The Nevis Range Facility

"Opening up the Back Corries with the Braveheart Chair has expanded the skiable area considerably, providing intermediate and experienced skiers and boarders with an off-piste expanse, unrivalled in Scotland! Entry points are marked on the map, you are advised to consult Ski Patrol to verify snow conditions and avalanche risks, look out for the piste signage or call into the ski patrol hut at the top of the Summit lift."

At the edge of the ski map on this leaflet is a text box within which the grading of the runs is explained. Green is described as easy, blue intermediate, red difficult and black very difficult.

The Summit

The Chancer Run

The Back Track Run

At the end of the line of the two fences, there is a permanent tower about four or five metres high. It is used as an anchor point for snow grooming machines. The tower is located about twenty metres from the entrance to the Back Track run.

Information Signs

"Back open, caution poor visibility, avalanche debris, cornices".

In the area of the cliff edge used by climbers, the defenders had placed warning signs at intervals running from a point roughly in line with the top of the Summit Tow to about Climbers Coll. These signs comprised yellow boards attached to poles. On each board there was a black triangular sign depicting a person falling headfirst down a mountainside. Below the sign there appeared the word "DANGER!", also in black. An example of such a sign appeared in photograph 3 within production number 7/52 of process. These signs were located roughly in a line to the right of the line of the poles marking the route to the Chancer run. On the last of the line of poles, about ten metres from the entrance to the Chancer run, there was one of the yellow danger signs. At the entrance to the run itself there was a further pole with a sign bearing the name of the run. This last pole was merely placed into the snow and accordingly moveable as necessary.

Ski Patrol

The Pursuer's Accident

"Had there been continuous markers I would have continued to follow those. I was following the tracks. My assumption was that they had been heading to the main area. They must have turned round and headed for Chancer. That is all I can think of".

The pursuer's criticism in evidence was that there should have been some kind of line of markers between the Summit Tow and the entrance to the Back Track run. Additionally, there ought to have been warning signs along the ridge so that someone in his position would not be able to get to the edge without appreciating where they were.

"SKIING ALONG RIDGE, FELL INTO BACK CORRIE OFF CORNICE, BACKS OF SKIS HITTING FIRST THEN TUMBLED FORWARD.

15MG CYCLIMORPH @12.45, ENTONOX".

The pursuer denied giving this account to any member of the Ski Patrol. He said that he told the Ski Patrol he had been aiming for Back Track and went over the cornice.

The Defenders' Evidence

The Pursuer's Rescue

Warning Signs

Pursuer's Submissions

1.                  Had the defenders closed the Summit area and Back Corries due to the possibility of deteriorating visibility at the Summit area, the pursuer would not have gone there, and the accident would not have occurred.

2.                  Had the defenders put marker poles or some other indicators at the edge of the cliff, the pursuer would not have fallen through/over the cornice and the accident would not have occurred.

3.                  Had the defenders clearly marked the route from the top of the Summit Tow to the entrance to the Back Track run, the pursuer would not have fallen through/over the edge of the unmarked cornice edge and the accident would not have occurred.

4.                  Had the Piste Map of the Ski Area provided by the defenders depicted a more accurate representation of the summit area and the relative positions of the runs/routes, the pursuer would not have fallen through/over the unmarked cornice edge and the accident would not have occurred.

The first sentence in Statement 6 of condescendence set out that: "This claim is based on common law." At the commencement of submissions for the pursuer, Mr Hardman moved to amend Statement 6 so as to read: "This claim is based on breach of the Occupiers' Liability (Scotland) Act 1960". No objection was taken to this proposal. I allowed the amendment and the submissions were presented in this context. Submissions on the pursuer's behalf were restricted to the second ground of fault outlined above.

"Extent of occupier's duty to show care

2(1) The care which an occupier of premises is required, by reason of his occupation or control of the premises 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, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement his obligations towards that person, 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 any such danger".

His submission was that there were two issues for consideration in this case:

1. What was the danger in this case?

2.                  Did the defenders show such care as in all the circumstances of the case was reasonable to see that the pursuer would not suffer injury or damage by reason of such danger?

In seeking to identify what the "danger" was in this case Mr Hardman submitted that it was not the fact of there being a steep drop, for which the defenders could not in law be responsible. The danger, he said, was the failure of the pursuer in poor visibility to appreciate that he was at or approaching the edge. This danger was caused by an omission on the part of the defenders, namely their failure to put signs in place along the ridge warning the pursuer that he was close to the edge.

1. The pursuer was a paying guest of the defenders when this accident occurred. He said that the defenders sought to encourage skiers to go into this area and accordingly submitted that a higher standard of care was incumbent on the defenders in relation to the pursuer than would be the case with people to whom no encouragement was offered.

2.                  The risk of an unwary individual falling over the edge was known to the defenders.

3.             The risk of injury to someone taken unaware was a risk of serious injury.

4.             The evidence demonstrated that it was feasible to place warning signs along the ridge.

5.             The pursuer was making his way to a skiing area at the time rather than skiing down a run.

Mr Hardman referred to the evidence of the defenders risk assessment form which demonstrated that they had given consideration to the risk posed. He submitted that on the evidence the defenders had not given proper consideration to the need for warning signs and the way in which they could be utilised. He reminded me that the entrance signs for the Chancer and Back Track runs were moveable and placed into the snow at appropriate points. He submitted that it would have been equally feasible for the defenders to have placed warning signs daily between the area of the Chancer run and the area of the Back Track run. Accordingly, he submitted that the question of what constituted taking reasonable care was a question of fact to be decided in the particular circumstances of any given case. In the present case, he submitted that the defenders could be seen to have failed in their duty.

Defenders' Submissions

1. Stevenson v The Corporation of The City of Glasgow 1908 SC 1034

"Mr Tomlinson was a person of full capacity who voluntarily and without any pressure or inducement engaged in an activity which had inherent risk. The risk was that he might not execute his dive properly and so sustain injury. Likewise, a person who goes mountaineering incurs the risk that he might stumble or misjudge where to put his weight. In neither case can the risk be attributed to the state of the premises. Otherwise any premises can be said to be dangerous to someone who chooses to use them for some dangerous activity. In the present case, Mr Tomlinson knew the lake well and even if he had not, the judge's finding was that it contained no dangers which one would not have expected. So the only risk arose out of what he chose to do and not out of the state of the premises".

In the same vein, he referred to the comments of Lord Hutton at paragraph 59 where he said:

"Stevenson v Glasgow Corporation and Hastie v Edinburgh Magistrates (which were not concerned with trespassers) were decided almost a century ago and the judgements are couched in old fashioned language, but I consider that they express a principle which is still valid today, namely, that it is contrary to common sense, and therefore not sound law, to expect an occupier to provide protection against an obvious danger on his land arising from a natural feature such as a lake or a cliff and to impose a duty on him to do so".

Accordingly, Mr Ross submitted that if Mr Struthers-Wright had fallen or skied off the ridge, this was not something which could be said to have happened due to the state of the premises. Accordingly, the defenders should be assoilzied. He said that the submission for the pursuer that the danger arose out of an omission to place warning signs was a circular argument of the sort presented in Tomlinson and addressed by Lord Hoffman at paragraph 28 where he said:

"Mr Braithwaite was inclined to accept the difficulty of establishing that the risk was due to the state of the premises. He therefore contended that it was due to "things done or omitted to be done on the premises ..."

"In my opinion "things done or omitted to be done" means activities or the lack of precautions which cause risk, like allowing speedboats among the swimmers. It is a mere circularity to say that a failure to stop people getting into the water was an omission which gave rise to a duty to take steps to stop people from getting into the water".

                  1.                        That skiers were undertaking an activity with an inherent level of risk and had a duty to exercise appropriate care for their own safety.

                  2.                        The runs accessed from the summit edge were for experienced skiers only.

                  3.                        It was obvious from all the defenders literature that there was a steep slope in this area.

                  4.                        The pursuer was in any event familiar with the area.

                  5.                        Safe routes to both the Chancer run and the Back Track run were marked.

                  6.                        The white board at the top of the Summit Tow gave advice about conditions.

                  7.                        No other accidents of this sort had ever been reported.

He submitted that the evidence disclosed that the signs suggested by the pursuer would be ineffective, unduly burdensome and would be capable of introducing further risk should skiers come to expect them. In this context, he submitted that a balance had to be struck. Many people came to ski this area because of its features. It was a wilderness area. Accordingly, he said, even if injury is foreseeable, it may still in all the circumstances be reasonable to do nothing about it. Upon this basis, also, he submitted that I should assoilzie the defenders.

Discussion

Factual Matters

1.                  The evidence of the Ski Patrol procedures. The form concludes with the printed words "Description of Incident (Casualty's Words)". In handwriting, the words "as above" appear. Although there is also a space for casualty's signature, the pursuer's injuries were such as to prevent this.

2.                  The amplification of this evidence by Mr Roe who explained that no‑one else saw what happened and the only first hand account could come from the pursuer.

3.                  The other content of the form. The top of the form records the pursuer's name and age. It records his address as "Shiel Col Cottage, Findogask, Madderty". It gives his telephone number. At the bottom of the report, a variety of information is recorded as to the pursuer's skiing ability and experience, including the fact that he has not previously sustained a snow sport injury. All of this information must have come directly from the pursuer. No contrary suggestion was made. Accordingly, this is consistent with the application of the Ski Patrol procedures.

"SKIING ALONG RIDGE, FELL INTO BACK CORRIE OFF CORNICE".

If account is taken of this explanation, it is consistent with an intention to ski round from the Chancer run to the Back Track run. As it happens, this route would have taken the pursuer along the very part of the summit shown in the photographs which he took the week before.

Legal Issues

"Extent of occupier's duty to show care

2(1) The care which an occupier of premises is

required, by reason of his occupation or control of the premises 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, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement his obligations towards that person, 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 any such danger".

It is, however, clear that the duty imposed upon an occupier does not extend to providing protection against obvious and natural features of the landscape. As Lord Kinnear said in Stevenson v Corporation of Glasgow 1908 SC. 1034 @ 1042:

"... a person going upon property, even by invitation, express or implied, is expected to use reasonable care for his own safety. He is to look out for all the ordinary risks that are necessarily incident to the kind of property that he is going upon, but, on the other hand, it is held that he is not to be exposed to any unusual danger known to the proprietor, and not known to people who may come upon premises with which they are not familiar. If that be the law, it seems to me clear enough that it imposes no duty upon the owners of public parks to fence every stream of water or every pond which may happen to be found in a public garden".

In Dumbreck v Addie & Sons' Collieries 1928 SC, Lord President Clyde, drawing on Stevenson, put it this way:

"It is important in this connection to observe the distinction which has long been recognised between (1) sources of danger arising from physical features of the ground, whether natural or artificial - such as a precipice or an excavation, natural water of an artificial pond; and (2) sources of danger arising from mechanical and similar contrivances - such as the haulage system in the present case. The former are presumed from their own character to constitute obvious and usual dangers against which people, be they adults or children, must protect themselves."

Reasonable Care

Decision