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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Methven v. Babygro [2002] ScotCS 252 (5 September, 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/252.html Cite as: [2002] ScotCS 252

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Methven v. Babygro [2002] ScotCS 252 (5 September, 2002)

OUTER HOUSE, COURT OF SESSION
A264/00	OPINION OF LORD DRUMMOND YOUNG in the cause JEAN METHVEN Pursuer; against BABYGRO LIMITED Defenders:   ________________

 

 

Act: Hajducki, Q.C.; Thompsons

Alt: Hofford; HBM Sayers, W.S.

5 September 2002

1. In January 1998 the pursuer was employed by the defenders at their factory at Hayfield Industrial Estate, Kirkcaldy. She avers that, on 14th January 1998, at approximately 6.45 a.m., she was proceeding to her work at the factory and suffered an accident immediately outside the factory premises. She claims that the accident was caused by the fault of the defenders.
2. The pursuer makes the following averments regarding the means of access to the factory. Access was available by means of a road leading to the factory. To reach the factory by the road, it was necessary to drive past and some distance away from the front of the factory and then to double back to the entrance to the premises. That road access could be used by pedestrians as well as vehicles. The more normal means of pedestrian access, however, was to go through a gap in the fencing around the factory. That was much shorter and more direct and it saved a few minutes' walk. The gap in the fence had been there for years. It had, for years, been a normal short cut for employees of the defenders coming to and from the factory. The defenders were well aware of the use of the short cut by employees. Several years before the pursuer's accident, the defenders had caused to be laid, between the gap in the fence and the main access to the factory premises, a distance of only a few yards, four or five concrete slabs, set in the grass between the gap in the fence and the entrance to the premises. In order to reach the gap in the fence, pedestrians had to cross a stretch of grass of about ten yards before the gap in the fence. That stretch of grass was on a slight downhill slope. It was not part of the defenders' property, but their employees habitually used it, and had to use it, in making their way to the gap in the fence.
3. The pursuer avers that she sustained an accident as she made her way across the grass outside the fence. The grass was wet at the time, and about a foot before she reached the slabs she lost her footing and fell, thus sustaining injury. Her primary injury was a fracture of each of the two main bones in her lower left leg. The pursuer further avers that, consequent upon her accident, the defenders have closed the gap in the fence and removed the concrete slabs. Furthermore, they sent a memorandum to all departments of their workforce in the premises stating that the main door was to be used at all times and that employees who sought to use the short cut would be disciplined. A few weeks prior to the pursuer's accident a fellow employee had fallen on the wet grass while using the short cut as an access to her work. That accident had been reported to a supervisor. Moreover, another employee of the defenders had fallen their a few years before the pursuer's accident. That fall had been reported to a supervisor, and shortly after that the slabs were laid by the defenders.
4. The pursuer avers that the accident was caused by the defenders' fault and negligence. She avers a general duty on the defenders to take reasonable care to provide and maintain safe access to her place of work. The averments of fault continue:

"It was [the defenders'] duty to take reasonable care not to permit and a fortiori not to encourage employees to use the said gap in the fence as an access to their workplace. It was their duty to take reasonable care to instruct employees not to use the said access and to enforce said instructions. It was their duty to take reasonable care to close the said gap and lift the said slabs".

5. It is clear from the pleadings that the pursuer's accident occurred outside the defenders' premises, in an area over which they had no control, and at a time when the pursuer was not actually engaged in her employment with the defenders. Founding on these features of the case, the defenders challenged the relevancy of the pursuer's averments. Their counsel submitted that an employer's duty to his employees should not extend to events that happened in an area outwith the employer's control at a time when an employee was not acting in the course of his or her employment. In respect of such events, there was insufficient proximity between the parties for liability in negligence to arise. Reference was made to Caparo Industries PLC v. Dickman, [1990] 2 AC 608, for the proposition that such proximity was essential if liability were to exist. It was accepted, under reference to Bell v. Blackwood Morton & Sons, 1960 SC 11, that an employer's duty of care to his employees might extend to events beyond the working day. It was further accepted that an employer's duty of care extended to providing safe access to premises occupied by him. In the present case, however, safe access had been provided, by the road leading to the factory. That, it was said, was enough to fulfil the defender's duty; reference was made to Ashdown v. Samuel Williams & Sons Limited, [1957] 1 QB 409, and to Walker on Delict at 567.
6. Counsel for the pursuer submitted that the duty of an employer was to provide safe access to his employees' place of work, and that that duty was not restricted to matters that took place on the employer's own premises. In Ashdown, it had been argued that an employer's responsibility only began when employees entered his premises, but that argument had been expressly rejected by Parker LJ: [1957] 1 QB 430-431. In the present case, on the pursuer's averments, there were effectively two access routes to the defenders' premises, the road and the gap in the fence. In particular, it was averred that the route through the gap in the fence was more direct and had been used by employees as a means of access for several years, to the defenders' knowledge. Indeed, the defenders could be said to have facilitated the use of the gap in the fence by laying concrete slabs on their own side of the fence. The risk of injury to employees was foreseeable; to reach the gap in the fence they had to negotiate a grass slope, which was liable to become wet; moreover, the defenders had laid the slabs inside the fence after an accident was reported there. In these circumstances, it was submitted, the defenders should have blocked the gap in the fence and removed the slabs, thus stopping the use of the short cut. The defenders' legal responsibility could be tested by considering the position if the gap had been adjacent to a busy railway line or river which employees had to cross to use the short cut. Then, it was submitted, there would be an obvious duty of care on the defenders. It was irrelevant that the defenders were not the occupiers of the area where the accident occurred, because they could stop the use of the short cut by actions taken on their own property.
7. In my opinion it is impossible to hold at this stage that the pursuer's averments are irrelevant. I reach that conclusion on the basis of the following principles. Firstly, an employer's duty of care extends to the provision of safe means of access to a workplace. That is obvious, and well established by authority. Secondly, that duty is not restricted to access over the employer's own property, or property under his control, but may extend to access over other property: Ashdown v. Samuel Williams & Sons Limited, supra, at [1957] 1 QB 426 per Jenkins LJ and 430-431 per Parker LJ. Thirdly, a relationship of proximity must nevertheless exist, and the employer's duty of care can only extend to means of access over areas in reasonably close physical proximity to the employer's own property, or property that is actually under the employer's control. In my opinion the appropriate test for determining whether a sufficient relationship of proximity exists will generally be whether the area of ground in question can reasonably be regarded as part of an access route from the public road to the employer's premises that is used on a regular basis.
8. Fourthly, the employer's duty will not automatically be discharged by provision of at least one safe access route. If the employer constructs more than one access route, it is obvious that he must take reasonable care to ensure that all such routes are safe if he is to discharge his duty. The reason is that the employer invites his employees to make use of any one of those routes; consequently common sense demands that he should take reasonable steps to avoid the risk of injury to any persons using any of those routes. It follows that it is impossible to assert as an absolute proposition that the provision of a single safe access route will of itself discharge the employer's duty of care to provide safe means of access. Fifthly, in some cases the second means of access may not be provided by the employer, but may be a short cut used by employees. If the employer acquiesces in the use of such an access by employees, that may be sufficient for the court to hold that the employer accepts that two access routes should be used to his premises. In that event, it is difficult to see any fundamental distinction from the case where the employer has himself constructed more than one access route. In both cases it can be said that the employer has invited employees to use the route in question, in one case by providing it, and in the other by permitting employees to use it. That is especially so where the employer has taken steps to facilitate the use of the informal access route; that can readily be considered an invitation to use the informal access. In the present case it is averred that the defenders laid paving stones to facilitate use of the short cut, and that might be considered such an invitation. Sixthly, in all such cases of informal access, it is a question of fact and degree whether the employer has done enough for the court to conclude that he has acquiesced in the use of that route as a means of access to his premises. It will be easier to reach such a conclusion when active steps have been taken by the employer to facilitate use of the informal access.
9. In their submissions both counsel placed reliance on Ashdown v. Samuel Williams & Sons Limited, supra. In that case, unlike the present, the facts had been established at trial. Employees used a short cut to reach premises occupied by their employer, the second defendants. The short cut crossed various railway lines, on premises belonging to the first defendants. While she was using the short cut, the plaintiff was struck by trucks that were being shunted on one of the railway lines. She sued both the first defendants and her employer, the second defendants. It is the case against the latter that is relevant for present purposes. It seems to have been accepted that the most that the employer could have done to protect its employees, including the plaintiff, was to warn them of the dangers of shunting operations. It was held that the employer was not liable, but the opinions in the Court of Appeal proceed on two separate grounds. Singleton LJ (at 417) held that the risk to the plaintiff was obvious, and nothing that the employer could have done would have made it more obvious. He pointed out that the plaintiff was aware that shunting operations were carried on; consequently a warning of the danger would not have been of any help to her. Jenkins LJ (at 426) proceed on a different ground, namely that it could not be said that the short cut was not reasonably safe. It had been used by employees for a matter of twenty years, and for five months by the plaintiff, and this was the first accident that had ever happened. Parker LJ (at 430-431) proceed on both of these grounds. He held that there was no duty to warn the plaintiff of the danger of crossing the railway lines, because such danger was patent and well known to her. He further held that, because the short cut had been used by employees for twenty years without an accident, there was no reason that the employer should have foreseen the danger in shunting operations. The case is significant for present purposes because Jenkins LJ and Parker LJ both rejected a contention that an employer's duty of care could not extend to anything that happened outwith premises under the employer's control. Otherwise, however, it must be regarded as a decision on its own facts, which had been established at trial.
10. In the present case, I am not prepared to hold at this stage that the pursuer's averments are irrelevant. The pursuer avers that the short cut had been used for years by employees as a means of gaining access to the defenders' factory. On that basis it might be held that the place where the pursuer's accident occurred was part of an access route from the public road to the defenders' premises that was used on a regular basis. If that were so, the test of proximity would in my opinion be satisfied. Whether it is in fact satisfied, however, is a matter for proof.
11. The pursuer further avers that the defenders were well aware of the use of the short cut by their employees to obtain access to the factory, and that the defenders had caused paving slabs to the laid in the grass on their own side of the gap in the fence. That could in my opinion be construed as an invitation to employees to use the short cut as an alternative means of access to the factory. On that basis it might be held that the defenders had treated the short cut as a second access route into their factory, or at least had acquiesced in its use as a second access route. If that were so, they would in my opinion be under a duty to take reasonable care to ensure that the access was reasonably safe. If that were not possible, because of a hazard on land not under their own control, their duty of care might extend to removing the means of access, by blocking the gap in the fence. That assumes that the hazard in question presented a sufficiently grave risk to the safety of employees to demand that the route should be closed. It also assumes that the hazard was not so obvious that it presented no significant risk to the safety of employees. In Ashdown v. Samuel Williams & Sons Limited, the Court of Appeal decided against the plaintiff on two grounds, namely that the risk to employees' safety was not great enough to compel the employer to take action, and that the hazard was so obvious that nothing was required of the employer. These matters might well be relevant in the present case. They are, however, matters that can only be considered properly after proof has been led. That will allow them to be considered along with the issue of contributory negligence, which has been raised by the defenders.
12. For the foregoing reasons I will allow to case to proceed to proof before answer.