence that any attempt was made to ensure or even encourage employees to read the booklet. He had been to two talks it had been said, but there was no documentary evidence to support that assertion and no documents evidencing what was supposedly taught.

Following Bhatt v Fontaine Motors the starting point was to begin with the regulations rather than with the claimant’s conduct. In respect of primary liability, the claimant had to establish a causative breach of duty. On the facts of this case, the court found this established beyond any doubt. The claimant had had no formal training since the 1990s and whilst he may have been competent in 1998 best practice had moved on substantially since then. The defendant’s training facilities were lamentable. The claimant had failed to provide the claimant with adequate duty and had failed to ensure that the claimant remained competent to engage in the organisation, planning and erection and scaffolding. When Mr Bolton had given evidence, it was clear that he had no clear knowledge of up to date guidance, consequently his statement that he had seen the claimant work on a regular basis and had had no cause to reprimand him was hollow. The company failed to ensure that written risk assessments were carried out on each site. Reliance on the claimant’s suggested ability to assess the job for himself without the need of a risk assessment or method statement was not acceptable. Had the claimant been properly trained and had there been a site specific risk assessment undertaken and an up to date method statement supplied the claimant would in all probability have incorporated the use of internal ladders which he plainly knew he had available to him in the construction of the scaffold.

As to contributory negligence the court relied on the guidance given by the Court of Appeal in Sherlock v Chester City Council. The decision to climb down the outside of the scaffold had been taken deliberately by the claimant notwithstanding that he had just sent Mr Eastman to speak to Mr Bolton. Equally he had taken a decision to build a scaffold without any ready means of safe access/egress. These were matters of legitimate and serious criticism of the claimant’s conduct. The claimant had consciously accepted the risk. The claimant could properly be required to bear the greater responsibility which would be assessed at 60%.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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