Kennedys successfully defends claim arising out of an accident on a building site

Kennedys recently acted for the successful second defendant in the case of Jones v Persimmon Homes Limited & Macob Scaffolding Limited [14.10.24]. The claim against the second defendant was dismissed after a four-day trial on the issue of liability only, heard before Mrs Justice Jefford DBE.

Background

The case involved an accident when the claimant was working as a carpenter fitting facias and soffits during the construction of a house. The first defendant was the housing developer and the second defendant engaged as the scaffolding contractor. To carry out his work the claimant used scaffold with a single access ladder. His case was that to descend the ladder from the second lift of the scaffold he placed his left hand on the left stile of the ladder, but it was fouled by the clamp which was facing outwards. He instinctively let go of the stile with his left hand and, in so doing, transferred his weight to his right-hand side. That caused the ladder to move, and his right hand was pinched between the right-hand stile and the clamp on that side. Letting go of the ladder he fell backwards on to the ground. The fall was one of nearly five metres and he sustained a serious orthopaedic injury to his left leg.

The claimant’s case in respect of liability was as follows:

• The clamp/clip on the left-hand side of the ladder was negligently positioned with the unused portion facing outwards rather than inwards which created an obstruction when descending/ascending the ladder.
• The feet of the ladder were not placed on a baseboard. The absence of a baseboard causatively contributed to the movement of the ladder. 
• The ladder was set at too steep a pitch. It was set at a pitch of between 1 in 4.6 and 1 in 5.3 but ought not to have been at a pitch greater than 1 in 4. The pitch increased the likelihood of someone losing their grip and falling backwards.

At trial, the parties each relied on evidence from an expert engineer and factual oral evidence. By the time of closing submissions the claimant abandoned the allegations in respect of the absence of the baseboard and the incorrect pitch of the ladder as against the second defendant, it being accepted that the second defendant’s employees had erected the scaffolding correctly, with the baseboard installed and the ladder set at the appropriate pitch when handed over to the first defendant.

The parties’ expert engineers agreed that there was no available published guidance whether it was negligent to install the ladder clips with the unused portion facing outwards or inwards. However, the experts disagreed on whether the clips should have been installed with the unused portion facing inwards or outwards.

Decision

Ultimately Mrs Justice Jefford DBE accepted the point made by both defendants that, whether the clip was fixed in either position, the unused part still forms an obstruction to a person's hands and the extent of that obstruction depends on the way in which an individual climbs a ladder. Some people hold the stiles while others will hold the rungs.

There was also evidence from the witnesses of fact that the ladder clips were a common type and there was no right or wrong way to fix them. The judge accepted this evidence as being entirely credible. Taking all these matters together, the judge rejected idea that it is good practice to fix the clips facing inwards or that it was negligent to fix them facing outwards and, although the sequence of events that led to the accident started with the claimant catching his hand on the clip, no liability attached to either defendant.

Whilst liability was found to attach to the first defendant due to the absence of the baseboard, a significant reduction of 50% was made for contributory negligence due to the claimant failing to take proper care when descending the ladder and his using the ladder whilst the baseboard was missing.

Comment

The case illustrates that with strong and aligned factual and expert evidence,  cases can be defended successfully to trial. This was the case here where evidence was identified at an early stage through proactive investigation of the accident circumstances and the instruction of the right expert.