Jason Sharp v Top Flight Scaffolding Ltd [2013] EWHC 479 (QB) - Nigel Cooksley QC, Old Square Chambers

05/04/13. In this case the court had to consider both primary liability and contributory negligence where the facts of this scaffolding accident were largely agreed.

The claimant was an experienced scaffolder and had worked in the industry for over 20 years. For much of that time he had worked for the defendant or another company owned by the defendant’s proprietor.

On the 23^rd November 2009, the claimant and an unskilled labourer with little experience of scaffolding had to erect a scaffold at the rear of a terraced house. It was common ground between the parties that this was a very simple type of scaffold that the claimant had erected on many previous occasions.

Due to the nature of the property, the scaffolding materials had to be transported through the house and the claimant erected the scaffold with his labourer passing the equipment up to him. It was only when the scaffold had been completed and the claimant was standing on the top of it that the two of them realised that a long ladder, which would provide external access to the scaffold, could not be brought through the house by one man alone. Thus, the claimant found himself stranded at the top of the scaffold. He told the labourer to go out to the lorry and phone the office. While the labourer was phoning the office, he heard a shout and discovered that the claimant had fallen from the scaffold into the neighbouring property.

There were no witnesses to the accident and due to his injuries, the claimant was unable to give evidence. However, both sides accepted that on the basis of where the claimant fell, he must have been attempting to climb down the outside of the scaffold.

The claimant alleged that the defendant was liable for the accident on the basis of various breaches of the Work at Height Regulations 2005 and a failure to provide him with a safe system of work. In particular, he alleged that he had not had sufficient training and had not been provided with a site specific risk assessment and a method statement for constructing the scaffold.

The defendant denied liability alleging that the claimant was an experienced scaffolder and knew very well how to construct such a scaffold. Further, there were sufficient short ladders on the lorry which would have enabled the claimant to build internal access to the scaffold rather than rely on a long external ladder. In the premises, the defendant denied liability on the basis that it was not in breach of any duty or alternatively in so far as any breach of duty was proved, such breach of duty was not causative of the accident.

Although the facts of the accident were not in issue, there was an issue so far as the claimant’s training was concerned. It was his case that he had had no formal training and that although he had obtained a certificate of competency in 1998, he had had no training since the Work at Height Regulations 2005 had come into force. Although the defendant was unable to produce any documentation, it alleged that the claimant had had what were described as “toolbox talks” on at least two occasions since the regulations had come into force.

Although the defendant’s own health and safety policy provided for a site specific risk assessment, the defendant alleged that this was not necessary for such a simple job being carried out by such an experienced scaffolder.

The court accepted that in a case such as this the starting point was to consider whether there was any breach of duty on the part of the defendant before considering the claimant’s conduct (see Bhatt v Fontaine Motors [2010] EWCA Civ 863). Further, in Sherlock v Chester City Council [2004] EWCA Civ 201, the Court of Appeal held that although the employee in that case was experienced and well trained, the employers should have carried out a risk assessment so as to identify the possible precautions which needed to be taken and to have advised the employee accordingly.

In this case, the court described the defendant’s training facilities as “lamentable” and found that the defendant had failed in its common law duty to provide the claimant with adequate training. Further, the court criticised the defendant for failing to carry out a site specific risk assessment and provide a method statement.

As to causation, the court found that had the claimant been properly trained and had there been a site specific risk assessment and a method statement, the claimant would in all probability have incorporated the use of internal ladders in the construction of the scaffold so that the accident could have been avoided. Thus, primary liability was found against the defendant.

However, the court was also severely critical of the claimant’s conduct, in the first place for building the scaffold without any consideration as to what means of access should be incorporated but more particularly for taking the deliberate decision to climb down the outside of the scaffold in the knowledge that it was obviously dangerous. In the circumstances, the court assessed the claimant’s responsibility for the accident at 60%.

Conclusion

This case reiterates the principle laid down in Sherlock that an employer cannot simply rely on the fact that an employee is very experienced and that even for such an employee there is a need to provide adequate training, a site specific risk assessment and a method statement to ensure that the correct procedures are followed. If an employee fails to follow his training and instructions then he will have only himself to blame but if such training and instructions are not given, courts are very unlikely to find that such breaches of duty were not causative of the accident.

On the other hand, where an employee as in this case embarks on a course of action which as a matter of common sense is clearly dangerous, courts will not hesitate to find a substantial contribution by way of contributory negligence.

Nigel Cooksley QC

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Civil Justice Reform or a Sausage Factory in the Making? - John van der Luit-Drummond

02/04/13. Examining the Lord Jackson Reforms and the impact they may have on civil litigation and law firms in England and Wales.

The chief executive of the Law Society, Des Hudson, has admitted in an article with Litigation Futures, that some law firms specialising in personal injury litigation will undoubtedly go bust as a result of the civil justice reforms recommended by Lord Justice Jackson.

"[on behalf of the profession he was] angry that insurers' advice to government seems to go unchallenged. I'm angry that many solicitors who work hard for their clients are going to struggle - some firms will undoubtedly fold. But I am most angry that in all the spurious talk about fraudulent claims, many innocent victims with real, debilitating injuries will lose out. They will not get the redress they deserve; the individuals and companies at fault will have fewer incentives to correct their behaviour."

But that is not the only call of dissent aimed at the changes to civil litigation. Society president Lucy Scott-Moncrieff has declared that the government must postpone all further civil justice reforms until lawyers have had sufficient time to prepare for change. Several MPs have also called on the government to halt personal injury law reforms amidst 'deep concern' at the pace and extent of change. The full article in the Law Gazette can be found here.

However, a group of law firms, headed by Martin Coyne, managing partner of law firm Ralli Solicitors, has called for the resignation of the Law Society exec as part of its Save The Legal Industry Campaign. In a letter to chief executive Des Hudson, Coyne writes:

"It is with great sadness coupled with anger and frustration that I am writing to you on behalf of the supporters of our campaign to Save The Legal industry. Anger at the lack of support from the Law Society over the last 12 months in defending its members and those who work within the legal industry. Frustration because within months of the reforms on 1 April, 100,000 people across the legal services industry could lose their jobs...And it's the 'human toll' of these reforms that the government and the executive of Law Society has ignored with non-legal staff such as secretaries and administrative staff bearing the brunt of job losses."

It is hard to see why Coyne, the Law Society and several MPs are wrong with their concerns over the reforms. Under these reforms a successful claimant has to pay their own lawyer a 'success fee' of up to 25% of the damages recovered as well as the After The Event (ATE) insurance premiums, both of which could potentially be significant amounts, while their own general damages are only increased by 10%. It is hard to see how this is not just unfair to the claimant but to their lawyers as well as it would put a strain on their business having previously been able to recover 100% success fees from the defendant.

As Martin Coyne goes on to claim in his letter insurers have previously admitted to the government that these reforms will make no difference to premiums:

"In pandering to the wishes of the insurance lobby, this government and by association the Law Society have done nothing to counter the argument, which will jeopardise the lives of many families across the UK. We are calling on the government to stop any further changes to the legal industry and protect jobs by signing our petition. Our representative body - The Law Society - has let us down - Its the Law Society who should have been at the forefront of this fight, but instead you have sat back and left it to others...Your shameful inaction should have the same kind of consequences it is having for those you purport to represent and so we are calling on the leadership of the Law Society to take responsibility and resign."

With referral fees being banned under the reforms it is likely we will see more large firms try to align themselves with the insurance sector as Plexus Law and Goldsmith Williams have done recently. I would suggest that it is highly likely that we will see more law firms, or Alternative Business Structure (ABS) hybrids, that will be more akin to sausage factories churning out case after case with one eye on the bottom line and not on the welfare of their clients. The longer a case goes on the less money these firms make, in fact the more likely the firms are to actually be making a loss by representing their own clients. Of course these firms do already exist - I am well aware of them having worked within them and against them - but there are other firms out there who while obviously trying to make money also have a culture where their clients' interests are paramount.

If Des Hudson's opinions at the beginning of this post are correct, and the fears of Martin Coyne are realised, then these traditional firms may soon disappear altogether. More firms may be forced to re-examine their business models through mergers or perhaps by becoming an ABS. The outsource of low-level tasks, such as document review or administrative work can be farmed out by these firms to countries such as India and South Africa in order to obtain cost savings as Eversheds and the Parabis Group already do. The small and mid-sized firms will not be able to compete with this, and with lower billings brought on by the reforms, they will be forced to close, their talent being swallowed up by Tesco Law or the Co-Op Legal Services. Law graduates, the future lawyers of tomorrow, will enter their training contracts wearing white-hair-nets working on their sausage conveyor belts more concerned with the bottom line for their firm than the bottom line for their clients.

John van der Luit-Drummond

Image cc flickr.com/photos/dipfan/198939630/

Simmons v Castle: Round 2 - Adam Gadd, Pump Court Chambers

30.03.13. Simmons v Castle [2012] EWCA Civ 1288. The Court of Appeal revisited its judgment handed down on 26 July 2012, where it announced that from 1 April 2013, general damages in tort cases would be increased by 10% from current levels. That increase was intended to give effect to the reforms proposed by Sir Rupert Jackson in his Final Report on Civil Litigation Costs published in December 2009. Following the above judgment...

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