Scottish Court of Session Decisions

Falconer v. Edinburgh City Transport & Anor [2003] Scot (18 February 2003)

OUTER HOUSE, COURT OF SESSION
A1745/01	OPINION OF T G COUTTS, Q.C., SITTING AS A TEMPORARY JUDGE in the cause CATHERINE BEATRICE FALCONER Pursuer; against EDINBURGH CITY TRANSPORT LONGSTONE SOCIAL CLUB Defenders:   ________________

 

 

Pursuer: Tait; Russell Jones & Walker

Defenders: Charteris; Simpson & Marwick, W.S.

18 February 2003

 

Introduction

1. The pursuer, a married lady aged 51, sustained injury on 25 June 1999 when she fell on a floor in premises of which the defenders admit they were occupiers. The value of her damages were agreed at £35,000. 25 June 1999 was the occasion of a "ladies night" at the premises in which various activities hereafter described occurred. She avers that while dancing she lost her footing and fell due to oil on the floor of the premises.

The pursuer's case

2. The pursuer avers that oil was spilt onto the floor in the course of a cabaret performance at a function at the defenders' premises. The entertainment comprised bingo and a raffle, followed by a cabaret with intervals for a disco. The defenders' averments admit that a function was held at the premises compromising (sic) a cabaret and disco. The defenders aver that the manager of the troupe performing the cabaret cleaned the floor after the troupe had performed. The pursuer avers only that the manager of the troupe wiped the floor.
3. It is in these circumstances that the pursuer pled a case under the Occupiers Liability (Scotland) Act 1960, section 2 of which reads:

" 2(1) The care which an occupier of premises is required, by reason of his occupation or control of the premises, to show towards a person entering thereon in respect of damages which are due to the state of the premises or to anything done or omitted to be done on them and for which the occupier is in law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.

(3) Nothing in the foregoing provisions of this Act shall be held to impose on an occupier any obligation to a person entering on his premises in respect of risks which that person has willingly accepted as his; and any question whether a risk was so accepted shall be decided on the same principles as in other cases in which one person owes to another a duty to show care".

4. The pursuer's averments of duty were that it was the defenders' duty to take reasonable care to prevent persons from slipping on the oily floor, to prevent persons dancing on the oily floor and to take reasonable care to clean the oil off the floor prior to any person dancing. The only factual averment made to support such a case was "it was obvious to all present that oil spilled on the floor".

Evidence

5. The evidence led which came from several of the ladies present at the event was unclear in many details. It was in many respects contradictory and failed to clarify many essential matters of fact without which any factual basis for the claim remain vague.
6. The pursuer obtained the £5 ticket from a friend for what she described as a "ladies night out" which was to be held on 25 June 1999 at the defenders' club from 7.30pm until late. There were raffles, bingo and dancing. The attraction, however, for the pursuer and the ten or so other ladies who made up the party she was with was an act by a group of gentlemen known as "The Boys from G-Force". That group performed for the benefit of these ladies an act which after some reluctance the pursuer described as their anointing their bodies with baby oil, shaking it onto themselves from bottles. They were at the time sitting in seats at the furthest end of the hall from the entrance, beside the disco. Having done so, the pursuer said, they went around the audience touching and encouraging the females to touch them and to rub various things into their bodies. They would dance about, sit on the ladies and do "other things". In cross examination she said there were four boys in the troupe. They came on and took their clothes off. They asked people to participate. "They would sit on their knees and others and rub oil on and would touch people in places". Another witness, Mrs June Campbell, who was not drinking that night, described the act as involving whips, handcuffs and baby oil. They got people to rub them up and jumped on tables. She said that she got quite excited, stood up and cheered. Indeed she went back a year later to see the last bit of the show which she had missed because of the accident to the pursuer.
7. This spectacle continued apparently from about 8.30pm to 9.00pm or 10.00pm when there was an interval.
8. Mr Cowie, husband of the manageress of the troupe acted as disc jockey. He began to play music in the interval to which there could be dancing. People, it was said, were shouting "What about the floor?".
9. It was at that point that the manageress of the troupe Mrs Cowe came and wiped the floor. There was a dispute on the evidence as to whether the disc jockey had issued any warning about dancing on the floor but whether he did or not the pursuer and a substantial number of the other ladies present rose to dance. There was no evidence that they would not have done so if a "warning" had been given. They danced a item known as "Time Warp" which I was informed did not involve movement of the feet. After that had finished there was to be a line dance. The pursuer said she had taken two steps in that exercise when she slipped and fell. She thought that she had fallen on oil because she felt it on her hand after she fell on the floor. The other witnesses assumed that she must have slipped on oil. She was described as going down as though she had stood on a banana skin. There was evidence that drinks had been spilled at or near the place the pursuer said she slipped.
10. The pursuer had been to the club before but had not previously had the benefit of the above entertainment. Photographs were produced which were taken on a camera owned by the witness Miss Campbell, daughter of the above Mrs Campbell. At first the Court was informed that these photographs were taken by Miss Campbell but that did not seem to be accurate because she figured in some of them and no evidence was heard from any actual photographer about the date or time of the photographs, save that it was said that photographs A and B were of the night of 25 June 1999 and C, D and E were taken the next year. They added little in any event.
11. It was clear that the pursuer fell and was injured as a result. Where, when and how she fell was not clear. A plan was produced with two Xs marked on it. One "X" the pursuer said showed the table where she was sitting, the other the place of her fall. However, despite the obvious hint many of the witnesses located the fall at a spot other than at the place marked X. Most witnesses said that the fall took place in the first interval. Mr Cowe said that it did not and could not have done because, invariably, the dancers' act did not involve oil before the second part of the show.
12. The pursuer's counsel asked a question to which objection was taken. This was designed to elicit evidence about the presence of stewards of the defenders at the relevant time, i.e. the said interval. This was objected to on the ground of no record but I allowed the evidence to be led subject to competence and relevance. The objection was maintained by defenders' counsel. For the pursuer it was claimed that she was entitled to lead that evidence on the basis of the averment that "it was obvious to all present that oil had spilled on to the floor" and because of the undisputed fact that a barmaid employed by the defenders was working in the course of the evening in the hall. Counsel also prayed in aid a later statement by Mr Cowe that there was a member of the Committee present at some stage in the course of the evening.
13. I consider the defenders' objection to be well founded and sustain it. There is no averment that any responsible officer of the defenders was present or that any such person had any prior knowledge of the type of act or its content. On no view could the barmaid who was led as a witness be considered such a responsible officer and accordingly since there was no relevant or competent evidence of any knowledge on the part of the defenders, before or at the time, that there was likely to be oil remaining on the floor at a dancing interval, let alone any averment or evidence of what the defender should as a matter of reasonable care or foreseeability have done about acquiring knowledge of such a possibility, the case against them fails on that ground alone.
14. At the highest for the pursuer there was the suggestion that there were certain people there who had something to do with the club. That goes nowhere towards establishing that any responsible person was present or should have been. The function was a private one.
15. Even if my sustaining the defenders' objection is unsound, the pursuer's case at no point comes within what is necessary as explained in Wallace v City of Glasgow District Council 1985 S.L.T.23. In that case it was unsuccessfully argued that under the Occupiers Liability Act the common law standard of reasonable care could be set up by averment and proof of the existence of the danger on the premises and consequential injury. It has, however, been repeatedly said that the fact of injury on the defenders' premises as a result of something present or omitted there is insufficient to discharge the requirement of establishing a failure to take reasonable care. I respectfully adopt the Opinion of Lord Macfadyen in McDyer v The Celtic Football & Athletic Co Ltd 1998 S.L.T.1. The rubric adequately summarises his Lordship's view that the duty imposed on an occupier by section 2 of the 1960 Act was a duty of reasonable care, not of insurance, and breach of that duty could only be established by averments from which it could be inferred that the accident occurred because of some failure on the part of the occupier to exercise reasonable care. Without averments such as that the occupier knew or ought to have known of the defect and failed to rectify it, and of how long the defect had existed, who had put it there or that no one other than the defenders had any involvement in the events which might have caused the danger, there could not be success under the Act. I was also referred to the Opinion of Lord Osborne in Keane v Walker Contracts (Scotland) Ltd (12 February 1999). The locus classicus however is in Wallace at page 24 where it is said "there is no suggestion that the duty simply arises from the fact of occupancy and clearly on the standard of reasonable care in all the circumstances the pursuer has to aver and prove that the danger was one of which the occupier knew or ought to have been aware and what steps were open to the occupier were not taken by him to remove the danger before the accident occurred".
16. In the present case there was neither averment nor proof that the occupier knew or indeed ought to have known that there would be oil on the floor of the premises at the first interval. Further, the admitted attention to the floor by the manageress of the troupe would be sufficient to discharge any duty that might have arisen. If the manageress of the troupe, not a servant of the defenders, failed to mop up any spot of oil that may possibly have been her fault but hardly that of the occupier without more. There would have required to be averment and proof that the activities of the manageress had to be supervised and inspected as a matter of practice and reasonable care before any relevant liability could be attributed to the defenders.
17. There was nothing of this kind in the case. The defenders are not liable as occupiers and are entitled to absolvitor. I shall accordingly sustain the defenders' first and second pleas-in-law and grant absolvitor.
18. The defenders also argued that the pursuer had in terms of subsection (3) of the Act voluntarily accepted the risk, she having known that there was oil spilled thereafter proceeded to dance on the oily floor.
19. Had it been necessary to do so, I would have held that the defenders had failed so to establish. The pursuer may have been careless in dancing on the floor in the knowledge that oil had been spilled but having seen that the floor had been wiped cannot be a person who voluntarily accepted a risk.
20. Similarly in relation to the plea of contributory negligence I would not have sustained that either on the footing that the pursuer had seen the floor wiped and was entitled to assume that matters were in order. It is difficult to see what relevance any warning might have had about the slippery nature of the floor if such were given. The pursuer could not be said to be contributory negligent merely because she danced along with all these other people in the absence of any proof that she knew that there was a danger present. All that she knew was that there had been oil. That is not sufficient in my view to establish that she was negligent, it having been wiped.
21. On the whole matter, however, the defenders are entitled to absolvitor. I shall sustain the defenders' second and third pleas-in-law and repel the pursuer's pleas. Both counsel moved for expenses in the event of success. The defenders are entitled to their expenses.