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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Johnston
Lord Eassie
Lord Mackay of Drumadoon
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[2007] CSIH 44
XA54/06
OPINION OF THE COURT
delivered by LORD JOHNSTON
in
APPEAL
from the Sheriffdom of
Grampian, Highland and Islands at Wick
in the cause
JACQUELINE LAURA FEGAN
(A.P.)
Pursuer and Appellant;
against
HIGHLAND REGIONAL COUNCIL
Defenders and Respondents:
_______
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Act: Dewar, Q.C., Erroch; Drummond Miller, W.S. (Appellant)
Alt: R. Milligan; Ledingham Chalmers (Respondents)
6 June 2007
[1] This is an
appeal from a decision of the sheriff at Wick in an action of reparation at the
instance of the appellant against the respondent council in relation to
an accident she sustained on cliffs near Thurso on 28 August
2000. The appellant fell over the cliff and
sustained very serious injuries. Damages
have not yet been investigated to any material extent and the proof which was
heard by the sheriff was limited to liability.
He subsequently granted decree of absolvitor.
[2] There was
little or no dispute of fact, although as will become apparent the appellant
before us tendered certain amendments, which we were invited to make to the
findings of fact, and the findings in fact and law, as made by the sheriff. The
findings in fact and findings in fact and law, as made by the sheriff, were in
the following terms:
"Finds-in-Fact
1. The defenders are the occupiers of Victoria Walk, the benches
adjacent to the walk and the ground up to the cliff tops.
2. Victoria Walk is bounded on one side by steep cliffs.
3. The defenders knew that the cliffs were dangerous. They were aware of two previous accidents,
neither of which had been near the present locus. The pursuer knew of the closeness of the
cliffs to the Sinclair bench and the dangers of the cliffs.
4. The pursuer, prior to sustaining her injury, had never
walked along the length of Victoria Walk or sat on any of the benches situated
there. She had walked along the beach
below the cliffs and knew of their danger.
She had heard that there had been accidents on the cliffs before.
5. She spent the 27th August 2000 in the company of Kay Watt and Ally
Balderick. She was joined in the evening
by Trudy Watt. During the course of the
day she consumed several measures of vodka but had not consumed any alcohol
after 8.00pm.
6. At between 10.30pm and 10.45pm she left her house with her dog and
her friend's dog for a walk, travelling through Thurso and arriving at Victoria
Walk at approximately 11.30pm.
7. She moved a few steps from Victoria Walk onto the Sir
Teollemache Sinclair Memorial Bench, where she sat for some time smoking two
cigarettes and listening to music on her personal stereo.
8. When she stood up to leave, the pursuer moved from the bench
onto mown grass surrounding the plinth.
As she stood up her personal stereo fell from her lap and she bent down
to retrieve it.
9. The distance from the plinth of the Sinclair seat to the
long grass is between 1.4 and 1.8 metres.
The defenders allowed long grass to grow near the cliffs as a deterrent
to people going too close to the edge of the cliffs. The Sinclair Memorial Bench is closer to the
cliff edge than any other bench adjacent to Victoria Walk.
10. The area of mown grass around the
Sinclair Memorial Bench while not of lawn-like quality was not undulating but
level.
11. Sections of Victoria Walk had been fenced
by the defenders' statutory predecessors.
These fences are maintained by the defenders. Such fencing was erected at more dangerous
parts of Victoria Walk where the walkway passed very close to the cliff edge at
geos which are narrow and deep clefts in the cliff face excavated by marine
erosion along a line of structural weakness.
There was no fencing near the Sinclair Memorial Bench.
12. Victoria Walk, which runs some two
kilometres from Thurso, is close to a children's swing park and caravan park.
13. When the defenders erected fencing at the
geos they received complaints from the members of the public who were against
fencing the cliffs thereby spoiling their openness.
Finds in fact & Law
The Pursuer has failed to prove that
the accident was caused by the fault or negligence of the Defender.
The Pursuer has failed to prove that
the accident was caused by any failure by the Defender to fulfil any duties
incumbent upon it under the Occupiers Liability (Scotland) Act 1960."
[3] Before us the
appellant tendered, as we have indicated, certain amendments which were as
follows:
"Findings in Fact
1. In No.8, delete the last sentence and substitute therefore:
'As she stood up her personal stereo
fell from her lap. She took two or three
steps forward on the grass and then bent down to retrieve the personal
stereo. As she did so she slipped or
otherwise lost her footing and fell to the beach below.'
2. In No.10, delete 'was not undulating but level' and
substitute therefore:
'is relatively flat except at the
right hand side where it slopes gently toward the cliff edge.'
3. Add to the end of No.11:
'It would have been practicable and
relatively inexpensive to have fenced the cliff top in the vicinity of the
Sinclair Bench.'
4. Add
at the end:
'14.
The fencing of the geos and the warning signage at either end of
Victoria Walk provided no protection for the Pursuer.'
Findings in Fact and Law
5. In the first, delete 'failed to prove' and substitute
therefore 'proved', and substitute 'and' for 'or'.
6. In the second, delete 'failed to prove' and substitute
therefore 'proved', and substitute 'the' for 'any' where that word occurs
twice."
[4] The sheriff's
decision forming part of his note was in the following terms:
"[60] In
this action the pursuer seeks damages from the defenders, a local authority,
for injury sustained by her when she slipped and fell from cliffs at Victoria
Walk, Thurso.
[61] In
the amended record the pursuer avers that she sat on a bench, she dropped her
personal stereo, which landed on the grass between the concrete surrounding the
bench and the cliff top and towards the right hand side of the bench. While bending down to pick up her personal
stereo, she slipped and fell over the cliff.
[62] In
evidence, however, the pursuer spoke of bending down to pick up her personal
stereo but could not remember anything further.
While her credibility was not a matter of challenge by the defenders I
accept Mr Milligan's [counsel for the defenders] assertion that the
pursuer has not proved the mechanics of the accident.
[63] Mr Gotch
[an expert witness for the pursuer] spoke to a distance of 1.4 metres from
the concrete plinth on the right hand side of the bench to the long grass. This was from measurements taken by one of
his assistants. Mr Potts [a witness
for the defenders] spoke of the same being 7 foot, which he had measured
himself. Neither person, however, was
able to say how far it was from the beginning of the long grass to the cliff
edge.
[64] I
am not satisfied that the pursuer has proved on the balance of probability what
caused her to fall from the cliffs. On
record she avers that when bending down to pick up her personal stereo she
slipped and fell over the cliffs. That
is not what she said in evidence. She
recalls bending down to pick up her stereo but no more than that. I do not consider that the pursuer has proved
the mechanism of how the accident occurred and accordingly her action must
fail. I am fortified in my view by dicta
of Lord Emslie in Graham against East of
Scotland Water Authority 2002 SCLR 340 at page 345, paragraph 20,
and also Sheriff Harris in Kain against Aberdeen
City Council, unreported, Aberdeen Sheriff Court 29th March 2005.
[65] Secondly,
I do not consider that there is a duty on the defenders to protect the pursuer
against natural and obvious dangers. I
consider it self evident that the cliffs at Victoria Walk are a natural and
obvious danger, see Tomlinson against
Congleton Burgh Council and another [2003] UKHL 47. In this case the court made reference to the
earlier cases of Stevenson against
Glasgow Corporation 1908 SC 1034 and Glasgow
Corporation against Taylor [1922] 1AC 44.
These cases all affirm the position that you cannot '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.'.
[66] The
basic premise of Mr Gotch's evidence was that practice had moved on since
in particular these two cases involving Glasgow Corporation and that there was
now a duty on councils to fence cliffs such as in the present case. I did not accept Mr Gotch's evidence on
this and consider that the pursuer was well aware of the dangers of the present
cliffs when she chose to sit down on the Sinclair bench.
[67] Mr Erroch
[counsel for the pursuer] asked me to distinguish the authorities and rely on
what Lord Hutton said at page 91 of Tomlinson,
namely 'I would add that there might be exceptional cases where the principle
stated in Stevenson against Glasgow
Corporation 1908 SC 1034 and Glasgow
Corporation against Taylor [1922] 1AC 44 should not apply.'.
[68] Finally,
even were there a duty on the defenders to provide protection (and I do not
believe that there is) the defenders have fulfilled such a duty by signage and
fencing at geos. Clearly there is a
balance which must be reached between providing a recreational facility such as
this Walk and guarding against reasonably foreseeable risks.
[69] The
defenders, who face complaints from the public regarding any fencing, did fence
areas where there were obvious dangers.
The expense of fencing the whole cliffs is rightly one which would
concern the defenders. The public voiced
its opposition to fencing and the Sinclair bench had been in situ for 50 years
without incident or complaint. I do not
consider Mr Gotch's approach to be correct and referred to Lord Hoffman in
Tomlinson against Congleton Burgh Council
[2003] UKHL 47 at page 85, paragraph 47.
[70] For
the above reasons, the pursuer having failed to establish her case, the
defenders are entitled to be absolved.
[71] Mr Milligan
stated that he was unable because of the limitations in the pursuer's case to
address me on contributory negligence.
Nonetheless he wished me to consider it.
[72] Because
the evidence did not establish the mechanics and cause of the pursuer's fall,
it is not possible to assess contributory negligence if any on the part of the
pursuer."
[5] The parties
presented a joint list of authorities, most of which were referred to. They are as follows: Stevenson
v Glasgow Corporation 1908 SC
1034; Taylor v Glasgow Corporation
1922 SC (HL) 1; Jones v Great Western Railway
Company (1930) TLR 39; Thomas v Thomas 1947 SC (HL) 45;
Occupiers' Liability (Scotland) Act 1960; McCluskey
v The Lord Advocate, unreported,
Court of Session, 21st July 1993; Dawson v Scottish Power 1999 SLT 672;
Strachan v The Highland Council, unreported,
Dingwall, 11th November 1999; Graham v East of Scotland Water Authority 2002 SCLR 340; Duff v
East Dunbartonshire Council,
unreported, Court of Session 28th June 2002;
Tomlinson v Congleton Borough Council and Another
[2003] 3 WLR 750; Thomson v Kvaerner Govan Ltd 2002
SC(HL) 1; Kain v Aberdeen City Council,
unreported, Aberdeen, 29th March 2005 and Boyd
v Lanarkshire Health Board,
unreported, Court of Session, 25th February 2000.
[6] The debate
before us turned initially on the question of whether the sheriff was correct
in holding that the pursuer had not proved how the accident happened
mechanically and secondly on whether the sheriff was entitled, or correct, to
favour the defenders' position with regard to the erection of a barrier or
fence. The sheriff declined to follow
the evidence of a Mr Gotch, who was presented on behalf of the pursuer as
an expert. He had not made an
examination of the locus prior to his attendance there, along with the sheriff
and parties' representatives, at a site inspection immediately prior to the
commencement of the proof.
[7] The location
of the bench in question was depicted in the photographs produced. It stands on a semi-circular base, or plinth,
of concrete situated in an area of mown grass to the seaward side of the path
constituting the Victoria Walk at this point.
On its seaward side the area of mown grass is fringed by much longer
grass, which longer grass and other vegetation continues seawards as the ground
then descends very steeply to form the cliff.
In evidence, the distance between the seaward edge of the hemi-cyclical
plinth and the long grass was given by Mr Gotch as being between 1.4 and 1.8
metres; and by Mr Potts as 7 feet (2.13
metres). While much depends on the
precise points being measured, these measurements confirm the impression from
the photographs of an area of mown grass some 6 feet (1.82 metres) in broad
terms between the plinth and the landward edge of the fringe of long grass. Understandably, no useful measurement was, or
could be, given for the distance between the landward side of the long grass
and the point at which the terrain began very steeply to descend and to become
what might be termed a cliff.
[8] Mr Dewar
had to accept that the pursuer's own evidence was very limited as regards the
mechanics of the accident. She accepted
she could remember nothing after dropping her personal stereo on getting up from
the bench and thereafter bending down to pick it up. He had therefore to accept there was no
direct evidence as to how the pursuer came to fall from the cliff top to the
beach below. His first proposed amended
finding in fact sought to address this problem by particular reference to the
phrase "she slipped or otherwise lost her footing". That, he said, the sheriff should have found
proved by way of inference. There was no
evidence or suggestion of any deliberate act by the pursuer that would have caused
her to fall over the cliff. He therefore
submitted that what he was proposing was an inference properly to be drawn from
the other evidence that was before the sheriff.
[9] However, his
basic position in submission was that however the accident happened there was
no doubt that the pursuer fell down the cliff.
(Although in his findings in fact the sheriff does not so find, the
sheriff does however accept that position in his note). That being so, it was submitted, if a barrier
had been there, at least on the balance of probabilities, it would have
prevented the pursuer from falling down the cliff, whatever the more detailed
mechanics of how she came so to fall.
[10] He submitted
that whatever may be the general position with regard to dangers arising from
natural phenomena on land to which people have access, be they rivers, cliffs
or the like, the circumstances of this case required the occupier, i.e. the
Council, in the exercise of reasonable care, to assess the risk on the special
circumstances available and determine that fencing was required. In particular the bench was something of an
allurement and people would think they would be safe in using it.
[11] His third
position in submission was based on the lack of warning signs and fencing at
the locus of the accident, albeit he accepted that there were such signs at
each end of the walk and that equally if the appellant's fall was a result of
involuntary movement while she was still on the top of the cliff, warning signs
would have made no difference. Mr Dewar
submission was that the provision of signage at the ends of the walk and the
fencing of the geos were not sufficient to satisfy the duty of care on the
respondents.
[12] Mr Milligan's
basic reply was that in relation to the mechanics of the accident the sheriff
was more than entitled upon the evidence, or rather the lack of it, to reach
the conclusion that he was unable to determine precisely what had caused the
appellant to fall over the cliff. To
reach any other conclusion on that specific matter Mr Milligan submitted
would have been speculation, as the sheriff had effectively found.
[13] On the more
important issue of fencing, Mr Milligan founded on the fact that in
general terms the law did not require an occupier of land to take precautions
against obvious dangers arising from natural phenomena such as rivers or cliffs
in relation to persons who might be present or nearby to those situations. There require to be special circumstances
giving rise to a special risk, and in this respect the case of Taylor was a very good example.
He submitted that the House of Lords case of Tomlinson added nothing and that insofar as Lord Hutton had made an
example with regard to cliff top movements it was obiter and should not be followed.
In any event, the substance of that case was that the cause of the
accident or injury had not been substantiated on the facts. In any event he submitted that for the
appellant to succeed on this point the sheriff had to be shown to be plainly
wrong upon the evidence, since it had been essentially a jury question for him
as to whether the respondents should have provided fencing at the locus of the
accident. That test had not been met by
the appellant.
[14] As respects
warning signs, counsel pointed out that the sheriff had found that the pursuer
was aware of the presence of the cliffs and their dangers. Further, as Mr Dewar had effectively
accepted, he submitted that issue of warning signs was of no materiality if, as
seemed the most likely scenario, whatever happened the pursuer's fall over the
cliff had been a result of an involuntary movement on her part.
[15] In seeking to
resolve this matter, which arises out of an accident with tragic consequences,
we accept Mr Milligan's submissions that we should not interfere with the
sheriff's decision to decline to make findings in fact as to the mechanics of the
accident, on the basis of the evidence, or the lack of evidence, that was before
him. He was more than entitled to take
the view that the evidence such as it was from the pursuer, there being no
other eyewitnesses, went no further than that she was present on the seat, that
on getting up from it she dropped, and then bent down to pick up her personal
stereo and that was the extent of findings in fact he was prepared to make as
to the mechanics of the accident.
Whether she thereafter set off towards the edge of the cliff voluntarily,
being disorientated, or involuntarily slipped, could not be determined. Nor
indeed could it be determined whether she had slipped or otherwise come to
grief on the slight sloping piece of the ground. We do not therefore accept the proposed amendment
to finding in fact 8, which was proffered by counsel for the appellant, with
regard to the insertion of the word "slipped".
In finding in fact 8, the sheriff found that as the appellant stood up
from the bench her personal stereo fell from her lap and that she bent down to
retrieve it. We are prepared to accept that some time after the appellant stood
up from the bench she fell over the side
of the cliff to the beach below. Indeed the sheriff's note proceeds on the
basis that she did so. In such circumstances, we are prepared to make a finding
in fact to that effect. However, what caused the appellant to fall over the
cliff was a mystery to the sheriff. He was legitimately entitled to reach that
conclusion. For that reason we are not prepared to accept the whole of the
amendment to finding in fact 8 that was proposed on behalf of the appellant. The
question of whether the appellant voluntarily walked off the edge of the cliff
by reason of becoming disorientated, whether by reason of the lack of light or for
other reasons, is at least a possibility, although we accept that there was no
basis for suggesting that when the appellant fell over the cliff she was trying
to commit suicide.
[16] For the
purposes of looking at the appellant's action in its wider context, we are
prepared to assume in favour of the appellant that she did involuntarily fall
over the cliff. This at once of course
disposes of any question that warning signs were relevant to the causation of
this accident, but it does focus the question of whether or not in general
terms the respondents having assessed
the locus should have erected a barrier.
[17] There is no
doubt that the general law remains as stated in the somewhat historic cases of Stevenson and Taylor to the effect that in general terms an occupier of land
containing natural phenomena such as rivers or cliffs, which present obvious
dangers, is not required to take precautions against persons becoming injured
by reason of those dangers unless there are special risks such as unusual or
unseen sources of danger. We do not
consider that the case of Tomlinson
adds anything to that position. The
safety professional led for the appellant, who contended for the erection of
fencing, considered that practice had changed since Stevenson and Taylor. In our view the sheriff was correct in
thinking that the law remains as stated in those cases and we consider the
sheriff was entitled not to accept his evidence on the provision of fencing. Agreeing with the sheriff we are unable to
accept that the combined circumstances of the location of the seat, which would
obviously attract people to sit upon it, removed from the edge of the cliff by
some distance surrounded by mown grass, which would not in itself pose any
danger, do not amount to a special risk or circumstance of special danger
requiring the local authority applying its mind to the exercise of reasonable
care in this case to take any precautions at this location. The geos are obviously different in as much
as at those areas of erosion the path itself passed very close to the cliff
face . Apart from questions of the
expense of fending it is apparent from the evidence and the sheriff's findings
that many people would find fencing at other locations intrusive and objectionable. The question has to be one of degree and
common sense. The sheriff, who not only
heard the evidence but also inspected the locus was entitled, in our view, to
conclude that there were no unusual or special dangers at the locus requiring
the occupier to take precautions such as the erection of fencing. In many ways the issue for the sheriff was a
jury question in respect of which it has to be shown that the trial judge, i.e.
the sheriff, plainly misdirected himself or plainly reached a wrong decision on
the facts. We find it quite impossible
to assert that in this case.
[18] In these
circumstances we consider this appeal must be refused.
