Scottish Court of Session Decisions

At advising on 28th October 1982,—

LORD JUSTICE-CLERK (Wheatley).—The circumstances in which the pursuer sustained the injuries which gave rise to the present action are fully set out in the pleadings and in the Lord Ordinary's opinion, and as the parties to this reclaiming motion are agreed to accept the Lord Ordinary's finding thereon I find it unnecessary to repeat them.

Initially the pursuer laid his action against four defenders, namely (1) the Edinburgh District Council who are the owners of the flats where the accident occurred and whose statutory predecessors commissioned the erection thereof; (2) the present reclaimers who were the design architects of the flats; (3) the builders; and (4) the glaziers who were responsible for the glazing work in the panel through which the pursuer fell. On the morning of the proof the pursuer abandoned his case against the third and fourth named defenders, and after the proof was led the Lord Ordinary assoilzied the first-named defenders. The pursuer intimated well in advance of the hearing on the reclaiming motion that he was not challenging the Lord Ordinary's decision quoad the first-named defenders. That left the second-named defenders as the only defenders in the case, and from now on I shall simply refer to them as "the defenders".

The issues have been further restricted since junior counsel for the defenders informed the court when opening the case that not only were the defenders and the pursuer not making any attack on the Lord Ordinary's findings on how the accident happened but they were not making any attack on his findings on contributory negligence and damages. That leaves for determination the sole question whether the pursuer has established against the defenders negligence which was causally connected with the accident.

In considering the question the starting off point is the case of fault which the pursuer has tabled against the defenders in his pleadings. In a preamble to the duties which he adumbrates were incumbent upon the defenders he submits that the defenders ought reasonably to have foreseen that a person like the pursuer using the access passageway and the balcony either alone or together with one or more other persons might lose his footing for some reason and come in violent contact with the glass panel. That being so, he further submits that the defenders ought reasonably to have foreseen that the glass panel might not be of adequate impact resistance to prevent him from falling through the panel and thereby sustaining injuries. It is against that background that the pursuer sets out his grounds of fault. His first ground is stated in general terms, namely that it was the defenders' duty to take reasonable care for the safety of persons, including the pursuer, using the access way and the balcony. The standard of care and skill which the defenders were called upon to exercise when designing the balcony and in particular the balustrade was that of a reasonably competent architect. Reference is made to the British Standard Code of Practice and in particular C.P. 152, 1966, of which the defenders had or ought to have had knowledge. It was their duty, it is said, to have regard to any warnings inherent in the provisions thereof. In submitting that the defenders failed in their duties towards him the pursuer founds on four failures. The first was in failing to provide a reasonably safe, strong and impact resistant material strong enough to withstand the impact of two men falling against the panel. The second was in failing so to design the fittings of the glass panels that there was a rebate on all four sides of the glass and the glass was held firmly in place. The third was a failure to restrict the size of any apertures in the balustrades so that persons could not fall through them. The fourth was a failure to provide in their design a railing at points of access to the balcony to prevent persons falling through an aperture in it. In the event the Lord Ordinary only sustained the third ground, and it was on that alone that he found negligence on the part of the defenders established. That conclusion is noted at page 124 B of his Opinion. While the Lord Ordinary took the view that this was sufficient to carry the pursuer to success, pursuer's counsel maintained that he should have found that the design was also faulty in respect of the in-filling material used in the panel, namely wired glass. It was submitted that the inadequacy of the wired glass as a safety measure and the excessive size of the panel were inter-related and inter-dependent factors which created the foreseeable danger from which the pursuer ought to have been protected. Per contra, defenders' counsel argued that neither of these two factors had been established in evidence.

The argument accordingly crystallised into two broad heads, namly (1) foreseeability and (2) proof of negligence. If the accident which occurred was not reasonably foreseeable, no question of negligence arises. It is logical therefore to consider the question of foreseeability first.

Although the experts expressed different views on the matter I am satisfied that on the evidence as a whole the Lord Ordinary was entitled to proceed, as we are, on the basis that this accident was reasonably foreseeable. I do not find it necessary to rehearse the evidence on the point in detail. The size of the panel and the nature of the in-filling were such that clearly if sufficient force was applied against the glass it would break, and if the applied force consisted of a human body or bodies it or they were liable to fall through the glass and fall to the ground below. There was evidence that two adult bodies falling against the window could provide sufficient force. As the panel formed part of the balustrade in a passageway to flats, the possibility of a person or persons falling heavily against the glass panel was not so unlikely as to warrant it being ignored. The test set out in Hughes v. The Lord Advocate 1963 SC (HL) 31 applied.

I now turn to examine the issue of negligence. Although there was a mass of detailed evidence on this topic, I propose to approach it from a broad point of view. Both parties were agreed that the law governing the standard of care owed by the defenders to the pursuer was that laid down in the case of Hunter v. Hanley 1955 SC 200, and eschewed any other. The pursuer's case relied upon but was not founded upon the British Standard Code of Practice C.P. 152, 1966. It was accepted by his counsel that since this Code was not mandatory but only provided recommendations it did not have the force of statutory enactments or regulations. Nor could it be founded upon in vacuo. It only had evidential value insofar as it was referred to by witnesses, accepted by these witnesses as representing proper practice at the time of its currency, and so became part of the evidence of these witnesses. It was conceded by pursuer's counsel that the evidence disclosed that some recommendations in an edition of the Code were altered or eliminated in a subsequent edition as a result of practical experience, but it was maintained by them that the Code represented the best technical advice at the time of its currency. The pursuer's experts Mr Scrutton and Mr Birse leant heavily on the Code for the expert opinions which they gave, particularly in relation to what kind of in-filling material should have been used and what size of panel should have been provided in order to constitute a panel which would have prevented this reasonably foreseeable accident. On the other side, the defenders' expert Mr Jamieson laid no store by the Code. He was a qualified architect and a partner in the defenders' firm, and although he was not the person who actually did the work on the design of the balustrade (which was done by an architect employee of the firm who was not adduced as a witness) he exercised an oversight in relation to the design work and expressed views which he opined would also have been those of the design architect himself. Basically Mr Jamieson's view was this. While cognisant of the Code he did not consult it when the design was being considered because he preferred to go by practical knowledge and experience. While acknowledging that architects were represented on the body which produced the Code, he regarded it as an omnibus collection of recommendations for all the different professions and trades involved in the construction industry, in which architects played a limited part. The practical experience of architects who were wholly engaged in architectural matters and problems, and who were versed in how they were tackled, was in his opinion a much better guide to good practice. Moreover, he was of the opinion that the parts of the Code on which the pursuer relied were not related to the facts and circumstances of the instant case and were accordingly of no relevance to the issue. But of this more anon. Ignoring the Code, he maintained that the design provided was one which was justified by experience in and of the building trade, and was one which a reasonably competent architect exercising care and skill was entitled to employ.

The pursuer's reliance on the Code as adopted by Mr Scrutton and Mr Birse in support of and in justification for their opinions centred round passages in the Code at clause, 310, sub-clauses c, d, eand g. Sub-clause c, which is headed "Buildings used predominantly by juveniles", contains the following passage:

"Glass for balustrades or staircases, landings or balconies or where glass protects a different level, if glazed on all edges, should be toughened glass not less than ¼ inch (6 mm.) thick or ordinary glass not less than ½ inch (13 mm.) thick. The choice is dependent on the situation and the condition to be filled, but no pane should exceed 8 feet square (0.7 m.) in area. Where the glass is not glazed on all four edges the manufacturer should be consulted."

Sub-clause d is headed "Buildings used predominantly by adults" and contains the passage:

"Glazing for balustrades as in sub-clause c."

Sub-clause e is headed "Domestic buildings" and contains the passage:

"Glazing for balustrades as in sub-clause c".

Sub-clause g is headed "Manifestation of glass" and reads:

"Where glass is glazed at low level, some means should be employed to indicate the presence of glass, for example by a motif or by decorative treatment. In some circumstances it may be sufficient to use wired glass, though this is not regarded as a safety glass."

Although conceding that the provisions of clause 310 (b) in relation to balustrades did not apply to wired glass, counsel for the pursuer submitted that if wired glass had the same impact resistance as ordinary glass, then by implication or analogy the safety tables for ordinary glass set out in clause 310 (b) were applicable to wired glass. On that basis it was argued that a reasonably competent architect exercising care and skill would have had regard to the provisions of the Code, and, having regard to the thickness of the wired glass being used, would have restricted the size of the glass aperture to 8 feet square at the most. If that had been done, then on the evidence the accident would have been averted, or at least the risk of an accident had been materially increased by the actings of the defenders in designing a panel 13½ feet square. This led to the basic proposition that since it was admitted that neither the design architect nor Mr Jamieson had paid any attention to the Code and had not taken into account its recommendations or warnings, they had failed to take the steps which a reasonably competent architect exercising care and skill would have taken. This prevented them from putting into the balance important considerations to weigh against competing considerations in deciding what should be done in the interests of safety. This failure constituted negligence which was causally connected with the accident. In the circumstances the qualification under which larger sizes were allowable could not be prayed in aid.

The defenders disputed the applicability of the Code to the wired glass used in the design, and accordingly the applicability of the tables in clause 310 (b) relating to the maximum recommended size of the glass aperture did not apply. In the first place it was submitted that in a prefatory note in clause 101 dealing with the scope of the Code it is stated that the Code does not cover patent (or puttyless) glazing which is covered by C.P. 145. 101 "Patent Glazing". It was submitted that the glazing here was puttyless. If that was well founded, then clearly the Code did not apply. But in any event, it was a matter of concession that the passages referred to in clause 310 did not refer to wired glazing. It is only by implication or analogy that they were said to apply. They attacked the soundness of Mr Scrutton's evidence and submitted that the inconsistencies in it on which they relied had not been explained away by the Lord Ordinary who had based his decision upon it. They argued that the value of the evidence of Mr Scrutton and Mr Birse was greatly diminished by reason of the fact that it was based on the recommendations of a Code which was not applicable to the circumstances. They maintained that the type of glazing used and the size of panel conformed to standards which were in common use at the time. Even if these did not conform to the recommendations for safety included in the Code this did not automatically mean that no architect of reasonable skill and competence would adopt them. On the evidence it was established that the design architect and Mr Jamieson followed a design which was in common though not in universal use at the time, and on any view of the case it could not be said that no reasonable architect would have incorporated the design which was chosen here. In the final analysis it was argued that esto the type of glazing put forward by Mr Scrutton was the most effective method of providing safety against the foreseeable risk of an accident such as occurred taking place, an architect had to have in contemplation the need to safeguard users of the balcony against risks which that method of glazing could give rise to, especially if such risks were even more readily foreseeable. If there was no alternative solution which would cope with both sets of risks, then it became a matter of decision for the design architect, and he could not be found liable in negligence unless it could be shown that no reasonable architect exercising care and skill would have adopted the design which he selected.

I now turn to consider whether negligence has been established against the defenders' design architect rendering the defenders liable. I trust that I am not doing pursuer's counsel an injustice when I say that basically his argument before the Lord Ordinary was this. The Code of Practice itself by reason of its authors established what is good practice and that constituted the usual and normal practice. Since it was admitted by the defenders that neither the design architect nor Mr Scrutton had taken into account the Code of Practice and its recommendations, but had adopted a system the components of which ran counter to standards laid down in the Code in relation to the nature of the infilling of the panel and its size, there was a failure to adopt the usual and normal practice. In the circumstances no architect of ordinary skill would have adopted the course taken if he had acted with reasonable care. The Lord Ordinary had a different approach. After reciting at some length part of the opinion of Lord President Clyde in Hunter v. Hanley starting at the foot of page 204 which includes the passage:

"The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care"

he proceeded to set out his own concept of the application of the law in the instant case. "It will be noted that the passage which I have quoted from the Lord President's opinion founds upon a series of cases involving allegations of professional negligence against solicitors. It is quite obvious, even on a cursory examination of these cases, that they could not all be pressed into the mould of alleged deviation from normal practice. It seems to follow that the three principles enunciated in Hunter v. Hanley are not so much general guiding principles as a statement of the essentials which required to be proved in order to bring home negligence on the facts of that particular case. Indeed in the second last paragraph of his opinion, at page 206, the Lord President puts it in this way: ‘to establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established’. The Lord President then goes on to enunciate the three well-known legs of Hunter v. Hanley . The premise on which the Lord President proceeds is that there has been an alleged deviation from normal practice, and as I have already pointed out it is rather artificial to try to press the grounds of complaint in the present case into that mould; and then the Lord President refers to the three legs not as principles, but as ‘three facts’ which require to be established. It is quite true that a near approach can be made to the three legs of Hunter v. Hanley in the present case by substituting a concept such as ‘good practice’ for ‘usual and normal practice’. But it seems much more natural to approach the facts in the present case on the basis of the more general principles on which the Lord President relies in the passage which I have already cited. In terms of those general principles I see no real difficulty in putting the proposition on which the pursuer founds thus—‘after the public warning about the use of glass as a building material and the risks which may be foreseen in connection with its use which are contained in the Code of Practice of 1966, none of the practitioners towards whom the warning is directed, which includes architects, could be regarded as acting with ordinary skill and care if they departed from the recommendations in the Code without being able to justify their departure or if they ignored the Code altogether’. Thus the design architect cannot be heard to say that the risk of a person falling through a glass panel which did not comply with the Code was a mere possibility rather than a real risk. Nor, on the evidence, can I hold this risk to be so small that it would have been proper to discount it. I conclude, then, that in ignoring the Code and discounting the risk the design architect adopted a course which no architect of ordinary skill would have taken if he had been acting with ordinary care." With due respect to him it seems to me that the Lord Ordinary in effect seems to be giving to the Code something akin to the force attached to statutory enactments or regulations. He says that in effect the proposition on which the pursuer founds, and which he sustains, is that the Code contains warnings regarding risks which may be encountered in connection with the use of glass, and inter alios no architect could be regarded as acting with ordinary skill and care if he departed from the recommendations in the Code without being able to justify his departure, or ignored the Code altogether. Because the design architect here is held to have ignored the Code and discounted the risk resulting therefrom the Lord Ordinary finds that he was adopting a course which no architect of ordinary skill would have taken. This seems to me to give an evidential status to the Code in itself which has no justification, and to adopt a wrong approach to the determination of the issue of negligence. Pursuer's counsel conceded, properly in my opinion, that the Code standing by itself had no evidential value, yet the Lord Ordinary seems to take the view that all you require to do is to look at it and if a professional man such as an architect departs from its recommendations he is guilty of professional negligence unless he can justify his departure. The Code has only evidential value insofar as it is spoken to by witnesses who adopt its content and recommendations. Whether it is good practice to consult the Code before making a decision on such things as design is another matter. Then, if the true test of negligence here is that set out by Lord President Clyde as quoted supra,as I think it is, the question is whether it is proved that the design architect was guilty of such failure as no architect of ordinary skill would be guilty of if acting with ordinary care. The pursuer is in petitorio and it is for him to prove that negligence. It does not do for the pursuer to establish a departure from the Code and then say that ipso facto the design architect was negligent unless he can prove that he was justified in that departure. There is no change of onus of proof in deciding the legal issue on negligence.

If that be the correct view of the law the determination of the issue does not turn on whether Mr Scrutton's views are to be preferred to those of Mr Jamieson or vice versa. It turns on whether on the evidence as a whole it has been proved that in acting as he did in deciding on the design of the panel the design architect was guilty of negligence according to the standard laid down. This boils down to the size of the panel, the one ground of fault in respect of which the Lord Ordinary found the defenders liable. He rejected the other grounds of fault tabled by the pursuer, and his decision thereon apart from the use of wired glass was not challenged by the pursuer. Mr Scrutton, however, did not criticise the use of wired glass for the in-filling. His sole complaint was the size of the panel which was in-filled by the wired glass. He desiderated panels 12 inches square or thereby. He considered that the panel should be reduced to a size that people could not fall through it, in other words to provide virtual insurance against such an occurrence. That was in conformity with the pursuer's pleadings, but his counsel rejected that extreme desideration. Relying on the Code they maintained that in the circumstances and having regard to the nature of the in-filling a maximum of 8 feet square was the upper limit of the aperture for safety, even if such an expanse would allow a body to pass through. Defenders' counsel submitted that this was a departure from the pursuer's pleadings which was not justifiable, but I am prepared to accept this change as within the broad nature of the pursuer's complaint. Mr Scrutton said that if an architect chose a panel of 8 feet square he would not be negligent. He stated that he would not have designed a panel with this size of wired glass in it. On the other side of the fence, Mr Jamieson relied on practice and experience both in relation to his own professional work and his knowledge of what had been done elsewhere. Panels of this size with an in-fill of wired glass were not uncommon. He conceded that he did not anticipate as reasonably foreseeable that an accident such as this would take place. There was accordingly no occasion for him to consult the Code, but he would not have done so in any event, because it was only inexperienced people who would require to go to the Code for guidance. Experienced architects would proceed on their own knowledge and experience and their knowledge and experience of what was done by other architects in dealing with similar designs. In deciding designs regard had to be had to foreseeable risks and the best method of avoiding them. In any event if there were two different risks and the method of coping with one left the other exposed, and there was no means of coping with both by the same expedient, the design architect would require to make a decision based on such considerations as which was the more likely and foreseeable danger and which risk gave rise to the greater danger. In the instant case the measures proponed by Mr Scrutton would give rise to the more foreseeable and more likely risk of children using the protrusions on the narrower uprights to climb the balustrade with the greater risk of danger. That this was a more likely and foreseeable occurrence and risk than what occurred here was evidenced by the facts that panes of this size in-filled with wired glass were to be found in balustrades in other high rise balconies and by the directive from the Scottish Office drawing attention to the likelihood of children climbing up balcony faces which could have dangerous consequences. This latter matter was within the experience of Mr Jamieson who had no prior experience of people going through a pane of glass. It was pointed out that while Mr Scrutton proponed that the smaller the pane of glass the greater the impact resistance would be he admitted that while it would be greater in an 8 feet square frame than it would be in a 13½ feet square frame it would not be significantly greater, only slightly greater. This, it was said, was a significant factor in deciding which risks should be given prior consideration.

I feel that the defenders' contention that the Code did not generally apply to wired glass is correct, and that the pursuer was not entitled to pray in aid by analogy or implication the maximum safety size of aperture recommended where ordinary glass was used (clause 310 (b)). This drives a large hole into the evidence of Mr Scrutton. In any event, since I have reached the conclusion that the Lord Ordinary erred both in giving to the Code of Practice itself the evidential status which he did and in his legal approach to the issue of negligence, I find that the issue narrows considerably. On the basis that the type of accident which the pursuer sustained was reasonably foreseeable, although not very likely, the question is the one posed throughout this opinion. Has he proved that no reasonable architect exercising reasonable care and skill would have adopted the design which the defenders used? Again, as has been previously observed, that issue is not answered by deciding that Mr Scrutton's idea of the safer design is to be preferred to the design used. The broad question is whether on the evidence as a whole the question posed has to be answered in the negative. Far from this being the case, I am satisfied from a study of the evidence and the summation of it in the defenders' submissions supra that there was substantial evidence that the design used had been used by other architects in practical situations in different parts of the country to a not uncommon degree. I see no reason why that evidence should not be accepted. In fact there is a passage in Mr Scrutton's evidence which could be interpreted as accepting that as architects, like other professional men, tend to differ in their opinions, one out of 12 architects might have used the defenders' design in similar circumstances. On a subsidiary point, it seems clear on the evidence that it has not been proved that in deciding on a design which would assist in countering the dangers to children which were said to be present in Mr Scrutton's alternative proposal, in preference to a design which might slightly increase the risk of glass breaking by people falling through it in less likely circumstances, the defenders' design architect was guilty of negligence on the required standard. In saying this I am conscious of the fact that Mr Scrutton disputed that his narrower uprights would have projections of a size that would provide toe-holds for children to climb up the balustrades, but where there are projections children are liable to take advantage of them in the most surprising manner. In my view that was a consideration not so significant that it could be ignored.

To sum up. As Mr Jamieson, and presumably the design architect, did not regard this type of accident as reasonably foreseeable it cannot be said that the design adopted was chosen to avert this type of accident. That, however, in itself is not conclusive against the defenders. The design which was adopted was one in not uncommon use, and it coped with a risk, more readily foreseeable, which Mr Scrutton's alternative design would have produced. Mr Scrutton's desideration of a design which would insure against accidents was a standard which the law does not demand. Designs which had in-fills which were more solid than glass had other dangers. It cannot be said on the evidence that, although the defenders did not have this type of accident in contemplation, the defenders' architect chose a design which no competent architect exercising reasonable care would have used.

In all the circumstances I am of the opinion that the Lord Ordinary asked himself the wrong question and obtained the wrong answer by taking a wrong view of the evidence. Looking at the matter in the light of what I conceive to be the right approach, asking the right question, I have reached the conclusion that the pursuer has unfortunately failed to establish negligence against the defenders on the standard required by the law. I therefore move your Lordships to allow the reclaiming motion, to recall the interlocutor of the Lord Ordinary dated 17th August 1981 and to assoilzie the defenders from the conclusions of the summons.

LORD ROBERTSON .—The pursuer in this action, who is the respondent in the appeal, sustained severe injuries on 30th December 1976 when he fell from the seventh floor balcony of a nine storey maisonette block of flats at 50 Wester Hailes Park, Edinburgh. The pursuer lived in a flat Number 50/69 on the said floor. On said date at about 11 p.m., along with another man Donald Richardson, the pursuer was helping another tenant of one of the flats on the 7th storey, Peter M'Neill, to his residence. M'Neill was under the influence of drink at the time and was being escorted home. The three men went up to the 7th floor in the lift and moved from the lift to the balcony. It was necessary to turn at right angles to the right at the end of the passage way from the lift in order to pass along the balcony to the front doors of the flats. The outside wall of the balcony was open, protected by a substantial wooden handrail at a height of about 4 feet above the floor level of the balcony. The handrail ran between substantial upright pillars which formed part of the main fabric of the building. The pillars were about 9 feet apart. The space between the handrail and the floor of the balcony was filled by sheets of ¼ inch Georgian wired glass in a metal frame divided into panels. The dimensions of each of these glass panels were approximately 51 inches by 30 inches or approximately 13½ square feet.

According to the pursuer's averments the accident happened when the 3 men were proceeding along the passageway at the corner leading on to the balcony. One or more of them lost his footing and the pursuer fell head first against one of the glass panels underneath the handrail. When he fell against the panel he broke the glass in the panel and thereafter he along with Peter M'Neill fell through the panel to the ground some 80 feet below. The pursuer was seriously injured and M'Neill was killed.

There was considerable dispute at the proof as to the exact way in which the accident happened, and the reasons therefor, but the Lord Ordinary held it proved to have happened as set out in the pursuer's pleadings. At the appeal this was not challenged by the defenders.

It may also be mentioned that the pursuer's case against the first, third and fourth defenders disappeared in the course of the proceedings. The Lord Ordinary held established the pursuer's case against the Second Defenders, who were the architects of the building, and awarded the pursuer damages. In the appeal the second defenders did not appeal against the Lord Ordinary's findings on quantum of damages; nor against his findings on contributory negligence. There was no cross appeal by the pursuer on any of these points.

The only issue at the appeal is accordingly between the second defenders (hereinafter referred to as "the defenders") and the pursuer. The issue is whether the Lord Ordinary was correct in holding that the pursuer had established negligence against the defenders and that the accident was due to that negligence.

The pursuer's averments against the defenders in his pleadings are in condescendence 4. It is said that they were bound to use care and skill of reasonably competent architects in designing the building and in particular the balcony and balustrades. They knew or ought to have known that a person using the balcony might either alone or together with one or more other persons lose his footing for some reason and come into violent contact with the said glass panel. If he did so, the defenders knew or ought to have known that the panel might not be of adequate impact resistance to prevent him from falling through and being injured. It was accordingly their duty to act upon warnings inherent in the provisions of the relevant British Standard Specification on Code of Practice—C.P. 152, 1966—for glazing and fixing of glass for buildings. In these circumstances it was their duty in their designs to provide a reasonably safe, strong and impact resistant material in such balustrades, and in particular a material strong enough to withstand the impact of two men falling against the said panel, and so to design the fittings of said glass panels that there was a rebate on all four sides of the glass and the glass was held firmly in place. It was further their duty to restrict the size of any apertures in said balustrades so that persons should not fall through them. It is also said that it was further the defenders duty to provide in their said designs a railing at points of access to said balcony to prevent persons falling through an aperture in it. It is said that the defenders failed in their duties and that their failure caused the accident.

The Lord Ordinary, after a very full and detailed examination of the evidence, reached the conclusion (at p. 124 B of his opinion) that the design of the balcony was faulty and that the failure to limit the size of panels to 8 square feet amounted to professional negligence on the part of the defenders. From this it would appear that the only ground of fault put forward by the pursuers and upheld by the Lord Ordinary was the alleged failure in duty to restrict the size of any apertures in said balustrades so that persons could not fall through them.

On appeal it was strenuously argued on behalf of the defenders and reclaimers that the Lord Ordinary had erred in holding it established that the chain of events leading to the accident was reasonably foreseeable by the defenders. A number of factors were involved. On the evidence the degree of force required to propel the 2 persons through the glass was substantial: the movement of the persons had to be unrestrained: the blow had to be at right angles to the panel to fracture the glass: the blow required to be from the head, or some pointed part of the body, not from a generalised wide, area of the body: the blow on the panel had to be at a height not more than 4 feet from floor level. It was very unlikely that 1 or 2 men should take a header through a panel of glass at that height. Although it might be reasonably foreseeable that someone might fall against a glass panel, it was not foreseeable that the type of impact which apparently occurred in the pursuer's accident would reasonably occur. Such an accident, according to the evidence, had never happened before.

Although I have some sympathy with this argument on behalf of the defenders, I do not think that it is well-founded, applying the tests set out in Hughes v. Lord Advocate 1963 SC (HL) 31. As Lord Guest said at p. 46 in Hughes—"in order to establish a coherent chain of causation it is not necessary that the precise details leading up to the accident should have been reasonably foreseeable: it is sufficient if the accident which occurred is of a type which could have been foreseeable by a reasonably careful person. … The precise concatenation of circumstances need not be envisaged". In the circumstances of the present case, where there was a fall from a balcony of the kind described leading to the residents' houses at some 80 feet above ground level, it cannot in my opinion be said that the accident which occurred was not of a type which could reasonably be foreseen.

On the question of negligence, however, the defenders are on stronger ground in their appeal. The defenders are professional architects and they were responsible for the design of the building. As I understood the arguments on behalf of the defenders and the pursuer, as well as the opinion of the Lord Ordinary, it was agreed that the law upon this topic is as laid down in Hunter v. Hanley 1955 SC 200. The salient points are set out in the opinion of Lord President Clyde at pp. 205 and 206. There he says:

"The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care. … To establish liability by a doctor where deviation from normal practice is alleged three facts require to be established. First of all it must be proved that there is a usual and normal practice: secondly it must be proved that the defender has not followed that practice, and thirdly (and this is of crucial importance) is must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken, if he had been acting with ordinary care. There is clearly a heavy onus on a pursuer to establish these three facts, and without all three his case will fail. If this is the test, then it matters nothing how far or how little he deviates from the ordinary practice, for the extent of deviation is not the test. The deviation must be of a kind which satisfies the third of the requirements just stated."

I understood it to be agreed that the tests as adumbrated by Lord President Clyde supra in Hunter v. Hanley apply to an architect equally as to a doctor and the whole of the present case was presented and argued upon these tests. The Lord Ordinary, in his opinion at pp. 129–130 reaches his final decision upon the basis of these tests: in this passage he concludes that the defenders were shown to be negligent because they did not, according to him, follow the recommendations of the 1966 Code of Practice, they being practitioners towards whom the warning of the risks of using glass as a building material was directed. Having regard to the warning, as I understand the Lord Ordinary's reasoning, they could not be regarded as acting with ordinary skill and care if they departed from the recommendations in the Code without being able to justify their departure, or if they ignored the Code altogether "Thus the design architect cannot be heard to say that the risk of a person falling through a glass panel which did not comply with the Code was a mere possibility rather than a real risk". The Lord Ordinary concluded that, in ignoring the Code and discounting the risk the design architect adopted a course which no architect of ordinary skill would have taken if he had been acting with ordinary care. On this basis the Lord Ordinary found fault established against the defenders.

This conclusion of the Lord Ordinary was strongly attacked by counsel for the defenders. It is apparent that the Lord Ordinary appears to have given to the said Code of Practice a significance which in my opinion is wholly unjustified. It is not a statutory Regulation and it has no statutory force. Its provisions are not mandatory. This is not disputed by the pursuer. The Code is Number 71 of Process. It bears to have been prepared by a committee convened by the Codes of Practice Committee for Building. The drafting committee contained representatives from all branches of the building industry, particularly representatives of glass manufacturers and glaziers; 4 out of the 30 members of the committee, charged with drafting a Code for "Glass for Buildings" were members of the Royal Institute of British Architects. Section one of the Code, headed "General", starts with paragraph 101—"Scope. This Code makes recommendations for good practice in the glazing and fixing of glass for buildings. The Code does not cover patent (or puttyless) glazing which is covered by CP 145.101 (‘Patent Glazing’). …"

On a strict view it is in my opinion clear from the above that the quoted Code 152 did not apply to the situation existing in the present case. There was clear evidence that the glazing of the panes was patent and puttyless: I understood this to be accepted by counsel for the pursuer in argument. In the second place, the glass used in the present case was wired glass and there is no provision in the Code giving directions as to the use of wired glass. The passages at pp. 32/32 of the Code, upon which reliance was placed, deal only with "Ordinary Glass" and "Toughened Glass". The figure of 8 feet of glazing area in the table on p. 32, which is said to be reasonably safe with a pane ¼ inch thick, is for "Ordinary Glass".

The pursuer founded upon section 310 (c) of the Code which states that "Glass for balustrades … or balconies should be toughened glass not less than ¼ inch (6 mm.) thick or ordinary glass not less than ½ inch (13 mm.) thick. The choice is dependent on the situation and conditions to be fulfilled, but no panes should exceed 8 feet (0.7 m.) in area. Where the glass is not glazed on all four edges the manufacturers should be consulted". It was argued on behalf of the pursuer that, although wired glass was not expressly mentioned in section 310, as aliunde it was accepted that its impact resistance was approximately the same as ordinary glass, the tables at s. 310 (b) and section 310 (c) impliedly referred to wired glass.

I agree with counsel for the defenders that the Code of Practice founded upon has not been shown strictly to apply to the circumstances of this case. The glass used here was wired glass and it is clear that the Code does not apply specifically to wired glass. In any event, as is agreed, the provisions of the Code are not mandatory and have no legal effect as if they were statutory regulations. That is not to say that the Code, even though not applying in terms to the circumstances of this case, may not have some significance as setting out certain agreed views at its date among various members of different branches of the construction industry. As such its value is limited. Mr Jamieson, the defenders' expert and experienced architect, who was accepted by the Lord Ordinary as a frank witness, said that he was well aware of the content of the Code, but he did not accept that expert architects would slavishly adhere to all of its provisions. They would apply their own experience of what was usual, proper and normal practice.

Accepting, as I do, that the Code did not apply to wired glass, or to the circumstances of the case,—the panel being patent or puttyless glazing—the basis of the Lord Ordinary's judgment is undermined. In the passage I have already quoted (pp. 129/130 of his Opinion) he bases his decision upon the proposition that architects could not be regarded as acting with ordinary skill and care if they departed from the recommendations in the Code without justification. If the Code did not apply this conclusion is clearly not justified.

But even if the Code with all its qualifications can be said to have had some validity in the circumstances, I am still of the opinion that the Lord Ordinary is wrong in his conclusions. If the tests in Hunter v. Hanley are to be the tests applying, the onus is on the pursuer to establish that the defenders were negligent as laid down in the tests. It is for the pursuer to prove (a) that there was a usual and normal practice; (b)that the defenders did not follow that practice; and (c) that the course the defenders adopted was one which no professional architect of ordinary skill would have taken, if he had been acting with ordinary care.

So far as (c) is concerned the onus was firmly on the pursuer. He led no expert witness other than the witness Scrutton, who was primarily an engineer. So far as the size of the panel is concerned, which in the end of the day was the only ground of fault in respect of which the Lord Ordinary found the defenders liable, Scrutton desiderated that panels should be only 12 inches square or thereby; but he did not think that an architect who put in panels of 8 feet square would be negligent. But Scrutton does not in terms assert that no professional architect of ordinary skill would have done what the defenders did. In fact he agreed that he really was unable to say what the usual practice in designing this type of building was, as he had never done it. He agreed that the practice of architects would vary and a reasonably competent architect might have done what the defenders did (p. 524). His approach was a personal one, based upon insurance that nobody would fall through a pane (p. 525). He agreed that a reasonably competent architect in 1970 would take the view that there was no significant difference between the impact resistance of an 8 feet square pane of glass and that of a 13½ feet square of glass (p. 538).

The defenders' expert, Jamieson, on the other hand, an architect of great experience, was emphatic that there had never to his knowledge been an accident similar to this where someone had gone through a pane in similar circumstances. There were many other buildings in which panes of a similar size had been constructed, to his knowledge. Although there was a risk of an accident happening on such a balcony, the greater risk in his view was that children playing on the balcony might be enabled to climb up the panes to the top of the balustrade. This would occur if the panels were smaller. A careful architect would always balance risks of this kind.

I agree with your Lordship that the case does not turn so much on a competition between the evidence of Scrutton and of Jamieson. It depends rather upon whether the pursuer has proved that in the circumstances he has established that the design architect was guilty of negligence, according to the tests laid down, in the design of the balcony. In my opinion the Lord Ordinary, who appears to have reversed the onus in his application of the Code and consideration of the evidence, erred in answering this question in favour of the pursuer. There was ample evidence to establish that other architects in practice had used a similar design in many parts of the country. This design took cognisance of another risk—namely to the safety of children, which in Jamieson's view was a more real risk than that of an accident such as befell the pursuer, which Jamieson had not envisaged as possible.

If there were two foreseeable risks, the design architect cannot be faulted for choosing the design which obviated what he considered to be the more obvious risk of the two. It cannot be said that on the evidence it is established that the design adopted by the defenders was one not in common use, nor one which no competent architect would have used had he been acting with reasonable care.

I agree with your Lordship that the Lord Ordinary adopted the wrong approach and did not in the end of the day apply his mind to the proper question—videlicet whether the pursuer, on whom the onus lay, had established on the evidence the third fact laid down by Lord President Clyde in Hunter v. Hanley as being crucial. I therefore am of the opinion that the pursuer's case against the defenders failed. I would allow the reclaiming motion, recall the Lord Ordinary's Interlocutor of 17th August 1981, and assoilzie the defenders from the conclusions of the Summons.

LORD BRAND .—I am in complete agreement with the opinion of your Lordship in the chair and having nothing to add.