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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 82
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PD1422/05
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OPINION OF LORD MACPHAIL
in the cause
JOHN DILLON
Pursuer;
against
INVERCLYDE LEISURE
Defenders:
ญญญญญญญญญญญญญญญญญ
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Pursuer: Ivey, Q.C.; Thompsons
Defenders: Olsen; Simpson & Marwick,
W.S.
11 May 2007
Introduction
[1] This
action of damages for personal injuries arises from an accident the pursuer
sustained when he was playing five-a-side football on an indoors pitch in a
sports centre which was managed and staffed by the defenders. Damages are
agreed by joint minute. The defenders do not raise any issue of fault or
contributory negligence on the part of the pursuer. The only issue for determination
is whether the pursuer has established that the defenders are liable to make
reparation to him.
The undisputed
facts
[2] It is
common ground that the accident occurred on the evening of 5 September 2002 when the pursuer was playing five-a-side football on
a pitch within Greenock Sports Centre, which is managed and staffed by the
defenders. The Sports Centre consists of a main building and an ancillary
building which was referred to in evidence as "the extension". There were three
halls, or pitches, on which five-a-side football could be played. Two were
within the main building, and these two had wooden floors. The third was in the
ground floor of the extension. It is described in the pursuer's pleadings as
being hard and smooth and having a floor made of stone, but at the proof the
defenders led unchallenged evidence that it was constructed of wood composite
tiles, referred to in the evidence as Granwood tiles, which were directly
bonded on to the surface of a concrete slab. At the time of the accident the
pursuer was playing on the pitch in the extension. Before the match, the hall
had been used by a line-dancing class, certain members of which had been
wearing outdoor footwear.
The pleadings
[3] The
pursuer avers that during the game he slipped on the surface of the floor and
his right knee struck the wall. Before the game began, the hall had been used
by a line-dancing class who had worn outdoor footwear. He avers that during the
match he chased the ball and was running towards the wall near one of the
corners. He slipped on the floor surface. His right knee struck the wall.
[4] The
pursuer's claim is based on the defenders' fault at common law and on their
breach of the duty of reasonable care incumbent upon them by virtue of
section 2(1) of the Occupiers' Liability (Scotland) Act 1960. He states
that the floor of the hall was not suitable for five-a-side football, and he
describes the floor as in a poor state of repair, slippery, dusty and dirty. He
says that users of the hall knew that it had a slippery surface: some tried to
avoid it when booking a hall for five-a-side football, while others refused to
make a booking at all if that was the only hall available. The defenders
purported to operate, but did not enforce, a policy of prohibiting users of the
hall from wearing outdoor footwear. They had no system for the regular cleaning
of the hall, and in particular no system for cleaning it after they had
permitted persons to use it while wearing outdoor footwear. The pursuer also
makes averments about three matters which were not founded on by his counsel at
the hearing on evidence. First, he refers to various British Standards.
Secondly, he points to the fact that after the accident the surface of the hall
was replaced. Thirdly, he avers that there were no barriers to prevent players
in a five-a-side match from coming into direct contact with the walls.
[5] The
defenders deny liability. As to the accident, they say that the floor of the
hall was not wet, dirty or dusty at the time. The only activity in the hall
before the five-a-side had been the line-dancing class, which had run from 6.30 to 8
p.m.
The participants in that class had had to check in at the reception area in the
main building and go to the extension down a covered ramp. Inside the door of
the extension was a mat which removed excess dirt and moisture from footwear.
The person taking the class did not notice any problem with moisture on the
surface of the floor and none of the class reported any such problem to her.
When the defenders' leisure attendant came to the hall to remove the line
dancers' audio equipment he noted no problem with the surface of the hall. The
pursuer's accident happened about 50 minutes into the game of football and none
of the players, including the pursuer, had reported to the defenders any
problem with the surface of the hall.
[6] The
defenders further aver that the surface of the hall was suitable for sports
including football, and had been provided by the manufacturers on the basis
that it was so suitable before the dates of the British Standards referred to
by the pursuer. The defenders had a system of cleaning the floor with a "kex"
mop and brush each morning, and with a scrubber and dryer machine once or twice
a week. They had never had a policy of prohibiting users of the hall from
wearing outdoor footwear. Some users of the hall preferred the other halls for
football because they had sprung floors with more give than the floor of the
extension hall, while others preferred the extension hall because it was
completely surrounded by walls and rebound boards and facilitated a more
continuous game. The defenders had never received any complaints about the
slipperiness of the floor in the extension hall, and they had no record of any
previous accident having occurred due to slipperiness of that floor. They
replaced it with artificial turf in November 2005 because they wanted to
improve their facilities and attract more custom. As to the absence of
barriers, they say that the long sides of the pitch were bounded by the walls
of the hall itself, while the goal ends were bounded by rebound boards; and it
is common practice for five-a-side football pitches to be surrounded by hard
walls or boards.
The evidence
[7] The
pursuer's counsel led the evidence of the pursuer himself; three of his fellow
players who witnessed the accident, Paul Gillan, Stuart Hearl and
Ross Campbell; David Allen, who regularly played football in the hall; and
an architect, Mr Ken Williamson. The defenders led the evidence of Mrs Morag
Logue, who worked at the Sports Centre both as a receptionist and as the
instructor of the line-dancing class; Mrs Rona Boag, the manageress of the
Sports Centre; three of the leisure attendants at the Sports Centre, James
Whiteford, James Lyon and Mark Few; and Craig Dunsmore, who regularly played
football in the hall. There was no criticism by either counsel of the
credibility of any of the witnesses, and I have no doubt that each of them was
trying to tell the truth as he or she remembered it. The defenders' counsel
made a criticism of the reliability of the pursuer and the three eye-witnesses
as to the state of the floor, which I shall consider below. That matter apart,
there was no criticism from either side of the reliability of any of the other
witnesses, and I am satisfied that these witnesses' evidence was reliable.
The
circumstances of the accident
[8] At the
end of the day it was not disputed that the pursuer had slipped on the floor.
The pursuer and the three eye-witnesses all gave evidence to the effect that
some 45 minutes after the match had started, the pursuer had been in the
farther half of the pitch on the right hand side as seen from the door from
which the hall is entered. The ball was rolling towards the right-hand wall and
the pursuer was chasing it. Exactly what the pursuer was doing immediately
before he slipped is not altogether clear. The pursuer himself said he was
trying to slow down. Paul Gillan said it looked as if he was trying to backheel
the ball. Stuart Hearl said he slipped as he was bringing the ball under
control. Ross Campbell said his legs gave way under him, his legs went forward
and his upper body seemed to go back the way. In any event he slipped and his
right knee hit the wall.
[9] As to
what caused the pursuer to slip, the pursuer's case is that he slipped because
the floor was slippery: it was dusty and slippery. He said in evidence that he
slipped because the floor was dirty; and by "dirty" he meant that there were
grains of dirt and dust on the floor. I have studied the evidence of the other
eye-witnesses and I have been unable to find that any of them is able to
support the pursuer with direct evidence on this point. None of them says that
there was any dirt or dust on the floor at the place where the pursuer slipped.
[10] The
pursuer's witnesses gave general evidence about the condition of the floor.
They said that holes and cracks in the floor had been patched or filled with
"cement", and the floor was dirty and dusty. It is also clear, however, that
the pursuer and the eye-witnesses preferred the halls in the main building to
the hall in the extension. The pursuer said that they tried to book one of the
other halls, but they played about half of their matches in the extension.
During the 10 years he had been playing there, the floor had been in much the
same state as it had been at the time of the accident. They never liked playing
on it because it was slippery. However, he had not had any previous accident
because of the floor. Paul Gillan preferred the other halls because they had "a
bit of give in the wood, you can turn much quicker," while the hall in the
extension was almost like a concrete floor and "a lot slidie-er" and generally
harder to play football in. Its slipperiness was a regular feature. Stuart
Hearl said that the surface of the floor in the extension didn't give a good
grip for training shoes, whereas you could get a good grip on the wooden
floors, which had more give. Ross Campbell said that the floor of the extension
did not give the best of grip compared to the wooden floors, which were
better. David Allen also tried to avoid
booking the extension: you could not achieve a good grip there, it was always
quite slippy. He agreed that wooden and concrete floors had different degrees
of slipperiness.
[11] On the
other hand Craig Dunsmore said he had been playing five-a-side regularly, and
almost exclusively in the extension hall, since about the year 2000. He and his
friends preferred the extension hall to the two main halls, because the latter
had concrete pillars protruding from the walls: the ball could bounce off these
and go in any direction. He had had no problems with the floor of the extension
hall in September 2002. He was aware that it was a hard surface to play on,
different from the other two halls. John Lyon, one of the leisure attendants,
said that from 10 years ago he had been playing football in the extension hall
once or twice a week. Playing there was fine, and slightly faster than playing
in a hall with a wooden floor: he did not agree that the surface of the floor
in the extension hall was slippery or dusty.
[12] There
is no evidence that after he fell, the pursuer's hands or clothes were seen to
be dusty or dirty. James Whiteford, the leisure attendant who came on the scene
shortly after the accident while the pursuer was still present, gave acceptable
evidence that he did not see anything wrong with the floor. From the
information given to him at the time, he recorded on an incident report form
(no. 7/1 of process) that the pursuer "was playing five-a-side football. While
making a run for the ball he slipped and fell injuring his right knee cap
against the wall." James Whiteford also gave evidence, which I accept, that he
had brushed the floor of the extension hall on the day of the accident.
[13] The
pursuer's counsel relied on the evidence of the skilled witness,
Mr Williamson. Mr Williamson's evidence was criticised by the defenders'
counsel on a number of grounds which I shall notice briefly below, but at best
for the pursuer Mr Williamson could not throw any light on the question whether
there was any dirt or dust on the floor at the spot where the pursuer slipped
on 5 September 2002. He gave interesting
general evidence as to how dust is generated, and in particular as to how it
could be generated from cracks or imperfectly repaired cracks in a floor such
as that in the extension hall as a result of vibration from the use of the
floor. Mr Williamson had not, however, inspected the floor. His conclusion
in his report (no. 6/23 of process) that at the time of the accident the floor
was "inevitably dusty across its entire area, and consequently presented a
potentially dangerous and slippery playing surface" is based upon an
examination of photographs (no 6/11 of process), manufacturers' brochures
(appended to his report), and certain reports and witness statements or
precognitions which have not been disclosed. His conclusion cannot, in my
opinion, contradict what has been said, or what significantly has not been
said, by acceptable witnesses who were present at the time, or inferences that
may properly be drawn from facts proved in evidence.
[14] I draw
from all that evidence that differing views are honestly held about the merits
of the extension hall and the other halls as places for playing football. I
have concluded that the evidence of the eye-witnesses as to the condition of
the floor in the extension hall is coloured by their preference for the other
halls. I note that no one apparently attributed the pursuer's accident to dirt
or dust on the floor when the accident was reported to James Whiteford. I also
note the absence of evidence that there was dirt or dust on the floor at the
scene or on the pursuer's hands or clothing. I accept the evidence of James
Whiteford that he had brushed the floor that morning and that he did not see
anything wrong with the floor after the accident. There is no evidence of any
previous complaints to the defenders about dirt or dust on the floor, or of the
occurrence of any previous accidents which were attributed to the presence of
dirt or dust on the floor. Finally, I take into account the fact that there is
no evidence that during the 45 minutes or so of the match which had elapsed
before the pursuer slipped, anyone else had slipped because of dirt or dust on
the floor. I therefore conclude that it is not proved that the pursuer slipped
because there was dirt or dust on the floor.
[15] Since
the pursuer has not succeeded on this issue, decree of absolvitor must be
pronounced. I shall, however, go on to consider briefly the issue of liability
on the assumption that, contrary to my opinion, the pursuer has proved that he
slipped on dirt or dust on the floor.
[16] It must
be observed that the pursuer's case on liability which was presented at the
hearing on evidence was significantly different from that in his pleadings. The
pursuer clearly avers that the floor of the hall "was in a poor state of
repair. It was slippery. It was dusty and dirty." The case of which he gives
the defenders notice is twofold. First, they did not enforce their policy of
prohibiting users of the sports hall from wearing outdoor footwear. Secondly,
they had no system for the regular cleaning of the hall and in particular no
system for cleaning the hall after they had permitted persons to use it whilst
wearing outdoor footwear. As to the first, the pursuer failed to prove that the
defenders had any policy of prohibiting users of the hall from wearing outdoor
footwear. As to the second, the defenders proved that they did have a system for
the regular cleaning of the hall. The leisure attendants gave evidence, which I
accepted, that the floor was swept daily with a brush, and was cleaned weekly
with a machine which scrubbed and dried it. At the hearing on evidence, the
pursuer's counsel did not attempt to make a case that the dirt or dust on which
the pursuer had allegedly slipped had come from the outdoor footwear of any
member of the line-dancing class. That was not remarkable, because the evidence
had been to the effect that the line-dancing class had been held in the other
half of the hall from which the pursuer's accident occurred.
[17] At the
hearing on evidence, the pursuer's case came to be that the defenders had
failed in their duty of reasonable care under section 2(1) of the Occupiers'
Liability Act 1960 in that they failed to take reasonable care in maintaining
the surface in a reasonable state of repair and in operating a cleaning
programme which would minimise dust. The pursuer sought to found on passages in
the evidence of Mr Williamson which criticised the patching of the floor
instead of the replacement of blocks in the floor, the apparent failure to have
the floor resealed, and the fact that the defenders' cleaning regime did not
comply with the manufacturers' recommendations.
[18] In my
opinion it is not open to the pursuer to develop a case of this kind because
the defenders have not been given fair notice of it. They could not reasonably
have been expected to anticipate attacks of this nature which are not, in my
view, a variation, modification or development of what is averred on record.
The defenders' counsel took timeous objection to the eliciting of evidence on
such matters from Mr Williamson. I repelled the objection under
reservation, and having heard counsel on the objection at the hearing on
evidence, I now sustain it.
[19] In any
event I am not satisfied that there is cogent evidence before the court that
the method of maintenance of the floor fell below the requisite standard of
reasonable care. There is no evidence from a skilled witness who inspected the
floor, although it had been available for inspection until 2005. The
photographs (no 6/11 of process) are agreed to be photographs of the hall, but
they are barely adequate, and Mr Williamson very fairly drew attention to their
shortcomings in the course of his evidence. There is accordingly no precise
evidence as to the extent of any defects in the floor and as to the nature,
extent and effectiveness of the various repairs to the floor. Mr Williamson's
evidence was, in my opinion, properly tentative, and he did not contend that
any particular pattern of inspection and maintenance should have been adopted.
Nor did he say, as I understood him, that the dust in the hall had not been
effectively controlled. He observed, I have no doubt correctly, that the
effectiveness of any cleaning system must be judged by its results. The fact
that the defenders' system did not follow the manufacturers' recommendations is
in my view nothing to the purpose. The manufacturers say that their
recommendations "are for guidance only. Any maintenance regime and its
frequency will be influenced by the type, intensity and frequency of usage
experienced by the floor." Mr Williamson, however, did not have precise
information as to the details of the nature and extent of the use made of the
hall and thus, in my opinion, was not in a position to express a persuasive
view as to the effectiveness of the defenders' system.
[20] I shall
accordingly pronounce decree of absolvitor.
