KAREN ANNE THOMSON & ANR v. DOUGLAS AMATEUR FOOTBALL CLUB SOCIAL CLUB and LEONARD WALLACE [1999] ScotSC 19 (27th June, 1999)

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Alt: Henderson, Advocate; Messrs. Thorntons W.S., Dundee (for first defender) and

The Sheriff, having resumed consideration of the cause, finds the following facts admitted or proved:-

1. The Pursuers are Karen Anne Thomson, 32, residing at 44, Baldovie Road, Dundee,

Jane Collison, Solicitor, 21, Dock Street, Dundee, as executor-nominate of said John

Thomson in terms of a will dated 7^th. February, 1997, his estate being insufficient to

2 . The first defender is an unincorporated association formed for the purposes of

providing social recreation as an adjunct to the operation of an amateur football team

4. In terms of its constitution, (No.27/1 of process) the first defender's objects are to

provide social, sports and recreational facilities in the club premises at Balmoral

of Douglas and Angus and must be approved by the committee of the first defenders

as suitable. An annual subscription is to be fixed by the committee. A member whose

annual subscription is three months overdue shall cease to be a member of the club.

retiring annually which committee had the power annually to appoint office bearers.

5. The first defenders operate a social club at the premises at 21, Balmoral Terrace,

rain water penetration. In about 1989, the first defenders resolved to replace the

flat roof over the premises with a pitched roof. The office bearers created a buildings

6. Said buidings sub-committee instructed a gentleman called Derek Anderson, now

deceased, sometimes referred to as "the architect," sometimes referred to as "the

7. Once approval was obtained, the buildings sub-committee sought tenders from the late

John Thomson (hereinafter referred to as "John Thomson,") and from a Mr. Palmer,

both of whom were at the material time members of the club, for the execution of the

joinery work connected with the erection of the roof. The masonry work formed the

subject of a separate tender. The tender from John Thomson was in the sum of Ј3,000

and was accepted. Said tender was for the labour only element of the contract and the

8. John Thomson was the husband of the first named pursuer who he married on 17^th.

July, 1993. He died on 3^rd. April, 1997 from cancer, the cause of which death was

wholly unrelated to the circumstances of the accident referred to on record. He had

for a number of years prior to the accident been in self-employment as a joiner,

latterly trading as T and T Joiners and being registered for VAT purposes at 44,

Baldovie Road, Dundee, though also apparently trading from an address at Unit 7,

Perrie Street, Dundee. At no time relevant to these proceedings was he an employee

9. The roofworks envisaged the erection firstly of a double cavity brick/blockwork gable

which would form the basic support for a series of 22 roof trusses which would be

erected at 600 milimetre intervals along the roof. Once the trusses were in place,

roof sarking would have been inserted and roof tiles would have been laid thereon.

10. By 11^th. February, 1990, the gable end wall had been constructed and arrangements

were made for the delivery of the roof trusses to the first defender's premises. The

trusses were duly delivered by lorry on 11^th. February, 1990, which was a Sunday.

assisted in the process of unloading the lorry and raising the trusses on to the

defender, were rewarded for their efforts with vouchers for either three or four

11. Both the architect and John Thomson were present during at least part of this

been ordered, 44 trusses were delivered. It was the architect's instruction that

the trusses be doubled up in pairs and each set consisting of such a pair was to be

12. At the material time, John Watson Scott of 9, Balunie Avenue, Dundee, was the

committee. On 11^th. February, he asked a number of people, including the seventh

trusses. While nothing specific was said in advance, it was the understanding of

the seventh defender that these volunteers would be rewarded by the first defender

office bearers of the first defender when requiring assistance and it is a reasonable

inference that this practice would have been followed in relation to the assistance to

13. On 13^th. February, 1990, John Thomson arrived at the premises to commence the

first defender, he was at the material time acting as and being paid as an independent

contractor. Contrariwise, the others, including the seventh defender, had volunteered

14. All five men went on to the roof of the premises. John Thomson was the only one

of them who had had any experience of erecting roof trusses. He was the only one

them to do, he gave them no general advice about the need to exercise safety while

working on roofs and no specific instructions on how to undertake the work safely.

16. The first three or four trusses were to be fixed in position by the use of 'L'

the other four held the set of trusses in position while John Thomson nailed them

17. After these first trusses were erected, the remaining trusses were to be retained

the trusses. It is explained that, ultimately, the trusses would be held in position

installed later. These straps were merely to retain the trusses in a vertical position

pending the erection of the whole set of trusses and, subsequently, the sarking, at

the conclusion of the installation of which these temporary straps would be removed.

18. By about 12.00 noon, the men working on the roof had successfully erected about

14 pairs of trusses. It began to rain and, in any event, it was about time to stop for

a meal break. John Thomson instructed the others to gather up the tools, most of

19. The seventh defender had heard John Thomson say earlier that the pair of trusses

it up against the fifth set of trusses, climbed up it and proceeded to remove the

nails from the strapping nearest to the apex of the set of trusses. As he did so,

fifth set of trusses, the seventh defender fell with them and landed on top of the

collapsed trusses. Unfortunately, however, the trusses fell on top of John Thomson

defender gave no indication or warning as to what he was about to do, nor did he

shout any warning when the trusses began to collapse. He had not been instructed

the first defender. He had volunteered to assist because he was a member of the first

of the following year. He constantly had problems with micturition and defacation.

metres. There was no circulation in his right foot and there had been discussion

with him by those responsible for his treatment of a below knee amputation of the

required morphine for pain relief. He had attended at a pain relief clinic but none

of the therapies attempted had had much effect on the constant pain he suffered.

hobbies had included football, cycling, swimming and golf, training, going socially to

the pub and dancing. He could no longer participate in any of these activities. His

him up when the laxatives he was obliged to take functioned, turn him in the night

painkillers and laxatives. He continued to suffer constant pain especially in his

by 30^th. September, 1996, but that, until that date, his inability to undertake

23. It is a matter of agreement among the parties that, in the event of any of the

and damage, that a reasonable award of solatium, on a full liability basis, would

24. It is a matter of agreement among the parties that in the event of any of the

which would be attributable to the past and which would be inclusive of interest

25. It is a matter of agreement among the parties that the severe injuries sustained

26. It is a matter of agreement among the parties that the two photographs, 45A and

well as the brick gable to which the first three sets of trusses had been attached.

of the picture. Near the apex of the trusses which remain standing can be seen a

nails immediately prior to the collapse of the trusses. A similar strap, apparently

still attached not only to the standing trusses but also to the first of the collapsed

of metal strapping. Photograph 11 depicts the fallen trusses with some pieces of

position close to the apex of the standing trusses and other pieces lying on the

employ other joiners to assist him with this work, but, but for the accident, it

29. The rates paid to joiners working on a self employed basis in the Dundee area

paid gross earnings of Ј8 to Ј10 per hour throughout that period. Working a 48

of administration and running a vehicle etc., could reasonably be expected to be

1. Said accident having occurred within the territorial jurisdiction of this court, and, in

any event, the first and seventh defenders being domiciled within the territory of this

2. The pursuers being the executors of the late John Thomson are, in terms of sections

1A and 2 of the Damages (Scotland) Act, 1976 as amended by the Damages (Scotland)

Act, 1993, the persons to whom the rights to damages for personal injuries vested in

said John Thomson, who died on 3^rd. April, 1997, transmitted on his death and are thus

the persons entitled to seek to recover such damages as he would have been entitled to

seek to recover, but only insofar as any award of damages would be relevant to the

3. Said John Thomson was not an employee of the first defender at the time of the

4. Though said John Thomson was a member of the first defender at all material times,

including the date of the accident, 13^th. February, 1990, he is not precluded as a

first defender as he was acting as an independent contractor in terms of a contract

5. The accident and the ensuing loss and damage sustained by said John Thomson the

right to recover which has now transmitted to the pursuers did not occur consequent

accordingly, now the pursuers' loss and damage, came about as a consequence of the

7. The seventh defender was not an employee of the first defender and there is no other

basis averred or otherwise established upon which the first defender could be or was

Accordingly, sustains the first plea in law for the pursuer, but only insofar as it is

properly directed against the seventh defender; insofar as it is directed against the first defender, repels said plea; sustains the fourth plea in law for the first defender and, accordingly, assoilzies the first defender from the crave of the writ; finds it unnecessary to determine the third, fifth, sixth and seventh pleas-in-law for the first defender; quoad the seventh defender, repels his third, fourth, fifth and sixth pleas in law; ordains the seventh defender to pay to the pursuer the sum of FIFTY FIVE THOUSAND AND

FOUR HUNDRED POUNDS (Ј55,400) STERLING with interest from 28^th. September, 1998 at the rate of eight per centum per annum until paid; reserves meantime all questions of expenses arising herein and assigns as a diet at which to hear parties on all such questions on

19. Edinburgh Veterinary Medical Society & Ors. v Dick's Trustees 1874 1R 1072

This is a particularly sad and hard case from which the legal profession can derive little satisfaction. The action commenced at the instance of the late John Thomson, who sadly died from cancer unconnected with the accident, on 3^rd. April, 1997. On 13^th. February, 1990, he suffered a catastrophic accident in which he sustained severe spinal injuries while he was working as an independent contractor, the work concerned being the replacement of the flat roof at the first defender's social club premises in Balmoral Terrace, Dundee, with a pitched roof. John Thomson had been a member of the first defender, and that undoubtedly assisted his winning the contract, but, despite submissions with which I will deal in due course that he was an employee of the club at the material time, on the one hand, and that as a member of the club he could not sue himself on the other, on the evidence I was left in no doubt whatsoever that he was acting as an independent contractor to carry out all the joinery work involved in the roof replacement. John Thomson had been in business on his own account as a joiner for some time. He held an SE 60 certificate for tax purposes and so for tax purposes he was regarded as being self-employed, and he divided his time between doing joinery work for a number of individual clients and working on a self-employed paid basis, if I may so describe it, for builders or developers involved either in new construction or in the modernisation of tenement property. He had worked in continental Europe, when work was in short supply here, and appears to have been well known and well regarded in the Dundee area, and never short of work. He gave evidence on commission before me on 20^th and 21^st. February, 1997, when his cancer was already at an advanced stage, and impressed me then with his determination to see through the process of giving his evidence, even managing some humour in the course of giving it. I am sure his death must have been a terrible blow to his wife and daughter and I regret having to remind them of these circumstances in this judgment. I also consider it a matter of considerable regret that more than two years have elapsed since he gave evidence prior to the issue of this judgment, though the blame for this lies among those responsible for the representation of the parties concerned combined with the severe pressure of business in this court which makes assigning lengthy proof diets a matter of great difficulty. In any event, considering he was narrating events which had occurred seven years previously, I thought his recollection of the events was remarkably good though I have some reservations about the reliability of some aspects of his evidence on account of that passage of time. I have no reservations about his credibility.

Following Mr. Thomson's death in 1997, his widow and Mrs. Collison, Solicitor, Dundee, his executors-nominate, were eventually sisted as parties to this action and eventually the matter otherwise proceeded to proof before me on 28^th., 29^th. and 30^th. September, 1^st and 2^nd October and 30^th. November, 1998 when I made avizandum. I regret having contributed to the delay since then but have striven unsuccessfully to acquire sufficient time to consider all the matters arising for determination comprehensively, and have had to deal with all that was before me on a piecemeal basis, as and when I could.

In the course of the proof, I heard evidence from Daniel Mills, John Stewart, Brian Cruickshank, Mary Welsh, the first pursuer, Mrs. Thomson, and, of course, Mr. Thomson on commission. Evidence for the first defender was led from Mr. John Watson Scott, Mr. John Joseph Scott and Ian Hamilton and for the seventh defender from the seventh defender only. I did not consider that there were any reasons for having any significant reservations about the credibility of any of these witnesses, but the preponderance of evidence suggests that the account of the accident most clearly given by the seventh defender, with some support from Mr. Thomson and Mr. Mills, is to be preferred to that given by John Joseph Scott, whose recollection of events I considered to be faulty. Also, while I make no criticism of Mr. Stewart or his expertise, I was left wondering what the relevance of his evidence was to the main issues in dispute.

The account of the accident as spoken to in the evidence especially of John Thomson and the seventh defender, bore little resemblance to the competing accounts in parties' respective pleadings. However, although objection was taken and evidence in a number of respects was permitted subject to competency and relevancy, no one, at the end of the day, insisted on any argument about the admissibility of any evidence I had heard. Accordingly, I determine the case on that evidence notwithstanding its departure from the terms of the pleadings.

As I have said, the background is of John Thomson, as an independent contractor, undertaking to convert the flat roof of the first defender's premises to a pitched roof. There was no dispute that the first defender had a building sub-committee who had instructed a Derek Anderson, variously described as an architect or a building consultant, unfortunately another individual who has not survived until the conclusion of this litigation and from whom accordingly I did not hear any evidence, to design the conversion and to prepare all the plans and other documents necessary to obtain local authority planning and building control approval for the work. He had prepared plans (No. 57/11 of process) a copy of which I understood Mr. Thomson to have; otherwise, there was no evidence of any specification of works or any other documentation determining any method of working, nor any suggestion of the architect/building consultant supervising or having any contractual requirement to supervise the erection of the roof trusses. Since Mr. Thomson was the only tradesman with any experience of the erection of roof trusses at the site on the day of the accident, I have no hesitation in accepting the evidence, which he did not really dispute, that he was not only in charge of the operation but was responsible for determining the system of working adopted in connection therewith. It is instructive that there does not appear to have been any consideration by anyone of the need to protect the edge of the roof, something highlighted in the evidence of Mr. Stewart, nor does any consideration appear to have been given to the specialist nature of the work involving working at heights, again referred to by Mr. Stewart, though, since no one fell from the roof, these matters are relevant only to pointing up the informal and arguably amateurish nature of the way these works were both organised and executed.

In any event, the trusses were to be 22 in number and were delivered by lorry on 11^th. February, 1990. Volunteers were found to unload the lorry and get the trusses up on to the roof of the premises at Balmoral Terrace "for security purposes" as it was put. It appears that both Mr. Anderson and Mr. Thomson were present when this occurred. Mr. Anderson had been called out because 44 trusses arrived on the lorry, instead of 22 as ordered. He appears to have been content that the 44 trusses should be nailed together in pairs to become 22 trusses and accordingly the lorry was unloaded. The volunteers who had assisted in this process were given vouchers for free drink by the first defender, probably through the medium of John Watson Scott, the treasurer and member of the building sub-committee, and while they were enjoying this reward, it seems that some of them were encouraged further to act as volunteers on the Tuesday, 13^th. February, to come to assist Mr. Thomson with the erection of the trusses.

On 13^th. February, four others appeared along with Mr. Thomson, namely George Mckenzie, David Dowdles, John Joseph Scott and the seventh defender. I heard no evidence about the backgrounds of McKenzie or Dowdles. Scott and the seventh defender had both been in employment as building trades labourers, though I did not understand either of them to have any particular experience of working on roofs. There was certainly no evidence to suggest that any of them had any recent experience of being concerned in the erection of roof trusses. The plan was that the first trusses to be erected would all be tied in to the newly erected gable wall by virtue of a series of 'L' shaped metal bars one leg of which would go down the cavity of the gable and the other leg would project outwards, being cemented through a brick joint. There was some uncertainty on the evidence as to whether the metal bars were to have the first three or four sets of trusses tied in to them. The photographs, No.45 and 59 of process appear to me to depict the latter, but the precise set up was not definitely established. The evidence from John Thomson was that there were to be six such metal bars, though there does not appear to be anything like that number seen on the photographs. The remaining 18 or 19 sets of trusses were to be temporarily tied to these initial trusses and then each other as the process of erection went along, working away from the gable, since, ultimately, the trusses would be held in position by the sarking on which battens and roof tiles would ultimately be laid.

The first task to be undertaken on the roof was the nailing together of the trusses, so that 44 became 22, though it was only the first three or four pairs which were initially nailed, the remainder being joined together as required immediately prior to erection. That was a relatively simple matter of hammering in nails at regular intervals in such a manner as to cause the two individual trusses to operate as a pair, keeping them parallel to each other. Nothing turns on this. Once sets of trusses had been created by the process of nailing two together, the men on the roof, under the direction of John Thomson, set about the task of erecting them, according to the evidence of the seventh defender, which I accept, by all of them picking up the set of trusses, moving it to the desired location - they were to be erected along the surface of the existing flat roof at 600mm intervals - and the other four would physically hold the truss in position while John Thomson nailed it where he wanted it to be nailed. With the first four sets of trusses, this was to be attached to the metal 'L' bars and also to the wallplates, pieces of timber running along the edges of the roof. Once the first truss was set up and its verticality checked, the rest were located initially using a 600mm measure and a spirit level to test verticality. John Thomson spoke about nailing the trusses to six bars, three on each side of the apex, one pair close to apex level, one pair about the middle and one pair just above ground level. As I have said, I can see little of these bars in the photographs, but, in any event, it seems that the first four sets of trusses were soundly located by virtue of the fact that they remained standing. The remainder of the sets of trusses were installed, one set at a time, by locating the set 600 mm from its erect neighbour nearer the gable, ensuring that it was vertical, having the men at each roof edge nail the trusses to the wallplates and inserting pieces of wooden strapping which were either nailed from one set of trusses to the next or over several sets of trusses - the photographs again suggest the latter approach was more commonly used -which system effectively held the trusses in position, pending the completion of the roof works in due course. At one stage, John Thomson adjusted the verticality of the set of trusses second from the gable, by the removal of some nails from the metal straps holding the truss in position and moving the set of trusses until they were vertical as indicated by the spirit level. At one further stage he mentioned that the fifth set of trusses from the gable required to be adjusted to be made vertical. However, by about 12 noon, some 14 sets of trusses had been erected successfully using the foregoing system, with the four other men on the roof being directed by John Thomson when it began to rain and, in any event, a meal break was due. John Thomson instructed the others to stop what they were doing, collect the tools and adjourn to the bar for something to eat. As the men were clearing up, the seventh defender, without telling anyone of his intentions and without any instruction from John Thomson or anyone else, decided to "help" by adjusting the fifth set of trusses. He took a ladder and set it up against the fifth set of trusses. He climbed the ladder and, with his weight against the set of trusses, began to withdraw the nails holding the top strapping near the apex of the set of trusses. As he was doing so, there was a loud crack and all the trusses from number 5 set onwards began to tumble, like a stack of dominoes, away from the gable wall. As the seventh defender's ladder had been leant against the fifth set of trusses, he came down with them and he and the ladder landed on top of the pile but he suffered no significant injury. John Thomson and John Joseph Scott were less fortunate. Though their precise location was not clearly established, they were both within the area now cove

John Thomson had not given the seventh defender or the other men on the roof any instruction or advice about safety though the inference from the evidence is that, until the seventh defender's unexpected intervention, the men worked to his instruction so far as concerns the erection work, without any difficulty or danger. While there was evidence from Mr. Stewart to the effect that none of these men should have been on a roof at all without any instruction about safe working practices on roofs, I am not prepared to hold in the particular circumstances in this case where the men were, in effect, volunteers that there was any particular duty incumbent upon Mr. Thomson so to instruct them and I decline to conclude that in failing to issue any such instructions Mr. Thomson was contributorily negligent.

Two issues arose sharply in argument about the status of John Thomson. In the first place, it was the pursuers' argument that he was an employee of the first defender and, as such, was owed duties by them which would be incumbent upon an employer. Secondly, it was argued by the first defender that John Thomson was a member of the club and accordingly could not recover damages from, in effect, himself, since he would be jointly and severally liable with all the other club members.

Counsel for the pursuers argued, under reference to Nethermere (St. Neots) Limited v Gardiner [1984] I.C.R. 612, especially page 623, and Lane v The Shire Roofing Company (Oxford) Limited [1995] PIQR 417, that John Thomson, in the particular circumstances of this case, had at the material time been an employee of the first defender. In particular, he appeared to found on the latter case which concerned a roofer who, for tax purposes, was regarded as self-employed but for the purposes of the action in tort with which the case was concerned, was held to be an employee to whom duties of care were owed by the defendants qua employers. Counsel submitted that control was the central issue. In the present case, he submitted, the first defender had laid down what had to be done in terms of design and when the work was to be carried out and the first defender provided what he described as a "team of workmen," and the materials. The doubling up of the trusses was an instruction issued by the architect as the agent for the first defender and all that demonstrated the satisfaction of "the control test" in the circumstances of this case.

The first defender, he submitted, must have overall responsibility for the safety of the project. Not all the works were joinery works and therefore were not all to be executed by John Thomson. He did not erect the gable, for example. The first defender had a responsibility to co-ordinate the project.

It was not decisive nor even material that John Thomson would have to account for tax on the payment he received for the work.

In response to this issue, counsel for the first defender, referring to the cases of Lane (supra) and Market Investigations v Minister of Social Security [1969] 2Q.B. 173, the latter of which, he said, especially at page 183G, contained an examination of the so-called "control test," submitted that there were a number of factors which suggested that John Thomson should be regarded in the present circumstances as being self-employed or, at any rate, not an employee of the first defender. These included that he had not applied for employment with the first defender. The process which brought him into a contractual relationship with the first defender had been one of tender and acceptance. He was not to receive remuneration in the form of a wage. He was to get Ј3,000, the contract price, for the total labour costs. He was not being remunerated solely for his labour. Other joiners would be involved in the completion of the sarking. He supplied the tools. He was in control of the activities on the roof and the work there was done in accordance with his directions and to his standards. He determined when the operation would commence and cease. His alleged employers were not in the roofing business nor even the building business. The case of Lane was accordingly readily distinguishable on its facts. John Thomson was an independent contractor and not an employee of the first defender.

I have no doubt that the approach of counsel for the first defender is to be preferred in the circumstances of this case. In considering the authorities to which I was referred, it is important to bear in mind the background in which consideration was being given to whether or not a person was an employee, and it is only in the Lane case that the background is one of tortious liability. However, in each of the cases, it is emphasised that there is no one determining factor and that each case will turn on a consideration of its own circumstances. In all three of the cases cited, the individual was held, for various purposes, to be an employee and the common theme running through these three cases is one of regularity or, perhaps more aptly, frequency of provision of labour over an appreciable period of time, as contrasted with a single contract between the parties for a particular purpose. In Nethermere, the plaintiffs were home workers sewing pockets into boys' trousers manufactured by the defendants and who were seeking to establish that they were employees for the purposes of section 153 of the Employment Protection (Consolidation) Act, 1978, which would have opened the door to a number of employment rights. Continuity of employment was a matter of significance to the establishment of these rights, and, as I understand it, the argument for the defendants was that in the circumstances of the plaintiffs being homeworkers, with no guarantee of work, the nature of the relationship between the parties was of a series of contracts for services each time their services were required. The Court of Appeal, supporting the industrial tribunal, reached the conclusion that the course of dealing between the parties over a number of years clearly established an employer/employee relationship. That fundamental aspect of that case, a course of dealing over a number of years, is entirely lacking from the present case, as, in my opinion, is any real element of control. The ratio of the decision provides no assistance to the pursuers here.

In Lane, the facts concerned a 714 self-employed for tax purposes roofing contractor who was found to have sustained severe injuries, apparently as a result of a fall from a ladder. The evidence appeared to be to the effect that, at one time, the plaintiff had traded on his own account as a one-man building firm, but that that type of work had dried up and that he had answered an advertisement placed by a building company looking for roofers to carry out a particular contract, whereafter he had been asked by the same company to carry out work at a particular house, carrying out repairs to a porch. One of the critical issues seemed to be that it was conceded by the defendants that the responsibility to ensure that the job could be carried out safely rested with them. That, it seems to me, is one of several issues critical to the present case. I am at a loss to understand on what basis it could be said, as counsel for the pursuer did say, that the first defender was responsible for safety at this site and for co-ordination of the works. It may well be in this case that the consideration of co-ordination of the works and the issue of overall safety was one that no-one took on board, but this accident pre-dated the Construction (Design and Management) Regulations, 1994, and I cannot see how, prior to their introduction, the owners or occupiers of property could have any responsibility to ensure the safety of persons carrying out work at the premises beyond such duties as would arise under the Occupier's Liability (Scotland) Act, 1960. John Thomson, in the circumstances of this case, would be responsible for his own safety, at least so far as concerns the system of work adopted for the erection of the roof trusses, and that is a fairly strong indication that we are here dealing with a contract for services.

Another issue canvassed in Lane which appeared to have been determinative was the question, looking at the matter objectively, of whose business was it i.e. was the workman carrying on his own business or that of his employers. The contract for the performance of the work was between the customer and the defendants and the plaintiff could just as easily have been an employee of the company on a P.A.Y.E. payroll basis. He just happened to be a self-employed 714 contractor. In the present case, the situation is completely different. John Thomson had been a joiner since leaving school. He had served an apprenticeship. He had worked for employers both in this country and abroad subject to various different tax regimes. He had made a deliberate decision to set up in business on his own account, trading as T & T Joiners and had registered for VAT purposes in that name. He had his own stationery in that name. So far as concerns this job, the employers, the first defenders, were a social club, not builders. They were not in the business of employing builders to carry out work for third party employers. The relationship was entered into by means of a tender to execute the works for a fixed price and an acceptance of that tender. Though the first defender supplied the materials, John Thomson supplied the tools. While he was given a plan to work to, that plan merely showed the final disposition of the roofworks and contained almost no detail as to how the works were to be executed. How that was done was within the sole discretion of John Thomson. There could be no question of the first defender contemplating that the club would be obliged to have employer's liability insurance for John Thomson. Insofar as the first defender had any control over how he performed his work, it was the control associated with occupancy of the premises, a state of affairs which would pertain with anyone, be they employee or independent contractor, going to carry out work on someone else's premises. Plainly the executor of the work on these premises was the independent contractor, John Thomson. Plainly, he was the one who was taking the economic risk, for no one else was, of the job being capable of being completed at a labour cost of Ј3,000.

So far as concerns Market Investigations Limited, the issue was whether for the purpose of liability for National Insurance contributions, a person employed as an interviewer on something of an ad hoc basis was an employee. Again the case turned on the frequency of employment over a period and, in my opinion, does not assist in a consideration of the present circumstances. However, Cooke J. again emphasised that the test of control was not decisive though important, but the real question was "whether a person was performing services under a contract of service or for services," and that depended upon, "whether the person engaged to perform these services was performing them as a person in business on his own account and thus under a contract for services." As I have already made clear, I entertain no doubt that John Thomson was a person engaged in business on his own account.

Counsel for the pursuers ultimately appeared to accept that, to succeed against the first defender, he required to establish that the seventh defender was an employee of the first defender. It was his position that that was the only basis upon which the first defender could be vicariously responsible for the acts or omissions of the seventh defender. Certainly in Art.4 of condescendence an employment relationship is the only basis suggested for vicarious liability and no other basis was suggested either in the pleadings or in argument. The first defender's position is that the seventh defender was not its employee, but the employee of John Thomson. By implication, therefore, the first defender denies that he was their employee and that the club is vicariously liable for his negligence. The seventh defender, in his pleadings, meets the allegation that he was an employee of the first defender with a general denial.

The basis upon which counsel for the pursuers suggested that the seventh defender was an employee of the first defender was that it was a representative of the first defender who had secured the seventh defender's presence on the roof on 13^th. February, 1990. The seventh defender expected to get free drink in exchange for the services he provided. Counsel's only other submission on this important issue was that the fact that the seventh defender was also a member of the club was of no relevance.

Counsel for the first defender submitted that for the pursuers to succeed against the first defender, there had to be a finding in fact that the seventh defender was an employee of the first defender. He rehearsed the evidence in respect of this. It was agreed that John Thomson was to be paid Ј3,000 for erecting the roof. John Joseph Scott, who claimed to have worked in the past for John Thomson, said that he expected to be paid by John Thomson for the work he did in helping to erect the trusses, and there was some suggestion in the evidence that he did get some money from John Thomson, though I do not consider that I could determine on the evidence what the true nature of that payment was, given that it appears to have been made after the accident. Hamilton, the chairman of the first defender, found it inconceivable that the first defender would supply drink to a labour force which was being paid Ј3,000 to erect the roof, but I did not understand him to have been involved directly in the arrangements so that what he found inconceivable was largely irrelevant. John Watson Scott, the treasurer, said generally that there had been a call to assist John Thomson but that he did not know how the group of men came to be assembled on the Tuesday morning. The seventh defender claimed that it was Scott who had asked him to turn up, but he was unsure how or even if he was going to be rewarded, and it did not appear to be a matter of huge concern to him.

As counsel for the first defender submitted, a volunteer is not an employee. He further submitted that the receipt of a few pints, as he put it, did not infringe upon his amateur status. It does seem to me, on a consideration of the evidence, that it is hard to categorise the seventh defender as anything other than a volunteer. In this respect, the fact that he was a member of the club is important, for it helps to explain his motive. But, on a consideration of the same authorities as counsel referred me to on the question whether John Thomson was anyone's employee, I ask myself where is the evidence of a contractual relationship with binding obligations governing the position between the first and seventh defenders. I can see none. If the seventh defender had stayed at home in his bed on the morning of 13^th. February, 1990, there would have been absolutely nothing the first defender could have done about it. There is, accordingly, no employment relationship between the first and seventh defenders upon which a basis for vicarious liability could be formed. It was a matter of concession that, without that, the pursuers could not succeed against the first defender and I have accordingly assoilzied the first defender from the crave of the writ.

It was suggested, at least in the pleadings for the first defender, that the seventh defender was an employee of John Thomson. Suffice it to say that there was no evidence to support any such contention and I reject it entirely.

Counsel for the first defender submitted that, on a fair reading of the pursuers' averments, their position appeared to be that John Thomson was not at the date of the accident and never had been a member of the first defender. That must necessarily be inferred from the general denial of the defenders' averments in answer in Art.1 of condescendence, it being averred in Ans. 1 for the first defender that John Thomson was not only a member of the club but was for a period its secretary. In evidence, John Thomson had however conceded that he had been a member of the club but did not know what his status was at the time of the accident i.e. whether he was a member or a lapsed member through non-payment of subscription, the latter being a status automatically acquired in terms of the first defender's constitution in the absence of timeous payment of the annual subscription. The evidence of John Watson Scott as treasurer at the material time was highly relevant. The records were lost in a break-in. There was no suggestion that John Thomson's status as a member had ever been challenged whereas Scott said he regularly excluded those whose membership had been allowed to lapse. There was a body of evidence, which I accepted, to the effect that John Thomson had got the contract because he was a member. I had no difficulty on the evidence in concluding, on the balance of probability, that John Thomson was a member of the first defender at the time of his accident.

On the esto basis that he was wrong to submit that the first defender had no vicarious liability for the acts and omissions of the seventh defender, then, in any event, said counsel for the first defender, an injury caused by an employee of a club to a member of a club did not give rise to liability on the part of the club. The ratio behind that submission was that the victim, being a member of the club, would be suing himself.

In this context, counsel for the first defender directed my attention to the Stair Encyclopaedia, Vol 2, esp. para. 814, and to the judgments in Mair v Wood 1948 SC 83 and Prole v Allen [1950] 1 All E.R. 476.

In the case of Mair, the pursuer was one of five persons engaged in a joint adventure, namely share-fishing. He was allegedly injured through the negligence of one of his fellow joint adventurers. The question, as posed by Lord President Cooper when the case came before the First Division on appeal from the sheriff court, was, " Can a partner hold his firm vicariously liable for a delict or quasi-delict from which he has suffered loss or injury and which has been committed by another partner acting as such in the interests of the firm and within the scope of his implied mandate ?" He answers his own question at page 87, thus:-

" While recognising that a partner is praepositus negotiis societas and therefore in the fullest sense an agent for the firm and his co-partners when acting in pursuance of his firm's business, I can find no warrant for holding that by the common law of Scotland a firm is liable to one partner for injury or loss due to the negligence of another (or indeed due to any wrong committed by another) when acting within his implied mandate - much less when acting beyond the scope of that mandate." Lord Keith at page 90 put it thus:-

" There are wrongs and failures in duty which, when committed by a partner, produce certain legal consequences in a question with fellow partners. There are breaches of the duty owed by the partner to the partnership in the conduct of the partnership affairs. It is immaterial here to consider what is the standard of duty so imposed. It would seem to be lower than the duty expected of a partner in relation to third parties being measured by that diligence which he would show in his own affairs. What is material to notice is that such failure of duty gives rise to a claim against the delinquent partner by his co-partners for the loss caused to the partnership or to their interests as partners. If however, the pursuer is right, any such wrong should give the injured partners a claim against the partnership, with contribution to the claim necessarily among themselves. This, in my opinion, is an impossible situation and one that inverts the whole rights of parties. I do not pause to consider whether a delict such as was committed here could give rise to a claim by the other partners against the negligent partner. Unless possibly where some loss was sustained by the partnership, I consider that any such claim is a purely personal claim by the injured party against the negligent party."

It is important to notice both their lordships refer to the context of the "conduct of the partnership affairs."

It was the submission of counsel for the first defender that what applied to partnerships and the relationship of partners inter se applied a fortiori to the members of an unincorporated association which had no separate legal persona. He sought to derive further support for that position from the English authority of Prole.

Prole's case concerned a lady, as it happens the wife of the president of a club and herself a member, who fell sustaining injury while she was leaving a New Year party at the club premises. She raised proceedings against certain members of the club's committee and against the steward. She failed in her action against the committee members, Pritchard J. holding that there was nothing in their being committee members which in this context elevated them above being ordinary members of the club against whom no duty of care for another club member lay. However, she did succeed against the steward apparently on the basis that he as an individual had been negligent. The discussion of the basis upon which a member of the club had no liability is limited and there does not appear to have been any consideration as to whether, in connection with a claim by a member, the club could have been vicariously liable for the negligence of its employee, the steward.

In the present case, counsel for the first defender however prayed this decision in aid of his submission that, since John Thomson was a member of the first defender, there was no duty of care owed to him by the first defender.

I was further given a copy of the decision in a case called Bradley Egg Farm Limited v Clifford & Ors. [1943] 2 All E.R. 378, a decision of the Court of Appeal in England where I have to confess finding much to commend the strong dissenting judgment of Bennett J. The action was brought by a company who were poultry farmers who had entered into a contract with the Lancashire Utility Poultry Society, an unincorporated association, which undertook to test poultry for a disease called bacillary white diarrhoea, in the course of which testing the plaintiff's birds apparently contracted typhoid and had to be destroyed. The majority managed to reach the conclusion that the management committee of the unincorporated association should be, in effect, vicariously liable for the negligence of their employee tester who had failed to sterilise his testing scissors between birds. If I may respectfully say so, the judgment of the majority is hard to reconcile with the law, as I understand it, in relation to unincorporated associations and seems to be based on the law of agency. What is interesting is that the committee of management were held vicariously liable for the negligence of their employee, but in his dissenting judgment Bennett J. argues forcefully that the action directed against the committee of manangement is inappropriate and judgment should have been sought against all members of the association. I should record, for the sake of completeness, that I was further referred to the brief report of the decision in Brown v Lewis [1896] 12 T.L.R. 455, a case involving a spectator injured by the collapse of a stand at Blackburn Rovers football club, where the members of the committee again were found personally liable on account of their having employed "an incompetent person" to carry out repairs to the stand. It is not possible from the brief report to discern the ratio of the decision but it may again reflect the level of authority delegated to the management committee by the particular club's constitution.

I was also referred to the case of the Edinburgh Veterinary Medical Society & Ors v Dick's Trustees, 1874 1R 1072. This arose from a dispute among the members of an unincorporated association as to the ownership of the library and materia medica of the association and I found nothing in the judgments of assistance to me in the present case.

Further, I was referred to the judgment of Lord McLaren in Renton Football Club v Scottish Football Association 1891 18R 670 when the Inner House refused the defenders' appeal in relation to their pleas of no title to sue and all defenders not convened on the basis, in this action where one unincorporated association was suing another, that as a matter of practicality, it was sufficient that both the pursuers and the defenders be designed by reference to the names of the respective associations and their office bearers. The decision does not deal, however, with any question of liability or enforcement of any order made against an unincorporated association and is therefore of limited assistance only in the present circumstances.

I was also directed to the Stair Encyclopaedia, Volume 2 at para. 801 onwards on the subject of "Associations and Clubs," from which source I was reminded that an unincorporated association has, of course, no legal persona, having in fact no legal existence apart from its members. The constitution of a club is said to represent the contract uniting the members, setting out the purposes of the association and defining the rights and duties of the members. With regard to their rights and duties against or towards third persons, the ordinary common law will apply, with members' responsibility for the actings of their committee being governed by the laws of agency, which may render committee members personally liable in delict in certain circumstances. I diverge to record that, in the present action, no evidence was led as to precisely by whom John Thomson was invited to tender nor precisely by whom the tender was accepted. In any event, no case is averred on record against any committee or committee member of the first defender for any act or omission on anyone's part. At para. 813 it is specifically stated as being the law of Scotland that " a member is not responsible for contracts undertaken on behalf of the club unless he has authorised them; his liability depends on the normal rules of agency.....In the absence of a plain indication to the contrary, the committee is expected to purchase what is necessary for the running of the club out of the funds in hand and, if funds are inadequate, to propose to the members an increase in subscription, or the raising of the necessary money by borrowing or in some other way.......A person supplying goods to a club must go against the person who gave the order or authorised the order being given. If the club did not give authority for the order, the person ordering the goods will be personally liable to the supplier as having exceeded the scope of his authority...... If a general meeting of the club has authorised work, all members would be responsible in contract for the cost, whether they voted at the meeting for the work to be done or not."

Again, I observe that there was no evidence about how the decision to carry out roof repairs was reached or to whom the task of organising such repair was delegated, any information about that emerging incidentally in the course of the evidence generally.

So far as concerns delictual liability, the considerations are discussed at para. 814. There it is stated that, " A third person injured through the fault of a club or its servants or agents has a right in delict against the club and its funds, or against the committee or one or more of its members. This right may be based........... on the club's vicarious liability for the actings of one of its servants in the course of his employment and within the scope of his authority, expressed or implied, who committed the wrongful act complained of. The normal rules of vicariously liability will apply...."

" An association or club is not vicariously liable to one of its members for injury to that member due to the delict of another member, or servant, of the club even when committed while acting in the interests of the association or within the scope of his employment."

" The possible liability of club members in delict towards third persons raises considerable dangers for club members......The liability would appear to be joint and several against the club members, with the usual right of relief among those found liable."

Finally, at para. 819, in relation to sheriff court procedure, it is noticed that, "It is possible that a decree obtained in an action against a club which has not been raised in the names of all of the members may not be enforceable against the individual members of the club."

The first defender's constitution is lodged as a production, No.27/1 of process. It provides that the objects of the club are, " to provide Social, Sports and Recreational facilities in the Club premises at Balmoral Terrace, Dundee." It is no part of the objects of the club to erect roofs.

Para. 6 of the constitution deals with the committee. It provides, so far as relevant, that:-

" The business and affairs of the Club shall be under the management of a Committee. The Committee shall consist of twenty elected Members of the Club. Members of the Committee shall retire annually but shall be eligible for re-election. The Committee shall be elected annually at the Annual General Meeting.

The Committee shall have the powers to appoint Office Bearers out of their own number, comprising Chairman, Vice-Chairman, Secretary, Assistant Secretary and Treasurer, and such Officers shall be appointed annually. The Committee shall meet not less frequently than once a month to transact current business. At these Meetings eight of the Committee shall form a quorum.

The Committee shall be entitled to exercise the following powers on behalf of the Club:-

(a) Power to purchase heritable property, enter Leases and enter any agreement relating

Furthermore, provided the following actions have been given the approval of the Committee, the Office-Bearers will have power to -

There was no evidence, as such, of the committee authorising the office bearers to accept service of this summons on behalf of the club, but I think in all the circumstances I am entitled to infer that that is the position. The net effect of the foregoing seems to me to be that the Committee of the club had authority to enter into a building contract relative to the club's premises and any third party who sustained loss, injury or damage as a consequence of fault or negligence of the club or any person for whom they were vicariously liable would be entitled to a decree against the club which would be enforceable jointly and severally against all its members at the date of the negligence.

Two questions arise in the present case. Firstly, what is the effect on the outcome of these proceedings that John Thomson was, on the day of the accident, a member of the first defender ? Secondly, what is the effect on the outcome of the proceedings that the seventh defender was, on the day of the accident, a member of the first defender ?

So far as the first question is concerned, in my opinion the fact that John Thomson was a member of the first defender is of no relevance. John Thomson had entered into a contract on the face of it with the authorised representatives of the first defender to carry out the roof replacement works, which type of activity is not within the objects of the club. He was an independent contractor and the fact of his being a member of the club is purely incidental thereto. Unlike the position in Mair's case where the injury sustained by the share-fishing pursuer arose from the operation of the fishing boat carried out negligently by another of the co-adventurers, here John Thomson was not engaged at the material time on what would be considered to be the ordinary business of the club. Accordingly, I do not agree with counsel for the first defender that the pursuers' claim can be resisted on that basis.

The position so far as concerns the seventh defender is more interesting. While I think the question still turns on the issue of vicarious liability, I observe that the answer to the question might well be different, on the hypothesis that the seventh defender is a volunteer from the club, if this claim had been by the also injured John Joseph Scott, who too was a volunteer. I am inclined to the view that, again, the way round that may well be to point to the circumstances that erecting roofs is no part of the objects of the first defender, but the degree of "independence" from the first defender of Scott qua club member is much less than the position of John Thomson.

As I have said, the only basis upon which vicarious liability was said to arise was that the seventh defender was the employee of the first defender and I have held that as a matter of fact he was not. It is accordingly idle to speculate whether the seventh defender may have been an agent or mandant of the first defender in the circumstances. Accordingly, his being a member of the club, in my opinion, makes no difference to the outcome.

Counsel for the pursuer submitted that whether a reasonably careful labourer would have anticipated a real risk of harm if he failed to give a warning to the others on the roof or if he failed to take reasonable steps to see that people on the roof were out of the way before he began the attempted adjustment of the truss were the two issues. There was what he described as a "situation of real proximity" at the material time. The way the seventh defender chose to proceed amounted to a failure to apply any reasonable degree of common sense. Had he applied common sense, he would have given a warning and would not have proceeded until others were out of the area of any harmful effect. He should have left well alone instead of interfering with something which was critical. It would have been more helpful if he had explained to me wherein I should find evidence of negligence on the part of the first or seventh defender as the case may be, the duty said to be incumbent upon these defenders and the respect in which any such duty might have been breached.

Counsel for the first defender reminded me that the court had heard in evidence from John Thomson, from John Joseph Scott and from the seventh defender with conflicting versions of what had taken place on the roof. However, they had in common the opinion that the trusses being erected did not present any particular danger to health and safety. John Thomson said that he could not understand how the accident had occurred. He could not understand how the trusses had collapsed. There was no evidence, in fact, he submitted, that the consequences of the seventh defender's actions were foreseeable. It did not seem to occur to anyone that the removal of a couple of nails would cause the domino effect which occurred. He referred me to Muir v Glasgow Corporation 1943 SC (HL) 3 and in particular to the judgment of Lord MacMillan at page 10. It was necessary, said counsel for the first defender, to envisage what the reasonable man on the Douglas omnibus would regard as being foreseeable to the seventh defender at the point where the seventh defender began his intended course of removing nails from the truss. On the evidence, even the expert, William Stewart, regarded what had happened as a fairly unusual occurrence. One had to consider his evidence in the light of his former experience as a member of Her Majesty's Health and Safety Inspectorate wherein he was used to dealing with situations on building sites regulated by statutes or statutory instruments commonly importing either absolute or at least strict liability. Accordingly, the evidence did not support the contention that the seventh defender, far less the first defender, should have foreseen what took place and if he could not and ought not to have foreseen what occurred, he could not be liable nor, of more consequence for him, could the first defender be liable, in the event that his earlier argument that there was no basis upon which the first defender could be vicariously liable for the seventh defender was not upheld.

Counsel for the seventh defender submitted that the pursuers had failed to establish their averments suggestive of a breach of duty on the part of his client. I should accordingly conclude that the seventh defender had not been negligent and should be assoilzied. The accident, he submitted, was not a reasonably foreseeable consequence of the seventh defender's act. He accepted, as a matter of fact, that the accident occurred in the manner described by the seventh defender in his evidence i.e. put simply that the cause of the collapse of the trusses had been the action on the part of the seventh defender in removing nails from the strapping connected to the fifth set of trusses from the gable. He accepted, I thought fairly and properly, if I may say so, that, while there were discrepancies between the record and the evidence, that was scarcely surprising in the circumstances and that it would have been churlish to argue that the facts as they emerged represented other than a modification of the averments on record. He therefore took no issue about not having fair notice of the pursuer's modified case, if I may so categorise it. The seventh defender, he submitted, was a transparently honest witness, and I am inclined to agree with that assessment and to think that he was also the witness who, standing the passage of time, gave the most reliable account of what had occurred, to the extent that he conveyed the impression to me that the whole situation had been praying on his mind and that he was glad of this opportunity to give his account. The seventh defender had candidly accepted that he had had no direct instruction to do anything to truss No.5, never mind do what he did to it.

Foreseeability was the critical issue in this case, submitted counsel for the seventh defender. The pursuer had to show that John Thomson had been owed a duty of care by the seventh defender, that that duty had been breached and that John Thomson and now in his place, the pursuers, had sustained loss as a consequence of such a breach of such a duty. This was an accident which had occurred "out of the blue." There had been no negligence on the part of the seventh defender, for what had occurred was not foreseeable.

He referred me to The Wagon Mound [1961] AC 388; Bourhill v Young 1942 S.C.(H.L.) 78; and Woods v Duncan [1946] A.C. 401, esp at pages 437 to 438.

Counsel for the seventh defender submitted that the last of these cases, which arose out of the loss of the submarine H.M.S. Thetis in Liverpool Bay in 1939, was a helpful comparator for it dealt with a combination of circumstances culminating with an officer opening a torpedo tube, causing the submarine to sink with substantial loss of life. The officer was, however, held not to have been negligent on the basis that the consequences of his action could not have been foreseen.

That, however, is not an accurate commentary on the case at all. So far as Lieutenant Woods was concerned, the case directed against him depended upon the application in the circumstances of the maxim, res ipsa loquitur, which does no more than transfer the onus of proof of negligence. What was held, ultimately by their Lordships in the House of Lords, was that Woods' account as given in evidence and which was believed, displaced the presumption by demonstrating that he had not, in fact, done or omitted to do anything the doing or omitting to do which amounted to negligence. So the issue in respect of the case directed against him did not turn on foreseeability, but on the displacement of the inference of negligence. It was insofar as the case was directed against Cammell Laird Limited, the builders of the submarine under contract to the Admiralty, that the issue of foreseeability arose, it again being ultimately determined in the House of Lords that the careless painting of a test cock so as to block it thus preventing Lieutenant Woods ascertaining that a torpedo tube was full of water because the bow-cap of the tube was open when the indicator in the control panel was indicating that it was shut did not give rise to circumstances where, from the standpoint of the painter or his employers, the negligent painting could be foreseen to occasion the total loss of the submarine through the opening of the rear door of the torpedo tube while the bow-cap was open.

In any event, counsel then went on to submit that, in the present case, the catastrophic accident was unforeseeable. The seventh defender could not have known that the whole structure would collapse on top of John Thomson. The mere possibility of an accident is not sufficient to establish liability, he submitted, under reference to Searle v Willard [1947] A.C. 351 and Muir v Glasgow Corporation (supra.)

For the pursuers to succeed against the seventh defender, said counsel, I would require to conclude that it was reasonably foreseeable that the trusses would collapse. He then directed me to various aspects of the pleadings, firstly to Answer 3 at page 10, reminding me that the seventh defender was not a tradesman and then to Answer 5 at page 14 of the record where he averred in terms that, " It was not reasonably foreseeable to him that merely by removing the nails, as he had seen the deceased (John Thomson) do earlier that day, the roof trusses would fall."

The seventh defender's evidence, said counsel, was that he was a labourer with no trade or qualification. Although he had forty years in the building industry, it was fourteen years prior to the accident that he had last worked in full time employment working with joiners. This job was different from his previous experience with roof trusses as he had never previously been involved in putting roof trusses on to an existing building as opposed to one under construction. He had seen John Thomson carry out adjustments on three roof trusses prior to this and nothing untoward had happened. He did not see the truss he set out to adjust as presenting any risk. He saw an apparently stable structure held together with straps and tied to the gable wall. It came as a surprise that the removal of one nail caused the majority of the structure to collapse. There was no reason why he should have been on his guard. There was no basis for holding that the loosened truss would do any more, at worst, than simply fall against the next truss. John Thomson, in his evidence (Vol 2, page 3) had not anticipated that the removal of one nail would have caused the collapse of the trusses.

The higher one is placed in organisational terms in respect of any operation, the higher the duty is to assess risk and foresee danger. If the evidence was that John Thomson had not foreseen this danger, then why should the seventh defender foresee it, asked counsel for the seventh defender.

The answer to that in my opinion quite simply is that John Thomson did not foresee any such danger for he had not contemplated the seventh defender's independent action. I do not recall John Thomson being asked how specifically he would have undertaken the task of adjusting truss number 5, nor even if he agreed that it required adustment. All John Thomson said in evidence was that it was a surprise to him, if the seventh defender had only removed one nail, that the majority of the structure fell down, but that is quite another thing from suggesting that he did not foresee or understand that there was a risk of collapse associated with the adjustment process. In any event, as I shall come to discuss, the test of foreseeability is not formulated on the basis of what the seventh defender or John Thomson might have foreseen but what the hypothetical reasonable man placed in the vantage point occupied by the seventh defender at the material time would have foreseen. There was no evidence, said counsel, that the seventh defender could have appreciated that the third truss which he saw being adjusted was well supported whereas the fifth truss was not, but that seems to me merely to serve as confirmation that the seventh defender deliberately set out on a course of action without understanding the consequences in a situation where he should have recognised his lack of expertise and left well enough alone. I accept, as counsel submitted, that the seventh defender was acting in good faith and without intention to cause harm, but that does not absolve him from a finding of negligence.

It was the evidence of the expert, Stewart, that if the trusses had been properly constructed, removal of a nail should not have had this catastrophic result, said counsel. I am not sure that that accurately reflects the evidence of Stewart on the point. He said that nails could be removed from the trusses but that it should be a controlled exercise. If ties were in place, then the trusses should have stood. He accordingly surmised that there must have been some ties missing. He went on, however, to qualify this by accepting from the photographs that the protruding nails there to be seen were pulled out during the collapse and might indicate the presence of ties prior to the collapse and pulled by the process of the collapse. He also said that it should be possible to bring trusses into alignment without removing the straps (and therefore, by inference, the nails securing the straps) but he also seemed to accept that adjustment had to be done by a competent person; in fact he went on to say that adjustment would normally be undertaken by two joiners. He also stated that, if adjustment were not carried out properly, it would be reasonably foreseeable that the trusses would fall.

As will be seen, the foregoing answers cover just about the entire range of possibilities. I was not particularly impressed by the evidence given by Stewart though I should say, in fairness to him, that that is more a comment on the quality of information he was given from which to make expert deductions, than any question of inherent lack of expertise.

The inevitable conclusion, said counsel for the seventh defender, was that this was just a terrible accident. The pursuers had offered no explanation as to why the collapse was an obvious risk on removal of a couple of nails.

So far as warnings were concerned, the seventh defender could only have a duty to warn anyone about what he was doing if he regarded what he was doing as in any way dangerous. While I think it is unnecessary for me to determine this issue in the circumstances here, it seems to me that whether a warning should have been issued should be subject to the same test in relation to foreseeability as the test for any other negligent act or omission. Should the seventh defender have foreseen that what he was going to do might be dangerous to others within the ambit of his duty of care ? If so, and if the task he elected to undertake had to be undertaken and could not be undertaken in any other way, then it seems to me there would have been a duty to warn, but these prerequisites were not explored.

Counsel concluded, on the subject of liability, by simply submitting that there was no factual basis for asserting that the accident was a reasonably foreseeable consequence of the removal of nails from the strapping.

The judgments referred to by counsel could aptly be described as seminal in the context of the test of foreseeability, but it is nonetheless useful for me to remind myself briefly of the consistent approach found therein. Bourhill v Young is the decision of greatest vintage. While the focus in that decision was the precise scope of the ambit of the duty of care where the harm alleged was nervous shock on the part of a fishwife descending from the Colinton tram but protected by it from any direct harm from a speeding motor cyclist, there are still extremely useful and binding comments on the test of foreseeability. For example, Lord Russell of Killowen states, " In considering whether a person owes to another a duty breach of which will render him liable to that other in damages for negligence, it is material to consider what the defendant ought to have contemplated as a reasonable man. This consideration may play a double role. It is relevant in cases of admitted negligence (where the duty and the breach are admitted) to the question of remoteness of damage i.e to the question of compensation not to culpability, but it is also relevant in testing the existence of a duty as the foundation of the alleged negligence, i.e. to the question of culpability not to compensation." To his own words, he added those of Brett M.R. in Heaven v Pender (1883) 11 Q.B.D. 503 at 509 and those of Lord Atkin in Donoghue v Stevenson 1932 SC (HL) 31, the former saying, " Whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary skill and care to avoid such danger;" and the latter, " You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour ? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question." Then there are the famous words of Lord Macmillan:-

" The duty to take care is the duty to avoid doing or omitting to do anything the doing or omitting to do which may have as its reasonable and probable consequence injury to others, and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed." Lord Wright, in two separate short passages, said, " It is here, as elsewhere, a question of what the hypothetical reasonable man, viewing the position, I suppose ex post facto would say it was proper to foresee." And, " I cannot accept that John Young could reasonably have foreseen, or, more correctly, the reasonable hypothetical observer could reasonably have foreseen, the likelihood that anyone placed as the appellant was, could be affected in the manner in which she was."

In Muir v Glasgow Corporation, Lord Thankerton, at page 8, states, " In my opinion, it has long been held in Scotland that all that a person can be held bound to foresee are the reasonable and probable consequences of the failure to take care, judged by the standard of the ordinary reasonable man......... Further, this is essentially a jury question, and, in cases such as the present one, it is the duty of the Court to approach the question as if it were a jury, and a Court of Appeal should be slow to interfere with the conclusions of the Lord Ordinary. The Court must be careful to place itself in the position of the person charged with the duty, and to consider what he or she should have reasonably anticipated as a natural and probable consequence of neglect (my emphasis) and not to give undue weight to the fact that a distressing accident has happened or that witnesses in the witness box are prone to express regret, ex post facto, that they did not take some step, which it is now realised would definitely have prevented the accident."

Two passages from Lord Macmillan at page 10 are also helpful, as well as binding on me, viz:-

" In Scotland, at any rate, it has never been a maxim of the law that a man acts at his peril. Legal liability is limited to those consequences of our acts which a reasonable man of ordinary intelligence and experience so acting would have in contemplation." And:-

" The standard of foresight of the reasonable man is, in one sense, an impersonal test. It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question. Some persons are by nature unduly timorous and imagine every path beset with lions. Others, of more robust temperament, fail to foresee or nonchalantly disregard even the most obvious dangers. The reasonable man is presumed to be free both from over-apprehension and from over-confidence, but there is a sense in which the standard of care of the reasonable man involves in its application a subjective element. It is still left to the judge to decide what, in the circumstances of the particular case, the reasonable man would have had in contemplation, and what, accordingly, the party sought to be made liable ought to have foreseen. Here there is room for diversity of view, as, indeed, is well illustrated by the present case. What to one judge may seem far-fetched may seem to another both natural and possible."

Also pithy but nonetheless helpful, consistent and persuasive is the comment of the court as delivered by Viscount Simonds in Overseas Tankship (U.K.)Limited v Morts Dock & Engineering Co. Ltd (The Wagon Mound) (supra) wherein, at page 424, he said, "After the event even a fool is wise. But it is not the hindsight of a fool; it is the foresight of the reasonable man which alone can determine responsibility."

It appears therefore that I have to approach the task of determining liability by considering myself to be a reasonable hypothetical man in the position occupied by the seventh defender at the point in time where it first occurred to him that he might be able to advance the progress of the roofworks by adjusting truss number 5. At that point, he had participated in the erection of about 14 sets of trusses. Throughout, the process of erection had been controlled by John Thomson who, not putting too fine a point on it, had been telling the seventh defender what to do. The seventh defender knew or ought to have known, for he had been participating in the works, that it required the combined effort of the five men on the roof to pick up each set of trusses and manoeuvre it to the position determined by John Thomson and for four of them, including him, to maintain it in that position while John Thomson nailed it into position. The reasonable hypothetical man in the position of the seventh defender, in my opinion, should have recognised that, until the truss was nailed into position with nails being inserted into pieces of wooden strapping, it was he and his colleagues who were maintaining it in an upright position. It ought to have been obvious to such a reasonable hypothetical man, accordingly, that it was now the nails which were holding the truss in position and that if he interfered with the nails, that was bound to have an effect on the verticality of the truss and its security and that he on his own would be unlikely to be unable to hold it. I would further like to think that the reasonable hypothetical man who set off with the intention of adjusting a truss, which, inevitably, requires its movement, would have greater foresight than that demonstrated by the seventh defender as to the consequences of resting the ladder up which he then climbed against the very truss the security of which he was planning to interfere with, thus adding his own body weight plus the weight of the ladder to the inherent instability of the truss once the nails holding it in position, or, at least, some of them, were removed. Further, a reasonable hypothetical man in the position of the seventh defender as a former building site labourer who had not worked for fourteen years and had limited experience of working on roofs with joiners would have recognised, in my opinion, even supposing he had watched the tradesman earlier the same morning undertake what to him appeared to be a similar adjustment, his own lack of understanding of the complex nature of the structure and would have left well alone. Instead, with what can only be considered to be a notable lack of prescience, the seventh defender, telling no one of his intentions, placed the ladder against set of trusses No. 5, climbed up it and proceeded to remove the nails from the strapping which was temporarily securing the set of trusses in their upright position, inevitably inducing its collapse, its collision with truss No. 6 and the initiation of the domino effect which brought down all the other trusses on top of both Mr. Thomson and Mr. Scott. They were both plainly within the ambit of the duty of care being placed on the roof where they were likely to be and were affected by any induced collapse of the trusses and both, sadly, suffered severe injury from the seventh defender's deliberate act which I have no hesitation in categorising as negligent in the circumstances of this case.

Counsel for the first defender made submissions on an esto basis to support a finding of contributory negligence. He submitted that John Thomson, being the man in charge, and the only one with any real experience of the work being undertaken, should have given the others what he described as "a pep talk," prior to them going on the roof. It had been the evidence of the safety consultant, Stewart, that no one should be working on a roof without adequate training. It was incumbent, said counsel, upon John Thomson to instruct the volunteer squad, including the seventh defender, not to touch anything. There was no explanation given in evidence as to how he failed to see the seventh defender making his way to truss no. 5 with the ladder. If he had seen the seventh defender doing so, he should at least have been placed on inquiry and found out what he was planning to do. In any event, he appeared not to consider that the removal of one or two nails could have induced the collapse of all the trusses.

Counsel for the seventh defender accepted that for me to find that John Thomson was contributorily negligent, in principle, I would have to accept that he knew or ought to have known what the seventh defender intended to do and the consequences of doing it and he properly accepted that that was inconsistent with the evidence heard from both. However, he still submitted that there was an argument that an unskilled labourer with neither experience of nor training for working at heights should not have been allowed on the roof in the first place. In that respect, he was content to adopt the submissions of counsel for the first defender.

An allegation of contributory negligence can only be sustained where it is established that a pursuer has to some extent caused the harm he has suffered and had thus contributed to his own injury by his own negligence. Essentially there must be evidence of some act or omission of a negligent character on the part, in this case, of John Thomson which contributed to the accident. I was not, however, directed to any authority where consideration was given to the proposition that if a skilled tradesman who knows or ought to know of the dangers associated with working on a roof and carrying out a relatively complex building operation, elects to do so with the assistance of four unqualified and inexperienced volunteers and one of them is negligent in the execution of the work and as a consequence the tradesman is injured then he is guilty of contributory negligence, but

on a consideration of the general principles I have attempted to state, it is difficult to resist the notion that such a tradesman takes a risk in such circumstances which could be said to be analogous either with getting into a vehicle with a driver you know to be drunk and, thus, not competent to drive or failing to wear safety equipmen thus exposing yourself to unnecessary risk. In this particular case, there is the additional layer of complication that the precise action by the seventh defender which caused the accident was not instructed by John Thomson and was not observed by John Thomson and was not therefore an act of negligence directly associated with the work itself being directed by John Thomson, though it falls within the general scope of the works on the roof. With some hesitation, I have come to the conclusion that, in the circumstances of this particular case, the election to work with inexperienced volunteers was a causa sine qua non of the particular accident and that therefore there should be no finding of contributory negligence in this case.

Finally, I turn to quantum. Helpfully, parties had, in the Joint Minute of Admissions, No. 65 of process, been able to agree solatium on a full liability basis at Ј50,400, inclusive of interest to 28^th September, 1998 and the services claim at Ј5,000 similarly inclusive of interest to that date. The only remaining issues, at least so far as I was concerned, were patrimonial loss, particularly loss of earnings from the date of the accident until the date Mr. Thomson was no longer able to work on account of his advancing cancer which was agreed to be 30^th. September, 1996, and whether any question of recoupment of benefits arose. On the former issue, counsel for the pursuer submitted that it was a matter of agreement that the accident had rendered John Thomson unfit for work from its date until 30^th. September, 1996, that there was evidence from John Thomson about his work history from his obtaining his school's leaving certificate, through his joinery apprenticeship and encompassing his having worked in the Dundee area but also having been prepared to go and work abroad in Holland, Germany and Luxembourg, that there was further direct evidence of his reliability as a tradesman from Miss Walsh formerly of British Telecommunications plc who had given him several small contracts to undertake which he had undertaken satisfactorily and from Brian Cruikshanks, the developer, who was not only able to speak of John Thomson's range of skills and general usefulness, but could give evidence of a particular contract modernising tenement property in Dundee which would have given John Thomson eighteen months work immediately after the accident occurred and also of the continuing albeit diminishing need for someone with that range of skills throughout the relevant period. Mr. Cruikshanks, who I considered to be a helpful and reliable witness, was also able to give detailed evidence from his own experience about what joiners with skills akin to those of John Thomson would have been able to earn during the relevant period because he knew what he would have been prepared to pay them, and he considered that payment rates would have been fairly static throughout the period. Counsel for the pursuer suggested, largely on the basis of Mr. Cruikshank's evidence, that a reasonable rate for John Thomson to have earned on average throughout the period would have been Ј9.00 per hour. He invited me to hold that John Thomson would have earned Ј350 per week for a 48 week year i.e. an annual figure of Ј17,800 on average throughout the six and a half years he would still have been able to work i.e. a figure in the region of Ј116,000. He accepted that there was no evidence of any substantial increase in earnings during the period. I should consider production 57/4. Ј350 per week had been Mr. Cruikshank's figure for the earnings of a SE60 joiner once he had paid all outlays, principally transport and insurance. Counsel for the pursuer submitted that, to arrive at a net figure to have regard to the incidence of taxation, I should simply deduct 25%. He maintained that position despite being directed by me to B.T.C. v Gourley 1956 A.C.185 and Stewart v Glentaggart Limited 1963 S.C. 300. To the figure arrived at, I should apply interest at 8%. I do not appear to have any note as to the date or dates from which it was suggested that that interest should run.

Finally, he submitted that the relevant period was 5 years for recoupment purposes and that the five year period expired in February, 1995.

Counsel for the first defender submitted that there was no evidence from which John Thomson's net earnings could properly be deduced and that it was not open to me to speculate about what his tax position might be in the absence of reliable evidence thereanent. There was no vouching about his earnings. In particular, there was no vouching of his net income prior to the accident. It was broadly accepted that the evidence demonstrated that John Thomson would, but for the accident, have remained in Dundee and would have been available for work as a joiner until 30^th. September, 1996. He would, it was accepted, probably have continued to work on an SE60 self employed basis. However, his net income simply could not be derived from the evidence which had been led. There was also no evidence about what benefits had been received. The VAT returns produced could have related to goods as much as services and they proved nothing. In particular, though he appeared to have consulted one, there was no evidence from an accountant or book keeper. It was unknown whether his business had been profitable. There was, accordingly, no basis in fact to enable the court to determine an appropriate multiplicand.

Counsel agreed that for recoupment purposes the relevant date was the fifth anniversary of the date of the accident. He referred me to the decision in Wisely v John Fulton (Plumbers) Limited 1998 S.L.T. 1026.

Counsel for the seventh defender reminded me of the existence of the Joint Minute on aspects of quantum simply to emphasise that there was no agreement on the subject of loss of earnings. The evidence offered by the pursuer in relation to loss of earnings was unsatisfactory, he said. The onus of proof of loss was on the pursuer and there must be evidence to support appropriate findings-in-fact or that aspect of the pursuer's claim must fail. There was a duty to vouch losses. Vouching in support of a loss of earnings claim was sadly lacking. There was nothing to support what he described as "John Thomson's earnings track record," by which I took him to mean nothing to demonstrate Mr. Thomson's historical income. It was unsatisfactory and inadequate, he submitted, for the pursuers to seek to rely on general and anecdotal evidence. There was no explanation for the failure to produce records. It was clear from the evidence that some records must have existed, most obviously in the form of tax records. Production 57/4(b) appeared to be a professionally prepared V.A.T. return. If there had been an accountant involved, why was he not called to give evidence. As things stood, the figures were meaningless and the conclusions sought to be drawn from them were speculative. There was nothing which could be checked to see if the speculation was well founded. Either the pursuers or John Thomson or the pursuers' representatives must be responsible for this inadequate state of affairs.

Mr. Cruikshank's evidence, he submitted, had to be treated with some care. To an extent, at least, his evidence appeared to ignore what counsel referred to as "market conditions." His evidence was that the hourly rates had been static over the last ten years which, on the face of it, was surprising. The evidence seemed not to take account of the recession in the construction industry and the limited nature of John Thomson's joinery skills. The lady from British Telecommunications plc had not been asked to produce records. The court could not therefore be sure how often John Thomson worked for them, but his relationship with them could reasonably on her evidence be described as occasional and minor. The court was accordingly left in some difficulty as to how to assess loss of earnings. It could do no more than take a broad brush approach. There was no explanation for the failure to produce tax records. He referred to two cases to illustrate the approach of courts faced with a similar difficulty, namely Ashcroft v. Curtin [1971] 1 W.L.R. 1731 and Brady v Brown Greens Weekly Digest, 16/9/98. These are both illustrations, the former at appeal, the latter at first instance, where the court reminded the claimant that it was for the claimant to prove his loss and not just expect the court to fill in blanks in the calaculation. In particular, in Brady, it was held that no patrimonial loss could be held proved in the absence of documentation regarding receipt of state benefits. That does not seem to me to be all that far away from a failure to produce evidence from which John Thomson's liability for income tax could have been calculated so that the court could have properly concluded on proper evidence what his net loss was.

Counsel for the pursuers agreed that this was a case to which the 1997 Act's provisions did not apply. Otherwise, on the subject of loss of earnings, he invited me to adopt a broad brush approach, despite my referring him to B.T.C. v Gourley [1956] AC 185 and Stewart v Glentaggart Limited 1963 S.C. 300.

I do not share the concerns most vociferously expressed by counsel for the seventh defender about the evidence of Mr. Cruikshanks. He was clearly very knowledgeable of the local situation because he knew what he would have to pay joiners and he was well aware of John Thomson's range of skills and what the going rate for these was. He also knew the local market and was quite clear that for the first period after the accident there was work refurbishing tenement property but that that dried up as grant availability dried up and developers turned to new build. He reckoned that John Thomson had the motivation to keep himself busy and would almost always be in work. I saw no reason to doubt Mr. Cruikshanks' evidence that throughout the period from 1990 to 1996 Mr. Thomson could have expected to be paid at the rate of between Ј8 to Ј10 per hour, gross, and that he could have expected to work a 48 week year. From the annual range of Ј15,360 to Ј19,200, he could have expected to have to meet outlays, principally to run a vehicle and for insurance of about 25%, so his earnings before tax would have been in the region of Ј11,520 to Ј14,400. The median point is just under Ј13,000 per annum average gross and the multiplier is as near 6.5 years as makes no difference on the broad brush approach I was invited to adopt, which brings out a gross figure for loss of earnings during the period agreed in terms of the Joint Minute to 30/9/96 from the accident date of Ј84,500. Unfortunately, that is as far as the evidence takes me and I cannot make the necessary transition from Mr. Thomson's gross earnings to his net earnings in the absence of any information about his tax position. As the learned author of McEwan & Paton on Damages for Personal Injuries in Scotland puts it at para. 5-01 of the text, " An injured person's loss of earnings must be calculated on the basis of his average net earnings. Net earnings are reached after deduction of tax, National Insurance contributions and pensions contributions." This is so basic that I am frankly appalled that counsel for the pursuer led no evidence on the subject but merely invited me to take a leap in the dark to reach the appropriate figure. I cannot and will do that, but I cannot help but express concern about being left in a position wherein I cannot properly reach a conclusion about the most significant element of the pursuers' claim. It is not for me to speculate as to why no evidence was led on the subject but it is difficult not to concur with the words of counsel for the seventh defender when he said it must be attributable to the fault of the pursuers or John Thomson or their representatives. I am unable to believe that nothing could be done.

In the Stewart case, Lord Hunter, at page 308, dealing with a case where damages for wrongful breach of a contract of employment were sought, said, " In my opinion, the object of the Gourley principle is to ascertain, as nearly as may be, the actual loss suffered by the injured party, taking into account as a factor not too remote, his tax position." He referred immediately after that statement to the judgment of Jenkins L.J. in Phipps v Orthodox Unit Trusts Limited [1958] 1 Q.B. 314 at 318 where that learned judge said, ""Since that decision (i.e. Gourley) it has been established that where a claim is made for damages, whether for personal injuries or for wrongful dismissal, the income tax and surtax liability of the individual is an essential element in the calculation of damages." So far as concerns income tax, the position hereinbefore stated is reflected in every calculation of loss of earnings I have encountered over the last twenty nine years.

Turning to the vexed issue of recoupment, while notionally a payment of recoverable benefit should be due here, I was informed by counsel that a certificate had been issued by the Secretary of State to the effect that there were no recoverable benefits in this case. In any event, the only head of compensation listed in Schedule Two of the 1997 Act which would potentially be relevant is "compensation for earnings lost during the relevant period," and for the reasons which I have already explained, I am unable to make any award under that head. For the avoidance of doubt, however, I would simply record that I have not had exhibited to me the nil certificate to which counsel referred.

Hindsight is a wonderful thing but there is a general lesson to be flagged up here for self-employed tradesmen about the need to make adequate personal accident and sickness insurance arrangements before undertaking work of this nature or in people's homes. I mean no disrespect to the seventh defender if I make the point that it seems unlikely that he will be in a position to implement the order made against him. In the absence of there being someone in a financial position otherwise to meet the order, regrettably from Mrs. Thomson's point of view, this has been an exercise which has done little more than keep unhappy memories at the forefront of her mind. This saddens me, for I was impressed with Mr. Thomson and her, and she does not deserve to end up in this position.

I have continued the case for a hearing on expenses. Counsel for the pursuer asked me to certify Mr. Stewart and Mr. Cruikshanks as skilled witnesses and in respect of the reports from the oncologist and Mr. McCrae the anaesthetist. He also asked me to sanction the cause as one suitable for the employment of junior counsel, a motion with which I have no difficulty. Counsel for the first defender took issue only with the notion that Mr. Cruikshanks should be certified as a skilled witness in the absence of his having produced any report. He also wanted his witness, Mr. Gibson. Consultant Orthopaedic Surgeon, to be certified a skilled witness. He however agreed with me that there should be a hearing on expenses once the outcome on the merits was known. Finally, counsel for the seventh defender associated himself with counsel for the first defender's comments about Mr. Cruikshank's status, but otherwise was content that a hearing on expenses should be fixed. My initial impression was that Mr. Cruikshanks was giving evidence about matters within his own knowledge but I am content to defer determination of the issue to the hearing on expenses.

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	Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> KAREN ANNE THOMSON & ANR v. DOUGLAS AMATEUR FOOTBALL CLUB SOCIAL CLUB and LEONARD WALLACE [1999] ScotSC 19 (27th June, 1999) URL: http://www.bailii.org/scot/cases/ScotSC/1999/19.html Cite as: [1999] ScotSC 19

Scottish Sheriff Court Decisions

KAREN ANNE THOMSON & ANR v. DOUGLAS AMATEUR FOOTBALL CLUB SOCIAL CLUB and LEONARD WALLACE [1999] ScotSC 19 (27th June, 1999)