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Cite as: [2002] ScotCS 297

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Brown v. South Lanarkshire Council [2002] ScotCS 297 (21 November 2002)

OUTER HOUSE, COURT OF SESSION

A647/01

OPINION OF T.G. COUTTS, Q.C.

(Sitting as Temporary Judge)

in the cause

DAVID BROWN

Pursuer;

against

SOUTH LANARKSHIRE COUNCIL

Defenders:

________________

Pursuer: Guinane; Thompsons

Defenders: Clarke; HBM Sayers

21 November 2002

Introductory

On 6 January 1998 the pursuer (then 33 years of age) slipped and fell while walking his dogs on a path in Moor Park, Carluke. He raised an action against the defenders claiming damages on the basis that, at common law or under the Occupier's Liability Act, the defenders failed to take reasonable care for his safety in relation to the clearing of snow on that path.

The Locus

The pursuer resided at Kings Crescent, Carluke at the time of his accident. That crescent was connected to Moorside Street by a narrow lane. On the opposite side of Moorside Street from the lane, was an entrance into a public park, Moor Park, which was crossed by paths and contained a football pavilion, bowling green and children's park. It was used by school children and others to get from their school to the centre of the village. The local schools were on holiday on 6 January 1998. Moorside Street is one-sided, has a pavement next to the houses on one side and a hedge at the boundary of the park on the other. The park is owned and occupied by the defenders but the paths across it, although made of tarmacadam were not footpaths in terms of the Roads (Scotland) Act 1984.

Snow had fallen to a depth of about 5cms on the night of Sunday 4 January. There was no snowfall and temperatures were generally above freezing on Monday 5 January but there was a frost that night. On Tuesday 6 January the weather was clear but a slight drizzle began about lunchtime. Some melting of snow took place on the Monday. Thus may have served to deliniate the footpath with which this case is concerned.

Snow Clearing

So far as the roads within Carluke are concerned, the Roads Department cleared and gritted these by means of their large yellow vehicles. In Carluke itself the footpaths were cleared by an independent contractor. Mr Plenderleith its principal gave evidence which was wholly credible and acceptable. He and his firm alone were responsible for clearing the snow from pavements in Carluke. He described his equipment and the route he took. Because he was independent he could undertake the work at times which best suited the conditions. Accordingly on Sunday evening after the snowfall he went out himself in his Ford mini tractor snowplough and cleared a substantial number of the pavements in Carluke. He was anxious to undertake that operation while the snow was fresh and while it had not been trampled underfoot and thus compacted. If necessary, after his tractor had passed over the area, salt and grit was put down on the pavements. This would be done by employees other than himself in the course of the following day. On the Monday evening he made an attempt to utilise his snowplough again but discovered that the snow had compacted and was frozen hard and he was unable to achieve any clearing.

His snowplough was a single blade. It pushed the snow to one side and one side only. It went round the pavements of King Street and Moorside Street. Only the side of Moorside Street next to the houses was treated. Neither he nor his employees, he said, went into the park. The employee who would have been responsible for dealing with Moorside Street at the time, a Mr Orr, died in January 2002. However, Mr Plenderleith's view about whether any snow had been cleared on the footpath in Moor Park was expressed as follows: "We never ever went into public parks", and, "no way would we go through Moor Park". He also gave evidence, which was acceptable and corroborated by the defenders' witnesses, that nobody else dealt with footpaths in Carluke.

The Pursuer's account of his Accident

The pursuer said that at lunchtime on Tuesday 6 January he set out for Moor Park with his two collie dogs. They were on a lead. It is uncertain whether or not they were released from the lead at any stage. He described going round Kings Crescent and through a lane to Moorside Street the pavement of which, he said, had been cleared, with snow piled up on either side. The way he intended to go, i.e. through the park, had also been cleared with snow piled up on either side of the path. Both the pavements and the pathway through the park were slippery and he knew that the path in the park had not been gritted.

The pursuer said that while at a point about 30 metres into the park, he slipped and fell and sustained a comminuted fracture of his right ankle bones. He was seen there by a Mr Dickson, who gave evidence but was unable to describe anything of relevance and by his brother-in-law Mr Maling who helped him into his car and took him to Law Hospital. His wife had been summoned to the scene by one of his children but she did not take the pursuer seriously, thinking that he and the child were "winding her up" and returned to her house. Later she was told by Mrs Maling, her sister, that the pursuer had indeed sustained a serious injury and had been taken to Law Hospital. The pursuer's wife was unable to describe the conditions in the park but said that the pavements had been cleared and snow was piled up on either side as a result of a mini tractor having passed over the scene. The mini tractor she spoke about was not the vehicle driven by Mr Plenderleith because that vehicle had a cab. Mrs Maling on the other hand did speak of a vehicle with a cab doing snow clearing. The pursuer was unable to speak to the circumstances of his fall. There was an entry in the hospital records indicating that he slipped and fell and was dragged by his dogs. The pursuer's own recollection was that he had released his dogs but had managed to summon them and put them back on the lead while on the ground with his broken leg. Another witness thought that the pursuer's son had put the dogs back on the lead. There was no evidence about what happened to the dogs when the pursuer was taken into his brother-in-law's vehicle.

The footpath through Moor Park was not gritted. I am unable to accept on the evidence which was led that it had even been treated with a snowplough let alone one operated by the defender's employees.

Grounds of fault pled by the Pursuer

The pursuer's case proceeds on the assumption that (a) the defenders, through their servants had snowploughed but failed to grit the path through the park and that it was their responsibility to grit it if they should plough it. Pursuer's counsel very properly accepted that as a matter of priorities, the footpath in the park was not a footpath which it was the defenders' duty in the circumstances of this case to have cleared by the time the pursuer sustained his accident. The pursuer's case was, as argued ultimately that, having cleared the path by means of a snowplough and accordingly, it was said, leaving it with compacted snow, the defenders failed in their duty of reasonable care properly to attend to the path. There can be no doubt that had the path been cleared inadequately, a duty could arise in the circumstances. I am unable to hold, however, that the defenders did clear a pathway through Moor Park. Had it been material I would also have been unable to hold that the independent contractor, Mr Plenderleith cleared a path. I am unable to find any breach of duty on the part of the defenders. They had no obligation in the circumstances to clear the path and did not do so.

Contributory Negligence

It was accepted by counsel for the pursuer that since the pursuer knew that the path was dangerous on his own admission, he must accept some responsibility for the accident which happened. He knew or ought to have known that the path, if cleared, had not been gritted. Had the matter arisen I would have held him 50% to blame for his own accident.

Damages

The pursuer had two spells off work, the first of six months and the second of some four months first while the fracture was healing and subsequently when the pins and plates with which his leg had been held were removed. His comminuted fracture of the right ankle joint with gross displacement also involved injury to the ligamentous capsule of the right ankle joint. Although he was allowed home in three days he continued to attend the out-patient clinic and remained in plaster for a total of about eight weeks. He began weight-bearing and physiotherapy but complained, justifiably, of pain. There was a further episode of immobility when the screws and plates were removed and he continues to suffer intermittently from pain and discomfort. Counsel for the defenders did not dissent from the pursuer's claim of £12,000 for solatium past and future with interest thereon at 4% on one half. While I would not have restricted solatium to that sum nor found it only half attributable to the past had the matter been left to the court, since parties were agreed I adopt those figures. The pursuer had a claim for expenses of taxi fares and prescription charges and necessary medical certificates which he reasonably put at £150 inclusive of interest. I would have awarded that sum. There was also a claim for services rendered by the pursuer's wife, from whom he has now separated. She required to assist him for a short time to make special preparation for his meals and toileting while he was largely immobile and finding it very difficult to go upstairs to his lavatory. A claim for these services was put forward. The pursuer suggested between £250 and £500 as a lump sum as opposed to any calculation on an hourly basis. The defenders would have accepted £250 as a reasonable estimate. I would have accepted that £250 was an adequate recognition of the pursuer's wife's extra duties following the accident.

Some controversy arose over the pursuer's claim for loss of wages. His wages were fully paid by his employers, E.W.S. Like their predecessors, the British Railways Board, his employers stipulated that sick pay, should damages be awarded as a result of an action brought in relation to an accident involving absence from work would be treated as a loan and was repayable. The pursuer asserted that he was contractually bound to repay that sum under those conditions. There was some evidence on this matter. The employer's representative said that it was not in every circumstance that such a claim was made. So for example, should the pursuer be found negligent, as is the case here, they would not seek to reclaim the whole amount they had advanced but merely that proportion which the pursuer had in fact recovered. A contention was made that this was not a recoverable amount since the pursuer had in fact sustained no loss because he had been paid his wages and also that the recovery provisions were unenforceable. I disagree. It seems to me perfectly understandable that the pursuer could say that he had sustained a wage loss but that he had obtained a loan from his employers of the amount of his wages.

There was also a dispute about the amount of that loss. The pursuer claimed £13,019.14 but no interest since he had in fact not been out of the money. The defender calculated that taking an average pre-accident wage and the number of days of absence, the total was £12,087.49. I do not accept the defenders' method or way of calculation. It is apparent from Production 6/20 that the pursuer was paid £13,019.14 as refundable sick pay by the defenders and I accept that was the sum.

However, on the whole matter the pursuer has failed to establish that his injuries were caused by the fault or negligence of the defenders and I will accordingly repel the pursuer's pleas-in-law, sustain the defender's third plea-in-law and grant decree of absolvitor.