Scottish Court of Session Decisions

Pursuer: Fitzpatrick; Digby Brown LLP

Defenders: Thomson; HBM Sayers

16 May 2014

Introduction
[1] On Thursday 17 June 2010 the pursuer sustained injury while working in the course of her employment as a project officer for CVS Inverclyde at the Ladyburn Business Centre, 20 Pottery Street, Greenock, PA15 9UH (hereinafter referred to as "the LBC"). The LBC is a building which on that date was owned, occupied and operated by the defenders, whose title to the property was registered on 27 May 2008 under Land Certificate Title Number REN 20957. At about 12.30pm on 17 June 2010, the pursuer was leaving the LBC in order to cross the car park outside to obtain lunch from a nearby van. As she reached the last of three steps outside the LBC, an adult seagull swooped at her with its wings outstretched, causing her to crouch down then turn in order to return indoors. As the pursuer attempted to do this she stumbled and sustained injury as she fell onto the steps.

[2] The pursuer's consequent action for personal injury in respect of this accident called before the court for a proof restricted to the issue of liability only, quantum of damages having been agreed between the parties in the sum of £7,000 inclusive of interest to the date of commencement of the proof. The claim for the pursuer was advanced in terms of section 2 of the Occupiers' Liability (Scotland) Act 1960 (and concurrent common law duties of reasonable care), and in terms of regulations 5 and 17 of the Workplace (Health, Safety and Welfare) Regulations 1992. The defenders denied liability but accepted that, as at 17 June 2010, they had control of and were occupiers of the LBC; and, further, that as such that the defenders were subject to the 1992 Regulations as persons being, with regard to the LBC, in the position of an employer. No issue of contributory negligence arose in this case.

Evidence adduced on behalf of the parties
[3] The pursuer and various lay witnesses were led in evidence in support of the pursuer's claim. In addition, Mr Ian Thomson, of RSPB Scotland, was led as an expert witness. The defenders led one lay witness and Mr Peter Rock as an expert witness. I had no difficulty in accepting that Mr Thomson and Mr Rock were indeed appropriately qualified and prepared expert witnesses and further that all of the lay witnesses were credible and reliable in the sense that they were doing their utmost to give straightforward and truthful evidence to the very best of their recollection and abilities.

[4] I was particularly impressed with the evidence and demeanour of the pursuer as she described the incident leading to her fall on the steps of the LBC. This must have been truly terrifying for her and I accepted in its entirety her account of events at the LBC on 17 June 2010. She had been transferred to work in the LBC at the beginning of that month. She had no knowledge of anyone else having been attacked outside the LBC prior to her own accident. She did not speak to any physical contact with the bird nor did she give any evidence about its provenance. Although she had understood some time after the accident that she may well have been the subject of the attentions of a protective parent gull, she did not describe observing, for example, any chick in the area of the car park or steps of the LBC. She told the court that there were always two nests above the LBC door during the breeding season and also confirmed that gulls nested on what she described as an "old warehouse up Pottery Street".

[5] Further evidence for the pursuer was led from Mrs Anne Walsh. Mrs Walsh in 2010 was on the Board of CVS Inverclyde and worked at the LBC. She described being defecated on by a seagull in what she described as an attack in the car park. She was uncertain about the date of this incident, giving evidence initially to the effect that this incident had occurred in the middle of May 2010, but finally advising that she could not give a date for the incident and indeed could not be sure that it had occurred before 17 June 2010. She recalled putting her complaint in writing, but, having checked this matter herself before being led as a witness, had not been able to find any written evidence that she had actually done so. Mrs Walsh told the court that there were nests on the LBC and also confirmed that she had seen gulls on the roof of the nearby Centre for Independent Living. Mrs Jeanette Knox had worked at the LBC from 2001. She spoke of the annual swooping of birds in the car park at the LBC and described being the victim of a gull attack on one occasion between 2001 and 2007. Mrs Knox advised that she had seen gulls on a nearby garage roof. Ian Bruce was the manager of CVS Inverclyde at the time of the pursuer's accident. He completed an accident book entry. He gave evidence to the effect that he had never himself seen nesting gulls at the LBC but was aware of swooping gulls in 2010. He advised that CVS Inverclyde had been based at a bungalow at 18 Pottery Street until its transfer to the LBC in May 2010. David Martin, a property manager with the defenders from April 2009, advised that nests had been removed by a cherry picker from a large hidden valley gutter on the roof of the LBC on 30 June 2010. He advised that there had on occasion been problems with gulls at the LBC prior to 2010 and that he had on occasion been contacted by persons about problems with gulls at the building. Raymond Swankie worked as caretaker at the LBC from May to the end of October 2010. He recalled being "swooped" by a seagull during that period. He suggested that it was possible that this incident took place near the start of that period of employment. He confirmed in respect of that incident that he could see the bird come down from the roof of the LBC towards him as he got out of his car in the car park. He was the only witness who was able to tell the court where an "attacking" bird had come from. Gary Williamson, a former project manager with the defenders, was able to confirm that by June 2010 ninety per cent of the units at the LBC were occupied with approximately ninety people working in the building. He had not been on the roof and had not seen any nests. He was aware that nests were reported through a firm of surveyors when diligence in respect of the acquisition of the property was carried out in 2008. The refurbishment work on the property started in late 2008 and lasted for 8 to 9 months or perhaps longer. He recalled no specific incident about swooping gulls between June 2009 and June 2010.

[6] Mr Ian Thomson gave evidence as the pursuer's expert witness. He is the head of the investigation team of RSPB, Scotland. He visited the LBC in May 2013 but did not go up onto the roof. He described seeing seagulls on other building roofs adjacent to the LBC, namely on a garage roof and on a building with a corrugated roof which he told the court was an ideal roof for nesting gulls. He gave tentative evidence to the effect that if a gull was swooping in the area of the LBC car park during the nesting season, it was likely that that gull would have been associated in some way with the LBC. Mr Thomson was an impressive expert witness with an Honours degree in Ecology from the University of Edinburgh. He had extensive experience with breeding sea birds and birds of prey. He could not, however, give the weight of an adult gull, nor was he sure whether gulls were lifelong companions. When asked whether it was probable that an adult gull would nest on meshing, he indicated that this matter was outside his area of expertise. He was further not sure how faithful gulls were to particular buildings. He estimated the life span of the two species of seagull native to Scotland, namely the herring gull and the lesser black‑backed gull, as "probably" fifteen years. He was not familiar with the articles or references set out in Mr Peter Rock's report produced as 7/1 of process. Nevertheless, despite these rather surprising omissions, as I considered his evidence, I deemed it to be straightforward, frank, helpful and based on common sense and years of experience at a senior level with the RSPB. Mr Thomson advised further that when he visited the LBC in May 2013 he had noticed a building 100 to 150 yards away to the southeast where six pairs of each species of seagull were nesting. He further noted one or two other buildings where gulls could nest. Mr Thomson spoke to a variety of possible precautions which could be undertaken by the owners or occupiers of buildings. The use of proper netting appeared to be the control measure which he preferred. He accepted that such a measure would not stop gulls simply nesting on an adjacent building, and that to be successful a co-ordinated response was required.

[7] On behalf of the defenders, Mr Nigel Campbell, a site manager for the construction firm involved in the 2008/09 refurbishment works at the LBC, gave evidence. He had been on the site every day at the LBC in connection with the works from October 2008 to about July 2009. He described gulls coming to roost at night on the roof but said that neither he nor any of his employees had had any problems with swooping gulls. He did not come across any nesting gulls at all at the LBC; indeed, the only nesting birds he found there comprised a pair of crows nesting in the eaves of the building. Other buildings in the area, he advised, had seagull nests on them, including the Ford building and another building across the road from the LBC. The principal issue involving gulls which appeared to concern Mr Campbell in his evidence concerned the regular power washing which he required to undertake on the new skylight on the roof resulting from bird faeces on the glass.

[8] The defender led expert evidence from Mr Peter Rock. Mr Rock is a retired teacher who has served as a senior bird ringer since 1979 and been involved in research and work with urban gulls since 1980. It was clear to me from the whole tenor and terms of Mr Rock's evidence that he was authentically an expert in the area of urban gulls. He gave thoughtful and articulate evidence based on his own extensive personal experience and a thorough knowledge of the relevant statistics spanning several decades. He advised that an adult gull can vary between 700 grams and 1.2 kilograms in weight. He confirmed that adult gulls are lifelong partners who display territorial loyalty. They can live for up to twenty-five years. He described a spectrum of gull warning behaviour during the nesting season and assessed the pursuer's experience as a "low pass", rather than a full strike. He had not visited Greenock and was accordingly to that extent at a disadvantage in giving his evidence. His own research, however, enabled him to give detailed evidence about the seagull colony in the Greenock industrial estate in which the LBC is situated. He advised that seagulls could be placed at the higher end of avian intelligence and had acute vision. Their territorial loyalty was such that while anthropogenic intervention would displace birds, these would simply relocate within the original colony. The colony at the LBC had been in place in the Greenock industrial estate since 1994. Mr Rock was able to refer to original relevant data, which he had sourced from the Joint Nature Conservancy Council. Gull courtship would take place in the months of March and April, with eggs being laid in April. The incubation of the eggs would occur over April and May, with chicks being hatched in May or June. Mr Rock described a variety of measures which could be put in place to prevent gulls nesting on buildings. Continual removal of nest material was in his view probably the best option. On the issue of where the bird which attacked the pursuer in June 2010 came from, Mr Rock's position, put short, was that one would require to know the number of pairs of gulls on the various buildings in the area before one could make that assessment.

Submissions for the pursuer
[9] Counsel for the pursuer accepted at the outset of his submissions that if he could not establish that the gull involved in the incident with the pursuer on 17 June 2010 had come from the LBC, the pursuer's case on all fronts would fail. On the balance of probabilities, however, he submitted that in the light of the evidence of the lay witnesses and the experts, it was reasonable for the court to draw the inference that the gull had indeed come from the LBC roof area. He accepted that the evidence about the presence of a chick at the time of the accident was unclear, but contended that it was not necessary for the success of the pursuer's arguments to prove the presence of a chick in the car park which could have been the subject of the adult gull's attention on that day. The risk of adult gulls swooping on persons in the area of the LBC when nests were present on the roof would be heightened when chicks were present. In early to mid-June such adult birds would be at the height of their aggression due to their DNA investment in their chicks. On a fair consideration of the evidence as a whole, counsel contended that there was a risk of injury to persons such as the pursuer, and that this was a risk which the defenders could and should have taken steps to avoid. In all of the pursuer's common law and statutory cases, the duty upon the defenders pertained to this specific risk of injury that the defenders knew about in either their capacity as owners and occupiers of the LBC or as persons with the responsibilities of employers with regard to the building. The defenders were fixed with the knowledge of the prior incidents spoken to by the witnesses. The pursuer was within a specific category of persons, namely the workers in the building owned and operated by the defenders, who had been put at risk from the behaviour during part of the year of gulls present and nesting in the LBC. On that basis, counsel submitted, the instant case could not be deemed to be a "floodgates" case.

[10] Counsel advanced a series of detailed criticisms of Mr Rock in his capacity as an expert witness. He submitted that it was not unfair to categorise Mr Rock as an "advocate for the gull". He noted that Mr Rock had no experience in the area of health and safety and no relevant academic qualifications. The articles and references listed at the end of his report were not drawn from any scientific journals or peer-reviewed papers. He was at a disadvantage in respect that he had not visited Greenock. In contrast, Mr Thomson, the pursuer's expert, was, counsel submitted, a measured and highly experienced RSPB officer who could be categorised safely by the court as a careful and reliable witness. Counsel accordingly commended Mr Thomson to the court as an expert witness, submitting that the hallmarks of an expert witness which were present in the evidence of Mr Thomson were not present in the evidence of Mr Rock. Counsel referred to the observations of HH Judge Toulmin CMG QC in Anglo Group Plc v Winther Brown & Co Ltd [2000] ITCLR 559 in advancing this submission.

[11] The pursuer's cases in terms of the Occupiers' Liability (Scotland) Act 1960 and at common law was, counsel submitted, broadly co-extensive. Counsel contended that the accident which befell the pursuer was a known source of danger and that nothing in the evidence of either Mr Rock or Mr Thomson suggested that low swoops and strikes were anything other than aspects of the same aggressive/defensive behaviours of gulls. As occupiers, counsel argued, the defenders must be deemed to have had knowledge of all parts of their property, and the various precautions desiderated on behalf of the pursuer, principally involving the removal of nests and then proofing against recurrence by spiking, meshing and netting, were but instances of what, with some thought and attention being paid to these duties, might easily have been done by the defenders, thereby avoiding or materially reducing the risk of injury to the pursuer. Many workers were coming into the LBC and entering and exiting the door where the accident occurred in the course of a working day. The concept of reasonable foreseeability underlying the notion of fault in terms of the 1960 Act, section 2, had been recently revisited by the Inner House in Dawson v Page 2013 SC 432 at 439 (paragraphs 14 to 16). Counsel further referred to Hide v The Steeplechase Company (Cheltenham) Ltd & Others [2013] EWCA Civ 545, per Longmore LJ at paragraphs 22, 26 and 29 to 32. Before concluding his submission in terms of the 1960 Act, counsel emphasised that the lack of any risk assessment prepared by the defenders in respect of risks arising from the conduct of business at the LBC was a significant factor to be taken into account by the court as informing the approach of the defenders to the matters arising in this case. It was not disputed by the defenders that no such risk assessment had been prepared. The defenders had simply not turned their minds to questions such as the identification of any hazard; who might be harmed; and how such a person might be harmed. Difficulties such as those described by Mr Campbell of the contractors with the bird faeces on the skylight ought to have acted as a red light to the defenders on the issue of the presence of gulls on the new roof. Counsel cited Bailey v Command Security Services Ltd & Another per Mr J Burke, QC (sitting as a High Court Judge in the Queen's Bench Division), 25 October 2001, at paragraph 39, as an example of circumstances where employers ought to have been "put on enquiry".

[12] On behalf of the pursuer further submissions were advanced in respect of breach of statutory duty in respect of the Workplace (Health, Safety and Welfare) Regulations 1992, regulations 5 and 17. In counsel's submission, with regard to regulation 5(1), the word "efficient" pertained to the health, safety and welfare of employees such as the pursuer. This was a strict statutory duty, counsel submitted, advancing the simple proposition that the pursuer should not have come home from the LBC injured, and submitting that accordingly the matter of onus in a case such as this lay surely on the shoulders of the defenders: Kennedy v Chivas Brothers Ltd 2013 SLT 981, per the Opinion of the Court at 985H-986F (paragraphs 18 and 19). Turning to regulation 17(1), counsel submitted that the locus of the accident represented an obvious traffic route upon which the pursuer could not "circulate in a safe manner". The traffic route provisions in regulation 17 should not be restricted unduly, counsel contended, to the interaction of pedestrians and vehicles; instead, the object of the regulation was a broader one which in turn should be given a purposive construction to the effect that the pursuer, in this case, should have been able to "circulate" in safety at her workplace. Counsel very properly accepted that his cases in terms of regulation 5 and regulation 17 would of course fail if the pursuer could not tie in the attacking bird to the LBC roof.

[13] In the light of these submissions, counsel for the pursuer moved the court to pronounce decree in favour of the pursuer in the agreed sum of damages, applying interest to that sum from the date after the commencement of the proof.

Submissions for the defenders
[14] Counsel for the defenders contended that the court could not be satisfied that the pursuer had established a link between the bird involved in the incident with the pursuer and the LBC, which he accepted was owned, occupied and operated by the defenders. Mr Campbell had been on site from October 2008 to July 2009. It was his clear evidence that during that period there had been no gulls nesting on the LBC roof. The tenor of the evidence of the pursuer's witnesses being to the effect that gull swoopings were a regular occurrence every year, it followed from Mr Campbell's evidence that any incidents in the summer of 2009 at the LBC and car park area must necessarily have involved birds from other buildings. Counsel posited the following question in order to test the hypothesis of fact advanced for the pursuer on the provenance of the gull which attacked her: if birds had come to the LBC area from elsewhere in 2009 (on the evidence of Mr Campbell, in the context of the evidence of the witnesses led for the pursuer), why should it be considered more likely that the bird which attacked the pursuer in June 2010 came from the LBC roof? In advancing this argument, counsel emphasised that one could not divorce the LBC from its surroundings. Counsel commended the evidence of Mr Campbell as the only witness who in the case who had actually been on the LBC roof. He had encountered roosting gulls at night, but had had no difficulties with swooping gulls and had observed no nesting gulls on the LBC roof. Counsel further submitted that the expert evidence was clear that the LBC roof was not the most suitable roof in the area for nesting gulls, and that this was a further factor which should inform any view that the court might take upon the source of the gull. There was ample evidence from the pursuer's own witnesses to the effect that gulls were nesting on various sites in the vicinity and that they had nested elsewhere in previous years also. The pursuer's approach to this issue was based upon flawed reasoning: she sought to wed gulls to the LBC roof and at the same time divorce the LBC from its surroundings. The reality, counsel contended, on the evidence before the court, presented a rather messier picture. Counsel submitted that in this case the agent of the accident (the seagull) was a wild natural thing which was able to come and go as it wished, and could not be compared, for example, to a car in a car park or to an aerial on a building. Counsel submitted, rather eloquently, that we no more permit seagulls than we permit rain.

[15] Turning to imputed knowledge on the part of the defenders in respect of other gull swooping incidents spoken to by the pursuer's witnesses, counsel submitted that the incident involving Mrs Knox was irrelevant on the basis that it occurred, at the latest, in 2007, which was prior to title passing to the defenders in May 2008. The complaint made by Mrs Walsh was not relevant, counsel argued, as she, like Mrs Knox, was unable to say where the bird had come from, and in her case she could not attribute a date prior to 17 June 2010 for the incident. Mr Swankie had placed his experience of a bird swoop near the beginning of his tenure as janitor over the period of May to October 2010 and had seen the bird involved in his incident coming down from the roof of the LBC as he got out of his car. In his case, however, it was simply not clear, and in turn the court could not be satisfied, that his incident had taken place prior to the pursuer's accident date.

[16] Offering a very general assessment of the evidence, counsel submitted that the pursuer was a credible and reliable witness, but noted that she did not see a chick in the car park and further noted that no other witness spoke to seeing a chick there on 17 June 2010. The parties' experts were both excellent with a full practical knowledge of their subject, in counsel's view. He submitted that, on a consideration of the whole evidence before the court, the pursuer had not discharged the burden of proof upon her with regard to the factual foundation required for her claim to be endorsed by the court. The pursuer had fallen into a trap by using the proximity of the gull to the LBC building as the only relevant variable in seeking to establish that factual foundation. Counsel contended instead that proximity should not be used as a proxy for causation in law.

[17] With regard to the cases of fault and breach of statutory duty advanced for the pursuer, counsel argued that the case under the 1960 Act (and at common law) rested upon evidence of complaints of other swooping incidents, and that this evidence was not of such a quality to allow the court to hold that the defenders could have foreseen such an accident as did occur on 17 June 2010. In any event, the pursuer had not been able to establish where the gull came from on that date. The case advanced for the pursuer under regulation 5 of the 1992 Regulations was flawed. That regulation was not concerned with relative efficiency, and here the inefficiency contended for on behalf of the pursuer, when seen in the round, arose from the presence of large numbers of gulls in the vicinity of the Clyde. The pursuer in this way was erroneously making the efficiency of the general environment in which the LBC was situated synonymous with the efficiency of the LBC building itself. In any event, regulation 5 was properly concerned with maintenance, rather than construction: Jaguar Cars Ltd v Coates [2004] EWCA Civ 337, per Tuckey LJ at paragraph 12; and Wallace v Glasgow City Council [2010] CSOH 88, per Lord Tyre at paragraph 20. Counsel noted that the Inner House had overturned Lord Tyre's decision in Wallace, but vitally in his submission had not done so on the issue of regulation 5: Wallace v Glasgow City Council [2011] CSIH 57, Opinion of the Court delivered by Lord Clarke at paragraph 15. Counsel further, and very properly, drew the court's attention to the contrary decision on regulation 5 in Butler v Grampian University Hospital NHS Trust 2002 SLT 985 per Lord Macfadyen at 987 J‑L (paragraph 15). The case advanced in terms of regulation 17 of the 1992 Regulations was also fundamentally flawed, contended counsel, making as it did the LBC building and its environment synonymous. The regulation, related as it was to traffic routes in a workplace, could not be said to impose an obligation on persons such as the defenders to police the environment as apparently desiderated by the construction advanced on the part of the pursuer in this action.

[18] In light of these submissions, counsel for the defenders moved the court to assoilzie the defenders from the conclusions of the summons.

Discussion and decision
[19] The antecedent question for the court to determine in considering the issue of liability in this case is whether the pursuer has established on the balance of probabilities that the seagull which attacked her on 17 June 2010 came from the LBC, which by concession of the defenders was owned, occupied and operated by them. The starting point for consideration of that question is the evidence of the pursuer herself. I have indicated already that I considered her an impressive witness who was wholly credible and reliable in her account of the events of 17 June 2010. She was indeed the only witness who spoke directly about the incident, and importantly as such she was unable to say whether the bird had come from the LBC roof. Several witnesses spoke to the nesting of gulls in other buildings in the area. Mr Thomson, the pursuer's expert, emphasised with much enthusiasm the suitability of a nearby building with a corrugated roof as a seagull nesting site and recalled from his visit to Greenock in May 2013 the presence of six pairs of each species of gull on a building lying between 100 and 150 yards to the southeast of the LBC. Mr Campbell, the only witness to have been on the roof, was on site daily from October 2008 to July 2009 and encountered no nesting gulls on the roof of the LBC. He confirmed the presence of gull nests on other nearby buildings. Against that factual background, which I accept, I consider the analysis of Mr Rock to be well-founded. Of two very good experts, he was the more impressive on matters of detail. He was in complete command of his subject, namely gull behaviour in the urban environment. His position in re‑examination, having been skilfully cross-examined by counsel for the pursuer for a period in excess of four hours, was that when considering where any chick might have come from (the object of protective behaviour from the adult gull involved in the incident with the pursuer on 17 June 2010), one requires to know the number of breeding pairs on the various buildings in the area. This is in my view a matter of straightforward logic. If on building X there are no breeding pairs, for example, and on building Y there are several breeding pairs, it follows that it is likely to be the position that any chick/adult gull involved in a swooping incident such as that involving the pursuer, came from building Y, in the absence (as in this case) of direct evidence about where the bird involved came from. Although there was evidence about nests being on the roof of the LBC (for example, Mr Martin spoke of the removal of nests on 30 June 2010), in the light of the evidence before the court concerning the presence of nests on a variety of adjacent buildings, I have concluded that there is simply insufficient evidence before the court to allow the court even to begin to make an informed assessment regarding the relative numbers of breeding pairs on the various buildings in the area of the LBC as at June 2010, and I accordingly find the pursuer's evidential contention on this primary issue to be non probatum. There is at the heart of the pursuer's case on the facts a false step, namely the conflation of topographical proximity and analysis of causation. Wild birds such as the herring gull or lesser black-backed gull in rural areas, urban centres or even in coastal industrial estates cannot be said, in my view, to be containable or indeed the easy subjects of organisation in terms of our miscellaneous regulations or statutes. They are free, wild creatures, and in any exercise of behavioural assessment or prediction such as that attempted on behalf of the pursuer in this case, to rely on physical proximity as a single variable in persuading a court to make a finding in fact about where the swooping bird came from on 17 June 2010 in the absence of direct evidence, is fundamentally misconceived.

[20] While this finding is sufficient to dispose of the action, I turn now nevertheless to the merits and first to the pursuer's case under the Occupiers' Liability (Scotland) Act 1960. Section 2(1) of the 1960 Act is in the following terms:

"2. (1) The care which an occupier of premises is required, by reason of his occupation or control of the premises, to show towards a person entering thereon in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them and for which the occupier is in law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger".

As the Extra Division in Dawson v Page, supra, at 439 (paragraph 14) stated: "The familiar concept of reasonable foreseeability clearly underlies fault in this context." It is clear then that in order to bring home liability to the defenders under this provision the pursuer requires to establish that complaints of analogous swooping incidents were made to the defenders prior to the date of the pursuer's accident. Mrs Walsh gave evidence of a swooping incident which at first she described as occurring in the middle of May 2010. She had helpfully researched matters before coming to court and had, to her surprise, found no written evidence in respect of this matter. Her final position in evidence on the date of her own incident was that she was not sure whether it had taken place before 17 June 2010 and that indeed she could not give a date for it. The incident involving Mrs Knox can be discounted on the basis of its antiquity and further on the basis that she was silent on whether she had reported the matter to any employer or other person, let alone any predecessor in title to the defenders. In any event, her evidence was, like that of Mrs Walsh, silent in respect of where the bird involved in her incident had come from. This leaves the incident involving Mr Swankie. He alone was able to attribute the provenance of the bird to the roof of the LBC. He worked as a janitor at the building from May to the end of October 2010. The swooping incident described by him, on his account, occurred "possibly near the start" of his employment period. There was no indication in his evidence that he had made any report of this incident to someone such as Mr Williamson. I am not prepared to hold on the basis of this evidence, considering it as a whole, that knowledge of any incidents prior to 17 June 2010 involving swooping gulls can be attributed to the defenders. The pursuer's case under the 1960 Act accordingly falls on the first hurdle of reasonable foreseeability. It follows that in these circumstances the associated common law case also falls to be repelled.

[21] The pursuer of course advanced further statutory cases under regulations 5 and 17 of the Workplace (Health, Safety and Welfare) Regulations 1992. It was a matter of concession on the part of the defenders that the 1992 Regulations applied to the defenders who in the circumstances of their ownership, occupation and control of the LBC were in the position of employers.

[22] Regulation 5(1) of the 1992 Regulations is in the following terms:

"5. (1) The workplace and the equipment, devices and systems to which this regulation applies shall be maintained (including cleaned as appropriate) in an efficient state, in efficient working order and in good repair."

In the course of his submissions, counsel for the pursuer appeared to elevate this statutory duty to an absolute obligation, advancing the proposition in the course of his argument to the effect that the pursuer in the circumstances of this case should not have come home injured. For my part, in the event that there are two competing constructions of a provision, I am in entire agreement with the pursuer's counsel that the interpretation which favours protection of a worker should be preferred by the court. I further accept that the word "efficient" in regulation 5(1) must be read in the context of the health, safety and welfare of workers. Nevertheless, it is clear from the analysis of the Court of Appeal in Jaguar Cars Ltd, supra, at paragraph 12 (which analysis was accepted by Lord Tyre in Wallace, supra, at paragraph 20, and of course post-dated the decision of Lord Macfadyen in Butler, supra) that regulation 5 addresses the issue of the maintenance rather than issues such as the construction of the workplace:

"As its heading and content makes clear, regulation 5 is concerned with maintenance. One must look elsewhere in the regulations to see what is required to be provided." (per Tuckey LJ in Jaguar Cars Ltd, supra, at paragraph 12)

Accordingly, insofar as the pursuer desiderates measures such as use of spiking, meshing and netting, it is not difficult to see that these relate to matters of provision and construction rather than maintenance. With regard to the simple step of removal of nests, albeit to be repeated regularly, I take the view that in the context of the evidence before me such acts of removal are properly to be seen as control measures and do not amount to maintenance. The pursuer's case under regulation 5 accordingly fails also.

[23] Regulation 17 of the 1992 Regulations is in the following terms:

"17. (1) Every workplace shall be organised in such a way that pedestrians and vehicles can circulate in a safe manner."

The remaining paragraphs of regulation 17 appear to indicate that this regulation primarily relates to vehicles and pedestrians. I have no difficulty, however, with the pursuer's contention that regulation 17(1) is broader than such matters in its object. I am further in full agreement with the pursuer's counsel to the effect that a person such as the pursuer should be able to circulate in safety in her workplace. The pursuer's case on the merits under this regulation fails, however. The pursuer has failed to tie in the attacking bird to the roof of the LBC. That is of course a different and antecedent point in this case, but it is also an important one in the context of consideration of regulation 17. It is simply, in my view, not feasible to consider the behaviour of wild creatures such as herring gulls and lesser black-backed gulls in the context of a regulation such as regulation 17(1) which addresses the organisation of a workplace. This is especially so when knowledge of an actual problem has not successfully been imputed to persons such as the defenders in this case.

Disposal
[24] For all of these reasons, I pronounce decree of absolvitor in this action. Meantime I reserve all questions of expenses, pausing only to observe that it is regrettable, in a case where damages were valued by parties by agreement at £7,000 and where the vast majority of witnesses came from the West of Scotland and in particular the Greenock area, that this case took five days to complete in this court. In making that observation I wish nevertheless to record my appreciation of the professionalism and care of both counsel in their presentation of evidence and submissions which greatly assisted the court in disposing of this interesting and rather unusual case.