James Johnstone v. Amec Construction Limited [2010] CSIH 57

The pursuer and appellant injured his leg, when he tripped over part of a metal barrier fence during the course of his duties as a security guard, at a school construction site in East Kilbride in July 2006. Quantum had been agreed between the parties at £4,000, however the Sheriff at first instance granted decree of absolvitor in April 2009. The pursuer reclaimed to the Inner House against that determination.
The pursuer at first instance founded his claim in two parts: first, the pursuer brought his case under Regulations 4 and 5 of the Provision and Use of Work Equipment Regulations 1998, and secondly, under Regulation 5 of the Construction (Health, Safety and Welfare) Regulations 1996. In relation to the latter basis, the sheriff found the pursuer had failed to prove that the defenders had sufficient control over his work, required to establish responsibility under Regulation 5. The pursuer did not challenge this finding, and instead confined his reclaiming motion to the interpretation of the Provision and Use of Work Equipment Regulations 1998.

The appellant submitted that the Sheriff failed to properly address the concept of breach under Regulation 5, specifically its strict liability basis. Upon consideration, the Inner House concurred with the appellant on this ground, noting that the very fact the barrier fence had failed to remain in position and that it was blown over by the wind, meant that it was not maintained in an efficient state, in efficient working order and in good repair, finding that the appellant's accident was therefore caused or at least materially contributed to by the failure of the respondents to maintain the fence, in breach of Regulation 5.

Furthermore, the appellant submitted that the Sheriff had set the test of reasonable foresight in terms of Regulation 4 too high. The Inner House noted that the issue was not whether the particular tripping hazard that was ultimately posed was foreseeable, but rather the question was whether the risk that the barrier fence might be blown over and thus potentially cause injury and damage was foreseeable. They found this plainly was foreseeable, and therefore, allowing the appeal, found the respondent's failure to comply with their obligation under Regulation 4 caused or materially contributed to the appellant's accident.

The court finally considered the Sheriff's assessment of contributory negligence, in respect of the appellant's failure to keep a proper look out for his own safety and failure to appreciate where he was putting his feet, finding the Sheriff's calculation of 60% to be excessive, and substituting this for their own assessment of 40%. Appeal allowed, recalling interlocutor of Sheriff and decree granted.