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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Delaney v. Beechwood Nurseries [2004] ScotCS CSOH_38 (20 February 2004)
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Cite as: [2004] CSOH 38, [2004] ScotCS CSOH_38

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Delaney v. Beechwood Nurseries [2004] ScotCS CSOH_38 (20 February 2004)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LORD KINGARTH in the cause FIONA DELANEY Pursuer; against BEECHWOOD NURSERIES LTD Defenders:   ________________

 

Pursuer: Allardice, Digby Brown

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

20 February 2004

[1]      On 11 November 1999 the pursuer was working in the course of her employment with the defenders as a nursery assistant at their premises at 34 Dundonald Road, Kilmarnock. She was making her way from the main office on the ground floor to the kitchen, situated in the basement. To do so she was descending an internal staircase. Near to the foot of the stairs she fell onto her right ankle, fracturing the right lateral malleolus. In this action - which came before me for proof - she seeks damages, claiming that her accident was caused by the defenders' fault and negligence at common law and by their breaches of certain of the Workplace (Health, Safety and Welfare) Regulations 1992.

[2]      At the end of the proof a number of matters were not seriously in dispute.

[3]      The staircase from the ground floor or reception area to the basement initially curved down in a spiral to the left before proceeding straight on to a small landing at the foot. The stairs were carpeted. There was a handrail on the left hand side which effectively extended throughout, although it ended just before the very last step. At the top there was a safety gate - apparently about waist high - designed to stop young children from falling down the stairs. At the foot of the stairs, at the far side of the small landing, was a door which led towards the kitchen. There were two narrow vertical glass panels in that door.

[4]      At about 4.45 pm the pursuer was walking down the stairs. She used the handrail as she went down for support. As she was about to step onto a step close to the bottom she misjudged the step and her foot slipped on its edge. She took her full weight on her right ankle on the step below and fell to the ground. She had taken her hand off the handrail just before the accident as she moved forward. She tried to grab at the rail when she fell, but was unable to do so. Although her pleadings describe her as having fallen " approximately three steps from the bottom", her clear evidence was that her foot slipped on the second last step, and this was not (as I understood it) seriously challenged.

[5]      There was general agreement as to what sources of lighting were available at the time. There were two main direct sources. There was a light bulb in a shade above the top part of the staircase. This light was on. At the foot of the staircase, above the landing, there was an emergency lighting fitment, consisting of a small diameter tube in a rectangular diffuser fitted flush with the ceiling. It was on at the time of the accident. In addition it seemed generally accepted that light could (and at the material time probably did) penetrate from the reception area at ground floor at least to the top of the stairs and also that some light could (and at the material time probably did) permeate through the glass panels in the door at the foot of the landing from the hall and kitchen area beyond. All the treads of the staircase were covered in carpet, which was dark blue in colour. The pursuer thought that the carpet had earlier been a lighter colour but that it had been replaced in about June 1999, and her evidence on this point was not challenged.

[6]      The pursuer's evidence was that the reason she misjudged her footing was that the lighting at the foot of the staircase was poor, and that this, combined with the dark colour of the carpet, made it difficult to see and in particular to make out where the edges of the treads were. Her evidence was said to be supported by the evidence of Mr Philip Glen, a Consulting Engineer instructed on her behalf, and by the evidence of Mrs Natalie Sinclair, who gave evidence of having previously fallen on the same staircase on 24 August 1999. The defenders' position was that on the whole evidence it was not proved that the lighting was poor or that the combined effect of the lighting and the colour of the carpet was such that it made it difficult for people to judge their footing. It was therefore maintained that it had not been proved that the accident occurred for the reasons claimed by the pursuer. Instead it was submitted that it should be inferred that the pursuer had fallen solely because she had failed to take reasonable care to keep a good look out. Support for the defenders' position was sought in the evidence of two nursing assistants who worked at the premises, Roanna Walsh and Mrs Karen Hamilton, and in the evidence of Mr Brian Williams, a Health and Safety Consultant.

[7]      On the critical question of the adequacy of the lighting at the foot of the stairs, I have come to the clear view that the lighting was indeed poor, and that this, combined with the very dark colour of the carpet, made it difficult for persons using the stairs to see clearly and to judge where the edges of the treads were - a state of affairs which could reasonably be said to have given rise to a real risk of injury to persons using the stairs.

[8]      The pursuer gave her evidence in a clear and straightforward manner. She did not seek to embellish or exaggerate either the circumstances of her fall or her injuries. She spoke convincingly of never having liked the stairs, not only because of the way they turned but also because of the fact that it was so dark. She always tended to use the handrail as a result. She seemed clear as to the state of the lighting on the day of accident. The light-bulb over the top of the staircase was sited less than halfway down. It was fitted with one ordinary 60 watt bulb within a dark shade, and did not give off a particularly bright light. The emergency light at the bottom gave off only very dull light. At an earlier stage she thought this fitting had had a brighter light in it. Lighting from the upstairs reception area did not penetrate through to the bottom of the staircase. She did not ever recall seeing much light coming through the panels in the door at the foot of the stairs. The state of the lighting combined with the "very dark blue" of the carpet made it hard to judge. Overall she gave her evidence in a way which seemed to me to be credible and convincing. Her description of the lighting and her evidence as to the reason for her fall were not directly challenged in cross examination. It was not put to her that the accident had happened for any other reason, and in submission at the end of the proof there was no challenge made to her credibility. In these circumstances I would have been slow not to accept her on these matters (to find her evidence unreliable as I was invited to do) unless she had no support, or there was compelling and clear contrary evidence. In the event - as described below - she had, in my view, impressive support from Mr Glen, and I did not find the evidence which might be thought to be contradictory either clear or compelling.

[9]      Mr Glen visited the site for the purposes of an inspection on 21 August 2002. I find on the evidence that at the time of his inspection the sources of light available on the staircase were the same as at the time of the pursuer's accident - if anything the lighting from the light-bulb above the staircase being brighter. The pursuer accompanied Mr Glen, on his visit, and it was her impression that the bulb in question was brighter and the shade a different colour - an impression which I accept she conveyed to Mr Glen, although he had no recollection of having been told this. Although Mr Glen had no specific expertise in relation to lighting and although he was visiting the site apparently to investigate whether there was any problem with the construction of the stairs, he expressed a clear view to the effect that the lighting at the foot of the stairs was very poor. It was his view that light from the reception area on the ground floor did not permeate to the bottom of the staircase. The effect of the lighting above the stairs was, he thought, largely local and would tend to cast a shadow for anyone going further down the stairs. There was not much lighting available through the glass panels on the door at the foot. There was only a low level of light from the emergency lighting (he thought equivalent to a 20 watt bulb). He was surprised that this form of lighting was used as part of the permanent lighting system. Although the ground floor was reasonably well lit, it was not, he thought, easy to adjust quickly, when descending the stairs, to the different quality of light. His clear view was that the level of lighting at the foot of the stairs - in conjunction with the dark carpet - was inadequate and insufficient. Notwithstanding that he was not a lighting expert and made no objective measurement of the available light, he gave evidence in a clear and impressive manner and I see no reason to dispute the conclusions he reached.

[10]      Mrs Natalie Sinclair gave evidence of an occasion on 24 August 1999 when she lost her footing on the last three or four stairs of the staircase in question, as she (a visiting parent) took a child downstairs. Although her recollection was a little uncertain, it seemed clear from a letter which she wrote to the defenders on 26 August 1999 that her complaint at the time was that the lighting at the foot of the stairs (almost certainly the emergency fitment ) was not then working, and that the fact that the carpet was a very dark blue "only added to the problem". The response from the defenders, dated 2 September 1999, indicated that the lighting at the bottom of the stairs had been replaced. It was also indicated that there had been a battery-operated light at the foot of the stairs for a while but that this had been replaced with "a normal fitting". This would perhaps be consistent with the pursuer's recollection that at an earlier stage than her accident the emergency lighting had had a brighter bulb. Although I had no reason to doubt Mrs Sinclair's evidence, it could, in the event give the pursuer only limited assistance in that it seems clear that the lighting was worse on the day that Mrs Sinclair fell (and in fairness to the defenders they dealt with the problem then complained of). It was nevertheless perhaps of significance that she said in her evidence that she thought the carpet was a "strange colour to choose" when the stairwell was so dark.

[11]      The defenders led in evidence two nursery assistants who worked in the premises, Roanna Walsh and Mrs Karen Hamilton. Both of them gave unchallenged evidence that they had not had problems with the lighting on the staircase. Neither, however, was in a position to recall clearly what the state of the lighting was on the day of the pursuer's accident (their concern, reasonably at that stage, having been with the pursuer's injuries). More importantly it was not at all clear to me that they were saying anything other than that they themselves had not ever had any accidents or near accidents. In short their evidence was not by itself sufficient to persuade me to find the pursuer unreliable or to reject the views of Mr Glen.

[12]      The defenders also led Mr Brian J Williams, a Health and Safety Consultant. He gave evidence of having compiled two so-called "General Risk and Compliance Assessment Reports" for the defenders following visits on the 17 January 2000 and 15 January 2001. In neither of these reports had he pointed out anything adverse in respect of the lighting on the staircase. In evidence he expressed the view that "the lighting levels in and around the premises were ok". He accepted, however, that he had only had a general look at the premises and that there could be things he would miss. He had not been made aware of the previous accident to Mrs Sinclair and accepted that had he been made aware of it he might have looked more carefully at the particular staircase. Although he recalled having been told of the pursuer's accident, it was plain he had no specific recollection of being told what apparently had caused it. He thought she had tripped. It appeared to me from some of his answers that risks to children in and around the premises were given greater attention in his reports than possible risks for members of staff. Be that as it may, while I had no reason to doubt his integrity, his audits were very general, and I clearly prefer the particular and well-focused evidence of Mr Glen.

[13]      In all the circumstances I have little difficulty in finding it proved that the pursuer's accident was caused by the defenders' fault at common law, and in particular by their failure to take reasonable care to provide adequate lighting at the bottom part of the staircase (not least given the very dark carpet which was in place). Although it is true that there was no evidence of previous complaints or of previous accidents occurring when the lighting was as it was on the day of the pursuer's accident, I have little difficulty in holding that a reasonably careful employer should have been able to judge (as was Mr Glen) that, with the lighting as it was, there was a real risk of a person being injured in the way the pursuer was - a real risk which, it seems, could readily have been eliminated by the provision of brighter lighting, in particular at the foot of the stairs. It is not necessary to find precisely how that brighter lighting could have been provided, but there is little doubt that the lighting could have been materially improved by the provision of permanent ordinary lighting over the landing, and perhaps also - if necessary - by a lighter coloured carpet.

[14]      For the avoidance of doubt, I record that although in the pleadings complaint is made about the extent of the handrail and the fixture of the carpeting, these complaints were not insisted upon by counsel for the pursuer.

[15]      Having regard to the findings I have made at para [7] above, I am also satisfied that the pursuer has established that her accident was caused by the defenders' breach (a) of Regulation 5(1) of the Workplace (Health, Safety and Welfare), Regulations 1992 - in that the staircase as part of her workplace was not in an efficient state, (b) of Regulation 8(1) of the same Regulations - in that her workplace did not have suitable and sufficient lighting, and (c) of Regulation 12(1) of the same Regulations - in that the surface of the pursuer's traffic route (consisting of dark blue carpet) was not of a construction such that it was suitable for the purpose for which it was used. Although I was referred to a number of authorities in relation to the approach to be adopted to the Regulations in question (in particular to English v North Lanarkshire Council 1999 SCLR310, McGhee v Strathclyde Fire Brigade 2002 SLT 680, Miller v Perth and Kinross Council 2002 Rep. L.R. 22, Butler v Grampian University Hospital NHS Trust 2002 SLT 985, Gilmour v East Renfrewshire Council, an unreported decision of 5 December 2003 and Gallagher v Kleinwort Benson (Trustees) Limited 2003 SCLR 384) it was, in the event, not seriously disputed by counsel for the defenders that, if I was to find that the condition of the lighting, together with the dark coloured carpet, created a real risk of injury to persons using the staircase, liability under the relevant regulations would follow. I would only make two comments. In the first place, consideration of the authorities does nothing to dispel my initial unease in relation to the choice of some of the language of Regulation 5(1). In particular, one does not, I think, expect an employee who has sustained an accident because his place of work was unsafe to claim that he has suffered injury because his workplace was not "in an efficient state". Secondly, although a suggestion was made by counsel for the pursuer (albeit not strongly) that the defenders were also in breach of Regulation 5(1) by reason of the lack of extension of the handrail, and that the pursuer's accident could be said to have occurred as a result, I am not satisfied that there was evidence to entitle me to find either of these matters proved.

[16]      It was maintained by counsel for the defenders that the court could find that the pursuer's accident had been partly caused by her contributory negligence, and in particular by her failure to take reasonable care to keep a good lookout. In light of the findings I have made I am unable to hold that the accident was caused to any degree by her fault and negligence in that respect - a finding I would have been (as already indicated) slow to make, given that the pursuer was not specifically afforded the opportunity to comment on that suggestion. I do not, however, go so far as to hold that in these circumstances counsel for the defenders was not entitled to make the submission he did, and ultimately counsel for the pursuer (as I understood it) withdrew a submission made to that effect, in the course of which reference was made to the unreported decision of Lord Clyde in Stenhouse v Kirkcaldy District Council, dated 26 October 1995.

[17]      There was little dispute as to the nature of the pursuer's injury and of its early effects upon her - in respect of which the pursuer's evidence was supported by the evidence of Mr J Stuart Moir, Consultant Orthopaedic Surgeon who examined her in April 2002 and November 2003. It was the pursuer's evidence that she knew immediately that her ankle was broken. She was in pain and shouted for help. She was taken to the Accident and Emergency Department at Crosshouse Hospital where she was diagnosed as having a fracture of the right ankle. X-rays disclosed an undisplaced fracture of the lateral malleolus. She was allowed home, non weight-bearing, with the aid of crutches. About a week later a full below-the-knee cast was applied. The cast remained in position for three weeks before being replaced with a tubigrip. Her ankle remained bruised and swollen and she had pain and stiffness. She was referred for physiotherapy and attended at Ayrshire Central Hospital weekly for about three months. She was off work for about 12 weeks, before returning to her job at the nursery at the end of January 2000. In February and in March 2000 she went over her ankle on two occasions because of its weakness, suffering exacerbation of pain and difficulty for short periods. Since the end of her course of physiotherapy, in or about April 2000, the condition of her ankle has improved.

[18]      There was some dispute as to the extent of, and prognosis for, any continuing symptoms. On the pursuer's evidence she continued to work as a nursery assistant without obvious difficulty until January 2001. While she was working as a nursery assistant she also started working on Saturdays as a barmaid. She attended college from January 2001 until about June or July 2002. Thereafter, in or about August 2002, she became employed full-time as a barmaid and has worked in that job since. She is able to manage that work without obvious difficulty. From an early stage, however, she has had some swelling and discomfort in the ankle if she requires to be on her feet for prolonged periods or if she tries to wear shoes with more than a small heel. Moreover, she has not since the accident been able to take part in highland dancing, in which she was apparently proficient, or to play basketball which she had played regularly. Mr Moir, did not, in his evidence, dispute that she had these deficits. With the injury she sustained it was his view that most patients would make a full recovery within 3 - 6 months, but about 10% could continue to suffer certain deficits. At both of his examinations of the pursuer he detected objective signs of tenderness in the right ankle. He thought the most likely cause of the continuing deficits was an element of impingement syndrome. His best estimate was that this could last or be expected to last for perhaps 3 to 4 years. Although such symptoms could possibly be removed by arthroscopic debridement, the outcome of such a procedure was uncertain and with the relatively low level of symptoms suffered by the pursuer he would not have expected her to wish to undergo such a procedure. Although there was some suggestion in the pursuer's evidence, and in what she apparently reported to Mr Moir, that the disbanding of her basketball team and the change in her work patterns had also had an effect on her ability to participate in basketball and highland dancing, she gave, in the event, reasonably convincing evidence that the major reason for her non participation was her continuing deficits. In particular she gave evidence that another coach had been prepared to take over the basketball team and that she would have reorganised her working shifts to accommodate her activities. In general, therefore, I accept her evidence and that of Mr Moir.

[19]      Counsel for the pursuer suggested that in these circumstances an appropriate figure for solatium would be £8,000, with 80% referable to the past and bearing interest at 4% from the date of the accident. He referred to four cases briefly reported in McEwan & Paton on Damages For Personal Injuries in Scotland (Second Edition) - namely McLean v Caledonian MacBrayne Limited CN19-05A (also reported at 2000 SCLR 625, Brown v City of Edinburgh Council CN19-04B (also reported at 1999 SLT (Sheriff Court) 43), Nimmo v Secretary of State for Scotland CN19-02C (also reported at 2000 Rep. L.R. 14) and Kirk v Fife Council CN19-001 (also reported at 2002 SLT 21). Counsel for the defenders, although agreeing that 80% of any award should refer to the past and that the past element should bear interest at 4% per annum from the date of the accident, submitted that an appropriate award would be between £2,500 and £3000. He made reference to Nimmo v British Railways Board 1990 SLT 680, Connell v BP Chemicals Limited 1993 SLT 787, and Ballantyne v Tesco Stores Limited 1993 SLT 678. In all the circumstances, bearing in mind the particular circumstances of the pursuer's injury and its apparent effects on her, and taking account of the general level of awards in the cases to which I was referred, I consider that an appropriate award of solatium would be £5,000 (with £4,000 of that referable to the past). Interest on the past element of solatium at 4% per annum from the date of the accident would produce a further £684.

[20]      Agreement was helpfully reached in respect of all other aspects of the pursuer's claim. It was agreed, in particular, that the pursuer has suffered a net loss of earnings amounting to £415 and that interest on that would run at 8% per annum from 19 December 1999 to the date of decree. This would produce a further £139 of interest. It was further agreed that the pursuer had suffered a loss of £6, inclusive of interest to the date of any decree, in respect of prescription costs, £50, inclusive of interest to the date of any decree, in respect of travelling expenses and £80, inclusive of interest to the date of any decree, in respect of the purchase of clothing. The value of the pursuer's claim for services under and in terms of sections 8 and 9 of the Administration of Justice Act 1982 was agreed at £600 inclusive of interest to the date of any decree to follow. It was further agreed that the persons who rendered the necessary services to the pursuer, and in respect of whom the pursuer was unable to render personal services, were her parents.

[21]      In all the circumstances I shall sustain the first plea in law for the pursuer, repel the second, third, fourth and fifth pleas in law for the defenders, and pronounce decree for payment by the defenders to the pursuer of the sum of £6974.