It was agreed by pursuer James Miller and defender JW Wheatley and Son that damages would be assessed at £38,500 if Wheatley were to be found solely liable for the accident. The action originally included the building contractor hired to construct the building as first defender but after proof decree was sought only against JW Wheatley.

The case was heard by Lord Malcolm in the Outer House of the Court of Session. B Fitzpatrick, advocate, appeared for the pursuer and J Gardiner, advocate, for the defenders.

Akin to employment

The pursuer was the sole director of MMS Building Services Ltd, which was sub-contracted by Wheatley to install solar panels on the roof of a building being constructed by Algo Blairgowrie Ltd to store greenkeeper’s equipment at Dunbarnie Golf Links in Fife. Prior to starting work, Mr Miller submitted a risk assessment to Algo that identified adverse weather as a potential hazard.

On 21 February 2020 the pursuer and an employee of his attended at the site to fit panels to the roof. No-one from Wheatley was present. Access to the roof was gained using equipment belonging to Algo. Due to the wet weather, Mr Miller slipped and fell on the building’s metal roof. He sustained a fracture to his left femur and required surgery.

In his written pleadings, the pursuer claimed that he was pressured by one of the defender’s partners, David Wheatley, to complete the work as soon as possible. In turn, the defender averred that as MMS was a specialist subcontractor not under its control, Mr Miller was solely responsible for the accident. There was no deadline on the work, and the risk of working on the wet roof would have been obvious to the pursuer.

It was submitted for the pursuer that the relationship between the pursuer and the defender was akin to an employment relationship, with recent case law blurring the distinction between employees and independent contractors. Simply on the neighbourhood principle, Mr Wheatley should have told Mr Miller that the site agent had decided there should be no external work that day, and had he done so Mr Miller would not have gone on the roof.

No control or direction

In his decision, Lord Malcolm began by observing: “In certain circumstances, it can be difficult to decide whether a claimant was an employee to whom a duty of care was owed or an independent contractor. This is not such a case. MMS were specialist independent contractors hired by Wheatley under a contract for services to perform the solar panel aspect of the electrical work they had agreed to provide for Algo, the main contractors in the construction project.”

Comparing the case to Uber BV v Aslam (2021), cited by the pursuer, he said: “Mr Miller was working for MMS – not for himself, and not for Wheatley. It was apparent that each Uber driver was personally providing services as part of Uber’s business undertaking, and hence could claim the benefits under the Act. It cannot be said that Mr Miller was providing his services as part of Wheatley’s business.”

He continued: “Wheatley enjoyed none of the elements of control or direction in respect of Mr Miller’s work which might create something akin to employment or common law duties of care. In agreement with the submissions for Wheatley I consider that none of the factors relied on by Mr Miller’s counsel for a common law case are persuasive.”

Addressing the pressure to complete the job from Mr Wheatley, Lord Malcolm said: “Standing the evidence on the point and the absence of any explanation as to why there was a tight deadline, I consider that Mr Miller exaggerated any pressure he might have felt under to complete the work. In any event a customer’s desire for progress is not the same as the exercise of control and direction.”

He concluded: “Having regard to the whole circumstances, in my view he was solely responsible for the accident. If this is wrong and Wheatley were in breach of a duty owed to Mr Miller, I consider that the lion’s share of the blame for the accident lies with his own decision to work on the roof despite his view that it was unsafe to do so.”

Lord Malcolm therefore absolved the remaining defenders of liability and dismissed the action.