Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 9
PD1875/11	OPINION OF LORD BRACADALE in the cause JOHN COWAN Pursuer; against THE HOPETOUN HOUSE PRESERVATION TRUST and OTHERS Defenders: ________________

Pursuer: Middleton; Russel Jones & Walker

Defender: Galbraith; DAC Beachcroft Scotland LLP

17 January 2013

Introduction

[1] On 5 September 2008 the pursuer suffered a serious fracture to his ankle when, making his way back to the car park after participating in a guided walk to observe bats at night, he fell into the ditch of the ha-ha at Hopetoun House. Damages were agreed in the sum of £35,000 and the case came before me for a proof on liability.

[2] The pursuer's claim is based on fault at common law and a breach of section 2(1) of the Occupiers Liability (Scotland) Act 1960 (the 1960 Act). He averred that having invited persons onto the premises which contained a dangerous man-made feature in the form of the ha-ha it was the defenders' duty to take reasonable care to ensure that they left the premises safely in the dark.

[3] In answer, the defenders averred that the ha-ha, which had been in existence since the eighteenth century, was a well- established, permanent and familiar feature of the landscape at Hopetoun House. It was not concealed. It presented no unusual or special dangers. There was no history of accidents or complaints relating to it. There was no duty on the defenders to protect the pursuer against such natural and obvious dangers. The accident occurred as a result of the sole fault of the defender.

Issues

[4] The issues which require to be explored are as follows. First, whether the pursuer has proved that the accident occurred in the manner averred by him. Secondly, whether the ha-ha constituted a natural and obvious danger in respect of which there was no duty of care on the defenders. Thirdly, if there was a duty of care on the defenders, whether the steps taken by Peter Stevens, who was employed by the defenders as a countryside ranger, were adequate to fulfil the duty on the defenders to take reasonable care to get visitors safely off the premises in the dark. Fourthly, if they were inadequate what steps ought the defenders reasonably to have taken. And, fifthly, if the defenders are liable whether there was contributory negligence.

Background

[5] Work on the construction of Hopetoun House started in 1699 to a design by Sir William Bruce. It was extended by William Adam and his sons in the course of the eighteenth century. The house, which is set in extensive policies in West Lothian, faces east with fine views down the Firth of Forth. In front of the house are laid out the large horseshoe shaped East Lawns which are bisected by the main drive to the house. When the East Lawns were established in the eighteenth century they were bounded, as was customary, by a ha-ha, which remains in place. As the ha-ha is approached on the lawn the ground rises slightly. The edge of the ha-ha is of stone. There is a vertical drop before the grass bank rises gradually to the same level as the lawn. The depth of the ha-ha varies: at the west end of the lawns nearest the house the ha-ha is shallow; as the horseshoe is followed round, the drop becomes greater, reaching a maximum of about five feet at the point where the pursuer had his accident, before becoming shallower again towards the main drive.

[6] The house is now open to the public and is under the supervision of the defenders. Peter Stevens has been employed by the defenders as a countryside ranger since 2007. He had trained as a teacher but had previous experience as a ranger elsewhere. His duties at Hopetoun House included taking members of the public on guided walks. The Night Hunters Walk, or Bat Walk, was an annual guided walk on a Friday night in late August or early September. The route of the walk lay through rough parts of the policies around the house, which provided a habitat for various breeds of bat. Members of a bat group would accompany the walk.

The accident

[7] The pursuer is retired, having held a senior management post with Scottish Water. On 5 September 2008 the pursuer, who was then aged 61 years, took his grandson Ross, aged 5 years, on the Bat Walk at Hopetoun House. The walk was free but required to be pre-booked and was restricted to twenty persons. There was a charge for entry to the grounds, payable on arrival. Having been instructed to bring a torch, the pursuer took with him a torch approximately 9 inches long into which he had inserted three new batteries. The torch had a powerful beam. At the time of walk the pursuer was recovering from an operation for thyroid cancer which he had undergone about six or eight weeks earlier. As a result, he had partly lost his voice but was able to speak slowly and quietly.

[8] The pursuer arrived at the car park, which is situated to the south east of the East Lawns, at about 7.45 or 8 pm; it was dusk, just getting dark. He joined the group which was met by Mr Stevens. The group included a number of children. The pursuer said that it was a murky, damp night and he could not see much in the car park. There was undisputed evidence that Mr Stevens gave the group a safety briefing which included an instruction to follow him and to stay on the paths. According to Mr Stevens he also directed the attention of the group to the house itself and told them something of its history. He was supported in this respect by the evidence of Carol Terry, who was a member of the bat group and who was employed as a Sister in the Blood Transfusion Service. She was helping to run the bat walk that night. The pursuer did not recall a talk about the house. As this was part of Mr Stevens' routine with visitors, I am inclined to accept the evidence of Mr Stevens and Mrs Terry in this regard. It may not matter much, however, because, although the ha-ha would have been visible, Mr Stevens did not draw attention to it and it would have been of no interest to the members of the group, who were there for a bat walk. The pursuer had never been to Hopetoun House before the accident and was not familiar with the layout of the house and grounds. I accept his evidence that prior to the accident he was unaware of the existence of the ha-ha.

[9] The walk lasted about an hour and a half and ended at the ranger's centre. This was part of a group of outbuildings at the north side of the house. Entrance to it was by a door at the side of the building. Because the walk had taken the group round to the policies at the rear of the house, at the end of the walk they approached the house from the rear. To reach the front of the house from the ranger's centre a person would require to walk about twenty yards along the side of the outbuildings. This would take the person out at the north end of the front elevation of the house.

[10] In the ranger's centre there was a small exhibition and tea and biscuits were available. There was a dispute in the evidence as to what happened when the group arrived at the ranger's centre. According to the pursuer, as Ross was desperate to use the lavatory, the pursuer took him there immediately. He had to wait because others were using the lavatory and the whole process took about five minutes. Thereafter, he had a cup of tea, looked at the exhibition and left. During the time that he was in the ranger's centre Mr Stevens did not speak to him. Mr Stevens was going around chatting to small groups about the exhibits. He did not hear Mr Stevens speaking to the group as a whole. He did not hear any instructions as to how to get back to the car park. The pursuer said that if he had heard instructions he would have endeavoured to follow them.

[11] According to Mr Stevens, when they arrived at the ranger's centre he gathered all the group inside the centre and ensured that they were all still with him. He counted them and was satisfied that everyone was there. He thanked them for attending and told them that they were welcome to stay for a chat with him and the members of the bat group. He pointed out the lavatory. Anyone who wished to leave could do so. He gave directions as to how to get back to the car park. He told them that on leaving the ranger's centre they should walk straight ahead, then turn right and follow the path in front of the house until they came to Lime Avenue, which they would find by torchlight. There, they should turn left and follow the path on Lime Avenue back to the car park. Lime Avenue was a path through trees to the south of the East Lawns which ran parallel with the main drive.

[12] Mr Stevens said that no one moved or left while these instructions were being given. He could not remember the pursuer and his grandson going to the lavatory. If he had noticed that they had gone to the lavatory he would have given the pursuer an individual instruction as to how to get to the car park.

[13] According to Carol Terry, at the end of the walk there was usually a head count before they went in and then an offer made that members of the group could come in or they could leave, and the choice was left to them. She said that on this occasion before they went into the ranger's centre some people wanted to leave and Mr Stevens had told them to make sure that they walked round the front of the house and up to the car park.

[14] I accept the evidence of the pursuer that he took Ross to the lavatory immediately on arrival at the ranger's centre. It seems to me to be likely in the light of common sense that the child would require to use the lavatory at that point. Having regard to the evidence of Mr Stevens and Mrs Terry I accept that Mr Stevens did give some form of directions to members of the group at the ranger's centre. I find that the pursuer did not hear these directions, no doubt because he was engaged in attending to the needs of Ross. I consider that Mr Stevens must be mistaken in thinking that he had checked that everyone was present when he gave the directions.

[15] It is convenient at this point to deal with the state of the lighting outside the house. There was lighting at the front of the house which lit the front elevation and the courtyard in front of the central part of the house. This lighting did not extend beyond the courtyard; the East Lawns were in total darkness. It was not entirely clear what the state of the lighting at the car park was in September 2008 but I accept that there was some lighting there.

[16] The pursuer said that when he left the ranger's centre he walked to the front of the house and turned to his right to walk along the front of the building. He assumed that the route to the car park would be marked and that it would be easy to find. There was lighting at the front of the house but this did not extend beyond the courtyard. He got to the middle where there was a junction of paths. Looking ahead the path seemed to go into the woods so he took the left path which took him down the main driveway. It was totally dark. He was about a third to one half of the way down the driveway when he saw a car leaving the car park diagonally opposite from where he was. He saw the headlights of the car sweeping over him and he decided that he was on the wrong road. The ground between where he was on the main drive and the car park appeared to be a flat lawn which he proceeded to cross. The pursuer was walking in a south easterly direction from the main drive to the car park in total darkness. This route would inevitably take him to the ha-ha at a point where the drop was about five feet. He was holding his grandson's hand with his own left hand and the grandson was carrying the torch in his left hand. The pursuer said that the child was aiming the torch in front of them properly though I think that that is inherently unlikely.

[17] The pursuer's evidence was that he walked straight over the edge of the ha-ha, which he never saw. He thought it was about 50 metres from the point where he decided to cross the grass to the point where he fell. (The evidence of Mr John Stewart who visited the locus and paced the distance was that the distance was between 150 and 200 metres). As he was walking across he was looking ahead and could see nothing but grass.

[18] After the accident his grandson landed on top of him. He got his grandson to contact some people who came along. They went back and got the ranger and a nurse who came to give assistance.

[19] I considered that generally the pursuer gave his evidence in a straightforward way and was endeavouring to tell the truth about what happened. There is, however, a significant issue to be examined as to whether he made prior inconsistent statements in the immediate aftermath of the accident. The evidence of Carol Terry is of importance in this respect. She stated that two men came into the ranger's centre and reported that someone had fallen. Because she was a nurse, she went up to where the pursuer was lying on the grass slope at the ha-ha. He told her that he had injured his ankle. On examination, she saw that he had a badly broken ankle and called an ambulance. He was able to score his pain and give her details about his medication.

[20] Mrs Terry said that the pursuer said to her that he could not believe that he had been "that stupid". She stated that he told her that he had jumped from the ha-ha and was concerned that his grandson, whom he was holding, had been injured. He made reference to having been told not to walk that way. He said that he had reached the ha-ha and became aware of its existence, but still wanted to get the "bairn" home and went the fastest route. He did not think that the ha-ha was as high as it was.

[21] This evidence, if reliable, would be very damning to the credibility of the pursuer. It is necessary to test the reliability of it by having regard to certain other evidence given by Mrs Terry as to what had been said by the pursuer after the accident and earlier by Mr Stevens at the ranger's centre. In cross-examination Mrs Terry claimed for the first time that the pursuer had said that he could have walked round the grass. She also claimed in cross-examination that at the ranger's centre she had heard Mr Stevens telling the group to go round by the front of the house and not to go over the lawn. According to Mrs Terry, Mr Stevens had specifically said on more than one occasion, "Do not go across the lawn". Mr Stevens, whose evidence I accepted as to the terms of the directions which he gave, had never claimed to have said any such thing. This casts a significant shadow of doubt over Mrs Terry's claims as to what precisely the pursuer did say to her. There is also the effect of the passage of time between the accident and the proof.

[22] In his evidence the pursuer said that he did apologise to Mrs Terry. He thought that he said to her that he must have grabbed his grandson as he fell because the grandson was on top of him. He agreed that he probably had said that he couldn't believe that he had been so stupid. By that he meant hurting himself and by not observing what was ahead.

[23] I accept that for one reason or another, the pursuer did blame himself for the accident. In the light of the unreliability of Mrs Terry's evidence as to what the pursuer said to her, I am unable to make a finding as to what precisely he did say. I do accept that he said things which gave Mrs Terry the impression that the pursuer's position at the time was that it was his fault. But I think it unlikely in the light of common sense that a man of his age, recovering from recent surgery and in charge of his five year old grandson, having come upon the ha-ha in the dark, would jump into it carrying the child. People often do blame themselves when they suffer an accident; it is an aspect of human behaviour.

[24] In the light of all the evidence, in relation to the first issue, I am satisfied on the balance of probabilities that the accident occurred in the manner described by the pursuer. I find that the pursuer did not hear the directions given by Mr Stevens; prior to the accident he was unaware of the existence of the ha-ha; and he did not see the ha-ha before he fell into the ditch.

Submissions

Pursuer

[25] Mr Middleton, on behalf of the pursuer, submitted that the defenders, having invited members of the public onto the premises, knowing that those participating in the walk would be leaving in the dark, and that there was latent danger lurking not far from the car park, were under a duty to take reasonable care to see to it that all members of the group were able to leave the premises safely.

[26] He submitted that the ha-ha presented a very unusual, possibly unique, danger. If people were allowed to wander around in its vicinity in the darkness, there was a reasonably foreseeable risk of serious injury, were an unaccompanied and unfamiliar visitor unwittingly to step over the edge of the ha-ha.

[27] In relation to the case under the 1960 Act, he submitted that the ha-ha constituted a danger within the meaning of section 2. Its location and presentation in the circumstances that prevailed at the time, namely darkness, rendered it a danger to persons entering and leaving the premises. The mode of construction of the ha-ha, which included a five foot vertical drop, clearly created an unprotected hazard to users of the premises who found themselves near it. The edge was concealed from view by both the sloping grass on the lawn up to its edge and by the grassy bank on the other side. It was designed so that it would not be seen. The ha-ha amounted to a concealed trap. It fell outwith the scope of the authorities in relation to obvious dangers on which the defenders relied. The defenders were under a duty to take precautionary measures in relation to the ha-ha.

[28] Mr Middleton submitted that the defenders could have fulfilled their duty of care in any one of a number of ways. The first was by fencing, signing and illuminating the ha-ha. If these steps were considered to be disproportionate and unreasonable, Mr Stevens could have escorted the group back to the car park. If that imposed an unreasonable requirement on the defenders, Mr Stevens ought to have given clear and unambiguous directions to the whole group while pointing the route out to them and specifically advising them of the location of the ha-ha. Had the pursuer received such an instruction he would have followed these directions and the accident could have been avoided.

Defenders

[29] On behalf of the defenders Ms Galbraith accepted that the defenders were under a duty of care as regards the pursuer. The key issue was the scope of that duty in the circumstances and whether they had breached that duty. At common law the scope of the duty imposed on a defender was to take such reasonable care as would avoid a risk of injury to persons whom the defender might reasonably foresee might be injured by their failure to take such care. In relation to the case under the 1960 Act, Ms Galbraith accepted that the defenders were the occupiers of the land. She submitted that the pursuer required to show that the ha-ha constituted a danger due to the state of the premises. If he succeeded in that the obligations imposed on the defenders were the same under the statute and at common law, namely, to take reasonable care.

[30] She went on to submit that the ha-ha constituted an obvious and permanent danger arising from features of the landscape against which there was no general duty to protect. Under reference to Stevenson v Glasgow Corporation 1908 SC 1034; Taylor v Glasgow Corporation 1922 SC (HL) 1; Graham v East of Scotland Water Authority 2002 Rep. LR 58; and Fegan v Highland Council 2007 SC 723, Ms Galbraith submitted that there was nothing special, hidden or unusual about the ha-ha. It was an historical and permanent feature of the landscape which had been there for around 300 years; it was a feature that existed in many estates and gardens throughout the country. It was an obvious feature which was clearly visible on approach to the house, certainly during daylight. There was no duty on the defenders to take precautions in relation to potential injury as a result of falling at the ha-ha.

[31] If she was wrong about that and the defenders were under a duty to take reasonable precautions in relation to the ha-ha, Ms Galbraith submitted that the defenders had fulfilled the duties of care incumbent upon them. There was no evidence that there was any prior complaint, accident or concern raised about the ha-ha. There were clearly marked paths around the grounds and the lawn was not a designated route. Visitors should not have been walking on the lawn. Fencing or lighting the ha-ha would clearly not be appropriate, reasonable or proportionate to any risk of injury. The suggestion that Mr Stevens should have escorted all members of the group to the car park was impractical and disproportionate. Forcing the group to stay together and leave at the same time would be detrimental to the value of the activity and would be a disproportionate interference with the freedom of the individuals. The evidence of Mr Stevens was that this was unheard of in relation to guided walks.

[32] Ms Galbraith submitted that the combination of the initial warning not to leave the paths, combined with the directions given in the ranger's centre to the whole group adequately fulfilled any duty of care. It was not necessary specifically to mention the ha-ha. The defenders were entitled to assume that visitors would follow the directions given by the ranger and follow the designated paths and not choose to walk across the front lawn. She submitted that while an occupier may anticipate carelessness on the part of visitors, the actions of the pursuer went well beyond carelessness. His deliberate choice to leave the path and walk across the lawn was foolhardy at best. Even if it was accepted that he did not deliberately jump from the ha-ha, having chosen to leave the safety and certainty of the path, he then failed to keep a careful lookout as to where he was going.

[33] Ms Galbraith submitted that if I was persuaded that the defenders did breach their duties of care in this case there should be a significant deduction in terms of contributory negligence. She submitted that the appropriate level would be 80%.

Discussion

[34] The law in relation to obvious and longstanding features of the landscape was recently restated in Fegan v Highland Council op. cit. Lord Johnston, delivering the opinion of the court, said at para [17]:

"There is no doubt that the general law remains as stated in the somewhat historic cases of Stevenson and Taylor to the effect that in general terms an occupier of land containing natural phenomena such as rivers and cliffs, which present obvious dangers, is not required to take precautions against persons becoming injured by reason of those dangers unless there are special risks such as unusual or unseen sources of danger."

[35] In Graham v East of Scotland Water Authority op.cit. at para [18] Lord Emslie said this:

"In my opinion, the danger alleged here by the pursuer falls within the intended scope of the authorities concerning obvious dangers on land, against which no duty to fence is in law incumbent upon an occupier. It may be said, of course, that the reservoir and the wall along its edge were man made and in that sense artificial, but in my view what really matters is that by the date of the accident these were well-established, permanent and familiar features of the landscape. It is to be expected that the banks of any stretch of open water will vary in their height and configuration and that the height and line of any wall along such banks will not be uniform. I am therefore unable to accept - at least without a history of accidents or complaints - that the danger alleged by the pursuers can properly be classified as unusual, unseen, unfamiliar or otherwise so special as to warrant the imposition on the defenders of a duty to erect fencing for the protection of the public at large. The defenders' position here is, it seems to me, stronger than that of the occupiers of that of a canal, a railway embankment or a jetty on the shore, and no less strong than that of the occupiers of ponds, riverbanks and cliffs who are under no duty to fence them notwithstanding the foreseeable possibility of danger to the careless or the unwary."

[36] In my opinion, the ha-ha falls to be distinguished from natural features such as riverbanks and cliffs and from man-made features such as canals, railway embankments and jetties. It is an unusual feature of a concealed nature, particularly in the dark. While the ha-ha was a permanent and long established feature of the landscape at Hopetoun House, it is an unusual feature about which someone crossing the lawn in the dark would be likely to be unaware. I formed the impression that bringing members of the public onto the premises in the dark was a relatively unusual event. The absence of any previous accident carries less weight because of the unusual nature of the ha-ha and the fact that members of the public would very rarely be on the premises at night. I conclude that the ha-ha does not come within the scope of law as to obvious dangers. In my opinion the ha-ha constituted a danger due to the state of the premises for the purposes of the 1960 Act.

[37] In relation to the common law case it seems to me that it was reasonably foreseeable that a member of the group might, albeit carelessly, take a short cut across the grass to the car park.

[38] In considering what precautions would be appropriate in the circumstances, it is important, in my opinion, to bear in mind that this is a very fact specific case. It arises from an annual expedition at night. As mentioned above, bringing members of the public onto the premises in the dark was a relatively unusual event. There were no paths leading to, or near the ha-ha. In the circumstances it seems to me to be entirely unrealistic and unreasonable to expect the defenders to erect a fence round the ha-ha. In fairness, Mr Middleton did not press the case for fencing with much force. I also consider that requirements to light the ha-ha or erect signs would be unreasonable. I consider that the contention advanced by Ms Galbraith that requiring everyone to leave at the same time and be escorted back to the car park would adversely affect the amenity of the walk is well founded. In my opinion the duty would adequately be met by the giving of clear directions to everyone in the group. I have found that that did not happen. The directions were given after the group had entered the ranger's centre. It would have involved no sacrifice to have taken the group to the front of the house and clearly pointed out the route, perhaps with a repetition of the earlier instruction not to leave the paths. Had that approach been taken, there would have been no scope for a member of the group not receiving the directions and the room for confusion and disorientation would have been greatly reduced. These failures on the part of Mr Stevens, for whose actings the defenders are liable, were negligent.

Contributory negligence

[39] The pursuer had received an instruction at the beginning of the walk not to leave the paths. I was not impressed by his suggestion that he thought that the instruction applied only during the walk itself. Leaving the path in the pitch dark to walk across open ground was a careless thing to do. The pursuer could not have been keeping a proper look out; if he had been he would have been likely to have spotted the ha-ha when he came across it. The top of the ha-ha was edged with stone. There is a high level of contributory negligence. Taking a broad approach I assess contributory negligence at 75%.

The Evidence of John Stewart

[40] Mr Stewart was called as a witness for the pursuer. Mr Stewart has various qualifications and considerable experience and expertise in health and safety issues in the workplace. He gives evidence as an expert in the courts. Ms Galbraith objected to his giving expert evidence in this case. I decided to allow his evidence to be given in full and reserve my position on the question whether I relied on him as an expert. In the event I did not rely on his evidence as an expert in this case. It seemed to me that the facts in this case were of such a nature that no expertise was required. In addition, it did not seem to me that Mr Stewart's undoubted expertise was relevant to the facts of the case. I did rely on his factual evidence. He visited the locus and took photographs which were of assistance. I also relied on his evidence describing the locus.

Decision

[41] For the reasons set out above I find the defenders liable for the pursuer's accident in the sum agreed, less 75% for contributory negligence, and grant decree accordingly. I shall reserve meantime the question of expenses.