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Cite as: [2006] ScotCS CSOH_134, [2006] CSOH 134

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OUTER HOUSE, COURT OF SESSION

[2006] CSOH 134

PD781/05

OPINION OF LORD TURNBULL

in the cause

MORAG JEAN HOLTES

Pursuer;

against

ABERDEENSHIRE COUNCIL

Defenders:

________________

Pursuer: Caldwell, Q.C.; Thompsons

Defenders: Macpherson, Solicitor; Simpson & Marwick, W.S.

5 September 2006

Introduction

[1] The pursuer in this case is Morag Jean Holtes. She sues Aberdeenshire Council in respect of injuries she received whilst at work on 1 May 2003. The pursuer was represented by Miss Caldwell, Q.C. and the defenders by Mr Macpherson, Solicitor Advocate. The case called before me for proof on Tuesday 16 May 2006. I heard evidence over that and the following two days. Submissions were presented on Friday 19 May.

[2 ] In addition to her own evidence the pursuer led the evidence of Mrs Elizabeth Hull, Miss Rachel Scott and Mrs Fiona Westland, all of whom were former or present work colleagues. The pursuer also led expert evidence from a Consulting Engineer Mr Philip Glen. For the defenders evidence was led from Mrs Gillian Christie, Mr Noel McCulloch and Mr Robert Murray.

[3 ] The pursuer was 49 years old by the date of the proof. She was employed as a project officer within the Criminal Justice Team of the Social Work Department of Aberdeenshire Council, a position which she had held for eight years. The pursuer was responsible for administering the community service scheme within Aberdeenshire Council and had three supervisors under her direct control. Since taking up her current position the pursuer has worked from the defenders' premises at 56 Cameron Street, Stonehaven. These premises were a former dwelling house. As at 2003 the administration and front office was located on the ground floor of the building, as was the pursuer's own office. On the upper floor of the building there was a team leader's office, a further office used by social workers, a canteen and a toilet. About seven or eight members of staff were based within the premises in 2003. The ground and upper floors were connected by means of a steep and narrow carpeted staircase. On 1 May 2003 the pursuer fell down this staircase sustaining injuries, including a fractured left humerus. For the purposes of the proof parties agreed the quantum of damages at £30,000 net of the defenders' liabilities under section 6 of the Social Security (Recovery of Benefits) Act 1997.

The Staircase

[4 ] The staircase at 56 Cameron Street, Stonehaven was, as far as the evidence disclosed, the original staircase as used when the property was occupied as a dwelling house. Photographs of the staircase taken by the pursuer were lodged as number 6/6 of process. Further photographs of it were included in a report prepared by Mr Glen, number 6/7 of process. It was self evidently a steep staircase with narrow treads providing only limited space upon which to place one's foot. With the exception of Mrs Westland, all of the witnesses who worked within 56 Cameron Street described the staircase in terms of this sort.

Concern over the Suitability of the Staircase

[5 ] In her evidence Mrs Holtes explained that there was not enough room on the steps for one to place one's foot down properly on account of the narrow nature of the treads. In addition she spoke of how, by 2003, the carpet fitted to the staircase had begun to bulge in the area of the centre of the steps extending over the nose of the step. The bulge was also present in the area below the nose around the centre of the riser beneath. The effect of the bulge was that when coming downstairs she could not put her heel fully to the rear of the lower step and sometimes caught her heel on the bulge. She said that she remembered this happening on one or two occasions prior to the accident. On each of these occasions she had been nearer the bottom of the staircase when this occurred and had been able to recover without sustaining an accident.

[6 ] Mrs Holtes explained that it was general knowledge within the premises that there were problems with the staircase and that it was often said that someone would, "come a cropper on it". She stated that some members of staff had fallen whilst going up the staircase. Mrs Holtes stated that members of staff had complained about the nature of the staircase in front of her line manager, Mrs Fiona Westland. She spoke of a specific complaint made to Mrs Westland by a fellow employee, Mrs Elizabeth Hull.

The Pursuer's Accident

[7 ] Mrs Holtes explained that her accident happened on 1 May 2003 as she was coming down the stairs in the company of a student social worker, Rachel Scott. She was in front of Miss Scott and explained that she could not really remember what happened, but that she fell forward as if something was propelling her. She fell headfirst and had no chance of saving herself. She confirmed that something had happened with her foot. When asked what she thought had happened she said that she thought she had caught her heel on a bulge from the carpet and because her other foot was not fully on the stair on account of its narrowness that sent her forward.

[8 ] Mrs Holtes was off work for a period of time and when she returned she examined the staircase. She attempted to take measurements of the staircase, but found that it was difficult to do so because of the sag in the middle. In particular, she found it difficult to take a measurement from underneath the protruding nose of the step because of the sag or bulge of the carpet. She also noted that some time later it looked as though nice shiny staples had been put into the carpet to hold it properly in place and take away the bulges.

Evidence of Other Employee

[9 ] The other witnesses who had worked at 56 Cameron Street were Rachel Scott, Elizabeth Hull, Fiona Westland and Gillian Christie. With the exception of Mrs Westland all of these witnesses described the staircase as being steep, although none spoke of the carpet bulging in the way that the pursuer had.

[10 ] Mrs Hull, who was 65 and retired by the time of the proof, had previously worked as a senior social worker within the Criminal Justice Division of the Social Work Department in Aberdeenshire Council. She worked from the premises at 56 Cameron Street between about 1998 and the year 2000. Her recollection of the stairway at 56 Cameron Street was that it was extremely steep and that the treads were very narrow. As a consequence she explained that one could not put one's foot square onto the tread and that she herself went up and down the stairs side on and holding onto the wall. Mrs Hull also explained that she suffered from a degree of impaired mobility. Mrs Hull's evidence was that she felt unsafe on the staircase because of the steepness. Mrs Hull gave evidence of raising her concerns with Mrs Westland on a number of occasions. On her account Mrs Westland agreed that there were concerns, but replied by saying that the building had been passed by health and safety and that there were no other office facilities available to them. So far as Mrs Hull understood matters, no complaint was taken forward by Mrs Westland. Mrs Hull was seconded to the Procurator Fiscal's office in Dundee in 2000.

[11 ] When Mrs Westland was called to give evidence she explained that she was 49 years old and was the manager for the Criminal Justice team within the Social Work Department of Aberdeenshire Council, a post she had held since September 1996. She had been a social worker with Aberdeenshire Council, or its predecessors since 1989. She was the senior member of staff at 56 Cameron Street and had been there since 1997. She acknowledged that as the senior member of staff it was part of her managerial responsibility to take account of safety issues. In the evidence of this witness it became clear that there was a degree of factual conflict to resolve. Mrs Westland denied that Mrs Hull had ever said she thought the stairs were unsafe. She had a recollection of Mrs Hull mentioning a difficulty with the stairs on only one occasion. By that time Mrs Hull was working from different premises and was visiting 56 Cameron Street. Her recollection was that Mrs Hull said she found the stairs difficult. Mrs Westland commented that she did not find this surprising as Mrs Hull had a medical condition. Mrs Westland's evidence was that she could not recall what she had said by way of reply to Mrs Hull. She concluded by saying that she did not know if she said anything to Mrs Hull. Mrs Westland did acknowledge that there were general comments from other members of staff about the steepness of the stairs, although nothing that she could recollect about the treads. Mrs Westland explained that she herself did not have a difficulty with the stairs and did not find them steep. Mrs Westland did not pass on any comments made by other members of staff. Her evidence was that having been given the keys to the offices she assumed that they had been checked by health and safety officials and presumed that they had been found fit for their purposes. At one stage Mrs Westland explained that she did not think there was a genuine safety concern about the stairs. When asked how she would assess whether a safety concern was genuine or not, she returned to the explanation that having been given the keys she presumed the property had been assessed as suitable. The evidence of Rachel Scott did not advance matters.

Expert Evidence

[12 ] In giving technical evidence Mr Glen spoke to his report number 6/7 of process. In order to prepare this report he visited the premises at 56 Cameron Street with the pursuer in November 2005. Mr Glen explained the various terms used to describe the components of a stair. The treads are the horizontal sections of a stair available for standing on. The riser is the vertical section between each tread. The nosing is the area of the tread which extends over the riser. The going is the horizontal dimension from a point on one step to the same point on the next step. The going can be the same as the tread, however if the tread overhangs the edge of the riser then the tread is more than the going. The pitch is the angle to the horizontal.

[13 ] In his report Mr Glen described the staircase at 56 Cameron Street as being extremely steep with extremely narrow treads and high risers.

The measurements for the staircase were as follows:

Tread - 225mm

Risers - 205mm

Nosings - 22mm

The going - 203mm

Width at each tread - 850mm

Pitch - 45.3^o.

Mr Glen explained that Building Regulations Standards set limits on the geometrical parameters of stairs in the interests of the safety of users. Current technical standards for stairs in office use require that risers shall not exceed 170mm, that goings shall not be less than 250mm and that the pitch shall not exceed 34^o. Accordingly all three of these parameters were exceeded in the stairway at 56 Cameron Street. The current parameters for stairways in domestic use were described as requiring a maximum pitch of no more than 42^o, a maximum rise of 220mm and a minimum going of 225mm. Accordingly the stairway also failed to meet two of these criteria. He pointed out that in particular the goings were 22mm short of the minimum for domestic premises.

[14 ] In section 5.4 of his report Mr Glen acknowledged that there have been minor variations in the geometrical criteria contained in successive Building Regulations and Building Standards. He explained that in the case of a building such as this, suitability of the stair for use within an office environment should have been assessed at the time it was converted from domestic to office use. Any necessary revisions to its configuration to avoid creating a hazard to users ought to have been made at that time.

[15 ] In giving evidence as to the suitability of the staircase under consideration Mr Glen referred to paragraph 5.6 of his report. He there described the staircase as creating a hazard to those required to use it on account of the steepness and the small size of the treads. This danger, he explained, was particularly present on descending. This was because coming down was less easy than ascending as a consequence of the overhang. He gave evidence to the effect that on descending there was a danger of the area behind one's foot catching on one's ankle and pointed out that there was less room to access the full area of the tread. He was asked what effect a bulge over the riser would have on the risk of accident to which he responded, "It will increase the risk of accident". When asked to state his general opinion as the suitability for use of this staircase Mr Glen stated "In terms of the Building Regulations it is not suitable for office use and in my opinion it is not suitable for office use." His conclusion, as set out on page 4 of his report, is that the stair is unsuitably steep and consequently hazardous for use within an office building. Mr Glen also explained that the part of a stair carpet which will wear the most is the part which the foot comes into contact with on the tread, namely the centre area. He explained that over time this action can wear or stretch the carpet. By stretching he meant that the movement can detach the carpet or push it out over the vertical. He explained that narrow treads provide insufficient bearing area for the foot and a risk of falling will be increased by any looseness in the lie of a fitted carpet. On the date of his visit to 56 Cameron Street the stairs were carpeted throughout. There was no bulging or stretching of the carpet visible and he pointed out that some stapling of the carpet had taken place, which he understood from Mrs Holtes had happened since her accident. He himself saw the staples.

[16 ] In cross-examination Mr Glen acknowledged that the Buildings (Scotland) Act 2003 was the primary legislation for the promulgation of Building Regulations and that the 2003 Act had replaced all previous legislation. He further acknowledged that the 2004 Regulations came into force in April 2005 and that the premises at 56 Cameron Street had previously been used as a house, with the date of conversion to office premises being around 1988. It was suggested to Mr Glen that so far as building regulations or standards are concerned, when alterations are made to buildings, or they are converted in use, not every aspect of the building requires to be brought up to the current standards. It was suggested to him that only the parts of the building which are being altered need to meet current standards. Mr Glen's response was that by that argument if one alters nothing, one can simply move into a house and use it as an office. His position was that in such circumstances one needed to be satisfied as to the health and safety requirements of any new use to which the building was being put. Mr Glen's position remained that the stair concerned came nowhere near to meeting any criteria for office use with which he was familiar. In re-examination, Mr Glen explained that the parameters of which he had spoken in his own report were in force at the time of the accident and had been in place since 1990.

The Defenders' Case

Gillian Christie
[17 ] Gillian Christie was aged 43 and worked as a clerical assistant with the Criminal Justice Department of Aberdeenshire Council. She worked at the premises at 56 Cameron Street and always had. She was working in the main office downstairs on the day of the accident. Through a glass partition she was able to see Mrs Holtes falling down part of the stairs. She did not see the fall commence or know what caused it. After Mrs Holtes had been taken away by ambulance Mrs Christie went up and had a look at the stairs. There were no rips or anything which, in her opinion, caused Mrs Holtes to fall. She explained that there was nothing obvious to her to cause a fall and accordingly she put in an email report that Mrs Holtes had lost her footing. Mrs Christie was anxious to make it clear that this was merely an assumption on her part and that she had not seen Mrs Holtes commence her fall. In cross-examination Miss Caldwell asked if she remembered bulging of the carpet at about that time. Mrs Christie replied that she did not notice any such bulging but agreed that this was something which she could have missed.

Robert Murray
[18 ] Mr Murray, who was aged 67 and now retired, had previously been employed as a health and safety adviser with Aberdeenshire Council, for more than 20 years. He retired in October 2003. He was working in his capacity as a health and safety adviser in May 2003. His particular area of responsibility and expertise was in relation to vibration. Mr Murray attended the premises at 56 Cameron Street in order to investigate the pursuer's accident. He explained that the lighting was all right, the stair carpet was all right, there was a banister on one side of the wall and it seemed all right on a visual examination. Mr Murray's evidence was that he found nothing unusual about the carpet. When asked what he was looking for, he explained he was looking to see whether it was torn or saggy. He was not able to establish what happened to cause the accident and made no recommendation as to any change that should take place.

Noel McCulloch

[19 ] The defenders also led the evidence of Noel McCulloch, who for 4 years had been the Senior Health and Safety advisor with Aberdeenshire Council. Prior to taking up his present post he had been a health and safety advisor for 14 years. Although Mr McCulloch had never been to the premises at 56 Cameron Street prior to the accident, he did visit them in November 2004 in anticipation of the current court case. He said that he went to familiarise himself with the building. In doing so he examined the stair. Mr McCulloch's view was that the stair was really in quite good order. It was well lit and had a handrail. The carpet was well fitted. He said that he admitted that the stair was slightly steeper than normal, but other than that everything seemed to be in good order. He confirmed that the stair remains as it was and that no other accidents are recorded on file as having occurred on the stair at 56 Cameron Street. In cross-examination Mr McCulloch confirmed that he was aware of a statutory requirement to carry out a risk assessment of the defenders' premises for health and safety purposes. He acknowledged that this requirement came into force in January 1993 and that it was a criminal offence to fail to comply with it. He recognised that the purpose of such a risk assessment was to determine what steps needed to be taken to comply with statutory duties, including those under the Workplace (Health, Safety and Welfare) Regulations 1992. Despite this Mr McCulloch confirmed that no risk assessment had ever been carried out for 56 Cameron Street, explaining that the defenders could only get so much done at a time. Mr McCulloch's opinion was that the staircase was safe and he was disinclined to accept the opinion of Mr Glen that the stairs were hazardous. He felt that there were too many qualifications to be borne in mind. However, it quickly became clear that Mr McCulloch was not familiar with the technical terms for the various components of a stair. He did not understand the concept of the going and did not know the regulations regarding the geometric parameters for a staircase. Prior to his inspection visit in 2004 he did not obtain information about any guidance or regulations as to parameters. Although he measured the stair on his visit he took no steps to ascertain how these measurements compared with parameters as set down in any relevant regulations. After a degree of discussion about these matters, Mr McCulloch's position was that he did not hold himself out as an expert in stairs.

Pursuer's Submissions
[20 ] Miss Caldwell invited me to hold that the accident which befell the pursuer occurred as a consequence of the defenders' negligence at common law and in breach of their duties in terms of Regulations 5, 12 and 13 of the Workplace (Health, Safety and Welfare) Regulations 1992. She began by identifying nine factual findings which she submitted could and ought to be made. They were as follows:

(1) That the staircase within 56 Cameron Street was steep.

(2) That the going was very short.

(3) That as at the date of the pursuer's accident the carpet in places was not snugly fitted against the riser and under the nosing.

(4) The steep pitch combined with the short going meant that the staircase presented a significant hazard to users. This hazard was exacerbated or increased where the carpet was not snug against the risers and nosing.

(5) Prior to the accident it was known to Mrs Westland that staff had safety concerns about the stairs.

(6) Mrs Westland took no action to address these concerns.

(7) No risk assessment had been made of the workplace and in particular the stairs.

(8) A proper assessment of the stairs would have remedied the hazard they presented to employees.

(9) The pursuer's accident was caused by a combination of faults, the short going, the steep pitch and the back of her foot coming into contact with the carpet over the riser and the nosing behind her. As a consequence of that she was propelled forward and head first down the stairs at speed.

[21 ] Miss Caldwell then made submissions regarding the credibility and reliability of various witnesses. She invited me to hold that the pursuer was a wholly credible and reliable witness who gave her evidence in a measured manner and without exaggeration. She invited me to hold that Mr Glen was a witness with considerable qualifications and special expertise in slipping and tripping. She invited me to hold that he was an impressive witness whose evidence should be given considerable weight. In relation to Mrs Westland, Miss Caldwell invited me to recognise that she gave her evidence in a defensive and reluctant manner. She invited me to hold that Mrs Westland was an unreliable witness in that she was the only person who did not find these steps to be steep, a proposition which Miss Caldwell described as remarkable. In relation to Mr McCulloch, she reminded me that he freely admitted he had no expertise in stairways. She submitted that he presented as a rather defensive witness who performed nothing more than a scant and very brief examination of the stairway. She suggested that he was not alive to the risk these stairs could present. In relation to Mr Murray she pointed out that he also lacked the expertise and experience of Mr Glen. She suggested that his evidence could be summarised to the effect that he simply went along to the premises to see if there was anything obvious which had caused a trip.

Submissions as to the law

[22 ] Miss Caldwell referred me to Regulation 5 of the Workplace (Health, Safety and Welfare) Regulations 1992 ("the Regulations"). She submitted that one needs to look at the Regulations in the context of the European Directive, as a result of which they were created. She referred me to English v North Lanarkshire Council 1999 S.C.L.R. 310 at p.319. She submitted that Regulation 5 imposes strict liability and referred me to Gallacher v Kleinwort Benson (Trustees) Ltd 2003 S.C.L.R. 384 at 409. She also referred me to McLaughlin v East and Midlothian NHS Trust 2001 S.L.T. 387 for the proposition that the reference in the Regulations to efficient state, has to be understood in health and safety terms. In other words, this had to be looked at in relation to the health and safety of the employees. She referred me to Butler v Grampian University Hospital NHS Trust 2002 S.L.T. 985 at p.987. Miss Caldwell submitted that the workplace at 56 Cameron Street was unsafe and posed a real risk of injury due to the steep pitch and the short going of the stairway. She submitted that each of these factors on their own would give rise to a real risk of injury, but putting the two together meant that the risk was even greater. She then submitted that if one added into these risks the presence of a bulging carpet, the risk was increased even further. For each of these reasons she submitted that the defenders had been in breach of their duties in terms of Regulation 5. Miss Caldwell submitted that the defenders had also been in breach of Regulation 12(1) of the Regulations. She submitted that Regulation 12(1) imposes a requirement that the constructional state of a workplace or traffic route should be suitable in relation to health and safety, in that employees will not suffer an injury. She referred me to McGhee v Strathclyde Fire Brigade 2002 S.L.T. 680 at p.683. She reminded me that Mr Glen had said the stairway constituted a hazard and was unsuitable as an office workplace stair. She submitted that the steep pitch and short going posed a considerable hazard to employees and again the hazard was increased by a bulging carpet. For each of these reasons she submitted that the defenders had been in breach of their duties in terms of Regulation 12. Miss Caldwell also submitted that the defenders were in breach of Regulation 13 of the Regulations. She submitted that the defenders failed to take effective measures to present Mrs Holtes falling a distance likely to cause injury. She submitted that they could have taken certain measures to improve, but not solve, the problem. She submitted that they should have reconfigured the stair.

Common law case
[23] Miss Caldwell also submitted that the defenders were in breach of their common law duty to exercise reasonable care for the safety of their employees. She submitted that the steep pitch of the stair, along with the short going, were circumstances from which it could be concluded that the stairs posed a hazard to users and were likely to cause injury, as in fact happened. She said that this should have been foreseeable to the defenders as a consequence of the various complaints which had been spoken to in evidence. She submitted that if the defenders had inspected the premises they would have discovered that the stairway did not meet the parameters for office use. Miss Caldwell submitted that the absence of any previous accident was irrelevant given the circumstances of the stairway itself and the concerns raised by members of staff. She submitted that the employer's duty was to provide a safe place of work and that they had to consider matters prospectively and consider any risk present. She suggested that there was a poor health and safety culture as could be seen from the evidence of Mrs Westland and the cursory examination spoken of by Mr Murray.

Defenders' Submissions

[24 ] Mr Macpherson for the defenders began by examining the factual findings which Miss Caldwell had suggested should be made. He addressed them as follows:

Numbers 1 and 2.

Mr Macpherson recognised that there was little dispute about these matters. The defenders accepted that the stairs were steeper than other stairs and that the going was short. His submission was that these factors were not enough on their own and that calling the stair steep had little meaning.

Number 3

Mr Macpherson reminded me was contested by the defenders.

Number 4
Mr Macpherson described the heart of the case. He posed the question, what is a significant hazard? He accepted that the defenders' obligation was to keep things in condition so as not to cause any risk. The dispute in the case was whether or not they had done so.

Number 5
Mr Macpherson said that to some extent this was accepted. The question he suggested was whether safety concerns were expressed and what effect that had. He described this as not a particularly material finding.

Number 6

Mr Macpherson accepted that Mrs Westland took no action and queried the relevance of this.

Number 7

Mr Macpherson accepted that no risk assessment had been undertaken.

Number 8

Mr Macpherson queried what one would describe as a proper assessment and disputed that the stairs would have been identified as a hazard.

Number 9

Mr Macpherson of course contested this matter and explained that the defenders' position was that none of these conditions had caused the accident.

[25 ] Mr Macpherson also made submissions as to the credibility and reliability of the relevant witnesses. In relation to the pursuer he submitted that there were a number of issues arising out of her evidence which ought to result in finding that she was not a wholly credible and reliable witness. He reminded me that there was no evidence to support her account of other employees falling going up the stairs. He submitted that she had spoken of the stairs being uneven and sagging, a description which he submitted was contradicted by Mr Glen. He pointed out that when Mrs Holtes gave evidence and was referred to production Nos.6/6 which contained photographs taken by her shortly after her return to work, she asserted that the bulge or bulges could be seen in certain of the pictures. Mr Macpherson's proposition was that nothing could be taken from any of these photographs to support that evidence. He referred to the pursuer's evidence to the effect that shiny staples had been applied to the stairway after her accident. He invited me to disbelieve her account that these were applied after the accident. In this regard he invited me to take note of her description of the staples as being shiny and therefore obvious. He pointed out that none of the staples could be seen in any of the photographs. He also referred me to the photographs taken by Mr Glen and contained in production 6/7. He suggested that the pursuer's foot could be seen in those photographs full on the tread of the stair. Mr Macpherson relied on the fact that no other witness had spoken of a bulge in the carpet or to any other defect in the carpet covering the stairs. When looking to the pursuer's account of the accident, Mr Macpherson submitted that her first response in evidence was that she could not remember what had happened. He submitted that this was highly significant in that she was not able to tell the court what occurred and was therefore not reliable in saying that she caught her foot. He submitted that the evidence disclosed that Mrs Holtes had fallen down the stairs by losing her footing in some fashion but no more. For that reason he said the pursuer has failed to prove her accident as pled. Mr Macpherson submitted that Mrs Hull should be seen as a fair and genuine witness who attributed certain of the difficulties she found with the stair to her own condition and some to the condition of the stairway itself. When it came to the evidence of Mrs Westland, Mr Macpherson challenged the suggestion that this witness was not concerned with health and safety issues. He referred to evidence she had given to the effect that in 1988, when occupation was taken of the premises at 56 Cameron Street, a door which was located at the top of the stairs and caused concerns was removed at her instigation. He said that accordingly she was a witness who could recognise when something needed remedial action in terms of health and safety considerations. Accordingly, her evidence to the effect that the stair required no remedy ought to be given weight. He recognised, however, that there was a discrepancy between the evidence of Mrs Westland and Mrs Hull. He sought to put this into context by saying that Mrs Hull did not complain in any official sense. In relation to Mr Glen Mr Macpherson submitted that it was important to appreciate that Mr Glen was giving his opinion solely on the basis of the Building Regulations which came into force in 2005. According to Mr Macpherson Mr Glen approached the matter in an incorrect way. He ought to have approached the matter prospectively, rather than by comparison with current regulations. However, Mr Macpherson also accepted that the parameters spoken of by Mr Glen had been in place since at least 1990. He submitted that Mr Glen's opinion insofar as it bore on the legal issues was simply wrong. He submitted that Mr Glen's evidence was to the effect that the stairs were steep, but that it had little more value than that. Mr Macpherson took the evidence of Mr McCulloch and Mr Murray together. He explained that each had been called as factual witnesses to the reporting procedures and to the inspection of the locus. They were not called as expert witnesses. He invited me to hold that each had been right in saying that there were no health and safety issues presented as a consequence of the stairway at 56 Cameron Street.

Submissions as to the law

[26 ] Mr Macpherson accepted that both Regulation 5 and Regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 applied to the premises at 56 Cameron Street. His proposition was that Regulation 5 could determine the issue in the case. He submitted that the argument presented under reference to both Regulations 5 and 12 was the same and that accordingly breach of one would lead to breach of the other. Mr Macpherson submitted that Regulation 13 had no application to the circumstances of this case. Mr Macpherson recognised that there was strict liability but reminded me that it was strict liability for a breach of the Regulation not for the occurrence of an accident. He referred to Taylor v The City of Glasgow Council 2002 S.C. 364 at 366 and 369. He also referred me to McGhee v Strathclyde Fire Brigade 2002 S.L.T. 680 at 683. Mr Macpherson submitted that Regulation 5 applied in circumstances where there was a risk which was foreseeable. It was not breached as a consequence of an ex post facto opinion. In this regard he relied strongly on the fact of no previous or subsequent accident. Insofar as there had been evidence of discussion amongst staff members, he submitted that for that sort of behaviour to constitute a real risk of injury or to give rise to foreseeability of a real risk of injury something more was needed. Mr Macpherson's submission was that in the present case we were contemplating only a stair which was steep. He queried how this fact alone could result in a breach of Regulation 5. He pointed out that stairs had to be viewed in a particular context. He said that the use of any stair carries a risk. He submitted that there was an inherent risk in the mechanism of going up and down stairs. Mr Macpherson submitted that even if it is the case that the risk of slipping increased proportionately with the pitch being steeper or the going decreasing, it did not necessarily follow that there had been a breach of the Regulation just because the stairs were at a 45^o pitch. Mr Macpherson's position was that until a set of stairs was so steep that people could not get their feet on them, or it was difficult for anyone to do so, then it was not foreseeable that there would be a real risk of injury and that accordingly there would be no breach of the Regulation.

[45 ] Mr Macpherson referred me to Gilmour v East Renfrewshire Council, the unreported decision of temporary judge Reid dated 5 December 2003. He also referred me to Delaney v Beechwood Nurseries Ltd, the unreported decision of Lord Kingarth dated 20 February 2004. In making submissions concerning the terms of Regulation 12 Mr Macpherson said that the same approach should be taken as in considering the terms and effect of Regulation 5. In relation to any risk arising out of the steep nature of the stairs or the narrow tread he submitted that the matter had to be capable of assessment before the accident. Mr Macpherson also referred to the evidence of the carpet. He accepted that if the carpet was found to have been sagging and so to have caused the accident then the strict nature of both Regulations 5 and 12 would come into play. He accepted that this would be an example of a breach which would give rise to strict liability. His submission was that the evidence disclosed that there was nothing wrong with the carpet. Mr Macpherson's position was that Regulation 13 did not apply and was not about stairs. He submitted that stairs are a means of access from one place to another and that so long as stairs were bounded by a wall and a banister there was no edge. He submitted that even if I was to hold that Regulation 13 did apply to a staircase, it did not add anything to the basic obligation. He said that this is a case to which Regulation 5 properly and completely applies.

Common law case
[27 ] Mr Macpherson said that he had very little to say in relation to the common law case because the question was one of foreseeability. He submitted that the evidence did not establish that the accident was foreseeable. He said that even if foreseeability had been established it was for the pursuer to aver and prove what ought to have been done.

Discussion

[28 ] Regulations 5 and 12 of the Workplace (Health, Safety and Welfare) Regulations provide as follows:

"5. - (1) The workplace and the equipment, devices and systems to which this regulation applies shall be maintained (including cleaned as appropriate) in an efficient state, in efficient working order and in good repair.

(2) Where appropriate, the equipment, devices and systems to which this regulation applies shall be subject to a suitable system of maintenance.

(3) the equipment, devices and systems to which this regulation applies are -

(a) equipment and devices a fault in which is liable to result in a
failure to comply with any of these Regulations; and

(b) mechanical ventilation systems provided pursuant to regulation
6 (whether or not they include equipment or devices within sub-paragraph (a) of this paragraph)."

"12. - (1) Every floor in a workplace and the surface of every traffic route in a workplace shall be of a construction such that the floor or 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 floor, or surface of the traffic route, shall have no hole or
slope, or be uneven or slippery so as , in each case, to expose any person to a risk to his health or safety; and

(b) every floor shall have effective means of drainage where
necessary.

(3) So far as is reasonably practicable, every floor in a workplace and 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, trip or fall.

(4) In considering whether for the purposes of paragraph (2)(a) a hole or slope exposes any person to a risk to his health or safety-

(a) no account shall be taken of a hole where adequate measures
have been taken to prevent a person falling; and

(b) account shall be taken of any handrail provided in connection
with any slope.

(5) Suitable and sufficient handrails and, if appropriate, guards shall be provided on all traffic routes which are staircases except in circumstances in which a handrail cannot be provided without obstructing the traffic route."

It was accepted that both regulations 5 and 12 applied to the staircase at 56 Cameron Street Stonehaven. The question of whether there had been a breach of either of these Regulations, or of a common law duty, turned on what I was prepared to make of the factual evidence led.

[29 ] I found the pursuer Mrs Holtes to be an impressive witness whom I believed. I did not think that there was anything of substance in the criticisms made of her evidence by Mr Macpherson. I agreed with Miss Caldwell that she was a lady who gave her evidence in a measured manner and without exaggeration. Accordingly I was prepared to accept her evidence as to the presence of bulging in the stair carpet by the date of her accident. She spoke in evidence of seeing this bulging still present when she performed an examination of the carpet after returning to work. She also spoke of staples being put into the carpet sometime after her accident. These were present at the time of the inspection by Mr Glen. Although Mr Macpherson invited me to disbelieve the pursuer's account that these staples had been applied after the accident I felt that it was important to bear in mind that, whilst there was evidence to the effect that nothing was done by way of remedial work, none of the witnesses spoke of staples being present at the time of the accident. This included those who had carried out an inspection. None of the witnesses were asked by Mr Macpherson whether there were staples in the carpet prior to the accident or at the time of inspection.

[30 ] Mrs Westland had given evidence that nothing was done to remedy any aspect of the staircase after the pursuer's accident. I found Mrs Westland to be a generally unsatisfactory witness. She was unwilling to accept that the stairs were steep. She appeared defensive in regard to the matter of her discussion with Mrs Hull and claimed not to recollect what she herself had said. I accepted the evidence of both the pursuer and Mrs Hull on their accounts of discussions with Mrs Westland. There was also a passage in Mrs Westland's evidence where Miss Caldwell asked her about a number of letters which she suggested had been sent to Mrs Westland by the pursuer's solicitors. Mrs Westland gave the distinct impression of trying to avoid acknowledging that she had received this correspondence by giving a variety of contradictory answers to the questions put. In closing submissions Mr Macpherson suggested that she should be seen as being protective of her employers rather than anything more serious.

[31 ] In the same vein I saw nothing in the evidence of the post accident inspections to dissuade me from my view as to the reliability of Mrs Holtes's evidence. Whilst Mrs Christie carried out a visual check of the stairs after the pursuer's fall she was doing so as a concerned fellow employee rather than in any expert capacity. She was looking for signs which would have been obvious to her, such as rips or tears in the carpet. She accepted that she might not have noticed any bulging of the carpet. Although Mr Murray carried out an inspection as a health and safety advisor his evidence as to the nature and extent of this was unimpressive. No written report had been prepared at the time and Mr Murray gave the impression of having little recollection of the visit, which would not be surprising some three years later. Although prior to attending he knew that there had been a fall, he did not realise how serious it had been. When examined in chief about his visit and asked how carefully he had looked at the staircase he replied, "I walked up and down it." He spent no longer than about ten minutes in the premises and appeared to have been concerned principally with the issues of whether there was adequate lighting and a handrail. I was left with the impression that Mr Murray had carried out a rather cursory examination.

[32 ] Mr Glen gave evidence that he had been a consulting engineer for more than 30 years. He had previously been a partner with a firm of consulting engineers until 2003 and he remains a consultant to that partnership. Over the years he has been involved in many building projects, both domestic and commercial and since the mid-1980s has appeared in many cases as an expert witness. He explained that he took an interest in the legal issues associated with engineering and a particular interest in the mechanics of tripping and slipping. I found Mr Glen to be an impressive witness. There was in any event no competing expert evidence. Although Mr Macpherson made some submissions as to how I should view Mr Glen's evidence I saw no reason to reject the essential aspects of his testimony. However, in light of my findings as to the condition of the carpet covering the staircase Mr Glen's evidence became of less importance than it might otherwise have been. Despite this I should make some reference to the evidence of Mr McCulloch. When asked to explain by what standards he judged the stairs to be safe Mr McCulloch stated that "we checked them out". He also stated that if he had thought that there had been a problem he would have consulted with others, such as the Council's Property Department. However, it was clear that Mr McCulloch had no knowledge of what the relevant parameters for a staircase in either commercial or domestic use were. Despite having taken measurements of the staircase on his visit in 2004 he appears to have done nothing with these. In particular he appears to have made no effort to compare them with any relevant regulations. His evidence also begged the question of how anyone without the appropriate expertise would identify the presence of a problem such as would warrant the obtaining of further advice.

[33 ] In light of the evidence given by the pursuer, taken along with that given by Mr Glen, I was prepared to infer that the pursuer's accident occurred in the way she herself surmised. That she was propelled forward whilst descending the staircase on account of the heel of her foot catching on a bulge in the carpet behind it whilst her other foot was not fully located on the tread as a consequence of the narrow space available. In arriving at this conclusion I kept in mind the burden of proof on the pursuer but I noted that no alternative explanation had been advanced by the defenders or put in cross-examination to Mrs Holtes.

[34 ] As Lord Hamilton pointed out in McGhee v Strathclyde Fire Brigade at paragraph [10] when referring to the nature of the requirement provided for by regulation 12:

"The requirement is a continuing one, so that it will be necessary throughout the life of the floor to consider its suitability for the purpose for which it is at any time being used; any change to the state of the floor, by for example, the effect of wear will require to be kept under review. This requirement is not limited by any qualification as to reasonable practicability."

Since regulation 5 is concerned with maintenance of the workplace these comments have equal application in considering the nature of the requirement provided thereby.

[35 ] Having regard to my assessment of the evidence as set out above, I am 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 neither kept in an efficient state nor in good repair, and (b) of Regulation 12(1) of the same Regulations - in that the surface of the pursuer's traffic route was not of a construction such that it was suitable for the purpose for which it was used. The breaches of each Regulation arise out of my findings that the carpet covering the stairs had been allowed through use and wear to bulge at the centre of the steps over the area of the nose of the step and in the area around the centre of the riser beneath. It was not disputed that such a condition would create a real risk of injury to persons using the staircase.

[36 ] Mr Macpherson accepted that if the stair carpet was found to have been bulging in the way described by the pursuer and to have caused her accident then this would constitute a breach of both Regulations 5 and 12 giving rise to strict liability. In this regard he simply invited me reject the pursuer's evidence. Most of Mr Macpherson's submissions were concerned with the question of how a staircase with the particular dimensions under discussion could be said, of itself, to present a real risk of injury to persons using it and thereby breach the terms of either regulation 5 or 12 the Workplace (Health, Safety and Welfare) Regulations 1992. In light of my findings these submissions have no application.

[37 ] In light of the findings made I am further satisfied that it has been proved that the pursuer's accident was also caused by the defenders' fault at common law and in particular by their failure to take reasonable care to keep the carpet covering the staircase in a suitable condition. There were concerns previously expressed about the general suitability of the staircase. There was no system of inspection in place. I am satisfied that a reasonably careful employer would have been able to judge that with the carpet bulging over the nose of the stairs and in the area of the risers below there was a real risk of a person being injured in the way that the pursuer was. Such a risk could have been eliminated by the securing of the carpet to the stairs by staples, such as was done at some point after the pursuer's accident.

[38 ] I agreed with Mr Macpherson that the terms of Regulation 13 of the Workplace Health, Safety and Welfare Regulations 1992 did not apply to the staircase within 56 Cameron Street.

[39 ] In all the circumstances I shall pronounce decree for payment by the defenders to the pursuer of the sum of £30,000. In terms of the Joint Minute entered into between the parties' interest is to run on that sum at the judicial rate from 17 May 2006 until payment.