SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Bonomy Lord Philip	[2012] CSIH 51 XA82/11 OPINION OF THE LORD JUSTICE CLERK in appeal by TERENCE CONNELLY Appellant; against WHITBREAD PLC Respondent: ______

Appellant: Party

Respondent: Macpherson, solicitor advocate; Simpson & Marwick

8 June 2012

Introduction

[1] This is an appeal from a decision of Sheriff Principal B A Kerr QC dated 29 October 2010 by which he refused an appeal by the present appellant against a decision of Sheriff James Spy at Paisley Sheriff Court dated 30 March 2009. This is an action of reparation in which the appellant sues for damages in consequence of an accident that he sustained at the defender's premises. Sheriff Spy, having held a proof before answer, granted decree of absolvitor.

[2] This case has had an unfortunate history. The action was raised in or about September 2004. After a long and convoluted procedural history that is too painful to recite, the proof was conducted in three instalments between 18 December 2007 and 11 April 2008. The issue in the case was short and clear-cut and the evidence was in short compass. The sheriff issued his judgment on 30 March 2009.

[3] The appellant appealed to the Sheriff Principal. The Sheriff Principal heard the appeal on 7, 8 and 15 July 2009. He issued his judgment on 29 October 2010.

[4] This appeal came before us on 11 May 2012.

[5] The appellant has in the past been represented by solicitors; but, for whatever reason, he conducted the proof and both appeals as a party litigant. We would have been willing to consider continuing this appeal, even at this late stage, to enable the appellant to be legally represented. However, when we raised that possibility with him, he declined to ask for a continuation and said that he was content to conduct the appeal himself.

The facts

[6] The respondent operates a leisure club at Arkleston Road, Renfrew under the brand name of David Lloyd Club. On 30 October 2001 the appellant and Dr Gerry McKaig went to the club to play tennis on an indoor court. The court had a carpeted surface. It had been installed in about February 2000. The surface was of a type widely used throughout the leisure industry in the United Kingdom and fitted to indoor tennis courts by various leisure enterprises. The carpet in this case was supplied and manufactured by Desso DLW Support Systems (Desso).

[7] At this date there was a sign placed at or near the court under the name of Desso. It said

"Please look after your facility and adhere to the following guidelines.

Wear correct footwear and X no black-soled shoes;

X no chewing gum, X no cigarettes

X no soft drinks, X no glass bottles."

The sign did not specify any particular type of tennis shoes that were to be worn on the court and it appears that no notice of that kind was displayed anywhere else on the premises.

[8] The appellant had not previously played tennis on such a surface. He was wearing tennis shoes with a herringbone or weave tread pattern. These are known as gripped tennis shoes. He had bought them to play tennis on indoor sliding surfaces of the type that he had previously experienced at other David Lloyd clubs. Herringbone or weave tread patterns are commonly found on tennis shoes manufactured by companies such as Wilson and Reebok.

[9] Dr McKaig was wearing carpet slipper tennis shoes that had no grip on the soles. These can be used by players on carpeted tennis courts. They allow free movement and do not stick to the surface.

[10] When warming up the appellant found that his feet "stuck" to the carpet surface. Thereafter he and his partner began to play a competitive game. Soon afterwards the appellant moved forwards towards the net to play a volley. His foot jarred to a halt. It had become firmly held by the surface of the carpet. This caused the appellant to fall heavily to the floor. He landed with the whole weight of his body on his left arm. As a result of that he sustained serious injuries to his arm that continue to restrict his life, and inevitably have caused him considerable loss of earnings.

[11] After the accident signs were erected at the respondent's premises stating "Non-marking smooth soled tennis shoes on carpet courts."

The sheriff's judgment

[12] Sheriff Spy found that as at the date of the accident no manufacturers' guidelines were issued as to the wearing of specific types of tennis shoes on specific types of court surfaces. Tennis players chose the shoes that suited them best, the primary considerations being comfort, support and cost. He also found that signage displayed at or near tennis courts is ignored by the majority of players.

[13] The sheriff found in fact and law that the appellant had failed to prove that he had sustained loss, injury and damage through the fault and negligence et separatim breach of statutory duty of the respondent.

[14] Among the witnesses were Dr Anna Mayatt, Tennis Development Officer, Edinburgh Leisure Centre, Craiglockhart, Edinburgh; Peter Gordon, Development Officer with Tennis Scotland; Stuart Clark, a professional tennis player and tennis coach; Mark Crothall, General Manager of the David Lloyd Club at Renfrew since January 2006 and John Kent, Principal of Scotland's National Sports Centre at Largs. All of these witnesses were led by the appellant. The respondent led no evidence. The sheriff concluded that issues of credibility and reliability did not really arise. He accepted that the witnesses had done their best to give honest and reliable responses to the questions put to them. The issue at the end of the day was whether, even if all of the evidence presented by them on the appellant's behalf were to be accepted, there was sufficient evidence in law from which he could draw the necessary inferences that the respondent was in breach of the common law and statutory duties imputed to it.

[15] In essence the sheriff decided that he could not properly hold that at the date of the accident the respondent knew or ought to have known that there was a real risk of foreseeable injury to a tennis player wearing the "wrong" type of tennis shoes on a carpeted surface. He said that no evidence had been produced about the manufacturer's specification in relation to the use of the court or about any manufacturer's specification in relation to the use of a particular type of tennis shoe as at that date. He thought that it was clear from the evidence of the tennis-playing witnesses that no guidance was issued by the appropriate tennis authorities in 2001 as to the appropriate type of shoe to wear on any particular type of tennis court surface. All the evidence from those witnesses suggested that ultimately the decision as to what type of shoe to wear was one for each player. Some players found one type of shoe more comfortable than another. Some were not prepared to pay the cost of smooth soled tennis shoes. Others wore older rib-soled tennis shoes when playing on indoor surfaces. Some wore jogging or running shoes. No clear pattern emerged.

[16] The sheriff also considered it clear from the evidence of the tennis playing witnesses that any signage placed at or near indoor courts was placed there to protect the court surface from damage through the use of inappropriate footwear. It was not there to protect the player.

[17] Although it was clear that the signage at the locus had changed after the accident, the basis for that change had not been established. The appellant had called as a witness the current general manager of the premises, but it was clear that his background was in catering. The general manager was of the view that the signs had been in place since at least 2006 when he began his employment. He was clearly of the view that they were there to protect the court.

[18] The sheriff said that it seemed that the witness who came closest to supporting the appellant was Mr Kent. He spoke to rib-soled shoes sticking on indoor surfaces; but he was speaking of a rubberised surface. When shown a sample of the carpet used at the locus, he said he had never seen such a surface before. Although he said that smooth soled shoes for indoor courts were recommended by Tennis Scotland, that evidence was not supported by Mr Gordon. Mr Gordon was of the view that it would not have been dangerous for the pursuer to have worn a rib-type shoe on a carpeted surface. There was nothing in the nature of a trap for the player. The appellant's shoe was suitable and was widely used. He was not aware of any standards to be followed as to the type of shoes that were to be worn on a particular type of surface. The sheriff accepted that evidence. He considered that it was insufficient to bring home liability against the respondent.

[19] I should add however that the sheriff did not hold that the appellant simply lost his balance and fell over. He was satisfied on a balance of probabilities that the gripped sole of his shoe had stuck to the carpet surface and caused the fall.

[20] The sheriff was persuaded by the argument that the appellant had failed to prove that at the date of the accident the respondent knew or ought to have known that the playing of tennis on a carpeted surface with anything other than smooth soled shoes would give rise to a real risk of injury. No evidence had been adduced from which that conclusion could be reached. The evidence from the professional tennis-playing witnesses indicated that ultimately the choice of what kind of shoe to wear was for the player and that any advice on that matter by way of signage was largely ignored.

The judgment of the sheriff principal

[21] Before the sheriff principal the burden of the appellant's submission was that the sheriff had erred in failing to recognise that the respondent should have known at the date of the accident of the danger presented on carpeted court surfaces by shoes other than those with smooth soles; and that that was shown by the fact that the respondent had changed the signage after the accident. The sheriff principal found that the latter proposition was not of itself sufficient to demonstrate that the sheriff had fallen into error. In essence he considered that the fact that a precaution was taken after an accident did not of itself prove that the accident would have been foreseeable.

[22] The sheriff principal then considered the evidence from the appellant's witnesses. He rejected an argument that it was for the respondent, having installed the new court surface, to seek advice from regulatory bodies, manufacturers and suppliers and carry out a risk assessment. He was not persuaded that the Occupiers Liability (Scotland) Act 1961 imposed such a duty. Furthermore, it was not self evident that risk assessment and/or such enquiries should have been undertaken. There was no evidence that other occupiers in a similar position were known habitually to take the precautions desiderated by the appellant. The sheriff principal held that the sheriff was correct in concluding that the accident was not an event that the respondent should reasonably have foreseen. Having regard to the authorities on the question when an appellate court may substitute its own factual conclusions for those of the court below, he declined to substitute findings in fact for those of the sheriff.

Conclusions

[23] In my opinion, this appeal fails. In his clear and courteous submissions the appellant invited us to set aside the critical findings in fact made by the sheriff and to substitute findings in fact and in law in his favour. That course of action is not open to us. The basis of the sheriff's decision was that the appellant had failed to establish that before the accident, the risk that such an accident could result from the wearing of rib soled footwear was known to those involved in operating commercial leisure centres with carpeted tennis courts. It is significant that the sheriff made an express finding that the cause of the appellant's accident was the fact that his rib soled shoe stuck on the surface of the tennis court. It followed therefore that the foreseeability of such an event became the key issue. It may be that if the appellant had had evidence of other previous accidents of a similar kind, the outcome of the case would have been different. On the evidence, however, the sheriff had no basis for a finding in fact that the risk that eventuated in the appellant's case was known or ought to have been known to the respondent before the accident. The sheriff was therefore right in finding against the appellant on the question of foreseeability. Overall, there was sufficient warrant in the evidence for the sheriff's findings in fact. His findings in law were justified by the findings in fact. That being so, it follows that the sheriff was entitled to grant decree of absolivitor and that the sheriff principal was right in refusing the appeal.

[24] In my opinion, the appellant's lack of legal representation has been unfortunate for at least two reasons. The first is that it appears that certain of his witnesses whom he expected to be favourable to his case gave evidence favourable to the respondent. This clearly had an unsettling influence on the appellant at the proof and, I have little doubt, made his conduct of the case even more arduous. The second reason is that the appellant has placed before us certain evidence that he has found in the course of researches that he has carried out since the proof. This evidence relates to state of knowledge in the leisure industry of risks involved in the use of rib-soled footwear on a carpeted playing surface. Having read the evidence and having heard the appellant's comments upon it, I have the impression that if this line of evidence had been followed up before the proof, it might perhaps have had a significant bearing on the crucial issue. Unfortunately, this evidence comes before us far too late and is not the subject of a motion to have it received as res noviter veniens ad notitiam.

Disposal

[25] I propose to your Lordships that we should pronounce an interlocutor refusing the appeal and adhering to the interlocutor appealed against.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Bonomy Lord Philip	[2012] CSIH 51 XA82/11 OPINION OF LORD BONOMY in appeal by TERENCE CONNELLY Appellant; against WHITBREAD PLC Respondent: ______

Appellant: Party

Respondent: Macpherson, solicitor advocate; Simpson & Marwick

8 June 2012

[26] I agree that this appeal should be refused for the reasons given by your Lordship in the chair.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Bonomy Lord Philip	[2012] CSIH 51 XA82/11 OPINION OF LORD PHILIP in appeal by TERENCE CONNELLY Appellant; against WHITBREAD PLC Respondents: ______

Appellant: Party

Respondent: Macpherson, solicitor advocate; Simpson & Marwick

8 June 2012

[27] I agree that this appeal requires to be refused for the reasons set out by your Lordship in the chair. I also agree with your Lordship's comments in relation to the unfortunate effect of the appellant's lack of legal representation.