Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
PD1686/07	[2008] CSOH 163     OPINION OF MORAG WISE, Q.C. Sitting as a Temporary Judge   in the cause   DOUGLAS ROBERT PORTER Pursuer;   against   SCOTTISH BORDERS COUNCIL Defenders:   _______

 

Pursuer: Brown; Thorntons

Defender: Primrose; Simpson & Marwick

 

4 December 2008

 

[1] In this personal injuries action the pursuer seeks damages in respect of injuries sustained as a result of an accident occurring on Friday 2 September 2005. The accident happened in a public toilet adjacent to the Town Hall in Hawick. The case came before me for a preliminary proof restricted to the question of liability. In addition to the pursuer, evidence was led in his case from his twin brother Stephen Porter, Ms Emma Forbes, a Health & Safety technician employed by the defenders and a Mr Robin Freytag, a Consulting Engineer who had prepared an independent report. For the defenders, evidence was led from Mr Raymond Soley, a General Labourer employed by Scottish Borders Council at the material time, a David Brown, the Cleansing Foreman of the defenders' at the material time and a Mr Frank Scott, a Property Officer employed by the defenders for the last seventeen years.

[2] In the late afternoon of Friday 2 September 2005 the pursuer Mr Porter had finished work for the week and was in the town of Hawick to shop. He visited the public toilet of the town, which he entered from an adjacent side street called Policeman's Brae. Having been at work as a joiner that day he was wearing his working boots with rubber soles.

[3] The public toilet had an open doorway with a small curved passage to enter it, about three feet by two feet in diameter. Mr Porter turned the corner to enter the main toilet area. He lost his footing and fell to the floor. He was embarrassed at having fallen into the trough of the urinal. He managed to get to his feet and leave the premises. Subsequently, the circumstances of the pursuer's accident were reported to the defenders by his brother Stephen Porter. On or about 15 September 2005 Ms Emma Forbes, a Health & Safety Technician employed by the defenders, together with a colleague, visited the pursuer at home. She completed an accident report form (No 6/14 of process). The pursuer told Ms Forbes that the accident had occurred when he was on his way to the toilet cubicle.

[4] I had no difficulty in accepting the evidence of the pursuer to the extent that he recalled that he had slipped and fallen in the public toilets in Hawick on the day in question. It was not in dispute that he was wearing sensible footwear. There was, however, contentious evidence about where precisely he had slipped and fallen, whether he was taking reasonable care for his own safety when he did so and the extent to which the floor may have been wet and if so, what caused it to be so.

[5] So far as identifying the precise locus of the accident, the pursuer gave evidence in conjunction with a number of photographs (No 6/12 of process). The first of these photographs shows a wall behind which the urinal was situated. The pursuer would have required to walk parallel with the urinal had he been heading straight for the toilet cubicle beyond. Had he been turning left towards the urinal itself, the fall would probably have taken place closer to it. While the pursuer persisted in his evidence that the place at which he slipped would have been no different had he been making his way to the cubicle rather than the urinal, it seemed to me to be more likely that he would have been further away from the urinal had he been visiting the cubicle as he reported shortly after the accident. The area of tiles where the Pursuer could have slipped was a relatively small one. I conclude that the accident occurred in about the centre of the tiled area shown in photograph 2 of 6/12 of process. The Pursuer was unable to say whether the floor was wet from water or from urine. He thought that the flush mechanism of the urinal might have been spraying water but he couldn't say whether the area where he fell was wet from that.

[6] The Pursuer's twin brother Stephen Porter had been contacted by the Pursuer after the accident. Stephen Porter took responsibility for reporting the incident to the defenders. On the Monday following the accident he visited the toilets himself. On that day, he said he found the floor to be wet. He remarked that the floor looked as if it hadn't been cleaned "in years". He could not say whether on that date the wetness was water or urine.

[7] The tiles on the toilet floor were clay or quarry tiles fitted in a variety of the defenders' premises in the borders. The particular tiles in the toilet block where the pursuer sustained his accident had been installed when the block had been constructed in about 1966. There had been no reported incident or accident involving a slip on the floor of the toilets since their construction. There had been no reports to the defenders of dampness on the toilet floor. The same tiles had been fitted in two other sets of public toilets in Hawick, the public toilets in Jedburgh and the Tourist Information Centre in Jedburgh. They had also been fitted by the defenders in schools, shower rooms, swimming pools ( as recently as 2003), toilets and school kitchens.

[8] Mr Freytag has worked as a consulting engineer for the last nineteen years. His main area of interest is safe access to work premises and he is regularly involved in the investigation of what he called "trips, slips and falls". Prior to his current role he was employed by the Health & Safety Executive but at that time he worked in the area of mechanical safety rather than access. His evidence was that methods of testing slippery floors had progressed significantly within the last eight years or so. A pendulum test machine was now used which gave accurate readings. He had previously tested five floors using the pendulum test that he carried out in the Hawick public toilets.

[9] Mr Freytag's report (No 6/4 of process) was prepared on 30 November 2007, following a visit to the premises on 17 November 2007. He spoke to his report. He confirmed that the tiles on the toilet floor have a smooth surface that is not highly glazed and appear to be similar to what are known as quarry tiles. He referred to the surface of the tiles as being "smooth and matt".

[10] Mr Freytag explained that if one wants to know if a floor is slippery, one can now use a pendulum test machine that has a weight on the bottom. The pendulum on the machine slides along the floor. It is set to slide over 126 millimetres of floor. There is a small pointer which is pushed into position and a scale the readings on which run from zero which suggests no friction to ninety which is indicative of very high friction. The impact of friction on the floor makes the pendulum slow down. In essence, a reading of zero would suggest a very slippery floor while a reading at the top end of ninety would indicate a floor with maximum grip. Mr Freytag tested tiles in the area of the floor where he was told that Mr Porter had fallen. On the day of his inspection, Mr Freytag said that the floor had dry patches but that the area where the accident was said to have occurred was wet. Mr Freytag recorded pendulum readings in that area of between seventeen and twenty with an average of eighteen. He said that such a reading would be typical for a terrazzo floor in a supermarket. He indicated that there was no problem with such a surface if dry but expressed the view that it became dangerous if wet. He spoke to paragraph 5.2 of his report where he relied upon the British Standard 5395; Part One, entitled "Stairs, Ladders and Walkways", he referred to clause 12.3.7 in Part One, which states that stairs and landings near entrance doors subject to wetting should have a high slip resistance value. He relied also on Table 3 entitled "Slip Resistance of Floors and Tread Finishes" which states that for clay tiles, unless they have a carborundum or textured finish, the slip resistance when wet is poor to fair, giving a surface below acceptable safety limits. He referred also to paragraph 5.4 of his report, where part of the guidelines published by the UK Slip Resistance Group in January 1996 are reproduced. These indicate the outcome of the readings of the roughness meter and pendulum test machine results he had already referred to. He indicated that a reading of twenty four and below was dangerous.

[11] Mr Freytag had also measured the surface roughness of the tiles using a surtronic duo roughness meter. He explained that this is a small compact machine which is not as accurate as a pendulum test machine. The readings from that machine varied with an average of 6.8 which he said confirmed that these were smooth tiles. A higher reading would have indicated increased roughness. In this context, he referred to Issue Two of the guidelines published by the UK Slip Resistance Group in June 2000, which stated that a roughness value of at least ten was needed (paragraph 5.5 of his report). The guidelines go on to say that where wetness is normally expected this figure should be increased by a factor of two or more.

[12] Mr Freytag said that he had been taking an interest in the floors in public toilet blocks since being instructed in this case. He had noted that when new public toilets were built in Skipton in Yorkshire in 1995, a textured plastic floor had been installed. He said that in Richmond, North Yorkshire, the public toilets were tiled but with a textured surface. He said that he had encountered difficulties with slipping accidents in a lot of school kitchens in South Yorkshire in the early 1980s where the surface had been similar unglazed tiles. When asked, however, whether in the 1980s such unglazed tiled floors were still being installed, he could not comment.

[13] Under cross-examination, Mr Freytag confirmed that he had hired the pendulum test machine he used for the purposes of his report from a Mr Len Greasley. He had not checked when the machine had last been calibrated by the manufacturer. He accepted that that could lead to a five per cent margin of error, but expressed the view that for the purpose of his report it didn't make such a difference. In relation to the tests carried out using the roughness meter, Mr Freytag accepted that he hadn't followed with absolute precision the UK Slip Resistance Group Guidelines for testing floors as he had experienced problems with the machine. He claimed however that his results were " ...good enough for today's purposes."

[14] Mr Freytag accepted that the British Standards he relied upon in his report (reproduced at No 7/7 and 7/8 of process) were primarily directed at floor surfaces near stairs, but stated that the advice given in them was easily transferable to the type of floor with which this case is concerned. Attention was drawn to page 15 of No 7/7 of process which is the updated version published in 2000 of 7/8 of process which was published in 1977. In the report lodged in process, Mr Freytag had relied upon the 1977 edition of British Standard 5395 only (paragraph 5.2). The table that he relied upon for slip resistance of clay tiles indicated that the slip resistance was poor when such tiles were wet and very poor when wet and polished. In the 2000 version, however, the potential for slip of wet clay tiles is described as moderate to low under the remark that "when surface is wet and polished, the potential for slip can be very high". When Mr Freytag was challenged about his failure to mention that the table had been updated and altered in the 2000 Regulations, he said "this perturbed me at first - but I think it's misleading". He acknowledged that he had mentioned the updated table in an earlier version of his report which had been intimated to the defenders but was not ultimately lodged in process. Mr Freytag suggested that he didn't mention the table produced in the current version of British Standard 5395 in his report for the Court because he wanted to be succinct. He also suggested that an interpretation of the 2000 British Standard 5395 would depend upon what meaning one attributed to the word "polished". He indicated that in this context the word "polished" meant "smooth". Mr Freytag claimed that if there had been a change between the 1977 British Standard 5395 and the 2000 version he would have mentioned it. He insisted that there had been no such change.

[15] During further cross-examination, the British Standard 5385-4 of 1992 relating to Wall and Floor Tiling, was put to Mr Freytag. He indicated that he had not previously been shown that document. A table relating to the suitability of floor tiles (Table 2 at page 3 of 7/6 of process) was put to him. A list of tiles was there broken down into three categories - suitable, unsuitable or "confirm by reference to a manufacturer". That table required to be read in conjunction with British Standard 6431 of 1983 relating to Ceramic Floor & Wall Tiles (No 7/11 of process). The combination of those standards tended to suggest that even ceramic tiles were suitable for installation in damp and wet conditions. Mr Freytag queried whether those standards related to durability or sustainability. He accepted, however, that those such as the defenders when purchasing tiles might have looked at such standards when considering suitability of certain tiles for the floor.

[16] Mr Freytag agreed in principle that there would be difficulties with the effectiveness of an adhesive strip on a toilet floor to prevent slipping as it would be questionable how long such a strip would last after cleaning. It was also less hygienic than other methods. He acknowledged that he could not speak at all to what other local authorities in Scotland might be doing in terms of installing or replacing floor tiles in public toilets. However, he persisted that unglazed quarry tiles were "lethal" in swimming pools, toilets and school kitchens. He said he couldn't believe that a Council that had fitted such tiles in so many premises hadn't had a problem with them. He thought that one solution might have been to lay new tiles on top of the old ones.

[17] Raymond Soley, the Council employee responsible for cleaning the toilets in question at the material time, gave evidence that he had opened the public toilets each morning at that time and cleaned them between 8.30 and 9.30 a.m. He checked each day for any leaks from or defects in the equipment, such as the urinal flushing mechanism. None had been noticed or reported. Had he noticed a problem of water spraying onto the floor from the urinal flushing mechanism, he said he would have locked the door of the toilets and reported the matter to his foreman. He couldn't remember anything unusual at all about the toilets on 2 September 2005. After the Pursuer's accident he had had a casual conversation with Mr Stephen Porter, the Pursuer's brother, when he had indicated that sometimes there was a problem in the winter when the floor would become wet with people "walking in water". He explained that when that occurred he had been instructed to mop the floor and place a sign on the floor indicating that it was wet and that caution should be taken. No such action had been required on the day of the Pursuer's accident.

[18] David Brown, the Cleansing Foreman to whom Mr Soley reported at the material time, gave brief unchallenged evidence confirming the system of checking and cleaning the toilets daily. He confirmed that there had never been a report of any problem either with the flushing mechanism of the urinal in the toilets or with the tiles on the floor.

[19] Frank Scott, a property officer employed by the Defenders for about 17 years, has responsibility for the whole property stock of the council, which amounts to about 200 properties. He gave evidence to the effect that had it come to the attention of the defenders that there was a need to remove or replace the tiles in establishments such as public toilets, schools and swimming pools, the cost of replacing them in all the establishments mentioned would have run to a six figure sum. Laying new tiles on top of the old tiles would have caused difficulties with creating a proper bond between the new surface and the old and issues would have arisen about the difference in height between the floor and the doors in such a situation. While the defenders had experience of fitting slip resistant tape on certain floor surfaces, such as school woodwork rooms, they found that the cleaning process affects the adhesion in the tape and such a method would have been unlikely to last for more than a couple of months. In the absence of any reported concerns about them, replacing the floor tiles in council properties was not a priority.

 

Submissions for the Pursuer

[20] Mr Brown made his submissions in three chapters. The first chapter he referred to as the basic principles involved in the reasonable care obligation. He submitted that there was no material difference between the Occupiers Liability (Scotland) Act 1960 and fault at common law. He relied upon section 2(1) of the 1960 Act. He said that both the common law and the 1960 Act imposed an old fashioned reasonable care obligation. He said that the question for the Court to answer was - what is reasonable in all the circumstances? He accepted that those circumstances must include the budgetary context.

[21] He referred to and relied upon the remarks of Lord Hoffman in Tomlinson v Congleton Burgh Council [2004] 1AC46 at 82 ( paragraph 34) where the following was stated:-

" ... the majority of the Court of Appeal appears to have proceeded on the basis that if there was a foreseeable risk of serious injury, the Council was under a duty to do what was necessary to prevent it. But this in my opinion is an over-simplification. Even in the case of the duty owed to a lawful visitor under section 2(2) of the 1957 Act and even if the risk had been attributable to the state of the premises rather than acts of Mr Tomlinson, the question of what amounts to 'such care as in all the circumstances of the case is reasonable' depends upon assessing, as in the case of common law negligence, not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measures. These factors have to be balanced against each other."

[22] The issue, submitted Mr Brown, is whether, if the injury was foreseeable, it was reasonable in all the circumstances (including budgetary constraints) for the council to do nothing about it.

[23] The second chapter of his submissions related to the defenders' wider statutory obligations. Under reference to the Workplace, Health Safety & Welfare Regulations 1992, Mr Brown submitted that had the pursuer been an employee he would have had an almost unanswerable case against the defenders under the 1992 Regulations. While it was acknowledged that he did not have such a claim as he was not an employee of the council, the reasonableness or otherwise of the defenders should be tested against the position they would have been in had he been such an employee. If there was an obvious risk that would lead to liability when an employee slipped, how could it be said that doing nothing was reasonable in the circumstances.

[24] The third chapter of Mr Brown's submissions related to how the Occupiers Liability (Scotland) Act 1960 has been applied in practice. Reference was made to McMillan v Lord Advocate 1991 SLT 150, Laverton v Kiapasha (T/A Takeaway Supreme) [2002] EWCA 1656 and to Sinclair v Falkirk District Council 1997 (Lord Marnoch, 20 October 1995, unreported, subsequently reported on quantum only at 1997 SLT 757).

[25] In Laverton v Kiapasha,, the plaintiff had slipped and injured her ankle on a wet and slippery floor. While at first instance the precautions of a door mat and slip resistant tiles were said to be insufficient, the defenders were successful on appeal. Reference was made in particular to paragraphs 18-23 of that judgement where it is noted that the question is always what was reasonable to expect of a defendant in the particular circumstances of the case and whether anything else would have made a difference.

[26] The case of Sinclair v Falkirk District Council involved a child who was injured by falling from a chute in a children's playground onto a hard surface. The defenders were assoilzied but, counsel for the pursuer pointed out, they succeeded largely because they had at the material time started to implement a reasonable programme of changing concrete surfaces in children's' playgrounds within the area of their responsibility to soft ones. It was accepted that budgetary constraints leading to a programme of renewal of the surfaces rather than them all being replaced at the same time was reasonable.

[27] Turning to the facts of the accident, Mr Brown submitted that this was the most straightforward accident one could imagine. He noted that there were no extraneous contributory factors such as alcohol or slippery shoes. The pursuer simply lost his footing on the floor of the toilet block and there was no element of fault on his part. There was no suggestion that he was rushing or being unduly careless and thus it was suggested that there was no element of contributory negligence on his part.

[28] Mr Brown submitted that there was ample evidence to make a specific finding that the floor of the toilet block was wet to a material degree on the day in question. It was difficult to establish what the cause of that wetness was. He accepted that it wasn't clear whether it was water or urine and whether one of the sources was the flush mechanism of the urinal. There was some evidence that spray from the flushing mechanism of the urinal reached the tiles. Mr Brown argued that the evidence of Stephen Porter that when he visited the toilets on the Monday after the accident and observed water splashing onto the tiles from the flushing mechanism that was sufficient to draw an inference that it was the same the preceding Friday.

[29] Mr Brown relied heavily upon the evidence of Mr Freytag. He said that the two methods of checking slipperiness used by Mr Freytag were helpful but the less scientific cross-check of using his own shoe which Mr Freytag had also done should also be taken into account.

[30] Mr Brown said that the equipment used by Mr Freytag had been hired from a responsible expert known to the defenders. The findings using the roughness meter and the pendulum test machine were not at the margins of whether the floor was slippery or not. Even had the margin of error been 10% it would have made no difference. The two tests were consistent with each other.

[31] So far as the British Standards evidence was concerned, Mr Brown rejected the contention that he anticipated Mr Primrose would make that Mr Freytag ought to have referred to the correct British Standard in his second report for the Court. He noted that the first report that had referred to the correct standard had been disclosed to the defenders.

[32] So far as the tables in 7/7 and 7/8 of process were concerned, Mr Brown's position was that Mr Freytag's evidence was that he did not consider that the guidance had changed and that in any event there was no evidence that the defenders had looked at any British Standards in either installing or subsequently checking the tiles for safety purposes. The pursuer's case, he said, was that this risk was apparent from 1977 at the latest, namely the date of the publication of the first version of the British Standard. He said that from 1977 there were British Standard's guidelines indicating that such tiles were dangerous when wet and that the defenders' should have already done something by the year 2000.

[33] He argued that the floor when wet led to a high risk of slipping and the defenders could not claim that they were not aware of such a risk. Mr Freytag's evidence that the risk could be reduced or negated by retiling or temporarily using adhesive tape should be accepted. He invited me to find that the accident was caused by the omission by the defenders' to take remedial action to bring slip resistance to the floor of the toilets.

[34] He submitted further that this was not a remote risk but an obvious one. He acknowledged that all tiles when wet are slippy to some degree and that the question the defenders should have addressed was whether anything should have been done about that. The fact that there had been no previous accident involving the tiles should not lead to a conclusion that the risk was not foreseeable.

[35] So far as reasonableness was concerned, Mr Brown noted that all that was said was that the defenders had to prioritise. It was not a good argument to claim that because the cost of replacing all tiles would be prohibitive, they shouldn't replace any. The case of Sinclair v Falkirk District Council illustrated that. Mr Brown noted that there was no evidence about the level of the overall budget of the defenders for maintenance. There was no reasonable assessment of risk.

[36] Mr Brown invited me to find that the defenders are liable to the pursuer in terms of the 1960 Act with no contributory negligence.

 

Submissions for the Defenders

[37] Mr Primrose invited me to grant decree of absolvitor. He made his submissions under five chapters as follows:-

(1) The background to the legal case and credibility and reliability.

(2) The case on record of the allegedly defective urinal.

(3) The case in relation to the floor tiles.

(4) Occupiers Liability.

(5) Contributory negligence.

[38] So far as the first chapter was concerned, Mr Primrose submitted that the matter came down to reasonable care in the circumstances of the case.

[39] He pointed out that a number of the cases pled on record had not been made out by the pursuer. There had been no attempt to establish what a reasonable local authority in Scotland would have done in the circumstances. In particular there was no factual basis upon which I could decide whether the defender was under any duty to take action in relation to the tiles in question.

[40] So far as credibility and reliability is concerned, Mr Primrose made reference to the accident report No 6/14 of process in which is would appear the pursuer said categorically that he was going to use the urinal and not the cubicle. This reflected both upon creditability and reliability of the pursuer and on his position so far as contributory negligence was concerned.

[41] Secondly, Mr Primrose started to address the case on record in relation to a defective flushing mechanism on the urinal. Mr Brown intervened and freely accepted that no such case had been established and he was no longer relying upon it. He did continue to rely, however, on the fact that the urinal was spraying water onto the floor as one possible source of the wetness. That having been clarified, Mr Primrose did not require to pursue chapter two of his submissions.

[42] The third chapter of the defenders' submissions related to the tiles. It was submitted that there was insufficient evidence to show that the tiles were dangerous at all. There had been no accidents or complaints about them since they were fitted in 1966. The unglazed quarry tiles in the toilet block were of a type commonly used in the Borders. There had been evidence from Mr Scott, who was responsible for over two hundred properties including schools and other public conveniences where quarry tiles of this nature had been used over the relevant period without difficulty. In the absence of reports or complaints about these tiles for thirty nine years, Mr Primrose submitted that the pursuer's case could not be made out unless his expert Mr Freytag could be relied upon.

[43] Mr Primrose accepted that he could not say that the results of Mr Freytag's tests would have been different if he had ensured that the machine being used had been calibrated, if he had followed precisely the guidelines for the roughness meter or if there had been no difficulty with the roughness meter on the day in question. The purpose of the criticisms was to urge caution about attaching any weight to Mr Freytag's evidence overall.

[44] On the question of whether there was a foreseeable risk of injury from the tiles in the toilet block, Mr Primrose first relied upon the way in which Mr Freytag dealt with the change to British Standard 5395 in 2000  and his failure to follow the guidelines of the Slip Resistance Group (No 7/10 of process).

[45] Mr Primrose then argued that the British Standard upon which Mr Freytag particularly relied related to walkways and stairs rather than floors rather than the guidance that does apply to tiles that had been put to him in cross-examination (Nos 7/6 and 7/11 of process). In Mr Primrose's submission it was these latter British Standards that were applicable on the face of it to the floor tiles in question. Mr Freytag had simply not answered the point about why he had not referred to them in his report.

[46] There was no evidence that the council should have been looking at any British Standards at all and Mr Freytag had accepted that the standards offered guidance rather than applicable rules.

[47] It was submitted that Mr Freytag presented the evidence to the Court in a very selective way under reference to the failure to explain the omission of the current British Standard BS 5395 rather than the 1977 version. Mr Primrose also suggested that Mr Freytag had been partisan and dogmatic in his evidence. Importantly Mr Freytag had no idea what councils in Scotland should be doing in relation to floor tiles.

[48] It was argued further that there was insufficient evidence presented by the pursuer of any known risk or danger that would have lead to the defenders considering that the tiles ought to be replaced. There was no evidence that the council ought to have been looking at the British Standards suggested by Mr Freytag and it was for the pursuer to prove what standards were relevant and should have been considered by the Local Authorities. Under reference to Gibson v Strathclyde Regional Council, 1993 SLT 1243, Mr Primrose submitted that the lack of evidence about what reasonable Local Authorities should be doing in such a situation was a significant omission in the pursuer's case. On the authority of Gibson, the pursuer would have had to show (i) that Local Authorities in Scotland used slip resistant tiles at the material time. Such evidence as there was about anything happening south of the border should be treated with caution given that this was an occupier's liability case under a different Scottish statute. In addition to leading evidence to what responsible public authorities in Scotland do the defenders would require (ii) to ask the court to infer from those facts that there was a duty incumbent upon the defenders.

[49] So far as foreseeable risk was concerned, it was submitted that this was as far from a case of obvious danger as one could envisage. Again the lack of accidents or complaints was relied upon, the use of the tiles in other in the Local Authority area in question and the lack of knowledge of any slipping danger was relied upon. No obligation could arise to take action until the defenders had knowledge of any danger.

[50] If any guidelines were relevant at all they might be the guidelines of the Slip Resistance Group. It was noteworthy that the first set of those guidelines had been produced in 1996 and that Mr Freytag accepted that matters had moved on considerably from about that time. So far as playground equipment was concerned this related to the period 1996 to 2005 and Mr Freytag had said that he would hope something would be done within ten to twenty years time of such a danger becoming known. If there was any danger at all presented by the tiles on the floor of the defenders' public toilets it was not known until the pursuer had his accident.

[51] Under the fourth chapter of Occupiers Liability, Mr Primrose suggested that the argument presented under reference to the 1992 Regulations which are not applicable in this case was more ingenious than persuasive. He submitted that the argument was irrelevant. The duty to which the employer owes to an employee is necessarily very different to that owed by an occupier. It is not surprising that there might be a more stringent duty upon an employer. The 1992 Regulations are designed to provide uniform conditions for workers. In contrast an owner/occupier such as the Council will have no idea of who is coming onto premises such as public toilets. The particular circumstances will affect the liability. There is clear authority that the nature and extent of a duty can depend on who the person is and the circumstances in which they are on the premises - McGlone v British Railways Board 1966 SC 1.

[52] Mr Primrose submitted that there was no evidence that the defenders, as occupiers of the toilets, knew or ought to have known that the floor was wet. In fact there was some evidence that in circumstances where water had been found on the floor it was mopped up and a sign indicating to the public to be cautious of the wet floor put up. Even if there was some knowledge that from time to time the toilet floor might become wet, the risk involved was so small that the defenders' were entitled to do nothing. Under reference to Wallace v City of Glasgow District Council 1985 SLT 23, it was pointed out that the pursuer required to show first that the occupier knew or ought to have been aware of the danger before an obligation to do something about it arose.

[53] Mr Primrose also relied upon Sinclair v Falkirk District Council. He drew attention to the fact that at proof in that case there had been evidence about what Scottish Local Authorities were doing in the circumstances of a concern having been raised about concrete surfaces being used in children's playgrounds. Under reference to Morton v William Dixon Limited 1909 SC 807 he reiterated that the lack of evidence that removal of the tiles or other remedial measures were obviously necessary created a problem for the pursuer in discharging the onus upon him.

[54] So far as the alternative proposals for making the tiles safe were concerned, this would only arise if it was found that the defenders knew of a risk that was substantial enough that they should have done something about it. For this Mr Primrose relied upon the evidence of Mr Scott. Re-tiling was unnecessary and unjustified on a cost/benefit analysis. Mr Freytag's evidence on the possibility of new tiles being laid on top of old tiles was nothing more than that of a DIY enthusiast. It was clear from the evidence of Mr Scott that fitting a non-slip adhesive tape on the floor was not practicable because of the need to replace it regularly. In any event, there was no evidence to suggest that any such adhesive would have been positioned where the pursuer had slipped.

[55] Finally on the question of contributory negligence, Mr Primrose reverted to the issue of the pursuer's credibility and reliability. He questioned that the pursuer could have been accurate in saying that the amount of liquid over the floor amounted to about half a bucket of water while at the same time indicating that he did not notice that the floor was wet before slipping. It is inconsistent to say that he was watching where he was going and looking out for his own safety while at the same time failing to see anything. This was not a case where it was suggested that the lighting was inadequate and it was clear that the pursuer contributed to the accident that befell him.

[56] The deduction for contributory negligence should be in the range of 30% - 50%. That submission was made under reference to Porter v Strathclyde Regional Council 1991 SLT 446 where the pursuer was found to be 50% contributory negligent, McMillan v The Lord Advocate 1991 SLT 150 where contributory negligence was established at one third and McCluskie v Aberdeenshire Council where again contributory negligence was fixed at 30%.

[57] At the conclusion of his submissions Mr Primrose renewed his motion for absolvitor.

 

The Pursuer's Reply

[58] In reply, Mr Brown reiterated the submissions he had made in relation to first principles. He accepted that the floor of the public toilets was not a floor that could be kept dry all the time. It was known to the defenders that people would walk in water to the toilets at certain times. He invited me to take a common sense approach that all wet tiles are slippy to a greater or lesser degree and that the defenders ought to have foreseen that some sort of accident would ultimately happen.

[59] Mr Brown submitted that the lack of an accident in forty years does not equiparate to a lack of risk although he accepted that a lack of complaints suggested that no accidents were known to the defenders.

[60] So far as the 1992 Regulations are concerned Mr Brown reiterated that it was simply a factor that had to be taken into account of the defenders' that they would have been aware from 1992 so far as employees were concerned that workplace floors should not be slippery.

[61] On the Slip Resistance Group guidelines, Mr Brown submitted that those guidelines did not really go to the issue of slippiness of floors.

[62] On the issue of foreseeable risk, Mr Brown noted that this was not so much a case (unlike Sinclair) of the defenders not having got round to the task of replacing the toilet floor tiles, it would appear that they had no proposal to do anything about it at all.

[63] On contributory negligence, Mr Brown suggested that 50% was very much the upper limit of contributory negligence for such circumstances. In the current case if there was to be any deduction at all he said it should be modest.

[64] Finally, Mr Brown acknowledged that he had led no evidence about what other local authorities, either Scottish or English, were doing about such floor tiles. He said this was not fatal to his case. If the first hurdle about putting the defenders in a position where they should be acknowledging a risk, then the responsible local authority is deemed to look for guidance where available and apply it.

 

Discussion

[65] In my view, the proper approach to this case is to consider whether, on the established facts, the Pursuer has shown that the Defender failed to take reasonable care for his safety. The test of reasonable care applies at common law and under section 2(1) of the Occupiers Liability (Scotland) Act 1960.

[66] In order to address that test in this case, a series of questions requires to be posed. Were the tiles on the part of the floor of the toilet block where the Pursuer fell wet on the afternoon of 2 September 2005? If so, did the defenders know, or ought they to have known, that those tiles were wet ? Was there a foreseeable risk of injury from the tiles in the toilet block in question becoming wet? If there was such a risk, was it a substantial risk that required action to be taken? Finally, if there was such a substantial risk of injury, what action ought to have been taken, having regard to the budgetary restraints on the defenders?

[67] So far as the first question is concerned, I find it established that at least part of the area of the tiled floor where the pursuer fell was wet at the material time. The pursuer himself used the word "damp" to describe the floor early in his evidence, but went on to suggest that it looked as if someone had taken half a bucket of water to the floor. It was clear that there were no pools of water on the floor, just that it looked wet. I cannot make any finding as to what had caused the area in which the Pursuer fell to be wet. He did not know whether it was water or urine. While there was some evidence that the flush mechanism on the urinal might result in a spray of water to the floor, the Pursuer himself could not say that the area where he fell had been so sprayed. Overall, I found the Pursuer's account on the details of the accident to be somewhat vague and not entirely reliable. However, I had no reason to doubt that when he looked after he fell, he had noticed that an area of the floor looked wet. The evidence of his twin brother carries little weight, as he would appear to have exaggerated about the condition of the toilets. I could not accept that they looked as if they hadn't been cleaned "in years" in light of the unchallenged evidence of Mr Soley about his cleaning routine.

[68] There was no evidence to support any contention that the defenders knew or ought to have known that the floor was wet that day. There was no suggestion that it had been raining on 2 September 2005. No criticisms were made of the defenders' cleaning and inspection systems. The toilet block had been cleaned that morning and no problems had been detected. However, it was within the defenders' knowledge that the tiled floor became wet from time to time, on days of heavy rain when the public would deposit water from their footwear. A system for dealing with that was spoken to, again without criticism. Accordingly, while there was no evidence that the defenders knew that the tiles were wet that day, it was established that they knew that the tiles were occasionally wet.

[69] This leads to consideration of the issue of foreseeable risk of injury. In light of the undisputed evidence of the absence of reports or complaints of slipping on quarry tiles in the defenders' various premises over a thirty nine year period, there was no material to suggest that the tiles represented an obvious danger. But the defenders knew that there might be some risk to the public if the floor was wet. Thus, regardless of the lack of incidents, consideration has to be given to whether any steps should reasonably have been taken to avoid such injury. The Pursuer relied upon Mr Freytag to argue that such an assessment should have been made and appropriate steps taken.

[70] Regrettably, I did not find Mr Freytag to be an impressive witness. He claimed to understand his duties to the Court as an expert, yet he had omitted to record what could be an important change to the relevant British Standard 5395 in its updated version in preparing his Court report. He was not clear whether he had done so because he disagreed with the view being expressed in the current British Standard or whether he was truly maintaining that the advice had not changed from the earlier 1977 version which was in different terms. As the alteration appeared to relate to the very issue of whether clay or quarry tiles had a low potential for slip, the lack of clarity in his evidence gave rise to a significant concern about his reliability. ". I do not accept his evidence that the word " polished" in the 2000 version of BS5395 should be taken to mean " smooth". That is not the natural and ordinary meaning of " polished". Mr Freytag's position on this seemed a little inconsistent with the evidence given earlier in his examination-in-chief where he had, as indicated earlier, described the tiles as "smooth and matt". There was no evidence that the tiles had ever been polished or had a polished appearance. In any event, Mr Freytag placed more emphasis on British Standards relating to stairs, ladders and walkways than on those which on the face of it seemed more relevant. Further, when asked about them, his position on the British Standard relating to Wall and Floor Tiling ( Nos 7/6 and 7/11) was unsatisfactory. It was not clear if he had been aware of its existence when preparing his report. He was unable to say that the material within it was not relevant. I agree with Counsel for the defender that he appeared dogmatic and partisan when giving evidence. I am less concerned about the criticisms of his failure to check that the pendulum test machine had been calibrated before using it or the slight discrepancy between the number of readings he had taken with the roughness meter as compared with the suggested guidance. While those criticisms were justified in that they exposed a lack of diligence in his methodology, it was not suggested that the results of his tests would have been materially different, rather that it was a factor in determining the weight to be given to his opinion evidence. For the reasons I have expressed above, I am unable to rely on the general opinion expressed by Mr Freytag about the tiles in question.

[71] The Pursuer suggests that taking a common sense view the defenders ought to have known that wet quarry tiles posed a risk of injury to the general public using the toilet block. This leads to the question of what could reasonably have been expected of the defenders in the particular circumstances of the case. It could not be and was not suggested that the floor of the toilet block should be kept dry at all times. Inevitably, people would walk in water when the weather was inclement. When that came to the attention of the defenders they had, as explained, a system for dealing with it. Insofar as there was a risk of the floor becoming wet between daily inspection and cleaning times such that a risk of injury arose, the pursuer claims that it would have been reasonable to replace the tiles with another type of slip resistant surface or at least to fit adhesive strips on parts of the floor of such premises.

[72] In my opinion there was no basis in the evidence to support the contention the defenders were under a duty to replace the tiles in question. There was no reliable evidence that applicable British Standards indicated that the tiles on the toilet floor were dangerous. The Pursuer did not establish that other Scottish local authorities had embarked upon a system of replacing quarry tiles in their premises with slip resistant tiles. Against the background facts of a lack of knowledge of there being any problem with the existing tiles and in the absence of an attack on their system of dealing with the floor on the occasions when they knew it to be wet, I cannot conclude that the defenders were under a duty to embark on a programme of floor tile replacement. So far as budgetary constraints were concerned, Mr Scott's evidence was that even if the council's budget was double that available it wouldn't be sufficient to attend to all of its priorities and that the six figure sum required to replace all the floor tiles in question would require full council approval.

[73] In relation to the alternative methods mentioned by Mr Freytag of laying new tiles on top of old or fixing adhesive strips, I accept Mr Scott's evidence on the ineffectiveness of both of those. In any event, there was no evidence to suggest that, had it been considered necessary and practicable, any adhesive strip would have been fitted on the area of floor where the pursuer slipped such that it might have made a difference to what occurred.

[74] In all the circumstances I consider that at the material time, the risk of injury posed by the tiles on the toilet block floor was relatively low and certainly not substantial enough to impose a duty upon the defenders, in the exercise of reasonable care, to take action of the nature suggested by the pursuer.

[75] Dealing with the pursuer's argument that I should have regard to the Workplace (Health, Safety and Welfare) Regulations 1992, which did not apply to this case, but would have applied had the pursuer been an employee, I am not persuaded that I can take those Regulations into account. It is well established that the nature and extent of a duty may depend on who the person involved is and the circumstances in which they are on an occupier's premises - McGlone v British Railways Board 1966 SC 1. The fact that the question of liability might be answered differently if the defenders had faced a claim by an employee is of passing interest at best. They do not face such a claim. The duty at issue in this case is that of an occupier of premises to take reasonable care for the safety of those entering those premises. An employer has control over where his employee will work. The nature of the employment contract gives rise to particular duties that go beyond those arising from the general duty of reasonable care. The 1992 Regulations seek to impose uniform conditions for workers. Where they do not apply, the standard set by them cannot be used as the benchmark of liability. Although it was not cited to me, I note in this context that the decision of the House of Lords in Bermingham v Sher Brothers 1980 SC ( HL) 67 appears to support the view that one cannot rely on a defender's particular duties of care towards his employees at certain premises in determining the extent of the duty owed under the Occupier's Liability ( Scotland) Act 1960 to someone entering those premises other than as an employee.

 

Decision

[76] In conclusion, I consider that the pursuer has failed to discharge the onus on him to prove that the defenders, as occupiers, failed to take reasonable care for his safety. In light of the history of use of the tiles in question and the absence of complaints over such a long period, it was not reasonable to expect the defenders to do any more than they did to keep the public toilets clean and dry for the safety of those entering them at the relevant time. Accordingly I will grant decree of absolvitor.

[77] Had I concluded that the defenders were liable, I would have found the pursuer to be contributorily negligent to the extent of 33%. While he was undoubtedly wearing suitable footwear, it was difficult to reconcile the pursuer's account of the floor having as much as half a bucket of water over it with his evidence of not noticing anything before he fell. He was, as indicated, quite vague about the detail of the incident. There was no case against the defenders of the toilets being inadequately lit. In all the circumstances, I would have considered that the Pursuer was also partly to blame for the accident.