OUTER HOUSE, COURT OF SESSION

 

[2008] CSOH 40

 

PD1658/05

 

 

OPINION OF LORD CARLOWAY

 

in the cause

 

THOMAS RUDDY (AP)

 

Pursuer;

 

against

 

(FIRST) MONTE MARCO AND

(SECOND) M & H ENTERPRISES LTD

 

Defenders:

 

 

________________

 

 

 

Act : Hajducki QC, Lloyd; Anderson Strathern LLP,

Alt : RN Thomson; Anderson Fyfe LLP

 

7 March 2008

1.                  Facts not in dispute
[1] On Tuesday, 5 October 2002, the pursuer was injured when working in Bay 2 of a warehouse at 137 Shawbridge Street, Pollockshaws, Glasgow. The second defenders were the owners of the warehouse. The first defender was, and is, a director of the second defenders. The first defender and his wife (the M and the H) are the only shareholders. Officially, at least, the second defenders had no active employees and no employers' liability insurance. They had owned the warehouse for a number of years and had rented part of it out to Glasgow Design Centre Ltd, a shop-fitting company, for storage. Otherwise, there was no trading taking place in or from the warehouse.

[2] In July 2002 vandals set fire to the roof of the warehouse, causing significant smoke damage to the internal walls and flooring of Bay 2 and buckling some of the steel beams visible in the open roof space. A sprinkler system, installed in that space, had been inoperative for some time. The first defender engaged Hi-Clad Roofing Ltd to replace the roof of the bay. This was done over a period of some weeks from about mid August to early September 2002. Invoices were rendered by Hi-Clad to the second defenders, although the ones produced (No 7/17 of process) all post date the accident. It was the intention of the first defender that the warehouse space be leased or sold as soon as possible. Particulars, dated 11 September 2002 (7/16), were prepared by the Griffin Webster Partnership, chartered surveyors, for that purpose. The final page of the particulars is a sketched floor plan with the second defenders' name hand written on it.

[3] The first defender had operated a number of trading companies over the years. He had an office in Barrhead. One of his companies had been VP Packaging Ltd. This company packaged whisky and other drink related items at Barrhead Industrial Estate. At one time, it employed over one hundred persons. The first defender also operated Veyco Ltd, along with a co-director, Hilton Levy. This company had discount jewellery shops, notably one at the Pollok Centre.

[4] The pursuer was fifty one years of age at the time of his accident. His injuries are such that he can remember nothing of his own work history, the accident or his relationship with the first defender. He is a fitter by trade. He had worked for Sunblest Bakeries for some eighteen years before being made redundant in the mid 1990s. Exactly what his employment history was after that is unclear. He had worked at VP Packaging's premises, doing general maintenance work, some time in the late 1990s, although the first defender had no recollection of that. Two of the pursuer's sons, Scott and Mark Ruddy had also worked there. The pursuer had done work at the jewellery shop in the Pollok Centre, albeit primarily instructed by Mr Levy rather than the first defender. But the pursuer and the first defender knew each other reasonably well and, from time to time, the pursuer did odd jobs, such as painting and joinery, at premises owned by the first defender's companies. The first defender trusted the pursuer to do a good job, whatever the task, and to complete it on time.

[5] The pursuer spoke to the first defender at some point in the Autumn of 2002 and was asked by him to carry out work at the warehouse, including cleaning and painting the walls and washing the floor. The arrangement was that he would be paid 40 (or 50) per day and work five days a week from about 9am until about 4pm. Sometimes, the pursuer would ask permission to come in late or to take an afternoon off. If he were to be coming in late then he would tell the first defender that he would make up the time at the end of the particular day. The first defender would call into the warehouse two or three times a week to check on the pursuer's work. The paint was bought by the pursuer in the expectation of reimbursement.

[6] The pursuer was paid 200 (or 250) by the first defender in cash every Friday afternoon. The cash did not come from the second defenders, or at least not directly so. Rather, the first defender would pay the pursuer and later reimburse himself from the second defenders' bank account by drawing cheques for cash sums. He did so on 26 September and 4 October (7/14-15), withdrawing 500 on each occasion. In due course, the money withdrawn from the bank was entered into the profit and loss account of the second defenders (7/10) under "repairs and renewals" as "clean up", along with the cost of hiring a floor cleaning machine.

[7] It was arranged that the pursuer would remove the pipes of the sprinkler system and some of the buckled beams from the roof space. The pursuer obtained a Stihl saw to enable him to cut through the metal. This work was to be done at a level above the wall height of fifteen feet six inches. It required scaffolding. By the time of the accident, the pursuer had been working at the warehouse for at least four weeks.

[8] There were two tower scaffolds in the bay. The larger of these was positioned, some distance out from a wall, at the end of a newly painted section. The smaller one was a narrow gauge scaffold, placed against an unpainted and only partially cleaned wall. By the day of the accident, the painting of the bay was 60-70 per cent complete. Some time after 9am on that day, the pursuer was working with the saw, cutting down the sprinkler pipes. He was working from the larger scaffold. Ten minutes earlier, he had let Matt Anderson of the Glasgow Design Centre (supra) into the warehouse. Mr Anderson had gone through to a different bay, where his company's storage facilities were located. He heard the saw in operation shortly before the occurrence of a crash and a bang. Mr Anderson went back to Bay 2 and found the pursuer lying on the floor near the foot of the larger scaffold, with the saw and his hard hat lying nearby. Also near the pursuer was a sprinkler pipe, which had been cut at one end and was hanging loosely from the roof space almost vertically defining the areas of painted and unpainted wall. The pursuer had fallen from the scaffold to the floor while cutting the pipe with the saw.

[9] When the Health and Safety Executive inspector (Yvonne Wark) arrived later that morning, photographs (6/26) were taken of the bay. These show the larger scaffold tower with no guard rails on two sides (the front and rear) of the upper working platform from which the pursuer was working. That platform was at a measured height of 3.7 metres (just over twelve feet) above the ground (see the HSE Statement, spoken to by Ms Wark, attached to 6/28). The platform was only half boarded out; the other half of the boarding being used to create a lower (also half boarded) platform. There was a plastic bucket on the upper platform. The scaffold had four wheels, each fitted with a brake mechanism. Only one wheel had its brake applied. No prosecution in respect of the state of the scaffolding was undertaken by the procurator fiscal or apparently recommended by the HSE. The HSE inspector was unable to say why that was; the decision being that of her line manager.

[10] The first defender was telephoned and attended at the warehouse before the pursuer was taken to the Victoria Infirmary. The pursuer's injuries render him unfit for work and he requires a carer to look after him. His wife Catherine fulfils that role. Damages, on the basis of full liability, are agreed at 450,000.

 

2. The Nature and Extent of the Work
[11] There was little in the demeanour of the members of the pursuer's family or the first defender which shed any light on their credibility or reliability. However, there was a lasting impression that both sides, but especially Mrs Ruddy and the first defender, were conscious of the potential significance of their answers in relation to the pursuer's status. This is perhaps not surprising, but there was a substantial degree of tailoring (infra) being applied to these answers to suit the needs of their respective cases. The assessment of their evidence proceeds in that context. The truth and accuracy of their testimony can be effectively tested against the evidence from witnesses with no interest in the dispute. These were notably Mr Anderson and Joe Gordon, both of whom gave their evidence in a straightforward manner and whose credibility and reliability is fundamentally sound. Their testimony can also be tested by comparing it with other circumstances established and by gauging its inherent likelihood. The submissions of the parties were concerned primarily with such areas of fact and they are not rehearsed in that regard.

 

(a) THE PURSUER'S GENERAL WORK HISTORY
[11] It is difficult to describe the nature and extent of the pursuer's general work history in the absence, at least, of a coherent account from the members of his family. According to Mrs Ruddy, the pursuer did odd jobs for the first defender. These were paid for in cash, while he continued to claim state benefits. This was so even although the Department of Social Security had challenged the pursuer over this at the time he had been carrying out work at VP Packaging. Mrs Ruddy was aware of the pursuer attending at the Job Centre, but nothing had come up that had offered him a sufficient wage. Mrs Ruddy said that she had been unaware of the pursuer working for anyone else (other than the first defender) after leaving Sunblest, apart from volunteering to do entirely unpaid painting and decorating at the homes of various relatives. She knew nothing of her husband's dealings with Mr Levy in connection with the jewellery shop. She said that she had been separated from her husband for five years before the accident, having fallen out with him over his claiming benefits whilst working at VP Packaging. She said that he had left home at that time and had thereafter been living with a friend of his in the Priesthill area. The family home, which Mrs Ruddy remained in after the separation, was in
Haughburn Road in nearby Pollok. Her only contact with the pursuer in the months before the accident had been when he had come to collect their teenage son Gary to go to the football. He would sit for a while on these visits and talk about his work.

[12] Despite saying that she had been separated from her husband, Mrs Ruddy accepted that the hospital records at the time of the accident stated that the pursuer "lives with wife and son" (6/7 pp 90-92 "Patient Profile") at the family home in Haughburn Road. It was Mrs Ruddy who had provided this information to the medical staff, saying that she had "automatically said" that the pursuer was staying with her. Despite her denial that she had been aware that the pursuer was doing casual work, Mrs Ruddy appeared to accept that she, or another member of the family, had told Peter Davies, an employment consultant, that the pursuer had started doing "painting and decorating with relatives and other odd jobs for cash. He found that he was quite good at the work and it kept him busy" (6/21, para 3.3 "Employment History").

[13] Gary Ruddy is the youngest of the family. He was eighteen at the time of the accident. His recollection was that the pursuer had been a painter and decorator to trade as long as he could remember, although he "did not really know" what the pursuer was doing before the accident. He remembered the pursuer working at the jewellery shop in the Pollok Centre, when he had been at secondary school. The pursuer drank a lot and could be quite aggressive when drunk, so Gary tended to avoid him and did not discuss his work with him. After the separation, he thought that the pursuer had stayed in Priesthill after the separation, which had occurred only six months to a year prior to the accident. Although the pursuer had been in the habit of taking Gary to the football every Saturday, Gary seemed surprisingly ignorant of his father's activities and whereabouts during the rest of the week.

[14] Scott Ruddy is the eldest of the family. He recalled that the pursuer was a general maintenance man at the premises of VP Packaging. He also recollected the pursuer working at the jewellery shop. In both premises, the pursuer was working with a joiner, Thomas Whyte (deceased). Scott thought that Mr Whyte was in the habit of asking the pursuer to help him out with odd jobs. Scott said that, in recent times, the pursuer had not been working for anyone else apart from the first defender and Mr Levy at the jewellery shop. He had done a number of small jobs for the first defender lasting up to a week. The pursuer did go to the Job Centre but had not found anything acceptable. His younger brother, Mark, also remembered the pursuer helping Mr Whyte by building offices and knocking down walls at VP Packaging, but he did not speak about any other form of work.

[15] Perhaps because of their awareness of the critical issues, the family (or at least some of them) appeared to be reluctant to provide candid evidence of the pursuer's pattern of work over the years before the accident, to state where he was living at the time of the accident and to reveal when he had separated from his wife. For example, as already noted, Mrs Ruddy said that she had been separated from her husband for five years and had been unaware of him doing any paid work for anyone other than the first defender. In contrast to that, Gary, who was living in the same house as his mother, said that his father was a painter and decorator and had only been separated from Mrs Ruddy for a year or less at the time of the accident. It is difficult to reconcile these accounts.

[16] The first defender spoke highly of the pursuer's capacity to carry out odd jobs of many sorts such as fixing doors, building walls and general painting and decorating. He described the pursuer as gifted in that way. The pursuer had done work in premises with which the first defender had been associated in the past, including the jewellery shop, as instructed by Mr Levy. He would sometimes quote a fixed sum for the work and sometimes an hourly rate.

[17] Overall, the impression created by all the evidence on this aspect was that the pursuer was a person whose primary and regular income derived from state benefits, but who would work casually from time to time as a painter, decorator or odd job man to supplement his benefit. He would have worked for persons other than the first defender or his companies, but the extent of that work is impossible to gauge with any certainty. It was at best spasmodic. He would have been concerned to conceal his casual engagements from the Benefits Agency and would therefore not have worked for anything other than cash. He would not have wanted his name to appear on any documentation; be it work records, job schedules, invoices or receipts. He would not have wished to enter into the PAYE scheme or to pay any National Insurance contributions.

[18] The pursuer probably took on some work on the basis of a fixed amount for the job and some by stipulating an hourly, or daily, rate. But his casual work was so spasmodic that it is not possible to classify him as a self employed person in business on his own account, as distinct from being an occasional casual employee. He was not operating a business in any regular way. Whether he was employed in a legal sense on a particular job would depend on the facts and circumstances of that job. His general work history is thus not of great significance in assessing his status in this case, although it is a factor to be taken into account.

 

(b) THE PURSUER'S PAST WORK FOR THE FIRST DEFENDER
[19] The pursuer avers (Statement of Fact IV, paragraph (7)) that:

"The pursuer and the first defender had known each other for a period of some ten years prior to the accident. They had an established relationship, whereby the first defender would, from time to time, phone the pursuer, and engage him to do work, for one or other of his various companies".

 

The essence of the pursuer's case on record is thus that he was engaged by the first defender, but that these engagements were to work for the first defender's companies. There is no averment that he ever worked for the first defender as an individual at any time prior to starting in the warehouse. In the course of the evidence of Mrs Ruddy, the pursuer sought to adduce evidence that the pursuer had been engaged by the first defender to carry out work at his home, where he was building a bathroom extension. Objection was taken to this by the defenders on the basis of lack of record. The line was allowed under reservation of all questions of competency and relevancy. The line was developed again in the evidence of Scott Ruddy, who spoke to driving the pursuer to the first defender's house in Newton Mearns, where the pursuer had said that he was building some kind of hut in the first defender's garden in conjunction with Mr Whyte.

[20] The pursuer responded to the objection by maintaining that the line ought to be allowed on the basis that it was a matter within the knowledge of the first defender and no prejudice would be suffered by him in allowing the line as the defenders could deal with it in their own case. The first defender did attempt to deal with it in his case. He said that he did not think that Mr Ruddy had done any work at his house, although it was possible. He had instructed work on his house about seventeen years ago, but there had been no extension to the bathroom. This work had been carried out by a firm of contractors.

[21] The absence of notice on record meant that the first defender had no opportunity to investigate this issue or to prepare any rebuttal by, for example, calling witnesses from the contractors carrying out the work or producing plans or other documents. The absence of any record averring that the pursuer had been instructed to carry out work for the first defender as an individual renders this evidence inadmissible. I will therefore sustain the defenders' objection. It is, in any event, unlikely that the evidence of work at the first defender's house, which took place a decade or so before the accident, could have had any influence on the current decision.

 

(c) THE WAREHOUSE WORK
[22] The extent to which the pursuer appears to have discussed the nature of his work at the warehouse with members of his family is in sharp contrast to the lack of conversation about any other work which he performed over the years, at least if the evidence of the family members is to be accepted on this subject. According to Mrs Ruddy, the pursuer told her that he had met Mr Levy at the Pollok Centre. Mr Levy had told him that the first defender had a job available and was going to telephone the pursuer about this. The pursuer had subsequently met the first defender at the warehouse. His job had been to fill holes, to cut down pipes and to paint the walls at what she described as a "factory in Pollockshaws". Mrs Ruddy knew of no arrangement whereby the pursuer was to be selling the pipes for scrap (infra). As far as she knew, the pipes were being removed preparatory to the painting. The first defender had asked the pursuer to obtain a Stihl saw and to source the paint cheaply. The pursuer had identified and obtained the saw and was to be reimbursed for it. Michael McManus, a friend of the pursuer, also spoke to the pursuer telling him that he "had taken to" buying the paint himself and was awaiting reimbursement

[23] Scott Ruddy had actually visited his father in the warehouse one Friday, as he had been working in premises nearby. He understood that his father was "repairing floors and painting girders" for 50 a day. He was to make the warehouse presentable and was working five days a week in order to obtain money for Christmas. He was painting "stone pillars" or "beams". The pursuer had told him that he could not stay long that day as the pursuer was expecting the first defender to come down and pay him. Mark Ruddy also referred to knowing that the pursuer was working at a "factory in Pollockshaws", but did not know the nature of this work. As already remarked, Gary Ruddy said he did not know anything about what the pursuer was doing before the accident.

[24] Mr Anderson spoke to seeing the pursuer at work, cleaning and painting the walls. He saw him cutting and taking down fire damaged pipes and laying them on the ground. He had seen the pursuer using both tower scaffolds, but he did not say what work he had been doing from the scaffolds. Mr Gordon was a roofer employed by Hi-Clad Roofing. He had carried out the roofing work at the warehouse. He had ceased working in the warehouse about three weeks prior to the accident. His work had overlapped with that of the pursuer for about two weeks. Mr Gordon spoke to the pursuer fixing the floors and walls preparatory to painting. He made no mention of cutting down pipes. He said that the first defender would appear from time to time to check his, and Mr Gordon's, work. Mr Gordon had used scaffold towers for his own work. However, Hi-Clad's scaffolding was painted blue and cream and neither of the towers present at the time of the accident (as shown in the photographs) appeared to belong to Hi-Clad. Mr Gordon did not recognise the larger tower and the narrow gauge scaffold did not belong to Hi-Clad as they did not use such scaffolding.

[25] The first defender said that it had been the pursuer who had approached him about working in the warehouse, having met him by chance at the Pollok Centre. He had arranged to meet him at the warehouse at a stage when the roofing work was almost complete. The pursuer was to paint the walls and to wash the floor for 40 per day. The first defender had already rented a floor washing machine (supra), but the pursuer had stated that he preferred to use a brush and water. During the course of the work, the pursuer had spoken to the first defender about the buckled steel beams and the pipes of the sprinkler system. He had asked if he could cut them down and sell them to a scrap metal dealer. The pursuer had said "I'd definitely do it in my own time, Mr Marco". The first defender took this to mean that the pursuer might do it during his lunch hour, at a tea break or in the evenings or at weekends. The first defender had "foolishly" said that the pursuer could remove the beams and pipes. It made no difference to him as they were surplus to requirements. The removal of the sprinkler system was of no interest to him. Although the buckled beams were "slightly" unsightly and dirty, the premises were eventually sold without any further work being done to remove them or the sprinkler pipes. The pursuer had asked to borrow 100 from the first defender to buy a Stihl saw to cut down the beams, promising that he would be able to repay this as he already had a buyer for the saw.

[26] The first defender maintained that he had not seen the pursuer using scaffolding at all and that the pursuer was not using it to paint the walls. Rather, he had managed to paint them using a roller on a pole perhaps ten feet in length. He had nevertheless been able to achieve a relatively straight line across the top of the wall head. The first defender knew that the pursuer had planned to use scaffolding to cut down the metal work, but he had not organised the provision of any scaffolding for him. The scaffolding in the warehouse had simply been left by Hi-Clad. They had not picked it up after finishing the roofing. The pursuer had told the first defender that he knew what he was doing as he had worked on scaffolding "hundreds of times" and had both a hard hat and a harness. The first defender claimed to know nothing about scaffolding, although, standing the pursuer's assurances about his experience, he had been happy to let him use the available towers, pending Hi-Clad's arrival to pick them up.

[27] About a year after the accident, the first defender telephoned a scrap merchant to ascertain the value of scrap metal. He discovered that it was 60 per tonne delivered but about half of that if it required to be uplifted. At the time of the accident, the delivered price was only 45 per tonne (see 7/7, p 5 of 11). The first defender accepted that it might only be around 22 per tonne if the merchant required to uplift it. He thought that it might take three or four days to cut down a tonne of metal but the pursuer was an "opportunist" and his own time did not cost him anything. He thought that 22 might seem a fortune to the pursuer, as he had often told the first defender that he had no money.

[28] Peter Cheeseman, an expert in construction practice, explained that, although the painting might have been done using a ladder, scaffolding would have been required to cut the metal. The latter was a two person task. Mr Cheeseman did not consider that a painter could obtain the straight line at the wall head (shown in the photographs) using a roller on a pole from the floor, but he did concede that the photographs showed two instances of the painter perhaps over-shooting the line with a roller. He expressed the view that, if there were a scaffold tower on site, then a painter would use it. He would then employ a roller with a short extension of no more than a metre. Otherwise, if he used a long pole, it would be difficult both to get paint onto the roller and to apply the requisite pressure at height.

[29] The issue of who approached whom for the job is immaterial. In relation to the first defender's evidence upon the scope of the work instructed, he was, of course, the only person who could speak directly to any exchange between him and the pursuer. The first defender's evidence that the pursuer was only engaged to clean the floors and walls and to paint these walls is not credible nor is his testimony that the pursuer had volunteered to cut down the steel beams and sprinkler pipes in order to trade them as scrap. Rather, the only conclusion from the totality of the evidence is that the pursuer was engaged to carry out a clean up of and to decorate Bay 2, preparatory to the lease or sale of the warehouse, and that this work included the cutting down of the beams and the sprinkler pipes. There are several reasons for this. First, despite the first defender's protestations to the contrary, the presence of buckled beams and disused sprinkler pipes, all no doubt discoloured from smoke damage and covered in dust, would not have assisted the prospect of leasing or selling the warehouse. It would have been prudent for the first defender to deal with the beams and pipes in order to improve the chances of a sale or lease, even if ultimately a bargain was achieved without further removal after the accident. In short, it would have made sense for the first defender to have instructed this work. Secondly, the pursuer was a person primarily subsisting on benefit. He had been given the opportunity of a few weeks work, the cash for which amounted to at least 200 per week, which would be in addition to his benefit. The evidence did not suggest that the pursuer was a general enthusiast for work, or indeed anxious to earn more cash than might keep him going on a day to day basis, with a bit extra from time to time for contingencies such as Christmas. It is not likely that, for the very small return that might be made from the scrap metal, the pursuer would volunteer to carry out the time consuming, dangerous and heavy task of cutting down the metal using a Stihl saw and to trade it to a scrap merchant. There was no evidence of him engaging in that type of operation before. Rather, the pursuer was a painter and odd job man and it is far more likely that he was cutting down the metal because that was part of the task he had been instructed to perform. He would have had no reason to suppose that the sprinkler system was inoperable or that the structural value of the buckled beams had been lost. Thirdly, at the time of the accident, the pursuer was cutting down the metal during the normal working hours he had agreed with the first defender. He was not doing it in his own time, as the first defender suggested he had promised to do. Mr Anderson had seen or heard him cutting the pipes after his arrival on the day of the accident and on previous occasions. This points towards the work being part of his normal duties and not something separate, to be done outwith the scope of these duties in his own time. The pursuer would not have wished to have crossed the wishes of the first defender. Had the pursuer agreed to do the metal work in his own time, he would not have been doing it at the time of the accident. For each and all of these reasons the appropriate conclusion is that the work on the pipes and beams was part of the task which the pursuer had been instructed to perform by the first defender for the daily rate.

[30] The first defender's evidence that the pursuer was not using the scaffolding towers in order the clean the walls or to paint them is also rejected as not credible. Bay 2 is a large area. The walls were extensively smoke damaged to a height of more than fifteen feet. It is barely conceivable that anyone would attempt to clean such a substantial area in commercial premises without using some form of scaffolding. It is equally implausible that he would attempt to paint it using only a roller attached to a ten foot pole. It would have been far easier, and quicker, to use scaffolding. Given that it is not disputed that the scaffold towers were on site, it is even less likely that a person would refrain from using them to perform these tasks. Mr Cheeseman's evidence in this regard is accepted.

[31] Mr Gordon gave evidence that the scaffolding in the warehouse was not that of Hi-Clad. He gave sound reasons for that evidence. He was a roofer and would be familiar with his company's equipment. There is no reason to reject his testimony. His evidence about the ownership of the scaffolding is also consistent with the Hi-Clad work having finished. There is no obvious reason for Hi-Clad to have left their scaffolding on site for several weeks thereafter. The provision of scaffolding for the pursuer to carry out his work would have been an obvious necessity, especially as that work included cutting metal at height. In short, the two scaffold towers in the warehouse must have been provided or obtained for the pursuer's use. There was no other reason for them being in the warehouse. The first defender must have been aware of that, since he must have seen them in use on his frequent visits to the warehouse to check on the pursuer's work. Whether the first defender organised the scaffolding himself or whether the pursuer did so upon his instructions may not be certain, but the first defender's evidence that the tower scaffolds had been left by Hi-Clad is rejected.

[32] Although it is essentially hearsay and I doubt whether the pursuer's conversations with his wife about his work were particularly extensive, I accept the evidence of Mrs Ruddy that the pursuer had, at some point, told her that part of what he had been doing was cutting down pipes as part of the preparation for the decoration of the warehouse. It is highly doubtful whether the pursuer went on to tell her that the first defender had asked him to secure a Stihl saw for the work and that he had done so. That seems to be rather too much detail for an occasional chat. But the first defender's evidence that the pursuer asked to borrow 100 from him to buy such a saw is rejected as lacking credibility. That did not seem to be either a likely or a sensible arrangement. The work was temporary and hardly required the purchase and resale of equipment. The pursuer was only earning 200 or thereby a week and it seems unlikely that he would take the risk of buying a Stihl saw in order to make a very small amount of money from scrap metal on the prospect of being able to offload the saw at a later date. It would be peculiar if, as the first defender maintained, the pursuer had located a person to buy the saw immediately after the work finished before he had even started using it or borrowed the money to buy it. This does not appear to be the kind of arrangement that the pursuer would have thought out and proceeded with, as distinct from just getting on with whatever job he had been asked to do with whatever equipment was readily to hand or had been provided for him. Furthermore, there appears to have been no attempt to return the saw to the pursuer or his family.

 

(d) PAYING FOR THE STIHL SAW AND THE PAINT
[33] According to Mrs Ruddy, as at the date of the accident, the pursuer had not been paid for the Stihl saw or the paint. She asked her son Scott to contact the first defender in order to obtain payment for these items. He did so and the first defender brought cash amounting to "200 and something" to her house and gave it to her son Gary, who had been delegated to answer the door. The money included, according to Mrs Ruddy, an element of wages, as the pursuer had been paid on the Friday and the accident had occurred on the Tuesday. The pursuer had told her that he had been paid that Friday. Scott said that his mother had asked him to telephone the first defender about the money for the saw and the paint, which Mrs Ruddy had told him amounted to 200, and he had done so. This was within a week of the accident. The first defender said that it would not be a problem and he would deliver the money to Mrs Ruddy.
Gary spoke to meeting the first defender at the door, being given money and being told that it was for the Stihl saw and paint. He gave the money to his mother.

[34] The first defender accepted that he had been telephoned by Scott after the accident, but his version was simply that Scott had said that he owed the pursuer money. No sum was mentioned. The first defender had agreed that money was due. He initially said that he had sent 200 in cash round to Mrs Ruddy's house via a driver, but later recalled that he had taken the money personally. The money represented a week's work and the first defender thought it "only right" to make this payment. Although he could not at first recall the arrangement about the purchase of the paint, the first defender did not dispute that it was the pursuer who had bought it. He surmised that he had paid for it as the job had progressed.

[35] The essentials of the evidence of the first defender on this aspect of the case are credible and reliable. In relation to the paint, given the arrangement to pay for the work weekly, it seems likely that the paint would have been paid for periodically as the job went on, as and when it was bought. It is not likely that the pursuer would have continued to buy paint without being reimbursed for a previous batch or, if he bought it all at once, that he would have continued working with money outstanding for several weeks prior to the accident. In relation to the saw, it is not credible that the pursuer, having suffered serious head injuries, would have started discussing from his hospital bed that he was outstanding a sum of money for a Stihl saw in the week after his accident, far less that Mrs Ruddy would have set about recovering that money with such immediacy, especially if she was supposedly separated from the pursuer. Rather, the first defender probably felt some form of moral responsibility for what had happened and, upon enquiry as to whether there was money outstanding, had simply selected the weekly rate and sent that round to the family as some form of gesture of goodwill. Ultimately, the pursuer's prognosis turned out to be very poor. The first defender was not to know that at the time although, curiously, the first defender made no contact with him after the day of the accident.

 

(e) ASSISTANCE
[36] Mrs Ruddy spoke to the pursuer telling her during the works that he was going to get his friend "Mick" to help, but that the first defender had declined to allow this as he had been in no hurry to finish the work. Mr Anderson also spoke to having a conversation with the pursuer during which the pursuer had said to him that he had asked the first defender for assistance, but had been told by him that it was a one man job. Mr McManus spoke to the pursuer telling him that he might be able to get him some work and would ask the first defender. However, the pursuer had later apologised and told him that the first defender had not been willing to pay for two people to do the job at the warehouse. The first defender denied that the pursuer had ever asked him for assistance. If he had done, he would have considered it, although it would have required the payment of more money. He thought that the pursuer was managing the work adequately on his own.

[37] The metal work was itself taxing and normally, as Mr Cheeseman said, it would have been regarded as a two man job. It would not have been at all surprising if the pursuer had considered the desirability of assistance. Indeed given that he had been cutting metal beams and pipes at, perhaps, chest height or above, from a narrow platform almost four metres above the ground, it would have been natural to seek assistance in, for example, holding and lowering the pipes as he cut them with the saw. Mr McManus was a straightforward credible and reliable witness and there is no reason for rejecting his testimony that the pursuer had said that he would try to obtain work for him at the warehouse. There is no reason to suppose that he did not do so. There is also no reason to reject his testimony that the pursuer had reverted to him and had said that the first defender had rejected the idea as he considered it to be a one man job. That is what the first defender in fact thought and conveyed in his evidence. Mrs Ruddy's evidence is accepted on this point. It is consistent with that of Mr McManus and Mr Anderson and the nature of the work. The first defender's version is accordingly rejected except in so far as he said that, if had he accepted the pursuer's suggestion of assistance, then that would have involved the first defender paying more money; that is to any assistant taken on.

 

3. Employment and Employer

 

(a) EMPLOYMENT or SELF EMPLOYMENT
[38] In a case such as this, involving a manual worker in the construction or building industry, the issue of whether the pursuer was an employee as distinct from being self employed still falls to be determined by reference to the traditional test which draws a distinction between a contract of service and a contract for services. A worker will generally be regarded as employed if: (1) he is required to perform work personally in return for pay; (2) he is directed on what work to do, if not the precise method of doing it; and (3) there are no factors pointing away from him being an employee, such as those which make it clear that he is "in business on his own account" (see generally the English Court of Appeal in Bunce v Postworth (t/a Skyblue) [2005] IRLR 557, Keene LJ at para 13 under reference to Ready Mixed Concrete (South East) v Minister of Pensions and National Insurance [1968] 2 QB 497, MacKenna J at 515; cf the application of several tests in King v Farmer [2004] EWHC B2 (QB), Rutherford HHJ at paras 22 and  3). In that context, it is necessary to look at all the facts and circumstances in deciding whether, having regard to their totality, what exists is a contract of service or not (Keene LJ (supra) at para 19 under reference to Hall v Lorimer [1992] ICR 739, Mummery J at 744).

[39] The pursuer was engaged to do the work personally. He was paid not for a particular job of work but on the basis of a daily rate, the work lasting perhaps up to two months. The agreement was that he would work a particular number of hours per day and that, if he were late, he would make up time that day. He could not engage extra assistance for himself, but could ask the first defender to hire additional staff. If that were done, the first defender and not the pursuer would pay the assistant. The first defender controlled what was to be done. He checked the work every day or two and, no doubt, would direct the pursuer on anything that needed revision. If he had wanted the work done differently then he could have required the pursuer to do that, even if, as matters stood, he did not actually do so as the pursuer knew how to carry out the instructed work. On this basis alone, the indices of employment are present. In addition, as found above, the equipment used by the pursuer, notably the scaffolding, was provided for him and did not belong to him. Even if the pursuer might have sourced the scaffolding, he did not hire it.

[40] There are no factors pointing to the pursuer being in business on his own account, other than his desire to receive cash rather have his wages declared to central government agencies. The first defender's position was that, as a generality, the pursuer was a person who "worked for himself". He would never agree to be on the books of any company, preferring to be "his own boss and to run his own life". This was so even although, in his evidence, the first defender often referred to the pursuer as working for "me". The first defender's evidence that the pursuer said certain things indicating that he wished to remain free of ties which would jeopardise his benefits and cash receipts is no doubt accurate. But his evidence that the pursuer wanted to be "his own boss" is embellishment and not credible. It is inconsistent with what the pursuer was actually doing, namely casual work as directed by the first defender with more or less fixed hours at a specific daily rate. He was doing work in a manner typical of a casual employee and not in a way consistent with a self employed trader. He was an employee, working under a contract of service.

 

(b) THE EMPLOYER
[41] The choice of who the employer was lies between the first and second defenders. There is no dispute that the arrangement was entered into between the pursuer and the first defender and that the pursuer's wages were paid by the first defender out of his own pocket, even although he might have reimbursed himself later from company funds. The issue is whether, looking at all the surrounding circumstances found proved, the contract was with the first defender as an individual or with him acting as an agent of the second defenders. For it to be the latter, it would have to have been stated by the first defender that he was engaging the pursuer in his capacity as director of a company. Alternatively, the existence of the second defenders as employers would have to have been clear to the pursuer from the circumstances surrounding his engagement. These circumstances could have involved, for example, physical signs that the premises were being operated under the name of a company. Thus, if a person is engaged to work in a shop, office or factory trading under a particular name, he will normally assume that he is being engaged by the trading entity and not by the individual who chanced to recruit him. There was no evidence that the warehouse had any sign disclosing ownership or control under a trade or corporate name. There was no evidence that there was any active business being carried on in the warehouse by the second defenders. There was nothing to inform the pursuer that he was working for the second defenders. Interestingly, in this regard, Mr Anderson's understanding of the position was that the warehouse was owned by the first defender, even if he later conceded in cross examination that a company might have been the formal proprietor.

[42] According to the Ruddy family, the pursuer referred to himself as working for the first defender. In the context of his arrangement with the first defender, that would be the natural thing to do and it is accepted as accurate. That is a factor pointing towards him working for the first defender as an individual. It not, of course, a decisive factor. Many people may talk of themselves as working for a particular person, even although they know that the formal arrangement is that they are employed by a corporate entity or a firm. They will often be made aware of that by seeing the name of the employer on their wage slips, or by being given particulars of their employment in writing. They may become aware of the fact that they work for such an entity by seeing its name on the premises in which they work or on the stationery they are working with. But there was nothing of such a nature here to have informed the pursuer that he was working for a corporate entity as distinct from the man who hired and paid him. Again of interest in this connection is that Mr Gordon described the pursuer as doing odd jobs for the first defender.

[43] The first defender referred to the pursuer as working for "me". This is again a factor. Again it is not decisive. A managing director or other person working in the context of a limited company or partnership may talk of his staff, or at least some one them, as working for "him", even though he is aware that the formal employer is the corporate body or firm.

[44] Mrs Ruddy said that, although the pursuer spoke of working for the first defender, she knew that the first defender operated a number of companies, because her husband had told her that. She knew that these companies had premises in the city and that her husband would be aware that these premises would be owned by these companies. She accepted in cross examination that the pursuer would know that the first defender would be "representing a company" at times, although in re-examination Mrs Ruddy explained that she did not "personally" know about the first defender's companies and that all she had been aware of was that the pursuer was working for the first defender. Although this passage of evidence was founded on strongly by the defenders, it really went little further than to illustrate that, at times, the first defender might have been acting in his capacity as a director of a company and that the pursuer might know that. Sometimes, no doubt, it would have been obvious. When instructed to do the work at the jewellery shop or VP Packaging, for example, the pursuer may have been aware that he was working for the company whose name appeared on the shop or factory frontage and not for the first defender or Mr Levy as individuals. But all of this is not particularly helpful in deciding the issue of the identity of the contracting parties for the work instructed in the warehouse, other than that it provides another circumstance for consideration, namely that the pursuer would be aware that, at times, the first defender might operate through limited companies or other trading entities.

[45] The first defender maintained that the pursuer "knew perfectly well" that the warehouse was operated by a company. The first defender said that he had specifically offered to pay the pursuer "through the books of the company" but, as in the past, the pursuer had declined this offer. He said that he had mentioned the second defenders by name to the pursuer. In cross examination, the first defender maintained that he did not know the procedure involved in putting someone "through the books" of the company, as he was not an accountant.

[46] The first defender's evidence that he told the pursuer of the second defenders' involvement with the warehouse, or indeed the involvement of any company in the warehouse, is rejected as not credible. The same applies to his assertion that the pursuer would have known of this involvement. There was nothing to inform the pursuer of this involvement. The first defender may have offered to put the pursuer "through the books" but, even if the pursuer might have thought that such an arrangement would have involved him formally working for a limited company, that arrangement was declined. There would have been little practical purpose in the first defender mentioning the involvement of the second defenders, unless he was actively thinking of potential legal pitfalls, which is not likely. What the first defender was interested in doing was selling or leasing the warehouse as soon as possible and achieving that by cleaning up the damage caused by the fire as cheaply as possible. He was prepared to engage the pursuer on a purely "off the record" cash basis, as was the pursuer to reciprocate. The name or the existence of the second defenders would have meant nothing to the pursuer. It is not at all likely in the context of such a cash transaction that there would be any mention of a corporate entity. It was a simple arrangement between the first defender and the pursuer. Under it, the pursuer would not have looked to a corporate entity to pay his wages. He would have looked to the first defender personally to do that and the first defender did so. The first defender provided no documentation or other material to advise the pursuer that he was contracting with anyone other than himself as an individual. The pursuer's contract was with the first defender as such an individual and not as an agent for a principal, disclosed or not. Looking at all the circumstances of the arrangement, the pursuer was employed by the first defender.

 

4. Liability

(a) THE STATE OF THE SCAFFOLDING
[47] There is no reason to suppose that the scaffolding was in any state other than the one observed and photographed by the HSE inspector on the day of the accident. Although the first defender maintained that the head of the HSE in the West of Scotland had assured him after the accident that there was nothing wrong with the scaffolding and that it complied with all health and safety requirements, it is difficult to see how such a conclusion could ever have been reached. Mr Cheeseman explained, if it were not already obvious, that the larger scaffold had no guard rails to stop persons working on it from falling off. Its working platform was not fully boarded out. On any view, it was dangerous to work from. There was nothing at all to prevent a workman falling backwards or forwards the distance of 3.7 metres or thereby from what was a narrow working platform to the floor. There is equally no reason not to hold that this was the state of the scaffolding throughout the work being carried out.

[48] Despite the absence of averments on the point, Mr Cheeseman gave evidence that the scaffold was probably too high for its width in terms of stability, but his assumption on the height of the working platform was wrong. He had proceeded on the basis of the wall height being in excess of twenty feet and that, looking at the photographs, the working platform was at a similar height. He disputed the measurements of the wall height in the chartered surveyors' particulars. He was not convinced of their accuracy, referring to the authors as "estate agents", who had probably not measured the heights, or at least had not done so accurately. However, the HSE inspector had measured the height of the working platform and there is no reason to doubt the accuracy of her figures. There is also no reason to doubt the content of the particulars, even if they were spoken to only by the first defender rather than their authors. Any case based on this aspect would have failed

 

(b) THE CASE AGAINST THE FIRST DEFENDER
[49] The pursuer's case against the first defender is based first upon his failure at common law to take reasonable care, as the pursuer's employer, to provide a safe place of work and safe plant and equipment. Given the condition of the scaffold tower, from which the pursuer fell, that case is made out. The pursuer was working at a height of 3.7 metres on a half boarded out scaffold with no front or rear guard rails to stop him falling off. Allowing an employee to work using such a scaffold at that height is a breach of the duty of care owed by an employer to an employee not to expose him unnecessarily to the risk of injury. There was a high likelihood of a fall from the scaffolding used. On the basis that it is established that the state of scaffolding in the photographs represents its condition at the time of the accident, it was not contested that the common law case was made out.

[50] The pursuer also relies, if somewhat indiscriminately, upon regulations 4(1) to (3), 5(1), 8 and 9(1) of the Provision and Use of Work Regulations 1998 (SI 2306) and regulations 5(2), 6(1) to (3) and 10(1) and (2) of the Construction (Health, Safety and Welfare) Regulations 1996 (SI 1592). It is therefore necessary to deal with each of these statutory cases, even if pleading rather fewer of them might have been regarded as quite sufficient when dealing with a fall from scaffolding. In respect of the 1998 Regulations, the pursuer founds upon them only in respect of the first defender's status as employer. Regulation 4(1) provides that every employer must ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided. Regulations 4(2) and (3) are variants of 4(1). The scaffolding was for the use of the pursuer and was "work equipment". It was not suitable for its purpose, because anyone using it would be likely to fall from it for the reason already given. A breach of regulation 4 of the 1998 Regulations is therefore made out. Regulation 5 provides that work equipment is to be "maintained in an efficient state". It does not apply to this case. There was no evidence of lack of maintenance. The scaffolding was simply not suitable in the first place. Regulations 8 and 9 relate to the provision of information and training on the work equipment. As was accepted by the pursuer at the stage of submissions, there was no evidence concerning these matters and no breaches of these regulations have been established.

[51] In relation to the 1996 Regulations, the pursuer does not specify what status of the first defender is being relied upon to create the relevant duty, but presumably it is again, primarily at least, that of employer. Regulation 5(2) provides that every place of work shall be "made and kept safe for, and without risks to health to, any person working there". The obligation rests on, amongst others, an employer whose employees are carrying out construction work, which includes the alteration of a structure or the removal of part of it, as was being carried out in the warehouse. The pursuer's place of work was not safe by reason of the inadequate state of the scaffolding. A breach of regulation 5(2) is made out. Regulation 6, which is perhaps the classic one applying to falls from scaffolding at the time of the accident, provides that suitable and sufficient steps, including the provision of guard rails and adequate working platforms, must be taken to prevent a person falling. There was a clear breach of that regulation. Regulation 10 applies to dangers caused by the demolition or dismantling of a structure. No injury resulted by reason of any danger arising from the dismantling of the metal beams or pipes, as distinct from the inadequacy of the scaffolding, and the case under regulation 10 fails.

[52] The pursuer attempted to develop a case against the first defender under the 1996 Regulations based on his control over the work (regulation 4(2)), on the assumption that he was not deemed to be the employer. On the analysis submitted by the pursuer, every person capable of giving instructions to a workman on site, from the foreman of a squad to the managing director of the workman's employers, would be deemed to be liable personally for compliance with the Regulations. However, as is normally made clear in regulations (eg regulation 4(3) of the Workplace (Health, Safety and Welfare) 1992 Regulations (infra)), control must mean in connection with a person's trade, business or other undertaking. Where employees are instructing the manner in which the work is to be carried out, the person in control will normally be deemed to be the employing person and not simply a person higher up the chain of command than the particular workman injured.

 

(c) THE CASE AGAINST THE SECOND DEFENDERS
[53] The action against the second defenders is based upon a number of different grounds. However, it was not disputed that the summons was not served upon the second defenders until January 2006, more than three years after the accident. The second defenders aver that the action against them is accordingly time barred, presumably under section 18 of the Prescription and Limitation (
Scotland) Act 1973 (c 52). The pursuer makes no attempt to answer this in his pleadings. He made no attempt to do so in submissions either. The pursuer's case against the second defenders must fail on this ground.

[54] It remains necessary to deal with the merits of the cases pleaded against the second defenders. There is a case against them at common law, in the event of the second defenders being held to be the employers. That case fails as they were not the employers. The next case is founded upon the duty to take reasonable care as occupiers in terms of the Occupier's Liability (Scotland) Act 1960. In order to succeed, it would have to have been established that the second defenders were under a duty of care to persons engaged by the first defender as an individual to carry out work on their premises. Although the analysis is somewhat artificial, if the pursuer was employed by the first defender and not the second defenders, the pursuer's relationship with the second defenders is purely as an employee of a third party. In these circumstances, there is no general duty on the owner of a building to supervise the manner in which work on it is being executed by a third party or to inspect scaffolding being used by that third party. The pursuer's case on this ground would accordingly have failed.

[55] The pursuer avers breaches of regulations 4, 5, 8 and 9 of the 1998 Regulations (supra) and regulations 5, 6 and 10 of the 1996 Regulations (supra). He also adds breaches of regulations 5, 11 and 13 of the Workplace (Health, Safety and Welfare) Regulations 1992 (SI 3004). Since it has been established that the first defender was the pursuer's employer, all of these cases depend upon the second defenders having "control" over the pursuer's workplace, the equipment supplied or the work itself. The pursuer relied upon an English Court of Appeal case (McCook v Lobo (2003) ICR 89, Judge LJ at para 16) and a later English High Court case (King v Farmer (supra) Rutherford HHJ at para 30)) in relation to what might constitute control outwith the employment setting. The defenders founded upon Matthews v Glasgow City Council 2006 SLT 88 (Lord Osborne delivering the Opinion of the Court at para 28) relative to control by an owner of premises instructing building work. There was no evidence that the second defenders exercised any control over the workplace, the equipment or the work in the warehouse in any practical sense. The second defenders were the owners of the premises, but that was all. The work in the warehouse was being organised by some one who was one of their directors, but he was doing so as an individual making a private and clandestine arrangement with the pursuer and not as the second defenders' agent, even if he may later have reimbursed himself from the second defenders' funds. He was in sole personal control of the work and the equipment. The cases against the second defenders would have failed on that ground. The case under the 1992 Regulations would have failed because, as the defenders submitted, these Regulations do not apply to a workplace where the work being carried out is construction work (see regulation 3(1)(b)).

 

(d) THE HARD HAT AND CONTRIBUTORY NEGLIGENCE
[56] The defenders tendered pleas of contributory negligence, but their only averments in that regard concerned the pursuer's failure to wear a hard hat at the time of his fall. According to Mr Anderson, when he saw the pursuer after the accident, he was unconscious and remained so until removed by ambulance to the hospital. The first defender said that, when he arrived on the scene, the pursuer was conscious, lucid and said "I'm sorry Mr Marco, I didn't have my hard hat on". The medical records (6/12 p 4) note the pursuer as being "15" on the Glasgow Coma Scale on arrival at hospital and, curiously, that he was wearing a hard hat when he fell. No-one was called to speak to the content of these records.

[57] Whether or not the pursuer made the remark attributed to him by the first defender has no bearing on the case, in the absence of any evidence that the wearing of a hard hat would have made any substantial difference to the injuries which the pursuer suffered. There is no material which would justify such a finding. It is highly unlikely that it would have made any difference. The plea of contributory negligence on this basis is therefore rejected. Furthermore, from the position of the hard hat after the accident, it is more likely that the pursuer had been wearing it at the material time, irrespective of what he might have said to the first defender whilst in a state of, at least, shock and distress.

[58] An issue concerning the failure to apply the brakes of three out of the four wheels of the scaffold was raised in the cross examination of the HSE Inspector, Ms Wark, by the defenders. She confirmed that only one of the brakes was on. Her evidence was in advance of Mr Cheeseman's testimony that he could see from the photographs that not all of the wheels had been properly braked and that any heavy lateral pressure created during the work might cause the scaffold to move. If there were any movement then, according to Mr Cheeseman, there would be a high likelihood of a person, who was holding a Stihl saw on the platform, falling off.

[59] An objection was taken by the pursuer during Ms Wark's testimony on the basis that there was no contributory negligence case averred, based upon a failure by the pursuer to apply all of the brakes. The evidence was allowed under reservation of all questions of competency and relevancy. In submissions, the defenders attempted to advance a case of contributory negligence based upon this failure to secure the brakes. They said that this was a case which had emerged during the evidence and had not been known to them before the proof. There are two reasons why their attempt fails. First, there is no record for such a contributory case and the pursuer's objection is therefore sustained. In that regard, as the defenders recognised in submissions, where they had averred one specific contributory case, they could hardly be allowed to advance a different or additional one at the proof (McGowan v W & JR Watson 2007 SC 272, Lord Nimmo Smith delivering the Opinion of the Court at para 13) Secondly, there was no evidence that the absence of a brake on three out of the four wheels had made any material contribution to the pursuer's fall from the scaffolding. At best, the scaffold tower might conceivably have moved while the pursuer was using lateral force to cut a pipe with the saw. But there was no evidence that it had done so. It is far more likely that the pursuer simply fell from the scaffolding whilst using the saw without any movement of the tower itself caused by the absence of three brakes. He could have lost his balance for any number of reasons but the operative cause of his fall was that the scaffolding was inadequate by reason of its half boarded condition and the absence of front and back guard rails.

[50] Although the defenders averred "sole fault" in the defences, there was no indication of what facts might have constituted this plea and the defenders departed from it in submissions.

[51] I will grant decree against the first defender for payment to the pursuer of 450,000 and assoilzie the second defenders. Both parties moved that the case should be put out By-Order to deal with any motions for expenses and that will also be done.