Scottish Court of Session Decisions

In this action the pursuer seeks damages for personal injuries he suffered as a result of an accident which occurred on 24 April 1994. On that date he was making his way home on foot at about 3 o'clock in the afternoon from the Craigfoot Inn, Milton of Campsie. He avers that when he reached the town centre he began to walk in the direction of the bridge over the river Glazert and on his left was a car park which was easily accessible from the main road. It is averred that the first defenders were the occupiers and persons having possession and control of the car park. It is further averred that the edge of the car park nearest the river was delineated by concrete kerbstone stones which projected four inches or thereby above the tarmac surface of the car park and that immediately beyond the line of kerbstones there lay a barrier constructed from old railway sleepers which was approximately two feet high. At the end of the car park nearest the main road there was a gap of about one metre between the end of the railway sleeper barrier and the boundary wall which afforded access onto the embankment beyond. The pursuer goes on to aver that he felt the need to relieve himself and entered the car park and proceeded onto the embankment via the gap between the end of the railway sleeper barrier and the boundary wall, following the line of the boundary wall until he was hidden from view. He then lost his footing and fell down the embankment over the wall which had been constructed at the foot and onto the rocks below. It is averred that the second defenders were the occupiers and persons having control of the embankment.

The pursuer pleads against both defenders a case of fault based on breach of their statutory duty in terms of section 2 of the Occupiers' Liability (Scotland) Act 1960. Both defenders have general pleas to the relevancy of the action. When the case called before me on the procedure roll, counsel for both defenders moved me to sustain their respective first pleas-in-law and to dismiss the action so far as laid against each of them. In response, counsel for the pursuer invited me to allow a proof before answer in respect of the pursuer's case against both defenders, subject to deletion of the averments relating to the pursuer's wage loss which it was accepted were not sufficiently specific.

In support of her motion for dismissal counsel for the first defenders submitted firstly, that no facts had been averred in respect of the first defenders from which liability in terms of section 2 of the Occupiers' Liability (Scotland) Act, 1960 could be inferred.

Section 2(1) provides:

Counsel's submission in this respect was that the pleadings did not identify the existence of any danger on the land occupied by the first defenders. The danger averred to have caused the accident was the sudden slope of the embankment which was on land occupied and controlled by the second defenders. The section imposed no liability on an occupier for injury sustained on a neighbour's land which was caused by a danger on that neighbouring land. The action as pled against the first defenders was accordingly irrelevant.

In response, counsel for the pursuer submitted that it was clear that the terms of section 2 were apt to cover two situations, namely dangers which are due to the state of the premises and also dangers which arise by virtue of anything done or omitted to be done on them. While in the vast majority of cases founded on the section, the danger would be due to the state of the premises, there was nothing in its terms which precluded negligence being established in the event of loss or damage being sustained on premises or land occupied other than by the defender convened in the action. Such a situation might arise in the event of there being a missing or faulty railing on a building. While any injury sustained by a person falling from such a building would occur when he landed on neighbouring property, the omission giving rise to the accident occurred on the premises occupied by the owner of the building. In such a situation a failure to construct an effective handrail would constitute a breach of the duty imposed on the occupier by the statute.

Reference was made in this connection to Ewa Perkowski v Wellington Corporation 1959 A.C. 53. In that case, fatal injury was sustained by a diver who dived from a diving board occupied by a local authority into shallow water in the sea outside the area occupied. The Privy Council, on appeal from the Court of Appeal in New Zealand, held that the fact that the concealed danger was that of injury outside the occupied area, whether in the sea or on a highway or in adjacent property, on principle did not prevent the application of the rule as to the liability of an occupier.

It is not difficult to comprehend why liability in terms of the section would be imported in a situation where, although the injury was sustained outside the area occupied, it was the exit from that area which was dangerous. It is important however to note that in the present case what the pursuer avers is that after passing through the gap in the first defenders' fence and onto the land owned by the second defenders there were "three or four yards of generally level terrain" before the embankment sloped sharply downwards towards the river. That is to say, the drop which the pursuer offers to prove gave rise to the hazard is three or four yards beyond the boundary of the first defenders' land. It follows that on a fair reading of the pursuer's pleadings it was not the exit from the first defenders' land which was dangerous; the gap between the barrier and the wall was not an opening over a sudden drop. The omission complained of is the first defenders' failure to prevent the pursuer passing from their land on to that of the second defenders which did not in itself give rise to any immediate hazard. In that situation I do not consider that the provisions of section 2 are apt to import liability on the first defenders in that the danger averred to have caused the pursuer's accident was not, in any ordinary sense of the words, due to anything done or omitted to be done on their premises. To hold otherwise would in my view amount to a strained and unnatural interpretation of the statutory provision and an unwarranted extension of its application.

I now proceed to consider the other arguments presented by counsel for both defenders in support of their motions for dismissal and do so on the assumption that, contrary to my opinion, the first defenders were under a duty to the pursuer in terms of the statutory provision.

Counsel for the first defenders attacked the relevancy of the pursuer's pleadings on the basis that the same duties were pled against both defenders. Her submission in this respect was adopted by counsel for the second defenders. It was contended that the pursuer offers to prove negligence on the part of the first defenders in respect of their failure to erect a fence which, on his own averments, the second defenders were under a duty to erect. It was self-evident that two defenders could not be under the same duty at the same time. Reference was made in this connection to the decision of Lord Macfadyen in Allison v Isleburn Ltd and Eurolink Ferries Ltd 1997 S.C.L.R. 791. In that case a workman sued both his employers and their sub-contractors in respect of injuries sustained in the course of an accident at work. It was held that the pursuer could not relevantly make a case of failure to institute and maintain a safe system of working against two separate parties in respect of one operation; both defenders could not simultaneously be under the duty to institute a safe system without attempting in the pleadings to identify aspects of the system which were the particular responsibility of one or other of the defenders.

In response, counsel for the pursuer contended that while in substance the duty pled against each of the defenders was similar, it was not in fact the same duty. In so far as the first defenders were concerned, the danger arose from something which they had omitted to do on their premises, whereas in the case of the second defenders, the danger was due to the state of their land. It was clear from the pleadings that the duty said to be incumbent on the first defenders was to erect a fence on their land and that incumbent on the second defenders was to do likewise on the land occupied by them. Counsel sought to distinguish Allison on the basis that in the present case it was a different statutory duty which applied to each of the defenders and that different duties were pled against each; each defender was said to be under an obligation to fence his own land and it would be perfectly possible for each to fulfil that duty without any conflict with the situation of the other.

I am not able to accept the contention that what is pled against each defender is a different statutory duty. It may be that the duty arises by virtue of occupation in respect of the second defenders and by virtue of omission in respect of the first defenders, but the source of the duty on each is section 2 of the 1960 Act. Further, the fact that the duty averred against each is to erect a fence at a different place does not gainsay that it is in effect the same duty which is pled. In Allison, Lord Macfadyen pointed out that as both parties were said to be under a duty to lay down a system of working, it would have been impossible, in the event of there being a disagreement between them as to how that should be done, for either of them to fulfil the duty said to be incumbent upon them. In the present case, as in Allison, there is no apparent attempt in the pursuer's pleadings to aver any identifiable contribution to be made by each defender to a coherent whole in that it is not suggested that one should have fenced to a particular point beyond which the duty lay on the other. I consider nevertheless that the present case can be distinguished on the basis that in the event of failure to reach agreement between the two defenders, either could have fulfilled the duty averred by erecting a fence on their own land. I am accordingly of the view that had I been persuaded that the pursuer's averments otherwise contained relevant averments of breach of duty by the defenders, I would not have refused to remit them to probation on this ground.

Counsel for both defenders presented a further attack on the relevancy of the pursuer's pleadings based on the assertion that the danger averred, namely the slope of the embankment, was a natural feature of the land and an obvious danger.

The pursuer's averments in respect of the nature of the danger to which he avers he was exposed are in the following terms:

The pursuer later avers:

Counsel contended that it was self-evident that if level land came to a sudden end there was an obvious danger. On the pursuer's own averments the embankment was a natural feature of the land as distinct from something which was brought onto or

hidden on it. The proposition relied upon by counsel for both defenders was that the duty of reasonable care does not extend to an obligation of protection against dangers which are obvious in themselves; nor is there a duty to protect a person against the ordinary risks inherent in going onto property of the particular kind, the duty of an occupier of land being only to guard against unusual dangers which can foreseeably give rise to a risk of injury.

Reference was made in the course of the debate to several authorities including Stevenson v The Corporation of Glasgow 1908 S.C. 1034, a case in which a father sought damages in respect of the death of his child who was drowned in the River Kelvin while playing in a park adjacent to the river. The pursuer averred a duty on the defenders to fence the river. The action was dismissed as irrelevant. Counsel founded on the dictum of Lord Kinnear at page 1042:

Reference was also made to Taylor v The Corporation of the City of Glasgow 1922 S.C.(H.L.) 1, a case in which an action was brought by a father for damages for the death of his son from eating poisonous berries growing in one of the defenders' public parks. It was averred that the plants were easily accessible from a children's play area and that it was accordingly the defenders' duty to warn children against the danger or to prevent them from reaching the shrubs. A plea to the relevancy of the pursuer's case was repelled but counsel founded on the passage in the opinion of Lord Shaw of Dunfermline at page 10 where he says:

Reference was also made to Dumbreck v Addie & Sons (Collieries) Ltd 1928 S.C. 547, a case where the danger presented by the intermittent motion of the equipment was held to be well known to the defenders but by no means necessarily obvious to anyone who approached it when the system was in a state of rest. Lord President Clyde (at page 552) said:

Reference was also made to Simkiss v Rhondda Borough Council 1981 L.G.R. 460; Johnstone v Sweeney 1985 S.L.T. 2 and Cotton v Derbyshire Dales District Council The Times Law Reports 20 June 1994.

Counsel for the second defenders drew attention to the following averments on behalf of the pursuer as giving rise to the inference that the danger was an obvious one: "It is obvious on inspection of the embankment, and was so prior to 24 April 1994, that it is an unsafe place for persons to walk" and "the embankment presented a danger for persons proceeding beyond the edge of the car park". Attention was also drawn to the fact that the pleadings contain an averment on behalf of the pursuer that he lived approximately a quarter of a mile from the locus of the accident and was aware of the existence both of the embankment and of the ravine.

In response, counsel for the pursuer submitted that what the pursuer was offering to prove was the existence of a concealed hazard of which he was unaware and which lay a relatively short distance from a public car park which was easily accessible and in constant use. It was submitted in particular that the reference in the pursuer's pleadings to the existence of a "sudden drop" and also to the fact that the embankment sloped sharply downwards "suddenly and without warning of any sort" were indicative of a hazard which by its nature was concealed and which was going to take a person approaching it by surprise. In respect of the averment that it was obvious on inspection of the embankment that it is an unsafe place to walk, it was important to distinguish between what was obviously a hazard on inspection and the perspective of an individual approaching it in circumstances in which it is both concealed and unknown to him. It was also important to bear in mind that the pursuer's admission that he was aware of the embankment was subject to the qualification that he was "unaware of the inherent danger created by the existence of the sudden drop down to the foot of the ravine".

Counsel founded on the well known dictum in Jamieson v Jamieson 1952 S.C.(H.L.) 50, that an action will not be dismissed as irrelevant unless it must necessarily fail even if all the pursuer's averments are proved. In claims of damages for alleged negligence it can only be in rare and exceptional cases that an action can be disposed of on relevancy (Miller v The South of Scotland Electricity Board 1958 S.C.(H.L.) 20 per Lord Keith of Avonholm at page 33). The present case was one in which the issues could only be determined after a hearing on the facts.

Senior counsel for the pursuer submitted that the pursuer did not require to prove the danger was caused by means of a man-made construction, the important distinction being between what is concealed and what is obvious. The fact that the pursuer does not suggest that the danger was concealed in the sense of being obstructed in any way did not mean that it was an obvious danger. Further, the danger did not fall to be described as a natural feature of the land since the averments disclose that a wall had been constructed at the foot of the embankment. The hazard was not constituted by virtue only of the suddenness of the drop but also by its steepness and by the existence of the wall at its foot; it was artificial to do other than look at the whole of the embankment, including the wall, as a unum quid. Since it was impossible to assert that the danger was a natural feature, there was an issue to try as to whether it was obvious.

I am conscious of the reluctance of the court to dismiss any reparation action without enquiry into the facts except in a clear case (Miller, supra). But it is well established that the court may do so if the facts bearing on liability are within the knowledge of the pursuer and it is clear that his averments are irrelevant (Blaikie v The British Transport Commission 1961 S.C. 44 at page 51.)

While a source of danger arising from a physical feature of the land is presumed to constitute an obvious and usual danger, the existence of such a presumption does not of course preclude the possibility of the pursuer establishing that in the particular circumstances the danger was not obvious. Nor is it necessary in my view for the pursuer to offer to prove that it was a man-made construction which caused the danger to be concealed; the distinction is between what is, as a matter of fact, obvious and what is concealed. There is however nothing in the pursuer's pleadings in this case to suggest that he offers to prove that the sudden sharp slope was hidden or in any way concealed from the view of a person walking on the embankment. Further, I cannot accept the contention on his behalf that the whole of the embankment, including the wall which had been built at the foot of it, requires to be looked at in determining whether it is a natural feature. The pursuer's pleadings are in my view capable of bearing only one inference as to the nature of the hazard to which he attributes his accident, namely the sudden sharp slope of the embankment. The wall at the foot of the slope may well bear upon the consequences of the accident but I do not consider that in the circumstances averred it is a relevant factor in determining the nature of the danger.

It follows that the question comes to be whether the sudden sharp slope of this embankment can reasonably be regarded as presenting other than an obvious, natural hazard to a person such as the pursuer. The owner of property is entitled to assume that persons coming to it are of average intelligence and average capacity for looking after themselves (Stevenson per Lord Kinnear at page 1042). It seems to me to be an inescapable conclusion from the pursuer's averment that the sudden drop occurred after three or four yards of generally level terrain that when he was crossing the level ground in broad daylight it must have been obvious to him that he was approaching a point beyond which he could not see clearly what lay ahead. In the situation described in the pleadings, I find it impossible to conclude other than that the sudden drop was patent and obvious and that the hazard was one against which a person such as the pursuer may reasonably be expected to protect himself. The obvious change in the landscape ought to have been obvious to him from the ordinary process of looking ahead as he walked and paying due attention to where he placed his feet. I cannot hold other than that the embankment as described in the pleadings falls to be regarded as a natural, physical feature of the land, the dangers of the resort to which are plain and which despite being capable of causing danger to careless persons, does not require to be guarded by protective measures. To hold that this embankment constitutes a concealed danger which ought to have been fenced would in my view defy common sense. The logical extension of such a finding would be that every path along an embankment or cliff edge would require to be fenced in order to guard against a fall by a person going too near the edge and losing his footing.

It was further contended on behalf of both defenders that esto, they were under a duty to erect a barrier of some kind, the duty averred, which was not to close the gap which existed but to erect fencing which would prevent persons entering the embankment was too onerous. The duty imposed in terms of the statute was only to show reasonable care and did not extend to ensuring the entrant's safety (McGlone v British Railways Board 1966 S.C.(H.L.) 1 per Lord Guest at page 15). Reference was also made in this connection to Titchener v British Railways Board 1984 S.C.(H.L.) 34.

Counsel for the second defenders contended that they were not under any duty to fence a physical feature which was at some distance from the public road and were entitled to rely on measures taken by their neighbours and, in particular, the kerbstones which projected upwards to a height of four inches and the two feet high railway sleeper barrier which constituted a sufficient warning. In assessing the nature of any duty it was also appropriate to take into account the capacity in which the pursuer came onto the land and in particular the fact that he was uninvited. So far as the second defenders were concerned, the existence of the car park on the first defenders' land could not reasonably result in the imposition of a duty on them of doing what they were under no duty to do before, namely, a duty of fencing. (Holland v The District Committee of the Middle Ward of Lanarkshire 1909 S.C. 1142 per Lord President Dunedin at page 1149.)

Counsel further criticised the pursuer's pleadings on the basis of a lack of any factual averments regarding awareness by the second defenders of the pursuer's potential presence on their land such as were necessary to establish the element of reasonable foreseeability. While the pleadings contain an averment to the effect that the gap afforded ready pedestrian access to the embankment, there was no averment to suggest that pedestrians had in fact been known to gain such access.

It is clear that while section 2 of the 1960 Act applies to both trespassers and persons entering the property by invitation or licence, that does not mean that the occupier must always show equal care for the safety of all such persons (McGlone per Lord Reid at page 11). In the present case the pursuer does not offer to prove that members of the public frequently or even occasionally entered the embankment from the car park by means of the gap so that licence to do so could be implied.

I do not consider however that the defenders' criticism of the relevancy of the averments in respect of the nature of the precautions which it is said ought to have been taken by them is well founded. What the pursuer avers is a duty on both defenders to erect a fence of such structure and proportions as would create a reasonable deterrent to persons intent on entering the embankment. The second defenders are also said to be under a duty to alert persons entering the embankment of the presence of the drop by signs or prominent warning notices. Had the pursuer averred facts from which a duty to fence could be inferred, the issue of what would in the circumstances have constituted a reasonable deterrent would in my view have been a matter for exploration at proof.

It follows from what has been said that I shall sustain the first plea-in-law for both defenders and dismiss the action as laid against both as irrelevant.