Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 52
PD282/10	OPINION OF LADY CLARK OF CALTON in the cause EILEEN JANE O'NEILL Pursuer; against UNIVERSITY OF THE WEST OF SCOTLAND Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: Fitzpatrick; Digby Brown LLP

Defenders: Cowan, Solicitor advocate; Simpson & Marwick

18 March 2011

Summary

[1] This is an action of damages for personal injuries based on a Closed Record, No.21 of process. The parties agreed quantum. The only disputed issues in the case related to the liability, if any, of the defenders and the issue of contributory negligence of the pursuer.

[2] The averments of fact which are admitted and the averments which are in dispute are to be found in Article 4 and Answer 4 of the Closed Record.

[3] In Article 6, the crave of the pursuer is based on multiple legal grounds. These grounds were restricted prior to the proof. The grounds on which counsel for the pursuer relied were founded on Regulations 5(1), 12(1) and 12(3) of the Workplace (Health, Safety and Welfare) Regulations 2003.

[4] The proof commenced on 1 March 2011. I heard evidence and submissions over the following three days.

The evidence

[5] The following witnesses were led by counsel for the pursuer:

1. The pursuer, a lecturer employed by the defenders.

2. Michele Cano, a lecturer employed by the defenders.

3. Moria Divertie, Supervisor of Catering at a café in the defenders' premises. She was not employed by the defenders.

4. Valerie Finch, a lecturer employed by the defenders.

5. John O'Neill, husband of the pursuer.

6. Gillian Mack, who worked in November 2007 as an occupational therapist located in the Health & Safety Department of the defenders. At the date of the proof she was not employed by the defenders.

7. Philip E Glen, who was led as an expert witness. His CV is contained in his report 6/2 of process at page 5.

The solicitor advocate for the defenders led:

8. James MacDonald employed by the defenders as head of the defenders' Health and Safety Services.

In addition there was evidence on commission from Dan Maxwell, employed by the defenders as building officer. His evidence is contained in 22 of process.

[6] There are two joint minutes for the parties, 23 and 24 of process.

[7] A potential witness, Joan Lawther, who is employed by the defenders was not led as a witness in the proof. There was an agreement between the parties that no adverse inference should be drawn from her absence.

Submissions on behalf of the parties

[8] I am grateful to counsel and the solicitor advocate for the defenders for producing written submissions. The oral submissions followed and expanded the written submissions. The written submissions for the pursuer are 25 of process. The written submissions for the defenders are 26 of process. The submissions are self explanatory and I do not summarise them.

[9] In the course of submissions I was referred to a number of authorities, in particular, McGhee v Strathclyde Fire Brigade 2002 SLT 680; Anderson v Lothian Health Board 1996 SLCR 1068; Home Office v Lowles [2004] EWCA Civ 985; Marks and Spencer plc v Kathleen Palmer [2001] EWCA Civ 1528; Carephilly CBC v Button EWCA 2010 Civ 1311; Craner v Dorset County Council CA 2008 1323; Aileen Gilmour v East Renfrewshire Council, 5 December 2003; Butler v Grampian University Hospital NHS Trust 2009 SLT 985; McClafferty v British Telecommunications plc 1987 SLT 337; Delaney v Beechwood Nurseries Ltd (unreported) 20 February 2004.

Discussion

Credibility and reliability of witnesses

[10] The solicitor advocate for the defenders made some limited criticisms about the evidence of the factual witnesses who spoke to problems which they had experienced with the step which was the focus of this litigation. I consider that the evidence that these witnesses had experienced the problems with the step which they described is credible and reliable and is uncontradicted by any other evidence. The fact that no report was made by any of them to the Health and Safety Department, is easily explained by the failure of the defenders to impress upon members of staff the importance of reporting any incident with safety implications.

[11] I am satisfied that no significant issues arose in relation to the credibility and reliability of the witnesses to fact with the exception of the evidence of Gillian Mack and James MacDonald. There was a dispute in the evidence about significant issues in relation to the post-accident investigation and the Riddor reports. The completion of this important paperwork by the defenders' staff was not impressive. I consider it to be unfortunate that the paperwork did not include any record of the dates when reports were made or altered. I note that James MacDonald did not include in his note 6/11/20 of process any reference to a meeting in which he, Gillian Mack and Dan Maxwell attended at the locus and there is no note of the purpose or content of that discussion. James MacDonald did accept in evidence that this locus inspection had occurred. He did not accept that he expressed a view that the step "will be highlighted" as noted in the Riddor report.

[12] I do not consider that James MacDonald lied in his evidence or that he shifted his position. I am satisfied that the opinion of James MacDonald was always to the effect that the step was adequately highlighted, was not a hazard and did not require further highlighting. He was familiar with the locus and the step over a number of years. The step never caused him any problems. I consider that Gillian Mack was not a careful historian, as evidenced by the way in which she completed the first Riddor form. She accepted that her memory of events was not particularly good. I can only conclude that she was either confused about the sequence of events or confused about what was said at the locus inspection when she attended with James MacDonald.

[13] In any event I consider that this chapter of evidence is not critical. The evidence of James MacDonald was perfectly clear that he considered that the location of the step with the tonally different colours and materials and the edging was not a hazard. He concluded that all that was required had been done prior to the accident involving the pursuer. That is the reason he did not instruct any changes or alterations to the step after the accident. An important issue in the case is whether that conclusion survives critical examination in the light of the other evidence.

The facts

[14] The issues in dispute were very limited. There was no dispute about the following facts. The pursuer sustained an injury in the course of her employment with the defenders on 15 November 2007. The medical evidence was agreed. The injury resulted when she tripped over a single step with a height of 110 centimetres. The step was located 189 centimetres from a doorway in Block A. The step was removed some time after the accident when a ramp was installed. The pursuer entered from the outside of the building by the doorway about midday on a bright day. The doorway led to the cafeteria and various offices in Block A of the defenders' campus at Paisley. The layout of the campus showing Blocks K, B and A is set out in 6/4 of process.

[15] The photographs of the locus showing the step are part of 6/5 and 6/11 of process. These photographs do not in my opinion illustrate the view which the pursuer had when she entered the doorway and were not taken for that purpose. I consider that photograph 6/5 is the photograph of the locus which best represents the view of the pursuer. In addition it was accepted by James McDonald that said photograph best represented the colour of the floor coverings.

[16] The evidence of the pursuer about how the accident occurred was not in any significant dispute. For the first time during her employment, the pursuer entered block A by the doorway shown in the relevant photographs in 6/5 and 6/11 of process. As she approached, the glass door was closed. The door was opened for her by Joan Lawther. The stairway up to the door was narrow. I am satisfied that the presence of Joan Lawther standing on the staircase to open the door would have obscured to some extent, the pursuer's view of the interior. The door was not wedged open as shown in some of the photographs. The pursuer was looking down to the floor as she entered the doorway. Her impression was of "greyness". She was not carrying anything except her keys. She walked normally over the surface of the floor. She thought that the surface was flat. She did not see the step. She tripped, fell forward on to the floor with outstretched arms and suffered a broken right arm.

[17] I am satisfied from the evidence of Dan Maxwell that the configuration which resulted in the placing of the step in a corridor circulation area a short distance from a doorway, which served both as a normal entrance and fire exit, was part of the original design and construction of the building. That design, which no witness suggested was ideal, was to avoid a problem which was the restricted height at the entrance caused by an overhanging staircase. One would normally expect the flooring in such an area to be flat. The design layout of carpet with other floor covering and edging dated from different periods prior to the accident. There is no suggestion in the evidence of Dan Maxwell that the colour scheme of the carpet and other floor covering was considered in relation to health and safety issues. He said that the choice of the colour of the floor covering was "something we picked up from a brochure that was shown as the Café Royal and we thought it would be nice to recreate it" (page 15, 22 of process). His duties did not include health and safety assessments. He had never noticed a problem with the step. He was not aware of any reports of problems with the step. He believed that the step was well defined and he referred to the tonally different colours (page 24). He considered that the tonally different colours included the "nosing" (edging) applied to the step which included black edging against the grey tiles and the silver or aluminium edging against what he described as the blue/grey carpet. His perception was that the step "was fairly visible" because of the tonally different colours.

[18] Dan Maxwell also spoke to the changes which were made after 2007 when the defenders instructed the building of a ramp to replace the step. This was to provide wheelchair access and was part of a bigger construction project.

[19] There was a body of evidence which I accept from Valerie Finch, Michele Cano and Moria Divertie that over a number of years, the step had caused people to trip. Valerie Finch tripped over the step when she was new to the job. She was unaware of the step and did not notice it. Thereafter she took special pains to ensure that visitors and people new to the area were warned about the step. She was aware that other members of staff did the same to assist visitors. The witnesses, Michele Cano and Moira Divertie, also had problems with the step even though they knew about the step. I consider that to be significant. I infer that there was nothing sufficiently attracting their attention to the potential hazard which the single step presented in the position in which it was located in a circulations area.

[20] I accept that none of these witnesses reported a problem with the step. I also accept the evidence from Dan Maxwell and James MacDonald that they were unaware of any reports about accidents or incidents involving the step prior to the accident to the pursuer. Having heard some evidence about the reporting practice, I am not surprised that none of the witnesses who spoke to problems of tripping over the step made a report. I consider that it is particularly significant that Valerie Finch who was a new employee and was plainly embarrassed and concerned by her accident and the continuing risk which she perceived existed, did not understand that this was a reportable incident. She is plainly an intelligent woman who had the opportunity to receive any information given by the defenders about reportable incidents. She reached the position of Vice Dean of the Business School but did not ever deduce from any information given to her by the defenders that such incidents should be reported.

[21] Philip Glen gave evidence inter alia about his reports 6/2 and 6/10 of process. He was present in court to hear the factual evidence of witnesses led by counsel for the pursuer before he gave evidence. He inspected the locus but at a time when the ramp, not the step, was in place. His reports were based mainly on the photographs 6/5 and 6/11 of process.

[22] I do not consider there was merit in the criticisms made of the evidence of Philip Glen. The fact that he did not see the step at the locus because the locus had changed does not in my opinion undermine his opinion. He explained his opinion about the photographs. He heard the factual evidence. He saw no reason to depart from his opinion. The defenders, in my opinion, did not put forward any good reason to persuade him to do so. The main difference between the approach of Philip Glen and James McDonald is that the former identified the step in the condition and location that it was as a hazard. James McDonald identified it as a step which should be highlighted in the way that a step is often highlighted. He did not consider any hazard warning was necessary.

[23] I accept the evidence of Philip Glen that the trip risk presented by the presence of the single step at the point where it was located was of a high order. I also accept that the degree of this risk was exacerbated by the factors which he lists in paragraph 6.2 of his report, 6/10 of process. The pursuer did not give any evidence that she noticed the skirting board. That in my opinion does not detract from the evidence of Philip Glen that the skirting board was a factor in creating the general appearance of the step to which he referred as an "optical illusion".

[24] James MacDonald in cross examination appeared to concede reluctantly that the trip risk of the single step where the accident occurred was a potential problem. He appeared however to have convinced himself that the edging strip which was applied was a sufficient and suitable warning when the tonal differences of carpet and tiles are also taken into consideration.

[25] I am of the opinion that James MacDonald, prior to and post accident, had not given sufficient consideration to the type of risk and hazard presented by the single step in a corridor circulation area a few steps from the door. This was not a step in a flight of stairs where the edging supplied might have been adequate to draw attention to the stair edge in circumstances where a person using the stair would be aware that there is a stair and the edging is to draw attention to the position of the stair edge. I consider, however, that the step in this case was a hazard which people would not expect to find in a corridor circulation area. Philip Glen, was of the opinion that the step required as a minimum to have some form of warning to alert people to the fact that the circulation area beyond the door was not flat and that a step existed. He did not accept that the tonality and edging of the step which was provided served that purpose. I agree.

[26] I accept that the way to avoid the hazard of the step was, for example, to remove the step and provide a ramp. This was done by the defenders after the pursuer's accident. There was also available a cheap and very easy solution to provide a warning of the hazard created by the step by way of common warning signs such as applying yellow and black hazard tape to the step.

[27] The solicitor advocate for the defender tried to persuade me that the combination of the colour tonality, the different texture and type of floor coverings and the edging which was provided on the step was sufficient to draw attention to the step in that location. I could certainly be persuaded that such a result might have been achieved by the appropriate choice of contrasting colour and texture and edging if the step became so visible that it could not be said to be a hazard at the locus. But the circumstances in this case, in my opinion, are very different. It is plain from the evidence that the shades of grey flooring which were the result of the decoration choices with the black and aluminium edging to the step did not achieve such visibility. In my opinion, the "greyness" and the decision to extend the carpet up the sides of the lowered area at the door entrance did much to obscure rather than reveal the existence of the step. That is illustrated in 6/5/2 of process. With the configuration and decoration which existed, I am of the opinion that only something very obvious by way of warning would be sufficient to obviate the real risk of potentially serious injury which existed.

Liability

[28] In light of the facts which I find established, I turn now to consider whether the pursuer has established liability under and in terms of Regulation 5(1), 12(1) and 12(3) of the 1992 Regulations. It was not disputed that Regulations 5(1) and 12(1) impose an absolute duty on employers such as the defenders in terms of the Regulations. In contrast, Regulation 12(3) is framed in terms of "reasonable practicability". The solicitor advocate for the defenders conceded that there was no attempt by the defenders to invoke a reasonable practicability defence in respect of Regulation 12(3) in the factual circumstances of the present case. He submitted that Regulation 5(1) and Regulation 12(3) were not applicable to the circumstances of this case but accepted that Regulation 12(1) would apply if I accepted "that the floor or surface of the traffic route" because of the presence of the step was not suitable in the sense that the step, even with the tonal differences and edging which existed, presented a real risk of injury. To that extent in relation to Regulation 12(1), there was no dispute about the law to be applied.

[29] In view of my findings in relation to the facts, I had no difficulty in concluding that the step was a hazard and presented a real risk of injury including potentially serious injury. As I have explained, I was not persuaded that the defenders had successfully eliminated the hazard by the tonal variation of floor coverings and the edging which had been applied to the step. I conclude that there is a breach of Regulation 12(1).

[30] I share some of the reservations expressed by Lord Kingarth in Delaney in paragraph [15] of that case about the applicability of Regulation 5(1). I also have some difficulty in applying the regulatory framework in terms of Regulation 12(3) to the facts of this case. There was some discussion in submissions about the difficulties and overlap which may occur in the application of these Regulations but the issues were not exhaustively considered. For that I should express some gratitude. In view of my clear finding in respect of the breach of Regulation 12(1), I do not consider it necessary in the circumstances of the present case to make any definitive findings in respect of Regulation 5(1) and Regulation 12(3).

Contributory negligence

[31] The final issue to be considered is the submissions on behalf of the defenders that the pursuer should be considered contributory negligent to the extent of 50%.

[32] I accept that there was a duty on the pursuer to take reasonable care to watch where she was placing her feet and to take reasonable care to take account of her surroundings. I have given careful consideration to the submissions on behalf of the defenders in relation to this issue. I have reached the conclusion, however, that there is no sound factual basis on which to find the pursuer contributory negligent. The pursuer had taken only a few steps into an area in which one could reasonably expect the floor to be flat. She entered the building from the outside in bright daylight and her impression was of "greyness". The step was not marked in a way to alert her to a hazard. Her impression was that the floor was flat. The grey carpeting up the front of the step and the sides, in my opinion, added to that impression of greyness and flatness. I accept that the pursuer did not see the step. In my opinion, the main reason for that was the absence of any clear warning such as hazard markings to alert her to the step. The incident occurred very quickly. There is no evidence that the pursuer was not taking care for her own safety. She looked down when she entered on to the grey carpet and the impression she obtained was that the floor was flat.

Conclusion

[33] In these circumstances I pronounce decree for payment by the defenders to the pursuer of the sum of £15,500 with interest thereon at the rate of 8% per annum from 2 March 2011 until payment. I reserve all questions of expenses.