Scottish Court of Session Decisions

Kirk v. Royal Bank Scotland [2003] ScotCS 120 (25 April 2003)

OUTER HOUSE, COURT OF SESSION
A996/02	OPINION OF T G COUTTS Q.C. Sitting as a Temporary Judge in the cause AMANDA J KIRK Pursuer; against ROYAL BANK OF SCOTLAND Defenders:   ________________

 

 

Pursuer: S Bennett; Henderson Boyd Jackson

Defenders: Hofford; HBM Sayers

25 April 2003

1. During the hours of darkness the pursuer used the defenders' cashline machine at their Drymen branch. The machine was positioned at a location in the defenders premises where there was a flight of stone steps which led to a lower street. The gate at the bottom of the steps had been permanently secured and the steps were accordingly not in use. The pursuer avers that the steps were not well illuminated and that she was unable to see the state they were in due to their slimy moss and silty run off and that they were slippery. The pursuer avers that they posed a potential danger to visitors to the premises using them in wet conditions at night. There was nothing to prevent members of the public who had been using the machine from accessing the steps at the top. She slipped when descending them and sustained injury.
2. The pursuer pleads that in the exercise of reasonable care "as occupiers of the said steps", the defenders should have kept the steps well illuminated and posted warning signs against a potential danger. Alternatively, she pleads that it was their duty to take reasonable care to prevent pedestrians from accessing the steps by fencing or cordoning them off.
3. The defenders' counsel attacked the case in that there was no proper specification of what it was caused her to fall, or how long any danger had been there before the accident, or how the knowledge of the condition of the steps should have been brought home to the defenders. There were no averments about inspection. Accordingly the case should be dismissed.
4. In response, Mr Bennett for the pursuer cited the well worn passages in Jamieson v Jamieson and Miller v The South of Scotland Electricity Board about dismissal of a pursuers' case. He asserted that the defenders had not shown that the pursuer was bound to fail. He did not deal with the criticism about the length of time any danger had been present, or suggest that there was any good cause why the steps should have been illuminated given that they were locked off at the bottom and consequently not in use. Additionally he said that his case pled, at common law, was adequate for enquiry despite the Court's comment that a case against an occupier of premises can only be brought under the Occupiers Liability (Scotland) Act 1960. Wallace v Glasgow District Council, 1985 SLT 23 makes that clear.
5. The pursuer's case is pled on alternative bases of alleged fault. I consider that there are no relevant adequate or sufficient averments to entitle the pursuer to enquiry about the surface condition of the steps at the time of the accident or the necessity that these should be lit, and I am not be prepared to admit those averments to probation.
6. However, it cannot be said in my view at this stage, that the case made that the steps should have been cordoned off in some way at the top when they had been locked at the bottom, was bound to fail. That might be said to be an obvious or necessary precaution. If the steps are removed from use by a gate being secured at the foot thereof, and there is open access to the steps at the other end, then the condition of the steps as a result of disuse cannot be said to be free from danger.
7. Accordingly, I would have been prepared to allow the pursuer's alternative case to proceed to a proof before answer, albeit that pleadings require to be judged by the weaker alternative, had that case been properly pled under the Occupiers Liability Act.
8. In order to allow the pursuer an opportunity of considering the above decision, the case will be put out By Order before an interlocutor is pronounced. That course was urged upon me by pursuers counsel.