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Cite as: [2004] ScotCS 149

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Waddell v Peebled Hotel (Hydropathic) Ltd [2004] ScotCS 149 (23 June 2004)

OUTER HOUSE, COURT OF SESSION

A1207/02

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

Sitting as a Temporary Judge

in the cause

MARNEY ELIZABETH ANNE WADDELL

Pursuer;

against

PEEBLES HOTEL (HYDROPATHIC) LIMITED

Defenders:

________________

Pursuer: Smith, Q.C., Milligan; Digby Brown

Defenders: Lindhorst; Lawford Kidd

23 June 2004

[1] At about 11.30 p.m. on 26 January 2001 the pursuer lost her footing in the course of dancing a Dashing White Sergeant on the dance floor in Peebles Hydro. She sustained a fracture of the shaft of the humerus of her left arm. Damages were agreed in the event of liability at £10,000. The pursuer raised this action in 2002 claiming a breach of the Occupiers' Liability Act 1960 and a case of vicarious liability against unnamed employees of the defenders. That latter case was not insisted upon.

Introductory
[2] When the case came to proof on 25 November 2003 the pursuer's case as pled was that the floor of the Ballroom was of highly polished wood. As a result, it was said, it was very slippery and due to the slippery state of the floor the pursuer slipped and fell. It was averred that several other guests also slipped and fell that night and that one Gillian Pye, slipped several times and stopped dancing "before she suffered serious injury". It was further averred that at an earlier event at the same place on 13 January 2001 P.C. Anne Knox fell and that others had done so also. Another lady, Veronica Woodman, was said to have suffered an injury from slipping on the same floor on 18 November 2000. These incidents were it was averred the subject of reports to the defenders. Those were the only factual averments made about the floor and the defenders' knowledge of the state of the floor.

[3] On those averments the pursuer led evidence from the pursuer, Mrs Pye, Mrs Knox and Veronica Woodman, and from a consulting engineer, Stanley Johnston BSc. The defenders led evidence from Richard Rudkin, John Aitken, Louise Roberts, William Scott, an employee of the defenders, Neil Ellis, the Duty Manager on the day of the accident, and Mr Glen BSc., a consulting engineer.

[4] The circumstances of the accident were the subject of some colourful newspaper publicity. As a result of that certain persons contacted the pursuer's solicitors and despite the fact that both parties' cases had closed and senior counsel for the pursuer was well though his submissions, he moved for leave to amend to include the averment now at p.6 A-D.

[5] The court was persuaded that the circumstances which were brought to the pursuer's solicitors' attention by persons reacting to the newspaper report were such as to make it appropriate in the interests of justice to allow the pursuer to amend, albeit at the late stage noted above, and to hear further proof. The matter which was persuasive was that it was essential for the pursuer to bring home knowledge to the defenders of any danger which existed at the date of the accident. There appeared to be some indication in the amendment that the defenders might possess such knowledge prior to the date of the pursuer's accident.

[6] Accordingly after amendment and answers at an adjourned proof the pursuer led evidence from Mrs Christine Innes, Mrs Joy Innes, Mr William Phelly, all of whom had attended a dance on 13 January 2001 but who had no knowledge of the dance at which the pursuer sustained her injury, and also from Mr Tait, a porter, and Mr Pemberton, a director employed by the defenders. The defenders led evidence from Caroline Raeburn, a manageress employed by them. In the event the additional evidence, although of interest in relation to the previous event, added nothing of significance to the material before the court in relation to the condition of the floor at the date of the accident in question.

[7] The pursuer's case of fault which was insisted upon, that under the Occupiers' Liability (Scotland) Act 1960, asserted a failure of reasonable care of the safety of those "entering the hotel". It proceeds:

"They knew or ought to have known that the floor of the Ballroom was highly polished and slippery. It was their duty to take reasonable care for the safety of guests at the hotel, such as the pursuer. It was their duty to take reasonable care not to polish the Ballroom floor to the extent that it was slippery. It was their duty to take reasonable care to warn guests such as the pursuer that the Ballroom floor was slippery. It was their duty to take reasonable care to prevent guests from using the Ballroom for dancing whilst the floor was so slippery as to be hazardous."

The Evidence
[8] The pursuer had attended the particular function on previous occasions. She said that after having coffee in the lounge at about 9.30 p.m. she went to the Ballroom between 10.30 p.m. and 10.45 p.m. She was dancing the Dashing White Sergeant with Karen Graham and Graham Miller (neither of whom, although they were on the pursuer's list of witnesses, was called to give evidence). She said she was walking them through it "not vigorously". She had already danced twice that evening. She said she was aware that the floor was more slippery than it used to be and said that it was too slippery for the type of dancing they were to do. She did not remember seeing any member of staff after the accident and did not know who had called an ambulance. In cross-examination she said she had not seen any member of staff, that she was a competent dancer, repeated that she had walked through the dance and added that she was only starting off. She indicated that she would not blame Mr Miller for the event. She said that she had been drinking in the course of the evening. Those drinks she said were a gin and tonic, one and a half glasses of wine at the meal and a further gin thereafter. She wore open sandals with high heels, her customary footwear when at dances. She attended a site inspection with Mr Johnston, the pursuer's expert, and showed him where she fell. She was shown photographs of the floor, but was unable satisfactorily to demonstrate on them where she fell. She arrived at hospital at about 12 midnight.

[9] Mrs Pye, who taught dances to children and knew the pursuer, said that she danced a Dashing White Sergeant and that she fell half way through the second half of that dance. She was unaware of any incident involving the pursuer. She got a fright and did not continue because she thought the floor was very slippery and it was too dangerous. It was different on this occasion from others. She said she slipped at the top left hand corner near the stage and bar on the dance floor. In cross-examination she stated that she had remained at the dance until midnight when it was still continuing. She chose not to dance again that evening.

[10] P.C. Knox attended a police function at Peebles Hydro on Saturday 13 January 2001. She spent most of the evening in the Ballroom where there were hundreds of people. There was a ceildh. She danced more or less throughout the night. She fell twice. Her feet slipped away from her. The floor was "very very slippy" but she carried on dancing after she had fallen. Her concern was that she was embarrassed at having fallen in front of the Chief Constable. There were, she said, several others who fell including two men. She did not report the accident to the defenders.

[11] Mrs Woodman spoke of a dance in November 2000 when she said she slipped and fell heavily. She thought that there was a substance - dust, on the floor which made it extra slippy. Her impression was that the floor was extremely slippery, but had not seen anything to make it so. She was dancing near the edge of the floor where there were tables. She had been dancing for about two hours and fell about 12.30 a.m.

[12] The defenders also led evidence. Mr John Aitken, the President of the association which organised the dance, the Peebles Agricultural Society, said there were about 400 people there. There was nothing out of the ordinary about the floor, the dance floor was "that busy" that fast dancing was not possible. He did not see the pursuer on that occasion. Mrs Louise Roberts attended the dance and danced one or two slow dances. She had seen the pursuer earlier in the evening but did not see at which table she was sitting, although she was herself sitting at a top table and had a direct view of the floor. She was five months pregnant. She had danced over the area where the pursuer fell. She saw the pursuer fall. She had, while watching, seen the pursuer being spun round by men in the course of the dancing. Where the pursuer fell was no different from any other part of the floor.

[13] Mr Richard Rudkin, a sixty year old farmer, attended the dance. He said the state of the floor was ideal for dancing. He danced most of the evening and did not fall. When asked if he had been drinking he replied with a candid affirmative. He was not cross-examined.

[14] The additional evidence from the dancers at the police ball, whose names were added by amendment, included sixty four year old Mrs Christine Innes. She did not speak to dancing at all but said she fell while half way up the Ballroom while walking towards the toilet before dancing began. She claimed to have fallen backwards. She was attended to and was taken to the Borders General Hospital. The night porter took her. He said that that one or two people had fallen. She fractured her wrist. The hotel gave her their insurers' address on her departure next morning. She asserted that the employee that took her to hospital had stated that the floor had been too highly polished. She professed to be unaware that she had served a summons claiming damages on 22 December 2003, after the newspaper publicity about the pursuer's incident. Such a summons was indeed served then.

[15] Mrs Joy Innes said that she fell on the floor before dancing at about 8.30 p.m. She was near the edge but it was not apparent exactly where. She said the floor was very slippery and her foot slipped from under her. However she did dance later on in the evening and spoke about the floor to a member of staff who wrote it down. Her watch had been broken and the hotel paid for the repair.

[16] William Phelly on 13 January 2001 slipped and twisted his ankle on two occasions at locations which were difficult to ascertain but were on the right hand side of the floor, two or three feet from the carpeting. He also continued to dance. The second fall meant that he contacted the people who were sitting at the side of the floor. He had "a few drinks" but did not think that that played a part in his going over his ankle. He was not experienced at ceildh dancing. This incident took place late on in the evening between 11.00 p.m. and 12.30 a.m.

[17] Peter Tait, the night porter who took Mrs Christine Innes to hospital thought he had said that the floor had been waxed the week before but couldn't remember saying that anyone else had had problems. He did not remember saying anything about the floor being highly polished or that others had slipped. He had not reported to anyone that he thought the floor was slippery but was fairly clear that the floor had been waxed not long before the police dance.

[18] Mr Pemberton, who had been in court at the previous hearing, was nonetheless called by the pursuer. He noted that three incidents had been inserted in the Accident Book on the night of the police ball and deponed that the management had checked the floor to see if it was in good condition on the following day. They were quite happy that it was. The concern was that three people having slipped in one night was a high incidence.

[19] Mrs Raeburn, the Deputy Manager, said that the floor had been utilised on the day before the dance as a badminton court and that several thousand people had danced on it between the time it was polished before Christmas and the date of Mrs Waddell's accident.

[20] The critical evidence about the polishing of the floor came from William Scott who was employed to look after the main corridor and function rooms. He was responsible for the maintenance of the floor. He had had the floor stripped and re-polished in December 2000. Following the directions given by the manufacturer for the use of the "traffic wax" he employed he said that the had done it properly and that such re-polishing took place twice a year. He checked the floor daily, sweeping and mopping, and would dispose of marks by re-polishing as they occurred. He had checked the floor on 25 January, swept the dust but had not put anything on it. There had been a dance on 25 January and on 26 January before the Ball it had been used as a badminton court. He had walked over the floor to look for marks and did not find it other than in order for dancing.

[21] Neil Ellis, the House Manager in January 2001, had deponed at the earlier part of the proof that he had danced on the floor and that night it was all right for dancing. He thought that the pursuer had been somewhat drunk, unsteady on her feet and wearing unsuitable shoes. A large number of persons were dancing that night and the hotel provided 200 bowls of soup at the conclusion of the Ball.

[22] Two consulting engineers produced reports and gave evidence. The pursuer's expert Mr Johnston despite an examination, was unable to provide any assistance to the court. His evidence was of an examination in December 2002, after the record had closed, by which time the state of the floor could neither provide any clue as to its condition at the Ball nor even any reasonable challenge to the evidence and report of Mr Glen, a consulting engineer called by the defenders. His evidence consisted substantially in attacking that report by Mr Glen. His own report was 6/10. Mr Glen's report (7/4) and his evidence was that he had carried out experiments in June 2002 and found the floor was within an acceptable area of risk. Mr Glen said that the floor required to have a certain amount of slipperiness otherwise it would be productive of accidents if there was dancing due to binding on the floor surface. The application of polish would not by itself create a hazardous floor. He conducted experiments to assist him in his views. They did. They were criticised by Mr Johnston but I did not accept the basis or validity of the criticisms.

Pursuer's Submissions
[23] The pursuer submitted that there were five issues, the first of which he said would be the pursuer's fall but since a fall was admitted that was no issue at all. The second, he suggested, would be; was the floor slippery to a greater degree than might reasonably be expected? The third was whether the pursuer's slip was caused by the polished surface of the floor. The fourth was, were the defenders aware or ought they to have been aware of the risk of someone slipping because of the polish. The fifth was whether there was any precaution that could have been taken to prevent the accident. He submitted thus: since it was clear from the evidence that something had been done to the floor surface at some stage and the pursuer having slipped while on it, there is a case which infers negligence. There was a danger of slipping due to the manner in which the floor was polished. If so the reasonable inference was that it was at least a cause of the slip. The fact that the floor had not been treated since the incident to await the outcome of this case inferred that the defenders considered that the polish could in some way have contributed to the accident. In relation to the defenders' knowledge, this is not a case of a transient slippery substance; "the danger was placed there by the defenders and so it is simple to impute knowledge to them". Apart from the evidence of Mrs Woodman he accepted that there was no evidence of formal reporting which directly showed that the defenders were aware of the danger. However the relevance of complaints in this situation is much less than it would be in the case of a transient cause. He cited McGhee v Strathclyde Fire Brigade 2002 S.L.T. 680 but since that was a case invoking statutory regulation I found it of no assistance. Kemp v Secretary of State for Scotland 2000 S.L.T. vouched the proposition that prior accidents are not a prerequisite of establishing liability and in Allen v London Borough of Barnet 1997 E.W.C.A. 2780 (21 November 1997), a decision of the Court of Appeal before two Lords Justice accepted common sense evidence of the floor being "too slippery" in preference to technical evidence. For the inference of negligence above noted Binnie v Rederij Theodoro BV 1993 S.C. 71 was cited.

Submissions for the Defenders
[24] The pursuer's case fails for want of evidence of a danger of knowledge of risk or of any steps which the defenders ought to have taken. The defenders took reasonable care ensuring that the surface of the floor was properly maintained and cleaned in accordance with the instructions of the manufacturers of the wax and it was, on the evidence of Mr Glen, in a low risk slip category.

In this case where there is a conflict of evidence on the common sense view of slipperiness, the pursuer has failed to discharge the onus of proof on credible evidence.

Findings in Fact
[25] I find on the evidence of Mr Scott that the floor in question was cleaned and re-polished in December 2002 after Mrs Woodman's incident and at least fourteen days before the police ball on 13 January. Maintenance of the floor thereafter consisted of any cleaning that was necessary; it did not involve the application of further polish and a satisfactory surface was produced. The floor in the Hydro had very extensive use. It was used by several thousand people between its re-polishing and the pursuer's fall. Only a few people suffered any mishap. Three of these occurred on 13 January. That was sufficiently unusual for a special inspection to be carried out. This was done and found nothing wrong. I accept that evidence.

[26] It is necessary that a degree of slipperiness is to be found on a dance floor.

Decision
[27] Although the pursuer fell, the circumstances of her fall are not clear. Her own evidence was that she was walking her partners through the moves of the Dashing White Sergeant. That is not supported by the evidence of Mrs Roberts. The absence of any evidence from her partners has meant that the pursuer's own account has not been confirmed by any check.

[28] I accept the evidence of the defenders' witnesses together with the absence of significant reports as indicating that the state of the floor was not inherently dangerous at any time. That it would require to be inherently dangerous is evident from the amount of use it was subjected to over the period between its polishing and the pursuer's accident. Such use would tend to lessen the effect of earlier polishing - as Mr Johnston found at his inspection in December 2002. I accept the evidence of the defenders' witnesses, together with the amount of use of the floor as establishing that the floor as a whole was not so slippery as to be hazardous - which was the case plea.

[29] I do not consider that any inference of negligence can be drawn from the fact of the accident and the fact that there was a degree of slipperiness generally on the floor. Regarding the matter on the balance of probabilities, I am unable to find that there was any undue slipperiness and accordingly any significant danger on the floor. The pursuer's case was couched in general terms. There was no evidence of any particular place on the floor, let alone the place where the pursuer fell, being unduly slippery, and that being known to the defenders. Added to that, the defenders acted upon reports received about the events of 13 January. They did not have a sufficient body of knowledge in the circumstances to put them on their guard to take any particular steps on 26 January. The suggestion that on 26 January persons should be warned that a dance floor was slippery or that the defenders should prevent a guest from dancing is in my view absurd, as is the proposition that persons can be prevented from falling at a dance, particularly when Scottish country dancing is involved.

[30] In summary the pursuer's injury was the result of an unfortunate accident. It is not every person who suffers from an accident who is entitled to compensation. Such a person must establish fault and the invocation of cases involving statutory duty to employees serves merely to obfuscate. The question is this case is did the defenders fail in their duty of reasonable care to the pursuer? I find that the pursuer has not so established and shall grant decree of absolvitor.