EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Eassie Lady Smith Lord McGhie	[2013] CSIH 24 PD2546/10 OPINION OF THE COURT delivered by LORD McGHIE in the RECLAIMING MOTION by JOHN DAWSON Pursuer and Reclaimer; against RUTH PAGE Defender and Respondent: _______________

Act: Middleton; Slater & Gordon Lawyers (for the pursuer and reclaimer)

Alt: Davie; Ledingham Chalmers LLP (defender and respondent)

3 April 2013

Introductory

[1] The pursuer sustained injury when he slipped on a wet plank in the defender's garden and fell injuring his wrist. He sought damages from the defender based ultimately on a claimed breach of section 2(1) of the Occupiers Liability (Scotland) Act 1960 - "the 1960 Act". Following a proof the Lord Ordinary granted absolvitor in favour of the defender. The pursuer has reclaimed against the interlocutor of the Lord Ordinary of 29 February 2012 assoilzing the defender.

The facts

[2] The facts found by the Lord Ordinary, in so far as bearing on the issues live before us, may be summarised as follows:

At the date of the proof the pursuer was 72 years old. At the time of the accident, he walked with a stick, as a result of an operation to his right knee. He had, for several years, worked on a self-employed basis as a courier for DHL. Parcels would be dropped off at his house and he would then deliver them to the relevant addresses. In December 2008 one of the parcels was for delivery to the defender at her cottage, near Dollar. The pursuer drove to the cottage and found the place to be like a building site. That was, in effect, what it was. The defender was having extensive works carried out involving the demolition of a single storey section of the cottage and its replacement with a two storey extension. The work was nearing completion. The defender had moved out for the duration of the works. She was living in temporary accommodation in Dollar though she visited the site daily to monitor progress, check her mail and walk her dog, which she kept in a kennel there.

The pursuer could not get to the front door because a trench had been dug between it and the road. The site at the back was mucky with some obstructions caused by storage of building materials. However planks had been laid out to walk on. There had been a lot of rain. The pursuer went by way of the planks to the back door, knocked, and on realising that no one was there, posted a DHL card through the door, with his telephone number and a message to call him, and left, taking the parcel with him. The next day, or the day after, he drove back to the cottage in order to deliver the parcel. After knocking on the back door and getting no response he again left with the parcel.

The accident occurred on the third occasion on which he visited the cottage. That visit took place in daylight at a time when the pursuer's observation and awareness of what he was doing was not adversely affected by poor light. For reasons which are not now material, he walked on the planks past the back door and placed the parcel under the oil storage tank. He then returned to the back door of the house, put a note through the door saying what he had done and then made his way back onto the planks. As he transferred his weight onto the relevant plank he slipped on it and fell. He was injured in the fall. Neither the defender nor the builders working on the cottage were told of the accident until a claim was intimated many months later.

Before us, counsel for the pursuer accepted that the planks could be described as ordinary scaffold boards. There was no suggestion that the planks were not secure and level. There was no evidence as to precisely how the pursuer came to slip. The Lord Ordinary noted that the hospital notes suggested that pursuer had initially said that he tripped or stumbled but the Lord Ordinary accepted his evidence that he slipped on the plank. He noted that, on the pursuer's own account, he had trodden on the planks at the back door some seven or eight times before the accident. The pursuer had regarded the plank as an ordinary plank and had not been alarmed at the prospect of stepping on to it. It was not suggested that the relevant plank differed in any material respect from the planks adjacent to it.

There was some discussion of the pursuer's use, at one point in his evidence, of the word "greasy" to describe the plank. But it appeared that he was not suggesting that there was any substance on the plank other than moisture. The Lord Ordinary held that there was no evidence from which he could conclude that the planks were more slippery than any other wet plank might be. This finding was not challenged. In so far as the planks may have been wet, greasy or slippery that was something which was clearly visible to the pursuer. Indeed, his evidence was that he did in fact observe and take note of the fact before he walked on them.

A variety of terms were used to describe the general state of the premises. It was said to be like a "minefield" or a "bombsite". However such terminology does not add much to the fact that it was a building site as is reflected in the Lord Ordinary's findings that "the site around the back was mucky"(para 4), that the area was "generally muddy" ( para 11) and "rough and in places muddy" (para 11). No doubt a person who chose to wander around the site would have to take care for his or her own safety. But there was no evidence of any hidden danger and, importantly, persons walking on the planks - the obvious access route - were not exposed to such dangers as might have existed in the rest of the site.

Grounds of appeal

[3] The pursuer reclaims on the following grounds:

"1. The Lord Ordinary has erred in fact and law by holding that no relevant "danger" existed on the respondent's premises at the material time, in terms of section 2(1) of the Occupiers Liability (Scotland) Act 1960.

2. Following on therefrom the Lord Ordinary further erred in fact and law by holding that, esto the premises were dangerous, there was no duty incumbent upon the respondent either to exclude people therefrom or to give any warning of the risks therein.

3. The Lord Ordinary further erred in fact and law by sustaining the statutory defence of willing acceptance of risk, in terms of section 2(3) of the 1960 Act.

4. Finally, the Lord Ordinary erred in his assessment of contributory negligence. The appellant submits that there was no such negligence, which failing, the Lord Ordinary's assessment thereof at 50% was excessive.

5. Accordingly, the Lord Ordinary's interlocutor ought to be recalled and decree granted in favour of the appellant in the sum of £28,900 or such other sum as the court thinks fit."

Statutory Provisions

[4] Section 1 and 2 of the 1960 Act are in the following terms:

"1. Variation of rule of common law as to duty of care owed by occupiers

(1) the provisions of the next following section of this Act shall have effect, in place of the rules of the common law, for the purpose of determining the care which a person occupying or having control of land or other premises (in this Act referred to as an "occupier of premises") is required, by reason of such occupation or control, to show towards persons entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them and for which he is in law responsible"

(2) and (3) (These provisions have no bearing on the present case.)

"2. Extent of occupier's duty to show care

(1) the care which an occupier of premises is required, by reason of his occupation or control of the premises, to show towards a person entering thereon in respect of dangers which are due to the state of the premises or to anything due or omitted to be done on them and for which the occupier is in law responsible shall, accept in so far as he is entitled to and does extend, restrict, modify or exclude by agreement his obligations towards that person, the such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.

(2) (This provision has no bearing on the present case.)

(3) nothing in the foregoing provisions of this act shall be held to impose on an occupier any obligation to a person entering on his premises in respect of risks which that person has willingly accepted as his; and any question whether a risk was so accepted shall be decided on the same principles as in other cases in which one person owes to another a duty to show care"

Lord Ordinary's approach

[5] The Lord Ordinary's finding that the defender was an occupier for the purposes of the legislation is now not challenged. Regarding the substantive question of fault, the Lord Ordinary first asked himself whether the plank was properly to be described as a danger and then asked whether there was any failure by the defender to take reasonable care. He considered dicta from Wheat v E. Lacom & Co Limited [1966] 1 QB 335 and concluded that the fact that a person using the premises might not take sufficient care for his safety could not make a danger of something that was not otherwise dangerous. He then said:

"[28] Applying that to the circumstances of the present case, all that happened was that the pursuer slipped on a plank. In so far as it was slippery because it was wet, its slipperiness was obvious for all to see; and, indeed, the pursuer had not only stepped onto it several times over a period of a few days but had even noticed, before stepping onto it, that it looked slippery. There was no hidden danger, nor anything to disguise any hazard from the pursuer. It was not dark. Any risk associated with using it as a pathway was there for all to see. The pursuer could have avoided stepping onto it. In short, there was nothing to make the plank a danger against which the defender should have taken precautions."

[6] The Lord Ordinary went on to consider the issue of fault by looking at what precautions the defender might have been expected to take, assuming that the wet plank was to be regarded as a danger. Before the Lord Ordinary, this issue had been complicated by issues relating to the nature of the package; whether it was something the defender was expecting; and whether she was responsible for a specific arrangement that the pursuer would return to the premises to leave the parcel somewhere at the back of the house. However, before us, it was not disputed that the case should be approached on the basis that the defender should have foreseen that some people, other than the builders, might properly enter the premises. Two grounds of fault appear to have been relied on before the Lord Ordinary: (i) a failure by the defender to have the site fenced off, or (ii) a failure by the defender to place a notice at the entrance to the site warning of the need to take care when walking about. The Lord Ordinary dealt with these issues in the following terms:

"[30] While I can accept that the requirement to take reasonable care may be informed by the likelihood of people coming onto the premises and being exposed to the danger, I do not think that that helps the pursuer in the present case. I reject the submission that steps should have been taken to exclude the pursuer, or others, from the site. An occupier is only required to take reasonable care. In addition to the likelihood of people coming onto the premises, what is reasonable will depend upon, among other things, the seriousness of the risk posed by the danger on the premises. The question of what precautions require to be taken requires to be decided in the light of common sense having regard to all the circumstances: McGlone v British Railways Board, per Lord Pearce at page. 17. If the danger was posed by a piece of machinery with moving parts, or was a danger of serious injury or death, then it might well be that the steps required of an occupier would involve putting up some barrier to entry to the site, or fencing off the machinery, even if the danger was easily avoided by the exercise of ordinary care by a person entering on the premises. But, in the present case, not only was the danger easily avoided by the exercise of ordinary care, but the risks, if any, posed by the danger were small. At the worst, a person might trip or slip on a plank or some uneven surface. In such circumstances, it would clearly be sufficient for the occupier to put up a notice warning of the danger and emphasising the need to take care. But, if the hazard is apparent, what would be achieved by such a notice? Here, any danger posed by the plank walkway was obvious. Wet planks may be slippery. A notice is not required to point that out. Such dangers, if they be dangers, send out their own warning. The pursuer observed that the plank looked slippery. What more would a notice have told him? Accordingly, I reject the submission that the defender was required, in the exercise of any duty under the Act to take reasonable care, to exclude people from the site or to put up a notice warning of whatever danger was posed by the plank walkway."

He concluded, at paragraph [32]:

"Nonetheless, both because the wet plank did not constitute a danger, and because, even if it did, there was no requirement on the defender to exclude people from the site or give warning of the risks, I hold that the pursuer's claim fails."

Submissions for the pursuer and reclaimer

[7] Mr Middleton, for the reclaimer, challenged the Lord Ordinary's conclusion that a state of affairs which was obvious was not a danger. This, he said, could not be correct. He contended that a feature of the premises was either dangerous or it was not. Dangerous characteristics could not be negatived by the fact that they were obvious. In the present case, the fact that the plank was wet and slippery was sufficient to constitute a danger.

[8] As part of a submission that a broader approach to the existence of danger on the premises should have been followed counsel submitted that the very fact that the defender averred that there had been a notice on scaffolding, "Construction site. Keep out", showed that the premises were considered to be dangerous. He contended that permitting access to dangerous premises was in itself sufficient evidence of fault and that it was, accordingly, unnecessary to look at the precise circumstances of the accident. He made reference to dicta in Hughes v Lord Advocate 1963 SC (HL) 31 at 38, 47 and 48. Counsel also submitted that the Lord Ordinary had erred in confusing the issue of existence of danger with the duty to do something about it. The Act required identification of an objective danger as an entirely separate step in the process. The fact that it might be reasonable to take no steps to guard against the danger did not mean that there was no danger. The Lord Ordinary should have held that the wet, slippery plank was a danger. Plainly the defender had an awareness of the dangerous state of the premises as a whole; she had a duty to have regard to the wider risk of injury that arose from the site taken as a whole. Counsel stressed that this was at the heart of the reclaiming motion. Liability for want of reasonable care was not limited to situations where the defender should have foreseen precisely what actually happened. She could only escape liability if the damage that transpired could be regarded as different in kind or type from that which was foreseeable: Hughes, supra. The premises were in effect a building site. This carried a risk of danger. It was enough if the risk of the accident which happened fell within the description of a "wider [foreseeable] risk of injury": Jolley v Sutton Londonborough Council 1 WLR 1082 at page 1091 G-H. It was foreseeable that persons entering upon the site might suffer from some form of tripping or slipping injury. Away from the planks the ground was muddy with puddles of standing water. Accordingly, an accident was foreseeable and the defender should have fenced off the site or erected a warning notice. The Lord Ordinary had failed to consider that wider risk. Further, he had not considered the risk of serious injury such as spinal injury which could arise from a simple trip or slipping accident.

[9] In any situation where there was a risk, the fact that effective precautions could easily have been taken was an important factor in the generation of a duty to take such steps. If the duty could have been fulfilled by the erection of a sign, the defender had failed. The submission was put explicitly in the written note of argument in the following terms:

"There was a duty incumbent upon this defender to take action to [i] exclude persons from the building site, which failing [ii] warn persons coming thereon of the dangers therefrom. Either would probably have avoided the accident"

Submission for the respondent

[10] Ms Davie contended that, on the evidence, it could not be found that there was a danger due to the state of the premises or something done, or omitted to done, thereon. The pursuer slipped on the plank and the plank was wet. While it was accepted that the Lord Ordinary could be correct to say that a plank may be slippery when wet, this was no more than a possibility. The pursuer had not shown why the plank presented a danger. But, in any event, he had not shown why, if it was a danger, the accident was one for which the defender was responsible. The pursuer himself, in full awareness of the condition of the plank, was not concerned that there was any danger. Likewise, the defender had never had a problem walking on the wet planks. The pursuer had not shown that there was a danger of which the occupier knew or ought to have been aware. Reference was made to Wallace v City of Glasgow District Council 1985 SLT 23; McQueen v Ballater Golf Club 1975 SLT 160; Falconer v Edinburgh City Transport Longstone Social Club 2003 Rep LR 39; Porter v Scottish Borders Council [2008] SCOH 163.

[11] Counsel made submissions regarding the proper approach to section 2(1) of the 1960 Act. A linear approach was not necessary. In other words it was not necessary first to identify danger and only thereafter to consider reasonableness. The proper approach was always a question of the circumstances of the particular case. There might be circumstances where it could simply be said that, despite an accident having occurred, there was no identifiable danger arising from the state of the premises. But, usually, a simultaneous assessment of the various elements would be more useful. Even if a potential danger could be identified, this did not automatically mean that some step had to be taken to show reasonable care. It depended on various factors including the level of potential risk. The risk implicit in a particular danger was simply part of the consideration of what care was reasonable in the circumstances. The defender was a normal householder relying on contactors who appeared to be doing a decent job. It was difficult to see what a warning sign would have added to the pursuer's knowledge. Counsel submitted that, looking at the level of risk presented by the wet plank, consideration had to be given to what steps would have been reasonable in the whole circumstances. The accident happened in daylight when there was no difficulty with visibility. The pursuer was familiar with the locus. The level of risk was low. It was clear that anyone entering on the premises was entering a building site. A plank walkway had been provided. The planks were wet. This was all known to the pursuer. Great care had now to be taken to avoid judging the matter with hindsight.

[12] In addition to the submissions summarised above we heard submissions for the pursuer on the concept of willing acceptance of risk. However it was not disputed that the provisions of section 2(3) of the 1960 Act were to be treated as a statutory equivalent or restatement of the common law concept of volenti non fit injuria. Ultimately, Ms Davie did not dispute that this meant more than mere awareness of risk. There had to be something to justify an inference that the pursuer had agreed to accept a lack of reasonable care; in other words, that he had consented to run the risk of injury at his own expense. She accepted that in the present case there was probably insufficient to establish this.

Discussion

[13] The first ground of appeal raises a potential question as to the proper approach to the 1960 Act. We are inclined to think that there may be some force in the respondent's submission that it is not essential to approach section 2(1) in a "linear" fashion: first identifying the relevant danger and only thereafter considering whether the occupier has shown a reasonable degree of care in regard to it. However, Ms Davie did not attempt a full analysis of the statutory provisions and their relationship with the underlying common law, presumably on the view that it was not necessary to do so for the purposes of the present case. We agree with that view.

[14] However, it is well understood that the aim of the 1960 Act was to define the degree of care required of an occupier in place of the complex situation by then arrived at under common law. The established need to identify categories of persons entering upon premises had led to fine distinctions which made little practical sense. The fundamental aim was to restore a broad test of reasonableness. The purpose of sec 2(1), as is stated by sec 1(1), is to establish the degree of care to be shown by an occupier. We do not consider that the descriptive provisions of sec 2(1) fall to be read as intended to effect a radical change to the concept of fault in so far as affecting occupiers. The familiar concept of reasonable foreseeability clearly underlies fault in this context.

[15] The Lord Ordinary read the Act as intended to deal not only with the nature of the duty but with its existence:

"The Act lays down two preconditions to the existence of a duty of care owed to a person coming onto premises. First, the person alleged to owe the duty must be an "occupier" of the premises. Secondly, there must be a danger on or at the premises which is due to the state of the premises or something done or left undone there." (para 22)

[16] He did not deal explicitly with the issue of reasonable foreseeability but can be seen to have tackled the problem implicitly by treating the word "dangers" not only as if it meant "physical danger" but as if the words "reasonably foreseeable" were also to be implied. In the present case, we have reservations as to whether it can properly be said that there was no relevant danger. Scaffolding planks had been placed on the ground as a walkway and their surfaces were wet. That was an aspect of the state of the defender's premises. Wet planks may afford less traction than dry ones and to that extent can be slippery. The pursuer slipped on such a plank. But it is unnecessary to express any further view as to this or the proper construction of the statutory provisions. We are aware of some academic discussion of the matter and think it preferable to leave this until it arises sharply for decision. The present case can be decided by reference to the Lord Ordinary's alternative approach to the facts and we need not deal explicitly with the first ground of appeal. We are satisfied that the course followed by the Lord Ordinary when he went on to consider whether, making the assumption (contrary to his earlier conclusion) that the wet plank was to be described as a danger, the defender was at fault was, on any view, consistent with a proper application of the section.

[17] The precautions said to have been required of the respondent are addressed in the second ground of appeal. These were said to consist in a duty either to exclude people or to give warning of the dangers on site. We think it clear that the case must turn on the weaker of these two alternatives. However, at the hearing before us, Mr Middleton came to rely essentially on the proposition that the focus required to be on the premises as a whole; there should have been a notice telling people to keep out of the site. The premises were effectively a building site and building sites are "dangerous places".

[18] There was some suggestion that it had always been the pursuer's position that the notice required was not one which warned of danger but one which sought to exclude people from the site. There was reference to such a notice by the defender in her pleadings but it is important to note that this reference was in the context of assertions by the defender as to the state of the site at a stage when it had scaffolding erected on it. The defender, of course, had no direct knowledge of when the accident happened. Although, in course of the evidence, there was some discussion of scaffolding and the notice on it, the pursuer was clear that there was no scaffolding at the time of the accident. Scaffolding would have raised different issues relating to risks from falling, or dropped, tools or building materials or other hazards associated with working on or from scaffolding. It might well have been sensible to advise potential visitors not to enter at that time. That, however, is not relevant to the pursuer's case.

[19] In relation to the walkway, there is nothing in the material before us to suggest that the notice desiderated by the pursuer at the proof was anything other than a warning of the need to take care when walking on it. Although the main case of fault made in the pleadings was that it was the defender's duty "to take reasonable care to provide a safe means of access" to her property, the Lord Ordinary clearly understood that the case being advanced before him was of a duty to display a notice warning of a danger. We understood Mr Middleton modestly to suggest that this was a misunderstanding attributable to his inadequate advocacy. But the grounds of appeal and the written notes of argument are not ambiguous. There is no doubt that the fault apparently being relied on as far down the line as at the outset of the hearing before us was one of failure to display a warning rather than a prohibition against entering the site.

[20] While there may be circumstances where a pursuer would be able to rely on a new ground of fault first explicitly advanced in course of an appeal or reclaiming motion, it will rarely be appropriate to permit this and then only in the clearest case. The Court will be slow to draw inferences on matters which could not properly have been thought to have been in contention when evidence was led. The risk of prejudice to a defender is obvious where any attempt is made to found on matters which were not explored at first instance. We are satisfied that the attempt to rely on a need for complete exclusion from the site comes too late. In any event, we do not think it well founded.

[21] The contention that the defender had a duty to exclude people from the site now turns on the proposition that the site as a whole was dangerous and, in particular, that as it presented a danger in the sense of a general risk of slipping or tripping, it was unnecessary to show any particular risk arising from the specific circumstance of a slip on the walkway. We think the short answer is that such an argument does not accord with common sense. The precaution taken to avoid risk of injury from the underfoot conditions at the site due to the building works was to provide a walkway. It had been regularly used by the defender and on several occasions by the pursuer, all without difficulty. There was no need for any visitor to go into the rest of the site and nothing to suggest that there was any likelihood of anyone doing so. Put shortly, the obvious precaution to be taken in the circumstances was indeed to provide a reasonably safe means of access by means of a walkway. The defender understood that this had been done. We are readily satisfied that the issue of whether or not the defender showed reasonable care must be considered in the light of the nature and likely use of the walkway. Conditions elsewhere on the site did not create any wider risk in that respect.

[22] The reclaimer founded on dicta in Hughes v Lord Advocate and Jolley v Sutton London Burgh Council. But, dicta must be read in context. In both Hughes and Jolley the court stressed that cases had to be analysed on their own facts: see Lord Steyn in Jolley at p 1089 E-F. The facts of these cases are well known and need not be repeated. They were very different from the present. His Lordship later went on:

[23] "The scope of the two modifiers - the precise manner in which the injury came about and its extent - is not definitively answered by either the Waggon Mound No 1 or by Hughes v Lord Advocate. It requires determination in the context of an intense focus on the circumstances of each case.": at p 1090 D-E.

[24] The principle which can be derived from these cases is that there may be circumstances where an accident is of a type which can be accepted as falling within the scope of a particular risk, even where its particular mechanism could not be foreseen. We do not accept that there is any principle that, because it is possible to identify a wide risk and give it a broad label which covers the accident in question, that accident will necessarily be regarded as foreseeable. Where a walkway has been provided, it is dangers arising from use of that walkway which must be addressed: not the dangers to people walking in other parts of the site.

Willing acceptance of risk

[25] As we noted above, there was ultimately no dispute about the third ground of appeal. The application of the concept of volenti non fit injuria is not free from difficulty but it is sufficient for the purposes of this case to say that Ms Davie conceded that there was insufficient evidence to justify an inference that the pursuer willingly consented to lack of reasonable care by the defender.

Contributory negligence

[26] There may be circumstances in which the court at first instance would be entitled to say that, on any view of the matter, there was significant contributory negligence. But, where the court has been satisfied an accident was not caused by fault of the defender, an attempt at precise apportionment, balancing fault of pursuer against fault of the defender, will seldom be appropriate. In the present case, it is not clear why the Lord Ordinary felt constrained to select a 50% apportionment. Having regard to the general terms of his opinion he might have been expected to conclude that the defender should only bear a more modest share. However, absence of fault by the defender does not, of itself, mean that the accident was due to fault by the pursuer and it may be said that, on the material before us, we are not confident that the pursuer can be said to have failed to take reasonable care for his own safety.

Decision

[27] For the reasons given above, the reclaiming motion fails and we adhere to interlocutor of the Lord Ordinary assoilzing the defender.