Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2014] CSOH 118

PD2287/12

OPINION OF LADY STACEY

In the cause

KATHRYN HAY

Pursuer;

against

ADVANCED STAIRLIFTS (SCOTLAND) LIMITED

Defender:

Pursuer:  Lloyd;  Lawford Kidd

Defenders:  Springham;  Simpson & Marwick

1 August 2014

Introduction

[1]        The pursuer was employed by Advanced Stairlifts (Scotland) Limited, the defenders, as a sales surveyor.  Her job was to carry out surveys on the premises of customers who wished to buy a stairlift.  The defenders’ business supplied stairlifts but did not manufacture them;  they ordered them to be made by other companies.  The measurements given to the manufacturing companies had to be both detailed and accurate.  Customers were seen at home at least twice before a stairlift was ordered.  The first visit would enable the surveyor to see the stair and decide what type of stair lift would be suitable, and to take some measurements.  The defenders then provided a quote. If the customer decided to go ahead then a further detailed survey would be done.

[2]        On 20 November 2009 the pursuer went to a house in Lossiemouth to measure the stair.  She used an expandable metre stick to do so.  The stick could expand to 5 metres.  The pursuer thought it was quite heavy.  The witnesses for the defenders said it weighed about 1.6 kg, which I accept as accurate.  The pursuer said that while she was taking the measurement, she sat on the stairs, nearer to the top than to the bottom, holding the expandable metre stick in both hands.  It had a gauge at one end which would show the distance measured by the stick.  She had that end nearest to her.  To get the necessary measurement, she had to expand the stick and hold it horizontal.  The far end of the stick began to drop and she reached out to try to steady it.  While the pursuer was doing so, she slipped and landed on her bottom on the next step down.  The defenders accepted that the pursuer had been in the house to take measurements.  The pursuer was put to her proof about what happened in the house. 

The issue between the parties.

[3]        The issue was whether the pursuer had proved how the accident happened, and if she had, if the accident was caused by the defenders’ breach of statutory duty.  If there was a breach the defenders argued that the pursuer had contributed to the accident by her own negligence.  The parties agreed the quantum of the claim at £2,500. 

[4]        The pursuer pled various statutory cases.  The only statutory case which was advanced after evidence had been led was under regulation 4 (1) and (3) of the Provision and Use of Work Equipment Regulations 1998. (PUWER.)  Regulation 4 provides as follows:

“4 – (1) Every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided.

(2)….

(3) Every employer shall ensure that work equipment is used only for operations for which, and under conditions for which, it is suitable.

(4) In this regulation “suitable” –

(a)        Subject to subparagraph (b), means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person…”

The events of 20 November 2009.

[5]        It was not disputed that the pursuer had gone to the house in Lossiemouth to measure the stairs.  Nor was it disputed that the pursuer reported that she had injured her back, and that she was off sick for the week after.  The parties were in dispute about:-

the layout of the premises;

the equipment  used by the pursuer;

the work carried out there by the pursuer;

the way in which she injured herself.

The pursuer and defenders were agreed in the pleadings that the stair which the pursuer was to measure had a bend near to the bottom, and that there was a bulkhead.  By that the parties meant that there was a wall from the ceiling on the first floor of the house coming down over the bend in the stair.  In evidence the pursuer maintained that position.  Mr Ewart, director of the defenders, did not agree.  He departed from the pleadings lodged on behalf of the defenders, and said there was no bulkhead.  The significance of the bulkhead was that the pursuer said she was trying to measure the distance from the nose of the top step to the bulkhead.  If she was wrong in remembering a bulkhead, then she cannot have been trying to measure that distance.  The owner of the house had declined to allow photographs to be taken for the proof.  The pursuer and Mr Ewart were the only witnesses who had been to the property.  Various drawings were referred to.  I decided that I did not need to determine the controversy, for reasons I set out below.

[6]        At the beginning of the proof the pursuer sought to lodge as a production a metre stick.  Counsel explained that in August 2013 it had been recovered from the defenders under a specification.  It was understood to be the metre stick used by the pursuer, and when she gave evidence the pursuer said she recognised it as her metre stick. It was sent to Quantum Claims in Inverness who acted for the pursuer.  Quantum Claims had intended to instruct an expert, but that had not been done and the metre stick had just lain in the office.  It had only just been noticed.  Counsel accepted that that was not satisfactory but nonetheless moved to have the metre stick accepted as a production.  Counsel for the defenders opposed the motion as coming too late.  She had had an opportunity to look at the metre stick and said that it was incomplete.  The metre stick used by the pursuer had a spirit level attached to it.  There was no spirit level on the proposed production, which meant that it was not the metre stick used by the pursuer.  I decided to allow a brief adjournment to enable the defenders’ expert to look at the metre stick and to consult with the defenders’ advisors.  I indicated that I would hear counsel after that had happened, and if for example the expert was of the view that the metre stick was a completely different object from that described in the pleadings then that could be explained to me.  I gave an indication that otherwise I did not see any prejudice to the defenders in the metre stick being received as a production.  When I resumed, counsel for the defenders had no additional submissions to make and therefore I allowed the metre stick to become 6/16 of process.  The pursuer was, as a party, present in court when that discussion took place.

[7]        The defenders put the pursuer to proof of what had happened.  The pursuer was the only witness who was present in the house.  She was cross examined on her evidence of what she did.  No other version of events within the house was put, but the pursuer was challenged on her evidence about what measurements she was taking, what she did with the metre stick and, and what she did with a separate spirit level she claimed to have used.

[8]        The pursuer stated that she had started work with the defenders in or around July 2009.  She was given a bag with a metre stick in it and also in the bag was a spirit level which she thought had been attached, but had fallen off the metre stick.  She understood that it was important that the metre stick was level when measuring.  As her metre stick had no spirit level on it, she used a separate spirit level, larger than the one which she thought had been attached, about a metre long, on top of the metre stick.  Objection was taken by counsel for the defenders to the admission of the evidence on the grounds that there was no notice of it on record.  I allowed the evidence to be given subject to competency and relevancy.  I decided that the evidence was admissible, as it may be relevant to the issue between the parties and any prejudice to the defenders did not seem to be significant.  

[9]        In cross-examination, counsel for the defenders asked the pursuer if she had lied in her evidence by saying that there was no spirit level on the metre stick given to her.  Counsel suggested that the pursuer had been present when the discussion about the metre stick being allowed in evidence took place and so understood the importance of the absence of a spirit level.  The pursuer denied that she had lied.  She accepted that there was nothing in the pleadings about her using a separate spirit level.  She said that was because, as far as she knew, the spirit level made no difference to her accident. She had not mentioned it to her lawyers as she thought it was not relevant to the accident.

[10]      The defenders were a limited company, run by a husband and wife team, Mr Ewart and Ms Allan.  Both gave evidence.  Neither of them accepted that the pursuer was given a metre stick from which the spirit level had become detached.  Mr Ewart explained that the metre stick produced under the specification was a metre stick from his business but he could not say for sure if it was one the pursuer had used.  The evidence for the defenders was that the pursuer was given a metre stick with a spirit level glued on to it.  The metre stick produced in court had marks on it which looked as though the spirit level had come off.  Neither witness knew anything about the pursuer using a bigger, separate spirit level.

[11]      The weekly activity worksheet from the defenders showed that the pursuer was at the premises to carry out a second survey.  Her evidence was that she took measurements of the stair as she had been taught to do. She entered the figures on a computer, which had been programmed to refuse access to each step of data entry unless the previous step had been correctly entered.  She also did a drawing in which she entered figures.  She recognised a drawing produced on her behalf as the drawing she had done.  She thought it showed there was a bulkhead.  She had been trying to measure the distance between the nose of the top step and the bulkhead.  She sat on a step and held the metre stick up in both hands, with the spirit level on top of it.  She extended the end of the stick towards the bulkhead.  The far end began to drop and in an effort to keep it from falling she slipped from the step on which she sat to the step below, hurting her lower back in doing so.  She completed her work but was off work ill the next week due to the injury to her lower back.

[12]      Ms Allan described the training given to the pursuer when her employment started.  It consisted of one day in which Ms Allan told her everything about the work she had to do and about the office systems, such as the procedure if one was off sick.  After that the pursuer learned on the job by going out with other surveyors.  Stairs which had no curve in them were straightforward to measure.  The pursuer was allowed to work on her own in straightforward cases, but if the stair to be measured was complicated, then she worked along with another surveyor.  Ms Allan had accompanied her on occasion.  The pursuer was able by 20 November 2009 to measure a stair case which had a curve, but Ms Allan did not regard the pursuer as completely competent to measure all stairs by that stage.  Ms Allan carried out administrative work for the defenders, but was also a surveyor.

[13]      Mr Ewart was an engineer to trade, and carried out surveys of stairs for stairlifts.  He gave evidence about the way in which measurements should be taken and the layout at the house.  He had been to the house after the stair was installed.  He said that there was no bulkhead.  There had been a banister.  He did not understand why the pursuer had carried out the measurements in her drawing if it was a second survey; the measurements were not detailed enough for a second survey.  He was not impressed by the drawing made by the pursuer.

[14]      The pursuer said that she had to measure the distance from the top of the stairs to the wall at the bottom.  The house was of traditional design.  There were four steps and then a curve in the stairs and then about another ten steps.  If one were to be standing at the landing at the top looking down the stairs one would see a wall which was above the curve in the stair.  The pursuer referred to that as a bulkhead.  The stair had a carpet and no bannister.  In order to get the measurement, the pursuer said that she sat on the step eight up from the bottom.  She held the metre stick in both hands and extended it.  She was trying to get the end of the metre stick to touch the bulkhead and intended then to note the measurement shown in the gauge.  As she extended the stick the far end from her began to fall.  She reached forward to try to stop it falling and in doing so slipped, while sitting down, and landed, still sitting down, on the step below where she had started.  In doing so she landed heavily on her bottom.  She carried on with her work and got the necessary measurement.  She was off work for the week following, having hurt her back.

[15]      She was adamant in evidence that her version of events was correct and that she reported by telephone to her employers.

[16]      I was listening to evidence 5 years after the event.  There were two drawings, produced by the defenders, one done on a computer and the other by hand.  None of the witnesses were sure what the hand drawing was.  The pursuer produced two more drawings done by hand and apparently for the same address.  There was little in the paper records of the defenders to help on the accuracy of anything that anybody said.  According to a ‘survey request form’ a survey date was fixed for 4 May 2009, which was before the pursuer started to work with defenders.  The pursuer said the handwritten drawing produced by the defenders was not hers; the witnesses for the defenders did not know what it was.  Much evidence was led about the measurements necessary for a stairlift.  Many questions were asked about the details of the measurements taken.  I do not think these matters were relevant to the issue between the parties.  I was not particularly impressed by the pursuer’s reliability or accuracy in the detail of her evidence.  I had the impression that she was trying to tell the truth but I did not find her recollection to be very reliable.  I was surprised that she had apparently not told her advisors about the extra spirit level which she said she was using.  There was however evidence that she was off work with a back injury the week after she claimed to have been injured.  There were two accident report forms produced, which the pursuer completed. In each one she stated;

“Turned to prevent metre stick falling downstairs. As I turned back, missed step I had been sitting on and landed on next step down.”

[17]      The defenders did not dispute that the pursuer had been at the house to take measurements and had reported an accident afterwards and had been off sick for the next week.  In those circumstances it did not seem to me to be relevant to show that the pursuer and the witnesses for the defenders disagreed five years later about who had drawn a sketch plan, or whether it was an accurate plan of the stair.

[18]      I was not impressed by the reliability or accuracy of the evidence from Ms Allan and Mr Ewart either.  Ms Allan’s paper records were not helpful.  There was case pled on training, which was not insisted in by the pursuer.  Evidence was led about training records. It was clear that some were not accurate as to dates.  Ms Allan was unable to explain some entries.  It seemed that she had produced paperwork when asked to do so for the case, but had not been asked about it afterwards and was not able to be precise about the pursuer’s employment history.  Ms Allan gave evidence about her normal practice, rather than about what actually happened in this case.  Some paperwork produced by her post-dated the pursuer’s leaving the defender’s employment, in February 2010.  I did not think that Ms Allan intended to be unhelpful, but I did not find her reliable.  Much of her evidence was not relevant to the only case insisted on at the end of the submissions.

[19]      It was strange that the pleadings on behalf of the defenders stated that there was a bulkhead, but Mr Ewart denied that.  I am sure that he too intended to assist the court, but I did not find that he had been asked to consider the productions with a view to giving evidence about them.  Of course I do not include the metre stick in that as it was produced at the last minute and the defenders’ agent and counsel and therefore Mr Ewart had no notice of what was to be said about it.  The metre stick lodged as a production was puzzling.  No one could say if it had a spirit level attached when Mr Ewart handed it in.  No one could say with certainty that it was the metre stick used by the pursuer;  Mr Ewart’s position simply was he had been asked to produce ‘a metre stick’ which he did.  I got the impression that the case had been poorly prepared.  The witnesses did not show much sign of having been precognosced in connection with the productions.  They had to answer questions from memory of events not in themselves remarkable which happened five years ago.  As it turned out much of the evidence which was led was not relevant to the case insisted in by the defenders.

[20]      The issue I had to decide was whether the pursuer had been measuring a stair, in the course of her employment, using an extendable metre stick, when she slipped from one step to the next.  If she did, was the stick the cause of the accident?  Was the stick work equipment?  If it was, was it suitable for the purpose for which it had been used or provided?  In answering the question on suitability, I had to construe ‘suitable’ as ’suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person.’

[21]      I believed that the pursuer sat on the stairs and started to extend the stick to measure from the nose of the top step to a wall she was facing.  I was not able to decide if that was a bulkhead or a wall not properly called a bulkhead.  In my view, it did not matter.  There was no dispute that the pursuer was employed to measure the horizontal distance between the top step and the wall opposite it.  I was not prepared to find that the pursuer had a separate spirit level on top of the metre stick.  Her evidence about that was not convincing.  That does not matter either.  The defenders’ position was that she was provided with an extendable metre stick with a spirit level attached;  her position was that it was the extending of the metre stick that caused her to fall.  She did not claim either in her pleadings or in evidence that the use of a separate spirit level had caused her accident.

[22]      The pursuer’s case was that these measurements should have been taken by a laser. Such a machine was available, and use of it involved holding a small box and pointing it at the wall then pressing a button.  Thus no one had to sit and stretch forward while holding a metre stick.  The defenders’ position was that lasers were available but were not reliable.  There was a dispute between parties about whether the pursuer had asked for a laser or not.

[23]      Counsel for the defenders argued that the pursuer was an unreliable witness and that she had not produced a coherent account of how the accident happened.  She invited me to find that the pursuer had not proved her case.  While I did not find any of the witnesses reliable, perhaps due to the passage of time and lack of preparation, I did find the pursuer truthful and reliable when she said that she slipped from one step to the next, while measuring, because the end of the stick started to drop and she reached out.  I do not require to decide if she asked for a laser or not; even if I were not prepared to find that she asked for a laser, that would not affect my acceptance of her evidence about the accident.

[24]      Counsel for the pursuer argued that the pursuer was using work equipment provided by the defenders, which was not in dispute.  He argued that the use of the stick gave rise to a risk of injury which was reasonably foreseeable and that the pursuer was in fact injured in a manner which was within the ambit of the risk.  He made reference to the defenders’ risk assessments and method statements and noted that the defenders had identified a risk of injury from slipping and falling on stairs.  He argued that the pursuer had been injured because she had slipped while sitting down and had fallen down one step.  Obviously she had not fallen down the whole flight of stairs but he argued that that did not matter.  There was a risk in sitting down and leaning forward in order to carry out the measurement and if the pursuer only fell one step that was still an accident which was within the type of accident envisaged.

[25]      Counsel relied on the case of Kennedy v Chivas Brothers Ltd 2013 SLT 981 in which he argued that the court had followed the Court of Appeal in the case of Hide v Steeplechase Company (Cheltenham) Ltd [2013] CSOH 142.  Counsel accepted that the case of Robb v Salamis is authority for the proposition that an employer has to have “the contingency of carelessness” in mind;  but she referred to the case of Moohan v GCC 2003 REP LR 46, arguing that an employer did not need to anticipate what is a mere possibility.  She argued that the employer did take account of what might happen and she set out the following list:-

The comparative lightness of the equipment being used.

The fact that the pursuer was sitting down while using it.

The absence of evidence of any previous circumstances in which any problem had arisen.

The fact that the defenders continue to carry out the task in the same way without apparent difficulty. 

Taking all of that into account, counsel argued, it was not reasonably foreseeable that the pursuer would slip off the stair when sitting on it.  It has to be a realistic consideration; see the case of Koonjul v Thames Link Healthcare Services 2000 PIQR 123.   

Contributory negligence.

[27]      Counsel for the defenders argued that if there was liability on the defenders, there was contributory negligence by the pursuer.  The pursuer was in control of the equipment and she should have been careful about how and where she was sitting.  Counsel suggested a reduction of 50%.  For the pursuer, counsel argued that there should be no such reduction.

Conclusion

[28]      It is not in dispute in this case that the pursuer slipped when she was on the stairs.  Further it is not in dispute that she was using an expandable metre stick.  There is a dispute about whether that metre stick had a spirit level fixed onto it or whether the pursuer had a separate spirit level because the metre stick she was given had no attached spirit level.  I agree with counsel for the defenders that it is strange that the pursuer did not mention the separate spirit level to anyone at the time of reporting the accident nor apparently to those who pled her case.  Nevertheless it is not in dispute that she was on the stairs using an expandable metre stick; nor is it in dispute that she slipped. 

[29]      I agree with counsel for the pursuer that there is a coherent account of the way in which the pursuer sustained injury.  I would not be prepared to hold that she fell because she was holding a separate spirit level but I am not asked to do that.  I proceed simply on the basis that she was extending the metre stick, the far away end of it started to fall and she moved in order to steady it.  That led to her slipping down one step.

[30]      The evidence about whether or not there was a bulkhead does not seem to me to be vital.  The pursuer had to measure the horizontal distance from the nose of the top step to the wall of the stair, whether there was a bulkhead or not.  In order to do so she had to use the expandable metre stick.

[31]      The terms of the regulations are such as to preclude absolute liability, but I have decided that it was reasonably foreseeable as defined in the regulation that an accident of the sort which happened might happen.  That is borne out by the risk assessments produced by the defenders, which found, as is obvious, that there is a risk of falling if working on stairs.  The work the pursuer had to do involved extending a metre stick while on stairs.  It is foreseeable that such a manoeuvre involves a risk of falling. 

[32]      I do not find any contributory negligence.  The pursuer was put in the position where she moved quickly in order to steady the stick and it seemed to me that the way in which she moved, from the position in which she was sitting, did not show that she was negligent. It was a natural reaction to try to steady the stick because she was holding it. 

[33]      I therefore find in favour of the pursuer. 

[34]      The amount of damages is agreed but there is a dispute on interest.  The pursuer sought interest at 4% during the three month period following the accident.  It had been agreed that she was in pain due to the effects of the accident for that time.  He calculated that at £25.  Thereafter he sought interest at 8%.  Counsel for the defenders argued that it was not appropriate to award interest at the full judicial rate from the date of the accident or even three months after that since the pursuer did not intimate a claim until shortly before the triennium.  She submitted that interest should be added at the rate of 8% from the date of citation, being 8 February 2012 .

[35]      I accept that interest is a matter for my discretion.  I do not however find that the raising of the action near to the three year limitation period amounts to special circumstances which should prevent the pursuer from having an award of interest as sought by her counsel, that is at 4% for three months after the accident, and thereafter at 8% on the whole sum until the date of decree.

[36]      I will reserve all question of expenses.