A slip in the right direction: a recent Scottish case

This case review was co-authored by Sulaiman Yusuf, Litigation Assistant, Glasgow.

In this decision of the Outer House, we finally have found some room for optimism in the context of whether a duty of care is owed to contractors. Looking ahead, ‘control’ as a defining feature in liability between duty-holders is likely to be regarded in a more realistic and common sense way.

In this case, the defenders were granted decree of absolvitor following a workplace accident at height on a construction site where the pursuer fell whilst on a roof, sustaining serious injuries.

Background and circumstances of the claim

Proceedings were raised by Mr Miller, the sole director of MMS Building Services Ltd (MMS). MMS were engaged by the defenders who were the electrical contractors for the project. MMS were sub-contracted to install solar panels on the roof of a new building at Dunbarnie Links Golf course in Fife, a spectacular but exposed coastal location.

The pursuer himself was undertaking the solar panel installation works assisted by an employee. He prepared a risk assessment which specifically identified adverse weather conditions as a hazard. This was submitted to the principal contractors for approval. The pursuer alleged that despite this, the defenders ought to have risk assessed the specialist work MMS were sub-contracted to carry out and had they done so, then they would have identified adverse weather and implemented appropriate control measures to prevent any accidents.

On the day in question, in February 2020, it was cold, wet and windy. The principal contractors - who the pursuer released from the proceedings just prior to proof - had indicated the site should be closed for external works. The principal contractors had individuals on site working internally and the defenders did not have anyone on site.

The pursuer’s position was that he attended the site and noted the metal roof was wet due to rainy weather. He and his colleague therefore waited in the van at the site for conditions to improve. However, they did not. The pursuer claimed that he was pressured by a representative of the defenders to carry out works on the roof that day when instead they should have instructed him not to.

Issues in the pleadings

The legal issues in dispute were:

1. The nature of the relationship that existed between the parties;
2. The degree of control which Mr Wheatley had over the pursuer’s works; and
3. Whether, as a consequence, Mr Wheatley had any duty to direct the pursuer not to work on the roof on the day due to the adverse weather.

Submissions by the parties

The pursuer submitted that recent case law had “blurred the distinction between employees and independent contractors”. As such, it was necessary to look at the underlying situation to understand the control dynamic which existed between the parties.

Considerable reliance was placed on Uber BV v Aslam [2021] and Makepeace v Evans Brothers (Reading) [2001] to establish that the relationship was akin to an employer/employee relationship. Further, he argued that an employer owes a duty to protect their employees from “their own stupidity” and in that connection, the defenders should have told the pursuer not to work on the roof that day.

The defenders (by this point only the third defender being pursued with the case against the second defender effectively abandoned after the evidence was heard) submitted that there was no factual or legal basis for a finding that they ought to have risked MMS’s works. The risks on the day were obvious, the pursuer ignored them along with his own risk assessment, and was solely to blame for the accident by proceeding to work on the roof knowing it was unsafe for him to do so.

Analysis and decision

In finding in the defenders’ favour, Lord Malcolm had no difficulty in concluding that the pursuer was an independent contractor and the duty of care contended for was not owed to him.

His Lordship agreed with the defenders that there was no comparison between the present case and the position in Uber. The relationship which existed between the parties was not one in which the defenders were responsible for overseeing how the contract works were done or for proactively ensuring the pursuer’s safety. Ultimately, it was the pursuer’s decision to proceed. In doing so, Lord Malcolm found that the pursuer was solely to blame for the accident. Had circumstances been different and such a duty of care existed, then he considered contributory negligence would have been set at 75%.

Comment

The outcome of this case serves as a reassurance to defenders that there are limits to the concept of ‘control' where there are a number of parties, potential duty holders and overlapping obligations in the mix.

Fundamentally a contractor retains responsibility for their own safety and it is not for others to take steps to counter an individual’s lack of regard for obvious risks regardless of whether those have already been identified.