Joiner loses £25,000 damages claim following fall from stepladder

Charles McInally, 53, suffered an injury to his left shoulder in August 2011 as a result of falling from a stepladder on which he was working in the course of his employment with Arcus FM Limited at Sainsbury’s supermarket in Drumchapel in Glasgow where the company were facility managers.

It was agreed between the parties that £25,000 should be awarded to Mr McInally if Arcus were found liable but Lord Burns in the Court of Session ruled that he failed to prove that the ladder was defective.

The court heard that in order to carry out his duties, which included working on a ceiling frame which was about 2.8 metres above the floor, Mr McInally had obtained a heavy duty Abru “Promaster” platform stepladder from a container which Arcus kept at the Sainsbury’s store.

When he collected the stepladder, cable ties holding it together had to be cut off as it had not been used prior to that day. Having taken the ties off, McInally inspected it, pressing the opening restraints down followed by the top platform, but he noticed nothing unusual during this inspection.

Accordingly he set up the stepladder and climbed onto the third or the fourth rung and started working to remove a kink from a ceiling frame, but the stepladder “collapsed and he felt it going”, causing him to fall backwards and to his left and land on his left shoulder.

Damage to the stepladder included a failed rivet connection between the left stile of the supporting leg and the opening restraint, but McInally, who had 37 years’ experience, said he would have seen these defects had they been there when he inspected the stepladder and would not have used it in that state.

It was submitted that in order to succeed in terms regulation 5 of the Provision and Use of Work Equipment Regulations 1998, Mr McInally needed only to establish that the stepladder had given way and did not need to prove how or why it had done so.

The judge was invited to find that McInally was a “credible and reliable witness” who had given a “consistent account of the accident” to the effect that the ladder had “given way under him”.

It was suggested that a “possible cause” was that the rivet securing the left hand opening restraint had “popped out” causing the stepladder to move and throwing the pursuer off balance.

However, Arcus submitted that the stepladder had been maintained and kept in a “fit and suitable condition” and the “sole cause” of the accident was McInally’s incorrect sideways loading immediately prior to his fall. That was a “complete defence” to the action, it was argued.

McInally was required to show that the stepladder had failed as opposed to him overbalancing, but his pleadings made no attempt to explain which of the defects seen after the accident existed before it and the evidence had not done so.

The judge assoilzied Arcus after ruling that McInally had failed to establish, in the balance of probabilities, that the ladder failed in some way when he was on it.

Delivering his opinion, Lord Burns said: “I do not doubt that the pursuer believes that the stepladder gave way under him, that he was neither leaning to one side or the other, did not overbalance and that it was a sudden movement of the stepladder which caused him to fall. I note and accept his evidence that he was an experienced joiner in 2011, well used to using ladders in general and that he inspected the stepladder with care prior to using it. He gave his evidence in a careful way and I had no reason to conclude that he was deliberately inventing his account. But in considering whether I am satisfied that his account is reliable and can be accepted, I have to consider all the evidence presented.

“The evidence led by the defenders persuades me that the pursuer’s account cannot be accepted as reliable. I am persuaded that the damage to the stepladder seen by him is a result of the pursuer falling onto it. Further, I am unable to accept that the pursuer, with all his experience, would have failed to notice damage to the stepladder, which must on his account have been present on his careful inspections of it. That indicates to me that substantial damage had occurred to it in the accident and accords with the pursuer’s inspection of it.”