Scottish Court of Session Decisions

Gilmour v. East Renfrewshire Council [2002] ScotCS 152 (29th May, 2002)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LORD DRUMMOND YOUNG in the cause AILEEN GILMOUR Pursuer; against EAST RENFREWSHIRE COUNCIL Defenders:   ________________

 

 

Pursuer: K. Stewart; Robson McLean, W.S.

Defenders: Connal, Solicitor Advocate, McGrigor Donald

29 May 2002

1. On 15 December 1998 the pursuer was employed by the defenders as a principal teacher of mathematics at Mearns Castle High School, Newton Mearns. She now sues the defenders for damages following an accident which, she avers, she sustained on that date. Her action is based both on negligence at common law and on alleged contraventions of regulations 5(1) and 12(2) and (3) of the Workplace (Health, Safety and Welfare) Regulations 1992. Her averments of fact, so far as material, are as follows.
2. On 15 December 1998, at about 1.30p.m., the pursuer was walking along the main corridor at the school, down a sloping ramp leading from the school canteen. The floor of the ramp was covered in slippery vinyl tiles, and the ramp sloped steeply for a distance of around fifteen to twenty feet. As the pursuer walked down the ramp, she slipped on a potato chip and fell, sustaining injury. At the point on the ramp where the pursuer fell, the floor covering was uneven and worn through in places. The sloping, slippery and uneven service of the ramp rendered it more likely that a person who stepped on discarded food would slip and fall. On the date in question, the school lunch hour began at noon and finished at 1p.m.; that was 45 minutes earlier than normal. The defenders were aware that pupils walked up and down the ramp. They had no effective system in place to keep the ramp free of discarded food. Certain employees patrolled the upper and lower parts of the main corridor, but no one was assigned the task of patrolling the ramp area, which was the busy at lunchtime owing to the proximity of the canteen. Pupils were allowed to consume food outwith the canteen, and a significant amount of refuse was collected from school corridors after lunch each day. Cleaning of the corridors usually began immediately after the lunch break ended, but on the date of the pursuer's accident the cleaning arrangements failed to take account of the early lunch break. Cleaning did not start at 1 p.m., and the pursuer's accident occurred half an hour after the lunch break ended.
3. The pursuer's averments of negligence at common law are based on the duty of the defenders to provide employees with a safe place of work and a safe system of work. It is averred that the defenders knew or ought to have known that the slippery and uneven surface of the sloping ramp presented a material risk of injury to those using it; that there was a risk that food would be discarded on the ramp during the school lunch hour; that teachers would require to walk down the ramp during the lunch hour; and that, if the defenders failed to devise and enforce a system to prevent food from being discarded on the ramp, and to clean up any discarded food, there was a risk that persons walking on the ramp might slip and sustain injury. The pursuer then avers that it was defenders' duty to take reasonable care to ensure that the ramp area was kept free of discarded food, and a number of practical steps are specified to give content to the duty. Thereafter, the pursuer avers that it was the defenders' duty to take reasonable care to ensure that the floor covering on the ramp was not slippery, worn and uneven; once again, practical steps are specified, namely taking reasonable care to replace worn and uneven tiles and taking reasonable care to fit a floor covering which provided proper purchase or grip for those using the ramp. Finally, the pursuer makes the usual averment to establish a causal link between the negligence and the accident: "Had the defenders duly fulfilled all the duties incumbent on them in the circumstances, the pursuer would not have sustained the loss, injury and damage hereinafter condescended on".
4. The pursuer's statutory case is based on regulations 5(1) and 12(2) and (3) of the Workplace (Health, Safety and Welfare) Regulations 1992. Regulation 5 provides:

"(1) The workplace and the equipment, devices and systems to which this regulation applies shall be maintained (including cleaned as appropriate) in an efficient state, in efficient working order and in good repair".

Regulation 12 provides:

"(2)... (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 risk to his health or safety".

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

5. The pursuer avers that the corridor where she slipped was not maintained in an efficient state or in efficient working order, in contravention of regulation 5(1), in that it was not kept clean and was unsafe as a result of the presence of a potato chip on the ramp. She further avers that the floor of the ramp was uneven and slippery and sloped so as to expose persons walking on the ramp to a risk to health and safety, contrary to regulation 12(2)(a). Finally, she avers that the floor of the ramp was not kept free from any article which might cause a person to slip, trip or fall, contrary to regulation 12(3).
6. The defenders have a plea to the relevancy of the pursuer's averments, which was argued when the case called in the Procedure Roll. I should add that the defenders also had a plea to the effect that the case was not suitable for jury trial, but the pursuer's counsel indicated that he was content that the case go to proof before answer.
7. For the defenders, it was argued that the pursuer sought to make three separate and distinct cases. Only one of those was relevantly pled and properly linked in terms of causation to the accident. The first case was that the pursuer slipped on a discarded potato chip lying on the ramp. The second related to the construction of the floor, which was said to be slippery; this was unconnected with the discarded food. The third case was a based on the maintenance of the floor, in that the floor was said to be worn and uneven. The first of these cases was adequately linked to the accident, in that the pursuer was said to have slipped on the potato chip. The other two, however, were not linked to the stated cause of the accident, namely slipping on discarded food. For that reason they were irrelevant. In addition, the case based on the construction of the floor was irrelevant for the further reason that there was no material pled by the pursuer for which it could be inferred that the defenders knew or ought to have known of its dangerous condition. Thus the requirement of foreseeability was not satisfied. The case based on inadequate maintenance was likewise irrelevant because nothing was said about the system of inspection that ought to have been followed, or about the times at which inspection was in fact carried out, or about the risk of injury that ought to have been disclosed by such inspections. Once again, therefore, the requirement of foreseeability was not satisfied. In relation to the pursuer's statutory case, it was accepted that her case under regulation 5, based on a failure to clean adequately, was relevant. Regulation 12(2), however, was concerned with exposing persons to risk to their health or safety. In McGhee v Strathclyde Fire Brigade, 18 January 2002, it had been held that the concept of risk involved an element of foreseeability. The pursuer's pleadings did not contain adequate averments of foreseeability in relation to the construction or maintenance of the floor; that was as true of the statutory case as of the case at common law.
8. For the pursuer, it was argued that the defenders sought artificially to divide up the causes of the accident averred by the pursuer. The pursuer's case was that the accident had more than one cause; both the failure to clean floor and the state of the floor were averred to have contributed to the accident. Each of those cases was relevantly pled. Reference was made to McGhee v National Coal Board, 1973 SC (HL) 37. In relation to foreseeability, the worn and slippery nature of the floor tiles made them unsafe in themselves. Consequently there was no need for the pursuer to plead a detailed inspection case. In relation to the statutory case, the pursuer's case was based on the proposition that the state of the floor, including its construction and the quality of the tiles, involved a risk. Consequently the statutory test, as explained in McGhee v Strathclyde Fire Brigade, supra, was satisfied.
9. In my opinion the pursuer's case on record is relevant. It is correct, as the defenders point out, that the pursuer makes three cases against the defenders. The first is based on the failure to clear food from the ramp. The second is based on the averment that the floor of the ramp was covered in slippery vinyl tiles, which is a matter of construction of the floor. The third is based on the averment that the floor covering was uneven and worn through in places, which relates to the maintenance of the floor. I have no difficulty, however, in understanding how all three of these elements could together contribute to the pursuer's slipping and falling as she walked down the ramp. The pursuer avers that she slipped on a potato chip and fell. Thus her case is that it was discarded food that was the immediate cause of her slipping. Nevertheless, it is obvious that the slippery, worn and uneven surface of the ramp could have prevented her from keeping or regaining her balance. To that extent the nature of the surface would be a contributory cause of the pursuer's accident. The pursuer specifically avers that "The sloping, slippery and uneven surface of the ramp rendered it more likely that a person who stepped on discarded food would slip and fall". I am accordingly of opinion that there is a clear causal link averred between the alleged defects in the construction and maintenance of the floor and the pursuer's accident. Thus all three of the elements relied on could be causes of her fall and injury.
10. At proof the pursuer might succeed in establishing that only one or two of the three elements that she relies on actually contributed to her accident. In that event it is in my opinion clear that she could succeed in respect of the element or elements that are shown either to have made a material contribution to her injury or to have materially increased the risk of her injury. Authority to that effect is found in McGhee v National Coal Board, supra. In that case it was held that it is sufficient for liability if it is established that the defenders' actings materially increased the risk of injury to the pursuer. In the earlier case of Wardlaw v Bonnington Castings, 1956 SC (HL) 26, it had been held that a defender would be liable if it were established that his actings made a material contribution to the pursuer's injury. In the present case I am of opinion that the pursuer is offering to prove that each of the three elements in her averments of negligence either made a material contribution to her injury or materially increased the risk of her injury. That falls squarely within the ratio of the foregoing two cases.
11. In relation to the pursuer's case based on the dangerous construction of the floor, the defender argued that the averments contained no material from which the defenders ought to have known of its dangerous condition. The pursuer avers that the floor of the ramp was covered in slippery vinyl tiles, and that it sloped steeply for a distance of around fifteen to twenty feet. The ramp was situated in a main access corridor, and it seems clear that the state of the flooring would be evident to the defenders' employees who were responsible for the fabric of the building. I am accordingly of opinion that there is no substance in the defenders' argument.
12. The defenders likewise criticised the pursuer's averments relating to the dangerous condition of the floor, on the basis that she did not aver any particular system of inspection, or what such a system of inspection ought to have disclosed. The pursuer does aver, however, that at the point where she fell the floor covering was uneven and worn through in places. As with the slippery nature of the tiles, that should have been quite evident to the defenders' employees who were responsible for the fabric of the building. In a corridor used by large numbers of people every day, the existence of worn and uneven tiles may well have presented a very obvious risk to those using the corridor. In these circumstances I do not consider it necessary for the pursuer to aver any particular system of inspection, or the risks that such a system should have disclosed. If the pursuer's averments are taken pro veritate, any sensible system of inspection might have sufficed, and the risk would have been obvious to those carrying out such an inspection.
13. The pursuer avers that, following the accident, the defenders erected signs in the school corridors warning that the vinyl floor surface was slippery, and that two teachers had subsequently slipped on the surface of the ramp. The defenders submitted that those averments, which related to matters after the accident, were irrelevant. In my opinion they are relevant. The fact that signs were erected by the defenders may show that they recognised that the construction of the floor was dangerous, albeit after the pursuer's accident. Likewise, the fact that two teachers slipped subsequently may indicate that the surface was slippery, as the pursuer avers.
14. The defenders challenged the relevancy of the pursuer's statutory case so far as it was founded on regulation 12(2) of the Workplace (Health, Safety and Welfare) Regulations 1992, on the basis that that regulation required that the relevant risk should the foreseeable, but no averments to that effect were made. That regulation has most recently been considered by Lord Hamilton in McGhee v Strathclyde Fire Brigade, supra, where it was held (at paragraph 11) that the word "risk" used in the regulation "imports a prospect and a prospect involves some measure of foreseeability". Lord Hamilton continued "What that measure it is (or how in words or figures it should be expressed) may be debatable; but it appears to me to lie somewhere between a prospect of adverse effect to health or safety which is so remote as may probably be discounted and a likelihood in the sense of something which has a more than even chance of coming to pass". That was described as a "real risk" of injury. I respectfully agree that the notion of risk in a provision such as regulation 12(2) involves something that is more than minimal but may be less than probable, in the sense of more likely than not.
15. In the present case, the pursuer avers in relation to her statutory case that the floor of the ramp was uneven and slippery and sloped so as to expose persons walking on the ramp to risk to health and safety. In my opinion those averments are quite sufficient to indicate the nature of the risk; as with the common law case, the existence of an uneven and slippery surface involves a very obvious hazard, especially on a sloping area of flooring.
16. For foregoing reasons, I will allow a proof before answer on the whole of the pursuer's averments.