Scottish Court of Session Decisions

Nisbet v. Orr & Anor [2003] ScotCS 80 (20 March 2003

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Osborne Lord Dawson Lord Weir	A2667/00 OPINION OF THE COURT delivered by LORD OSBORNE in RECLAIMING MOTION in the cause ROBERT NISBET Pursuer and Reclaimer; against (FIRST) SIR JOHN ORR AND (SECOND) NORTH LANARKSHIRE COUNCIL Defenders and Respondents; _______

 

 

Act: Clancy, Q.C; Balfour & Manson (for Hughes Dowdall, Glasgow)

(for the Pursuer and Reclaimer)

Alt: Dunlop; Campbell Smith (for 2^nd Defenders and Respondent)

 

20 March 2003

1. In this action, the pursuer seeks damages in respect of personal injuries sustained by him in an accident which occurred on 28 October 1997. At that time, the pursuer was an acting Detective Inspector with Strathclyde Police. He avers that he was on duty in Coatbridge Police Station. At about 9.40 am he entered the main C.I.D. room (also known as and referred to as "the Detective Constables' room"). As he walked across the floor of the Detective Constables' room, the pursuer slipped and fell heavily landing on his back. As a result of that fall, he suffered personal injuries which form the basis of his claim. He avers that the carpet on the floor in the area where he slipped was wet and slippery. The carpet had become soaked by water and odour-neutralising agent. It is averred that, during the early hours of 28 October 1997, water had leaked from a tap in a ladies toilet adjacent to the Detective Constables' room, which had soaked a large area of the carpet in that room, including the area where the pursuer slipped. The soaked carpet had been noticed by police officers working on the nightshift, who had mopped up some of the water.
2. In condescendence 4 of the pursuer's case, detailed averments are made concerning the circumstances in which the accident occurred. In particular, it is said that the presence of the water on the Detective Constables' room carpet was brought to the attention of a Mr Colin Campbell, who was the janitor at Coatbridge Police Station. He was employed by the second defenders. It is averred that the surface of the carpet was rendered slippery by the water which had soaked into it. Prior to the pursuer's accident, Mr Campbell sprayed or otherwise applied odour-neutralising agent onto the area of wet carpet where the pursuer subsequently slipped. The presence of the odour-neutralising agent made the surface of the carpet more slippery than it would otherwise have been. Mr Campbell did not place any cones around or any warning signs at or near that area. The positioning of cones around that area would have prevented the pursuer from walking over it. The positioning of warning signs at or near it would have alerted the pursuer and other persons entering the Detective Constables' room to the presence of a potential hazard on the floor there. Cones were available in Coatbridge Police Station at that time. Warning signs about wet floors were also available and commonly used in Coatbridge Police Station prior to and at the time of the pursuer's accident. Mr Campbell did not take any other steps to warn the pursuer or other persons working in the Detective Constables' room of the presence of water or odour-neutralising agent on the carpet. After the accident Mr Campbell apologised to the pursuer. Further averments are made on the pursuer's behalf concerning the product information sheet relating to the odour-neutralising agent involved. It is claimed that it stated "Caution: avoid wetting floors after treatment." The application details set out in the product information sheet are said to indicate that the odour-neutralising agent should be diluted with water before use. The instructions on that sheet as to how to use the produce state: "Rub well into affected area with a cloth, sponge or mop. Leave for 5 minutes, then rinse with water ... Alternatively clean with a detergent, then spray diluted odour-neutralisers over area." It is claimed that Mr Campbell did not dilute the odour-neutralising agent before applying it to the carpet. Esto he applied it in the circumstances averred by the second defenders, he did not follow the manufacturers recommended method of applying it as set out on the product information sheet. Esto Mr Campbell was not aware that spraying the odour-neutralising agent onto a wet carpet would make the carpet slippery, he could and should have checked to see what the effect of that application was by touching the surface of the carpet. Thereafter he could and should have coned off the area or put up warning signs.
3. In condescendence 5 of his summons the pursuer made a case of breach of statutory duty against the first defender, who is the Chief Constable of Strathclyde Police. That case was brought under regulation 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992. The relevance of that case was challenged by the first defender. For reasons explained in the opinion of the Lord Ordinary, dated 10 April 2002, that challenge was successful, the first defender's first plea-in-law being sustained and the action, so far as laid against that defender, being dismissed. In this reclaiming motion no challenge was made to that part of the Lord Ordinary's decision.
4. In condescendence 6 of his summons the pursuer makes a case at common-law against the second defenders, based upon their vicarious liability for the actings and omissions of Mr Campbell. The following averments are made in that condescendence:

"It was Mr Campbell's duty to take reasonable care for the safety of persons working in the Detective Constables' room at Coatbridge Police Station. It was his duty to take reasonable care to see that floors were not made slippery. Having been alerted to the presence of water on the carpet in the Detective Constables' room it was Mr Campbell's duty not to spray or otherwise apply odour-neutralising agent onto the wet carpet. Separatim in circumstances where he was mopping up water from that carpet and was spraying or otherwise applying odour-neutralising agent it was Mr Campbell's duty to place cones around the affected area. Separatim it was his duty to place warning signs at or near that area to warn persons working in the Detective Constables' room of the presence of a potential hazard. In each and all of these duties Mr Campbell failed and by his failures he caused the pursuer's accident. He knew or ought to have known that if he failed to fulfil the duties incumbent upon him an accident of the type hereinbefore condescended upon could occur. But for those failures in duty the accident would not have occurred."

The relevance of this case was challenged before the Lord Ordinary with success. In his interlocutor of 10 April 2002 he sustained the first plea-in-law for both the first and second named defenders and dismissed the action.

5. When this reclaiming motion came before us, senior counsel for the pursuer moved us to recall the Lord Ordinary's interlocutor, in so far as he sustained the second defenders' first plea in law. He contended that that plea-in-law should be reserved and the case remitted to the Lord Ordinary to proceed as accords. Having explained the background to the case, senior counsel for the pursuer drew attention to the Note of Arguments for the second defenders, which had been lodged prior to the procedure roll debate. It was understood that no attempt was to be made to challenge the Lord Ordinary's decision relating to the matter raised in paragraph (b) thereof. Thus the issue which remained alive was whether there were relevant averments such as to indicate that injury was reasonably foreseeable as a consequence of the alleged acts or omissions of Mr Campbell. Our attention was next drawn to the pursuer's grounds of appeal. In relation to paragraph 1(1) of those grounds, it was submitted that the inference of foreseeability was self-evident in a case of this kind where a janitor was dealing with a spillage of water on a carpet. From the averments made by the pursuer it could properly be inferred that a person who was a janitor, such as Mr Campbell, should reasonably have foreseen that the wet carpet with or without the odour-neutralising agent would present a slipping hazard in the Detective Constables' room. We were reminded of the test of relevancy of averments set forth in Jamieson v. Jamieson 1952 S.C.(H.L.) 44. The court had to be satisfied that the action would necessarily fail even if all of the pursuer's averments were established.
6. Senior counsel for the pursuer elaborated his submission that the inference of reasonable foreseeability was self-evident by reference to a number of factors. These were first the location, a place where people worked and frequently moved to and fro; secondly, the fact that the carpet was wet; thirdly, the fact that Mr Campbell was well aware that the carpet was wet; fourthly, the fact that Mr Campbell's job was to deal with such problems; in other words, a janitor could be reasonably assumed to know that a wet carpet would be slippery; and fifthly, having had the opportunity to cordon off the area concerned, he had failed to do so. There was a clear and direct causal link between the absence of cones and the occurrence of the accident. If the surface of the floor at the locus of the accident had been a polished hard surface, instead of carpet, it would indeed have been self-evident that the presence of water would have rendered that surface slippery. It would be a monumental step to say that a carpet was so different that that would not be so in the case of such a floor covering.
7. Turning to ground of appeal 1(2) senior counsel drew attention to a decision which had been relied upon by the second defenders before the Lord Ordinary, Robb v. Dundee District Council 1980 S.L.T. (notes) 91. Having explained the facts of that case, senior counsel for the pursuer submitted that it was readily distinguishable from the present case. The accident involved in that case had occurred in connection with the use of a piece of machinery of which an engine was part. In the present case the accident arose from a much more everyday occurrence, the spilling of water on a carpet. In the present case, it was submitted that the pursuer's pleadings did contain averments of fact capable of supporting the obvious inference that a wet carpet constituted a reasonably foreseeable hazard. In particular, it had been averred that cones and warning signs about wet floors were available and were commonly used in the police station concerned. Furthermore, the pursuer had averred that Mr Campbell the janitor had apologised to him following upon the accident. In addition, the pursuer had averred that the janitor should have touched the carpet after applying the odour-neutralising agent to it. Finally, in condescendence 6 there were averments of duty on the part of Mr Campbell to place warning signs at or near the locus "to warn persons ... of a potential hazard." There was also an averment at the end of condescendence 6 to the effect that Mr Campbell knew or ought to have known that, if he had failed to fulfil the duties incumbent upon him, an accident of the type condescended upon could occur. It was argued that it was implicit in these averments that the janitor knew or ought to have known that he had left the carpet in a slippery condition.
8. Senior counsel for the pursuer next drew our attention to Millar v. South of Scotland Electricity Board 1958 S.C.(H.L.) 20 and to the observations of Lord Keith of Avonholm at page 33. On the basis of what was said there, an investigation ought to be allowed in this case. It was recognised that the position of the odour-neutralising agent might have to be considered separately from the water. However, the pursuer's case could proceed upon the basis of the presence of water alone at the locus of the accident. The pursuer's averments relating to the contents of the product information sheet for the odour-neutralising agent could be relied upon to demonstrate that that agent, upon a carpet, might constitute a hazard.
9. Senior counsel for the pursuer said that a minute of amendment had been prepared, in which it was sought to introduce a statutory case against the second defender, but not to make any alteration to the existing common law case; however, despite a hint from the court that he might consider such a course of action, he said that he did not intend to tender any minute of amendment to us. The minute prepared had no bearing on the issues arising in the reclaiming motion. In conclusion, he renewed the motion made at the outset of this submission.
10. Counsel for the second defender moved us to refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary. He drew our attention to the averments of duty made by the pursuer in condescendence 6. Having done that, he posed the question of why such duties should have been incumbent upon Mr Campbell, the janitor. There was no answer to that question. The pursuer had averred at the end of condescendence 6:

"He knew or ought to have known that if he failed to fulfil the duties incumbent upon him, an accident of the type hereinbefore condescended upon could occur".

However, that averment was inadequate as a basis for the averments of duty. What was missing was an averment relating to the allegedly reasonably foreseeable hazard said to have been created in the factual circumstances averred. Only such an averment as that could found the averments of duty relied upon. In connection with his criticisms of the pursuer's case reference was again made to Robb v. Dundee District Council. The point was made that the averments in that case went beyond what had been averred here, yet they were held to be insufficient. The pursuer's submission to the effect that it was "self-evident" that the factual circumstances averred gave rise to a foreseeable risk of injury was unsound. The matters focussed in the pursuer's ground of appeal 1(2)(a) - (d) could not be a substitute for averments that Mr Campbell should reasonably have foreseen the existence of a hazard in the circumstances averred. In particular, no significance lay in the averment that cones and warning signs were available in the police station. The purpose of those cones and warning signs was not explained. There could be a variety of explanations for them. As regards the averment of the apology, that cast no light on reasonable foresight. Turning to the issue of whether Mr Campbell should have touched the carpet, there was no averment to suggest why he should have done such a thing. No proper inference could be drawn from the other averments in the pursuer's case to the effect that Mr Campbell should have reasonably foreseen the existence of a hazard. In all the circumstances, the reclaiming motion should be refused.

11. The essential criticism made of the pursuer's averments in this case is well focussed in the note of argument formulated prior to the debate before the Lord Ordinary. It is there said that the pursuer's case against the second defenders is predicated on their vicarious liability for the actions of Mr Campbell. There are no relevant averments such as to instruct a case of fault on the part of Mr Campbell. In particular, there are no relevant averments such as to indicate that injury is reasonably foreseeable as a probable consequence of the alleged acts or omissions of Mr Campbell. In practical terms, in the pursuer's case there are to be found no averments on the basis of which it can be concluded that the circumstances founded on in this case should reasonably have been foreseen by Mr Campbell as giving rise to a hazard to persons such as the pursuer who were liable to enter the Detective Constables' room. The circumstances which it is claimed existed there included that an area of the carpet had become soaked in water, some of which had been mopped up. Thereafter, prior to the pursuer's accident, it is said that Mr Campbell had sprayed or otherwise applied the odour-neutralising agent onto the area of wet carpet. It is upon that area that the pursuer is averred to have slipped. It is undoubtedly true that there is no averment anywhere in the pursuer's case to the effect that Mr Campbell should reasonably have foreseen that that area of carpet so affected would constitute a hazard to persons such as the pursuer. The averment at the end of condescendence 6, which has been quoted above, in our opinion, does not amount to such an averment. The premise involved in that particular averment is that the duties said to have existed did in fact exist in the circumstances of the case. What is in issue here is whether there is any proper basis for the averment of such duties. Senior counsel for the pursuer attempted to persuade us that the inference of reasonable foreseeability was self-evident in a case of this kind, where a janitor was dealing with a spillage of water on a carpet. However, we are unpersuaded that any such thing was self-evident. It might be possible to infer that spillage of water on a smooth or polished surface would inevitably give rise to a slippery surface which would be appreciated by anyone, but that is not the situation with which we are dealing here, namely a carpet which, unlike a smooth or polished surface, is absorbent of liquid. A number of averments, set forth in paragraph 1(2) of the grounds of appeal were relied upon by the pursuer. However, we do not consider that those averments are of assistance to him in this context. While it may be averred that cones and warning signs about wet floors were available and commonly used in the police station in question, there are no averments as to the circumstances in which such use was made of them. It would be mere speculation to suppose that they were there to warn persons of the alleged effects of water, either with or without other fluids, upon carpets. Furthermore, we consider that there is no significance in the averment that the janitor, Mr Campbell, apologised to the pursuer after the accident. The fact that an apology was made appears to us to indicate nothing as to what might not or might not have been reasonably foreseen by Mr Campbell. As regards the suggestion that the janitor should have touched the carpet after applying the odour-neutralising agent, we do not understand how that averment can assist the pursuer in meeting the criticism of his averments. If one asks the question why should he have touched the carpet after applying that agent, there is no answer to that question to be found in the pursuer's averments. Finally we do not consider that the averments of duty and the other averment, which we have quoted, in condescendence 6, supply the need for an averment relating to reasonable foresight on the part of Mr Campbell.
12. We agree with the submission made on behalf of the second defenders that, in certain respects, this case is a weaker case for the pursuer than that which existed in Robb v. Dundee District Council. In that case, as appears from page 92, there was an averment that the defenders knew or ought to have known that the starting handle was likely suddenly to kick over in the event of insufficient pressure being applied to it. In the present case, there is no counterpart of even that somewhat formulaic averment, which was held to be insufficient in that case, in the absence of other averments demonstrating why the defenders should have foreseen the relevant hazard.
13. In all of these circumstances we are persuaded that the Lord Ordinary reached a correct conclusion as regards the pursuer's case against the second defenders. In Millar v. The South of Scotland Electricity Board, at page 33 Lord Keith of Avonholm observed that:

"In claims of damages for alleged negligence it can only be in rare and exceptional cases that an action can be disposed of on relevancy"

14. We consider that this is such a rare and exceptional case. Accordingly, we shall refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary dated 10 April 2002.