Scottish Court of Session Decisions

Clegg v. North Ayrshire Council [2002] ScotCS 127 (7th May, 2002)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LORD CARLOWAY in the cause ANNE ORMOND CLEGG Pursuer; against NORTH AYRSHIRE COUNCIL Defenders:   ________________

 

 

Pursuer: Di Rollo, Q.C., A.J. Carmichael; Digby Brown, S.S.C.

Defenders: Marney; Biggart Baillie

7 May 2002

1. Introduction

1. The pursuer was a 48 year old kitchen maid employed by the defenders at Garnock Academy when she suffered an injury at work on or about 20 May 1997. She had, at that time, worked for the defenders at the school for some twenty years. The defenders conceded ultimately that the pursuer had been involved in some kind of accident while working for them and quantum was agreed at £5,000 inclusive of interest to the date of the proof on 23 April 2002. It was accepted by both parties that no question of contributory negligence arose. The issues for the Court were: (i) what had happened to the pursuer and (ii) whether whatever had happened to her was caused by the fault of and/or breach of statutory duty by the defenders.

2. Evidence

(i) THE ACCIDENT

2. Garnock Academy was built in 1972. It is equipped with a kitchen which has a door giving out into a car park and loading area. A ramp runs from the surface of this area up to the level of the door. The ramp is shown in certain photographs [Nos. 6/6 and 7/7 of process]. It has a concrete surface etched with chevrons and edged with facing brick. The ramp is used for deliveries. Trolleys are wheeled up and down it and staff use it to carry foodstuffs and other goods in and out of the kitchen. At the time of the accident, bread was delivered to the kitchen on plastic breadboards. Once the bread had been unloaded, the empty breadboards were put outside the door, next to the ramp. Such a breadboard can be seen in position in the photographs. The breadboards would be carried by one of the kitchen maids down the ramp, placed in position and the kitchen maid would then turn and go back up the ramp to the kitchen.
3. According to the pursuer, at about 9.45 a.m., she took an empty breadboard down the ramp and put it down before turning and walking back up the ramp. She was wearing white "nurses" shoes with rubber soles, which she had to provide herself. As she was about half way up the ramp, her right foot slipped away from her. She fell to the ground, fracturing her right wrist as she put her hand down to protect herself, grazing her right arm and bruising her right buttock. After lying on the ground for a while, she got up went back into the kitchen and reported the accident to Mrs. Cathcart, her area manager. She asked either Mrs. Cathcart or Mrs Ritchie, her supervisor, to enter the accident in the accident book. She tried to carry on working but her wrist and hand began to swell and she eventually telephoned her sister, Helen Weir, to come and take her to Crosshouse Hospital in Kilmarnock.
4. The pursuer told her sister what had happened. Her sister said that the pursuer had told her that she had slipped on the ramp. The pursuer later told her husband what had occurred. He thought that she had said that she had fallen on the ramp when going back up it. Some ten days later, the pursuer signed an application [Pro. 6/5] seeking the assistance of her Trade Union in which her husband entered the details of her accident as follows:

"3. GIVE FULL DETAILS OF THE CAUSE OF ACCIDENT INCLUDING WHERE IT HAPPENED.....

Carrying out a bread board to be [indistinct] the baker to uplift the following morning. Turning to go back into kitchen I slipped at access ramp and fell on my right hand side where I got my injuries...

In your opinion, who was to blame for the accident...

The ramp which has no handrails and is badly designed."

An incident report dated 21 May 1997 [Pro. 6/3], signed by the pursuer's supervisors but not the pursuer, recorded the incident as:

"Employee was removing bread baskets from unit, slipped and fell on step..."

On the Open Record, the pursuer's account had started out as "slipped", then changed to "tripped" before returning to "slipped" before the Record closed. The Open Record also varied in its references to whether it was raining at the time (the incident report had referred to 'drizzley rain') but, in evidence, the pursuer was unable to recall just what the weather had been like. On the Closed Record the accident was averred as :

"She deposited the bread board and turned to walk back up the ramp. As she did so, she slipped and fell on the ramp..."

5. Although the pursuer's account of the accident was challenged under reference to the various entries in the Open Record and the account in the Closed Record, I am of the view that the pursuer was both credible and reliable when she spoke to slipping on the ramp when about half way up it on her return to the kitchen. She gave her evidence in a straightforward manner, if somewhat understandably indignant at the suggestions put to her, albeit quite properly, in cross-examination that she was not an accurate historian. Although the pursuer's sister spoke to discussing the case with her, I have little hesitation in accepting the sister's evidence that the pursuer had indeed told her not long after the incident that she had slipped on the ramp. The pursuer's account was also supported in broad terms by the note in the Trade Union application form. Although it is not a detailed narrative and might, on a cursory reading, be taken to mean that the accident had occurred when the pursuer was turning, it does refer to slipping "at" the access ramp and clearly attributes fault to the ramp. This makes it clear that the pursuer was placing the locus of the accident on the ramp.
6. I do not consider the discrepancies between the pursuer's evidence and the state of the pleadings as material. They were all fairly minor and reasonably understandable having regard to the documentation and the problems which can naturally occur in translating an account of an accident into formal averment. Given the existence of the account given shortly after the accident to her sister and the recorded details in the Trade Union form, I do not consider that the pursuer's failure, which the defenders founded upon, to call Mrs. Cathcart is significant. She does seem to have been the first person to whom the pursuer made a formal report. On the other hand, she is, so far as I am aware, an employee of the defenders. I do not know why she was not called by either party or whether she could have added anything to the equation. She does not seem to have been the author of any accident report. Indeed the accident book produced [Pro. 6/2] seems to have been signed by Anne Ritchie. It was not spoken to by her. The incident report [Pro. 6/3] was spoken to by Nicola Ashwood but she was unable to recall what she had been told or by whom.
7. In all the circumstances, I am persuaded that the accident to the pursuer occurred in the manner averred upon record (p. 5 D-E), namely that she slipped when walking up the ramp.

(ii) CONDITION OF THE RAMP INCLUDING PRIOR ACCIDENTS

(a) LAY WITNESSES

8. The pursuer had taken a photograph of the ramp [Pro. 6/6] some months after the accident. She spoke to the condition of the ramp having grown steadily worse as the years passed, with bits of the concrete coming loose, especially in the area of the chevrons. Although she had used the ramp for many years without serious incident, she did say that she had a few "hits and misses" with it. Working in the kitchen was "against the clock", but she had still been watching what she was doing when going up the ramp. The pursuer's sister spoke of having worked for fifteen years at Garnock Academy prior to 1991 and having always been wary of the ramp. She said that it was slippery and that she had slipped on it even though she had not been injured.
9. Eleanor Beattie, who had worked at Garnock Academy for nine years, said that she had fallen on the ramp on 12 March 1997, when going out to the bins with a bag of rubbish. She fractured her right arm. She described her fall as "slipping", while wearing trainers, about half way down the ramp. She said the ramp was slippery. She could not recall, as was put to her in cross-examination, slipping off the edge of the ramp. The entry in the accident book [Pro. 6/2] read that she had "slipped on a stone built ramp". Ruth Knox said that she had suffered an accident on the ramp at Easter 1993 when she "slipped" on the ramp and broke her ankle. She did not recall, as again was put to her in cross-examination, that she had tripped or why she had lost her footing. With both of these witnesses, although they were understandably not entirely clear exactly what had happened to then, I was left with the clear impression that whatever it was had involved in each case, a slip on the ramp.
10. Gordon Richardson, the janitor at the school for over twenty years, used the ramp daily and was of the view that it was not slippery. However, he had not been aware of the accidents prior to that of the pursuer. Mr. Richardson's tasks and function in relation to the kitchen and ramp were quite different from those of the pursuer and her fellow kitchen workers. I do not place any substantial weight on Mr. Richardson's evidence other than to note that such was his view. On the other hand, the defenders' catering manageress, Nicola Ashwood, had recently carried out a risk assessment in which she had noted the potential of a problem with the ramp. She said that she was always cautious on the ramp. This is of some interest given that she was the pursuer's supervisor.
11. Taking the evidence of all these lay witnesses together, it is clear that, for some years prior to the pursuer's accident, the ramp had been in such a condition that it was likely to and did in fact cause employees to slip and fall, thus sustaining relatively serious injuries. Since the episodes involving the witnesses Beattie and Knox were reported to the defenders, it seems equally clear that not only ought the defenders to have known this, but that they did know this.

(b) EXPERTS

12. Philip Glen, a consulting civil and construction engineer, spoke to the report which he had written for the pursuer's agents [Pro. 6/1]. Mr. Glen's experience was as a consulting engineer in building, construction and engineering. He had inspected the locus on 9 January 2001 along with the parties' agents and the defenders' expert, Walter Cameron. Mr. Glen had apparently taken photographs to illustrate his report but these had not been lodged prior to the proof and I refused a motion to lodge them during the proof given the absence of any explanation for their lateness and possible prejudice to the defenders in their use without advance notice.
13. Mr. Glen recorded that:

"An appreciable amount of wear to the concrete surface of this ramp was noted, particularly in the most heavily trafficked zone. The wear has comprised the erosion of the finer material of the concrete to leave exposed the granite coarse aggregate stone"

He said that the wear had removed some of the fine aggregate and cement, causing the large aggregate stones to be exposed and polished. Because of the gradient, Mr. Glen could not mechanically measure surface friction levels but reached a subjective view. As reported by him, there was:

"a noticeable reduction in underfoot friction in the areas where wear had taken place as compared with other areas where the surface condition was closer to the original."

14. He calculated that the slope of the gradient was steeper than 1 in 6, having recorded the length of the ramp as 1.73 m long and noted in his working papers (although it did not appear in his report) the height at the door end as 295 mm. He was of the view that such a gradient was too steep in safety terms. Indeed using the modern standard, which permitted pedestrian ramp gradients of only 1 in 12, it was double what it ought to have been. Because of the combination of gradient and wear, it was Mr. Glen's view that the ramp did pose a hazard through a person tripping or slipping.
15. Walter Cameron, Health and Safety Consultant, gave evidence for the defenders. Mr. Cameron's background is in Health and Safety matters generally, notably in connection with his many years experience in the Factories Inspectorate. He had prepared a report but it was not lodged nor was there any motion made that he should be allowed to refer to it. This disabled Mr. Cameron to an extent since, amongst other things, he had included measurements on it relative to the gradient but could not remember these except, perhaps, under reference to the level of brick courses. I am not sure that Mr. Cameron actually disagreed with Mr. Glen in evidence relative to the gradient but I note formally that I prefer Mr. Glen's evidence on measurements in any event because he had made a note of them which he was able to consult in Court.
16. One criticism of the evidence of Mr. Glen was that the surface he had examined was some years older than the one at the time of the accident. However, the defenders' own expert accepted that there would not have been a great deal of change in these few years given the vintage of the ramp. I therefore reject that criticism. Other criticisms were that he had not tested the ramp in the wet, identified the precise location of the slip or called for production of the pursuer's shoes. However, given the exercise which he was carrying out at the time he was conducting it, I do not considering that the failure to extend his examination to these matters materially affects the conclusions he did reach on the central points he considered, namely whether the condition of the ramp was safe.
17. Mr. Cameron agreed with the passage from Mr. Glen's report that there had been an appreciable amount of wear comprising the erosion of the finer material of the concrete to leave exposed the granite coarse aggregate stone. He disagreed that the stone would be rounded and polished and thought, on the contrary, that it would be rough gravel. He expressed the opinion that the wear and tear to the surface would make it less slippery. Indeed, he had walked and hopped up and down the ramp, having poured water on it, and thought that the surface condition provided a reasonable walking surface for a normal person using reasonable care. He did not consider the gradient dangerous.
18. I prefer Mr. Glen's evidence on the wear and tear of concrete building surfaces and the safety of gradients in buildings to that of Mr. Cameron as a generality given that I regard this area of safety to be more within Mr. Glen's field of expertise. He was able to speak to these matters with a greater degree of objectivity based upon known fact than Mr. Cameron, whose ultimate conclusion was almost anecdotal in its assessment based partly on hopping up and down and curious in its ultimate proposition that a worn surface gives greater grip. In any event, I find Mr. Glen's evidence on the particular aspects preferable because of its content. His evidence on the reduced friction provided by a worn concrete surface was convincing. When there are relatively large pieces of stone granite aggregate used in concrete then their exposure through a well used surface would be likely to result in their becoming polished and hence slippery. I accept that evidence in preference to Mr. Cameron's view that what would be exposed would be "rough gravel". That did not appear likely, albeit that there might be rough parts of the surface which still afforded grip, indeed possibly better grip than an entirely smooth finish. Be that as it may, the creation, by wear, of polished stone areas would render other parts slippery and hence likely to cause persons to fall and injure themselves.
19. So far as the dangerous nature of the gradient is concerned, I again prefer the evidence of Mr. Glen. His opinion was based not purely on subjective testing but upon reference to known building standards. In that regard, the fact that the gradient was at a slope well in excess of the accepted modern standard in terms of safety is a factor which can be taken into account in determining whether the ramp posed a danger. This is so even although any original contravention of technical building standards may not, of itself, give rise to liability for negligence at common law. Having regard to the combination of gradient and wear, I hold that this ramp did pose a danger to persons using it. I am encouraged in that view by the fact that this was the third serious accident occurring on it by reason of what the various victims termed "slipping".

(c) OBJECTION

20. I should add here that, upon record, it is stated that the permitted gradient of 1 in 12 is contained in the Building Standards (Scotland) Regulations 1990 (p. 6 B-C). A response to that by the defenders is that the ramp was built in the mid 1970s (p. 7 D-E). During the course of the cross-examination of Mr. Glen, it was put to and accepted by him that the 1990 permitted gradient took into account the needs of the disabled. Mr. Glen then asked his cross-examiner to be permitted to mention the 1963 Standards, an invitation which was declined. In re-examination Mr. Glen was questioned about this but the line was objected to on the basis of lack of record for any reference to the 1963 Standards. This was the only objection during the proof which was ultimately insisted upon. I allowed the line under reservation of all questions of competency and relevancy. Mr. Glen's point here was that in the 1963 Standards, which did not take account of the needs of disabled persons, the maximum permitted gradient was 1 in 10, still well below what was constructed here. Having heard this evidence, I am of the view that the re-examination on the 1963 Standards was a legitimate response to the proposition put in cross-examination that the modern gradient took account of disabled needs, the suggestion being that therefore it could be ignored for present purposes. The re-examination revealed that the needs of the disabled reduced the gradient only marginally and that therefore a look at the 1990 maximum remained relevant. Furthermore, I do not think that a mention of earlier regulations could have come as a complete surprise to the defenders given their own response relative to dates on record. I formally repel this objection, even although, ultimately the permitted passage of evidence had only a peripheral bearing on my eventual conclusion.

3. Submissions

21. Counsel for the pursuer moved that his first plea-in-law should be sustained in respect of both his common law case and that under the Workplace (Health, Safety and Welfare) Regulations 1992 (SI 1992 No. 3004). The common law case was restricted to the condition of the surface of the ramp in dry conditions, the pursuer accepting that there was no evidence to support the cases on record which referred to wet conditions or the need for a handrail. In short, the pursuer maintained that the state of the ramp produced a situation whereby injury to employees was reasonably foreseeable to the defenders, having regard to the wear and tear of the ramp over many years, the other accidents reported and the difficulties experienced by members of staff. Had the defenders addressed themselves to the problem (i.e. carried out some form of risk assessment as they ultimately did), the problem would have been recognised and rectified.
22. The pursuer founded only on regulations 5(1) and 12 (1) in relation to the ramp surface. She did not rely on the case pled under regulation 17. Despite the obligation in regulation 5 being one of maintenance, it was said that this obligation could apply to the inadequacy of the gradient at which the ramp was constructed as well as the surface condition. The Regulations imposed strict liability (McLaughlin v East and Midlothian NHS Trust 2001 S.L.T. 387 O.H.) and, since the ramp was not maintained in an efficient state and in good repair, liability was established if a causal link were proved. In relation to regulation 12, it was said that, although it referred to construction of surfaces, it too could apply not only to the gradient but to the wear and tear defects. The inclusion by regulation 12(2) of the need to avoid surfaces which exposed a person's health and safety meant that liability would be established if a risk existed and had contributed to the accident (see generally Munkman on Employer's Liability (13^th ed) paras 12.14-16). There was no need to prove foreseeability of that risk (cf McGhee v Strathclyde Fire Brigade, unreported, 18 January 2002, Lord Hamilton). The issue could be looked at with hindsight. However, in this case foreseeability had been established.
23. The initial thrust of the defenders' submission was that the pursuer's account of the accident should not be accepted as credible and reliable for, amongst others, the reasons already noted. That submission, I have rejected (supra). On the common law case, it was maintained that the pursuer's averments were irrelevant having regard to the dicta of the Lord President (Dunedin) in Morton v Dixon 1909 SC 807 at 809 which was still good law (Gibson v Strathclyde Regional Council 1993 S.L.T. 1243, Lord Weir at 1247). The submission on the Regulations focused on the evidence of Mr. Cameron that the ramp was safe and that no 'real' risk of injury had been proved (see McGhee v Strathclyde Fire Brigade (supra). It was not contended, however, that any foreseeability was required to establish a breach in respect of regulation 12. In respect of both the common law and statutory cases, causation had not been established. The pursuer had walked up and down the ramp for fourteen years without incident. She was unable to say what had caused her to slip. The only inference was that any slip had been caused by her own fault and not the state of the ramp.

4. Conclusion

24. As recorded above, I accept the pursuer's evidence that she slipped when going up the ramp and that this slip occurred when she was taking appropriate care. I accept also the evidence that the ramp posed a hazard to employees because the combination of the state of its surface and its gradient made it slippery at least in part. It is true to say that the pursuer could not say precisely what had caused her to slip. However, if it is proved that a surface is in part slippery and a person happens to slip on that surface, then, in the absence of any other acceptable explanation, I do not consider that it is difficult to conclude, at least as a matter of probability, that the state of the surface caused the slip. I so hold in this case. That being so, the next question is whether the defenders were at fault.
25. Lord Dunedin's well known remarks in Morton v Dixon (supra) relate to the need, in a fault by omission case, for proof that the employer either failed to abide by the common practice in the relevant industry or that the omission involved what has often been paraphrased as "obvious folly" relative to the safety of the employees. However, cognisance has to be given to the many glosses and commentaries upon that dicta over what is now almost a century, notably the remarks in Brown v Rolls Royce 1960 S.C. (H.L.) 22, the case mentioned by Lord Weir in Gibson v Strathclyde Regional Council (supra). The dicta should not be seen as laying down a proposition of law applicable generally over the field of employer's liability since the ultimate test remains whether or not the employer has taken reasonable care for the safety of his employees in all the circumstances of the case. In the present case I am satisfied that such care was not taken. The ramp had been deteriorating for many years, to the stage at which exposed aggregate was appearing through the surface. The defenders had been alerted to the fact that there might be problems with the ramp by reason of the occurrence of two quite separate incidents on it both causing fairly serious injuries to their employees. Had they looked, as they should have done, at the situation at the time the second of these accidents had occurred, they would have been bound to notice the deteriorated state of the surface. Furthermore, had they considered the matter properly, they would have noticed too that the gradient was well in excess of the maximum permitted by the regulations in place at the time of the two prior accidents. They would have appreciated that the combination of these deficiencies presented a danger to the health and safety of their employees. An employer taking reasonable care would, in such circumstances, have remedied the problems in relation to the surface and the gradient. Had that been done, the pursuer's accident would not have happened. In all these circumstances, I find that the pursuer has made out her common law case on record.
26. Regulation 5 of the 1992 Regulations provides:

"(1) The workplace...shall be maintained in an efficient state, in efficient working order and in good repair."

The ramp was part of the pursuer's workplace. She used it when putting out the breadboards. It was not, for the reasons given above, kept in good repair since it was suffering from an appreciable amount of wear comprising the erosion of the finer material of the concrete, leaving exposed the granite coarse aggregate stone. Since I am of the view that this wear materially contributed to the pursuer's slip and the regulation imposes strict liability (McLaughlin v East and Midlothian NHS Trust (supra)), I am also of the view that the pursuer has made out a case for liability based on this regulation. I do not consider that the problems with the gradient would fall under this regulation in respect that there has been no failure of maintenance in relation to the gradient. However, regulation 12 provides:

"(1) Every floor in a workplace and the surface of any traffic route in a workplace shall be of a construction such that the floor or surface of the traffic route is suitable for the purpose for which it is used.

(2) Without prejudice to the generality of paragraph (1), the requirements in the paragraph shall include requirements that -

(a) the floor, or surface of the traffic route, shall have no hole or slope, or be uneven or slippery so as, in each case, to expose any person to a risk to his health or safety..."

Again, regulation 12(1) imposes strict liability. It would encompass problems stemming from the original design of the construction such as the gradient as well as difficulties emerging thereafter, such as the exposure of polished aggregate. Since I have held that the ramp was not suitable for its purpose, in that it was slippery so as to expose employees to a risk to their health and safety, I also hold that the pursuer's case under this regulation has been proved.

27. I will therefore repel the defenders' first to fifth pleas-in-law, sustain the pursuer's first plea-in-law and grant decree in favour of the pursuer for payment of the agreed sum of £5,000 together with interest thereon at the judicial rate from 23 April 2002.
28. As agreed, I will also certify Mr. Peter Rae and Mr. Philip Glen as skilled witnesses for the pursuer and Mr. Walter Cameron as a skilled witness for the defenders. I will also note Nicola Ashwood as in attendance for the pursuer albeit that she was ultimately called by the defenders.