Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 76
PD836/12	OPINION OF LORD BOYD OF DUNCANSBY in the cause LINDA MARY GILLIE Pursuer; against SCOTTISH BORDERS COUNCIL Defenders: ________________

Pursuer: Hajducki, QC; Heaney; Allan McDougall

Defender: Cowan, Solicitor Advocate; Simpson & Marwick

17 May 2013

[1] The pursuer is Mrs Linda Gillie. For the past 13 years she has been employed by Scottish Borders Council, the defenders, as a janitor at Galashiels Academy. On 12 May 2009 she fell on the stairs in the school. She was taken to hospital having sustained injuries in the fall. She was off work for some time and unable to resume her full pre-accident duties until October 2010. The pursuer claims that the accident occurred as a result of the defenders' breach of regulation 12(3) of the Workplace (Health, Safety & Welfare) Regulations 1992. The parties agreed damages of £16,000 to the date of proof. Accordingly the proof proceeded on the issue of liability alone.

[2] There is a long history, some may say tradition, of sixth form pupils playing pranks on their last day in school. The court heard evidence that this affected schools in the area of the defenders including Galashiels Academy. It may also occur in other parts of Scotland. The day is known as "prank day" or "muck up day". In Galashiels Academy it took place on the last day in which the sixth form students were in school before they went on study leave.

[3] In the years before Mrs Gillie's accident there was evidence that pranks included the throwing of a variety of food stuffs including eggs, spaghetti sauce, yogurt and flour at the outside windows, putting washing up liquid down toilets, placing cellophane on toilet seats and smearing black shoe polish on toilet seats, throwing water balloons, using supersoakers, moving lockers against doorways so that people could not get out, putting sardines and dirty nappies in lockers, placing fish in the library and setting off the fire alarm. It was also suggested that on one occasion a tyre had been thrown down a stairwell.

[4] In May 2009 the last day for sixth form pupils before examine leave was 13 May 2009. However on that day a school trip for sixth formers had been arranged to M & D'S theme park. Accordingly their last day in the school building was 12 May 2009.

[5] At around 10.30am the pursuer was distributing a newsletter around each of the classrooms. She started on the third floor of the main building. There she met one of the science teachers, Miss Hall, who told her that Vaseline had been smeared on door handles and condoms had also been placed over handles. The pursuer said that she would clean it up. A little later her attention was also drawn to Vaseline on the banister on the stairs going down from the first to the ground floor. The pursuer started to wipe the banister at the top of the stairs. As she did so her foot slipped and she fell four or five steps hitting a wall on the landing and causing her injury. Yvonne Smith, an additional needs assistant, heard the pursuer fall. She summoned help and the pursuer was assisted to a chair. Yvonne Smith checked the soles of the pursuer's shoes and found what she described as a petroleum based substance.

[6] The defenders accept the evidence that the pursuer slipped on Vaseline on the stairs. They also accept that in all probability it got there as a result of an act by sixth formers at the school as part of a prank. It was not clear whether the Vaseline was put on the stair deliberately or was spilled or dropped on the stair while being put on the banister. Mr Cowan, for the defenders, submitted that it was to be hoped that it was not deliberate but whether or not it was did not matter. The defenders accepted that on the evidence the pursuer slipped on Vaseline on the stairs which got there as a result of actions by a sixth form pupil or pupils at the school.

[7] The pursuer contends that the defenders are in breach of article 12(3) of the Workplace, Health and Safety at Work Regulations 1992/2004 which states:

"So far as is reasonably practicable, every floor in a workplace shall be kept free from obstructions and from any article or substance which may cause a person to slip, trip or fall."

[8] The defenders accept that the school is a workplace and the stair a traffic route. They further accept that prima facie there is a breach of the article insofar as there was a substance on the stair which might cause a person to slip. The defenders contend however that they are not liable to the pursuer as it was not reasonably practicable to keep the stair free from substances placed on the stair as part of a prank. They further accept that the onus is on them to demonstrate that it was not reasonably practicable.

[9] There was a broad area of agreement between the parties as to what is meant by "reasonably practicable" and the exercise to be undertaken by the court in assessing whether that defence had been made out. I was referred to a number of authorities, viz: Edwards v National Coal Board 1949 KB 704 per Tucker LJ at page 710 and Asquith LJ at page 712; Marshall v Gotham & Co Ltd 1954 AC 360 per Lord Reid at pages 372, 373; Mains v Uniroyal Englebert Tyres Ltd 1995 SC 518 per Lord Sutherland at pages 528, 530 and 531; Baker v Quantum Clothing Group Ltd 2011 UKSC 17 per Lord Mance at pages 1042-1045, paras.81-84 and Lord Dyson at pages 1058, 1059, paras.128 and 129; and Strange v Wincanton Logistics Ltd 2011 CSIH 65A and the Opinion of the Court given by Lord Eassie at paragraph 24.

[10] From these citations I take the following proposition. First, as conceded by the defenders in this case it is for the defenders to establish that it was not reasonably practicable to keep the stair free from the substance upon which the pursuer slipped; Lord Sutherland in Mains v Uniroyal Englebert Tyres Ltd at page 531. Secondly, the assessment of what is reasonably practicable involves a balancing exercise putting on one side the degree or quantum of risk against the sacrifice in terms of loss of money, time or trouble, per Asquith LJ in Edwards page 712. Lord Mance's comments in Baker, although obiter are also helpful:

"the criteria relevant to reasonable practicability must on any view largely reflect the criteria of the common law duty to take care. Both require consideration of the nature, gravity and imminence of the risk and its consequences, as well as the nature and proportionality of the steps by which it might be addressed, and the balancing of one against the other" (para. 82).

Thirdly, in the assessment of what is reasonably practicable it is relevant to consider whether or not the incidence and nature of the risk was reasonably foreseeable; Lord Sutherland in Mains at page 528 and Lord Dyson in Baker, para.128, page 1059. Fourthly, the assessment of what is reasonably practicable is ultimately a forensic one to be assessed by the court at a point immediately before the accident; Lord Eassie in Strange at para.24 and Lord Oaksey in Marshall at page 370 quoting with approval Jenkins LJ in the Court of Appeal.

[11] The pursuer's case rests on the fact that the accident took place on what was in effect a prank day. Mr Hajducki, for the pursuer, submitted that the defenders anticipated that something might happen on that day and reasonable precautions could have been taken to address the risks that that day posed. He submitted that it would have been an easy matter for the defenders to keep the stair free from substances on this one "long anticipated day".

[12] It appears from this submission that the pursuer accepts that the reasonable foreseeability of the risk is central to the issue in this case. Accordingly it is necessary to look in more detail at the nature of the risk and the steps taken by the defenders to address it.

[13] Apart from the pursuer and Yvonne Smith Mr Hajducki led Mr Edward Forrest, a fellow janitor at Galashiels Academy. For the defenders Mr Cowan led Mrs Kathleen Angus, now retired but at the time head teacher at Galashiels Academy, Christine Brown, now employed as a senior education officer with the defenders but at the time of the accident a depute head teacher there and Mr Ross Angus, another depute head teacher who also held that post in 2009. In general I had little difficulty with most of their evidence with the exception of that given by Mr Forrest. It was at times dogmatic and exaggerated though I had no reason to believe he was deliberately misleading the court.

[14] So far as the events of the day are concerned the pursuer gave evidence that sixth form pupils were wandering around the school, some in holiday mood wearing Bermuda shorts, t-shirts, hats and sunglasses. She was not asked for any greater specification on this point though it must have been before the accident. Mr Forrest also said that he had seen pupils dressed in that manner on that day. However shortly after the accident Mrs Angus, the head teacher, convened all the sixth formers together in order to investigate the cause of the accident. Christine Brown was also there. This meeting took place around 20 minutes after the accident. Mrs Angus was clear that all of the pupils were wearing school uniform and she was supported in that by Mrs Brown. Mr Hajducki speculated that maybe not all of the sixth form students were there but that was not suggested to either Mrs Angus or Mrs Brown.

[15] It should also be said that five sixth form pupils had identified themselves as possibly having been involved in the pranks that day but it was not clear from the evidence whether or not any had admitted responsibility for what had happened. There was also a conflict between Mrs Angus and Mrs Brown as to whether or not they had gone on the school trip the following day. It was not suggested that any of that group of five who met with Mrs Angus, Mrs Brown in the head teacher's office were not wearing school uniform.

[16] Accordingly while it may well have been that at some point some sixth formers had turned up at the school in casual attire, I am not satisfied that it occurred on that day. It may well have happened in previous years. The point may be minor but may also indicate the degree of discipline in the school at the time.

[17] Mr Forrest gave evidence that both the girls and boys toilets on the ground floor in the main building had to be closed on the day of the accident because of the mess made by sixth formers carrying out pranks. He said that the order to close the toilets came from senior management and he identified Mrs Brown as the person who may have given the instruction. Mrs Brown could not recall anything like that happening. Mrs Angus knew nothing about it. According to Mr Forrest the toilets were closed for about 2 hours.

[18] It may well have been that some additional cleaning was required to the toilets on that day, but I do not accept that the problem was anything near as serious as Mr Forrest suggested.

[19] Mr Forrest also gave evidence that sixth form pupils were told not to come in that day. That was not true; they had classes that day. He was adamant that the accident happened on the Thursday when it was in fact a Tuesday. He was reluctant to depart from that evidence. He said the Vaseline was widely spread on the stair and it was very obvious to the eye. That did not accord with other evidence. He said that he had to clean it up and was again adamant that it was on the stair between the first to the second floors whereas the accident happened on the stair from ground to first floor.

[20] So far as past events are concerned, potentially the most serious incident was spoken to by Mr Forrest. According to him on a previous prank day a tyre had been taken into school, carried up to the first floor and then taken up in the lift to the third floor. It had then been thrown down the stairwell, bouncing in front of him. No other witness spoke to such an event happening. When it was suggested to Mrs Angus that it might have happened, she was horrified immediately recognising the safety issues. She was quite clear however that she had never heard of such a thing happening. She was also clear that if it had been it would have been reported to her. I thought it particularly significant that the pursuer did not mention this incident. When asked when it happened Mr Forrest suggested that it was in 2006. It is difficult to be mistaken about such an event happening but I find it difficult to accept it in the absence of any other evidence. If it did happen I suspect it was well before 2006.

[21] The other major incident occurred in around 2005 when late at night all the outside windows of the school were splattered with eggs and flour. A major cleaning up operation was required. It was suggested that it took about 2 weeks and cost £2,000. It was assumed at the time that it was a prank by sixth formers, but it could have been done by anybody.

[22] The other incidents of pranks being played were as narrated above. However there was little attempt in the evidence to say exactly when such incidents occurred perhaps because in general they were more minor in nature, though of course they could well cause inconvenience and annoyance.

[23] Mrs Angus arrived as head teacher in 2004 having previously served as depute head at Earlston High School. There had been a similar problem at that school and she had been the depute responsible for sixth formers. When she arrived in Galashiels Academy in 2004 she was aware of a prank being played with cellophane having been placed over the boys toilet seat. She sought to change the culture taking ideas that had been developed at her old school. In particular she instituted a programme of social education where all sixth formers met together. They set up committees and all sixth formers had to serve on one of them. They organised events and activities, each one supervised by a member of staff. She increased the team of head pupils and had regular weekly meetings. They would inform her of the mood of the school and of problems that could be anticipated. She instituted an excursion to take place on the last day before exam leave, ie on what had hitherto been prank day. This took the sixth formers away from school on that particular day. They were told however that it was to be a reward for good behaviour throughout the year including prank day. The cost of the excursions was met mainly by herself. The first one was in 2006.

[24] These measures she said were very effective. She was not aware of any incidents between 2006 and 2009. Mrs Brown's evidence supported that of Mrs Angus regarding both the measures taken to address the problem and their effectiveness. The pursuer did not accept that the problem had gone away but was I think prepared to concede that the incidents were in decline. Mr Forrest said there had been no difference.

[25] I think it is probable that there continued to be some pranks played but they were far less serious or frequent than in previous years. The problem had been addressed but I am not convinced that it had entirely gone away. It appears that the school management anticipated possible problems on this day which suggests that they knew problems still existed. In their pleadings the defenders say, "On 12^th May 2009 the senior management team at the school were asked to be aware of the possibility of pranks being played, to be vigilant and to be present and visible in the school." When Mrs Angus gave evidence however she seemed unaware of this instruction. In evidence in chief she said that she did not think anything more could have been done. When asked why she replied that nothing untoward for that day could have been anticipated. The head team of sixth form pupils would have told her if anything was anticipated. It was only when the defenders' pleadings were pointed out to her in cross examination that her position shifted slightly but she still maintained that nothing untoward could have been anticipated that day. On the other hand Mrs Brown and Mr Angus both appeared to be aware of the instruction and the need to be extra-vigilant. On balance I am satisfied that there was an instruction to be vigilant but it is not clear who may have issued it.

[26] It is less clear how this instruction was to be carried out. There was in place a system of hall and stair monitoring during class changeover etc. to ensure pupil safety. Mrs Brown said that senior management patrolled corridors but that was done already. She said that she kept her timetable more flexible at this time of year so that she could be about more. Mr Angus said that there was no change in his routine. The pursuer and Mr Forrest both said that they did not see senior management around particularly on that day.

[27] I accept that the senior management team were aware of the possibility of pranks being played and were more alert and vigilant in going about their normal business. I do not think that it was anything more than on being on the lookout for mischief.

[28] It is easy to look back at this accident with hindsight and to say more could have been done. The pursuer sustained a nasty injury. It will be no comfort to say it could have been worse if a child had slipped while the stairs were full of children. Those who no doubt thought that this was nothing more than harmless fun did not think through the consequences.

[29] Mr Cowan for the defenders submitted that all that could have been done had been done. He submitted that there had never before been anything happen on the stairs. That is true. He also submitted that nothing had happened before which constituted a threat to health and safety. I do not entirely accept that submission. Certainly no one had been hurt or injured before but there is always a prospect of something going wrong. Such pranks by their nature disrupt to some extent the discipline and good order of the school.

[30] However, the school had identified the problem with prank day. They had instituted a series of measures to address the issue. They had tried to inspire a greater sense of responsibility through the social education programme. They had arranged the school trip to take place on the traditional prank day both to take pupils away from school and to act as a reward for good behaviour. While it is true that the trip may have displaced the prank day into the day before, the incidence of pranks had declined to such an extent that the head teacher was not aware of any occurring between 2006 and 2009.

[31] The school however did anticipate that there might be some problem on that day. However they could not know what form that might take. Mr Hajducki suggested that teachers or senior management should have been placed at the stairwell. They would of course have had to have stayed there throughout the day but in any event such a submission seems to be driven by the knowledge of hindsight. The court has to put itself in the position of the defenders immediately prior to the accident. At that point the senior management could equally well have anticipated that any prank may be played outside in the school grounds, in the toilets or at the lockers. It seems to me that the only way to be sure that nothing untoward happened would have been to closely monitor each sixth former all day. Such a move would have been inconsistent with the sense of responsibility that the school was attempting to engender in the pupils, would have consumed staff and time in a wholly disproportionate manner, may not in any event have been effective and may have shifted the problem to yet another day.

[32] In conclusion, I am satisfied that the placing or dropping of Vaseline on the stairs risks serious injury. However, in my opinion, the foreseeability of such an event occurring, as opposed to any other "prank" that day, viewed from immediately before the event was very low indeed. Against that the time and resources that would have been required to eliminate that risk over and above the measures that the defenders had already taken, was disproportionate to the risk. Accordingly in all the circumstances I am satisfied that it was not reasonably practicable for the defenders to ensure that the stair was kept free of the substance which the pursuer slipped on.

[33] The defenders had a plea of contributory negligence in the event that I found in the pursuer's favour. However Mr Cowan made it clear that this would only arise if I accepted Mr Forrest's evidence that the Vaseline was obvious on the stair itself. I did not accept Mr Forrest's evidence on this point. Accordingly if I had found for the pursuer I would have repelled the plea of contributory negligence.

[34] Accordingly I grant decree of absolvitor. I reserve the question of expenses.