Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/2009/CSOH_6.html
Cite as: 2009 GWD 4-71, [2009] ScotCS CSOH_6, 2009 Rep LR 55, [2009] CSOH 6

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OUTER HOUSE, COURT OF SESSION

[2009] CSOH 6

PD113/08

OPINION OF LADY DORRIAN

in the cause

JANICE BURGESS

Pursuer;

against

NAPIER UNIVERSITY

Defender:

________________

Pursuer: Allardice; Thompsons

Defender: McGregor; HBM Sayers

20 January 2009

[1] The pursuer invigilated an examination at Napier University, Merchiston Campus on 16 August 2006. As she left the room after the exam, she tripped and fell against a wall injuring herself. She claimed damages for solatium, loss of wages, disadvantage on the labour market and services under both sections 8 and 9 of the Administration of Justice Act 1982. In her pleadings the pursuer avers that she tripped on a waste paper basket which had been left lying on the floor.

[2] It was a matter of agreement that the room in which the exam took place measured by about 20 feet by 16 feet, that the pursuer had been in the room for about two hours prior to the accident and that the waste bin had a height and circumference of about 12 inches each. The door opened from left to right into the room. The invigilator's desk was directly to the far right hand side as one entered the room. A short distance behind the door, against the wall, were about five chairs stacked on top of one another. Roughly in line with them and slightly further into the room were five desks also stacked up. The position of the desks and chairs would have affected the view of someone sitting at the invigilators desk and looking back towards the door. It would also have affected the route which had to be taken from the door to the invigilator's desk.

[3] The exam finished at about eleven. The pursuer gathered together her paperwork, the students' answer books and some additional documentation. The whole bundle eventually measured about eighteen inches long and about six inches deep. Placing this on her left arm and putting her bag over her left shoulder, she headed towards the door. She had to move out further into the room to negotiate the stacked tables and chairs since there was not room to go between them. She was walking diagonally over from the corner of the stacked tables to the door handle, in the far corner of the room, and "the next thing I was sliding down the wall". She said "I thought I must have tripped and I passed out". When she came to it was ten past eleven. Asked if she realised what had happened she said "No. As I was sliding down the wall I was thinking oh I must have tripped".

[4] She concluded that she must have tripped over the basket, which was completely flat, as if a steamroller had gone over it. She had not seen the bin when she entered the room. Asked where it would have been she said behind the door, indicating on a photograph that the basket would have been at the edge of the door at the place where the lock mechanism is. The bin would normally be part of the furniture in the room but she would expect it to be kept under the desk.

[5] She thought that she had passed out but had not been unconscious. When she came to she was against the wall but sitting with her legs to the side. She felt sick. Her knee was sore and she concluded that it must have hit the bin. She eventually managed to get up and go over to the teacher's desk where she sat to recover herself. At that point, a patrolling invigilator, Mrs Margaret Hart came in and help was obtained. The pursuer said "we saw the bin and we did laugh because it was totally flat like a steamroller had gone over it".

[6] The pursuer's husband came and after obtaining an emergency appointment at the GP she was sent to St John's Hospital where a fracture of the greater tuberosity of the right shoulder was diagnosed. She also had a sore neck and a sore knee. The problems with her knee had resolved after about six weeks. Her neck still aches about once a month. She was given painkillers and a sling and used this for a few months. She was off work until about December or January. She still doesn't have quite the same strength or dexterity in her right arm as she had previously, which restricted her ability to do certain chores. After the accident she was not totally able to look after herself and her husband had to help her, nor could she do all the household chores as she usually did, and she spoke to services being required over a period of a couple of months.

[7] She continues to work as an invigilator for about ninety days per year. She thought invigilators could carry on well into their seventies and she would carry on doing it whilst she could. She enjoys it and the money is useful. She is occasionally asked by Napier University to do reception work for holiday relief and does so from time to time. In about October 2006 she was offered a permanent job as a receptionist but did not take it up because of this litigation.

[8] In 2008 the deputy head at George Heriot's had asked if she would like to become chief invigilator but she was unable to do that job because of the lifting which was involved. Otherwise, she would have taken the job and would have continued it as long as she was able. She had taken the post of deputy chief invigilator but was not continuing since the rate of pay is the same as that for an ordinary invigilator.

[9] The pursuer's earnings can be seen from her P60s, 6/5 of process showing £1,906.85 for 2006 and £1,417.75 for 2007. The figure for the latter period was lower because it covered the period of absence from work. For 2008 (6/11) she earned £766.94 which she said related solely to earnings from Heriot's for May 2008. She was shown a document (6/7) purporting to show the earnings of the chief invigilator for the 2007 period in the sum of £1,976.84.

[10] In cross-examination it was put to her that the bin was in clear view to anyone who was looking where they were going. She refused to accept this, but eventually conceded that if she had not been carrying anything she would probably have seen it. She had patrolled the room once, during which period she had collected the unused papers. She set out the room for five participants, although only two turned up. She had been back and forth from the students' desks to the invigilator's desk a couple of times when setting the room up. She had her back to the door during this and there was no reason for her to have seen the bin. She had gone again to the desk of each student when they entered the room to check their matriculation cards. She could not recall where the students sat.

[11] The bin must have been there when she went into the room but she didn't notice it. She gave evidence about what she recalled regarding outdoor clothing or bags brought in by the students. (I shall return to this later). She did not remember going to the door to speak to Margaret Hart. If Mrs Hart came in it would be before the students came in so as not to disturb them. She would not have come all the way in and would just have stuck her head in and signalled to the pursuer.

[12] The boy finished the exam first and she remembered specifically that he indicated that he was finished by gesturing with his hands. She could not remember where he was sitting. The girl left at 10.55. The pursuer remembered collecting the paper from the girl's desk. She recalled a conversation with the girl who spoke to indicate that she was finished, saying "that's it". The pursuer pointed out that there was still time and at the end asked the girl how she felt she had done.

[13] She agreed that when she tripped or fell she had no idea what caused it. She then gave evidence of being aware of the presence of the bin as she was sliding down the wall, then she was aware of it at the point of falling. She said she could not get her foot on the ground because there was something stopping it, which must have been the bin.

[14] The wages of an invigilator will depend on how many exams they cover and it will not be the same each year. She would be fit to be a receptionist. She was able to golf but her swing was not the same as it had been. Her handicap had previously been 18 and was now 20.

[15] Mrs Christine Binnie, Deputy Head at Heriot's gave evidence that Mrs Burgess had been an invigilator for about 3 years and had become Deputy Chief Invigilator last year. She had declined the post of Chief Invigilator because of the lifting which was involved. Invigilators can work until they are 70. She was shown a time-sheet for the Chief Invigilator for 2008 (6/10) from which the fees which would have been paid to the Chief Invigilator may be calculated, namely £1,927.40. She understood Mrs Burgess would have been paid £1,000 for the same period.

[16] Mrs Margaret Hart was the patrolling invigilator on the day of the pursuer's accident. Her job was to patrol all the rooms and ascertain whether invigilators required a comfort break and to check whether anyone had been caught cheating. She went round the rooms to check whether a break was required and spoke to Mrs Burgess when she did so. Later that morning she was checking the premises and saw through the glass panel papers scattered on the floor, as if someone had dropped them. She found Mrs Burgess at the invigilator's desk looking as if she had just come out of a faint. She said she had had a fall. Mrs Hart said how on earth did you fall and she said "I tripped over the bin" (which Mrs Hart saw was all flattened) and "I was carrying my papers". In cross examination she said that she had gone into the room about an hour into the exam, just inside the door of the room, and Mrs Burgess had come over to her from the teacher's desk.

[17] David Burgess collected his wife and took her to the GP and then to the hospital. She said that she had tripped over the waste paper bin and rugby tackled the wall. She was incapacitated by her injury until about December when she began to improve. Driving was out of the question until some time in January. Dressing and undressing was a struggle until November. It took about a year to improve to her present extent. She was unable to dry herself after showering or to cut her food for some time. Because of the accident he had had to do household chores which he would not normally do such as washing, ironing and hanging up clothes.

[18] Miss McQueen spoke to the contents of her reports indicating that the pursuer had suffered an undisplaced fracture of the right greater tuberosity and soft tissue injury to her knee. She continued to have some difficulties associated with the shoulder, mainly in lifting or manipulating large objects. Any neck problems she has are related to degenerative changes. She confirmed that in her opinion it had been reasonable for the pursuer to refuse to take the Chief Invigilator's job, the issue being lifting and carrying of heavy boxes and lifting them above head height. That continues to be a restriction for her.

[19] Sean Hughes, an Assistant Health and Safety Adviser at Napier spoke on the telephone to the pursuer shortly after the accident. The pursuer said that when it happened she did not have an idea what caused it. Afterwards she got up, looked round and saw the bucket. She made a connection between her fall and the bucket at that point.

Submissions for pursuer

[20 Mr Allardice referred to the pleadings in which it was admitted that the pursuer was working in the course of her employment on the day in question and that an accident had occurred. The issue was what had been the cause of the accident. The only person present was the pursuer and the circumstantial evidence supported her contention. She did not at first know what had caused her to fall but as she was sliding down the wall she made a connection with it being the bin. This was supported by the condition of the bin. Something caused her to lose her footing and fall and one must search for the most likely explanation. The pursuer's evidence of not being able to get her right foot down was part of her explanation of piecing the matter together. The circumstances of the accident were pieced togetherby her immediately afterwards. The pursuer had to satisfy the court that it was an article which resulted in the fall, but the exact mechanism did not need to be proved. She was carrying a bundle of papers which she said obscured her view of where the bin was.

[21] Counsel submitted that the pursuer was confused in her evidence in cross examination. He conceded that she said different things at different stages and said at times she remembered things when she clearly did not, but submitted that she had not come to court to tell lies. She was trying to be helpful and was at points not seeming to understand the questions put to her. The pursuer had gone back to work as soon as she realistically could have done. She has not allowed it to interfere with her life anymore than necessary. It was clear that she had a genuine belief that she had tripped over the bin.

[22] Turning to the law, counsel relied only on the statutory case under regulation 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992 which provides that:

"so far as is reasonably practicable, every floor in a workplace and the surface of every traffic route in a workplace shall be kept free from obstructions and from any article or substance which may cause a person to slip, trip or fall".

The statutory defence of reasonable practicability had not been relied on, the question being whether the bin qualified as an obstruction or an article for the purposes of section 12(3). Conceding that the bin was not an obstruction, counsel submitted that it was an article for the purposes of the regulation. He submitted that if the court was satisfied that the bin caused the accident, the breach of the regulations was made out.

[23] On the issue of contributory negligence, counsel submitted that there should be no finding of contributory negligence. The pursuer was simply going about her legitimate business doing nothing wrong so there should be no finding of contributory negligence. She was not aware of the presence of the bin and there is no reason she necessarily should have been. It was obscured behind the door as she came in. He conceded that she was almost bound to have walked past it when she came in, but her view from the desk would have been obscured by the items piled up in the room. She might well have had the opportunity to see the bin but there was no suggestion that her attention should have been drawn to it for any reason. Walking normally one does not stare at one's feet and her focus was directed towards leaving the room. She had to exercise reasonable care but that did not require her to look at her feet. The fact is that she was carrying something which partially obscured her vision forwards and down and on that basis there should be no contributory negligence.

[24] Turning to the question of damages, counsel referred to the JSB Guidelines 9^th Edition in respect of shoulder injuries suggesting that this fell into the "serious" category and was within a range of £8,100 to £12,250 with the figure of £10,000 being suggested as appropriate. Three-quarters of that should be attributed to the past for the purposes of interest.

[25] So far as loss of earnings are concerned, past loss of earnings fell into two categories: the initial period of absence; and the work in May 2008 when she was earning as a Deputy Chief Invigilator but would otherwise have been the Chief Invigilator. In the first period the loss was broadly about £480. For the second period productions 6/7, 6/10 and 6/11 suggested that the loss (which also became the annual future loss) was £1,161. Counsel submitted that interest at 8% should apply to the first item should fall from the end of August 2006 and on the second item from the end of May 2008.

[26] So far as future loss is concerned, this could be assessed in a variety of ways. The job of invigilator is carried out frequently by retired persons such as the pursuer and there are many other circumstances applying which for a job which involves casual work on odd occasions to suggest that a lump sum might be appropriate. Equally a multiplier/multiplicand might be appropriate. The pursuer is now 62 and might have been able to carry on as Chief Invigilator to the age of 70. An appropriate multiplier from Table 12 was 7. Past services for each of sections 8 and 9 should be £1,100. Interest on that should be applied at the rate of 4% from the date of the accident. For the future he suggested a total lump sum of £500. The pursuer had already been affected by disadvantage on the labour in having to turn down the job of Chief Invigilator. An appropriate sum for this was in the region of £5,000.

Submissions for defenders

[27] Counsel conceded that the wastepaper basket was an "article" for the purposes of Regulation 12(3) and that no issue of reasonable practicability arose. If the pursuer established that she tripped on the wastepaper basket there was a breach of the Regulation. The two issues arising were -

· had the pursuer established the essential facts of her case?

· if so, does contributory negligence arise?

[28] The defenders submitted that the pursuer has not established that she tripped over the wastepaper basket. She is the only witness who can speak to the accident and it is necessary to focus upon her credibility and reliability. Her recollection of events leading up to and including the accident were unreliable. Her initial account of the accident was brief and vague and thereafter inconsistent. Certain descriptions she gave were incredible. She intentionally avoided answering the questions put to her at the start of cross-examination and at other times provided answers that were inconsistent with earlier responses. She is an intelligent woman who clearly understood that she was being asked to describe in detail how the accident happened and she could not have been confused by such a request. Counsel then contrasted the various accounts the pursuer had given at different stages of her evidence. In her initial evidence she indicated that she could not remember why she fell and her answers under cross-examination effectively supported that position. There is no dispute that the pursuer fell. There is no dispute that the wastepaper basket was in a flattened state after the pursuer's fall. However, these two factors alone do not provide a sufficient basis to establish on the balance of probabilities that the pursuer tripped over the wastepaper basket and fell. She has failed to prove her factual case.