Sharp v Top Flight Scaffolding Ltd

Employers must address the risks of work at height through proper planning, competent supervision, suitable training, site-specific risk assessment and an appropriate method statement. An employer cannot transfer that responsibility to an employee by relying on the employee’s experience or ability to assess the work unaided. Where inadequate training and planning causatively expose an employee to a foreseeable risk, primary liability may be established even though the employee makes a deliberate and dangerous choice. Contributory negligence remains fact-sensitive. A skilled employee may bear substantial responsibility where he consciously accepts a known risk and could readily have taken the necessary precaution.

The claimant, an experienced scaffolder employed by the defendant, suffered catastrophic injuries after falling while erecting scaffolding at a domestic property. The scaffold had been constructed without safe access or egress, and the claimant climbed down its outside before a response to a telephone call for assistance had been received.

The trial concerned liability and contributory negligence, with quantum adjourned. The central issues were whether the defendant had failed to provide adequate training, planning, risk assessment and supervision, and the extent to which the claimant’s deliberate conduct reduced his damages.

1. Primary liability. The court followed the approach in Bhatt v Fontaine Motors [2010] EWCA Civ 863: the analysis begins with the Work at Height Regulations, directed to avoiding or minimising risks, rather than with the claimant’s conduct. The employer must select appropriate work equipment and address the hierarchy of safe access.
2. The defendant had failed to provide adequate and up-to-date training. The claimant’s experience did not establish continuing competence, particularly where best practice had materially developed. The defendant also failed to ensure a site-specific risk assessment and current method statement. Reliance on the claimant’s ability to assess the job himself was insufficient.
3. Those failures were causative. Proper training, planning and assessment would probably have led to the incorporation of internal ladder access, avoiding the unsafe descent which caused the accident. Primary liability was therefore established.
4. Contributory negligence. The court treated Sherlock v Chester City Council [2004] EWCA Civ 201 as materially instructive, while recognising that apportionment is fact-specific. This was not momentary inattention. The claimant deliberately proceeded without safe access and later deliberately climbed down the outside of the scaffold, knowing that the manoeuvre was dangerous.
5. Balancing those decisions against the defendant’s substantial breaches, the claimant bore the greater responsibility. His contributory negligence was assessed at 60 per cent. The parties were directed to agree an order reflecting the judgment and providing for the future conduct of the claim.

First-instance liability judgment. Quantum remained to be tried.