Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 165
PD279/12	OPINION OF LORD KINCLAVEN in causa JAMES FARMER Pursuer; against FTV PROCLAD (UK) LIMITED Defenders: ________________

Pursuer: Galbraith; Digby Brown LLP

Defenders: Love; HBM Sayers

17 October 2013

Introduction and Overview

[1] This is a reparation action. The pursuer alleges that he was injured at work on 9 February 2011. He avers that he suffered loss, injury and damage as a result of the defender's breach of common law and statutory duties and he seeks an award of damages.

[2] The defenders are the pursuer's employers. They deny liability. In any event, they allege contributory negligence on the part of the pursuer.

[3] The case came before me for proof - which was heard over several days.

[4] Ms Galbraith appeared for the pursuer. She invited me to grant decree against the defenders in terms of the first conclusion of the summons and to award damages in the sum of £22,000 together with an award of expenses.

[5] Mr Love appeared for the defenders. He sought decree of absolvitor.

[6] Having heard the evidence, and the submissions of counsel, I have decided:

• That the pursuer is entitled to reparation from the defenders; and
• That there should be a reduction of one-third in respect of contributory negligence on the part of the pursuer.

[7] Quantum is agreed in the sum of £22,000 on a full liability basis. That sum is inclusive of interest and net of any liability that the defenders may have in terms of the Social Security (Recovery of Benefits) Act 1997.

[8] Accordingly I shall grant decree for £14,667 Sterling. Interest will run thereon at the judicial rate from the date of decree until payment.

[9] In short, the pursuer's submissions prevail for the reasons and to the extent outlined below - but with a finding of contributory negligence.

[10] I would outline my reasons in more detail as follows.

The Background

[11] The pursuer was born on 3 March 1949. He is employed by the defenders as a maintenance manager. It is admitted that this court has jurisdiction.

The Pleadings

[12] In the Record, as amended, the central averments were as follows:

"Cond.4 On or about 9 February 2011 at approximately 10am, the pursuer was working in the course of his employment with the defenders at their premises at Viewfield, Glenrothes. The pursuer was working in the maintenance workshop. He required to go to a factory building which was on another part of the defender's premises. The fastest way to access the second building was to walk along the main road and thereafter down a grass verge onto a gravel path. Entry was gained to the premises by using fire doors. The grass verge was regularly used by other members of staff as a short cut and the defenders were aware that it was used in such a manner. On the day of the accident, the pursuer was walking across the grass verge and stepped down from this onto the gravel path. When he stepped onto the uneven surface of the gravel path he twisted his ankle, causing the loss, injury and damage as hereinafter condescended upon. The defenders were under an obligation to complete an accident book entry. Following the accident, the defenders prohibited the use of the short cut. The defenders' insurers have admitted primary liability for the pursuer's accident. With reference to the defenders' averments in answer, admitted the defenders' premises comprise more than one building. Admitted the grass area had a gradient, under explanation that the pursuer fell as he stepped onto the gravel path at the foot of the grass area. Quoad ultra denied.

Ans. 4 Admitted that on 9^th February 2011 the pursuer was working in the course of his employment with the defenders at their premises at Viewfield, Glenrothes. Not known and not admitted the nature and extent of the pursuer's activities. Not known and not admitted the nature and extent of the circumstances of any accident that befell the pursuer. Quoad ultra denied. The defenders' premises comprise more than one building. The two main buildings for the defenders' premises are separated by a road travelling through the industrial estate. There is a path constructed from gravelled chips joining the two buildings. The gravel path is a designated route between the buildings. Esto the accident occurred as averred by the pursuer (which is not known and not admitted) the pursuer chose not to follow the gravel path. The grass area where the pursuer met with his accident had a gradient. The grass at that time of the year would have been wet with dew and slippy.

Cond. 5 As a result of the accident the pursuer suffered loss, injury and damage. He was immediately aware of pain in his ankle. The pursuer was taken to the office in the maintenance department and was thereafter taken by ambulance to the Accident & Emergency Department of the Queen Margaret Hospital, Whitfield Road, Dunfermline, KY12 0SU. At the hospital, he was diagnosed with a fractured fibula. The pursuer was thereafter placed in plaster and discharged into the care of his GP ...

Ans. 5 Admitted that the pursuer suffered injury: that the pursuer attended Queen Margaret Hospital: that the pursuer consulted his GP. Quoad ultra denied. The pursuer sustained an isolated fracture of the fibula above the ankle syndemosis. ...

Cond 6 The pursuer's claim is based on the defenders' breach of their Common Law duty to take reasonable care for the pursuer and their breach of Statutory duty under Regulations 12 and 17 of the Workplace (Health, Safety and Welfare) Regulations 1992. The defenders' averments in answer are denied, except insofar as coinciding herewith.

Ans. 6 Denied. Esto the accident was caused to any extent through fault and negligence or breach of duty on the part of the defenders (which is denied) the accident having been caused through fault and negligence on the part of the pursuer, any award of damages should be modified in terms of the Law Reform (Contributory Negligence) Act 1945."

Joint Minute of Agreement

[13] There was a joint minute of agreement in which the following matters were agreed:

"1. Number 6/1 of Process is a medical report from Mr R C Marks, Consultant Orthopaedic Surgeon dated 4^th November 2011. The report is an accurate record of Mr Marks' examination of the pursuer on 26^th October 2011 and shall be held as equivalent to the oral evidence of Mr Marks.

2. Numbers 6/4 and 6/15 of Process are the pursuer's medical records from his GP practice, The Markinch Medical Practice and are what they bear to be.

3. Number 6/5 of Process are the pursuer's medical records from Queen Margaret Hospital and are what they bear to be.

4. Numbers 6/20 and 7/5 of Process are aerial maps showing the defenders' premises.

5. Numbers 6/16 and 6/21 of Process are photographs showing different views of the defenders' premises. The first two photographs in 6/16 were taken in November 2011. The remainder of the photographs in 6/16 and 6/21 were taken in June 2011.

6. Numbers 7/1, 7/4 and 7/6 of Process are photographs showing different views of the defenders' premises. The photographs in 7/1 were taken on 15^th March 2012. The photographs in 7/4 were taken on 21^st September 2011 by Mr Stan Anderson. The photographs in 7/6 were taken on 14^th November 2012.

7. Number 6/14 of Process is a health and safety notice issued by the defenders to their employees on 15^th February 2011.

8. Number 7/3 of Process is a medical report from Mr I H Annan, Consultant Orthopaedic Surgeon dated 20^th March 2012. The report is an accurate record of Mr Annan's examination of the pursuer on 20^th March 2012 and shall be held as equivalent to the oral evidence of Mr Annan.

9. Number 7/7 of Process is a RIDDOR form completed by Stan Anderson on 2^nd March 2011 in relation to the circumstances of the pursuer's accident.

10. In the event that the defenders are found liable to make reparation to the pursuer, quantum is agreed in the sum of £22,000. This sum is inclusive of interest and net of any liability that the defenders may have in terms of the Social Security (Recovery of Benefits) Act 1997.

11. All copies are to be agreed as the equivalent of principals of what they bear to be."

Productions

[14] The productions for the pursuer were as follows:

6/1 Medical Report dated 4 November 2011 by Mr RC Marks particularly at pages 2 and 4.

In relation to "history of injury" Mr Marks noted at page 2:

"Mr Farmer told me that on 9 February 2011 he was walking outdoors at his workplace when he twisted his left ankle on an uneven surface. He heard a crack and had severe pain in the ankle. He felt faint. He was unable to take weight on the injured foot."

In his "opinion and prognosis" section. on page 4, Mr Marks states inter alia:

"1. This man suffered a minimally displaced spiral fracture of the left distal fibula. The mechanism to produce this would be an eversion/external rotation stress and it is consistent with his history of a twisting injury on uneven ground."

6/2 Order and Certificate from Dr Stewart, Markinch Medical Practice, 19 High Street, Markinch, Glenrothes, KY7 6ER.

6/3 Inventory of Documents.

6/4 Medical records recovered under said Order and Certificate from Dr Stewart, The Markinch Medical Practice, 19 High Street, Markinch, Glenrothes, KY7 6ER (pages 1 to 13).

6/5 Order and Certificate from Queen Margaret Hospital, Whitefield Road, Dunfermline, KY12 0SU.

6/6 Inventory of Documents.

6/7 Medical records recovered under said Order and Certificate from Queen Margaret Hospital, Whitefield Road, Dunfermline, KY12 0SU (pages 1 to 12).

6/8 CD of x-rays.

6/9 Letter from Mr Marks dated 08 February 2012.

6/10 Occupational Health comments to management from Alba Care dated 14 March 2012 (2 pages).

6/11 Wage information in respect of the pursuer from 11 August 2010 to date (5 pages).

6/12 E-mail dated 2 February 2012.

6/13 E-mail dated 27 February 2012 (2 pages).

6/14 Health and Safety Notice.

6/15 Medical records recovered from Dr Stewart, The Markinch Medical Practice, 19 High Street, Markinch, Glenrothes, KY7 6ER.

6/16 Photographs (pages 1 to 8).

6/17 Supplementary medical report prepared by Mr Marks, dated 28 November 2012.

6/18 Signed certificate from FTV Proclad International Limited.

6/19 Letter and wage information provided by FTV Proclad (UK) Limited (pages 1-13).

6/20 Aerial map.

6/21 Photographs (x2).

6/22 Report prepared by Strange, Strange and Gardiner, dated 16 January 2013 particularly at paragraphs 3.1, 3.2, 4.2 to 4.5, 5.2, 5.3, and 5.5.

[15] The productions for the defender were as follows:

7/1. Photographs numbers 7/1-9 of process of Defenders' site.

7/2 Copy wages records (5 pages)

7/3 Report by Mr I H Annan, Consultant Orthopaedic Surgeon dated 20^th March 2012.

7/4 Photographs of accident locus taken by Stan Anderson of the defenders on the 21^st September 2011.

7/5 Aerial photograph taken from Google maps showing the route the pursuer is thought to have taken on the day of the accident. Compiled by Stan Anderson of the defenders.

7/6 Photographs taken by David Wardle on the 14^th November 2012.

7/7 Copy RIDDOR report completed by Stan Anderson c/o FTV Proclad (UK) Limited.

Authorities

[16] I was also provided with the following texts and authorities:

1. McCue v North Lanarkshire Council 2006 SLT 693 particularly at paragraph [9];

2. Regulation 12, Workplace (Health, Safety and Welfare) Regulations 1992/3004;

3. Regulation 2, Workplace (Health, Safety and Welfare) Regulations 1992/3004;

4. Redgrave's Health and Safety (8^th Edition) pages 938 to 941;

5. McCully v Farrans Limited [2003] NIQB 6 at paragraphs [10] and [13];

6. Caerphilly County Borough Council v Button [2010] EWCA Civ 1311 at paragraphs 12 and 21;

7. Marks and Spencer plc v Palmer [2001] EWCA Civ 1528 at paragraphs 1, and 25 to 27;

8. McGhee v Strathclyde Fire Brigade 2002 SLT 680 at paragraphs [10] to [12];

9. Gilmour v East Renfrewshire Council, a decision of Temporary Judge Reid QC dated 5 December 2003 at paragraph [54];

10. Regulation 17, Workplace (Health, Safety and Welfare) Regulations 1992/3004;

11. Munkman on Employer's Liability (15^th Edition) pages 553 to 563 at paragraphs 20.47 to 20.49;

12. Redgrave's Health and Safety (8^th Edition) pages 938 to 947;

13. Marks and Spencer v Palmer [2001] EWCA Civ 1528 at paragraphs 1 to 3, 10, 12, 25, and 27;

14. Home Office v Lowles [2004] EWCA Civ 985 at paragraphs 3, 10, 13, 15 and 17;

15. Taylor v Wincanton [2009] EWCA Civ 1581 at paragraphs 21 and 22; and

16. McGhee v Strathclyde Fire Brigade 2002 SLT 680 at paragraph [10].

The Witnesses

[17] I heard evidence from the following witnesses:

1. James Farmer, the pursuer;

2. David Wallace, a fellow employee;

3. James Garry, BSc(Eng) CEng MIMechE, a consulting engineer;

4. James Craig, another fellow employee;

5. Victoria Anderson, solicitor; and

6. Stanley Anderson, group Health and Safety Manager.

[18] Thereafter I heard the submissions of counsel, which were broadly along the following lines.

The Pursuer's Position

[19] This case relates to an accident at work on 9^th February 2011. Ms Galbraith submitted that it was not disputed that the pursuer suffered an injury to his left ankle while walking between two buildings on the defenders' premises in the course of his employment. Quantum has been agreed by joint minute at £22,000. The sole issue in dispute is liability.

The Evidence

[20] Ms Galbraith invited me to accept the evidence of the pursuer. She submitted that he gave evidence in a measured and straightforward manner. He was prepared to make concessions, for example he accepted there was an alternative route inside the Viewfield building. He was clear as to the key elements of the case.

[21] Ms Galbraith also commended the evidence of Mr Wallace. He was no longer working with Proclad, and accordingly may be thought not to have any potential sympathy for either the pursuer or his employer. His evidence accorded with the pursuer on key aspects. Any inconsistencies were explicable given the time since the incident, and the speed with which events unfolded. It was important to take into account Mr Wallace's proximity to the accident.

[22] Ms Galbraith also asked me to accept the evidence of Mr Garry. Although he had not visited the locus, he felt able to offer his opinion based on the numerous photographs of the area. This is not a case where a particular defect is alleged, such as where a paving slab has eroded or there is a pot-hole in a road. The pursuer's case was that the ground of the traffic route was uneven. Mr Garry was able to comment on that solely from the photographs, and did not think measurements or a site visit would be of great benefit. Mr Garry was able to assist by providing an opinion as to the hazards posed by ground left to grow in an uncontrolled way, particularly down a slope, and to explain how grass and gravel interact where there is no defined edge.

The Facts

[23] Notwithstanding the position on record, there did not appear to be any dispute that the route used by the pursuer on the day of his accident was an accepted and regularly used route. Both the pursuer and Mr Wallace gave evidence that most, if not all, employees used the 'red route' [as shown in No 7/5 of process], certainly as regards walking down the embankment to the fire exit. The pursuer confirmed that this included not only maintenance engineers, but the other manager at the factory.

The Locus

[24] As to the nature of the locus, the photographs lodged gave a good and consistent impression of the ground and surrounding area. The photographs that were taken closest in time to the accident were those contained in No 6/16 of Process (aside from the first two, and the last two), although those in No 7/1 were taken in March 2012 and so were closer in terms of the time of year. However, although the photographs were taken at different times and under different weather conditions, it was submitted that all of them show that the area outside the fire exit was unkempt, littered with debris ("rubbish" according to Mr Wallace) and hazardous. In particular, it was submitted the photographs show that the ground leading from the slope to the fire exit was uneven, overgrown and poorly maintained.

[25] Ms Galbraith submitted that the evidence of the pursuer, Mr Wallace and Mr Garry all demonstrated that there was not a clearly marked area of grass, with a separate and distinct gravel path. There was no clearly defined and maintained edge or border between the grassy slope and the gravel path. The surface of the route was uneven, and its contours were hidden by clumps of grass and vegetation. The grass had overgrown the path, and the gravel had been 'kicked' into the grass. It could not be said with any precision where the grass ended and the gravel started.

[26] In addition to the photographs, the Court had the benefit of evidence from Mr Garry in relation to the hazards posed by ground such as this. He spoke of clumps of tufty grass and vegetation growing 'wild', which caused different consistency of coverage and an uneven surface. He said the ground underneath unkempt grass could undulate significantly. He explained why difficulties would be encountered where there was no defined edge between a grass area and a gravel path - the grass would grow in indiscriminately, and over the gravel and make it difficult to perceive the ground underneath. He also described how the ground at the bottom of an embankment can be eroded due to debris being washed down the slope.

The Accident

[27] As to the circumstances of the accident, I was asked to accept the evidence of the pursuer and Mr Wallace.

[28] The pursuer gave evidence that he went over on his ankle due to an indentation in the ground. It was submitted that he was to be commended for not being dogmatic about his evidence in this regard. He did concede in cross examination that he could not be certain, however when pressed on the point he said that it was an indentation in the ground that caused him to stumble. He had marked on number 6/21 of process the area where he was injured.

[29] The defenders challenged the pursuer's account in relation to the accident - suggesting that he said at the time he had slipped. Ms Galbraith said it was not clear what the purpose of this was. It was not suggested to the pursuer that he was lying or mistaken about the circumstances of the accident. It may be thought curious if he were. What would be the difference from his perspective whether he slipped or went over due to an uneven surface. Although he would probably not be aware of the point, it is submitted that if he had slipped then liability would probably be beyond doubt. He could have no interest to lie about this matter. The defenders did not aver the alternative scenario of the pursuer slipping. That was perhaps understandable, given the likely outcome on liability. Accordingly, Ms Galbraith was left wondering as to the purpose of this line of attack.

[30] However, whatever its purpose, it was submitted by Ms Galbraith that the evidence painted a consistent picture of the pursuer going over on his ankle due to uneven ground, and that ought to be accepted. The evidence of Mr Wallace was consistent with the pursuer's account. Mr Wallace was first on the scene, and described seeing the pursuer very soon after hearing his cry and by that time he was on the concrete plinth, holding his leg. There was no suggestion at that stage the pursuer had slipped or fallen. It should also be noted that the pursuer told Mr Marks on 26^th October 2011 that he "twisted his ankle on an uneven surface" (see No 6/1, p.2)

[31] Further support for the mechanism of the injury can be obtained by having regard to the nature of the injury itself. Mr Marks stated that the type of injury that was suffered was consistent with history of twisting injury on uneven ground (see his first report, No 6/1 at p.4: the first paragraph of his opinion).

[32] Mr Garry said that, while it was possible to go over on an ankle on flat ground, the risk of such an occurrence "greatly increased" where the ground was uneven. Ms Galbraith also referred me to McCue v North Lanarkshire Council 2006 SLT 693, Lord Glennie, paragraph 9.

[33] Accordingly, Ms Galbraith invited me to find, on a balance of probability, that the pursuer suffered a twisting injury to his ankle, due to standing on uneven ground. She submitted that from the pursuer's point of view this was unforeseen unevenness and that there should be no finding of contributory negligence (see further below).

Common Law

[34] Dealing first of all with the pursuer's case at common law, Ms Galbraith outlined her position along the following lines.

[35] The evidence clearly demonstrated there was an unsafe place of work and in the face of a foreseeable risk of injury, the defenders failed to take reasonable care for the pursuer's safety.

[36] This case was straightforward. It was clear even from the photographs alone that this route was fraught with hazards and was an accident waiting to happen. The ground at the foot of the grassy slope was uneven, and it was reasonably foreseeable that someone would sustain injury by losing their footing.

[37] It may be thought that the dangerous nature of the route had been tacitly accepted by the defenders - given the steps taken to stop the use of this route after the pursuer's accident:

·      The fire escape door was closed and secured;

·      The route was forbidden, and a safety notice was issued to that effect;

·      A large red warning sign was erected, telling employees that they used the route at their own risk.

[38] These steps acknowledged that this was a hazardous route. All of these steps could easily have been taken before the pursuer's accident. Mr Garry said the simplest step was simply barring the fire door. That could have been very easily achieved before the accident, at little or no cost or inconvenience to the defenders. In failing to take steps to either maintain this route or stop its use, the defenders breached their common law duties to provide a safe place of work.

Workplace Regulations

[39] In relation to the pursuer's statutory case under the Workplace (Health, Safety and Welfare) Regulations 1992, Ms Galbraith outlined her position along the following lines.

Regulation 12

This was a traffic route (Regulation 12).

[40] What constitutes a traffic route is considered in Redgrave's Health and Safety (eighth edition). A route which it is custom and practice to use without objection (even if to do so is fraught with obvious risks) can be traffic route covered by the Regulations.

[41] Ms Galbraith referred to: McCully v Farrans [2003] NIQB 6 at paragraphs [2], [10] and [11]; and Button v Carephilly County Borough Council [2010] EWCA 1311 at paragraphs [12] and [20].

The surface of the traffic route was not suitable (Regulation 12(1)).

[42] Regulation 12(1) provides that the surface of a traffic route shall be suitable for the purpose of which it is used. Regulation 12(2) provides further specification of this duty - which includes that the surface of a traffic route shall have no "hole or slope or be uneven or slippery so as, in each case to expose any person to a risk to his health or safety.

[43] Although this duty is strict, foreseeability of injury is relevant to consideration as to whether there was a risk to health or safety. The question is very much one of fact and circumstances in every case, and entirely a matter for the judge to determine.

[44] The construction of Regulation 12 was considered in: Palmer v Marks & Spencer plc [2001] EWCA Civ 1582, LJ Waller at paragraphs 25, 26 and 27. The proper interpretation of Regulation 12 was also considered by Lord Hamilton in McGhee v Strathclyde Fire Brigade 2002 SLT 680 at paragraph 10. Lord Hamilton adopted the interpretation of Lord Macfadyen in Anderson, that to be a 'real' risk of injury there need be no more than a foreseeable possibility. This approach was further adopted by Temporary Judge Gordon Reid QC in Gilmour v East Renfrewshire Council [2003] CSOH, paragraph 54.

[45] Ms Galbraith submitted that the uneven and unkempt ground at the foot of this slope was of such a state that there was a foreseeable possibility of injury. The risk was not de minimis. Accordingly, this traffic route was not suitable as required by the Regulation, and the defenders have accordingly breached their duties in this regard.

Regulation 17

[46] The duty in terms of Regulation 17 is strict. An employer must organise a traffic route in such a way that pedestrians can circulate in a safe manner. Ms Galbraith submitted that, for the reasons already mentioned, this route did not comply with these regulations. The fact that immediately after the accident the route was altered speaks for itself.

Contributory Negligence

[47] Ms Galbraith submitted that there should be no deduction for contributory negligence. She suggested that it was apparent from the nature of the ground where the pursuer fell that its unevenness was hidden. Because of the way in which the grass grew over the gravel, there was no way that the pursuer could tell what the ground surface would have been like. He was asked in evidence what would have avoided the accident happening, and he was unable to answer. There was no suggestion that he was rushing, running or otherwise walking in an inappropriate way. He was only doing what all other employees did.

[48] The defenders were under a strict duty in terms of the Workplace Regulations to provide traffic routes that do not present a risk of injury. In Ms Galbraith's submission, they failed to do so. In a situation where the defenders took absolutely no steps to maintain this route, or to make it safe in any way, it would not be equitable for the pursuer to be found to blame in any respect.

Final Submission for the Pursuer

[49] On the basis of the arguments set out above, Ms Galbraith invited me to grant decree against the defenders in terms of the first conclusion and to award damages in the sum of £22,000 together with an award of expenses.

The Defender's Position

[50] On behalf of the defenders, Mr Love invited me to grant decree of absolvitor.

[51] Put broadly, the defenders primary submissions were to the effect that the pursuer had failed to prove his case on Record.

[52] Firstly, taking into account all relevant factors, the pursuer had failed to prove that the gravel path was so uneven as to expose the pursuer to a risk to his heath or safety within the meaning of the Workplace (Health, Safety and Welfare) Regulations 1992;

[53] Secondly, and in any event, the pursuer had failed to prove that he sustained injury as a result of any unevenness that might have existed on the path - broadly he had failed to prove a causal connection between any unevenness in the gravel path and his accident; and

[54] Thirdly, even if the gravel path was not "suitable" within the meaning of the 1992 Regulations, that failure or breach was not causally connected to the accident because the evidence in the case points to the pursuer having sustained injury as a result of either slipping on the grassy slope or simply stepping onto the concrete plinth, rather than, as he avers, as a result of stepping down from the grassy slope onto the uneven surface of a gravel path and falling.

[55] If I was with Mr Love on any of those submissions then decree of absolvitor should be granted in favour of the defenders.

[56] If I was against Mr Love on those submissions, and the defenders are to be found liable, then a high degree of contributory negligence (two-thirds) ought to be attributed to the pursuer having regard to the whole circumstances of the case.

[57] Mr Love advanced his submissions under three headings:

1. The evidence;

2. The law - and how it may apply to the evidence insofar as relevant to the defenders' primary submissions; and

3. Contributory Negligence.

1. The Evidence

[58] In his written submissions, Mr Love set out in some detail the various features of the evidence which supported the defenders. I need not rehearse their full terms which I gratefully incorporate brevitatis causa. Parties are familiar with the contents.

[59] Suffice it to say that the pursuer was described as credible but of questionable reliability in relation to the critical elements which were required to prove his case. Mr Love highlighted various passages from the pursuer's evidence (in bold) where there were variations between the evidence and the pleadings. The photographs were taken at different times.

[60] It was pointed out that although Mr Marks, FRCS, said that the injury the pursuer suffered was consistent with what the pursuer describes, he did not exclude an alternative mechanism as being causative. There was also a question about whether the pursuer's injury was an inversion or an eversion injury.

[61] Mr Wallace was described as credible and relatively reliable. His impression was, inter alia, that the pursuer had stood on the concrete plinth (outside the fire-door) and heard a crack.

[62] Mr Love submitted that the evidence of Mr Garry was of limited value to the court. Mr Garry had not visited the locus. He could not say if any defects were present at the time of the accident. He could not provide measurements of any unevenness, or locate the unevenness or say whether it related to where the pursuer maintained he fell. People can go over on their ankles on perfectly flat surfaces. There were a number of possible explanations. Mr Garry was entitled to make reasonable inferences from facts ascertained in the course of his investigations, whether by virtue of his own investigations or by virtue of papers provided to him, but he was not entitled to speculate, for example about hidden matters below grass.

[63] In relation to the defender's witnesses, Jamie Clark was a neutral witness, suggested Mr Love.

[64] Victoria Anderson was credible and reliable. She was not cross-examined about what she had discussed with Jamie Clark - although her evidence was disputed in evidence by Mr Clark. She recalled Mr Clark stating that the pursuer had mud on his overalls and that he had seen skid marks on the grassy slope where the pursuer had fallen. This gave support to an alternative location and mechanism for the pursuer's accident.

[65] Stanley Anderson was reliable and credible submitted Mr Love. He visited the pursuer at hospital and at home. He said that the pursuer told him he had slipped. That provided the basis for the content of the RIDDOR Report No 7/7 of process.

[66] In conclusion, Mr Love submitted that there was no evidence of what it was that caused the pursuer to twist his ankle, where it may have been/was located and what its dimensions might have been.

2. The Law

[67] Mr Love accepted, in general terms, that duties were owed by the defenders to the pursuer at common law and under the Workplace Regulations.

[68] However the onus was on the pursuer to prove his case and that he has failed to discharge that onus.

The Common Law

[69] Pursuer was an experienced employee. Mr Love submitted that the pursuer knew that he shouldn't have gone via that route although it was accepted that a habit had built up of using it.

[70] Mr Love submitted that there was no evidence as to what it was that caused the pursuer to twist his ankle. There was no evidence about other similar incidents. There was no evidence about complaints. There was no evidence about the nature, existence and extent of any defects that may have been present on the pathway. For example there was no evidence to allow the court to consider whether risk of injury was reasonably foreseeable - in a McClafferty v BT 1987 SLT 327 sense. There was no evidence about how long they might have been there for or what a reasonable system would have detected.

[71] Without evidence in relation to these matters the court could not assess what might or might not have been reasonable.

[72] For all those reasons it was Mr Love's submission that the pursuer's common law case fails.

Workplace (Health, Safety and Welfare) Regulations 1992

[73] The pursuer offered to prove that his accident was caused by stepping down from a grass verge onto the uneven surface of a gravel path.

[74] Mr Love submitted that the pursuer had to prove that any unevenness that existed in the gravel path exposed him to a risk to his health and safety. However, there was no evidence that would allow the court to assess that on any "qualitative" basis.

[75] Even if the court was to accept on balance that the pursuer twisted his ankle when he stepped down from the verge onto the gravel path, the fact that he did so (if that is what he did) was not determinative of the state of the path (in the words of Lord Hamilton in McGhee v Strathclyde Fire Brigade).

[76] It was not disputed that, given the weight of the evidence in this case, the grass slope and gravel path fall to be seen as part of a traffic route in the defenders' workplace.

[77] Mr Love also referred me to the following texts and authorities from the numbered list:

1. Munkman on Employer's Liability, 15^th Edition, page 553, particularly at 20.43 to 20.45, 20.46, 20.47, 20.48 and 20.49;

2. Redgrave, footnotes to sections 12 and 17 (already referred to by Ms Galbraith);

3. M & S v Palmer, Lord Justice Waller at paragraphs 1, 2, 3, 10-19 and 25 to 27, and Lord Justice Schiemann, at para 31;

4. Lowles v Home Office, Lord Justice Mance at paragraphs 3, 10, 13, 15 and 16;

5. Taylor v Wincanton, Lord Justice Sedley at paragraphs 6, 7, 13 to 15, 18, 21 ("everything therefore comes back to the presence of the gap and whether it rendered the traffic route unsuitable...") and 22 ("...it appears to me that it is not possible to say that this was an unsuitable part of a traffic route...") and Lord Justice Waller at paragraph 24;

6. McGhee v Strathclyde Fire Brigade, Lord Hamilton (also referred to on behalf of the pursuer).

[78] In McCue v North Lanarkshire Council there was evidence before the court that allowed for a qualitative assessment of the irregularities in the path allowing the court to determine whether a risk of injury existed. That was not so in this case. In M &S v Palmer the situation was similar in relation to an 8-9mm strip.

[79] Mr Love submitted that a qualitative assessment of any unevenness of the gravel path was required before the court could determine whether that unevenness gave rise to a risk to health and safety. In this case there was no evidence of the location let alone the dimensions of the unevenness. It is not every unevenness that exposes a person to risk to his health and safety (McGhee v SFB).

[80] In this case there was no evidence about the location, extent or dimensions of any unevenness in the path (the pursuer had failed to prove risk). Accordingly the pursuer's case at common law and under regulation 12 failed.

[81] The pursuer had also failed to prove a causative link between any unevenness and the pursuer's accident. Accordingly, his case failed.

[82] The pursuer also failed to prove where his accident occurred. There was evidence that he had slipped on the slope, nothing to do with path, and that he had stepped onto concrete plinth.

[83] Those submissions on behalf of the defenders applied equally to regulations 12 and 17.

[84] For those reasons, so submitted Mr Love, the defenders should be assoilzied.

3. Contributory negligence

[85] In relation to contributory negligence Mr Love emphasised that the pursuer was an experienced manager. He had health and safety responsibilities. He knew there was an alternative route but he nevertheless used the grassy slope. He accepted he had failed to keep a proper lookout. He accepted that if he had kept a proper lookout the accident wouldn't have happened.

[86] Mr Love also referred to paragraphs 17 to 19 in Lowles v Home Office.

[87] In conclusion, Mr Love submitted that this was a case where, in the circumstances, a high degree of blame ought to be attributed to the pursuer. He suggested that two-thirds would be an appropriate reduction in respect of contributory negligence.

Discussion

[88] It might be helpful to begin by mentioning some (albeit not all) of the salient features of the evidence in this case.

[89] James Farmer, the pursuer, was 63 years of age at the time of the proof. He gave evidence to the effect that the ground where the grassy slope meets the gravel was uneven (photograph No 3 in No 6/16 of Process). There were dips in it. The route shown in yellow (photographs 5 and 6 in No 7/4 of Process) was never used. The route used by employees was the one shown in red. On 9 February 2010 the pursuer was using the red route when he "broke his leg". He was walking down the slope (shown in the photographs) when he went over on his ankle. He did not fall to the ground. He said that when you come to the bottom of the slope your steps maybe get a little bit quicker. After the accident, employees were told not to use that route. Signs were erected (No 6/16 of Process, photograph 7 and No 7/6 of Process, photograph 5). When asked to describe what it was that caused him to go over on his ankle he replied "I would say it was the indentation on the ground where I was walking". In cross examination the pursuer accepted that he had supervisory responsibilities and a role in discipline and safety. He accepted that he took a short cut. He twisted his ankle and stumbled but he did not fall. There were no witnesses to the accident. When it was put to him that he did not know what it was that made him twist his ankle he replied "No, possibly not". He said that did not tell anyone that he had slipped on the hill. The photographs showed a path worn down by usage coming down the slope. "I assume it was one of the indentations. I would say it was one of the indentations. I went over on my ankle." "When I stepped down from the grass onto the gravel, the indentations, that's when my accident happened." When it was put to the pursuer that, even if his account was correct, he just wasn't looking where he was placing his feet as he took a short cut he replied "Possibly". In re-examination, the pursuer said that after the accident he was feeling physically sick and passed out twice. He could not point out exactly the exact spot. He only knew roughly the area. The piece of ground was, however, uneven.

[90] David Wallace was employed by the defenders as a maintenance technician at the time of the pursuer's accident. He said that everybody used to go the shortest route. He used it up to ten times per day (No 6/16 of Process, photograph 6). It was just like a walk through a field on a slope basically. The ground surfaces at the bottom of the slope were "rough". "It's not smooth". There might be some holes or bumps in it. It was just a rough bit of ground. The ground at the bottom of the slope was slightly uneven. There was a concrete plinth outside the fire exit door. Mr Wallace did not witness the pursuer's accident, but he saw the pursuer standing on the concrete plinth outside the fire exit door clutching his shin. He said to the pursuer "You've probably sprained your ankle". Mr Wallace helped the pursuer indoors. Just as the pursuer sat down, Mr Wallace saw the pursuer's eyes roll back, his head went back and he appeared to go unconscious. The pursuer was taken to hospital by ambulance. He was complaining of severe pain. After the accident the fire exit doors were closed. They were no longer used as access points. Glass bolts were put on the fire doors about 2 or 3 days later. In cross-examination Mr Wallace said that the account which the pursuer gave at the time was that when he came off that slope his foot went onto the plinth he heard a crack. The pursuer said he didn't know what happened. The pursuer was at approximately the concrete bit. It could have been where the concrete joined the rubbish. It was at the bottom of the slope. The pursuer would not be speaking lucidly. He could remember the pursuer was in extreme pain and almost collapsing.

[91] James Wallace Reid Garry, BSc(Eng) CEng MIMechE, is a Consulting Engineer. He prepared the report which is No 6/22 of Process. I can refer to that report for it full terms but, for reasons touched upon by Mr Love, I found Mr Garry's evidence to be of little assistance. Mr Garry had not visited the premises and his report was "purely on the papers". He did sit in court during the pursuer's case but in relation to the risk of injury he added little to the evidence of the pursuer, Mr Wallace and the photographs.

[92] Jamie Clark was an electrician employed by the defenders. The pursuer was his immediate supervisor. He did not witness the accident but he stayed with the pursuer until the ambulance arrived. He said he did not remember anything about the pursuer's overalls. The pursuer said to him that he "went over on his ankle at the bottom of the hill". In cross examination, he said that he did not say to Victoria Anderson that the pursuer had mud on his overalls.

[93] Victoria Anderson is a Solicitor with HBM Sayers who act for the defenders. Ms Anderson spoke of discussing the accident with Jamie Clark. Ms Anderson said that Mr Clark had told her that he had seen a skid mark on the slope and mud on the pursuer's overalls. There was no cross-examination of Ms Anderson.

[94] Stanley Anderson was the defender's group health and safety manager. He had responsibility for 6 different sites - including the locus of the accident. He went to see the pursuer in Accident and Emergency. The pursuer seemed in a bit of shock and referred to "a bit of a stumble with his foot". Mr Anderson went to see the pursuer at home within a day or two. He claimed that the pursuer said that he slipped. He denied the suggestion that he had put the word "slipped" in the pursuer's mouth. The "short cut" route which the pursuer had taken was not an acceptable route but it was happening. The use of the grassy slope was not an approved route as far as Mr Anderson was concerned. The pursuer would have known that. In cross-examination Mr Anderson denied that the pursuer said that he had gone over on this ankle. He denied saying to the pursuer "We'll just put it down as slipped." He did not accept that he might be mistaken. Mr Anderson agreed that the "red route" was not a suitable route. It was not a safe way to go between the two buildings.

[95] I have taken into account the evidence and everything said by counsel.

[96] I accept that the evidence was not as clear as some other examples of specific measured defects in flooring or walking surfaces. However, that does not necessarily prevent the pursuer succeeding in this particular case. Questions of fact and degree arise.

[97] I also accept that there were variations between the pleadings and the evidence. However, I did not regard those variations as fatal to the pursuer's case.

[98] In my opinion, on the evidence adduced, the pursuer has established liability on the part of the defenders on a balance of probabilities.

[99] I found the pursuer and David Wallace to be credible and reliable witnesses. They were doing their best to assist the court.

[100] However, I derived little assistance from the evidence of Mr Garry, for the reasons touched upon by Mr Love. His evidence included an element of speculation.

[101] Jamie Clark said in evidence that the pursuer's account to him after the accident was that he went over on his ankle at the bottom of the hill. I accepted that evidence.

[102] Victoria Anderson called into question some of the evidence given by Jamie Clark (about skid marks and the pursuer's overalls) but that did not alter my conclusions in relation to the essentials of the pursuer's case.

[103] Where they differed, I preferred the evidence of James Farmer (the pursuer) to that of Stanley Anderson (for example in relation to the question of slipping). When asked about Part G of the RIDDOR report No 7/7 of process (completed by Mr Anderson and purporting to describe what happened) the pursuer said "That's not the case."

[104] The pursuer was not entirely sure what caused him to go over his ankle but the evidence gave rise to a fairly clear inference (which I accepted) that it was as a result of the uneven surface and unsafe means of access afforded by the "red" route (shown in No 7/5 of process) at the point near the foot of the grassy slope where the pursuer injured himself.

[105] In my opinion, an employer exercising reasonable care for the safety of his employees would not, and should not, have allowed employees to use a route such as the "red route" shown in No 7/5 of process. There was a real and foreseeable risk of an employee going over on his ankle and sustaining injury on the uneven surface at the foot of the grassy slope- as in fact happened. An employer exercising reasonable care could and should have taken reasonable steps to obviate that risk of injury as by prohibiting the use of the red route, by closing the fire-door and by designating another safer route - as in fact happened after the accident.

[106] In my view, the defenders were in breach of their common law duties owed to the pursuer and the pursuer suffered loss injury and damage as a result.

[107] That is sufficient to decide this case in the pursuer's favour.

[108] However, I also agree with Ms Galbraith that this was a traffic route and that the surface of that traffic route was not suitable - a breach of Regulation 12(1)) of the Workplace (Health, Safety and Welfare) Regulations 1992/3004.

[109] The surface at the foot of the grassy slope was uneven so as to expose the pursuer to a risk to his health and safety, and the pursuer suffered loss injury and damage as a result.

[110] I was also persuaded that the defenders were in breach of regulation 17 - for similar reasons.

[111] The nature and extent of a qualitative assessment depends on the circumstances of the particular case in question. In the present case there was an uneven surface at the foot of a grassy slope on an unsafe route. The route was clearly a "traffic route". As a question of fact and degree that uneven surface was sufficient to give rise to a risk of injury and caused the pursuer to twist his ankle while using that traffic route.

[112] In my opinion, despite Mr Love's persuasive arguments, the pursuer has established a breach of the two regulations founded upon. In any event, the defenders were in breach of duties owed to the pursuer at common law - for the reasons already outlined above.

[113] I was satisfied that the defenders' breaches of duty were a cause of the pursuer's loss, injury and damage.

[114] I reached those conclusions essentially for the reasons outlined by Ms Galbraith (as set out above).

[115] In relation to contributory negligence I have reached a different conclusion from Ms Galbraith - who suggested there was no contributory negligence.

[116] However, I am not prepared to go so far as Mr Love - who suggested two-thirds contributory negligence.

[117] The fact that there was a real and foreseeable risk of injury has consequences not only for the defender in relation to liability but also for the pursuer in relation to contributory negligence. This was not simply a technical breach of a strict statutory provision or regulation. The risk of injury in the present case could and should have been apparent not only to the defenders but also to experienced employees who had supervisory and disciplinary functions to perform - such as the pursuer. It was the pursuer's duty to take reasonable care for his own safety and to avoid exposing himself to unnecessary risk of injury. He nevertheless used the 'red route' and in light of his own (candid) account he requires to bear some responsibility.

[118] In my view, the defenders should bear the major share of responsibility for this accident but there should be a significant finding of contributory negligence.

[119] In my opinion, in the whole circumstances, it would be reasonable to reduce the pursuer's award of damages by one-third for that reason.

[120] Quantum has been agreed at £22,000 on full liability basis.

[121] Allowing a reduction of one-third for contributory negligence gives a net figure of £14,667.

Decision

[122] In the whole circumstances, and for the reasons outlined above, I shall find the defenders liable to the pursuer in damages in the sum of £14,667 Sterling with interest thereon at the judicial rate from the date of decree until payment.

[123] I shall reserve the question of expenses meantime.