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OUTER HOUSE, COURT OF SESSION
[2006] CSOH NUMBER43
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PD283/05
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OPINION OF R F
MACDONALD, QC
(Sitting as a
Temporary Judge)
in the cause
ANNENEE
DONALD
Pursuer;
against
LINDA McDONALD
Defender:
ญญญญญญญญญญญญญญญญญ________________
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PD283/05
Pursuer: Erroch; H B M Sayers
Defenders: Macpherson, Solicitor-advocate;
Simpson & Marwick WS
14 March 2006
Introduction
[1] The
pursuer, who was then aged 48, fell and fractured her right ankle on a flight
of steps outside the defender's house at 1B Ralston Road, Bearsden on the
afternoon of Sunday 24 February 2002. She avers that she slipped on a patch of
compressed snow on one of the steps and that the accident was caused by the
defender's failure to fulfil the duty incumbent on her under section 2(1) of
the Occupiers' Liability (Scotland) Act 1960 ("the 1960 Act"). As the action
proceeded under the personal injury rules in Chapter 43 of the Rules of Court,
the averments contain no specification of how the duty ought to have been
fulfilled. The case went to proof on the question of liability only, damages
having been agreed by joint minute at the sum of ฃ10,000 inclusive of interest.
Evidence for
the pursuer
(i) The pursuer
[2] The
evidence of the pursuer was that she had known the defender since they were in
their teens as they had worked in the same bank. On the afternoon of Sunday 24 February 2002 she dropped her father off
at the defender's house, where she had been on two or three previous occasions.
The pursuer then lived at 62 Crawford Drive, Old Drumchapel, Glasgow,
which was about ten minutes by car from the defender's house. The pursuer went
to the defender's house in a car driven by her husband, Nicholas Donald, in
which her parents also travelled. The car arrived at the defender's house in
the region of four o'clock or quarter
past four. On the Sunday morning it had been dark, damp and cold at the pursuer's
house. It was damp because snow had previously fallen. The weather had been bad
leading up to that weekend. On the way to the defender's house there were still
pieces of slushy snow at the side of the road and the road was wet from
previous rain. It was dusky but the street lights were not on. When they
arrived at the defender's house her husband parked the car at foot of the drive
facing the garage. The area in front of the defender's house is depicted in
photograph G of no.
6/6 of process. The pursuer and her father got out of the car. Her father
approached the house by walking up the driveway to the left side of the lawn
and the pursuer approached the house by walking up the flight of steps and path
immediately in front of the door. She went into the house with her father,
spoke to the defender and said she would collect her father in an hour.
[3] On
her way up the steps the pursuer had not noticed anything at all on them, but
noticed slushy segments on the grass. She could not remember how it felt
underfoot when she ascended the stairs. She was wearing black leather ankle
boots with a rubber wedge heel about a quarter inch high. When she left her
father at the front door she made her way back to the car using the steps. She could
not remember where she was looking. She was not aware of it being slippy or
anything. As she was coming down she felt herself coming off a step, heard a
crack and was lying down two steps further down. She called to her husband and
he came from the car. The step on which she slipped was the second step above
the first landing and she ended up on the landing. She was towards her right
hand side when she slipped on her right heel. She did not see what she had
slipped on. That was the last thing on her mind. She just felt her foot
snapping, it came over the step and bent back the way. She could not stop
herself falling as there were no handrails. She passed out for a minute and
then slipped in and out of consciousness. Her husband and mother got her into the
car. She did not believe there was any rain falling at the time.
[4] In
cross-examination the pursuer said she could not remember if it was raining at
the time of the accident or if it had rained heavily that day. She had not been
in the car before the journey to the defender's house. She always approached
the house by the steps and never thought anything about it. There was no snow
on the driveway. She did not see what she slipped on either on the way up or
the way down the steps. There was no visible snow or ice on the stairs. She had
always said that. If there had been she would have avoided it. She would agree
that the defender might have missed what she fell on. According to her husband
she fell on a small impacted piece of slush that had turned to ice. She herself
did not see any slush, snow or ice on the steps and was not aware at the time
what had caused her to fall. She felt her foot going over the side of the step.
Her husband saw her footprint on the slush.
(ii) Nicholas Donald
[5] The
pursuer's husband,
Nicholas Donald, aged 58, a retired senior fire officer, said that they arrived
at the defender's house shortly after 5 pm and that they left about 5.25
pm
to go to the hospital. When they arrived it was "the gloaming" and the street
lights were on at the time of the accident. In the morning he had been in and
out of his garage working. He thought it was snowing. It was certainly damp. On
the way to Bearsden it was damp and driech. They were all wearing winter coats.
He could not remember whether rain was falling. He thought the ground was wet
from the remains of melting snow and sleet. The roads were clear but there were
patches of snow or slush at the side. When they arrived at the defender's house
he parked nose on to the grass and, after his wife and her father got out, he
turned the car round so that its back was facing the grass. His wife went up
the stairs and her father went up the lawndriveway. He later saw
in the wing mirror of his car his wife coming out of the house. The next thing he
was aware of her calling and he got out of the car and found her lying on the
steps, on the first landing up from the bottom of the steps. She was very
distressed and said that she thought she had broken her ankle. He asked her
what had happened. She told him that she had slid or skidded off one of the
steps to the one below and then fallen onto the landing. On a step above her he
could see a patch of compacted ice or snow, the kind of thing that you would
find if you stepped onto snow and it had turned to ice. The uncompacted snow
round about it had melted away leaving this shaped patch of ice. The piece of
ice or snow was sharp round the edges, he presumed where his wife's foot had
slipped across it. It was quite a definite footprint, like the sole of a man's
shoe. It was on his wife's right side as she came down, on the fifth step from
the bottom, at the front of the step, almost at the nose. A slide mark maybe
three inches wide began three inches back from the nose of the step and
continued to the front. He thought it had changed the shape of the footprint.
He concluded that his wife had stepped on that and skidded off. He did not see
anything else on the step that would have caused her to slip. She had landed on
a big puddle about 18 inches in diameter in the middle of the landing. He spent
not more than five or ten minutes at the steps with his wife.
[6] In
cross-examination Mr Donald said that he did not see his wife falling.
Something behind him attracted his attention, either her calling or something
happening. There was a puddle of water on the third step up (the landing),
water on the steps, snow at the side and this piece of ice. It was clear of
snow where his car was. He did not remember if there was snow on the driveway
leading up to the house. His wife's mother went to the door of the house after
the accident but got no reply. He drove his wife to hospital. He phoned the
defender's number three times but always got the answering machine. The
defender took the pursuer's father home as they were at the hospital till 8.30
or 9 pm. He eventually spoke to the defender a few days or one or
two weeks later to say that they were going to claim on their insurance.
[7] In
re-examination he explained that he did not drive right up to the front door as
the defender's car was already parked there outside the bay window to the left
of the front door. He understood at the time he made the remark to the defender
about insurance that his home insurance covered personal injury. The friendship
between his wife and the defender had totally dissolved although he said he did
not want something like this to affect a long friendship.
(iii) Peter Sleith
[8] The
pursuer's father, Peter Sleith, aged 78, confirmed the circumstances of their
arrival at the defender's house. He said they arrived between 4 and 5
pm.
It wasn't light, it was semi-darkness. He couldn't recall if the street lights
were on or off when they drove there. It was dull weather, betwixt and between.
It had been snowing earlier in the week and what was still lying had turned to
slush on the driveway and ground, on pieces of grass here and there. He thought
he was first out of the car. He went up the driveway. The steps didn't look too
comfortable in the light with no handrails. He decided to go by the driveway
rather than taking the chance of tripping or slipping. The driveway was wet but
seemed all right. He didn't pay that much attention to the grass on the way up.
He was not 100% sure whether it was raining. His daughter went up the steps and
he met her at the door. Offhand nothing about the steps gave him concern. He
didn't see the grass verges at the side of the steps. After his treatment the
defender told him that his daughter had injured herself on the steps.
(iv) Richard Tabony
[9] Mr
Richard Tabony, a climate consultant with the Meteorological Office for about
twenty years, holds a first class honours degree in physics and has an academic
as well as a practical interest in climatology. He spoke to his report no. 6/7 of process, which
was prepared on the instructions of the pursuers's solicitors. He
explained that he had gathered the data in the report from the four named
weather stations, three of which were manned. The weather station at Bishopton,
which was at a similar altitude to the locus, provided hourly data. Mugdock Park was the nearest weather
station to the locus, being 6 km to the north, but it was at the highest
altitude. At p 3 of his report he explained the effect of compression on snow
in the following terms:
"The compression of snow
into ice retards the thawing process. This is because untrodden snow contains a
large amount of air or rain water and the thawing process takes place
throughout the snow pack. Where the air has been squeezed out of the snow,
melting is restricted to the surface only."
He summarised his opinion of the weather conditions as
follows:
"At 16 GMT on 24 February 2002 most surfaces at Bearsden were wet. There had been a
snow cover earlier in the day and patches of snow or ice will have survived
where drifting had occurred or the snow had been trodden into ice. The snow had
arrived on 22 February and snow showers continued throughout 23 February."
[10] He also
stated that melting of the snow which had fallen was to be expected because
temperatures were rising on 24 February. Drifting would be caused by
winds. A single footprint would not be enough to compress snow to ice. It would
normally take several days for compression to occur, as happened when a normal
footpath became more and more slippery to walk on. It was the treading on a
patch of snow which squeezed the air out of it. When salt was applied it
reduced the freezing point. Grit had no chemical effect but increased the
surface friction. In cross-examination he explained that what he had in mind by
compression was the snow being continuously compressed by being walked on for a
number of days, such as the snow on a public footpath. In re-examination he
stated that what he really had in mind was that by 4 pm on 24 February most of the
snow would have gone, but you could not be 100% confident that the snow had
gone from everywhere: it would have been possible that small isolated patches
had survived.
Evidence for
the defender
(i) The defender
[11] The
defender, a lady aged 50 years, stated that on 24 February 2002 the pursuer
phoned her at about 1 pm and asked if the massage which had been arranged for
her (the pursuer) that afternoon could instead be given to her father. The
defender agreed to give a massage to the pursuer's father at about 4
pm,
while pointing out that she was not a physiotherapist. She had been out that
morning viewing property and the weather was dry. Her painter had come to the
house at about 9 am to pick up his ladders and other materials to go to
another property. He had parked his vehicle down at the garage and took the
materials down the steps in two journeys. There had been what she described as
"some flurry" of snow a few days previously but there was no snow lying on 24
February. She had put rocksalt on some snow which was lying a couple of days
earlier. She had gone outside at 10.30 am when the gardener arrived
and then gone to view property in Bearsden Road at Anniesland Cross. There
was slight drizzle and no snow on the roads. When she came out of the property
she had viewed it was raining more heavily and she had to use her umbrella. She
returned home about 12.30 or 12.45. She went out in her car, which she had
parked at her front door, for some groceries at about 2 pm. When she got back in just
before 3 o'clock it was not raining. She was in the house until the
pursuer arrived slightly late with her father. The pursuer came in with her
father, settled him and spoke to the defender's son. She then saw the pursuer
out.
[12] Later
that day the pursuer's husband phoned to say she'd had an accident. The phone
went about 15 minutes after the treatment began and, as was her custom, she did
not answer it. 45 minutes after the treatment began it went constantly and she
answered it. Mr Donald said they were on their way to hospital or were waiting
in hospital. She later received another phone call from him to say that the
pursuer had broken her ankle and he requested that she break the news to her
father and take him home. She went to look at the steps and could not see where
the pursuer had fallen. When she had waved the pursuer away that afternoon the defender pursuer was more than
half way down the steps. She saw nothing when she looked at the steps. When Mr
Donald phoned at about 9.30 or 10 pm to inform her that the
pursuer had broken her ankle he said: "I witnessed it all in the wing mirror of
the car." When she asked "What?" he replied: "Her heel coming down on an
isolated piece of ice." That statement immediately raised concerns with the
defender that the matter might end up in court. In between times her blacksmith
had had come up to the house at 7 pm and she had asked him if
the steps merited a handrail but he said no because the steps were wide enough.
After speaking to subsequent contact with the pursuer and her husband, she
stated that when the weather was bad she spread rocksalt. She had it available
on the day of the accident but did not apply it to the steps as she did not
deem it necessary. She had applied it at least twice previously and had applied
it since the pursuer's accident. She was not seeing the pursuer's father in the
course of any business, but only as a favour as part of a friendship.
[13] In
cross-examination the defender stated that she had known the pursuer for 30 years
and they had been fairly close friends. They had seen each other about once a
month, and once a week when she moved closer to where she lived. The accident
had sullied their relationship. They had had words on the phone in April 2002
and not been in contact since. On the day of the accident she heard about it
maybe 40 minutes later and went to look to see where the pursuer could have
fallen. She was not then looking for compacted ice patches. There was no slush
on the grass. She did not see any patches of snow or slush on the drives that
she was aware of. There had been drizzle or rain at 12.30. It had snowed a
couple of days before and she had then gritted the steps and drive. She
normally gritted the steps at night with rocksalt, which she bought in 15
kilogram bags from Homebase or the Garden Centre. She also used a substance
known as Icemelt. Rocksalt was gritty red in colour and guaranteed for 24 hours.
The rain just dissolved it. The day before the accident there may have been a
flurry of snow which did not lie. She did not put rocksalt down on 23 or 24
February as there was nothing to clear. On the day of the accident she went to
look at the path before 5 pm, between 4.45 and 5
pm.
She had already been up and down the stairs that day and there had been no
problem. It was possible that she never
noticed ice or snow on the side of the steps when she walked down them at 10.30
am
to greet the gardener. When she checked the steps after the accident she walked
down the middle and looked on both sides. The beginning of her day had been
when her painter Mr Mackie had got her up when he came for his ladders and
materials at about 9 am. He was working on the interior and exterior of her
house for four months. She was not aware of it being wet underfoot when she
went for groceries. The blacksmith had come with an estimate for gates and
railings. As she had by then heard about the pursuer's accident she asked him
if he thought a handrail was needed and he said no. When she went to look at
the steps after the accident it was not dark. She had dusk to dawn lights wired
into the electricity on a
sensor system and they had not come on by then.
(ii) John Mackie
[14] John
Mackie, aged 50, was the defender's painter and decorator. He was told of the
accident the day after it occurred when he arrived at the defender's house. The
defender told him that the pursuer had fallen on the steps. He remembered
saying "How did she manage that?". He learned from the defender a month or so
later that the pursuer had fallen on ice or snow on the stair. He thought "How
could she fall on ice if there wasn't any ice or snow there at the time?". On
the day of the accident he had gone to the defender's house in Bearsden to
collect materials as the defender had water penetration in the roof of her
property at Loch Lomond. He was there for 9 am. His ladder was at her
interior staircase along with his painting materials. It was dry. There was no
snow or ice. If there had been he would not have done the job at Loch Lomond as it would have been "too
dodgy". He was up and down to the house from his car at the garage four or five
times. He descended her steps carrying materials at least four times. He
returned to Loch Lomond from Bearsden about 3.30 or 3.45 pm and took all his materials
back from the car to the house via the steps. The weather was fine. He noticed
no snow or ice on the steps in the morning or the afternoon and had no
difficulty with the steps. If there had been any difficulty he could have left
his materials in the garage. He left the Bearsden house about fourish, before
the pursuer arrived.
[15] In
cross-examination Mr Mackie stated that he worked for the defender every now
and then and accepted that he considered her a friend. They had socialised
together and he had once stayed overnight at her house. He added that most of his
clients were his friends. He knew that there were 16 to 18 steps outside the
defender's house as he had power-washed them. On that Sunday it was quite a
nice day, the weather was dry and it had been an enjoyable experience working
outside at Loch Lomond. He thought there had been snow on one day leading up to
that weekend. The only reason he had gone out that Sunday was because the
forecast was for dry weather. He had worked outside at Loch Lomond cleaning leaves from the
gutter. There was no snow lying on the ground at Bearsden and no slush at the
side of the road. The ground was not wet. There were no patches of snow or
slush under trees and on the lawn. On being shown the Meteorological Office
report, he said that the only parts which surprised him were those saying that
there were snow and slush in Bearsden on the Sunday. He denied, when the
suggestion was put to him, that he had come to court to tell lies for the
defender. The defender's house was south facing and you could get snow at the
back of her house and nothing at the front. He did not step on slush on her
steps that day and he did not see small patches of slush at the side of the
steps or on the lawn.
The question
of fact
[16] The question of fact which I have to decide in light of all the
above evidence is whether there was present on the defender's steps on Sunday 24 February
2002 a patch of compressed snow or ice which caused the pursuer
to slip and fall. The only witness who spoke to the presence of such a patch
was Mr Donald, the pursuer's husband. He provided a detailed, or perhaps
it would be more appropriate to say, meticulous description of it. I am not satisfied on the basis of his
evidence that there was such a patch. My reasons for reaching that conclusion
are as follows. First, I was surprised that he was able to take such a careful
mental note of the features of the alleged patch of snow or ice at a time when
his wife was lying on the first landing of the steps having just sustained a
serious injury and when his priority must have been to get her into the car and
to hospital. The description which he gave of the alleged patch resembled the
sort of description of an item which is usually given by a scenes of crime
officer who has had the opportunity to carry out a calm and careful
examination. Secondly, no other witness described the presence of such a
patch. The pursuer herself, whose
evidence I accept in its entirety, did not see such a patch either on the way
up or on the way down the steps. Nor did she describe having felt that she
slipped on snow or ice, or indeed on any other slippery substance. The defender
and Mr Mackie, whose evidence on this point I accept, did not see any patch of
snow or ice on the steps when they walked on them that day. Thirdly, I do not
think that the requirement for the presence of compressed snow or ice, as
described by Mr Tabony in his evidence, was satisfied. It is clear from
his evidence that what is required for compression is repeated treading on the
patch of snow over several days. I think it is unlikely that the required
repeated treading took place on these steps, despite the variety of workmen who
visited the house, particularly in light of the pursuer's evidence that she was
towards her right hand side when she slipped. It is well known that people slip
and fall on steps even when no slippery substance has been present to cause the
accident.
Liability
[17] Since I am not satisfied that it was a patch of compressed snow
or ice which caused the pursuer to slip and fall her case must fail on the
facts. Even if I had been satisfied that she slipped on a patch of compressed
snow or ice as described by Mr Donald, I would not have been satisfied that
liability had been established. Liability is based on a breach of section 2(1)
of the 1960 Act, which provides that the care which an occupier of premises is
required to show towards a person entering thereon in respect of dangers which
are due to the state of the premises or to anything done or omitted to be done
on them and for which the occupier is in law responsible shall be such care as
in all the circumstances of the case is reasonable to see that that person will
not suffer injury or damage by reason of such danger. When I asked Mr Erroch in
his closing submission on behalf of the pursuer how the defender knew or ought
to have known of this isolated patch of compressed snow or ice, what she ought
to have done about it and when, he was in obvious difficulty in his attempt to
provide an answer. He stated that he was not submitting that the defender ought
to have known of the patch, but that she ought to have taken reasonable
precautions to see that it did not exist. He further stated that the weather
conditions were such that she ought to have cleared or gritted her path,
including the steps, on the day of the accident for the simple reason that
there was visible on her property and in the vicinity hazardous matter in the
form of clearly visible patches of snow and slush, which obliged her to clear
or grit her path, including the steps. I confess that I cannot follow the logic
of that proposition. I do not see why the presence of hazardous matter
elsewhere should oblige the defender to clear or grit other hazardous matter of
which she was not aware. The pursuer was quite clear that there was no visible
snow or ice on the steps. That being so, there is no basis for fastening the
defender with knowledge of the presence of something which was not visible to
the pursuer and to impose upon her a duty to do something about it. It is
necessary to bear in mind that, whatever the exact condition of other surfaces
might have been that day, nobody suggested that the steps were covered in snow
or ice and obviously deserving of attention. I am satisfied that nothing in the
evidence suggests that the defender knew or ought to have known of the patch of
snow or ice and that she was therefore not in breach of her duty under section
2(1) of the 1960 Act.
[18] Mr Macpherson made what he accepted was a bold submission that
there was no duty in law on householders to treat snow or ice on their
premises. He submitted that domestic premises were different from business or
local authority premises which were open to the public or public roads, which
the roads authority had a statutory obligation to treat. Snow and ice were transient
and natural dangers and a householder could not fulfil a duty to clear them if
he was absent from home, elderly, infirm or without salt or grit. He had been unable to find any reported case
where a householder had been held liable for not clearing snow or ice from his
premises. As I have held that there was no breach of any duty imposed on the
defender under section 2(1) of the 1960 Act, it is unnecessary for me to
consider this submission, particularly as it was not dealt with by Mr Erroch in
his submission. The point should be left for decision to a case in which it is
fully argued and in which it is essential that it be decided. All I would say
is that it seems to me that section 2(1) of the 1960 Act applies to all
occupiers of premises, including householders, and the question in each case
must be whether "such care as in all the circumstances of the case is
reasonable" has been exercised by the particular occupier.
Decision
[19] For the reasons given above the defender will be assoilzied.
Postscript
[20] Before parting with this case there are two points which I
would wish to mention. First, I think that all reasonable people would regard
it as most regrettable that this action was ever raised. It was brought by one
friend against another and has been responsible for damaging or destroying a
long friendship. The outcome has been that the pursuer has received nothing. In
my opinion the bringing of this action was a most ill-advised course on the
part of the pursuer. Secondly, I agree with Mr Macpherson's submission that,
had this case proceeded as an ordinary action instead of a personal injuries
action under Chapter 43 of the Rules of Court, it would have been impossible
for the pursuer to have averred a relevant case of fault against the defender
and the action would have been dismissed at procedure roll. There are many
cases for which the Chapter 43 procedure is suitable but there are several, and
this is one of them, where it is not. The need for detailed pleadings in this
case was obvious. The result of this case having proceeded under Chapter 43
procedure is that an irrelevant case has proceeded to proof, with all the
consequential expense and waste of court time. I heard a proof in this action
without knowing what the pursuer's case was, even at the conclusion of the
evidence. The pursuer's counsel was unable to formulate a relevant case even in
the course of his closing submission. When I asked Mr Macpherson why a motion
had not been enrolled on behalf of the defender at the appropriate time for the
case to be appointed to proceed as an
ordinary action he was unable to provide any answer. It is my experience that
there are cases which should appropriately be appointed to proceed as ordinary
actions but in which a motion for the action to be appointed to the ordinary
roll is not enrolled on behalf of the defender or defenders. Those acting for a
defender or defenders should be alert from the stage of lodging defences to
consideration of the question whether a motion should be enrolled for the
action to be withdrawn from the Chapter 43 procedure and appointed to proceed
as an ordinary action. Such a motion must be enrolled within 28 days of the
lodging of defences under Rule of Court 43.5(3)(a).
