Defenders owed ‘duty of care’ to self-employed worker who was injured during pantomime set-up, judge rules

A judge in the Court of Session ruled that the defenders owed the pursuer a duty of care and that they were in breach of that duty.

Lord Boyd of Duncansby (pictured) heard that the pursuer Martin Jones was working as a technical manager at the Alhambra Theatre in Dunfermline in December 2013 when he was injured after falling from a trailer owned by the defenders Scottish Opera, which among other things, provided a specialised delivery service for scenery, props and other theatre equipment to theatres - in this case for a Jack and the Beanstalk pantomime.

The pursuer alleged that he “tripped” on the metal ridge or lip at the edge of the trailer and he was unloading the delivering vehicle.

He said that the accident occurred as the result of the defenders’ “breach of statutory duty and breach of common law duties”.

In particular the purser alleged that the defenders failed to provide a ramp and that had they done so he would have been able to walk down safely.

The pursuer’s secondary argument was to the effect that even if the court did not accept that he tripped on the edge, the height of the drop from the trailer to the ground was, in itself, a “hazard which should have been avoided by the provision of a ramp”.

However, the defenders submitted that they did not owe a duty of care to the pursuer as he was “not their employee”.

In any event they said that there was no lip or metal ridge on which the purser could have tripped and that they had provided a ramp.

If they did owe a duty of care to the pursuer and they were in breach of that duty, the defenders said that the pursuer owed “a duty to take care for his own safety” and there should be a finding of “contributory negligence”.

But the judge ruled that a duty of care did exist in this case, stating that the defenders “cannot wash their hands of responsibility”.

In a written opinion, Lord Boyd said: “I accept the evidence that the primary role of the defenders was to deliver the trailer with its load to the theatre. It was the crew employed by the theatre who were primarily responsible for unloading it.

“It was for the defenders to provide a ramp. It was not suggested that the theatre had any responsibility to provide ramps; the standard practice was that it was for the company delivering the scenery and props to provide a ramp. Accordingly I am satisfied that there was the necessary degree of proximity between the parties.

“The pursuer’s injury was reasonably foreseeable. The drop was not less than one metre and accessing and egressing the trailer at that height without a ramp or other means of access, such as steps, carries inherent risks. I am satisfied that it is just and reasonable to impose such a risk for the reasons given above.

“Accordingly I am satisfied that the pursuer has proved that the defenders owed a duty of care to the pursuer and that they were in breach of that duty.”

He added: “While I accept that the pursuer has a duty of care to look out for his own safety and it might be said that it should not be too difficult for a fit man to negotiate such a drop I do not consider that it would be appropriate to make an award of contributory negligence.

“The danger was created by the defenders failure to provide a ramp as safe means of accessing and egressing the trailer. If one had been provided the accident would not have occurred.”

On solatium, the judge made an award of £8,000 with 20 per cent attributable to the future and with interest from the date of the accident, with a further £2,000 awarded for lost wages plus interest.