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Cite as: [2007] CSOH 143, [2007] ScotCS CSOH_143

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OUTER HOUSE, COURT OF SESSION

[2007] CSOH 143

OPINION OF LORD BRACADALE

in the cause

AGNES BUCKLEY WILSON

Pursuer;

against

GLASGOW CITY COUNCIL

Defender:

________________

Pursuer: Miss Smart; Brodies W.S. (for Quinn Martin and Langan, Solicitors, Glasgow)

Defender: Hofford; Simpson and Marwick

9 August 2007

Introduction
[1] On 4 May 1999 the pursuer, who was 57 years of age at the time, sustained injuries as a result of fall. These included a head injury and a compound fracture to the neck of the left humerus. In her action against the defenders quantum was agreed and the proof before me proceeded on liability. At the time of her accident the pursuer lived in a multi-storey block in the Drygate area of Glasgow to the north of Duke Street. There were three blocks: number 24, known as Gibson Heights; number 36, known as Lister Heights; and number 48, known as Simpson Heights. At the time of the accident the pursuer lived with her husband, from whom she had separated by the time of the proof, at Gibson Heights. They had a lock-up garage underneath Lister Heights. Access to the garages was by an external stairway leading from a paved area in front of Lister Heights to the area below where the lock-up garages were located. Both the flat occupied by the pursuer and her husband and the lock-up were rented from the defenders. At the time of her accident the pursuer was employed as a nursing assistant at Gartnavel Hospital. In the evening of 4 May 1999 she left her home to get her car from the lock-up in order to drive to her work for a night shift. Her route on foot to the lock-up took her from Gibson Heights eastwards along Drygate to the paved area in front of Lister Heights where the set of stairs led to the area of the lock-ups below.

[2 ] The pursuer's case on record is that she fell on the stairs. She avers that several steps on the last flight, near to the bottom of the flight, were loose. The loose steps wobbled and moved underfoot when a person stood on them. As the pursuer walked down the steps, she lost her footing on a loose step and fell.

Did the pursuer fall on the stairs?
[3 ] The first issue to be addressed is whether the pursuer has proved that she fell on the stairs. The evidence, including that of the photographs, indicated that the stairs ran from top to bottom in three flights of steps with two landings. On one side of the stairs there was a wall with a hand rail attached to it and on the other side an iron railing. Between the top of the stairs and the road (Drygate) there was an open paved area. A row of bollards separated the north side of the paved area from the pavement of Drygate. On the east side of the paved area there was a flower bed. The pursuer's own account in her evidence was that she could remember getting to the top of the stairs and the next thing she remembered was wakening up in the Accident and Emergency Department of Glasgow Royal Infirmary. She did not know what had happened to her. She did not remember speaking to the ambulance crew or who was around her when the ambulance came. She had been told that her husband had accompanied her in the ambulance.

[4 ] Two eyewitnesses gave evidence in which they claimed to have seen the pursuer fall. They were James Saunders and his former wife Maureen Saunders. At the time of the proof Mr Saunders was 62 years of age. He had lived in Drygate for ten or eleven years from 1995 onwards. He had been a tenant of the defenders in Gibson Heights and rented a lock-up below Lister Heights. Access to the lock-up was by the same set of stairs used by the pursuer to access her lock-up. About a year after moving in, as a result of a request for a change, he was allocated a new lock-up at 31 Drygate.

[5] Mr Saunders said that around 7:40 or 7:50pm on 4 May 1999 he was standing at the top of the stairs facing the shops. He was in the corner between the bollards and the flower bed, which meant that he was opposite the top of the stairs. He and his wife were waiting for a taxi in order to go out for a meal. He saw Agnes Wilson, the pursuer, walking down the hill and nodded to her. He stepped back to let her pass. She then went down the stairs. By this time Mr Saunders was facing towards the steps and he heard the pursuer scream. She had fallen at the bottom of the stairs. He had a good view down the stairs. The pursuer was near enough the bottom of the stairs when she fell and started screaming. He could not say precisely which step she had fallen on but she was near the bottom when she took the tumble. She was in the area of the third step from the bottom. He said that she definitely did not trip and tumble down the stairs from top to bottom. He described her as having fallen from right to left, forward and to the left hand side. She was lying on the ground screaming and there was blood coming from the left hand side of her head. His wife and a young woman who had come on the scene went down to where the pursuer was. Two men came from the bottom. The pursuer was on her hands and knees and started crawling up the stairs. She may have been helped up and she got near to the top. He himself went down and came back up. Around this time the Saunders' taxi arrived and they left. When Mr Saunders last saw the pursuer she was at the top of the stairs leaning against the wall.

[6 ] Mr Saunders said that he did not know the pursuer beyond knowing her by sight as someone who came into the flats and to whom he nodded. He said that after the accident he had been mistaken for the husband of the pursuer and people had asked him how his wife was. He did not know the pursuer's husband but two or three weeks after the accident he found out where the Wilsons' flat was and he called to see how the pursuer was keeping. He told the pursuer's husband that he had been there when the pursuer fell down the stairs. He also told the pursuer's husband that he himself had reported the state of disrepair of these stairs a couple of years before. He gave them his name and address.

[7 ] Sometime later the pursuer came to his door and asked him if he would be a witness in her claim. She asked him if he would mind if she gave her solicitor his name and address and he agreed. He had subsequently made a statement to the solicitor, he thought in 2000.

[8 ] Maureen Saunders was aged 60 years at the time of the proof. She explained that in May 1999 she was living separately from her husband but because he had a friend coming from Canada she was joining them for a meal. She met Mr Saunders at his house and they went down to get a taxi. She met a woman called Betty and her daughter to whom she spoke. She saw the pursuer, whom she did not know at the time, walking past them to go to the stairs. The pursuer nodded to Mr Saunders and the other woman. She went down the stairs. At this time Mrs Saunders, who had been facing the top of the stairs, turned away and continued to talk to the other woman. When she looked round again she saw that the pursuer had fallen on to the bottom part of the stairs. She was unable to say whereabouts on the stairs she had fallen but it was not from the top. She landed at the bottom. Mrs Saunders went down the stairs and the pursuer was lying on the ground beyond the bottom step. She was not answering properly. There was blood on her head. The pursuer was shouting for her husband, she was trying to get up all the time and people were telling her to stay where she was. She was determined to get up. While the pursuer was not totally unconscious, she did not seem fully aware. Her eyes were rolling. As the Saunders got into their taxi, the pursuer was coming up the stairs with help.

[9 ] David Lees came on the scene after the pursuer's accident and saw her propped up against the wall at the top of the stairs. He was unable to give any further assistance on the accident.

[10 ] Dennis Wilson was the husband of the pursuer. About ten minutes or so after the pursuer had left to go to work he received a phone call advising him that she had had an accident. He went down and found her sitting on the ground at the kerb of the flower bed at the start of the railings with two or three other people. She was injured. She was moaning about her shoulder.

[11 ] The evidence of the pursuer and Mr and Mrs Saunders requires to be examined in the light of a number of contradictory pieces of evidence as to where the pursuer fell. It is necessary to examine a number of productions in order to see what light they cast on the circumstances in which the accident occurred. Production 7/1 page 204 is a copy of the Scottish Ambulance Service report form for Agnes Wilson. It is recorded that the call was received at 1958 hours on 4 May 1999 and that treatment commenced at 2008 hours. The ambulance left the scene at 2020 hours. It is recorded that the pursuer was alert and was not knocked out. She had sustained a head injury. Her pupils were reacting and she was recorded as scoring 15 on the Glasgow Coma Scale, which is the maximum score. Under the heading "comments" the following is noted: "Patient tripped on slabs causing her to fall and sustain injury to L arm and large haematoma to L frontal area of head. Not K.O.d." Richard Doyle, who was the paramedic who attended, gave evidence. He said that from the form he was able to say that when they attended the patient was fully alert and was not knocked out. The information under the comments section would have been received either from the patient or somebody who was with the patient. He was unable to say which. The patient would normally be the first source of information. In cross-examination he agreed that the fact that the pupil was responding normally did not exclude head injury. He said that his primary focus would be on the injured party and if she was unable to give information his colleague would seek to obtain information from other persons at the scene. In evidence the pursuer said that she did not recall speaking to the ambulance crew.

[12 ] The next document of significance is the record from the Glasgow Royal Infirmary Accident and Emergency Department (production 7/1 page 88). Under the heading "initial assessment" the following is recorded "fell going up stairs - put L hand out to save herself. Pain elbow to shoulder. Hit head off kerb, graze and haematoma L eye. Zero loss of consciousness. GCS 15. No neck pain but collared by ambulance crew." Audrey Wood who completed that entry gave evidence. She was a sister in accident and emergency with eighteen years service. From her notes she was able to say that the ambulance crew would have given her a briefing in the form of an oral handover. She said that she would take a history from the patient and that it was important that the patient gave the history herself.

[13 ] In the clinical notes of the Accident and Emergency Department notes the first entry is by Dr Allison who saw the pursuer at 9pm and noted that she had "tripped up stairs". On 5 May 1999 there is an entry by Dr Britliff recording that the patient had no headache/nausea/vomiting and had a clear recall of events.

[14 ] With respect to the entries "fell going up stairs" and "tripped up stairs" the pursuer said that she did not know who had given that information. It might have been herself because she was not sure exactly where she had fallen. However, as she was going to work at the time she would have been going downstairs and would have had no reason to go back up again.

[15 ] The pursuer was discharged from the Glasgow Royal Infirmary on 6 May 1999 and in the discharge letter Ms J McMillan, Specialist Registrar, stated, "This lady was admitted as an emergency under the care of Mr Kinninmonth after a fall going up stairs when she sustained a fracture of her left neck humerus and a closed head injury."

[16 ] The pursuer returned to the Accident and Emergency Department of Glasgow Royal Infirmary on 10 May 1999 where it is noted that she "fell over on 4 May 1999." She was suffering from headache and feeling dizzy. She was detained overnight for observations. In the notes of 11 May 1999 it is noted by Dr Allison that the pursuer was admitted on 4 May 1999 "following head injury in fall LOC for few seconds."

[17 ] The next document of interest is a letter (production 7/1 page 134) from the West of Scotland Regional Epilepsy Service Institute of Neurological Sciences at the Southern General Hospital, Glasgow, dated 1 November 1999 when the pursuer was seen by a consultant neurologist who noted that in "May of this year she tripped over a paving stone and fell."

[18 ] On 24 June 1999 solicitors Quinn, Martin and Langan wrote on behalf of the pursuer to Glasgow City Council (production 7/17) stating the following:

"We would advise that with regard to the circumstances of the accident that our client caught her foot on the pavement as she was walking along the pavement, the pavement was very uneven and she was thrown off balance. She cannot remember much thereafter but remembers when she awakened that she was in a great deal of pain. She noticed when she awakened that she was beside a wall and believes that when falling she may have come into contact with the wall."

When the terms of this letter were put to the pursuer she said that she did not have a lot of memory of the accident herself. She may have given that account to the solicitor. She said that she may have thought that that was how she had fallen until she was told otherwise. Later she found out that there were witnesses.

[19 ] The next document is a Glasgow City Council Incident Report Form (production 7/6) apparently completed and signed by the pursuer and dated 9 August 1999. In it she gave the following description of how the incident occurred:

"I was on my way to my employment at Gartnavel Royal Hospital. I caught my foot on uneven pavement and fell."

The names Tracey Thompson and James Saunders are given as witnesses. The pursuer said that the text was not in her handwriting although she had signed the form.

[20 ] The next document is the occupational health service record (production 6/10) for the pursuer. There is an entry dated 16/12/99 in the following terms:

"Phoned SNM Anne Marie McGill asking for update on above member of staff (Agnes C. Wilson). Had bad fall (fell down stairs) - awaiting serious of investigation/results [sic]. SNHK in touch and will refer to OHS when necessary."

[21 ] The next document is a letter from K Egbujo, housing officer, to the claims assistant in the court section of Glasgow City Council dated 22 December 1999 (production 7/20). It is in the following terms:

"With reference to your memorandum of 6 December 1999 concerning the above named, I would advise that on Monday, 20 December 1999 I met with Mrs Wilson (accompanied by her brother) at 36 Drygate, in order to ascertain the exact locus of the accident as it was unclear from the photographs which I received from your office on 17 December 1999.

Mrs Wilson showed me the area but was unsure of the exact location where she sustained the accident.

I confirm that on inspection by myself and Mr James Neil, the local concierge officer, there was no damage to the surface area/pavement other than the small section circled (by me) in the enclosed photograph. I have on 21 December 1999 raised a report for those grounds to be reinstated. I must point out that there is no indication of when and how this small section of ground was damaged."

In relation to this meeting the pursuer said that she did go to the site with the Housing Officer, Ms Egbujo. She said that she had pointed out the general area where she fell. She said that she had been unable to be specific as to where she had fallen.

There is a further entry dated 9 February 2000 in the Occupational Health Service continuation sheet in relation to the pursuer. The entry begins "May 1999 fell over flagstone and KO'd four minutes."

[22 ] On 2 March 2001 Quinn, Martin and Langan wrote to Glasgow City Council in the following terms:

"We refer to previous correspondence in connection with the above and write to advise you that we have now carried out further inquiries as a result of which we are able to specify the circumstances surrounding our client's accident more fully.

It would appear that on 4 May 1999 our client was seen by witnesses on the staircase that leads from the Drygate down to the lock-ups both by James Saunders and by Tracey Thompson falling at the loose steps which James Saunders had previous complained to David Kelly the housing officer for Drygate on various occasions in the two years prior to the accident.

Mr Saunders is fairly clear in his statement to us that our client fell on the second level of steps down near enough the third or fourth step from the bottom of this level which coincides with the steps that he had been complaining about. We are advised that Tracey Thompson was driving up the hill towards her house at 24 Drygate when she saw Mrs Wilson falling at the locus stipulated.

We understand that a number of persons there assisted our client who was in extreme pain and that our client's husband came to her assistance and that our client was then taken to hospital."

The pursuer said that she was not sure when she had first told the solicitor that she had been told that she had fallen on the stair. She thought that it had been earlier than 2001.

[23 ] I found the evidence of both Mr and Mrs Saunders about the circumstances of the pursuer's fall to be credible and reliable evidence. They scarcely knew the pursuer and had no reason to make up a story for her. At the time of the accident they were separated from each other. The description of the direction of the fall given by Mr Saunders is consistent with the injuries which were sustained to the pursuer's left side. It is unfortunate that they had left the scene before the ambulance arrived. The result was that no one who had witnessed the fall was present when the ambulance arrived and an inaccurate account of what happened was introduced and recorded at a very early stage. This was reinforced in later entries. When the ambulance arrived the pursuer was at the top of the stairs in a very distressed state and considerable pain. She may have suffered brief loss of consciousness. She may have suffered some loss of memory. There is reference to that in a letter dated 2 November 2000 written by Mr Kinnimouth, Consultant Orthopaedic Surgeon who noted that the pursuer had suffered a head injury which had given her some memory problems (production 7/1 page 153). I found the pursuer to be a confused and nervous witness. I conclude that someone else gave the ambulance crew the account of what happened. I note that in the Accident and Emergency Department reference is made to the stairs. I conclude that the reference to "upstairs" arose out of confused information given by the pursuer to Audrey Watt. The medical staff who dealt with the pursuer would be more concerned with her treatment than with the precise mechanism of her fall.