Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 3
PD194/13	OPINION OF LADY SCOTT in the cause DRUMMOND COX Pursuer; against DUNDEE CITY COUNCIL Defenders: ________________

Pursuer: Love; HBJ Claims Solutions LLP

Defender: Laing; Simpson & Marwick

16 January 2014

Introduction

[1] On a cold wintery Saturday on 21 February 2010, the pursuer attended a rugby training course at the grounds of Panmure Rugby Club, Dundee. Participation on the course that day was a necessary part of gaining a qualification to coach junior rugby. The course was organised by the defenders and on that day conducted by Mr Barry Crookston, as part of his duties in the course of his employment as a rugby development officer with the defenders.

[2] After an indoor presentation the course involved practical training outside on the grounds of the club. This involved a warm up followed by "dynamic skills exercises" such as games of touch rugby or "five pass". The pursuer was in possession of the ball and in order to avoid contact from players coming towards him he side-stepped, but when planting his foot on the ground to do so he heard a crack and fell to the ground. He hobbled off the pitch in pain. The course continued without him.

[3] It was not immediately apparent how serious the injury was. On subsequent medical examination he was found to have sustained a fracture to the fifth metatarsal of his left foot which required surgery and the insertion of a screw. This was later removed. He has restricted mobility and has sustained considerable pain. Quantum was agreed between the parties at £30,000.

[4] This case turns on a narrow dispute of fact. There is no disputed issue of law. The defenders conceded that if I were to accept the evidence of the pursuer's witnesses regarding the underfoot conditions of the outside training ground being unsuitable for the exercises being conducted, then they are vicariously liable for the injury to the pursuer.

[5] The underfoot conditions was the essential dispute in fact between the parties. There was no real dispute that if the condition of the ground was as spoken to by the pursuer's witnesses, then that would present an obvious risk of injury which ought to have been noted by a properly conducted risk assessment by the defenders' employee Mr Crookston and which ought to have been remedied or guarded against. There was no dispute that the injury sustained by the pursuer was consistent with his evidence as to what happened. There was no suggestion of contributory negligence.

The Evidence

[6] Evidence was led by the pursuer Mr Cox and from four other members of Panmure Rugby Club attending the training course, from a Mr Colin White experienced and qualified in the conduct of risk assessment in rugby training and from Mr Edward Dunstan consultant orthopaedic surgeon who treated the pursuer. The defenders led and relied upon the evidence of the defenders' employee, Mr Crookston, who conducted the training course and from Mr Colin Whitaker, who assisted Mr Crookston as a volunteer on the day.

[7] The grounds at Panmure Rugby Club consisted of two playing pitches for the first and second fifteen teams respectively. Coming out of the changing rooms in the clubhouse the first fifteen pitch faces the onlooker, running left to right. The second fifteen pitch runs parallel to the first pitch and there is an area of ground with grass situated between. Within this gap between the pitches, there is an area of ground used for cricket, which contains, toward the left hand side, a cricket square, which is normally roped off.

[8] Whilst there was no dispute that the area used for the conduct of outside training exercise was located, at least in part, within the area between the two rugby pitches, there was considerable variance and confusion as to whether this area was located within the cricket area, or the cricket square, or in an area situated some distance to the right of the cricket area. The evidence from the pursuer and his witnesses varied to a degree, but all concurred that the area involved was to the right of the cricket area and that it partly encroached upon the first fifteen pitch.

[9] The evidence from all the witnesses suggested that the weather conditions were wintery but fair and cold or very cold. Most witnesses spoke to "frosty" conditions but varied as to whether there was frost over all the ground, or the pitches, or parts of same.

[10] There was evidence from the witnesses with the requisite experience - Mr White, Mr McQueen and Mr Whitaker - as to the requirements for and content of a risk assessment carried out by a coach in conducting a training session or a game. All of these witnesses had played rugby for many years, had coached and held various qualifications in coaching. As a result they had conducted many such risk assessments. I was particularly impressed with the evidence of Mr White who was clear and took care in giving his opinion.

[11] All of these witnesses agreed that prior to any training session a risk assessment required to be carried out in respect of any hazards or risks of injury presented by the training facility involved. For an outdoor rugby training exercise this included an assessment of the underfoot conditions. This was achieved in an inspection by walking the area intended for use - quite how much of the area was expected to be covered was not clear. Mr McQueen stated in his opinion it was better to use aluminium boots to test the ground during the assessment. Mr White agreed although he suggested that this may not be necessary. Mr White emphasised that if there was any doubt, then the ground should be tested as to whether as a matter of fact it would "take a stud". Mr White also gave evidence that in the conduct of such an assessment there was usually a risk assessment form completed. Such a form should be completed before the training session although it could be done afterwards. The purpose of such a form was not only to make a record of the assessment made, but also for use as a checklist when carrying out the assessment.

[12] Importantly, all agreed that if there were any parts of the training area which were frozen or uneven and rutted or both then the ground was unsuitable. Further if the ground could not "take a stud" it was unsuitable or unusable. In such a situation the trainer required to consider what steps needed to be taken to remove the risk of injury presented. This may well involve either moving or cancelling the exercise. In addition, all agreed that if such areas of frozen or uneven ground existed, they should be obvious and identified in the course of a properly conducted risk assessment. Mr White suggested that if such areas existed and were missed, then the risk assessment could not have been properly conducted.

[13] On completion of the inside training session, the participants went outside to the area designated by Mr Crookston, in order to undertake what were described as "dynamic skills training" which included games of touch rugby or "five pass" rugby. These games or exercises were preceded by a warm up. They involved varying degrees of movement, from slow to fast and involved passing the ball between players with the aim of finding space and avoiding contact. To this end players needed to change direction and used side steps in their movement. Mr McQueen described the exercises as involving "heads up" rugby whereby players kept their eye on the ball and other players and not on the ground underneath. The impression given in all of this evidence was that whether or not the players were running or walking, the movements taken to avoid contact or pass the ball were fast movements.

[14] The pursuer gave evidence that prior to going outside he was told by Mr Crookston to wear trainers. Mr Crookston said he told the participants to get their outdoor kit on and Mr Whitaker gave evidence that the participants were told to get their boots on. It was established in evidence that rugby boots had aluminium studs which were stronger than trainers with moulded plastic studs attached. Rugby boots should be worn for play but were not suitable for underfoot conditions where the ground was hard or frosty and where as a result there could not be traction. Mr Crookston initially said he was wearing trainers, then suggested he was wearing trailer shoes and that what was worn had moulded studs. The pursuer and Mr McQueen wore trainers, Mr Hill, Mr Wight and Mr Docherty wore trainers or boots with moulded studs. Mr Whitaker wore rugby boots consistent with his instructions to the course participants.

[15] There was some evidence that one participant, when going outside, queried whether the playing conditions were suitable with Mr Crookston. Although there were some inconsistencies in this evidence, Mr Hill stated in his evidence that he had raised the ground conditions with Mr Crookston and Mr Crookston confirmed that he had been asked by one participant whether the conditions were suitable.

[16] All the witnesses gave evidence regarding the underfoot conditions in the outside training area. There was undisputed evidence that a recognised test of underfoot conditions was whether or not the ground could "take a stud". That is, whether an aluminium rugby boot stud could penetrate the ground and achieve traction. The pursuer suggested there was frost all over the club grounds and that in the outside training area the ground was "exceptionally hard" and could not "take a stud" . It was also uneven and rutted where frozen mounds of earth had come up. It was his view that when he planted his foot in a side step the ground was hard and uneven underfoot, whereby he fell and sustained the injury.

[17] Mr Hill stated there was frost on the pitches and the underfoot conditions were inconsistent. Some areas were rutted and uneven. However he also stated his studs could penetrate the ground. Mr Queen on the other hand stated the ground could not take a stud as it was too hard. He was of the opinion the underfoot conditions were not suitable. Mr Wight said he was of the view the ground would not take a stud which is why he wore moulded trainers. He also suggested the ground was inconsistently uneven and had ruts. He felt at the time there was a risk of injury but being a junior club member did not complain. His view was reinforced with hindsight. Mr Docherty described the underfoot conditions as mixed. There were areas which were still frosty and rutted and such bits were, in his opinion, dangerous.

[18] In direct contrast to this body of evidence, the defenders' witnesses gave evidence that the underfoot conditions were suitable. Mr Whitaker said on his arrival at the club he was told by Mr Crookston that he had looked at the outside conditions and that whilst the area of ground outside the clubhouse was not suitable, an area to the right hand side of the cricket area was usable. Mr Crookston also told him that he had completed the risk assessment form. At some point thereafter Mr Whitaker checked the area by walking over it in boots. He was unable in evidence to identify clearly where this area was, but confirmed that the area he checked was the area subsequently used for the training exercises. He stated that the underfoot conditions in the area used were suitable, firm but took a stud and were not frozen or rutted. He recalled that during the exercises someone fell over and Mr Crookston dealt with it.

[19] Mr Crookston gave evidence that this was the first time he had led such a training course. He had in 2010, qualifications in coaching at SRU level 1 and UKCC level 1. He was unclear in his evidence what training he had received in respect of risk assessment prior to conducting this course. The record of his training programme with the defenders which was produced (6/43 of process) had marked (at page 11) that at this time, he was on the waiting list for same. However, in his evidence he stated he had received training for the conduct of risk assessment, but could not be clear when this was. Certainly subsequent to this course he had obtained qualifications which involved risk assessment. In general terms he agreed that if any part of an area used for training was frozen or uneven or rutted, then it would present a risk of injury and was unsuitable for the kind of exercises involved in the course. Further he agreed that if such unsuitable conditions existed and were not found by a risk assessment, then that assessment would be inaccurate.

[20] On the day in question he gave evidence that he had inspected the outside grounds and he had conducted a risk assessment prior to the arrival of the course participants. He had looked at the pitches and concluded the first fifteen pitch was unsuitable. He looked at the cricket area between the two pitches. He identified an area to the left hand side of the cricket square as suitable. He later suggested this area was within the fenced off cricket square. He accepted that in using this area the club "would not be too chuffed". He assessed the risk by walking the area. Initially he said he walked it wearing trainers, then he said he wore trailer shoes with a rugged sole and with moulded studs. He suggested if he were taking part in the exercise he would have worn boots with studs. He was clear in his evidence that the training area he identified was a good playing surface and no part was frozen, uneven or rutted. He completed the risk assessment form (7/2 of process) after the course was completed. He could not remember if he had told Mr Whitaker that he had completed the forms. He might have said to Mr Whitaker that the first fifteen pitch was rutted.

Discussion

[21] I found the pursuer and all the witnesses led by him both credible and reliable, with one exception. I did not accept the pursuer's evidence that he had been told by Mr Crookston to wear trainers, as this was inconsistent with what the other participants understood and was not supported by any other evidence. So too, his description of the ground as "exceptionally hard" may have been exaggerated. Otherwise however, on the relevant matters of fact I found that the evidence of the pursuer and the other course participants cohered with each other and was corroborative in respect of the weather conditions, the area of the grounds used for the outside training exercise, the nature of those exercises and crucially the underfoot conditions.

[22] Whilst there was some variation on the details, to be expected given the passage of time, generally I found the body of evidence from these witnesses wholly consistent. In particular I accepted the evidence that this course took place on a cold and frosty winter's day. I accepted that the area used for the exercises was located between the two pitches to the right of the cricket area and part of the area used encroached upon the first fifteen pitch. This latter point I viewed as significant in that all the witnesses, including Mr Crookston accepted that the first fifteen pitch was unsuitable for use.

[23] Finally I accepted the evidence that the ground used, at least in part, was too hard or frozen, would not 'take a stud' and was uneven or rutted. It was accepted by all the witnesses qualified to assess risk - namely Mr McQueen, Mr White, Mr Whitaker and Mr Crookston - that any part of an area which was too hard or uneven or rutted rendered the whole area unsuitable for use and presented a risk of injury.

[24] It is true, as the defenders pointed to in submissions, that no-one walked off the ground and no-one made any complaint at the time. However, at the same time, all the participants were volunteers following the lead given to them and they all wanted to complete the course in order to qualify. Further, I formed the impression that playing rugby was viewed as a necessarily risky business and such complaint would prevail against the existing culture.

[25] In any event, there was evidence that Mr Hill had queried the suitability of the conditions and this was confirmed by Mr Crookston. It was also suggested that the pursuer's witnesses were not truly impartial, given their common membership of the same rugby club. However there was no suggestion of collusion and I formed the impression that all these witnesses were doing their best to tell the truth.

[26] I did not find the evidence of Mr Crookston at all reliable. He was vague about and unable to recall matters of substance, such as when he received risk assessment training prior to this event, or where and exactly how he carried out his risk assessment of the grounds. He gave inconsistent evidence about the location of the area he deemed suitable for use. His evidence that the area he chose was within the cricket square, I did not find credible. The other evidence suggested that this area was out of bounds and common sense suggests this was inherently unlikely.

[27] I was not convinced by Mr Crookston's evidence that he had carried out a thorough risk assessment. He gave very little detail about testing the ground, he did not check the ground would take a stud by using rugby boots and he was inconsistent about what shoes he wore. His evidence that he told the participants to wear boots, did not sit well with his wearing some kind of trainer or trailer shoe, when carrying out the risk assessment. He did not complete the risk assessment form in the way recommended by Mr White - that is, using it as a checklist when conducting the assessment and completing it before commencement of the training session. Finally whilst he asserted he had undergone risk assessment training he could not say when and could not explain the training programme (6/43 of process) which recorded that he was on the waiting list for training in risk assessment at this time.

[28] I was not surprised that the defenders in submissions sought principally to rely upon the evidence of Mr Whitaker and appeared to attach little weight to Mr Crookston. Mr Whitaker was a very experienced and highly qualified witness. But I also found his evidence generally about the events at this training course, vague and unimpressive. For example, he could not recall clearly the layout of the grounds or the area used for the training exercises, or when he carried out an inspection and he could recall little about the accident. In so far as he did describe the location of the training area this did not fit with the evidence of Mr Crookston.

[29] In contradistinction to the rest of his evidence Mr Whitaker said he had a clear recollection of carrying out a risk assessment and that the area used could take a stud and was not uneven or rutted. In other relatively minor respects his evidence did not fit with that given by Mr Crookston -for example in what Mr Crookston said about completing the risk assessment forms. I was not convinced in the context of the overall vagueness of his evidence, that Mr Whitaker could be relied upon in respect of this crucial issue.

[30] In any event, I accepted the body of evidence relied upon by the pursuer which I consider gave a consistent and coherent picture of those conditions. This view, combined with these separate concerns over the reliability of the evidence relied upon by the defenders, lead me to reject the evidence of Mr Crookston and Mr Whitaker and reach the conclusion that the underfoot conditions were frozen, would not take a stud and were also uneven or rutted

[31] All the witnesses qualified to give an opinion on the issue of risk assessment generally agreed on what was required and that either frozen ground that would not take a stud or ground that was uneven or rutted, would not be suitable for training exercises and present an obvious risk of injury. They also all agreed that any risk assessment which failed to identify such conditions could not have been accurately or properly conducted.

Decision

[32] Accordingly having concluded on the evidence that these conditions existed at the relevant time, I was satisfied that such conditions present an obvious risk of injury and the risk assessment undertaken here by the defenders' employee, in the course of his employment, was inaccurate or inadequately conducted.

[33] I was also satisfied on the evidence as to cause. The pursuer's evidence of attempting to side step and planting his foot on the ground, immediately hearing a crack and then falling to the ground was consistent with hard and uneven or rutted conditions underfoot. According to the undisputed evidence of Mr Dunstan this description was entirely consistent with the nature of the injury sustained.

[34] I therefore find the pursuer has proved his case and find the defenders vicariously liable for damages and for payment to the pursuer of the agreed sum of £30,000 . Said sum being inclusive of interest to 26 November 2013 and net of any liability that the defenders may have in terms of the Social Security (Recovery of Benefits) Act 1997. I further find the defenders liable to the pursuer for the agreed sum of £14,088.47 as representing payments received by the pursuer while he was absence from work.

[35] I reserve the question of expenses meantime.