Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 194
PD1562/12	OPINION OF LORD PENTLAND   in the cause   EMMA STALKER   Pursuer;   against   GREATER GLASGOW & CLYDE HEALTH BOARD   Defender;   ________________

 

Pursuer: Waugh, Anderson Strathern LLP

Defenders: Reid, NHS Central Legal Office

 

13 December 2013

Introduction

[1] In this personal injuries action the pursuer, who is a senior staff nurse at Stobhill Hospital in Glasgow, seeks damages from her employers, Greater Glasgow and Clyde Health Board, as reparation for a serious injury to her left wrist, which she sustained in an accident at work on 12 August 2009. On the first morning of the proof, I was advised that damages had been agreed in the amount of £20,964.17, inclusive of interest to 29 October 2013. That left for resolution at the proof: whether on the evidence the pursuer had established liability against the defenders and, if so, the extent of any finding of contributory negligence.

[2] The following facts were not in dispute. At the time of the accident the pursuer was employed as a staff nurse in the ophthalmology department in the new Ambulatory Care and Diagnostic Hospital ("ACH"), which had been constructed on the Stobhill Hospital campus and which had opened in about June 2009. It is evident from photographs taken shortly after the pursuer's accident and it emerged also from the evidence given at the proof that some construction work was still continuing at the time of the pursuer's accident. At about 2.00 pm on the day of the accident the pursuer left her department to walk to the patients' and visitors' car park in order to move her car. I shall have more to say later about why she did so. Having moved her car, the pursuer then started to make her way back to her department on foot. It was raining heavily at the time. There were a number of routes the pursuer could have taken for her return journey, but the one she chose was by means of an uncovered external set of concrete steps leading down from the hill on which the patients' and visitors' car park was situated to the ACH. The pursuer was descending the stairway when she slipped and fell, sustaining a serious fracture of her left wrist. I did not understand it to be disputed that the stairway formed part of an accepted pedestrian route through the hospital grounds connecting the minor injuries unit at the top of the hill to the ACH at a lower level.

[3] The stairway, which had been constructed about one year before the accident, comprised five flights of concrete steps, each flight having four or five steps and being separated from the other flights by intermediate tarmac landings. There were 22 steps in all. The steps were formed from pre-cast concrete sections. On either side of the steps there were metal hand rails, which were bolted to the landings and to the steps. The pursuer fell on the first tread of the second flight of steps from the top. At the material time the pursuer had an open golf umbrella in her right hand and was holding onto the left hand rail with her left hand. Although the pursuer advanced a number of grounds of action in her pleadings, by the end of the proof her counsel insisted in only one of these. This was to the effect that the tread on which the pursuer fell had not been laid so as to allow for a sufficient downward slope from back to front. The steps were designed to be self-draining and the pursuer's contention was that the step on which she fell (as well as some of the other steps) did not have a gradient of a sufficient incline to allow rain water to drain off its surface. The alleged effect of the failure to provide an adequate gradient was that, in conditions of heavy rainfall, water was liable to accumulate in puddles on the surface of the step, thereby creating a risk of slipping.

 

The evidence led for the pursuer

[4] In addition to her own evidence, the pursuer led evidence from: Mrs Grace Cox, Mrs Anne Dean, Miss Stacey Brown, Mr William Rainey, Miss Susan Coupland and Mr Peter Cheesman.

[5] In her evidence, the pursuer explained that, as she approached the steps, she noticed a man wiping his feet on a set of metal tactile strips laid in the ground at the top of the steps. The pursuer said that this drew her attention to the fact that the steps were likely to be wet. She, therefore, stopped and wiped her own feet on the strips. The pursuer was wearing flat shoes with ridged rubber soles; they provided a good grip. The shoes were lodged as productions and, on examining them, it is clear that they would be expected to provide a good grip. The pursuer said that she began to walk slowly down the steps. The man whom she had noticed was just ahead of her. He turned out to be Mr Sidney Wilson, who worked as a health and safety adviser for the defenders and who happened to be working that day at Stobhill Hospital. The steps were wet and, according to the pursuer, "covered in water". The pursuer said that for this reason she was walking really slowly and was definitely not rushing. As the pursuer stepped onto the first step on the second flight, she suddenly slipped and fell, landing on her left wrist. She was immediately aware of being in a lot of pain. She noticed that the step was very wet. She said that it was the rain water on the step which caused her to slip. Mr Wilson came back up the steps to help her, as did a lady who was walking behind her; this was Mrs Grace Cox. She accompanied the pursuer to the minor injuries unit. Later that day the pursuer was admitted to Glasgow Royal Infirmary where she underwent surgery on her wrist.

[6] In cross-examination, the pursuer admitted that in the morning she had parked her car in the patients' and visitors' car park because she did not have a permit for the staff car park. She accepted that staff were not allowed to park there. She had to move her car because there was a four hour time limit. She was sure that there were puddles of rain water on the steps and that they were slippery due to this. She denied that she had been rushing.

[7] The pursuer gave her evidence in a manner which struck me at the time as somewhat rehearsed and unconvincing. I formed the impression that certain parts of her account, for example her description of the exceptionally cautious manner in which she descended the steps and her statement that they were "covered in water", were exaggerated and did not ring true. I am not suggesting that the pursuer set out to mislead the court, but I am bound to say that she did not impress me as a reliable historian.

[8] Mrs Grace Cox testified that on the day of the pursuer's accident she had driven her friend, Mrs Anne Dean and Mrs Dean's aunt to Stobhill Hospital because the latter had an out-patient appointment. She dropped off her passengers and went to park her car on a road near to the patients' and visitors' car park. It was raining quite badly. She noticed the pursuer (whom she did not know) heading towards the stairway. According to Mrs Cox, the pursuer rounded the corner "just rushing as anyone would in the rain" and then her feet "just went away from under her". Mrs Cox's recollection was that the pursuer was at the top of the stairway when she "skited". Her impression was that the pursuer lost her footing on the tactile strips. She was not sure exactly where the pursuer fell, however. Mrs Cox went to assist the pursuer and noticed that the metal strips were "pretty treacherous". The pursuer was some way down the steps and was in a slumped or seated position. Mrs Cox said that as she approached the steps, she herself "skited" on the tactile strips, although she was being careful. She said that it had been raining quite heavily and that everything underfoot was very wet. She accepted that she could not honestly say what the condition of the steps themselves was. Mrs Cox helped the pursuer to the minor injuries unit. She spoke to someone at reception about the steps and asked for a note to be made about the accident; it had been a nasty one and Mrs Cox was troubled by it. She then met up with Mrs Dean and told her what had happened. Concerned about the accident, the two ladies both went to reception at the minor injuries unit where they left their contact details. They felt that it was unsatisfactory that they were not asked to complete an accident report form at this stage. Because of their concerns about what had happened, Mrs Dean wrote a letter to Stobhill Hospital on behalf of them both. Sometime later Mrs Cox received two telephone calls from a man asking her about the accident. She felt that his manner was abrasive and that he was just "firing" questions at her. She thought that it would have been more appropriate for her to be written to, instead of being contacted on her mobile phone. In cross‑examination, Mrs Cox accepted that her principal concern had been the slippery condition of the tactile strips at the top of the steps. This, she said, was her main focus.

[9] Mrs Cox was a credible witness and was, I thought, doing her best to assist the court. As she herself frankly admitted more than once, her recollection of the details of what took place had however faded with the passage of time. In particular, she was unable to provide a reliable description of the condition of the steps (as opposed to the tactile strips) at the material time.

[10] Mrs Anne Dean said in evidence that it had been a "filthy" day when Mrs Cox drove her and her aunt to the hospital. After she had left her aunt at the out-patient department, Mrs Dean met up with Mrs Cox, who told her about the "awful" accident she had witnessed. At Mrs Cox's suggestion, the two ladies went to the minor injuries unit to check that the pursuer was all right. They left their names and addresses at reception. They also went to the steps and Mrs Dean noticed that they were slippery. She recalled trying a few of the steps whilst holding onto the hand rail. Mrs Dean remembered going up to a man in a hard hat and observing to him that the stairs were not fit for purpose and that whoever had passed them as such should be shot. His response, as Mrs Dean graphically put it, was simply to grunt at her. Mrs Cox had been very keen that the ladies should follow up the accident and Mrs Dean, therefore, asked her husband, who is a solicitor, to draft a letter for her. She copied it out in her own hand and sent it to Stobhill Hospital. She recalled receiving what she thought was a generic reply, but nothing further. In cross-examination, Mrs Dean said that it was the tactile strips that were slippery and that had been the part which she and Mrs Cox had tested. In re-examination the witness said that she remembered going up and down the steps beside the handrail.

[11] I found Mrs Dean to be a credible witness, but as with Mrs Cox it was plainly the case that her detailed recollection of events had diminished significantly over the years since the accident. It seemed to me that her main concern, like that of her friend, had been the slippery state of the tactile strips; she acknowledged as much in cross-examination. She was less sure in her evidence about the condition of the steps themselves.

[12] Miss Stacey Brown is a staff nurse at Stobhill Hospital and a colleague of the pursuer's in the ophthalmology department. She confirmed that the pursuer was not entitled to park in the patients' and visitors' car park. She said that the pursuer could have parked nearby on Balornock Road, as Miss Brown herself did. That would have been further away from the department, however. Miss Brown said that she had occasionally used the steps between about April 2009 and about 2011, although not very often. She had not used them since 2011. She had never used the steps on a daily basis. She felt that her feet might slip on the tactile strips at the top of the stairway. When it was wet she would always use the hand rail because, as she put it, you could feel your feet going when walking down the steps in wet weather and wintery conditions. She said that she approached the steps with caution, although she had never actually fallen. She could not recall ever having seen water lying on them. She had never complained about the safety of the steps or made an entry on the DATIX reporting system. In cross-examination, she accepted that the DATIX system was intended to provide a means for reporting near-misses and not merely accidents. She said that she had not received training in the system; her understanding was that this was not provided to staff at her level.

[13] Mr William Rainey lives in the Balornock area, not far from Stobhill Hospital. He explained that he suffers from carpal tunnel syndrome and that he had attended the hospital in connection with this condition on two occasions. The second visit was on 8 December 2011 when he was to receive steroid treatment for his wrist condition. On that occasion a taxi dropped off Mr Rainey and his wife near the top of the steps. This was the first time he had used them. He recalled the weather being inclement with high winds and heavy rain. Mr Rainey said that he was wearing heavy duty Caterpillar style working boots. When he was about half way down the stairs he felt his foot going from underneath him. There was, he felt, something amiss with the stairs. They were very wet. Mr Rainey fell slightly backwards and grabbed hold of his wife. Fortunately, she was holding onto the hand rail and he was not injured. He did not submit a complaint and put it down to being a near miss. Mr Rainey was not cross-examined.

[14] Miss Susan Coupland is another staff nurse in the ophthalmology department. She spoke to having used the steps on a handful of occasions in dry and wet weather after she started working at Stobhill in about April 2009. She thought that some of the steps were a bit slippery underfoot when wet; others were fine. She said that she had lost her footing, but had never fallen. She had never made a complaint. She had not thought much about it at the time. Miss Coupland recalled having "re-walked" the steps in about May 2013 shortly before a discharged diet of proof in the present case, at which she had been due to give evidence. It had been raining and she had found some of the steps to be slippery. She thought that there had been some pooling of water on what she described as the flat areas. In cross-examination the witness confirmed that she was aware of the DATIX incident reporting system and that it was intended to cover near-misses as well as actual accidents.

[15] To the extent that the evidence of Miss Brown, Mr Rainey and Miss Coupland related to their having slipped on the steps, counsel for the defenders objected to it on the basis that there was no notice of any such evidence in the pursuer's pleadings; these were focussed entirely on the pursuer's accident and contained no suggestion that there was a longstanding defect in the steps such that other persons had lost their footing on them. I heard the evidence under reservation as to its competency and relevance. In his closing submissions, counsel renewed the objection. He added that the evidence was of no relevance since it could have no bearing on the condition of the steps on the date of the pursuer's accident; Mr Rainey's evidence related to an incident subsequent to the accident and that seemed to be the position with the evidence of the two nurses as well. It is unfortunate that no notice was given of this line of evidence in the pursuer's pleaded case, which is, I agree, very much focussed on the condition of the steps on the day of the accident. With some hesitation, I am, however, prepared to treat the evidence as admissible since I do not consider that the defenders suffered any material prejudice by its being heard. It seems to me, however, that the evidence of these three witnesses, insofar as it related to the condition of the steps on other occasions, does not advance the pursuer's case. The witnesses spoke to minor difficulties of the type often experienced when descending steps in wet weather and it is notable that none of them considered reporting matters; in particular, neither Miss Brown nor Miss Coupland appears to have thought that a DATIX report was merited. Overall, I formed the impression that none of these witnesses lent support to the view that the steps presented a significant risk to health and safety.

[16] The final witness led for the pursuer was Mr Peter Cheesman, a retired senior lecturer in building technology at Heriot-Watt University. He had inspected the steps on two occasions (24 July 2012 and 12 June 2013) and had prepared a report and taken measurements and photographs. It had not been raining during either of his visits. Mr Cheesman carried out standard slip resistance tests on the step where the pursuer fell. Such tests involve the use of a portable slip resistance meter incorporating a rubber slider. The idea is to replicate the movement of the lower leg as it swings forward through an arc. There was no dispute between Mr Cheesman and the defenders' expert, Mr Hill that the slip resistance tests showed there to be a low likelihood of slipping on the step on which the pursuer fell. This was the case both in dry and also in what are known as "wetted" conditions. The tests in wetted conditions are, as I understand the methodology, carried out by spraying a small amount of water on the surface. This is the procedure approved by the UK Slip Resistance Group. Mr Cheesman explained that concrete steps of the type on which the pursuer fell are intended to be self‑draining. This requires them to have a sufficient gradient from back to front to allow rain water and debris to run off them. According to Mr Cheesman, it is well-recognised that if water forms pools and is not allowed to drain from the surface of steps, this is likely to give rise to a reduction in traction and, therefore, a danger of slipping. On his second visit Mr Cheesman measured the gradient of all the steps. He took a single measurement at each step. He found several of the steps to have a level gradient. He measured the gradient of the step on which the pursuer fell using a long spirit level of 1 metre in length; he acknowledged that this would have overhung the step to a significant extent. At the left side of the step, where he understood the pursuer to have fallen, he found the step to be completely level. Mr Cheesman said that good practice requires steps to be laid so that they have a gradient of about 1 per cent of the depth of the step. This is a rule of thumb, which would be known to an experienced building labourer. In laying the steps, a spirit level would be employed to achieve an appropriate gradient. In the present case the depth of the step on which the pursuer lost her footing is 300 mm. At one point in his evidence Mr Cheesman said that this meant that it should have had a gradient of about 3mm, although I noted that at another stage he said that a gradient of 2mm would be just as acceptable. During his second inspection, Mr Cheesman poured a larger amount of water onto the surface of the step than would be used in carrying out the standard slip resistance tests. This was to try to reproduce the conditions of heavy rain which he understood to have prevailed at the time of the accident. He found that the water ponded and formed a puddle; the water did not start to run off the step until a level of about 2 mm had accumulated on the surface of the step. It was Mr Cheesman's view that a build-up of 2 mm of water on the surface of the step would create a slipping hazard in the nature of what he described as an aquaplaning effect. A person's foot was liable, in such circumstances, to slide through the water and fail to displace sufficient fluid to allow the foot to make firm contact with the underlying concrete surface. This could lead to the person losing his footing.

[17] In cross-examination, Mr Cheesman acknowledged that on both of his visits the weather had been dry. The materials used in the construction of the steps were good and there was a low likelihood of slipping on the basis of the standard slip resistance tests. He accepted that, in measuring the gradient of the steps, allowance had to be made for a margin of error, particularly where one was dealing with dimensions as small as a millimetre or two. Mr Cheesman said that, in view of this, he would not take issue with Mr Hill's measurements of the gradient of the relevant step; these, as I will explain in due course, were that the gradient of the step was 1 or 2mm. Mr Cheesman had taken a single measurement at the point on the step where he understood the pursuer to have fallen. When asked about the photographs he had taken on his second inspection, Mr Cheesman accepted that they did not show much water on the surface of the step; the water had flowed over the front edge of the step, as could be seen from the photographs. Pressed on whether there would still be good slip resistance even when the steps were wet, Mr Cheesman's position was that the degree of resistance would be less. He thought that as soon as the surface became flooded or ponded, slip resistance would decline. He did not believe that the standard slip resistance tests could adequately replicate the wet condition of the steps in heavy rain.

 

Evidence for the defenders

[18] The first witness led by the defenders was Mr Sidney Wilson. As I have already explained, he was walking down the steps just ahead of the pursuer. At first Mr Wilson said that he thought it had been a fairly decent day. He thought that the condition of the steps was fine. He was not aware that he himself had taken any particular care whilst descending the steps. They were not wet or slippery and he noticed no puddles on them. He did not see the pursuer fall, but heard her cry out in pain. He turned round and saw the pursuer "crumpled" at the foot of the second flight of steps from the top. Mr Wilson thought that he had gone with the pursuer to the minor injuries unit. He did not recall another lady having been at the scene of the accident. After he had gone to the minor injuries unit, Mr Wilson then came back and looked again at the steps. He saw nothing on them which could have caused the pursuer to slip; they were all absolutely fine. Mr Wilson thought that he had been wearing leather soled shoes, although later in an email (referred to below) he said that he had been wearing "trainers". He thought that the tactile strips might have been a bit slippery under his shoes. Later that day Mr Wilson made an entry in his diary in which he recorded that the pursuer fell. He added the words "wet - no rain No defects ?Rushing" When asked about this entry, Mr Wilson accepted that the steps must have been wet at the material time and that it could have been raining. Mr Wilson was about to go on leave so he asked his colleague, Mr Robert Neil, to investigate the accident. On 13 August 2009 Mr Wilson sent an email in which he referred to the lady who had assisted the pursuer. He stated in the email that the steps were wet but no obvious defect was apparent. He went on in the email to say that he had asked Mr Neil to inspect the tactile strips at the top and bottom of the steps as he had found them to be "very slippy in the wet under my own trainers." Mr Wilson explained the nature and operation of the DATIX reporting system. It was an electronic system designed to record accidents and near-misses. He thought that nursing and other staff would be aware of the system and that all incidents, whether or not they resulted in injury, should be reported. Health and safety staff were responsible for reviewing entries made on the system. The system was well-known in the NHS. Because of his personal involvement at the time of the accident, Mr Wilson did not consider that it would have been appropriate for him to play any part in the formal investigation of it. He left that to Mr Neil. In cross-examination Mr Wilson agreed that the effectiveness of the DATIX system depended on the quality and content of the information entered. Members of the public were not entitled to make entries on DATIX.

[19] Mr Wilson struck me as doing his best to recall the circumstances surrounding the accident and his involvement in it. He frankly accepted that his recollection of matters was now imperfect on a number of points. I think one must, therefore, approach his evidence with some caution.

[20] The defenders led expert evidence from a chartered civil engineer, Mr Andrew Hill. In his report he set out the details and results of the slip resistance tests he carried out on the steps during his inspection on 14 March 2013. It had been raining on the day of his tests and there was rain during his inspection. As well as employing a slip resistance meter in the same way as Mr Cheesman, Mr Hill also used a device known as a roughness meter. His results were in conformity with those obtained by Mr Cheesman: the steps had good slip resistance with a low probability of someone slipping on them. This was the case in both dry and "wetted" conditions. Mr Hill acknowledged that the approved testing procedure involved the use of only a small amount of water, but he did not think that the addition of larger quantities of water would have any material effect on the slip resistance readings. In view of the limited size of the steps, their slight fall and the nature of the surface, he would be highly surprised if any significant pooling of water occurred. Even in wetted or puddled conditions, the steps would provide an adequate level of slip resistance and it was, in Mr Hill's opinion, highly unlikely that they would be adversely affected by puddled water to any significant extent. Mr Hill's visit coincided with a period of wet weather and his photographs showed that there was no standing water on the steps. Even if puddles did form on the steps, Mr Hill considered that there would still be a reasonable degree of slip resistance because there would be a sufficient amount of contact between the sole of the foot and the underlying concrete surface.

[21] About a month after his first inspection, Mr Hill paid a second visit to the steps for the purpose of measuring the gradient of the step on which the pursuer fell. He used a shorter spirit level than Mr Cheesman. Mr Hill considered this to be preferable because it did not overhang the step. He measured the gradient in several places on the relevant step. At the left side where the pursuer had fallen, he measured the gradient from back to front to be 1 mm. At the other end of the step he found the gradient to be 2 mm. He took a number of readings at different parts of the step to check overall accuracy. Mr Hill thought that differences of this minor degree of magnitude would be quite common and well within the tolerances to be expected when it came to laying pre-cast concrete steps of this type. It was also likely that the manufacturing process for the steps would give rise to slight variations in dimensions along the length of their surface; this could explain the difference in gradient as between the left and right ends of the step. He thought that the photographs taken by Mr Cheesman on his second visit showed that a fairly small amount of water had been poured on the step and that it had flowed over the nosing onto the step below. He questioned Mr Cheesman's view that water would not drain off the step until a level of about 2 mm had been reached. He had never heard of an aquaplaning effect in the context of pedestrians and did not believe that any such effect would be produced by 2 mm of standing water.

[22] In cross-examination, Mr Hill accepted that 1 per cent of depth was a reasonable gradient. Therefore in the present case a gradient of 3 mm would be appropriate. I note that he did not say that such a gradient was essential. He accepted that a gradient of less than that could be a source of limited criticism of the construction of the steps. He believed, however, that the accepted testing procedure was a good means of testing slip resistance in all conditions, including heavy rain. On the step where the accident happened there was a slight fall in gradient; on most of the other steps the fall was greater. Even if puddles did form on the critical step, there would still be good slip resistance in Mr Hill's opinion. When walking down steps the predominant movement of the foot is in a vertical direction and this would usually serve to displace most of the water in a puddle, thus allowing adequate contact between the sole of the walker's footwear and the surface of the step. Any water which was not displaced in this way would be most unlikely to cause problems.

[23] I found Mr Hill to be a careful, thorough and impressive witness. He gave his evidence in a manner which seemed to me to be characterised by fairness and balance. In their closing submissions counsel for both parties agreed that there was, at the end of the day, little significant difference between the two expert witnesses. Where any such difference does exist, I prefer the evidence of Mr Hill to that of Mr Cheesman, whom I found to be somewhat less exact and more prone to generalise.

[24] The final witness for the defenders was Mr Robert Neil, the health and safety official to whom Mr Wilson delegated responsibility for investigating the accident. Mr Neil said that he inspected the condition of the steps the day after the accident. The weather was cloudy and overcast, but dry. Mr Neil looked at all the steps and found no problem with any of them. He returned to examine the steps a few days later on the first occasion when it rained after the accident; this was on 18 August 2009. He could feel nothing unusual underfoot and did not think the steps were slippy. He said that there was no notable difference as compared with their condition when the weather was dry. He did not recall any puddles or pools of water having formed. Mr Neil also checked the tactile strips and did not find them to be slippery. Mr Neil went on to explain that he telephoned Mrs Cox to take a statement from her. His recollection was that she tended to talk over him and that she was insistent on expressing her conclusions rather than trying to address his factual questions. Mr Neil noted that she suggested that the pursuer had lost her footing on the tactile strips and then fallen down the steps a considerable way. She became angry with Mr Neil and accused him of being biased. As to the parking arrangements at the time of the accident, Mr Neil stated that the pursuer would have been well aware of the rules and, in particular, that she should not have parked in the patients' and visitors' car park. There were adequate parking facilities in a staff car park further away from the hospital buildings. When asked about the DATIX system, Mr Neil confirmed that he checked it regularly. He had never seen a report of anyone falling on the stairway.

[25] In cross-examination, Mr Neil explained that the steps had been constructed less than a year before the pursuer's accident. On 18 August 2009 (the date of his second inspection) the amount of rain was more than a drizzle, but less than a torrential downpour. As he saw it, the important point was that the surface was wet. He accepted that, knowing of the accident, he would have walked up and down the steps cautiously. With regard to his phone call to Mrs Cox, Mr Neil said that as soon as he explained who he was she began to rant at him. He denied firing questions at her. He had been trying to find out from her what had happened, but she had become very angry to the point where Mr Neil wondered whether the pursuer might have been related to her. He was not aware that Mrs Dean had written a letter to the hospital. If she had, she would have received a specific reply. They did not send generic replies to such letters.

[26] Mr Neil was, to my mind, an impressive and convincing witness. He obviously has a wealth of experience in health and safety matters. He explained that he had been a trade union safety representative for many years. He gave his evidence in a calm, moderate and assured fashion.

 

Conclusions on the facts

[27] Looking at the evidence as a whole, I am satisfied that the following basic facts have been proved. Firstly, I hold that it was raining heavily on the day of the pursuer's accident. That was clearly spoken to by the pursuer, by Mrs Cox and by Mrs Dean. I accept their evidence on this point. I note also that in his diary entry Mr Wilson appears to have referred to the steps being wet (although he also wrote the words "no rain") and in the email he sent the day after the accident he stated that the steps were wet. I am satisfied that at the time of the accident, as a result of heavy rain, the steps were wet. Secondly, I am prepared to hold that the pursuer fell at the point which she described in her evidence, namely the first step as she descended the second flight of steps from the top. I note that this has always been the pursuer's position. It is also consistent with Mr Wilson's evidence as to where she was when he turned round after hearing her cry out in pain. Insofar as Mrs Cox may have formed the impression that the pursuer fell on the tactile strips at the top of the steps, I think that her evidence on that particular point was mistaken. Thirdly, the only possible defect in the construction of the steps was the degree of gradient as between the back and the front of the step on which the pursuer fell. In every other respect the steps were not in any sense dangerous. They had been well constructed and they were fitted with a good hand rail on both sides. Furthermore, in most weather conditions there can be no doubt that the steps provided adequate slip resistance. That was the clear opinion of both the expert witnesses who testified. The only question is whether they did not do so in conditions of heavy rain.

[28] I turn next to examine the evidence as to the nature and significance of the gradient (or lack thereof) of the step on which the pursuer fell. Mr Cheesman was of opinion that each step should have had a gradient of at least 1 per cent from back to front. He suggested that this was standard building practice and would have been known by any competent building labourer of some years' experience. According to Mr Cheesman, the step on which the pursuer fell had been laid so that it was entirely flat with the result that, in conditions of heavy rain, water would form on the surface in a puddle and would not drain away. Mr Hill agreed that the steps should ideally have been laid so as to have a gradient of about 1 per cent, but he was clear that he would not regard that as an essential requirement. Mr Cheesman took a single measurement at the side of the step where the pursuer fell and found the step to be level at that point. It seems to me, however, that the measurements of gradient carried out by Mr Hill are likely to have been more accurate than the single measurement taken by Mr Cheesman at the critical point. Mr Hill used a shorter spirit level, which did not overhang the front of the step. Using a longer spirit level is likely to be less accurate. More importantly perhaps, Mr Hill took a number of readings at various points on the step. He found that the step had a slight slope in the order of 1 to 2 mm. I accept his evidence on that point and reject the evidence from Mr Cheesman that the relevant step was entirely flat. I find as a fact that the step had a downward incline from back to front of between 1 and 2mm.

[29] Finally, I accept the evidence given by Mr Hill that, even in heavy rain, the step on which the pursuer lost her footing provided adequate slip resistance and did not give rise to a material risk of a reasonably careful pedestrian losing his or her footing. The step had a slight gradient and I hold that this would have been sufficient to allow most rain water to drain off it. Like Mr Hill, it seemed to me that the experiment conducted by Mr Cheesman on his second visit supported that conclusion; Mr Cheesman's photographs show that the water he poured had run off the surface of the step and had not formed a puddle. Even if puddles were to form on the surface of the step, I consider that there would still be sufficient slip resistance for pedestrians. I accept Mr Hill's evidence that, in conditions of heavy rain, water would not be likely to stand in pools on the step and that a depth of 2mm is not likely to have accumulated on the surface of the step. Mr Cheesman's opinion about the likelihood of water forming puddles on the step really depended on his view that the step was entirely level, but on that issue I have found that he was mistaken. Moreover, I did not find Mr Cheesman's description of an aquaplaning effect convincing. Mr Hill said that he had never heard of such a phenomenon affecting pedestrians. Mr Cheesman's view on aquaplaning seemed to me to be somewhat far‑fetched. I accept Mr Hill's evidence that, even if puddles did form on the steps when there had been heavy rain, there would still be a reasonable degree of slip resistance because there would be a sufficient amount of contact between the sole of the foot and the underlying concrete surface.

[30] Mr Hill's views about the adequacy of the slip resistance even in wet conditions derive a significant measure of support from the evidence given by Mr Neil. As I have explained, I found Mr Neil to be an impressive and convincing witness. He carefully inspected the steps in fairly wet conditions shortly after the pursuer's accident and found them to be entirely safe. In particular, he noted that the steps had not become slippery. There was, he said, no difference as compared with their condition when the weather was dry. He did not recall any puddles or pools of water having formed. I accept Mr Neil's evidence on all these points.

[31] It follows that I conclude that the pursuer has not proved that the step on which she fell lacked adequate slip resistance at the time of her accident. I hold that the step had been laid so as to provide a sufficient gradient for it be self-draining to a reasonable degree. The step did not present a danger to a pedestrian taking reasonable care for his or her own safety, even in conditions of heavy rain.

 

Liability

[32] In her pleadings the pursuer founded on the defenders' alleged fault and negligence at common law and also on alleged breaches of regulations 5 and 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 (SI 1992/3004). In her closing submissions counsel for the pursuer abandoned the case brought under regulation 5. I propose to deal firstly with the question as to whether the pursuer has proved that the defenders were in breach of any obligation imposed on them under regulation 12.

[33] Regulation 12 provides as follows:

"12.- Condition of floors and traffic routes

 

(1) Every floor in a workplace and the surface of every traffic route in a workplace shall be of a construction such that the floor or surface of the traffic route is suitable for the purpose for which it is used.

 

(2) Without prejudice to the generality of paragraph (1), the requirements in that paragraph shall include requirements that-

 

(a) the floor, or surface of the 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; and

 

(b) every such floor shall have effective means of drainage where necessary.

 

(3) 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."

 

 

[34] In Ellis v Bristol City Council [2007] ICR 1614 the Court of Appeal held that regulation 12(1) and (2) applied to states of slipperiness which, though temporary in nature, occurred with a sufficient degree of frequency and regularity to give rise to a risk to the health and safety of the employees using the floor. Regulation 12(3) was intended, on the other hand, to cover transitory conditions which occur less frequently. The court observed that a judgment would have to be made on the facts of each case as to whether a hazardous condition arose with such frequency and regularity as to make the floor "unsuitable for its use". If it did, the duty on the employer would be strict. If the hazardous condition did not arise with sufficient frequency and regularity, the floor would be held to be suitable for its use, but the less onerous duty under regulation 12(3) would require the employer to do all that was reasonably practicable to avoid the presence of the slipping hazard. These observations seem to me to apply just as much to the surface of a traffic route as they do to a floor in a workplace.

[35] In the present case the pursuer led no evidence to show the frequency or regularity with which there might be sufficient amounts of rain water on the steps to give rise to a risk of slipping. By contrast, in Ellis evidence of prior accidents involving staff was led and there was evidence of steps taken by the employers to warn staff about the hazard in question. In my opinion, there is no basis in the evidence which would entitle me to reach any conclusion as to the regularity or frequency with which the steps were liable to become so wet as to give rise to a risk of slipping. Counsel for the pursuer's position on this issue was simply that it rains in Glasgow and that the steps were, therefore, likely to get wet. This approach, in my opinion, falls well short of showing that the steps were in a hazardous condition with such frequency and regularity as to make their surface "unsuitable for its use". Accordingly, the pursuer cannot, in my opinion, succeed on regulation 12(1) or (2).

[36] Even if I had been of the view that regulation 12(1) and (2) applied in the circumstances of the present case, I would have concluded that the defenders were not in breach of their obligations under those provisions. The correct approach to the interpretation and application of regulation 12(1) and (2) was set out by Smith LJ in Ellis where she adopted the approach taken by the Court of Appeal in Marks and Spencer Plc v Palmer[2001] EWCA Civ 1528. In summarising the correct approach Smith LJ said the following at paragraph 44:

"The court must consider all the relevant factors, as they would have appeared to an employer properly applying his mind to the question of suitability at a time before the relevant accident occurred. These factors will include the construction of the floor, including the nature or quality of its surface. They will include the purposes for which the floor was used and the circumstances of use. ... The factors will also include the likelihood of an accident occurring and the possible gravity of any injury which might occur. So, they will include the history of accidents or complaints and the gravity of injuries, if any, which have occurred. The court should then 'stand back' and decide objectively whether, in the light of those considerations, it can be said that the floor was 'suitable for the purpose for which it was used'."

 

It is clear from what Smith LJ said that regulation 12(1) imports an element of foreseeability. This was explained also by the Lord Ordinary (Lord Hamilton) in McGhee v Strathclyde Fire Brigade 2002 SLT 680 where his Lordship said the following at paragraph 12:

"Accordingly, I construe regulation 12(1) (as read with regulation 12(2)) as imposing ... a requirement that the constructional state of the floor immediately prior to the pursuer's accident be suitable in the sense of there being at that time no real risk of a person using it as a means of passage from the stairs to the muster room slipping and thereby sustaining injury."

 

In considering compliance with regulation 12(1) and (2) it is helpful also, in my view, to take account of what was said by Schiemann LJ in Marks & Spencer at paragraphs 33 and 34. His Lordship said the following:

"33 In law, context is everything. The context here is a shop, with it being expected that many people of varying degrees of physical mobility, in varying footwear and varying degrees of tiredness and attention, with varying amounts of bags and so on on their persons, will use this floor to walk on. But one has to bear in mind that these will be people who live, by and large, in the ordinary world, who walk on ordinary roads and who live in ordinary houses and move about in the way that we all do. The sort of slight rise which we have here occurs everywhere. One can hardly move for more than a few minutes without being exposed to whatever threat to health and safety such a rise may be said to constitute.

 

34 The ordinary person would not, without the doubtful help of a lawyer or philosopher, regard his ordinary walking about in the course of an ordinary day on such a floor as that with which we are presently concerned as exposing him to a risk to his health or safety. Nor would the employer when constructing the floor."

 

[37] In the present case, both Mr Cheesman and Mr Hill agreed that the steps would normally provide good slip resistance, even in so-called wetted conditions. One must bear in mind also that the steps were in an external location and were designed to be used in all types of weather. They were fitted with good hand rails on either side and no criticism was made of the materials from which they had been constructed. Moreover, there was no recorded history of anyone having slipped on the steps prior to the pursuer's accident and the steps had been in use for about a year before that date. At the end of the day, the only basis on which the steps were said to be unsuitable was that the gradient on the step where the pursuer fell was marginally too slight. I have held on the evidence that the gradient of the step was between 1 and 2 mm from front to back. Mr Cheesman suggested at one stage in his evidence that the gradient should have been 3 mm, although at another point he accepted that a gradient of 2 mm would have been adequate. Standing back from the detail of the evidence, it seems to me that it cannot be said that the steps were unsuitable merely because the gradient was around 1 mm less than it ideally should have been. Such an approach appears to me to call for an unrealistic degree of exactitude and to ignore the fact that there are bound to be minor variations in pre-cast concrete steps as a result of normal manufacturing tolerances or the manual processes involved in laying them. Moreover, I have held as a matter of fact that the gradient was sufficient to allow for a reasonable degree of slip resistance in all weather conditions and that water was not liable to remain standing on the step at a dangerous depth. If I may borrow the words used by Schiemann LJ in Marks & Spencer, an ordinary person would not regard walking down the steps as exposing him to a risk to his health or safety because the gradient of one step was about 1mm less than it ideally should have been. In the whole circumstances, I have reached the conclusion that the pursuer has not proved that the traffic route constituted by the stairway on which she fell was unsuitable for the purpose for which it was used. The defenders would not, in my opinion, have been in breach of regulation 12(1) even if that regulation had been applicable.

[38] As regards regulation 12(2)(a), I consider, for the reasons already set out, that the steps were not slippery so as to expose any person using them to a risk to his health or safety. In the circumstances of the present case, reliance on this particular regulation seems to me to add nothing to the pursuer's case brought under regulation 12(1).

[39] Regulation 12(2)(b) applies to floors and not to traffic routes such as the steps. The word "floor" should be given its ordinary meaning in the English language (Campbell v East Renfrewshire Council 2004 Rep LR 89). Accordingly, regulation 12(2)(b) has no application in the circumstances of the present case.

[40] Turning then to regulation 12(3), I note that in McGhee Lord Hamilton explained the ambit of this provision in paragraph 13 of his opinion as follows:

"Regulation 12(3) is concerned not with the constructional state of the floor but with obstructions or any article or substance on it which may cause a person to slip, trip or fall. The requirement is limited by the qualification of reasonable practicability but that qualification, in my view, relates at least primarily to what practical measures can reasonably be taken to keep the floor free from such things, whether in advance or, as in the present case, for example, of spillages, after they have come to be on the floor. It does not, in my view, relate to the question whether the substance can or cannot be anticipated as a cause of slipping. A measure of anticipation is, however, built into the words 'may cause' - which may be contrasted with 'causes' and 'is likely to cause'. In my view a similar measure of foreseeability is built in to the requirement under regulation 12(3) as is built in to regulation 12(1) as read with regulation 12(2). In the present case to establish a breach of regulation 12(3) the pursuer, in my view, must prove that immediately prior to his accident there was on the floor a substance ... which presented a real risk that someone might slip."

 

In approaching the issues under regulation 12(3) it seems to me to be important to have regard to a number of considerations. In the first place, I have already explained that I accept the evidence of Mr Hill that the step on which the pursuer fell gave rise to a low risk of slipping, even in wet conditions. I do not accept that the experiment conducted by Mr Cheesman on his second visit provides a secure basis for concluding that, in conditions of heavy rain, sufficient water would gather on the step to create a significant risk of aquaplaning. Mr Hill said that he had never heard of such an aquaplaning effect in the case of pedestrians and he doubted that it could occur. I accept his evidence on that point. As to whether the steps were in fact slippery at the time of the pursuer's accident, there is also the evidence of Mr Wilson. While I accept that certain aspects of his recollection may have been inaccurate (hardly surprising in view of the passage of time), I found him to be a credible witness when he said that he checked the condition of the steps immediately after the pursuer's fall and noticed no puddles on them. This fits with the evidence given by Mr Neil concerning his inspection of the steps in rainy conditions on 18 August 2009. As I have already said, Mr Neil impressed me as an experienced and level-headed witness. He inspected the steps on the first wet day after the accident in conditions which he said were somewhere between a drizzle and a downpour. He walked up and down the steps and found that they were not in any way slippery due to the accumulation of rain water. I accept Mr Neil's evidence on all these points. So far as the evidence of Mrs Cox and Mrs Dean is concerned, I acknowledge that they were independent witnesses. It seemed to me, however, that the focus of their testimonies was very much on the slippery condition of the tactile strips at the top of the steps rather than the surface condition of the steps themselves. On the evidence, I conclude that the pursuer has failed to prove that there was a substance, namely rain water, on the step "which may cause a person to slip" in the sense in which that phrase was interpreted by Lord Hamilton in McGhee. From this finding, it follows that the pursuer's case under regulation 12(3) cannot succeed.

[41] In any event, even if there was a substance on the steps which might cause a person to slip, I am satisfied that the defenders took all reasonably practicable measures to prevent this. The onus of establishing the defence of reasonable practicability lies, of course, on the defenders. As Lord Mance observed in Baker v Quantum Clothing Group [2011] 1 WLR 1003 at paragraph 82, like the common law duty to take reasonable care, the defence of reasonable practicability involves consideration of the nature, gravity and imminence of the risk and its consequences, as well as of the nature and proportionality of the steps by which it might be addressed, and the balancing of the one against the other. In my opinion, there were no reasonably practicable measures available to the defenders to prevent rain water from landing on the stairway. Rain water cannot be compared with a substance which has been spilled, dropped or knocked over. It is a wholly natural phenomenon and its presence from time to time on external steps cannot be avoided. In my opinion, it is quite different from a slippery substance which has been dropped or spilled on a surface. The defenders had seen to it that the stairway was provided with a good hand rail on either side and that the steps had a slip resistant surface. Moreover, I have held that the step on which the pursuer fell did have a slight and, I consider, sufficient gradient. I accept Mr Hill's view that a minimally increased gradient would not have made any practical difference. In all these circumstances, I am not persuaded that the pursuer has established her case insofar as it was based on a breach of regulation 12(3).

[42] I should mention, for completeness, that counsel for the pursuer drew my attention to Home Office v Lowles [2004] EWCA Civ 985, but that was a decision turning on its own particular set of facts and I do not think that it adds anything to the analysis in the present case.

[43] Counsel for the pursuer accepted that, insofar as the pursuer's case was based on fault and negligence at common law, the issues were no different from those arising under the regulations. I agree. Having held that the defenders duly fulfilled the statutory duties incumbent on them, it must follow that they exercised reasonable care for the pursuer's safety. In the circumstances, the pursuer's common law case cannot succeed.

[44] The result is that the defenders are entitled to be assoilzied.

[45] I should add that had I found the defenders liable to the pursuer for breach of statutory duty or in negligence, I would have held there to be a substantial measure of contributory fault on the pursuer's part. Counsel for the defenders suggested that the pursuer was negligent in having broken the parking rules, but this seems to me to be misconceived. That was not a direct cause of the accident. It was also said that the pursuer was at fault for having elected to use the stairway instead of taking one of the other routes back to her department. That too cannot be right in my view. The evidence was clear that the stairway was an accepted route for pedestrians in all weather conditions. Where I consider that the defence of contributory negligence does have merit is in relation to whether the pursuer took sufficient care for her own safety in descending the steps. The pursuer insisted that she was not rushing, but there was cogent evidence to contrary effect given by Mrs Cox. She recalled seeing the pursuer coming round the corner and just rushing as anyone would in the rain. Then she saw the pursuer's feet "skiting" from underneath her. At the time, this part of Mrs Cox's evidence struck me as having the ring of truth about it. I accept her evidence on that point and hold that the pursuer was probably rushing in the rain to get back to her department, having moved her car. In these circumstances, I would have been minded to hold the pursuer 50 per cent to blame for the accident.

[46] I have, however, granted decree of absolvitor and reserved all questions as to expenses.