Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 31
PD279/09	OPINION OF LORD BRODIE in the cause KATHLEEN KIRKHAM Pursuer; against LINK HOUSING GROUP LTD Defender: ­­­­­­­­­­­­­­­­­________________

Pursuer: Geoff Clarke QC, Duncan Hamilton; Balfour + Manson LLP

Defender: McGregor; Andersons Solicitors

12 March 2010

Introduction

[1] This is an action for damages for personal injury to which Chapter 43 of the Rules of Court applies. The pursuer is Mrs Kathleen Kirkham. Her date of birth is 30 May 1948. She is and on 13 December 2006 was the tenant, together with her husband, of a semi-detached house at 12 Moorelands Place, Addiewell, West Calder. The landlord is and was the defender. The pursuer sues the defender for damages in respect of injuries which she avers she sustained when, on 13 December 2006, she tripped on one of the concrete paving slabs forming part of the footpath leading from the front door of the property at 12 Moorelands Place to the adjacent pavement. The parties are agreed that the pursuer sustained an injury to her shoulder on that date which has had quite significant consequences. They have agreed damages in the event of liability being established in the sum of £92,393.40.

[2] I heard proof on 9 and 10 February 2010. Mr Geoff Clarke QC and Mr Duncan Hamilton appeared for the pursuer. Mr McGregor appeared for the defender. In addition to the pursuer, six witnesses were led on her behalf: Donald Kirkham, the pursuer's husband; Scott Kirkham, the pursuer's son; John Laird, formerly employed by the defender as a building inspector; Ernest Columbine, a maintenance officer employed by the defender; Maureen Middleton, the defender's Director of Housing and Technical Services and William O'Britis, a civil and structural engineer. I considered that all witnesses to fact should be regarded as credible and, in relation to matters of fact on which they were in a position to speak, reliable. Mr O'Britis became a member of the Institution of Civil Engineers and a chartered engineer in 1983. He has accrued very substantial experience as an engineer since then. I was not, however, persuaded that his expertise had very much to contribute to the resolution of the issues raised in the litigation.

The footpath

[3] As I have already indicated, the footpath on which the pursuer avers she tripped led from the front door at 12 Moorelands Place to the asphalt pavement beside the roadway running parallel with the front elevation of the house. The footpath met the pavement at right angles. The house at 12 Moorelands Place was on two storeys and was semi-detached from its immediate neighbour. The area to the front of the house, separating it from the pavement, was grassed over. This grassed area extended on either side of the footpath. It was separated from the pavement by a concrete kerb.

[4] Evidence about the probable method of construction of the footpath was given by John Laird. The footpath was composed of a series of rectangular pre-cast concrete slabs laid in parallel one to the other on a substrate of hardcore formed from graduated whin chip blended with whin dust mixed with cement which sets with the action of moisture thus providing a solid base for the slabs. The slabs measured 900 millimetres by 600 millimetres with a thickness of 50 millimetres. They were laid side by side, with the 900 millimetre dimension forming the width of the footpath. The depth of the hardcore substrate would be about 50 millimetres. Once laid, cement grouting was placed in the gaps between the paving slabs in order to prevent water penetration.

[5] The footpath is illustrated in photographs taken by the pursuer's son some weeks after his mother's accident. Copies of these photographs are contained in number 6/17 of process. The pursuer indicated in evidence that she thought that the footpath might have been made up of twelve slabs. What appears from the photographs would be consistent with that. Photographs 1, 3 and 5 in 6/17 of process appear to illustrate that the slab nearest to the pavement (the "final slab") is somewhat higher than its immediate neighbour, presenting an edge at its right hand extremity (looked at facing away from the house and towards the pavement) which is a little less than the diameter of the 50 pence piece shown lined up against it for the purposes of comparison. The pursuer's son, Scott Kirkham, confirmed that he had placed the 50 pence piece there to provide a measure of the height of the edge. He thought that the height was about 35mm but he accepted that the edge was less than the diameter of the coin. Mr O'Britis provided the estimate of 20millimetres based on the appearance of the photograph although in cross-examination he conceded that, depending on the angle at which it is taken, a photograph can be misleading. Consideration of photograph 5 in number 6/17 of process with an uninstructed eye might suggest that other slabs in the footpath were not flush with their neighbours but the only reference in the evidence of the witnesses as to a slab being raised and therefore presenting an edge to someone walking from the pursuer's house related to the final slab. Nothing was said about the other slabs.

[6] Mr Laird said that he would expect that the paving slabs, when laid, would have been flush one with the other within the very narrow tolerance of plus or minus 1 millimetre. However, movement of paving slabs laid in this way can occur for a number of reasons among which are the action of frost and the consequences of heavy rain. A 10 millimetre difference in level between paving slabs originally laid flush one with the other might occur over a period of two years or it might occur overnight. Mr O'Britis said that, once laid, slabs can continue to settle with consequential differential vertical displacement in situations where the soil underlying the hardcore substrate is soft. This was a slow process and, leaving aside the possibility of frost heave, he offered the estimate of a period in excess of six months for a vertical displacement of 5 millimetres.

The pursuer's fall

[7] I found it established that the pursuer fell and in consequence sustained the injuries in respect of which damages are agreed while walking along the footpath from her door towards the pavement, a little after 5 am on 13 December 2006. That much was not controversial. What was controversial was whether she had established what precisely it was that caused her to fall and in particular whether she had proved her averment that she fell because:

"her foot caught on one of the ...concrete paving slabs which was raised above the level of the others. The concrete paving slab on which the pursuer tripped was raised approximately 20mm above the level of the path."

Because the only evidence led as to the extent to which one slab was raised above the level of the others related to the final slab, the issue came to be whether the pursuer, on whom the onus lay, had proved that she had fallen because she had tripped on that slab.

[8] It was Mr McGregor's submission that the pursuer had failed to prove that her accident occurred in the manner and in the circumstances which she had averred. He did not suggest that the pursuer was attempting to deceive the court. He accepted that her evidence had been clear that the toe of one or other of her feet came into contact with something that caused her to trip, but beyond that her evidence had been vague and lacking in detail. In particular, she had failed to identify the edge of the final slab as being what it was that had caused her to trip. Mr McGregor submitted that it appeared from the evidence that the pursuer was wholly reliant on her husband's assertion to her that it was a raised paving slab which had caused her to trip. In so far as she gave evidence as to which slab she had tripped on, it was in relation to "three slabs from the top". Having checked my notes of the pursuer's evidence and listened to it again as recorded on tape, I would accept that what Mr McGregor had to say about that evidence was accurate. However, in order to determine the point in issue I require to look at the whole evidence, such as it was.

[9] The pursuer was not shown any photographs during evidence-in-chief or in cross. In re-examination it appeared that Mr Clarke did intend to ask her to look at the photographs appended to Mr O'Britis's report (these being the same images as photographs 1, 3, 4 and 5 in number 6/17 of process). The line of questioning that involved looking at the photographs was objected to by Mr McGregor as not arising out of cross-examination. I nevertheless allowed it, subject to future consideration of competency and relevancy but, as matters progressed, Mr Clarke did not in fact ask the pursuer about the photographs. She therefore did not have the opportunity to identify what had caused her to fall by reference to any photograph. In evidence-in-chief she explained that she "tripped over a paving slab and fell down and smashed [her] shoulder". She was cross-examined with a view to demonstrating that she did not know why she had fallen or if it was the case that she had tripped she did not know where she had tripped. She conceded that, at least initially: "I did not know why I tripped. It was so quick I did not know what I had fallen over", but she rejected the suggestions, made under reference to entries in the record made by NHS 24 when the pursuer had telephoned to seek advice, and at St John's Hospital, that she had thought that there was a medical reason for her fall or that she had thought she had slipped. She accepted that it was her husband who had first suggested to her that she had tripped on the edge of a slab. However her increasingly resolute position during cross-examination is exemplified by one of her answers: "I know where I fell and I know where I caught my foot on the slab". As to which slab it was, as Mr McGregor reminded me during his submissions, the pursuer explained during examination-in-chief that: "It was the slab sticking up. Where I actually tripped, it was three slabs from the top". In re-examination the pursuer confirmed that she had fallen with her right shoulder on the concrete kerb which separated the grassy area to the front of the pursuer's house from the pavement. She was asked by Mr Clarke how far her foot had moved forward when she fell. She answered: "Not very far ... two slabs back".

[10] The pursuer's husband did not see her fall, he being inside the house at the time but, alerted by the barking of a pet dog, he went out to find the pursuer lying "at the top of the path" with her upper body adjacent to the kerb between the grassy area to the front of the property and the pavement. The pursuer was unable to move without assistance. Mr Kirkham helped her into the house. He said that he knew that she had tripped over something. He saw a slab sticking up and "had to assume" that this was what his wife had tripped over. He was present when his son took photographs 1, 2, 3, 5 and 6 in 6/17 of process and he identified the final slab, against the edge of which the 50 pence piece is positioned, as the slab on which he had assumed that his wife had tripped. He was not cross-examined. Scott Kirkham confirmed that he had taken the photographs. The pursuer had told him that she had fallen and hit her shoulder on the edging kerb at, as I understood his evidence, the left of the path. She was not present when he took the photographs but, consistent with what his father thought was the case, must be taken to have understood that it was the final slab on which the pursuer had tripped. Otherwise he would not have photographed its edge. It was the final slab and only the final slab that was re-laid by contractors employed by the defender some weeks after the accident. It was the pursuer who took photographs 4 and 7 in number 6/17 of process which shows them doing this.

[11] The cross-examination of the pursuer under reference to two entries in the records of St John's Hospital, was an entirely legitimate line of questioning but I would see that very little weight is to be attached to entries in hospital records based on a conversation with a person who has been recently injured and which relate to aspects of the circumstances in which the injuries have occurred but which have no very obvious therapeutic significance. This must particularly be so where the person making the record is not called as a witness and where, as here, the person being cross-examined maintains their account in an entirely coherent way. The pursuers accepted that at the time she fell she did not know precisely why she fell but she knew that she had caught her toes on something and that she had immediately fallen over. She knew where she caught her foot and that was in the vicinity of the raised paving slab. There was no other apparent reason for her catching her foot.

[12] On this evidence, I conclude that the pursuer has proved, on the balance of probabilities, that she fell because she tripped on the raised edge of the final slab. The mechanism of her fall was not explored in any great detail (it may not have been realistic to do so) but the pursuer, who I considered to be an honest witness, clearly described a trip, in the sense of her toes catching on something, when she was on the footpath. The final slab, at least when photographed, did have a raised edge which might have caused a trip and that was the opinion of the pursuer's husband shortly after her fall. Notwithstanding what I have said about photograph 5 in number 6/17 of process, none of the witnesses spoke to there having been another feature on the footpath that might have caused a trip and therefore the edge of the final slab is the only irregularity put forward as being the explanation for the pursuer catching her foot. The pursuer was unable to move after the accident and the position in which he found her suggested to her husband that she had tripped on the final slab. It is true that that position was not described very precisely in the evidence and that, depending on how the pursuer fell, the distance between the raised edge of the final slab and the kerb on which the pursuer struck her shoulder may not have been much more than 600 millimetres which might be thought to be close if the pursuer fell forward to any extent, but this is not a point that was explored by counsel and the pursuer's shoulder striking the kerb does not seem to me to be inconsistent with a trip on the edge of the final slab. It is true that the pursuer spoke in evidence to what seemed to be a trip at a point back from the edge of the final slab but that has to be set against her not knowing at the time of her accident as to what she had tripped on and her apparent acceptance that it was the final slab that was to blame as demonstrated by her photographing the contractors who re-laid the final slab. Similarly, when the defender's employee Elaine McAulay called at 12 Moorelands Place to discuss matters shortly after the contractors had left, although the pursuer said that she had told the contractors to "look at the rest of the paths" she did not suggest that the contractors had re-laid a slab other than that which was implicated in her accident.

Inspection and repair of the defender's properties

[13] According to Mr Laird in 2006 the defender did not systematically inspect its properties at Moorelands Place. Mr Laird explained that there was in place what he described as an "ad hoc system" where if a tenant reported a fault he would attend and when he did so he would take a look at the surrounding area with a view to detecting whether any repairs were required. Among the areas that he would look at were footpaths. He would consider whether the condition of a footpath constituted "a danger or a trip". Where the footpath was constructed of concrete slabs such as was the case at 12 Moorelands Place and he saw one slab raised relative to its neighbour a height of 20 or 25 millimetres "or something like that" would, in his experience, constitute a danger. His assessment was based entirely on his own experience. There were no written instructions to guide him.

[14] This evidence as to the absence of inspections of Moorelands Place was to be contrasted, according to the evidence of Mr Columbine, with a programme of monthly inspections of "common parts" of other of the defender's properties. I understood the apparent discrepancy as being because, in the view of the defender's officers, the semi-detached houses in Moorelands Place did not have common parts. If in the course of attending to inspect common areas, Mr Columbine noticed a difference of height as between adjacent paving slabs of more than 15 millimetres he would have reported this as a matter to be remedied within three days. Miss Middleton spoke of a policy of quarterly visits (I took it to all properties). Officers would regard it as part of their job to report anything they saw that required to be repaired. Common areas, including footpaths and parking bays would be inspected. Anything seen on an adopted roadway would be reported to the local authority.

[15] Repairs were carried out on behalf of the defender on properties in Moorelands Place on 2, 10 and 28 November and 4 and 14 December 2006. However, notwithstanding the terms of the letter from the defender's solicitors to the solicitors acting for the pursuer, dated 11 August 2009, it was not established that any of the defender's officers (as opposed to their contractors) attended on any of these occasions.

The Tenancy Agreement

[16] The tenancy agreement between the pursuer and her husband on the one hand and the defender on the other was entered into on 12 December 2002. It includes the following provisions:

"1.1 This document is a Scottish Secure Tenancy Agreement between us, Link Group Ltd, and you:

Donald Kirkham..................................(tenant/joint tenant) and

Kathleen Kirkham................................(joint tenant)

1.2 We agree to rent accommodation to you on the terms and conditions in this Agreement. The accommodation includes the fixtures and fittings contained within it, the use of the common parts and the means of access to it. It also includes any other facilities that we may specify in writing to you. It is referred to as the 'house' in this Agreement. The term 'common parts' is explained at paragraph 1.11.

...

1.6 We may provide services in connection with your tenancy. If we do, they are set out in a schedule attached to this agreement (the page headed "SERVICES") together with the cost of each of those services. The schedule, signed by you and us at the same time as this agreement is signed, forms part of this agreement. It is a condition of this agreement that you pay for those services.

...

1.11 INTERPRETATION

In this Agreement, the following words have the following meanings except where the context indicates otherwise.

...

Common Parts - this includes any part of the structure and exterior of the building in which the accommodation is located (such as the roof, guttering, and outside walls) as well as any common facilities in that building (such as: the common close, common stairway, entrance steps, paths, entrance doors and doorways, passages, bin chute, accesses, yard, gardens, outhouses, bin areas, cellar, back green and back court).

...

1.12 This Tenancy Agreement, in parts, attempts to summarise current legislation. In case of conflict between those parts and current legislation, the legislation shall prevail. Where legislation has been amended since this Agreement was entered into, this Agreement shall be read consistently with the amended legislation.

...

2.10 If you have exclusive use of a garden attached to the house, you must take reasonable care to keep it from becoming overgrown, untidy or causing a nuisance. If you fail to do this, we are entitled to decide exactly what work requires to be done so as to comply with this duty. Before making our decision, we will consult with you. Our decision will be binding on you. If you do not do the work contained in this paragraph we may do it ourselves and charge you for it. This is in addition to any other legal remedies we may have. You must not remove, chop down or destroy any bushes, hedges or trees without our written permission.

2.11 If you share a garden with others, you must take your turn with them to keep it from becoming overgrown, untidy or causing a nuisance. We may arrange for the work to be carried out on a regular basis and charged as a service charge with your rent. If this arrangement already exists the service charge will be listed in the schedule referred to in clause 1.6 above. If this arrangement has not been made and if you and the others cannot agree on the arrangements for doing this or you fail to do the work, we are entitled to decide exactly what you should do and when. Before making our decision, we will consult with you and the others. Our decision will be binding on you. If you do not do the work contained in this paragraph, we may do it ourselves and charge you for it. This is in addition to any other legal remedies we may have. You must not remove, destroy or chop down any bushes, hedges or tress without our written permission.

...

5.1 In this Agreement, the word 'repair' includes any work necessary to put the house into a state which is wind and watertight, habitable and, in all respects, reasonably fit for human habitation.

5.2 Before the start of the tenancy, we will inspect your house to ensure that it is wind and watertight, habitable and, in all other respects, reasonably fit for human habitation. If repair or other work needs to be done to bring the house up to that standard, we will do so before the tenancy begins. We will notify you about any such work. Any other repairs may be carried out after the tenancy begins.

5.3 During the course of your tenancy, we will carry out repairs or other work necessary to put the house in a condition which is tenantable, wind and watertight and, in all other respects, reasonably fit for human habitation. We will carry out all repairs within a reasonable period of becoming aware that the repairs need to be done. Once begun, the repairs will be finished as soon as reasonably possible. All repairs will be done to the standard of a reasonably competent contractor, using good quality material.

5.4 We will carry out a reasonably diligent inspection of the common parts before the tenancy begins. We will take reasonable steps to remove any danger we find before you move into your house. We will repair any other defect we find which will significantly affect your use of the common parts, or the house, within a reasonable period. We will repair any damage to boundary walls and fences within a reasonable period if the damage significantly affects your use of the common parts of your house or if it poses a danger to any user. During the course of the tenancy, we will carry out inspections, at reasonable intervals, of the common parts.

...

5.8 We will keep in repair the structure and exterior of the house including

·      drains, gutters and external pipes (this does not include the clearance of blockages caused by the tenant's negligence)

·      the roof

·      outside walls, outside doors, window sills, window catches, sash cords and window frames, including external painting and decoration

·      internal walls, floors and ceilings, doors, door frames, and internal staircases and landings (but not including painting and decoration)

·      chimneys, chimney stacks and flues (but not including chimney sweeping)

·      pathways, steps or other means of access

·      plasterwork

·      integral garages and stores

·      boundary walls and fences

·      We will keep in repair and in proper working order any installations we have provided for space heating, water heating and sanitation and for the supply of water, gas and electricity including:

o      basins, sinks, baths, toilets, flushing systems and waste pipes, showers, water tanks

o      electric wiring, fireplaces, fitted fires and central heating installations, door entry systems, communal T.V. aerials and extractor fans

·      Installations include those which we own or lease which directly or indirectly serve the house. We will not, however, be responsible for repair of any fixtures and fittings not belonging to us which make use of gas, electricity or water. Neither will we be responsible for the repair or maintenance of anything installed by you or belonging to you which you would be entitled to remove from the house at the end of the tenancy unless we have specifically agreed to do so.

·      We will inspect annually any gas installations in the house provided by us. We will provide you with a copy of the inspection report within 28 days of the inspection. If the inspection reveals the need for repair or replacement of any such installation, we will do so within a reasonable period. We will give you a copy of the current inspection record before the beginning of the tenancy.

·      If your house is served by a communal television or communications aerial provided by us, we will take reasonable steps to repair any defect within a reasonable period. Where repairs or maintenance have to be done, we will make reasonable efforts to minimise disruption to you.

...

10.5 COMPLETION OF THIS AGREEMENT

In signing this Agreement and taking entry to the house under it, you

accept the house as being in good and tenantable condition;"

Submissions

The pursuer

[17] Mr Clarke's submissions on behalf of the pursuer proceeded on the basis that the evidence established that the pursuer had fallen because she had tripped on the edge of the final slab of the footpath which was standing about 20 millimetres proud from its immediate neighbour. He further relied on the evidence of Mr Columbine that an edge of 15 millimetres constituted a tripping hazard and would, if noticed by Mr Columbine, would have resulted in him instructing immediate remedial action. He finally relied on the evidence from Mr O'Britis to the effect that it would take something in excess of six months for a concrete slab to settle 5 millimetres. He accordingly invited me to conclude that the edge on which the pursuer tripped must have been at least 15 millimetres in height for something of the order of six months or more prior to the pursuer's accident.

[18] Mr Clarke presented both a contractual case, founding on the terms of the Tenancy Agreement, and a delictual case. As far as the contractual case was concerned he relied, in particular, on the terms of Clauses 5.3, 5.4 and 5.8 of the Agreement. The Tenancy Agreement imposed the obligation of repair on the defender as landlord. Mr Clarke founded primarily on Clause 5.4 and the obligation on the defender to carry out inspections at reasonable intervals of the common parts. The footpath here fell within the definition of "common parts". Had there been an inspection of the footpath at reasonable intervals the danger would have been identified and, given the evidence of Mr Columbine, rectified. However, the pursuer's case did not depend on finding the footpath to have been included in the common parts. Clause 5.3 imposed an obligation to repair within a reasonable time of becoming aware of defects. Although there had been no complaint here, a reasonable inspection, whether at monthly or quarterly intervals would, again, have disclosed this danger and it would have been rectified. Mr Clarke also relied on the obligation imposed by Clause 5.8 to keep in repair. He did not invite me to interpret this clause literally or at least to give it the effect of a warranty that the property and means of access to it, including the footpath, would always be in repair. He submitted that an element of reasonableness had to be implied with the result that the clause should be construed as imposing an obligation on the defender to take reasonable care to keep the specified parts of the property in good repair. However, the duty was not simply to react, it involved an obligation to carry out reasonably frequent inspections.

[19] Mr Clarke also put forward a delictual case. He reminded me of the terms of section 3 of the Occupiers Liability (Scotland) Act 1960 which states that where the landlord is responsible for the repair of premises it shall be his duty to show towards any persons who may from time to time be on the premises the same care in respect of dangers arising from any failure on his part in carrying out his responsibilities to repair as is required to be shown by an occupier of the premises towards those persons entering on them. Without very much by way of elaboration, it was his submission that the evidence disclosed a failure on the part of the defender to discharge that duty of care.

The defender

[20] As I have already noted, it was Mr McGregor's submission that the pursuer had failed to prove that her accident occurred in the manner and in the circumstances which she had averred. She therefore failed in limine. However, he further submitted that even if the pursuer is taken to have established that she tripped by reason of the edge of the final slab of the path being some 20 millimetres higher than its immediate neighbour, the pursuer had failed to establish liability either in contract or in delict. As far as the contractual case was concerned, regard should be had to the fact that the Tenancy Agreement was a "Scottish Secure Tenancy Agreement" as provided for by the Housing (Scotland) Act 2001 and that in terms of Clause 1.12 the Agreement stipulates that it attempts, in parts, to summarise the current legislation. In case of conflict between the parts of the Tenancy Agreement which attempt to summarise current legislation and the current legislation, the legislation is to prevail. The footpath is not a "common part" in terms of the Agreement. The path was part of the "accommodation", as defined in Clause 1.2. As was clear from Clause 1.11 the expression "common parts" related to property which was shared with other tenants. If the footpath leading to the pursuer's property was a "common part" this would necessarily entitle other tenants to use it. The footpath was contained within the pursuer's garden ground and led only to her house. To suggest that it fell within the definition of "common parts" with the consequence that other tenants could use it, defied logic. The footpath clearly fell within the definition of the "means of" access which was encompassed within the expression "house". This interpretation was consistent with the Housing (Scotland) Act 2001 and in particular, Schedule 2, paragraph 3 (2). It was also consistent with the definition of "common parts" to be found in the Housing (Scotland) Act 1987 as amended by the Housing (Scotland) Act 1988, Schedule 10, paragraph 1(1A) to (1C). There was no evidence that the footpath was shared with any other of the tenants at Moorelands Place. There was no evidence that the pursuer's accommodation was a house which formed part of a building. Accordingly, the footpath could not be defined as a common part and Clause 5.4 did not apply. There was no obligation in respect of the footpath to carry out inspections at reasonable intervals. The obligation on the defender to repair during the course of the tenancy is set out at Clause 5.3. That obligation is dependent upon the defender "becoming aware" of the need for repairs to be carried out. The terms of Clause 5.3 (and Clause 5.2) essentially mirror the terms of section 27(1) of and of Schedule 4 to the Housing (Scotland) Act 2001. Clause 5.8 lists items which the defender "will keep in repair". Again, Clause 5.8 had to be read in the context of the prevailing legislation. Section 27(2) of the 2001 Act provides that the Scottish Ministers may make regulations for entitling a tenant under a Scottish Secured Tenancy to have qualifying repairs carried out to the house which is the subject of the tenancy. In the exercise of that power the Scottish Ministers made the Scottish Secure Tenants (Right Repair) Regulations 2002 which came into force on 30 September 2002. These regulations define a qualifying repair by reference to a list of defects contained within column one of the Schedule to the regulations. The entitlement of a tenant to have a qualifying repair carried out is dependent on the landlord being notified of the existence of the defect. It is implicit that the terms of the regulations of the entitlement of the tenant to have a qualifying repair undertaken is dependant upon the tenant bringing the defect to the landlord's notice.

[21] Turning to the delictual case, Mr McGregor accepted that the defender had an ad hoc system of looking out for defects and carrying out repairs which appeared to be necessary and that this might give rise to a duty owed to tenants. However this depended on an officer of the defender visiting the property in question. There was no evidence that any officer of the defender visited the pursuer's property at any point in time prior to the accident let alone being aware or being in a position where he should have been aware of there being a raised paving slab. Section 3(1) of the Occupiers Liability (Scotland) Act 1960 provides that a landlord should demonstrate the same level of care is as demanded of an occupier in terms of section 2(1). However, it is open to parties to restrict, modify or exclude by agreement the extent of these obligations. Accordingly, any delictual duty of care as set out in the 1960 Act had to be read by reference to the terms of the Tenancy Agreement.

Discussion

[22] As I understood Mr Clarke's position it was that, relying on Mr Columbine's evidence, the 20 millimetre edge of the final slab was to be regarded as a tripping hazard, otherwise, to use the language of section 2 (1) of the 1960 Act, a danger due to the state of the premises or anything omitted to be done on them (the thing omitted to be done being the effecting of a repair by re-laying the slab). Had he seen such an edge, Mr Columbine would have reported it back for action within three days. Now, as is illustrated by, for example, McClafferty v British Telecommunications plc 1987 SLT 327 at 328D to J, judges have not always been persuaded that a discontinuity on a pavement of the order of 15 or 20 millimetres constitutes a reasonably risk of injury to those using the pavement (and here the case relates to a domestic footpath where traffic might be expected to be lighter than on a public pavement). However, I heard unchallenged evidence from a witness whose job it was to make this sort of judgement that he would regard a 15 millimetre edge to be hazardous. Mr Laird was more tolerant but his 20 to 25 millimetre threshold for danger was not so very different from that put forward by Mr Columbine. In the circumstances of this particular case and in particular on the state of the evidence led, I therefore consider it appropriate to proceed on the basis that the pursuer has established that she tripped on an edge which gave rise to a risk of injury which was reasonably foreseeable and sufficiently material to warrant remedial action by means of the carrying out of a repair by the party with the repairing obligation, here the defender, once that party knew about it. That final qualification is important and, in this case, it is central to the issue between the parties. Neither counsel referred to authority. I make no complaint about that. I took them to accept as trite the proposition, vouched, for example, by Wallace v City of Glasgow District Council 1985 SLT 23 at 24, that if an occupier (or landlord with a repairing obligation) is to be found liable in respect of a danger then the pursuer has to prove that the danger was on one which the occupier was aware of or ought to have been aware of, and why. Where the pursuer relies on the second alternative: that the occupier ought to have been aware of the danger, he will usually assert that the exercise of reasonable care required the occupier to institute and maintain a system of regular inspection of the premises with a view to identifying dangers. In such a case the court will expect evidence of what a reasonably prudent occupier in the circumstances of the defender would do by way of inspection: e.g. Johnstone v City of Glasgow District Council 1986 SLT 50 at 52L. Where, however, the responsible party has a repairs and maintenance policy which it has been shown to fail to implement or fail to operate properly, then that may amount to proof that the party ought to have known of dangers that implement of the policy would have obviated: McGeough v Strathclyde Regional Council 1985 SLT 321. Here there was no evidence that the defender actually knew of the danger. One way in which actual knowledge can be established is by leading of evidence of previous complaints. Here the pursuer had not complained because she had never noticed a problem with the footpath (she said that she probably would have complained had she noticed). That is despite her having used the footpath daily. There was no evidence of anyone else having complained. Neither was there evidence of what other landlords, similarly situated to the defender, do by way of periodic inspection. Accordingly, when it came to his delictual case Mr Clarke was constrained to rely on what he suggested was a failure in implementing the inspection policy described by the defender's witnesses to supply the necessary deemed knowledge of the danger. I must return to that delictual case, but Mr Clarke's primary position was that the pursuer was entitled to succeed by virtue of the defender's breach of the Tenancy Agreement and that that did not require actual knowledge or evidence to set up deemed knowledge of the relevant danger. I shall therefore look at the contractual case first.

[23] Here, the pursuer and her husband, on the one hand, and the defender, on the other, were parties to a Scottish secure tenancy, as defined by section 11 of the Housing (Scotland) Act 2001. The Tenancy Agreement that the parties entered into on 12 December 2002 (a copy of which was lodged as 6/12 of process) conforms to the Model Scottish Secure Tenancy Agreement attached to the circular letter addressed to interested bodies by the Scottish Executive Development Department and dated 12 August 2002. The Model, and this Tenancy Agreement which follows it are clearly intended to be suitable for a variety of properties. A feature of the Model is that it attempts to include the obligations on a landlord which are imposed by statute (there is a reference to this at Clause 1.12) and which would be implied at common law. Another important feature is that it is expressed in what I take to be intended as plain English. Very obviously, the Tenancy Agreement is meant to be readily comprehensible to tenants and housing officers. It is not a document which is to be read with the eye of a commercial conveyancer. Its correct construction is the meaning it would convey to the reasonable person.

[24] Mr Clarke relied, first, on Clause 5.4, which states that the defender "will carry out inspections, at reasonable intervals, of the common parts." The footpath, submitted Mr Clarke, fell within the definition of "common parts". Not so, said Mr McGregor. I agree with Mr McGregor. The subject of the tenancy is referred to as the "house". The house comprises the "accommodation". In terms of Clause 1.2, "[the] accommodation includes the fixtures and fittings contained within it, the use of the common parts and the means of access to it." Thus, the means of access to the accommodation (or the use of the means of access, but I see no difference in this context) are included within the subjects let. Here, the footpath was the means of access to the accommodation. That fact and the terms of Clause 1.2 are not conclusive as to whether or not the footpath fell within the common parts. Regard must also be had to the definition of "common parts" which appears in Clause 1.11. There common parts are defined as including:

"any part of the structure and exterior of the building in which the accommodation is located (such as the roof, guttering, and outside walls) as well as any common facilities in that building (such as: the common close, common stairway, entrance steps, paths, entrance doors and doorways, passages, bin chute, accesses, yard, gardens, outhouses, bin areas, cellar, back green and back court)".

Thus, a path (including a path which is a means of access) or a garden, clearly can be "common parts". It does not follow that that will always be so. I agree with Mr McGregor that the words "use of" in Clause 1.2 are important. I would suggest the words "common facilities" in the definition of "common parts" are also important. As is only to be expected, the Tenancy Agreement confers on the tenant the right to the use or at least benefit of such structures and other facilities which are owned by the landlord and associated with the accommodation let. That right of use may be common or, in other words, shared with other tenants, or it may be exclusive. One can readily imagine, for example, a flat where the means of access is shared with other tenants right up to the front door. There the means of access to the accommodation would fall within "use of the common parts". However, there will be other examples, of which the present case is one, where the means of access will be exclusive to the tenant of a particular property and therefore, where it becomes of any importance to determine, will be covered by the expression "means of access" in Clause 1.2. Put shortly, "common parts" as that expression is used in Clause 5.4 are facilities shared by the tenants of at least two properties. Whether or not facilities are to be regarded as shared may require to be determined, as is not uncommon in property matters, by evidence as to how they are actually possessed, regard being had to what is necessary for the reasonably convenient enjoyment of the subjects under consideration. Again agreeing with Mr McGregor, I am reinforced in my view as to the meaning of "common parts" where that expression appears in the Tenancy Agreement by the definition of the term in paragraph 3 (2) of Schedule 2 to the 2001 Act as: "any part of a building containing the house and any premises which the tenant is entitled under the terms of the tenancy to use in common with the occupiers of other houses."

[25] Here, there was no evidence that the footpath on which the pursuer tripped was used by other tenants or was required to be used by other tenants. The appearance of 12 Moorelands Place as disclosed by the photographs is strongly suggestive of the footpath and the grassed areas to either side extending along the frontage of the house up to the point of the internal wall dividing it from its neighbour, being exclusive to the tenants of number 12. That the defender reserved the right to restrict the erection of fencing or other structures on similar grassed areas of neighbouring properties and that it had cut the grass does not alter the facts that the footpath and grassed area have the look of being exclusive to number 12, that their use is unnecessary for the reasonable enjoyment of any other property and that there was no evidence that they in fact were used by other tenants. In my opinion, the footpath was not an element within the "common parts" and therefore Mr Clarke's case, insofar as founded on Clause 5.4, fails. In rejecting Mr Clarke's submission that the footpath fell within "common parts", I should make it clear that I was entirely unimpressed by his reliance on the fact that it crosses what on either side is a grassed area and that the defender, presumably in return for the service charge, cut or at least had cut, the grass, that service charge being ascribed in the schedule to the Tenancy Agreement to "Common garden / landscape maintenance."

[26] Mr Clarke also relied on Clause 5.3 which imposes an obligation on the defender to "carry out all repairs within a reasonable period of becoming aware that the repairs need to be done". "Repairs" in this context means, in terms of Clause 5.1, doing any work necessary to make the "house" habitable and in all respects reasonably fit for human habitation. For present purposes I am content to assume that re-laying the final slab in order to obviate the raised edge would have been such a repair if the defender had been aware that it needed to be done. I agree with Mr Clarke that there is no limitation in the clause as to how the defender has become aware that repairs need to be done. It is not limited, for example, to what the tenant has complained about. However, the defender must be aware that the work needs to be done and here there was no evidence that the defender was aware of the state of the footpath. In my opinion there is no scope for deemed awareness in relation to Clause 5.3 but, in any event, for reasons that I shall mention below in relation to the pursuer's delictual case, I am not satisfied on the facts here that there is a basis for deeming the defender to have knowledge of the presence of a raised edge on the footpath.

[27] Mr Clarke further relied on Clause 5.8 which, read short, provides: "We will keep in repair the structure and exterior of the house; including ...pathways, steps or other means of access ..." As Mr Clarke said, this clause, read literally, is a warranty that all the pathways, steps or other means of access (together with other the specified items which I have omitted from my quotation) will always be kept "in repair". Mr Clarke baulked, however, at a literal interpretation. Rather, he suggested, the obligation imposed by the clause had to be read subject to the concept of reasonableness. Thus, the obligation on the defender was to take reasonable care to see that the specified items were kept in repair, as far as was reasonably practicable. That was more than a simply reactive duty; it involved a duty of reasonably frequent inspection to see that the items were in fact in repair. Mr Clarke was content to accept monthly or even quarterly inspections (without saying what they would involve) as being sufficiently frequent to satisfy the requirements of reasonableness.

[28] As I have already set out, Mr McGregor's response to Mr Clarke's suggested construction of Clause 5.8 was that it had to be read in the light of the relevant statutes, including the 2002 Regulations. An obligation on the defender to effect the repair of the specified items on their being found not to be in repair, cut across the tenant's right under the Scottish Secure Tenants (Right Repair) Regulations 2002 to carry out certain qualifying repairs which had been notified to the landlord. It was implicit that the need for a repair had to be intimated to the landlord before any obligation to repair arose. While this may be so, and I agree points away from Mr Clarke's suggested interpretation, I have more fundamental difficulties with Mr Clarke's approach to the construction of the clause. I agree with Mr Clarke that, read literally, it is a warranty that the specified items will remain "in repair" throughout the duration of the let. I also agree with Mr Clarke that this apparently radical departure from what the common law would imply (cf Wolfson v Forrester 1910 SC 675) is so startling (and contradictory of what has gone before) that one is immediately inclined to look for an alternative meaning of or explanation for the clause. I am not, however, attracted by the approach of replacing its ex facie absolute obligations by obligations to take reasonable care to effect repairs within a reasonable period of time. There are a number of reasons for that but; fundamentally, it is because I do not consider that Clause 5.8, properly construed, imposes any repair obligation over and above what is to be found elsewhere in the Tenancy Agreement and in statute. I would repeat what I have already said. The Tenancy Agreement is clearly intended as a document in plain English drafted in a way that will be readily understood by the parties to it. A text in plain English presents lawyers with particular challenges but they must rise to these challenges appropriately. Subjecting a provision such as Clause 5.8 to what was described in The Antaios [1985] AC 191 at 205 as "semantic and syntactical analysis" is inappropriate and likely to obscure rather than elucidate the common-sense meaning which in my opinion is its proper meaning. In fairness to Mr Clarke, he too was for abandoning semantics in that he did not argue for the literal meaning of the clause but this led him into the difficulty of having to imply a not insignificant number of words with a view to achieving what he suggested is a less "uncomfortable" meaning. However, he did not explain why it was that the literal meaning was "uncomfortable" or why it was that his proposal was less "uncomfortable" or indeed anything which might suggest that his proposal had any rational underpinning whatsoever. "Reasonable" may be a reasonable sounding word. That of itself is not a reason to imply it into a contract. Mr Clarke did not address me on why there was, as he would have it, a further repair obligation in Clause 5.8 nor as to how this clause related to the other clauses bearing on maintenance and repair. I describe Mr Clarke's construction as imposing a further repair obligation because, as he had illustrated in the course of his earlier submissions, in clauses 5.1 to 5.4 there would seem to be a comprehensive statement of position on the matter. Clause 5.1 defines what is meant by "repair". Clause 5.2 effectively warrants that at the commencement of the tenancy the house shall be wind and watertight, habitable and, in all other respects, reasonably fit for human habitation. Clause 5.3 imposes a repair obligation in respect of the house. Clause 5.4 imposes a repair obligation in respect of the common parts. In that it is only the house and use or benefit of the common parts that are let, Clauses 5.3 and 5.4 are comprehensive in their scope. There is no need for a further repair provision. Moreover, to construe Clause 5.8 as imposing an additional repair obligation would have the effect of contradicting or rendering redundant the previous clauses. As Mr Clarke would have it, Clause 5.8 is to be construed as imposing an obligation on the defender as landlord to take reasonable care to keep in repair the structure and exterior of the "house" "including" the various features specified in the bullet points. As previously discussed, the "house" is everything let under the Tenancy Agreement, including use of the common parts and the means of access. It is not immediately obvious that anything that might be an element of a house has been omitted from the bullet points but even if there is then that does not matter because what is the subject of Clause 5.8 is "the structure and exterior of the house", in other words, everything that is let (the reference to internal walls, floors and ceilings in the fourth bullet point indicates that "the structure and exterior of the house" comprehends not just exterior surfaces but also the internal structure). Thus, just as if any meaning is to be given to Clauses 5.3 and 5.4 then there is no need for Clause 5.8 if it is to be construed as an independent repairing obligation, so construing Clause 5.8 as an independent repairing obligation means that there is no need for Clauses 5.3 and 5.4.

[29] In my opinion Clause 5.8 has a place in the Tenancy Agreement in addition to Clauses 5.3 and 5.4 (and vice versa) if what I see as the obvious purpose of the Agreement: a document in which parties can see their respective rights and obligations set out in plain English, is kept in mind. While the Tenancy Agreement generally conforms to the Model attached to the letter of 12 August 2002 from the Scottish Executive Development Department Clause 5.8 in the Tenancy Agreement is rather more wordy than the equivalent clause in the Model. After clauses which are identical to Clauses 5.3 and 5.4, the Model confines itself to

"5.8 We will

·       keep in repair the structure and exterior of the house"

·       keep in repair and in proper working order, any installations in the house ..."

There then follows provisions relating specifically to installations in the house. As I read both the Model and the Tenancy Agreement, Clauses 5.5 to 5.20 are not so much sources of rights and obligations as more detailed explanations or clarifications of the consequences of the rights and obligations set out in Clauses 5.1 to 5.4. That, at least, is how I see the purpose of Clause 5.8 both in the Model and in the Tenancy Agreement. In Clause 5.8 the Tenancy Agreement goes further than the Model by listing more or less everything that could be comprehended by "the structure and exterior of the house". It may be that the greater economy of the Model is preferable in this respect and it may be that a conveyancer drafting a commercial lease might have adopted a different approach. That does not seem to me to matter. In Clause 5.8, as in Clauses 5.5 to 5.7, 5.10 to 5.12 and 5.14 to 5.18, the Tenancy Agreement is seeking to spell out to the tenant the implications of the repair obligations and therefore his rights against the landlord. That is what I see as the (entirely commendable) purpose of Clause 5.8. It is not intended to impose an obligation which is additional to and contradictory of the obligations previously imposed by Clauses 5.2 to 5.4. Accordingly, in my opinion the contractual case fails under reference to Clause 5.8 as it fails under reference to Clauses 5.3 and 5.4.

[30] Mr Clarke also made a case in delict, founding on the duty of the defender as landlord, as expressed in section 3 of the 1960 Act. Mr McGregor accepted that the Act did impose a duty of care or at least formulated a standard of care in respect of a duty imposed by common law but he submitted that it was open to a landlord to regulate or modify the extent of that duty, insofar as owed to his tenant, by contract. While that might be so, I do not consider that here it necessary to go into the possible ramifications of that and Mr McGregor's brief submission did not encourage me to do so. There is nothing in the present case to persuade me that the delictual duties of the defender went beyond the obligations arising from the Tenancy Agreement to repair promptly matters requiring repair which had been brought to its attention in relation to the house and to inspect and repair the common parts. I would accept that the obligation to inspect the common parts included within it a duty to do so with reasonable diligence, in other words exercising reasonable care with a view to obviating the risk of injury to a tenant such as the pursuer. As I understood the evidence of Mr Laird and Mr Columbine, they accepted that their duties included having regard to the state of the properties that they visited, and doing so with a view to identifying dangers to tenants. Mr Clarke founded on this and the evidence pointing to monthly visits, to argue that the failure to repair the footpath pointed to a breach of the defender's duty of care toward the pursuer, even if his submission that the footpath was to included in the common parts was rejected. The defect was there to be seen over a period of months. It would have been seen by a housing officer exercising reasonable care. Had it been seen it would have been repaired within a period of days. Housing officers could be taken to visit at least quarterly. That the defect was not seen and therefore not repaired pointed to negligence for which the defender was liable. So went the argument. I was not persuaded. There is nothing in the case to support a duty to inspect those parts of the property let (the house) which are in the exclusive possession of the tenant and the condition of which is entirely apparent to the tenant. The footpath is such a part of the house. There was no complaint about the footpath. There was no evidence that the defender was aware of its condition. The evidence about the ad hoc system of inspection and the frequency of visits to properties was vague but even if taken at its highest there was no satisfactory evidence as to what a reasonable inspection of common parts or (to the extent that this would have been different) reasonably diligent implementation of the ad hoc system, would have amounted to. I simply had no basis to conclude that the state of the footpath and in particular its dangerous condition would have been revealed by a reasonably careful inspection of the common parts relating to 12 Moorelands Place or neighbouring properties owned by the defender or such other viewing of any of these properties incidental to an ad hoc system or otherwise. Put shortly, on the evidence, I was left with no idea what reasonable care required beyond what arises from the contractual obligations. In particular I was left with no idea as to what reasonable care required in relation to this footpath, positioned as it was at the end of a cul de sac. I therefore have no basis for finding that the defender was negligent in not re-laying the final slab prior to the date of the pursuer's fall. Her delictual case fails.

[31] As I have not found for the pursuer it follows that I need make no finding on contributory negligence. It is however appropriate that I say something on the subject in case this matter goes further. I raised with Mr McGregor whether it was his position that contributory negligence could be pled against the pursuer's case in contract as well as against her case in delict. He submitted that it could be. The point was considered by Lord Davidson in Lancashire Textiles (Jersey) Ltd v Thomson Shepherd & Co Ltd 1985 SC 135. I would respectfully agree with Lord Davidson's conclusions and would adopt the summary of the position provided by McBryde The Law of Contract in Scotland (3^rd edition) at paragraph 22-36 where the author states the law as being that contributory negligence can be pled in breach of contract when the claim could have been framed in terms of delictual liability to which contributory negligence might be relevant. This is so whether or not a delictual claim is in fact made. Here it is and, agreeing with Mr McGregor, I would see the contractual claim, insofar as not simply mirroring the case that was or could have been made in delict, as being very close to it. I therefore consider that a contributory negligence plea is available to the defender. Had I found that the defender was liable to the pursuer in damages it would therefore have been necessary for me to determine whether the plea should have been upheld and, if so, to what extent the damages would fall to be reduced. Whenever someone trips on uneven ground it can be asserted that they must have failed to look where they were going and therefore have not taken proper care for their own safety. Here it can additionally be said against the pursuer that in going back and forward along the footpath every day over a period of months, she completely failed to notice what Mr Clarke has persuaded me should be regarded as a hazard which gave rise to a risk of injury which was reasonably foreseeable and sufficiently material to warrant remedial action by means of the carrying out of a repair, it being for her as tenant to report matters for repair to her landlord. These two failures on the part of the pursuer, one on the morning of the accident, the other over a period of months, might be thought to justify a substantial level of contribution, taking into account both causative effect and blameworthiness. Mr Clarke's response was that the pursuer's failure should be judged by a different standard to that applicable to the defender. A housing officer (or, Mr Clarke suggested, a lawyer) with his professional interest and experience should be much more aware of the risk of tripping presented by an uneven footpath than would someone without such interest and experience. Here the edge was, on the evidence, no more than 20 millimetres in height. Someone in the position of the pursuer should not be expected to attach significance to it if she saw it and should not be found to have been negligent if she did not see it (it being the pursuer's position that she neither saw it on the morning of her accident nor previously). I was persuaded by Mr Clarke's submission on this point, paradoxical as it might appear. It of course underlines the difficulty of making a finding of negligence against the defender simply on the basis that the edge was not identified by its officers, but I can see that different standards might be applicable to professional housing officers on the one hand and tenants on the other. Had I found against the defender I would have made no deduction from the damages awarded by reason of contributory negligence.

[32] I propose to assoilzie the defender from the conclusions of the summons. I shall reserve all questions relating to expenses.