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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 167
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PD198/03
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OPINION OF LORD McEWAN
in the cause
MOIRA STEWART
Pursuer;
against
MATALAN RETAIL
LIMITED
Defenders:
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Pursuer:
Bowie; Digby
Brown
Defenders: Jardine; HBM Sayers
20 October 2006
[1] On 30 August 2002 the pursuer
was at work in the defenders' shop premises in Edinburgh. At the material time, she was returning to
the shop floor area from the staff room.
The Record then goes on to say that, as she did so, a child ran into her
causing her to fall and sustain injuries.
She was off work for some time.
The defenders deny liability at common law, under Statute and Regulations. They plead in addition contributory
negligence. Five witnesses gave evidence
for the pursuer viz the pursuer and
her husband; Christina Handley
and Ann Noble who were work colleagues and Mr Stan Johnston an expert
witness. The defenders led two managerial
staff viz Fiona Ross and
Sarah Thomas.
[2] The
Record is in the new abbreviated form which, from time to
time, caused problems as the evidence was led and even before that. The circumstances of the accident were
unwitnessed and so much depends on the reliability of the pursuer. It was not suggested
that there were any issues of credibility.
[3] At
the hearing on evidence, objection was renewed by
counsel for the defenders to evidence being allowed about what was called
"previous incidents". It arose in the
evidence of the pursuer and the witness Noble.
Put broadly, the evidence allowed under reservation was to the effect
that complaints had been made about congestion in the sales area behind the
door and customers had been struck by the opening door.
Evidence was also led about announcements made by the
defenders to parents to supervise their children. Some authorities which I
set out in full citation later were referred to.
[4] This
case is presented under Rule 43.2(1)(a) and, as
is plain, there is no record for any of this evidence. The defenders maintained that they were
prejudiced and there was some discussion as to what had been
said at the pre-trial meeting.
The pursuer said that the evidence was merely a "development" of the
case on record (Burns was referred
to) and that in any event the defenders should have known of it. In the event, the pursuer did not press me to
allow the evidence about announcements and I will disallow that ex concessu. That leaves prior incidents. Clifton was referred
to. It is not a point for a number of
reasons. Firstly, the matter was heard on the motion roll before any proof was
allowed. The present problem arose in
the course of the proof. In Clifton, the
matter was sent to debate, but I am not aware what
took place there. The Lord Ordinary did
stress that the defenders ought to know without difficulty, the case made
against them. In Higgins, the question was whether issues should
be allowed. The pursuer had
alleged two separate incidents. It was conceded that in relation to one of these the averments
were sufficient. On the pleadings, the
Lord Ordinary held that the other was not sufficiently
averred and refused issues. She
did go on to observe that, even in the new procedure, it was still necessary to
aver facts "necessary to establish the claim" (Rule 43.2). In the present case that has not been done.
The matter arose by surprise in the course of the proof. If the pursuer knew this point was important,
it should have been pled. A sentence would have sufficed.
[5] I
propose to take a strict view in this case.
Pleadings still have an important purpose and here, the necessary facts have not been averred.
I will accordingly sustain the renewed objection and disallow the
evidence of prior incidents which was in any event
vague and unsatisfactory.
(A) Much
of the evidence about the layout of the store is not in dispute. I find it proved from the evidence of both
parties that beyond the sales area is a staff area. It is described on the plan
No. 6/11 of Process and seen in the Photo 6/13 with the rider
that the photos do not represent the sales area at the time of the accident. There is an internal corridor on which are to
be found coats (seen in Photos 3
and 4). At one end of the corridor
are three doors close together. There is
an internal door to a fire exit (see Photo 2 showing a green sign. Beside it is a door to the manager's office. That door has a head height window
(Photo 4). The third door (which I
refer to as the relevant door) leads back into the sales area and the "H" frame
clothes racks. It has no window. The door is seen in
Photo 3 from the inside (closed) from the sales area in Photo 1 (closed)
and from the same area in Photo 2 (open).
The "H" frames are seen in Photo 6
and to lesser effect in Photos 1 and 2.
The "H" frames in the photos are not in the position they were at the
time of the accident in 2002 since the photos shot by the pursuer's expert
Mr Johnston were taken in August 2003.
[6] Beyond the staff area is a carpeted
sales area, also described on the plan.
There are no accurate measurements of the area.
[7] A
shopper would then find a walkway followed by another sales area with a reception
area and cash tills nearby. At the
material time the pursuer was leaving the staff area
by the relevant door to return to her duties in the shop. There are two issues of fact arising from
what next happened viz what did the
pursuer do and see; and where was the
nearest "H" stand. I deal with these in
turn.
[8] Only the pursuer can say what she
did and I accept her as credible and reliable.
I hold it established that she went to the door and pushed it open. She saw an "H" stand in front of her. The stand reached to about her waist
height. She was unaware of and did not
see any child concealed in the stand.
The area in front of the door was congested with stands
as it was "SALE" time in the
shop. The pursuer stopped, as she wished
to walk to her right. There were people
in her way so she decided to walk left.
Before she could do so a child emerged from under the stand and "rammed"
into her (the pursuer's own words). She
fell and sustained injuries.
[9] There
is no evidence that the child had been running about the store
unsupervised. The pursuer did say that
on occasions when the door was opened there could be a
customer behind it. The pursuer did say
that if the door had had a window she would have seen the child. On that one crucial point
I do not accept her evidence for this reason.
She said she had already emerged from the door and yet did not see the
child. Wherever the H stand was, if it
concealed a child, I hold that on balance the pursuer would not have seen the
child through any window in the door. I
hold on the evidence that the child was concealed
within the garments hanging on the stand and was to all intents invisible. I do not doubt that if a child was standing beside the "H" frame then the child would
probably have been visible through any window.
[10] The second question, which I regard as less important is to
determine where the stand was which concealed the child. That has to be a matter of inference. The pursuer could not say with any acceptable
accuracy where it was. She had an
impression of congestion but was shocked and in pain at the time. Her colleagues who come to assist her
(Christine Handley and Ann Noble) did not see the accident, and not
surprisingly could not say with any accuracy where the stand was in relation to
the door.
[11] However, the defenders were able to lead two witnesses who
could assist the Court on this matter;
Fiona Ross a sales manageress and Sarah Thomas the store deputy
manager at the time. I accept it proved
from the evidence of Thomas that the Matalan Group had a Procedure Manual Book
kept in the shops operated by them showing how to lay out a store for the
safety of staff and customers as well as to merchandise effectually. The minimum distance between "H" racks was
one metre but usually up to two metres.
This was to allow for movement of shopping trolleys and double "buggies"
with children.
[12] I hold it proved on the unchallenged evidence of Thomas that on
the day in question she personally checked that the staff had laid out the "H"
stands with that minimum distance between them including the stand where the child
hid later. She did so before the store
opened. That was standard procedure and
she did it daily. She entered the
results of her inspection of a check-sheet carried by her for Health and Safety
purposes. It was necessary to do the check as the cleaners would have to move the stands to
hoover the store carpets. I accordingly
find it proved that when the relevant door was fully open, there was at least a
metre from its leading edge to the nearest "H" stand. I also find that if the stand had been out of
place or too close, she would have required it to be moved. I accordingly find that the stand was not too
close to the door, was not in an unsafe or inappropriate place either for Health and Safety purposes or shopability.
[13] Thomas went at once to the stand to find the pursuer
injured. She said, and I accept her
evidence, that she had a clear memory of where the stand was and that it was
not out of place. Fiona Ross who
was in charge of putting the merchandise on the "H" frames confirmed and corroborated
her manager that the stand in question was at least a metre from the edge of
the open door. What she said on this
point had the added ring of sense when she remarked that if the H frames were
not at least this distance apart, you could not sell anything from them.
[14] It is necessary now to deal with the evidence of the pursuer's
expert witness Mr Johnston. He
provided a report to the Court which is No. 6/12
of Process. I pause here to observe that
the report contains five typing errors which affect
its meaning. That should not
happen. However, accepting it at face
value it raises at once a number of problems.
In the first place it was prepared a year after the accident. It cannot
give with any accuracy where the relevant H stand was at the time. It was assumed that
the child causing the accident was "running around" and was or would be visible
to someone looking through a window in the relevant door (had there been one).
[15] There are two immediate problems. There was no evidence that the child was
running around. The pursuer had come
through the door and was looking where to go.
In spite of this state of facts the hidden
child was not seen. Remaining with the
report, it states (page 2, lines 9
and 10) that the child ran into the pursuer due to the opening of the
door. That is factually wrong. In its conclusions
the Report states that if the door had had a window the pursuer would have been
able to see the child. I do not accept
that. The pursuer went through the door
and did not see the child as the child was concealed. In his opinion in Section 5.0 the writer does not say why he considers the access
unsafe. In Section 6.0 he postulates a case of "sufficient floor area". No such case was made
to me. Lastly, in Section 7.0 he
asserts that the floor was "crowded" with stands. That is not in accordance with the evidence.
[16] When he came to give evidence, he was unable to support the
case under Regulations 10 and 12 since he could not say where the H
stand was at the time. He was driven to
make assumptions about distances which did not accord
with the defenders' evidence which I have accepted. Unfortunately he
conceded in cross-examination that a door window was of limited use where the
child was concealed. Although some
attempt was made to withdraw that concession in re-examination
I found his answers unconvincing.
[17] Regrettably the witness in evidence
and in 6/12 tended to act as an advocate for the pursuer rather than to
deal with facts as he found them. That
approach I found unhelpful.
[18] Both parties submitted an extensive note of argument
which was repeated and expanded upon before me. I refer to them for
their terms.
[19] The following cases were referred to,
some only in passing
Anderson v Newham College [2002] EWCA CN 505
Banque Bruxelles SA v Eagle Star [1997] AC 191
Beck v United Closures etc Ltd 2001 SLT 1299
Burns v Dixon's Ironworks 1960 SC 102
Caswell v Powell Duffryn Collieries [1940] AC 152
Clark v E R Wright & Son [1957] 3 All ER 486
Clifton v Hayes Plc etc 7 January 2004 (Lady Smith)
English v North Lanarkshire Council 1999 SCLR 310
Higgins v DHL 2003 SLT 1301
Hughes v Lord Advocate 1963 SC (HL) 31
Jenkins v Allied Ironfounders 1970 SC (HL) 37
Lee v Nursery Furnishings Ltd [1945] 1 All ER 387
McGhee v Strathclyde Fire Brigade 2002 SLT 680
McLean v Caledonian McBrayne Ltd 8 January and 28 October 1999 (unreported)
Miller v Perth and Kinross Council 2001 14 December Lord Hamilton
Morrisons v Jas Rome 1964 SC 160
Muir v Cumbernauld and Kilsyth DC 1993 SLT 287
Norris v Moss & Sons [1954] 1 All ER 324
Porter v Strathclyde Regional Council 1991 SLT 446
R (Hampstead Heath Winter Swimming Club) v
Corporation of London [2005] 1 WLR 2930
Robb v Salamis 16 March
2005 (unreported) [2005] CSIH 28
Simmons v British Steel Plc 2002 SLT 711
Skinner v Scottish Ambulance Service 8 July
2004 (not reported)
Wardlaw v Bonnington Castings [1956] 1 All ER 615
Other cases in the written
submissions were not canvassed at all.
[20] The argument for the pursuer may be summarised in this way. It was proved that
the door served a busy route for employees passing between the staff and office
areas into the retail area. The door was
a fire door and led on to an area where there was wall shelving and a four-way
stand with clothing. This could be seen in the photographs. (The H stand). On the day in question, the area was
congested and the stand, with its clothing, was too close to the door and other
stands. There was no window in the door. If there had been one, she would
have been alerted to the presence of the child. The defenders knew that children ran about in
the shop. The pursuer's account of the
accident should be accepted and was uncontradicted.
[21] Proper positioning of the stand and a window in the door would
have prevented the accident. The pursuer
would have seen and avoided the child or else gone in a different direction. She is experienced with children.
[22] Counsel then looked at in some detail the Workplace (Health,
Safety and Welfare) Regulations 1992.
Both Regulations 17 and 18 were in point. The area was a traffic route and the door was
part of the workplace and the route. The
shelves, door and stand made for a bottleneck with many people having to use
it. Regulation 12 was also in point. The
stand was both an "obstruction" and an "article" and it was not in its proper
place. That was why the pursuer
fell. Counsel referred to Simmonds and the cases of Jenkins and McGhee referred to there.
Because the door was a fire door, the route was de facto a fire escape. In
its position, the stand was bound to compromise safety. There was a door nobody could see through opening
on to a fire route which quickly became a
bottleneck. Counsel referred to Anderson at
various passages. Regulation 10 was
also in point. The area in question was
a "room", even if it was a large room.
There was not enough floor area for safety.
[23] Counsel then moved to his common law case
which is bound up with an objection to evidence which I have dealt with
elsewhere. The common law argument also
ran in tandem with the case under Section 2(1) of the Occupiers Liability
(Scotland)
Act 1960. If there had been a
window in the door and the stand in a better place, the pursuer would have had
different safety choices of where to walk.
As things were, she was hemmed in and
vulnerable to surprise. The court if in
doubt should err on the side of being generous to the pursuer. Lee; Wardlaw and Clark were referred to. There the work route was poorly organised and
the accident was of the type the broad Regulations were
designed to prevent.
[24] Even in normal use, this door was unsuitable and created a
risk. Beck was referred to as was Miller.
With a window, it was more likely than not, that there would have been
no accident.
[25] Counsel then dealt with quantum.
[26] Mr Gardiner in argument for the defenders adhered to the
terms of his written submission. That and what he said orally can be summarised in this
way. I should grant absolvitor. The pursuer had failed to prove any causal
link to fault. This was a case of
"accidents will happen";
and a child running into someone's legs could have happened
anywhere in any shop. The only case made
related to the position of the stand or clothes rack and whether the door
should have had a window at head height.
(Counsel then proceeded to renew his objection and reply to two
particular chapters of evidence which I have noted
elsewhere and dealt with separately).
[27] The accident was unwitnessed and it was important to make a
finding as to what the pursuer had actually said in evidence. If she only saw the child when she fell, then
the accident was unavoidable. This was
not the same as colliding with highly visible adults in the shop. The photographs were of little value (Nos. 6/13
of Process) since they were taken long after the event. The child was concealed
in clothing on a stand. On the evidence it was impossible to make any specific finding as
to where the stand was in relation to the door and the next stand. The defenders witnesses Ross and Thomas were
to be preferred to the pursuer who did not work on the shop floor. The stand was in its correct place to allow
safe and proper operation of the shop.
[28] The case concerning the window was pure speculation. The pursuer's expert said that the door
should have a window at head height. The
pursuer said she could and would have looked.
That made no difference since the child was concealed
and the pursuer would not have seen the child.
It was important to notice that it was the child who
ran down the pursuer. Wherever
the stand was, that was the effective cause of the accident. Even if she had seen the child
the accident would still have happened.
It was accordingly not proved that the presence
of a window or a stand at a greater distance would have prevented the
accident. Even if these precautions had been taken, the accident would still have happened.
[29] Counsel referred to Norris
at pages 326/7; Porter where there was a real
risk; and Muir at page 289. Here
the risk was of a child behaving in a certain way and that was not
foreseeable. McLean was
referred to in some detail.
Mr Gardiner then related his general argument to the various
regulations founded upon by the pursuer.
He accepted that Regulations 10, 17 and 18 might apply as might
the Occupiers Liability (Scotland)
Act 1960. However, on the evidence,
the stand was in the correct place and a window would have made no
difference. He referred again to Norris and the Hampstead Heath Swimming Club case.
The problem for the pursuer was that the danger against which any duty
would arise was not, on the evidence, the one which
occurred. The window in the door was to
prevent her bumping into someone she had seen., and
the proper gap between stands was to allow clear traffic routes for shopping
and in case of fire. However, the danger which actually occurred was a completely
unpredictable event - a child "exploding" out of a stand.
[30] I want now to look at the authorities. Many were referred
to only in passing but few were fully cited and discussed. For that reason it
is not necessary to consider all of the cases.
I propose to look only at the cases discussed fully in argument at the
hearing.
[31] I begin with the Statutory cases.
[32] Simmons v British Steel concerned
Regulation 12(3) and whether a tube properly and necessarily on the floor
of a workplace was an "obstruction" and if not was it an "article". Although the case went to the House of Lords
on other matters, there was no challenge to the Lord Ordinary's opinion on this
point. Lord Hardie was of the view
that the tube was not an "obstruction" but that an "article" had to be
something other than an "obstruction".
He found the defenders in breach of Regulation 12(3) holding that
the tube was an "article". He expressed
no concluded opinion on the defence of reasonable practicability. I agree with the Lord Ordinary's
reasoning and propose to follow it.
[33] Anderson
v Newham College is
only partly reported on Regulation 12. The rest of the case deals with contributory negligence which is not an issue here. A site supervisor was checking a classroom in
the college. He had to walk between
items of furniture required for teaching to look at a broken window. There was ample room for him to pass but he
tripped over the horizontal support of a white board frame. The frame had been placed
with its wheeled feet sticking into the gangway. As they were two feet in length, it was an
obvious hazard. Placed the other way
round, it would not have been. The Divisional
Court, supporting the judge, found that location
was critical. There was a breach of
Regulation 12. There would not have been
had the frame been the other way round with its feet to the wall.
[34] Beck v United Closures etc was
referred to in relation to the argument on Regulation 18. In that case, I held that by
reason of a complex locking mechanism and badly positioned handles, the
doors which trapped the pursuer's hand were not suitably constructed. In that case the
accident to the pursuer was directly related to the need to shut the door
properly to allow the industrial process to start up. That, in my view, makes this case not in
point for present purposes. The door in
the present case, whatever its construction was not the cause of any accident.
[35] In McLean v Caledonian MacBrayne the pursuer was a
ship's carpenter. He was
injured when climbing over a railing on the boat deck in order to reach
a sign. There was no gate through the railings which were about a metre high and made up of
equally spaced railings. The Lord
Ordinary found breaches of statutory duty and negligence at common law. The issue was whether a gate should have been provided.
Having analysed the pursuer's manoeuvre over every stage of the railing,
he concluded that the pursuer lost his footing at the final step down. By then there was no risk and no need for a
gate.
[36] In the Inner House, this analytical approach was
upheld on the evidence before the Lord Ordinary. The absence of a gate was not the cause of
the accident at the moment it happened. I am not sure this case is authority beyond
its own facts.
[37] Norris v Wm Moss and Sons was
cited as an authority on causation.
Although decided long ago it remains good law and was
referred to as valid in the Hampstead
Heath swimming case. The plaintiff
was an experienced scaffolder who had been told by his foreman
to add a platform above the existing ones.
The foreman knew one of the upright poles was
out of the vertical. He did not tell the
plaintiff who himself saw this when he began his work. He unfastened the couplings of the platform
on which he was standing and tried to bend the upright into the vertical. It sprang back on him causing the platform to
collapse. The Court of Appeal did not
express any unanimous concluded view on whether there was a breach of statutory
duty. Agreeing with the single judge,
they held that the sole cause of the accident was the method adopted by the
plaintiff, not the earlier omission by the foreman. Next are two Scottish cases
which are helpful on the proper way to interpret the Regulations. In English
v North Lanarkshire Council,
Lord Reed held that the Regulations should not be interpreted narrowly and
in a way which would fail to implement the Framework
Directive (see pages 319 and 324).
In Beck
I followed Lord Reed's approach and propose to do so here. McGhee v
Strathclyde Fire Brigade is a
decision of Lord Hamilton who also followed Lord Reed's
approach. (Para. 9). He added in however, the need for there to be
a real risk of harm. In other words, the
Regulations even when in apparently absolute terms brought with them the
concept of foreseeability. Miller v Perth & Kinross Council is again a case under different
Regulations couched in absolute terms.
It concerned the lighting (or lack of it) on a sloping path into a
school. On the facts (para. 10 and 15) the Lord Ordinary held that the lighting was neither
suitable or sufficient. Skinner v Scottish Ambulance Services concerned the proper provision of
needles to ambulancemen. The case was not decided after proof and concerned the proper
interpretation of the word "suitable".
Questions of costs were involved.
The pursuer's counsel invited me to hold that this case was not precisely
in point and I agree with him. Robb v Salamis Ltd was decided after proof. It concerned an accident at sea when a bunk
bed ladder gave way. There was much
discussion about Regulations not in issue here (see e.g. para. 60 onwards)
and the word "suitable" was again looked at. The Inner House declined to interfere with
the Sheriff's findings on the facts about "suitability". Once more the case
does not assist.
[38] The case of Regina
(Hampstead Heath Winter Swimming Club and another) v Corporation of London is not directly in point but reasoning by
analogy it is helpful for the occupiers liability
case. The Corporation kept and managed
bathing ponds and a lido. There was no
supervised winter swimming before 7.15am. The club proposed that they be allowed to swim early subject to certain rules. It was accepted that
the pond, though cold, had no hidden dangers.
One of the questions before the House of Lords was whether any
consequent risk to health and safety arose from the conduct of the undertaking
by the local authority. The case was a
judicial review of the Corporation's refusal to the club. It was held that the
Corporation had brought no hidden danger to their premises. Any risk was incurred
by the decision to swim and not the condition of the pond. An adult club member could choose to swim or
not.
[39] There are a number of other cases which
can be looked at in brief. Banque Bruxelles is not in point. It concerned lenders who found that their
securities (London properties) had
not been properly valued. The main
thrust of the case was what was the proper measure of damages. Clark v E.R. Wright was a scaffolding case
where the employers had taken no steps to perform their statutory duties. In that situation
the Court was unsympathetic to any argument seeking to exonerate the
employer. Thereafter the case was mainly
concerned with apportionment between them and other contractors. Lee v
Nursery Furnishings is again
authority for the same proposition that where the accident complained of is of
the very class the Regulations are designed to prevent
the Court should not be "astute" to find that the breach did not cause the
accident. There remain two Scottish cases which should be noted.
Neither is in point. In Porter (the mince case)
the risk of slipping on discarded food was very clear unless there was proper
supervision. Contributory negligence was
a major issue and in the Outer House the wrong test on
causation was applied. Mair was a case concerning gloves and to
some extent proceeded on a concession.
It was very special on its own facts where the precise mechanism of the
injury was not clear. The main value of
the case is that it explained Porter
further.
[40] Counsel ended on the merits by conceding that contributory
negligence was not a live issue. He then
dealt with quantum.
[41] I want now to consider the cases made under the various
Regulations some of which were added by amendment at
the beginning of the proof. At the end
of the hearing Mr Bowie conceded that he was only now founding on the
Workplace (Health, Safety and Welfare) Regulations 1992; Regulations 10, 12, 17 and 18. Accordingly I do not
propose to look at any of the others mentioned.
[42] Regulation 10 provides:
"... (1) Every room where persons work shall have sufficient floor
area, height and unoccupied space for the purposes of health, safety and
welfare ..."
The accident here happened in a corner of a very
large retail shop where there were the racks of clothing as described. The first question is whether this shop is a
"room" within the meaning of the Regulation.
In my view on the facts of this case, it is a room. In what is a very big room, there are sales staff working at their different duties as well as
members of the public shopping for merchandise.
[43] The next issue is whether there was on the day, sufficient
"unoccupied space". That has to be viewed against safety for the workers who have to move
about among the public and the merchandise.
The duty is strict. I do not
derive any assistance from paragraph 9 of the Directive. The question is whether the stand in question
was in a position to leave insufficient unoccupied space. It was never suggested that overall the shop was too small or that there were too many
stands. I have already held that on the
evidence the defenders had a system of laying out the stands in accordance with
their Procedures Manual which was supervised. That had to be done,
as before opening, the cleaners would move them. On the day in question, the stand was in a
proper position and a safe distance from the others around it and the door. Clearly such
placements are a matter of judgement and the space a matter of degree depending
on how busy the shop becomes. I have
accepted the evidence of Fiona Ross and Sarah Thomas on this; and that Thomas on
the day had checked the stand in question and found it to be in a safe
position.
[44] The defenders have accordingly proved that the room had
sufficient unoccupied space for safety of the staff. The other problem for the pursuer in this
area is the point about causation and foreseeability. I have held that the child was
hidden in the stand. Even if
greater distances of unoccupied space had existed, an accident such as this
would still have happened.
[45] Next is Regulation 12 which
provides:
"... (3) So
far as is reasonably practicable, every floor in a workplace and the surface of
every traffic route in a workplace shall be kept free from obstruction and from
any article or substance which may cause a person to slip, trip or fall ...".
Can it be said
that the clothes stand was an "obstruction" or an "article"? It is true that the stand was in an area which led to a fire escape via the door. However, the accident to the pursuer was not
the result of her being obstructed and she did not trip
over the stand. On the evidence the stand was a necessary part of the retail
business and was in its correct position.
[46] Once again, the unforeseeable nature of this accident is the
problem. That apart, I do not think this
Regulation applies. I hold that the
stand was not an "obstruction". It was a
retail necessity. The defenders could
not avoid putting the stand on the floor.
Assuming that this part of the shop was both a
sales area and a traffic route, no case is made that the dimensions were
unsafe. (See Directive 12.1
and 12.2). Nor do I think
the stand is an "article" and although it may have created the condition to
cause the accident the way it occurred was simply not
foreseeable. The case of Anderson can be distinguished on its facts but assists on the
law. It was made
clear there that the only reasons the frame created a breach was because it was
facing the wrong way. Otherwise
it was properly in the classroom. I
agree with the Lord Ordinary in Simmons
that what might not be an "obstruction" could yet be an "article". The duty is not absolute and here the
defenders have satisfied me that it was not reasonably practicable to place the
stand other than where it was. I should
add that it was never suggested, of course, that the
child was an obstruction or an article.
[47] What of Regulation 17. It provides, without quoting it in full, for
the organisation of traffic routes. They
are to be organised in such a way that pedestrians can circulate
safely (17(1)) and be in suitable positions and of sufficient size
(17(2)). It was said
that the set up created a bottleneck with persons going to the right and left
of the door. The defenders accepted that
the Regulations applied but maintained that there was no breach of it causing
the accident. In my view, on the facts,
Regulation 17(2) does not apply and is, in any event,
not breached. To walk through the
door was to go in the only suitable position for the route and no criticism was
made of the door's size. The door had to
open the way it did and it was not suggested it could
or should open any other way. Opening it
temporarily reduced the size of the route but in my opinion, this is not a
breach. In any case, opening the door
did not cause the accident. Was the
organisation of the workplace such that pedestrians could circulate safely (17(1)). I am prepared to
accept that 17(1) applies but once again the
point reverts to the stand which I have held was in its correct position. The pursuer did not collide with the stand or another shopper or a trolley. It was necessary to have stands in place where
they were.
[48] It was accepted that Regulation 18
applied. It provides inter alia that:
"...
(1) Doors ... shall be suitably constructed (including being fitted with any
necessary safety devices) ...".
The Approved Code of Practice,
paragraph 183, suggests that conventionally hinged doors opening on to main
traffic routes should have a transparent panel.
I am prepared to accept that the route to the door was a main traffic
route since it led to offices, the canteen and a fire escape. The problem, however, is whether a window in
the door at head height (which was the contention), would have prevented the
accident. Assuming in her favour that
the pursuer would have looked through any window, I do not hold it established
that she would or could have seen the concealed child. For that reason I
hold there was no breach of the Regulation.
[49] Section 2 of the Occupiers Liability (Scotland)
Act, 1960 was relied on in the same breath as the
normal common law duty of reasonable care.
The two were considered as one. Very little detailed argument was devoted to
this case possibly because the pursuer was an employee. The question was whether the state of the
premises with the stand where it was constituted a danger. On the evidence, it was in its proper place as
I have already said. It is important to
observe what is the duty under the 1960 Act. It is one of reasonable care. All the circumstances must
be considered. A question arises
as to whether anything has been done or omitted to be done
in the premises.
[50] The pursuer here is a fit and able bodied young woman., Any duty is owed to
her in that capacity to begin with. Next she is a mother of children and must be taken to be
familiar with their habits. She was an
employee, familiar with the shop and the way goods were
merchandised. She was aware that
mothers and young children were ever present in the
store. These are all the
circumstances. As I have already noted,
I find that the stand of garments was in its proper place. Accordingly the
defenders have not omitted to do anything they should have done. It is a fact of life
that young children in stores are sometimes not properly supervised. However, in the present case there is simply
no history of any like accidents. It was
not, nor could it be, suggested that the presence of this child was a danger
due to the state of the premises. For
these reasons I hold that the defenders are not in
breach of any duty under the Act. If I
am wrong about that, I am of the view that this accident was not foreseeable.
[51] Although the pursuer cannot succeed, I want to deal with quantum lest the case go further. There was little dispute or difference
between the parties on this and much had been agreed
at the pre-trial meeting. Past wages
loss with interest and past services were agreed at a
rounded figure of г1,013. It was accepted that the medical reports of Dr McQueen
were to be the expert evidence. There
are two reports dated 11 March 2003
(No. 6/4) and 17 August 2004
(No. 6/14). These are referred to for their terms. The reports disclosed a dislocation to the
left elbow with associated swelling.
There was no fracture but there was a degree of loss of full movement. It was noted over
time, that movement and extension improved to allow her to carry out most
normal tasks at home and after some six months, at work.
[52] The most recent report indicates that there is a degree of
abnormality in appearance of the elbow with continuing difficulty in lifting
heavy objects, dressing and driving a car for long periods. The pursuer, herself, to her credit did not
exaggerate her problems. She was in
severe pain at the time of the accident, and spoke to the ruined holiday and
the initial problems with housework, dressing and eating and holding the
telephone. She was depressed and unhappy
for a time. I was
impressed by the fact that she had made every effort to adjust to her
injury and her overall very pleasing appearance was not affected by the obvious
shortening of her arm.
[53] I was not addressed at any length on solatium and the cases in the written
submission are not truly in point.
Having regard to judicial studies awards, I would have assessed solatium at г7,000 with 50% of
that being allocated to the past. Interest to date would add г560 to the
sum.
[54] The award would have been г8,573.
[55] In the result, however, I shall assoilzie the defenders and
refuse the conclusion of the Summons.
