Ladder misuse by contractor is not caused by absence of risk assessment

21 Mar 2017

Andrew Bond v Tom Croft (Bolton) Ltd

BLM successfully defended a liability trial of a catastrophic injury claim where issues over strict liability for an alleged defective ladder, the provision of working platforms and the adequacy of risk assessments for work at height were central to liability.

Background

The claimant, an electrician, was sub-contractor supplying labour only to the defendant carrying out electrical circuitry installation during a hospital refurbishment. The claimant undertook general electrical work of fitting conduits for electrical wiring.

In July 2012 the claimant sustained a serious brain injury when he fell from an A-frame after the rear left leg failed and the ladder collapsed. The ladder had been supplied by the defendant.

Allegations

The claimant alleged:

  1. That the ladder was defective and collapsed without warning;
  2. That if the collapse had in part been caused by over-reaching (meeting an argument raised by the defendant) that was no answer as the claimant should have been provided with a working platform thereby avoiding any opportunity for, or risk of, overstretching;
  3. That the defendant failed to carry out any proper system of risk assessment and/or failed to have in place a proper system for the inspection of the ladder.

The accident

The claimant was installing cables into conduit on a wall. He was working at or near the top of the ladder, with the conduit at shoulder height. The top plate of the ladder was 1.5m above the floor. The ladder had a hand/knee rail fitted to provide support when working on the top step. The claimant was 1.80m tall and he was working at about shoulder height. He would need to move the ladder alongside the wall to different fixing points. The work and the equipment provided did not need the claimant to lean or stretch to the side of the ladder. He was able to move the ladder freely alongside the wall on which he was working. The claimant maintained that was in fact how he had been working.

He claimed he was in the process of fixing conduit when the ladder unexpectedly failed and he fell striking his head. The claimant maintained the ladder collapsed during his ordinary use and under ordinary weight bearing. His case was that the collapse was due to a pre-existing weakness in the ladder causing traumatic failure of the lower left support stile in that it fractured.

The legal context

The claimant contended that if the ladder collapsed without misuse on his part the defendant should be held strictly liable as a breach of its duty to maintain work equipment in an efficient working order pursuant to regulation 5(1) of the Provision and Use of Work Equipment Regulations 1998 and in line with Stark v Post Office [2000] ICR 1013. The fact that the cause of the failure remained a mystery was irrelevant to the fact that it did fail - this by itself was sufficient evidence that the strict duty to maintain was breached.

The defendant emphasised the requirement for the court to consider all of the evidence prior to reaching its conclusions, as opposed to accepting the claimant’s factual account before resolving the conflicts in the expert evidence which would be wrong, see Jackto Transport Limited v Hall [2005] EWCA Civ 1327. Not all ladder collapses should be viewed as evidence of a fault with the ladder or evidence that the ladder itself did not work properly, each case turned on its facts. In McNally v Arucs FM Limited [2014] CSOH 146 the Outer House, Court of Session, per Lord Burns held that the claimant (pursuer) had failed to establish a stepladder which had collapsed did so due to being defective.

Evidence: the ladder – condition and adequacy

The ladder was a six-step A-frame free standing ladder, with a standing platform and knee/hand rail. It was manufactured to comply with BS EN 131 (specification for terms, types, functional sizes; specification for requirements, testing, marking; user instructions; single or multiple hinge joint ladders) which is classified as a trade ladder. It was designed to carry a maximum vertical load of 150 kgs.

The ladder had last been inspected just under four weeks before the accident. The parties each instructed mechanical engineers and both agreed that used properly the ladder should not have collapsed without defect or improper loading. No defect could be seen and attention, therefore, focussed on how the ladder had been used, including the adequacy of the ladder for the job i.e. whether alternatives such as a working platform should have been made available.

Cause absent defect

The judge found that the claimant was engaged in pulling cables through conduits and to do that, he was standing on the first rung of the ladder, rather than the top, as that was most suitable for the height of work.

The judge held the claimant was able to, and had made, a “3 point contact” with the ladder, this was in accordance with what the judge called the HSE mantra set out in HSE INDG402 “Safe use of Ladders and Stepladders." This publication was replaced by INDG455 in January 2014; still titled "Safe use of Ladders and Stepladders", available here from the HSE website.

Accordingly, the use of a ladder to do this work was safe.

The judge accepted that the safe load of the ladder (150 kgs) could only be overcome if the claimant had loaded his weight onto one stile either through attempting to shuffle sideways to reach the next fixing point, or unnecessarily over-reaching as the defendant asserted. Neither of these was required by the manner or method of work.  The defendant’s evidence was accepted that either of those would move the claimant’s weight of 92 kgs from all four stiles to just one, which would then collapse.

The judge also accepted the argument that the claimant would have been well aware of the risks of overloading one style by these actions, given his experience which the claimant himself accepted in cross-examination.

Adequacy of the ladder

The claimant alleged that if the overloading was due to overstretching or leaning that meant a different work platform which avoided that risk (in effect preventing him so doing) should have been provided.

The judge rejected that finding that the use of the ladder for the task met the requirements of  IND G402 in that the work from it was short-lived, categorised as “light work” and where the three-point requirement could be met. In fact, the use of the ladder for the task had significant and obvious advantages over the use of a mobile scaffold or working platform. The availability of an alternative did not make the use of a ladder unsafe, where with proper care it could be used safely.

Risk assessments

The defendant had not provided any evidence of adequate risk assessments or a formal method statement for the job. 

However, she accepted the defendant’s argument that the relevance of a failure to carry out formal risk assessments had to take into account risks inherent in the task being performed; whether it could be safely carried out by trained and experienced personnel, and whether any assessment would have reasonably led to a change in approach, particularly when prevailing HSE guidance supported the approach taken. The judge framed the question as “should a risk assessment on the facts here have persuaded a reasonable employer to opt for the moveable working platform or not”. She held that it would not, and therefore the absence of a risk assessment was not causatively significant.

Final thoughts

The following points should be considered in similar cases:

  • The court was not prepared to infer that some defects must have been present in the left stile of the ladder. In the absence of a defect identified by the experts, it was held that the claimant had deliberately overreached outside the confines of the ladder, when it was unnecessary to do so, which he knew would be dangerous. 
  • The importance of securing  physical evidence and expert evidence to discount the presence of a defect is critical in such cases. 
  • Ladders are safe! That is common sense and provided they are free from defect and used in situations complying with HSE and BSI guidance it is irrelevant that a different platform could be provide.
  • It follows that no breach arises of the duty to take suitable and sufficient measures, so far as is reasonably practicable, under regulation 6(3) of the Work at Height Regulations 2005 to prevent a person falling a distance, can arise simply because a working platform was safer or reasonably practicable.
  • The absence of a formal risk assessment is only relevant if it would have caused the defendant to act differently . Here, it would not have altered the decision that a ladder was perfectly safe to use for this specific task of fixing conduits into the wall.

The claimant’s application for permission to appeal was refused.

The defendant legal team was Ruth Graham (BLM) and Matthew Snarr (9 St John Street).

 

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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Ruth Graham

Ruth Graham

Partner,
Manchester


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