A decade after he was crippled in a tragic fall, carpenter Rennard Russell was in Supreme Court this week as his former boss is appealing a 2001 decision which attributed partial liability for the accident to him.

Mr. Russell was crossing a rooftop gap between his home and his work site at the Flying Chef on North Street in Hamilton in 1992 when he slipped from a pipe, plummeted nineteen feet to the ground and was permanently disabled.

He was attempting to fetch tools from his residence to complete a job at Flying Chef which was under construction at the time.

As a result of the fall, Mr. Russell lost the use of both legs and had metal support rods inserted in his back.

His former boss and lifelong friend Headley Stephenson is appealing a decision by Puisne Judge Vincent Meerabux who split liability between the two men, with 65 percent falling to Mr. Russell and the remainder to Mr. Stephenson.

Mr. Justice Meerabux ruled at the time the employer's knowledge that workers were using the rooftop shortcut between the buildings suggested tacit responsibility.

But Mr. Stephenson's attorney Jeffrey Elkinson argued that Flying Chef was no longer an active construction site when the accident occurred on June 24, 1992.

He said, while 15 months of construction and renovation had taken place at the site only minor work remained to be done at the time of the accident and the property had been turned over to the restaurant.

Mr. Elkinson said some workers had been using the dangerous shortcut but most used a ladder.

On the day of the accident, however, Mr. Russell attempted the move without a ladder for his own convenience.

"It's a tricky manoeuvre he's going to do here," Mr. Elkinson said. "Our case from his evidence is that he did do it and he did it backwards."

Even if the court accepted the site was still under construction, he added, the "site" would not extend to the gap between the building and Mr. Russell's flat.

Meanwhile, there was a safe route available from the kitchen, Mr. Elkinson said, so Mr. Stephenson satisfied his duty to provide "safe access and egress".

While the accident was tragic, it was "not regrettably foreseeable", he argued.

"This is an error in judgement and that is all this case is about."

But Mr. Russell's lawyer Juliana Jack pointed even if it was accepted that the site was no longer under construction, Mr. Stephenson could still be held liable because Mr. Russell was under his employment and the accident occurred in the course of doing his job.

She also questioned how much work was still taking place at the site.

Records that might have indicated who worked at the site and when were defaced before the 2001 trial, she said.

When asked about the documents during the trial, Mr. Stephenson claimed he did not know they were important to the case and had blacked out sections that did not relate to Flying Chef site, she said.

And while he told the court he had laid off most of the staff on June 13, 1992, Ms Jack showed that Mr. Stephenson billed Flying Chef for nearly $3,000 in labour after he contends the job was over.

"He was billing for labour after June 13 when he said everyone was laid off," Ms Jack said.

But neither Mr. Stephenson nor the former owner of Flying Chef could clarify where these labour costs had gone.

"Obviously, they were both distancing themselves as much as possible," Ms Jack said.

Ms Jack said Mr. Stephenson was aware that a number of workers were using the shortcut between the buildings as there was no water or bathrooms on the site.

While some men used the ladder, the taller men found the move easier without it, she added, and Mr. Russell is six foot three.

And she said Mr. Stephenson had removed the ladder some weeks earlier. She also argued that the contractor could have foreseen an accident taking place.

"He was doing the work at the same time as the other workers...He knew they were insistent on using the ladder. He even used the shortcut himself," Ms Jack said.

When asked what could have led Mr. Stephenson to believe that Mr. Russell would have used the shortcut leading up to the date of the accident, Ms Jack said: "He would remain attracted to it."

Ms Jack also pointed out that there were no safety precautions put into place to warn the construction workers of the dangers of using the access.

"The appellant's evidence is that he could have easily built something to prevent the accident,"she said.

Ms Jack argued that several employees on the site testified that they were never warned about the dangers of using the shortcut by their boss, contrary to what Mr. Stephenson had previously said.

And as he addressed the Court of Appeal again, Mr. Elkinson emphasised that it would not have been foreseeable for his client to know that an accident would occur if an employee crossed the open space without a ladder in place.

"Was it reasonable for Mr. Stephenson to anticipate that Mr. Russell would cross a three foot nine inch stretch that everyone considered dangerous?" he asked.

A judgement will be made in the near future.