Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 54
PD2599/09	OPINION OF LORD GLENNIE in the cause ROSE CLARK Pursuer; against QUANTUM CLAIMS COMPENSATION SPECIALISTS LIMITED Defender: ­­­­­­­­­­­­­­­­­________________

Pursuer: G. Clarke QC, McCaffrey; Bonnar & Co

Defender: Mr Hanretty QC, Tait; Lefevre Litigation

1 March 2012

[1] At the end of the proof in this matter, I delivered an ex tempore judgment granting decree of absolvitor. I have been asked by the pursuer to extend the notes of the judgment. I have taken the opportunity of correcting the most glaring typographical and grammatical errors.

[2] The case concerns an accident in the workplace in March 2007. Quantum has now been agreed in the sum of £13,500 inclusive of interest to date and therefore I am only concerned with issues of liability.

[3] The pursuer is Rose Clark. She was 51 at the time of the accident. She gave evidence before me. She was a wholly credible and reliable witness. She was employed by the defenders, Quantum Claims Compensation Specialists Limited, as a secretary at their office at 70 Carden Place, Aberdeen. It is of interest, though of no legal relevance, to note that the defenders are a firm of claims handlers, a substantial part of whose business comes from bringing legal claims on behalf of people claiming to have been injured at work and elsewhere (though one would hardly guess this from their report of the accident given belatedly to the Health and Safety Executive in November 2007 in which they described their business as "financial intermediation except in insurance and pension funding"). The boot, in this case, is on the other foot.

[4] The pursuer, with other secretarial staff, had her office on the top floor of a three-storey house. The house had been converted from a residential dwelling into offices in about 1990. The top floor had sloping walls, reflecting the slope of the roof, and was accessed by a staircase which can fairly be described as both narrow and steep. A particular feature of the stairs was that the top four steps described a curve, opening onto a straight flight of a further thirteen steps to the bottom. This curve was dictated, as I understand it, by the configuration of the walls and the sloping roof. To go to the floor below, the pursuer and other secretaries, would first walk from their office along a short landing or passage and then descend the stairs, curving left for the first four steps, and then going straight down from the fifth step onwards. There was a wall on both sides of the staircase.

[5] I should here mention a few measurements. Ultimately these were not relied on in themselves as giving rise to any breach of duty or of any relevant regulation. The measurements were given by Mr Greasley, who was called as an expert witness by the pursuer. Although I had certain reservations about parts of his evidence, the measurements themselves and their relation to what was required by British Standards for a semi-public stair, which I consider to be the appropriate category, was not an issue. I am concerned here only with the straight section of the staircase. Four measurements are of note. First, the width of the staircase was only about 810mm at step level, or 910mm at shoulder height, i.e. wall to wall. Second, the rise of the steps was about 180mm, which is within the range of 100 to 190mm allowed by British Standards. Third, the "going", which is the technical term describing the measurement from the nose of one step to the nose of the step below (or from any part of one step to the equivalent part of the step below) was about 215mm, smaller than the 250mm indicated by British Standards. Fourth, the pitch, or steepness, of the staircase was about 39 degrees, compared with the British Standard maximum of 38 degrees.

[6] In all respects apart from the "going", the steps were broadly in accordance with what was required of them in terms of British Standards. Mr Greasley, rightly in my view, did not contend that the steepness of the staircase was outwith the permitted range - 1%, he thought, was within measurement error. As regards the "goings", whilst these were below the minimum set by British Standards, not too much was ultimately made of this, and rightly so, for two reasons. First, although the width of the going was about 215mm, the tread width, i.e. the width of the stair available to put one's foot on, was 255mm. The measurement for the going omits that part of the tread over which the nose of the step above overhangs. This may be an acceptable approach to measurement, and I do not criticise it; but it would not be right to assume that where, as here, the overhang is small, the whole width of the tread is not available for use, particularly if the person descending the stairs is aware that the stairs have a narrow tread and is therefore taking care to make sure he uses all of it. What matters, in my opinion, is whether there is sufficient space to place one's foot safely in the course of going down the stairs. The pursuer gave evidence that her toes would tend to protrude beyond the nose of the step, while the ball of her foot would be on the front part of the step, near to the nose. As is apparent from observation in everyday life, and as Mr Greasley confirmed in his evidence, this is a perfectly normal way of going downstairs.

[7] For those reasons, although some aspects of the configuration of the stairs was relied on in the pleadings, it was not ultimately contended that the defender was in breach of regulation or at fault at common law in respect of any of these matters.

[8] I should also mention, if only to put to one side, two other matters referred to in the pleadings. Some six months after the accident it was discovered that part of the tread in the region of step five (numbered from the top) was slightly loose. This was then screwed down. The case on record suggested that this tread had been loose at the time of the accident, but that case was not ultimately insisted on. There was also a case put forward on record that the lighting on the staircase was insufficient, but the pursuer gave evidence that she could clearly see where she was going and this complaint too was not pursued.

[9] This leaves the handrail, which was ultimately the real focus of the pursuer's claim. At the top of the stairs where they curved, there was a handrail on the right hand side fixed to the wall. For the avoidance of doubt, when I use the terms right and left, I use them to indicate right and left going down the stairs from the top to the bottom. That handrail stopped at the nose of the fifth step, which was the first of a run of thirteen steps going straight down to the first floor. It was replaced on the left hand side by another handrail, which started half way along the fifth step and continued to the bottom of the stairs. Mr Greasley showed a sketch of the handrails in relation to the fifth step. There was about a 200mm overlap between the two handrails.

[10] The main argument, as it ultimately turned out, related to the suitability and sufficiency of the handrail under reference to regulation 12(5) of the Workplace (Health, Safety and Welfare) Regulations 1992. Like other secretaries working on the second floor, the pursuer said that she would have used these stairs perhaps ten times a day during her working life there. She has worked there for about six years, so she was very familiar with the stairs. She said that the stairs were steep; you had to look where you were going and you had to look for the next step. At the top, and indeed whenever she was using the handrail, she tended to put her hand on and off the handrail as she went down, rather than slide it down and thereby maintain continuous contact throughout. I inferred from this, and from what I say later about the circumstances of the accident, that she would put her hand onto the handrail after completion of each step and lift it off again before taking the next step.

[11] As I understood it, she would sometimes switch hands when she reached the point where the handrail ceased on the right hand side and began on the left, but she would not do this invariably. It would depend on what she was carrying. Often she was carrying heavy files and it would then be difficult to change hands. She used the word "perilous" or something like that to describe the position she was in when having to decide whether to change hands, but I think that was no more than her way of emphasising the difficulty of the operation having regard to the narrowness of the tread and the steepness of the stairs.

[12] Against this background, I turn to the evidence of the accident itself. This came solely from the pursuer who was entirely candid in admitting that she could not remember precisely what happened. On the occasion in question, she was carrying a fax downstairs to give to Mr Paul Lefevre for whom she worked. As I understood her evidence, it was just a single sheet of paper but it would make no difference if it were two sheets. It was certainly not a heavy bundle. She started to go down the stairs. As she usually did, she placed her hand on and off the right hand handrail as she walked down. At the fifth step, at about the point where the right hand handrail came to an end, she fell. Her hand was off the handrail when the fall started, albeit she was still alongside the right hand handrail. Her description of her fall was that she just went straight forward. She did not think there was any obstacle on the stairs. Her head and body went forwards, and her right hand went out and grabbed at the bare right hand wall, probably beyond the place where the handrail ended. Her shoulders were probably forward. That is all taken from my note of her evidence, and I think it reflects her impression of the nature of the fall. It was certainly a serious fall. She fell all the way to the bottom of the steps, landing on her arm, which was broken in the fall. She also suffered concussion. I accept that account and, as I have already suggested, commend the candour of the pursuer in not seeking to attribute a cause to the fall when she could not remember one.

[13] Against that background, the pursuer says that the defenders were in breach of regulation 12(5) of the Workplace (Health, Safety and Welfare) Regulations 2005. That provides, so far as is material, that suitable and sufficient handrails shall be provided on all traffic routes which are staircases. There is an exception where a handrail cannot be provided without obstructing traffic, so that does not apply here.

[14] The question therefore is: was the handrail here, or were the handrails here, suitable and sufficient?

[15] I was referred to the British Standards by Mr Greasley which recommend that there be a continuous handrail down a staircase. What is continuous is sometimes a matter of interpretation, but I would agree with Mr Greasley that the configuration here was not one of there being a continuous handrail. Of course a continuous handrail is not always possible, but here it could easily and inexpensively have been achieved by continuing the right hand handrail from the curve at the top of the stairs all the way down to the bottom.

[16] However, the reference to "continuous" in the British Standards does not really address the problem here, where the question is: was the handrail provided suitable and sufficient? That raises the question suitable and sufficient for what? That, so it seems to me, must relate to the activities of those using the premises. I take on board the comment of Lord Hope in Robb v Salamis [2007] SC HL 71 at 76, albeit in the context of different regulations, that one must construe the regulations against the background of the EU Legislation which they were designed to implement. One of the aims is to ensure the safety and health of workers in every aspect of their work. This staircase was used frequently by a number of secretaries and possibly others. It was established in evidence that the secretaries and others would often be carrying large bundles or files of paper up and down the stairs, perhaps also other things. It is relevant to have regard to the fact that accidents do frequently happen in connection with staircases. Mr Greasley gave evidence of that by reference to papers which were lodged in process.

[17] The staircase here was steep and relatively narrow, and therefore was one where there was a greater propensity for there to be accidents, whether accidental slips or losses of balance. It is relevant too to recognise that a person carrying a bundle of papers down the stairs is likely to be reluctant to change hands in the middle of the descent so as to free the other hand, simply because the handrail stops on one side and resumes on the other; and that is particularly so if the bundle is heavy, the footing is awkward, and the person going down the staircase feels insecure in his or her footing. It is no answer to that to say, as Mr Hanretty QC (who acted for the defenders) says, that a warning should have been given to employees to ensure they did hold onto the handrail on one side or the other. It is notorious that such warnings often go unheeded and the workplace regulations are designed to ensure the safety even of those who do not follow instructions to the letter, or who cut corners, where it is foreseeable that they will act in this way.

[18] Having regard to all that I am persuaded that the handrail here was not suitable or sufficient. There should, in my view, have been a continuous handrail down the right hand side of the staircase. To have a break at that particular point, or indeed at any point, gave rise to a foreseeable and appreciable risk of an accident. That is sufficient to find a breach of the regulations. I am conscious that in this respect I differ from the opinion of Mr Gordon from the Aberdeen City Council who carried out a Health and Safety Inspection of the premises after the fall. Although he recommended a continuous handrail for convenience, he did not make that a requirement. So be it. He was to my mind an impressive witness but in this respect I have to disagree with his conclusion.

[19] I therefore find that the defenders were in breach of regulation 12(5) of the Workplace Regulations. But this is not the end of the matter. To prove her case, the pursuer must establish on balance of probabilities that the breach caused her injuries, at least to an extent that is not de minimis. I approach the matter in this way. When the pursuer fell, she was at the fifth stair from the top. It is unclear whether she was stepping onto that stair or stepping off from it. She still had a handrail on her right hand side. Possibly she had a handrail also on her left hand side at the time. She accepted that she did not keep her hand constantly on the rail as she went downstairs. Indeed she must have taken her hand off the rail just before the time when she began the fall, otherwise she would not have an arguable case at all, as her whole case is premised on the fact that she was not holding the rail when the fall started. Mr Clark therefore accepts, properly in my view, that the absence of the right hand handrail, after step five, did not trigger the fall. So the question comes down to whether, if the handrail on that side had continued after step five, that would have enabled her to stop her fall. It is, as I have said, for the pursuer to prove this part of her case on balance of probabilities.

[20] I was referred to the case of Otaegui v Gledhill (2003, unreported) in which Elias J held the defender liable for the pursuer's fall caused by the absence of a handrail. He found that the pursuer would have used the handrail whilst descending had it been there to steady himself and therefore, on balance of probabilities, would not have fallen. However, he rejected (at p.16) an alternative argument that even if the pursuer had not used it routinely whilst descending, he would have been able to grab it to stop his fall after he started falling.

[21] Each case of course turns on its own facts, but the approach in that case shows that there are two different questions. That seems to me to make good sense. A handrail may well provide a means of maintaining one's balance when going downstairs, but that is not the issue here. It is quite different when considering whether, in the course of falling, the pursuer would have been able to reach out and grab the handrail, had it been there, to stop her fall. I have no doubt that the pursuer instinctively put her right hand out as she fell - she described her right hand hitting or brushing against the wall on the right hand side - and I am prepared to assume that her instinct made her try and grab for something, but whether she would have been able to grab a handrail had it been there, is quite a different matter. There are, it seems to me, too many imponderables. There is the question of how she fell? How her hand hit the wall, and where on the wall it hit? And at what height, i.e. at handrail level or above or below where the handrail would have been?

[22] The pursuer's description here was of falling forwards. I find it difficult to square this with there being any reasonable chance of her grabbing the rail as she fell and thereby stopping or impeding her fall. I am therefore unable to find it proved on balance of probabilities that the absence of the handrail at that point, caused her fall or caused her injuries. Accordingly the claim under that head fails.

[23] It was very sensibly agreed between counsel that both the claim for breach of regulation 3 of the Management of Health & Safety At Work Regulations 1999 as amended and also a common law claim must also fail if the primary claim under regulation 12(5) failed.

[24] For those reasons I shall grant decree of absolvitor.