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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 35
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PD1519/04
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OPINION OF LORD
McEWAN
in the cause
SANDRA THERESA
McCRINDLE
Pursuer;
against
GALA CASINOS LTD
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
McCaffrey; Digby Brown
Defenders: Higgins; Simpson & Marwick
16 February 2007
[1] On
6 July 2002 Mrs McCrindle,
then aged 50 went with her husband to the Gala Casino in Edinburgh. She went there late at night. The building is quite famous for its 1930s
architecture. It is at the western
extremity of Edinburgh. It has had many lives and is now a
Casino. Mr McCrindle watched
blackjack being played and enjoyed some drinks with his wife. They left some hours later to go home. As Mrs McCrindle went down the outside
steps of the Casino to her taxi she fell.
In this action she has now sued the Casino. The pursuer gave evidence about what happened
on the night as did her husband Ronald.
She also led evidence from her son Daniel and daughter Vanessa which was
largely to do with damages.
Dr Moore and Dr McQueen gave further medical evidence. All of this latter chapter is superseded by
the agreement in the Joint Minute No 20 of process. The only other evidence led was on the
merits. Mr Watson an Architect gave
evidence about the stairs. There was
also lodged for the pursuer a report by another expert witness Mr Glen who
is a consulting engineer. He did not
testify. The defenders led evidence from
Helen Ellis an employee of the defenders of longstanding, and Mr John
Spencely an eminent architect. As will
emerge the whole case turned on measurements and geometry and a conflict between
the experts.
[2] It
is of some importance to notice what the pursuer avers on record. She describes the semi-circular outside steps
(seen in the photographs No 7/8 of process) and their measurement as to
width and height. She avers that she was
descending at the middle and lost her footing as she was about to put her right
foot down on to the second step. I
mention this detail as it became important as the proof proceeded.
[3] A
number of authorities were referred to viz.
Cole v Weir Pumps 1995 S.L.T.(Notes) 12, McGlone v British Railways
Board 1966 S.C.(H.L.) 1, McMillan
v Lord Advocate 1991 S.L.T. 150, Martin v Greater Glasgow Health Board 1977 S.L.T.(Notes) 66, Reid v Greater Glasgow Health Board 1976 S.L.T.(Notes) 33, Scott
v Glasgow District Council 1994
G.W.D. 28, 1715 and Titchener v British Railways Board 1984 S.C.(H.L.)
34.
[4] For
the pursuer Mr McCaffery presented a written submission to the court which
he read out. There are
93 paragraphs in the document which merely rehearse the evidence. Elsewhere I have made my findings in fact and
for the present I need not say any more about the document.
[5] Beyond
that counsel referred me to section 2(1) of the Occupiers Liability (Scotland)
Act. There were three important
factors, the duty of care, the control which the defenders had over the
premises and their negligence. It was
important to ask why the defenders had put a handrail up after the
accident. He asked me to accept the
evidence of the witness Watson about the geometry, the facts all in relation to
the lighting. The stairs in their
entirety were a hazard. The premises
were often used at night and the defenders must have been aware that alcohol
was sold on the premises. He referred me
to four cases, McGlone, Reid, Cole and Scott. If the pursuer was at fault to any extent it
was minimal.
[6] Counsel
maintained that the Buildings Standards (Scotland)
Regulations 1981 applied to the Casino.
Beyond that bald assertion he did not attempt to show what regulation
applied and why. The record,
pages 4/5, does not mention any particular regulation, and no specific
point is made about it in the written submission. Counsel ended by reminding me of the terms of
the joint minute, No 20 of process, about quantum.
[7] For
the defenders Miss Higgins did not present a written submission and her
argument may be summarised in this way.
The pursuer's children should be accepted as credible. However, the pursuer was not a reliable
witness. She had given
three different versions of the accident.
She must have been familiar with the steps as she had been often to the
casino. When she left she had had
four alcoholic drinks (gin and tonic).
The shoes she wore had no back strap.
If she had thought the steps were unsafe why did she not hold on to her
husband. She only sued once the handrail
was erected. It was not credible that
she would have used any handrail. The
husband described the steps as "frightening", but the photographs contradicted
that. It could not have been his opinion
at the time of the accident or else he would have assisted his wife. Helen Ellis should be accepted as
credible and reliable. Annie Fisher
mentioned in the evidence was not called as she was on a list objected to by
the pursuer.
[8] Counsel
then dealt with the three expert witnesses. She said I should not accept Glen's report,
No 6/2 of process, at all. By
choice he was not called as a witness and the other witness, Watson, had
neither spoken to or met Glen. She
invited me to reject Mr Watson. He
was not objective and was merely an advocate of the pursuer's case. He lacked experience, was not familiar with
the many regulations and could not say what applied beyond best practice. He did not investigate the history of the
building, was unaware that there were several accesses to it including one for
the disabled. He made no night
visit. On detail he relied on Glen's
figures which were not specific. His
method of measuring was not in accordance with acceptable standards. His opinion was dependant on an incorrect
factual basis. He had assumed the
pursuer stepped down from the top step (the platt). That was not in accordance with the
evidence. His evidence about lighting
again contradicted the pursuer. Watson
relied in a vague way on the Disability Discrimination Act 1995 but with no
clear statement as to how it applied. It
was not clear that he knew the building had many other accesses including one
for the disabled. He was not objective
and wanted to find blame. The real flaw
in his evidence was to say it was not necessary to find where the pursuer fell.
[9] Spencely
was, on the other hand, an impressive and experienced witness. He measured with accuracy in the correct
place. He was familiar with the relevant
Regulations but even he could not say which applied, due to the difficulty of
knowing when the alterations were done.
He visited by day and by night and was in a better position to give an
opinion on the proved facts. He should
be accepted on the best practice agreement.
The tolerance variation he found was within acceptable limits.
[10] I now move to what I find in fact either as agreed or not seriously
disputed. It will assist if I give a
brief description of the Casino and the steps, which I find established without
any argument in the evidence. They are
well seen in the photographs (6/4 for the pursuer and 7/2 for the
defenders). The building is white in
colour and at the entrance in question there are four steps up from a
tarmac car parking area. Standing at
ground level (tarmac) there are three up steps and a fourth is on the tiled
platt or landing towards the door. Going
down the fourth landing is the tarmac.
The steps are not steep. The
total height of the steps is about 600 mm.
The steps follow a shallow outward curve and consist of a series of red
coloured slabs butted together to form a curve and grouted where they
join. In the evidence where they join
was called the facet. The steps rest
upon risers and at the top give way to a black and white tiled area leading to
a revolving entrance door and a push door.
The handrail mentioned is seen in the centre of the arc and runs from
the back edge of the top step to the tarmac.
It was erected after the accident to the pursuer. There are a number of other photographs of
the Casino inside and out, by day and by night in the defenders' report,
No 7/8 of process.
[11] I find the technical description of the stairs to be as follows. The "tread" of a step is its whole horizontal
surface from front to back edge. The
"riser" is the vertical slat on which the step rests. Going downwards, if the front edge of the
step butts exactly with the riser that is known as an "open rise". More normally the front of the tread will
project beyond the riser thus overlapping the back edge of the step below. This overlap is called a "nosing" (a "dead"
area going down). This nosing projects
vertically down to the step below and from that point forwards to the front
edge of the step below is called the "going".
The going is the effective part of a step on which a foot will
land. General Building Standards illustrate
this in No 6/8 of process. All
four steps having nosing, perhaps best seen in 6/4 of process.
[12] I now move to the areas of dispute. I have given a description of the steps and
the technical terms used to define it.
The photographs show what is obvious - that the tread is greater than
the going. Since the nosing projects
there is more on which to place one's foot when going up than when coming
down. The pursuer's case in law is that,
according to her expert, each descending going is different and unexpectedly
so, i.e. a matter of geometry. That has
to be contrasted with her own evidence which tends to suggest that walking
without any support she caught her foot on a facet or nosing. It is also of importance to remember that the
pursuer in evidence made no complaint about the lighting, or about being unable
to see the edge of the steps.
[13] The way the evidence was led now leads me to address what ultimately
this case is not (my emphasis) about.
There is a complete lack of any detailed acceptable evidence about the
history of the steps. It is wholly
unclear if they were ever altered or repaired far less when. The experts have assumed that they would have
been altered and there is some unreliable hearsay evidence that this might have
been in 1988. There is no proof of
that. Many Regulations were spoken of by
the experts without any attempt to be precise about what detail applied. There is a complete lack of reliable evidence
as to how these steps were originally constructed.
[14] It is ultimately a matter for the pursuer to frame her case properly
on this kind of detail if she is to rely on Regulations. There has been a complete failure to do so
and, wisely, counsel did not present any argument in detail about it. Reference was made by witnesses to the
Disability Discrimination Act but without any attempt to say how and why it
might have applied.
[15] Let me now look again at what is the case of fault. In the Record page 4, the pursuer avers
she was descending in the middle of the semi circle of steps having left the
Casino, I infer, from the revolving door (see photograph in 6/4 and 7/2). It is said that the edges of the steps were
uneven. She had her left foot on the
first step. She moved her right foot to
the second step and her heel caught the edge.
She fell. There is no complaint on
Record about lighting or being unable to see the edge of the step. There is then reference in the most general
way to Bylaws and Building Regulations.
Certain measurements for the steps are given.
[16] What the pursuer said in evidence, however, was that she began
to go down the steps from the top at the right.
She was wearing shoes known as mules.
They had a small square heel and a flat leather sole. She said the top step was some distance from
the door. She liked to put both feet on
each step (child like). She got both
feet down to the first step, placed her right foot on the next (i.e. second)
one then her left heel caught the edge of the second step and her ankle caught
the curve. She said she was looking
straight ahead. Her husband was ahead of
her and she fell on to him. He did not
see where she was when she fell and described the steps as uneven and
"frightening".
[17] The pursuer also gave a different account of where and how she
fell to Mr Watson (see 6/5 2.0).
She alleged to him that as her lead foot left the platt it caught the
top edge.
[18] With these observations in mind it is difficult to reach any
precise view of where the pursuer was when she fell. In my opinion it is more probable than not
that she was somewhere near to the middle of the bow of the steps. Whether she fell from the landing step or the
first one below I cannot hold as conclusively proved and in the end may not
matter. Which foot of hers caught the
edge is also not clearly proved and again this may not matter. What I am prepared to accept is that in all
probability the heel of one of her feet caught on the edge of a step.
[19] The only case which was seriously pursued was that the steps
were uneven and I now move to look at the evidence about that principally in
the area where I hold the pursuer must have fallen. To decide that I have to take only the
evidence of geometry and measurement.
That depends on the experts and there is an immediate difficulty. Expert witnesses are of great importance in
legal proceedings where the Court requires instructions on matters outwith its
own expertise. Often the expert is there
to prove facts and sometimes to offer opinion on the facts he proves or on
agreed facts. He ought to be objective
and should refrain from being the advocate for one or other side. Mr Spencely was in my opinion the expert
to prefer even though he made an error about treads and goings (which he
corrected). He has a very impressive CV
and has long experience. He is still
prepared to "grovel about" when measuring up.
He looked at all aspects, had no axe to grind and would not venture an
opinion unless he was certain of his facts.
Mr Watson had less experience and, as will appear, used a method of
measuring which I find astonishing. Also
he was prepared to venture an opinion on grounds of fault not suggested by the
pursuer and not properly investigated by him.
He could not tell the Court which Regulations applied.
[20] The question of preference of experts can almost be decided on
the Reports themselves. Mr Spencely
was the best of the experts but even he may have made an error and in evidence
had to amend his lengthy and detailed report (No 7/8 of process). Mr Watson provided a short report
(2 pages) based on one visit (No 6/5 of process). That report made a number of assumptions
about when the steps were altered and what are called difficult lighting conditions
in darkness. Mr Watson did not go
in hours of darkness and no proof was offered by him about alteration. He also attributes the fall to the leading
foot of the pursuer which sits uneasily with the pursuer's evidence. In his evidence he made no attempt to say how
the 1990 Regulations applied to this building.
[21] Accordingly, I am not satisfied that the factual basis of Watson's
report is correct. The report does not
say where he measured the goings. His
supplementary report is a comment on Mr Spencely's report and also some
references to Mr Glen's report (No 6/2 of process, 10 March 2004). Mr Glen did not give evidence. He does give measurements but does not say
where these were taken. Because he did
not appear as a witness I have to treat his report with reserve. I was asked to exclude it completely but I
cannot do that as the others did refer to it.
I can only make any findings based on it where it agrees in fact or
opinion with things I have otherwise held as conclusively proved. For example, as I will later repeat, I think
Mr Glen is correct where he says (5.5) it is unclear what Regulations
apply to this building. The Record only
makes a case under the 1960 Act and in the argument before me that narrowed
principally to a matter of the dimensions of the steps. That turns on pure measurement and about that
the experts do not agree, nor do they agree as to how to measure the distances.
To that I now turn.
[22] Mr Glen did not give evidence and I do not know how he
went about his task. Mr Watson used
a clipboard which he propped up vertically and then a tape measure. Mr Spencely used a coin and spirit level
to obtain horizontal. The coin was
measured to obtain the fall. The spirit
level was butted and used to obtain, and pencil mark, the vertical. A rod measured the distance. A calibrated calliper measured widths. Which of these is the correct method?
[23] In my opinion Mr Spencely's method is to be
preferred. He used instruments of
precision whereas Mr Watson's clipboard could not possibly be thought of
as a precise measuring device. No doubt
it would give a rough and ready vertical but that is not good enough when
accuracy is in issue. I cannot think it
is in accordance with acceptable practice.
It does not reflect well on the witness.
[24] I have already alluded to the lack of precise evidence about
any changes or alterations to the building and I now address this in more
detail. I will begin with the written
reports of the experts. In No 6/2
of process Mr Glen deals with this at paragraph 5.5. In that paragraph he is unable to assert when
or whether alterations to the building were made and states that it is not
clear what Regulations apply. His report
is dated 10 March 2004. Mr Watson's first report is dated 28 October 2005 (No 6/5 of
process). He deals with constructions at
1.2, 1.4 and 2.1. He claims that the
original steps would have been concrete and the paving slabs were put on top of
these "... some time over the last ten years ...". He could not, of course, give direct evidence
about any of this and I find it to be an assertion without any foundation. He goes on to say that the uneven goings were
made relatively recently. Again there is
no factual basis for this. In his second
report (No 6/6 of process) he again asserts paving overcladding
(page 3) without any detailed back up. On page 4 he says it is extremely
unlikely the original steps had the same geometry as the new and that the
original steps "would have complied with the longstanding requirement for
uniformity of goings". It is difficult
to accept this since he does not say that he ever saw or measured the
original. On the same page he says that
a "defective method" was used to repair the original steps. This again is an assertion without any
factual basis. In places he mentions
Glen's report but it has to be remembered that he never met Glen or discussed
matters with him. He also claims that
reconstruction of the circumstances of the accident is of importance. I do not agree. What is said in Court is all I can rely on as
proof. He makes comments on the last
page about lighting but never went there in darkness.
[25] Moving to Mr Spencely, his report is No 7/8 of
process. I note and observe that he did
go in hours of darkness, took photos and observations (page 9
onwards). He writes at length
(paragraphs 27 to 36) about alterations.
He is unable to say (as are the others) what Byelaws Edinburgh adopted
in 1954 or what retrospective powers were taken later or enforced. He is very careful and guarded in paragraphs
32 to 34 as to what, if any, alterations were done to the stair. Clearly dates and timings affect the
operation of Regulations or Byelaws.
[26] Two of these experts gave evidence and I now look to see how
the evidence lies on this point of changes or alterations. In examination in chief Watson said he had
not lifted the slabs but expected the previous ones to have had a smooth edge
and a consistent going. He then said the
refurbishment may have been in 1997 as the slabs were relatively new. He did not think they were put there before
1980. He then said that any alterations
had to fulfil "the Regulations" (I assume he meant those applying at the time
of alteration). He then said that the
stairs had not been repaired to the same geometry as before.
[27] Pausing at this point, I have to observe that this evidence is
conflicting and contradictory. It is a
series of assumptions and not direct evidence as to what was done or when. Unless a date is reasonably certain no
conclusion can be drawn as to what Regulations may apply and to what extent.
[28] However, in cross examination, the witness really destroyed any
reliability which could attach to his testimony. He had to admit he had no direct evidence as
to what was done previously. He had not
made inquiries of Historic Scotland or Building Control who would be likely to
have any necessary warrants, plans or drawings.
He also confirmed that he had only visited the premises by day and was
not able to be precise as to where he took his measurements. He said he took "hundreds" but not in the
centre line. Curiously, he said he could
only offer a measurement there by using a photo lodged by the defenders! He ended by saying that he was keen to check
Mr Glen's measurements but did not know where these had been done as he
was not present (He never met Glen).
[29] I regret to say that this is very unsatisfactory evidence and
no basis for making any finding of an alteration taking place at any time. The case on any Regulation is simply not
proved at all and the importance of that is, that any case based on a statutory
requirement to have a handrail anywhere simply fails.
[30] This matter could end here but out of respect to Mr Spencely
I have to say something about his view on alteration in his evidence. He would be the first to accept that he too
could not be precise. It has to be
remembered that he was not called to make a positive case in favour of a
handrail or any Regulations but to test the strength of the pursuer's
case. He had visited the premises
several times by day and night. On this
point he opened by saying two important things which I wholly accept. At any time a very high percentage of
buildings do not and cannot conform to the most up to date Regulations. To force buildings constantly to conform to
changes would be impossible and prohibitably expensive. He told the Court, and I accept this, that he
made enquiries of Messrs Millers (a well known firm of builders) who had
done the alterations. They would have
had to have planning and listed building consent for what was done
internally. He had to accept that what
he was told thereafter about what was done was hearsay. It was led, however, without objection. He said that the outside works were cleaning
and repainting. He was told by a
Mr Easton that the steps were not altered in 1988. He had seen a completion photograph from 1988
and the steps were the same as they are today.
Interestingly, he said that more recently when the premises became a
Casino they would have had to undergo inspection for a gaming licence and
health and safety. That would have
included the stairs.
[31] Unsurprisingly Mr Spencely was not seriously cross
examined about any of this, and I accept his evidence without reservation. From it, it is clear that nobody can say when
or if the steps were altered and so the case based on the Regulations is not
made out. He also said, and I accept it,
that there was no requirement at the time to have a handrail and no need to
have one now. The proper purpose of a
central handrail was to separate large numbers entering or leaving the
premises. With reference to his report
he pointed to a number of old premises in Edinburgh
none of which had any central rail.
[32] That only leaves one live issue which is the measurement of the
going but before returning to that I want to look at some other matters which
were raised in evidence and at the hearing.
These can be dealt with shortly viz,
lighting, edging and the Disability Discrimination Act.
[33] None of those matters is mentioned in the pleadings, or by the
pursuer herself and in fairness to counsel for the pursuer, none was seriously pursued
in argument after the evidence. In
Mr Glen's report no mention is made of any of them. Mr Watson in his report, however, says
that the lighting conditions were "difficult" and a lack of colour contrast
made the edge difficult to see.
Mr Watson never inspected by night and so cannot say how easy or
difficult it was to see the edge.
However, in cross examination he said that "edging" colour was
advisory. He went on to say that in
No 6/7 of process page 11, the night time photo of the steps showed a
"problem". In my view it is wholly
unacceptable for an expert witness who never visited at night to give such an
opinion based on a photograph. On this
point I cannot accept his evidence that there was any problem. His comments in his second report in my view
only compound his error about lighting.
[34] What can be said of Mr Spencely in his evidence on these
matters? He, like the others, makes no
mention of the Disability Discrimination Act in his report or of edging. He writes at length on night time lighting
and visibility on pages 9 to 11 on his report. I need not look at this in any detail. His conclusion is clear and I accept it. The stairs were well lit and easily seen at
night. He was also asked about it in his
evidence. He said that he went to the
Casino at night and watched people leave without difficulty. He took lighting measurements by meter. They were found to be satisfactory. He also said that there was no requirement to
have edging. He maintained that position
in cross examination, adding that the lighting was better outside than inside.
[35] I accordingly reject any suggestion that the lighting was
inadequate and that being so any possible case about contrasting edging also
disappears. No proper case exists under
the Disability Discrimination Act and references to it in Mr Watson's
evidence were random and unspecific. The
Statute chapter 50 of 1995 deals with a number of different matters. It was not seriously suggested that the
pursuer was a disabled person. In spite
of previous fractures she was in employment at the time of her fall. The only possible way the Act could be
involved might be under section 21 covering provision of services and the
need to make alterations to buildings. I
was not addressed on any of this and so the matter really is not an issue in
the case. I am bound to say that I could
see a number of problems over suggesting that duties of care could arise under
the above section. It is worth observing
that the witness Helen Ellis proved that the premises did have an entrance
for the disabled.
[36] What then of measurement of the goings. The stark choice is between Watson and
Spencely. Watson used a tape measure and
a clipboard which he said gave him a "robust" right angle. He went on to claim that Spencely's
measurements may have been less precise as he was operating two tools (so,
of course, was Watson). Spencely said
that where vertical and horizontal were in issue it was essential to be
accurate and use a spirit level and measuring rod. Elsewhere I have said why I clearly prefer
the method of Spencely. The matter is
really beyond argument especially as Spencely could say where he measured and
Watson could not. Where it is necessary
to be accurate a precise measurement must always be preferred to one which can
only rely on a "robust" result.
[37] What then is the measurement of the goings? I make no comment at this stage about Glen's
report since I cannot know where he measured or what method he used. He gives only one figure which seems to
apply throughout. Watson in 6/5 says the
goings varied from 295 to 315 mm.
That is a 20 mm variation.
He does not, however, write up where these variations are and his
evidence did not supply that information.
Given the imprecise instrument he used to obtain the vertical I cannot
find these to be accurate measurements wherever he took them.
[38] Spencely in his report page 8 measured what he called
tread width at 305 mm along the centre line. He measured the risers at
160 mm down to 130 mm at the car park tarmac area where the ground
slopes. It was said that he was in error
and had equiparated treads and goings.
That could appear so from the report but in his evidence he corrected
any wrong impression. I accept his
measurements and the inevitable conclusion that the goings including the
outward fall (for rain) are not uneven.
It follows then that horizontally the steps are not uneven. What of the facet where each slab is
butted? The line of the steps from side
to side cannot form a perfect curve.
Inevitably as each slab butts it makes an obtuse angle somewhat less
that 180บ. With a adjustable set square
Spencely found that the angle varied 6บ to 8บ giving a cast of the angle at 174บ
to 172บ. He said that this variation
presented no danger and I accept that.
Watson said in his report that the facets were "not aligned" but gave no
figure of angles. In his evidence he
estimated an angle of 160บ which, he suggested, applied across the curve. I cannot accept an estimate against an accurate
measurement. On the evidence I accept, I
do not think that this facetted bow front presented any danger. In any case a foot being placed over the
facet steps away from the convex curve which inevitably angles behind it.
[39] For all these reasons the pursuer has failed to prove any
breach of duty under the Occupiers Liability (Scotland)
Act 1960. The steps I find to be well
constructed and in no sense a danger. It
has to be remembered that this is an old building which has been in use for
many years. There is no history of any
accident on the stairs in spite of regular use by people over time. Helen Ellis, who was the defenders'
manager, was not aware of any accident over seventeen years. The defenders had no reason to anticipate any
danger. The pursuer is an adult and had
visited the place many times, as No 7/7 of process (her attendance record)
shows.
[40] There remains what was called the "best practice"
argument. It was both broad and
narrow. The suggestion was that in the
climate of the 1995 Act risk assessments be made and any building should be
constantly improved to the latest Standards.
That was refined to suggest that as a railing would now be required by
regulations if the steps were built now one should have been there at the date
of the accident. I cannot accept that
argument. It seems wrong in principle to
take what may be current practice and then look backwards. The case of Martin is in my view authority against it. As Mr Spencely said, most of the public
buildings in the United Kingdom
do not and cannot meet the latest standards which change constantly. If they had to many would close or be faced
with unaffordable costs.
[41] It is not strictly necessary for my decision but I also find
that there were several other entrances and exits to this Casino.
[42] To end I now look briefly at the cases. In Wallace
the pursuer was entering a common close when she put her foot in a hole causing
her to fall. She sought to rely on
section 2(1) of the Act by saying that the hole was on premises over which
the defenders had control and as a result of the danger an accident
occurred. The Second Division found such
pleading to be irrelevant. The duty did
not simply arise because of occupancy.
The pursuer had to aver and prove that the danger was one of which the
occupier knew or ought to have been aware, and why, and what steps were open to
the occupier but not taken by him to remove the danger before the accident
occurred.
[43] In McMillan the
pursuer tripped over a mutual threshold strip at a canteen doorway. It was about half an inch in height and was
needed to weatherproof the building. The
door was mainly left open and there was a history of several employees tripping
over the rim without injury. The Lord
Ordinary found that the mutual rim was not a remote but a significant
risk. In awarding damages he found the
pursuer one-third to blame.
[44] Titchener is an
important case. The pursuer was a
15 year old girl. She had gone with
her boyfriend to a disused brickworks for "romantic" reasons. They left there and began to cross the
Airdrie to Helensburgh railway line on foot.
The inevitable occurred. The
boyfriend was killed and she was injured by a train. She was familiar with the area, had been to
the brickworks before, had crossed the line on foot before, and knew trains ran
on the line. The railway was fenced but
there were gaps in the fence. In all
probability they were both struck by the side of the train. In relation to the proper understanding of
the duties of care under the 1960 Act, Lord Fraser said this (page 54):
"... 'the duty
is not to ensure the entrant's safety but only to show reasonable care. What is reasonable care must depend "on all
the circumstances of the case".' One of
the circumstances of the case is the age and intelligence of the entrant. That appears from the provision in
section 2(1) that the duty is to show 'such care as in all the
circumstances of the case is reasonable to see that that person
will not suffer injury' (emphasis added).
The question in each case relates to the particular person who has
entered upon the premises ..."
[55] "... the duty will tend to be higher in a
question with a very young or a very old person than in the question with a
normally active and intelligent adult or adolescent ..."
[45] In the above case Lord Fraser was in part quoting what was
said by Lord Guest in McGlone to
which I now refer. A boy of 12 had
climbed up a booster transformer at Kirkhill railway junction. He touched a conductor and was severely injured. To get to that point the boy had had to pass
through barbed wire and climb up a 200 foot girder. In the circumstances the House of Lords found
that the passing provided complied with the duties under the 1960 Act.
[46] In Martin a student
nurse fell over a banister in the nurses' home at a Glasgow
hospital. Some attempt was made to rely
on certain Building Regulations which did not at the time apply to the nurses'
home. The Lord Ordinary refused to
consider the Regulations or to regard them as any guide to good practice. The building was old and had been used by
thousands of nurses over many years.
There was no history of any accidents or complaints. Accordingly the defenders had no reason to
anticipate any danger arising from the height of the banister. Scott
is a case which failed on the facts and credibility. The problem with the steps there was quite
unlike the present case. None of these
cases is precisely in point, however these well constructed stairs should not
have presented any problem to a mature adult like the pursuer who was familiar
with them.
[47] At the end of the day it is for the pursuer to prove her case
on the Regulations or the measurements.
That she has failed to do for the reasons I have given. In the last analysis it may not really matter
where she fell as there is no acceptable accurate proof of measurement at any
point in her proof. The defenders on the
other hand have positively proved that at least in the area of the centre line
the stairs are well constructed, in acceptable symmetry and alignment
vertically and horizontally and within acceptable tolerances.
[48] I accordingly find that the pursuer's material averments are
unfounded in fact and that the defenders are not in breach of any duty under
the 1960 Act or any Regulations. Should
that be incorrect I have to deal with quantum. That is agreed at ฃ10,000, subject to any
argument on contributory negligence. In
my view these steps were perfectly safe.
The pursuer said she was looking straight ahead (possibly at her taxi)
and not where she was placing her feet.
She had also taken some alcohol.
Were it necessary to do so I would have found her 50% to blame. The defenders, however, are assoilzied.
