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Cite as: [2005] CSOH 118, [2005] ScotCS CSOH_118

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Craigie v. Lanarkshire Health Board & Anor [2005] ScotCS CSOH_118 (30 August 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 118

PD908/04

OPINION OF LORD HARDIE

in the cause

JEAN CRAIGIE

Pursuer;

against

LANARKSHIRE HEALTH BOARD

Defenders:

and

Prospect Healthcare (Hairmyres) Limited

Third Party:

________________

Pursuer: Allardice, Advocate; Solicitors, Thompsons

Defenders: Woolman QC, et N MacKenzie, Advocate; Solicitor, R F MacDonald

Third Party: R. N. Thomson, Advocate; Solicitors, Simpson & Marwick WS

30 August 2005

Introduction
[1] In this action in which I heard a proof, the pursuer seeks reparation for an injury sustained by her on 28 February 2002, in the course of her employment with the defenders as a nursing auxiliary when she slipped and fell at a place where ice had formed. As a result of her fall the pursuer sustained an unstable fracture of her left distal radius.

[2] At the beginning of the proof I was advised that agreement had been reached that in the event of decree being pronounced in favour of the pursuer, the damages to be awarded on a full liability basis and inclusive of interest to the date of proof would be £7,500. Accordingly the issue before me was restricted to liability. Senior counsel also sought leave to adjust at the bar the Minute of Amendment for the defenders (no.19 of process) and thereafter to allow the Record to be amended in terms of the Minute of Amendment as adjusted, the Answers for the third party (no.20 of process) and the Answers for the pursuer (no.21 of process). Despite opposition on behalf of the third party I allowed the Record to be amended in terms of the motion on behalf of the defenders and found the defenders liable to the pursuer and third party in the expenses occasioned by said amendment. I also allowed the Record as amended (no.22 of process) to be lodged at the bar. When counsel for the pursuer closed his case, senior counsel for the defenders advised me that agreement had been reached between the defenders and the third party to the effect that counsel for the third party would take over the defenders' case because there was an identity of interest between the defenders and the third party. Counsel for the third party confirmed that position. Accordingly I allowed counsel for the defenders to withdraw and allowed counsel for the third party to take over the defenders' case.

Evidence
[3] In evidence in chief the pursuer stated that she was a 61 year old nursing auxiliary and had been employed in that capacity by the defenders at Hairmyres Hospital, East Kilbride for 27 years. On 28 February 2002 she arrived at the hospital at 7.15 am prior to the commencement of her shift at 8 am. She parked her car in the large car park and walked from there across the main entrance road towards a bus stop. She intended to walk along the pavement from the bus stop to the main entrance of the hospital. As she placed her foot on the pavement she noted that it was slippy. After another couple of steps she slipped and fell sustaining a fracture to her left wrist. She noted that snow had been piled up at the back of the pavement and it appeared to her that a snowplough had travelled along the pavement at sometime prior to her fall. The entire pavement was covered in ice. The pursuer did not see any evidence of treatment of the pavement with salt or grit. Such treatment would have been obvious to her. She did not see or feel any evidence of salt or grit on the pavement. After she fell the pursuer tried to get up but kept slipping. She described it as though she were on a skating rink. Eventually she got on to her knees and managed to get to her feet. While she was waiting to go to the operating theatre the pursuer telephoned the help-desk to complain about the slippy pavement and to request that it be salted before anyone else sustained injury. When she fell the pursuer noticed someone smoking a cigarette in the vicinity of the bus shelter. The area of the bus shelter was an area frequented by members of staff who smoked. In cross-examination the pursuer confirmed that she had left home early because the weather had been bad. She was concerned that the roads might be bad but they had been treated. She had a trouble free journey to the hospital. She walked diagonally across the road from the car park to the bus stop. She could have walked along the pavement on the car park side but that pavement was slippy. Before driving into the car park she had to wait because a snowplough was working. The plough was moving from the pavement on to the road and back on to the pavement. The plough was clearing the snow but was not gritting the areas, which had been cleared. She confirmed that she had no difficulty walking along the road although she walked cautiously. The road surface is different from that of the pavement. She did not think any area had been salted or gritted by the time of her accident. She confirmed that the pavements were icy. When she first put her foot on the pavement and felt it to be slippy she thought that everything would be all right and took the shortest route to the main entrance. In re-examination she confirmed that she would have had to cross the pavement at some point. She did not see the snowplough clearing the pavement at the bus stop. She was aware that over the years the spreading of salt and sand on pavements had been effective and had enabled people to walk safely on them.

[4] The second witness for the pursuer was Mrs Linda Napier, aged 52, who had been a radiology technical instructor at Hairmyres Hospital for about 14 years. She worked in the same department as the pursuer. The witness normally arrives at 8 am by bus and gets off the bus at the bus stop where the pursuer's accident occurred. On 28 February 2002 when she arrived at work she was advised of the pursuer's accident. Her immediate reaction was that she was not surprised. As usual she had travelled to work by bus. When she got off the bus the pavement was extremely icy and she could barely put her foot down. The pavement was a sheet of ice and there was no evidence of any attempt to treat the pavement with salt or grit. She also saw people walking in front of her. They were having difficulty. They were slipping and finding it difficult to walk. The bus stop is the main bus stop for people going to the hospital. She confirmed that at the date of the accident hundreds of people worked in the hospital. In cross-examination she confirmed that there was no evidence of the pavement having been treated. She also confirmed that she managed to reach the main entrance safely by taking extreme care. She saw no evidence of ploughing on the pavement. Her recollection was that the pavement was a plain sheet of ice.

[5] The third witness was Mrs Leigh Samson a 25 year old radiographer who had worked at Hairmyres Hospital for 8 years. On 28 February 2002 she was the standby radiographer. She started work at 5 pm on 27 February 2002 and finished work at 9 am on 28 February 2002. She saw the pursuer sometime before 8 am after the pursuer had her accident. Immediately prior to that the witness had been outside the main door of the hospital. She was smoking while standing on the same pavement as the bus shelter. She described the conditions under foot as being very slippy. The pursuer came in to the hospital immediately behind the witness. When the witness had been outside there was no evidence of treatment of the pavement with grit or salt. In cross-examination she confirmed that in the course of the previous night she had gone outside on several occasions with other members of staff to smoke. On these occasions she had stood outside the Resuscitation Unit. In the course of the night it had snowed on and off. The pavement iced over very quickly. In the morning she recalled snowploughs working. She stated that when she left at 9 am it was still icy and there was no evidence of grit or salt having been spread by that time. In re-examination she confirmed that her reference to snowploughs had been to a large plough working on the road and a small one working on the pavement. The large plough on the road was driven by a large Ford tractor and the smaller plough on the pavement was driven by a small tractor. If there had been any gritting the witness considered that the snow would have been discoloured and she saw no evidence of that.

[6] The final witness for the pursuer was Iain Farquhar, aged 60, a Consultant Meteorologist. He obtained from the meteorological office data gathered by weather stations at East Kilbride, Strathclyde Park, Motherwell, and Saughall. On the assumption of a snowfall at Hairmyres Hospital between 5 am and 6 am on the date of the accident he considered that freezing conditions would have set in prior to 7 am. On the basis of the data provided to him he prepared a report dated 23 December 2003 (6/2 of process). At pages 7 and 8 of his report he summarised his conclusions concerning the weather and ground conditions at about 7.15 am on the date of the accident in the Hairmyres district of East Kilbride. In relation to partially cleared and unsalted surfaces his conclusion was as follows:

"Recently cleared lanes between heaps of snow will have been affected by newly formed, or still forming clear ('black') ice - particularly treacherous for pedestrians".

He explained that the reason for the formation of "black" ice was that clearing snow mechanically "on this type of morning around dawn is never 100% effective without salting". The effect of clearing the snow is that this removes the insulating blanket of snow from the pavement surface, thus exposing it to the celestial dome. The pavement surface loses heat by long-wave radiation to the sky above and a frost develops. He also concluded that sufficiently cleared and salted surfaces would have been soaking wet with puddles. He expressed the opinion that it is "mostly a bad decision to shovel away snow from footpaths without liberally salting the cleared stretches immediately afterwards". In cross-examination he confirmed that his was a retrospective study as opposed to a forecast. He was of the view that the forecast issued by the meteorological office to the defenders on 27 February 2002 at 10.25 am was a good forecast and he confirmed that the data provided to him indicated that conditions would be freezing by 7 am on the date of the accident following the main snow fall.

[7] The sole witness for the defenders was John Hanlan, the 60 year old Head Gardner at Hairmyres Hospital. His duties included responsibility for snow clearance at the hospital. Between October and April of each year the hospital obtained weather reports on a daily basis from the meteorological office. The system in operation involved the witness collecting the report each day at 12.30 pm. He would read the report and decide whether any action was required. His employers had issued instructions for snow clearing (17/6 of process). The system outlined in that document and as explained by the witness was that during normal working hours on Mondays to Fridays (8.30 - 17.00 hours) the first line of defence was the witness and two gardeners who worked under his direction. If necessary the witness could call upon six maintenance personnel to assist him and the gardeners to clear snow. Outwith normal working hours the system involved one gardener, who was on call. If he considered it necessary he could summon assistance from Warnock Plant Hire Limited, (hereinafter referred to "Warnock"), a local firm, with whom his employers had a contract. If requested the Warnock would send a snowplough and driver. Although the procedures contained within 17/6 of process prioritised the areas to be cleared during normal working hours, no such priority was allocated for out of hours. The equipment provided by Warnock was a tractor with a snowplough on the front and a hopper attached to the rear which was able to spread salt immediately after the roads had been ploughed. On occasions Warnock would operate the snow plough without spreading salt or grit at the same time. At the time of the accident there was a small plough at the hospital which was capable of clearing footpaths. Although there was an attachment to enable salt or grit to be spread from the small plough the tractor could not operate the plough and the spreader simultaneously. The small tractor belonging to the defenders required to use its hydraulic system to operate the plough and the spreader whereas the larger tractor provided by the Warnock did not require its hydraulic system for the spreader. The spreader was attached to that tractor by a ball hitch and when the wheels of the spreader rotated the rotation operated the spreader. It was necessary to use the defenders' plough to clear the footpaths because Warnock's plough was too large for them. During the day gardeners and/or maintenance personnel would follow the defenders' plough and spread salt on a footpath immediately after it had been ploughed. Outwith normal hours it was not possible to do this. At these times it was necessary to complete the ploughing of footpaths before returning to the shed to unhitch the small plough and fit the spreader to the tractor. Mr Hanlan also indicated that outwith normal hours the gardener on call required to prioritise snow clearing. Although he could summon assistance from Warnock to help with clearing roads and car parks he could not request other gardeners or maintenance personnel to attend to enable footpaths to be salted immediately after they were ploughed as occurred during normal hours. Since the accident a larger and better tractor had been purchased for the footpaths. It was able to plough and operate the spreader simultaneously. The effect of the use of such equipment was that immediately after a path had been ploughed, salt was spread on the cleared area. If, on the date of the accident, he had had the equipment, which he now has, he confirmed that the pavement next to the bus stop could have been salted immediately after it was ploughed. On the evening in question he recalled attending at the hospital because of inclement weather. His recollection was that he had cleared snow from the roads and paths and had salted the area generally prior to 5 am. At that time he had a brief meal break at the end of which there were blizzard conditions. He realised that he would require assistance and summoned help from Warnock. 7/9 of process is an invoice from Warnock for that date which indicates that the operator started at 7 am and charged for four hours. Mr Hanlan explained that there was a standard charge of four hours. The invoice also indicates that travelling time of 15 minutes each way was required. Accordingly it appears that the snowplough would arrive at the hospital at about 7.15 am. On the basis of the weather forecast he would probably have salted the roads and paths during normal hours because he preferred to do it during the day rather than be called out. However, he was prepared to accept the possibility that he did not salt the roads and paths during normal hours and was unable to be certain either way in the absence of the relevant records. In re-examination he thought it unlikely that he would have decided not to salt the roads and paths during normal hours.

Discussion
[8] It was accepted on behalf of the defenders that Regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 applied, if I concluded that the accident occurred as stated by the pursuer and that she slipped on ice or snow on the pavement leading to the hospital. Regulation 12 provides inter alia:-

"(1) ....... the surface of every traffic route in a workplace shall be of a construction such that the ..... surface of the traffic route is suitable for the purpose for which it is used.

(2) Without prejudice to the generality of paragraph (1), the requirements in that paragraph shall include requirements that -

(a) the ...... surface of the traffic route shall have no hole or slope, or be uneven or slippery so as ..... to expose any person to a risk to his health or safety..........

(3) So far as is reasonably practicable .......... the surface of every traffic route in a workplace shall be kept free from obstructions and from any article or substance which may cause a person to slip ........... or fall ............."

In relation to the statutory case under Regulation 12 the issues for my determination were reasonable practicality and whether there was a casual link between any breach of statutory duty and the accident to the pursuer.

[9] Having considered the evidence I have concluded that the pursuer was a credible and reliable witness. In particular I accepted her evidence that when she arrived for work a snowplough was clearing snow but was not gritting or salting. I also accepted her evidence that the snow had been cleared from the pavement at the bus stop but the pavement was icy and that there was no evidence of any grit or salt on the pavement. Her evidence was supported by that of Mrs Napier who arrived later but confirmed that the pavement was a "sheet of ice" and that there was no evidence of salt or grit having been spread on the pavement. I accepted the evidence of Mrs Napier in that regard. I also accepted the evidence of Mrs Samson to the effect that there was no evidence of the pavement having been treated with grit or salt. When she left the hospital at 9 am she noticed the large plough working on the roads and the small one working on the pavements. I considered that there was a general concurrence of testimony to the effect that the pavement, where the pursuer slipped, was icy and no salt or grit had been spread on it. In so far as there were any differences between the pursuer and these witnesses I preferred the evidence of the pursuer to the effect that the snow had been cleared from the pavement but no grit or salt had been spread thereafter. Moreover I did not consider their evidence to be inconsistent with that of Mr Hanlan. While he may well have salted the various areas during normal hours and in addition spread salt over all the areas prior to 5 am it is clear that thereafter he was overwhelmed by the conditions which prevailed. In accordance with the system in operation he was unable to call out additional employees but could and did summon assistance from Warnock. Prior to the arrival of Warnock's snowplough I accept that Mr Hanlan operated the small plough and cleared areas of snow including the pavement at the bus stop where the pursuer slipped. I also accepted Mr Farquhar's evidence about the manner in which "black" ice would form after snow was removed from the surface of the pavement. In my opinion any system of snow clearance should have included the ability to spread salt over cleared surfaces immediately after they were cleared to avoid the formation of "black" ice. However the equipment which Mr Hanlan had at that time did not enable him to spread salt or grit upon areas immediately after he had ploughed them. There was no evidence as to why such equipment was not made available in the absence of his being able to summon assistance from employees who could spread salt or grit manually immediately after an area had been ploughed. I am of the opinion that it would have been reasonably practicable to provide Mr Hanlan with such equipment, which had been provided since the accident. In the absence of providing him with such equipment, I also consider that it would have been reasonably practicable to devise a system whereby salt or grit could be spread manually on pavements immediately after they had been ploughed. Such a system may well have involved other employees apart from the gardener on call attending on site outwith normal working hours. I am also of the opinion that if such a system involving salting or gritting areas immediately after they had been ploughed had been in operation, ice would not have formed on the pavement where the pursuer fell and the accident would not have occurred. In all the circumstances I am of the opinion that the defenders are in breach of their common law duties to take reasonable care for the safety of their employees such as the pursuer and to devise a safe system of access to workplaces by employees. They are also in breach of their statutory duty in terms of Regulation 12. As a result of their breach of duty towards the pursuer, the defenders are liable to the pursuer in damages.

[10] The only remaining issue is the question of contributory negligence. The pursuer's own evidence was to the effect that as soon as she placed her foot on the pavement she realised that it was very slippy but she continued to attempt to walk across it. There was no indication in her evidence that she had experienced any difficulty in walking across the road. Accordingly she could have stepped back on to the road and walked further up the road to a point nearer the main entrance to the hospital, although she would have had to cross the unsalted pavement at some point. Other employees managed to walk across the pavement, albeit with difficulty. The pursuer must bear some responsibility for the accident and I have concluded that the damages awarded to her should be reduced to reflect her contributory negligence. In all the circumstances I am of the opinion that the agreed damages should be reduced by 20% to reflect the pursuer's contribution to the accident.

Decision
[11] I shall accordingly grant decree against the defenders for the sum of Six Thousand Pounds with interest thereon at the judicial rate from the date of decree.