Alan Fraser v Fife Council Court of Session, 7 April 2006
Alan Fraser was a painter and decorator employed by Fife
Council. On 24 January 2002 he was painting rhones at the back of a
house in High Valleyfield, Fife. He was half way down the ladder
when he lost his footing, slid down the ladder and landed in an
upright position before falling over, to his injury. At the time he
was using a ladderfix, securing the top of the ladder. He was
provided with, but did not use, a ladderstop, which was a footing
Mr. Fraser raised an action for damages against Fife Council. He
alleged breach of both the Provision and Use of Work Equipment
Regulations 1998 and the Construction (Health, Safety and Welfare)
Regulations 1996, and also a common law case.
The principal factual issue was the cause of the fall. It was
agreed that Mr. Fraser had lost his footing about half way down the
ladder. Either his foot slipped off a rung, without the ladder
having moved, causing him to lose his balance and slide down the
ladder, or he lost his balance because the ladder moved in some
way, due to the condition of the surface on which it was resting.
Mr. Fraser was working alone at the time.
Lady Smith found that there was no reason for the ladder to have
moved. It was placed on gravel which was shallow. The ground
underneath it was firm and compacted. Mr. Fraser had not felt the
need to use a ladderstop. He did not think that a man footing the
ladder would have made any difference. His workmates did not give
any evidence to the effect that the base of the ladder looked as if
it had sunk into the ground at all. The ladder had remained upright
after Mr. Fraser's fall.
A case was made out under Regulation 4 of PUWER 1998 in relation
to suitability of work equipment. Lady Smith did not see that Fife
Council had failed in any way to comply with it. Mr. Fraser had a
suitable ladder and ladderfix. He had a ladderstop available to him
which he chose not to use. The surface on which the ladder was
resting was firm, compacted? Earth with only a shallow covering of
gravel. There was no evidence that anything more was required to
enable Mr. Fraser to carry out his job safely.
A case was made out in terms of Regulation 8 of PUWER 1998
relating to the availability of adequate health and safety
information. Lady Smith was satisfied that Fife Council had
fulfilled the requirements by providing information in both written
form and orally, including regular tool box talks and specific
demonstrations of the use of the ladderfix and ladderstop
equipment. There was no evidence that further safety information
would have made any difference. A training case was also advanced
under Regulation 9 of PUWER 1998.There was clear unchallenged
evidence regarding regular training to Mr. Fraser and his work
mates, who were very experienced. Such employees should not require
as much training as novices.
Similarly, statutory cases were advanced under the Construction
(Health, Safety & Welfare) Regulations 1996 in terms of
Regulation 5; suitable and sufficient safe access and safe place of
work, and Regulation 6; prevention of falling. Lady Smith again
accepted that there was no need for anything more than the
ladderfix, and on Mr. Fraser's hypothesis of soft ground, the
provision of the additional ladderstop.
It was also argued that in terms of Schedule 5 of the 1996
Regulations, the ladder required to rest on a stable, level and
firm surface of specific strength and composition safely to support
the ladder. It was pointed out that there was no reasonable
practicability qualification to that provision. Lady Smith rejected
the factual basis for that argument. She accepted that there was
nothing more that Fife Council could have done. Mr. Fraser had been
provided with a ladder. On his own evidence a second man would not
have prevented Mr. Fraser's fall. Mr. Fraser's problem was that all
of the breaches of regulations were founded on the assumption that
the ground on which his ladder was placed was an area of loose
gravel with soft ground underneath it. However, he failed to prove
that the ground was in that condition and failed to prove that his
fall was caused by the ladder sinking into the ground. As a result,
no liability attached to Fife Council.
Lady Smith also gave her views on contributory negligence. She
indicated that if it had been established that Fife Council were at
fault and that their fault caused Mr. Fraser's accident, given the
suitability of the ladderstop for gravel surfaces and the evidence
that Mr. Fraser had a ladderstop available to him, she would have
been inclined to make a finding of 100% contributory negligence.
The circumstances were comparable to those in Lanigan v Derek
Crouch Construction Ltd 1985.
This case is of interest in indicating the difficulties which
can be faced by an experienced employee who suffers injury in
inexplicable circumstances. Clearly, it was a great help to Fife
Council that they could demonstrate the provision of information
and training in terms of Regulations 8 and 9 of PUWER 1998.