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Cite as: [2003] ScotCS 185

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Brown v. Chief Constable Strathclyde Police & Anor [2003] ScotCS 185 (03 July 2003)

OUTER HOUSE, COURT OF SESSION

A2050/02

OPINION OF LORD BRACADALE

in the cause

WILLIAM BROWN

Pursuer;

against

(FIRST) WILLIAM RAE, CHIEF CONSTABLE OF STRATHCLYDE POLICE and

(SECOND) STRATHCLYDE JOINT POLICE BOARD

Defenders:

________________

Pursuer: Clancy Q.C. Balfour & Manson

Defenders: Miss Smart; Simpson & Marwick W.S.

3 July 2003

Introduction
[1] This case came before me on the Motion Roll on a motion by the pursuer for interim damages.

The pleadings
[2] On 25 October 1999 the pursuer, who was a sergeant of police in the Strathclyde Force, had an accident at Stewart Street Police Office in Glasgow. The accident happened in the course of the pursuer's employment with the first defender. The accident occurred while he was climbing a staircase. The staircase was constructed of concrete. The vertical and horizontal surfaces of the stairs were overlaid or coated with a finishing surface known as Veitchi flooring.

The pursuer avers that he placed his foot on a step at or near the top of the section of staircase between the ground and first floors. When he did so a piece of Veitchi flooring and concrete broke off from the edge of the step where the horizontal and vertical surfaces meet. He avers that as a result he lost his footing and fell, sustaining injury.

[3] The defenders admit that sections of the staircase were in need of repair at the time and that the requirement for repair was known to senior staff within A Division of Strathclyde Police and to the second defenders' Property Services Department. The defenders explain that following the need for the stairs to be repaired, which had been raised at the Divisional Safety Meeting on 31 August 1999, the second defenders' Property Services Department had obtained a quote for the repair works. This had been obtained prior to 25 October 1999. Pending the execution of the works warning signs had been erected at the top and bottom of the stairs and on every landing. The signs read "Caution - broken stair treads". The pursuer disputes the existence of such warning signs prior to the accident and avers that he himself posted warning signs in the stairwell after his accident.

[4] The defenders admit that the pursuer sustained an accident while climbing the staircase. They do so under explanation that the circumstances in which the pursuer came to have the accident are not known and not admitted.

[5] The pursuer pleads a common law case against the second defenders as occupiers of the staircase. He pleads a statutory case against both the first and second defenders averring breaches of the Workplace (Health, Safety and Welfare) Regulations 1992, Regulations 5(1) and (12). Regulation 5(1) provides:

"The workplace to which this regulation applies shall be maintained in good repair".

Regulation 12 provides:-

"(1) Every floor in a workplace and the surface of every 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".

Relevant law

Rule 43.9 of the Rules of the Court of Session 1994 provides:-

"(3) On a motion the Court may, if satisfied that

(a) the defender has admitted liability to the pursuer in the action, or

(b) if the action proceeded to proof the pursuer would succeed in the action on the question of liability without any substantial finding of contributory negligence on his part.

Ordain that the defender make an interim payment to the pursuer for such amount as he thinks fit, not exceeding a reasonable proportion of the damages which, in the opinion of the Court, are likely to be recovered by the pursuer".

[6] The appropriate test to be applied is set out in Cowie v Atlantic Drilling Co Ltd 1995 S.C.288. In a case where liability is not admitted, the first question which has to be considered is whether the Court is satisfied that, if the action were to proceed to proof, the pursuer would succeed on the question of liability to any extent. In delivering the Opinion of the Court Lord President Hope at page 292E said:

"Walker v Infabco Diving Services Limited appears to have been the only previous case where the proper application of the rule has been raised in the Inner House. In that case it was accepted by counsel on both sides that the test to be applied in order to answer this question was that formulated by Lord Maxwell in Douglas's CB v Douglas. This was whether it was practically certain that the pursuer would succeed on the question of liability, or whether he would almost certainly do so: see Lord Stott at page 637, Lord Ross at page 639. What Lord Maxwell said was that 'satisfy' in this context required something less than complete certainty, but more than probability or even high probability. In Nelson v Duraplex Industries Limited Lord Grieve agreed with Lord Maxwell, adding that he was inclined to the view that, 'to be satisfied', the Court must be of the opinion, on the information contained in the averments, that the pursuer would almost certainly succeed on the question of liability at least to some extent. In Reid v Planet Welding Equipment Limited at page 8, Lord Ross agreed with the approach described in these two cases. In our opinion it is now well settled that this is the approach to this question which must be adopted upon a consideration of the averments".

[7] The Lord President dealt with the question of contributory negligence at pages 294-295. At 294D he said:

"It appears to us that in this context the word 'substantial' means something which is of real importance to the point at issue, which is the assessment of the extent of the defenders' liability to the pursuer in damages. The word has received a similar interpretation in other contexts, as Lord Coulsfield pointed out in McNeill v Roche Products Limited at page 706B-C. A finding that the accident was caused by the fault of the pursuer to an extent which is large enough only not to be disregarded as being de minimis will not be a substantial finding of contributory negligence within the meaning of the rule. What the Lord Ordinary has to be satisfied about, to the required standard, is that the finding of contributory negligence will not be so large as to have a material effect on his assessment of the amount which the pursuer is likely to recover as damages".

At page 295F he continues:-

"All that is needed is a broad assessment of the matter in order that the Court can be satisfied that the pursuer will succeed on the question of liability without any substantial finding of a contributory negligence on his part".

The pursuer's submissions
[8] Mr Clancy QC, who appeared on behalf of the pursuer submitted that the defenders had admitted the occurrence of the accident, its location and that the stairway was defective. They were adopting a "not proven" approach as to whether the pursuer stepped on a piece of concrete which broke. The defenders were not offering any alternative explanation for the accident. Mr Clancy submitted that it was appropriate to grant interim damages in such a narrow compass of dispute. He said that any suggestion that it was legitimate for the defenders to take the approach that they did was wrong. Otherwise there would be no substance to paragraph 3(b) of the Rule. In any case where liability was not admitted the pursuer would fail.

[9] Mr Clancy drew attention to the observations by Lord Hamilton in Keppie v The Marshall Food Group 1997 SLT 305 as to the difference in approach in a case of summary decree on the one hand, and the case of interim damages on the other. Mr Clancy submitted that in Keppie the defenders were offering to prove matters which truly cast doubt on the pursuer's version. He submitted that the admissions in the present case were more extensive and significant. The present case was a very straightforward case involving loss of footing on a defective stairway.

[10] In relation to the case of Cowie v Atlantic Drilling Mr Clancy submitted that in that case there was a dispute about the circumstances in which the accident happened and there were positive averments of fact by the defenders. In the present case there was one narrow issue of fact which the defenders said they wanted to dispute. It was recognised in Cowie at page 290H that there may be enduring disputes on questions of fact, and at page 292D it was recognised that while there were materially disputed issues of fact the Court was still satisfied that interim damages were appropriate.

[11] Mr Clancy posed the question as to what other explanation there could be, apart from that advanced by the pursuer, where the pursuer avers that he had an accident on a stairway known to be defective. He noted the absence of any suggestion from the defenders of any alternative cause.

[12] On the question of contributory negligence Mr Clancy submitted that the defenders pled a very weak case of contributory negligence. If it was assumed that the pursuer knew the stairs were defective and was able to see the warning signs, that in itself did not suggest any failure to take reasonable care. The signs told him what he knew already. They could not tell him which part of the stairs would crumble away or when. He compared it to a sign indicating a minefield, but there being nothing to show where individual mines were. It was not suggested that the pursuer should not have used the stair. Nor was it suggested that by visual inspection he could ascertain which parts of the stair would fail. He submitted that there was no question of any degree of contributory negligence.

[13] On the question of quantum Mr Clancy recognised that a cautious approach required to be taken. He informed me that the parties were agreed that an appropriate figure for solatium was £12,500. In the schedule of damages (6/1 of process) produced by the pursuer past wage loss to May 2003 was calculated at £29,200. Future wage loss was calculated at £135,240, including wage loss of £20,286 to 25 October 2004, being the relevant date for the purposes of the Social Security (Recovery of Benefits) Act 1997. Future wage loss was based on a multiplicand of £13,524 and a multiplier of 10. In submissions Mr Clancy explained that the pursuer was now studying for a law degree and intended in due course to become a solicitor. Against that background he restricted the multiplier to 5, taking what he described as the most conservative approach. This gave a figure for future wage loss of £67,620. A valuation of the loss of pension rights was produced by the pursuer (6/3 of process). The gross value was calculated at £129,180 (£118,130 net). Thus, Mr Clancy submitted, the claim was on any view worth at least £200,000. On that basis he submitted that a figure £100,000 was appropriate for interim damages.

Defenders' submissions
[14] Miss Smart, who appeared on behalf of both defenders, submitted that I could not be satisfied to the level of practical certainty that the pursuer will establish liability. The pursuer must show that it is a practical certainty that he will establish the facts giving rise to the accident. She did not dispute that, if the pursuer were able to prove that the circumstances were as averred by him, there would be a breach of Regulation 5 of the Regulations. The regulations imposed strict liability. However, she submitted that looking at the pleadings in the present case I could not be satisfied to a practical certainty that the pursuer would succeed. The defenders were entitled to take the position in Answer 5 that the circumstances of the accident were not known and not admitted. The defenders were entitled to put the pursuer to the proof.

[15] The defenders accept that they knew of defects on the stair but do not admit that these caused the accident. Nor do they admit the fact that the step crumbled beneath the pursuer. There were other ways in which he could have met with the accident. The pursuer will require to prove the crucial facts that the front edge of the stair collapsed and as a result the pursuer fell and sustained his injuries.

[16] Miss Smart drew a distinction between this case and the case of Cowie. In Cowie at page 290 the defenders admitted the crucial facts as to what happened to the pursuer. The defenders were there admitting that the pursuer was trapped by the reel, but there was an issue as to how the reel came to be in the position that it was. At page 292G-H the accident itself was admitted. In the present case an accident is admitted but not the accident.

[17] There was no criminal conviction. There was no admission of the circumstances in which the pursuer was injured. There was no concession with respect to liability. This was not an accident such as a road traffic accident where the defenders were intimately involved and would be deemed to have knowledge. This was a case in which the defenders could, without criticism, say that the circumstances of the accident were not known and not admitted. The pursuer could have fallen or slipped in a way not causally related to the crumbling front edge of the stair.

[18] Miss Smart went on to submit that even if the pursuer was successful there would be likely to be a substantial finding of contributory negligence. The broken stair treads were obvious to inspection. These should have been observed by the pursuer. The defenders had alerted the pursuer to the danger by the presence of warning signs. The picture was one of obvious defects and the pursuer ought to have been in a heightened state of alert.

[19] Miss Smart submitted that a conservative and moderate approach to quantification was required. Solatium was agreed at £12,500. While she was critical of certain aspects of the calculation of past wage loss she did accept that it fell in the range between £25,000 and £30,000. With respect to future wage loss, Miss Smart submitted that the figure advanced by the pursuer was too high. The position was unclear. The pursuer was studying law and would continue to work part time while doing so. When he qualified as a solicitor he would earn as much as a police inspector. She suggested a figure of £40,000 for future wage loss. Miss Smart submitted that I should ignore the element of pension loss for present purposes. It was a speculative head of damages at the moment. If the pursuer entered pensionable employment in the future, there may be a question of set off for any claim for future pension loss. On this basis she suggested that the total value of the claim should be assessed at £80,000. She submitted that 50% should be deducted for contributory negligence. In these circumstances she submitted that an appropriate figure for interim damages would be £20,000.

Discussion
[20] The first question which I have to consider is whether I am satisfied that if the action proceeds to proof the pursuer will succeed on the question of liability to any extent. This requires me to be of the opinion that the pursuer will almost certainly succeed on the question of liability to some extent. It requires something less than complete certainty, but more than probability or even high probability. (see Cowie, supra).

[21] In my opinion there is force in the submission of Miss Smart that the pursuer could have met with his accident for a reason other than that averred by him, namely, that a piece of Vietchi flooring and concrete broke off from the edge of the step when the pursuer placed his foot on a particular step. I accept that there are various ways in which a person may fall when climbing a staircase. In order to succeed the pursuer will require to prove that the accident happened in the manner averred by him. In these circumstances I am of the view that Miss Smart was well founded in her submission that the defenders are entitled to adopt the position that they do in Answer 5 that the circumstances of the accident are not known and not admitted. For these reasons, I cannot say that I am satisfied to the required standard that the pursuer will succeed on the question of liability to any extent. Accordingly, I cannot make an award of interim damages and I must refuse the motion.

[22] If I had been satisfied to the required standard that the pursuer would succeed on the question of liability, I would have required to address the question of contributory negligence. The question would have arisen as to whether I was satisfied that any finding of contributory negligence would not be so large as to have a material effect on my assessment of the amount which the pursuer would be likely to recover as damages. It is at this stage very difficult to assess the question of contributory negligence. At the stage of deciding whether interim damages should be awarded, in considering whether any finding of contributory negligence would not be so large as to have a material effect on the assessment of the amount which the pursuer would be likely to recover as damages, all that is required is a broad assessment of contributory negligence. In my opinion the submissions of Mr Clancy in this regard are to be preferred. There is a factual dispute as to when the warning signs were erected. Even if they had been in place at the material time, they were of a general nature. The defenders had not closed the staircase. Nor was it suggested that by visual inspection the pursuer could ascertain which parts of the staircase would fail. Taking a broad approach, if I had been satisfied that the pursuer would have succeeded to any extent, I would have been satisfied that any finding of contributory negligence would not have been so large as to have a material effect on my assessment of the amount of damages which the pursuer would have been likely to recover.

[23] If I had made an award of interim damages the question of the appropriate amount would have arisen. Although there was some criticism of the pursuer's figure for past wage loss, I did not consider it to be well founded and I accept the figure of £29,200. I also accept the modified approach to future wage loss adopted by Mr Clancy in his submissions and I would have proceeded upon the basis of a figure of £67,620, including £20,286 for wage loss to 25 October 2004, being the relevant date for the purposes of the Social Security (Recovery of Benefits) Act 1997. Solatium was agreed at £12,500. I would not have been prepared, as was urged on me by Miss Smart, to leave the question of pension loss out of account altogether. Even if the pursuer does enter pensionable employment in the future there will inevitably be a period during which there will be no contributions to his police pension. On the other hand the final position with respect to loss of pension rights is somewhat unclear. I would have been inclined to proceed on the basis of a figure of £40,000 as an estimate for present purposes.

[24] On the above approach I would have assessed that on full liability the pursuer could expect to recover not less than £150,000. Taking account of the various factors I consider that, had I been making an award of interim damages, it would have been appropriate to make an award of 40% of that sum and I would have awarded £60,000. It was not suggested that there should be any differentiation between the defenders and I would have found them liable jointly and severally.

Result
[25] In view of my conclusion that I am not satisfied to the required standard that the pursuer will succeed on the question of liability to any extent, I am unable to make an award of interim damages and I shall accordingly refuse the pursuer's motion.