Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 44

PD2458/11

Lord Eassie

Lady Smith

Lady Clark of Calton

OPINION OF THE COURT

delivered by LORD EASSIE

in the Reclaiming Motion

by

MICHAEL LEONARD

Pursuer and Reclaimer;

against

LOCH LOMOND & TROSSACHS NATIONAL PARK AUTHORITY

Defenders and Respondents:

Act:  Cherry QC, L Milligan;  Bonnar Accident Law

Alt:  Milligan QC, Pugh;  Harper Macleod LLP

3 June 2015

Introductory
[1]        The pursuer and reclaimer in this action seeks reparation from the defenders in respect of injuries which he suffered in an accident which occurred on 3 July 2006, when he  was 12 years old.  Following a proof before answer confined to the questions of liability and contributory fault, the Lord Ordinary assoilzied the defenders.  The primary ground upon which the Lord Ordinary rejected the pursuer’s claim was that the requisite mechanics of the accident had not been proved; but he also held that the defenders were in any event not in breach of any duty owed by them as occupiers of the land on which the incident occurred.

[2]        On the day of the accident the pursuer went with his parents and his sister, who was then 16 years of age, on an outing to Balmaha, on the eastern side of Loch Lomond.  Having parked their car in the car park in Balmaha the family went for a walk along the single track asphalt road from the car park to the pier.  At the pier they turned around and on their way back took a path known as the “Balmaha Millennium Forest Path”  upon which they walked up a hill to a viewpoint known as Craigie Fort.  Having taken in the views, the family then set off down the hill taking, at a fork in the way, a path which forms part of the West Highland Way, a long distance walking route.  That path is a more direct route back to Balmaha than the Balmaha Millennium Forest Path.

[3]        As the Lord Ordinary sets out in his opinion[1], after the family had descended some distance on the West Highland Way path the pursuer walked ahead of the other three members of his family and disappeared from their view.  When next seen by them, some two or three minutes later, he was lying on the single track road at the foot of the hill which runs along the side of the loch.  The Lord Ordinary records that the pursuer-

“... was found unconscious lying on his back on the far side of the single track road at the foot of the hill with his head at a 90 degree angle to the fence on the far side and his feet pointing to the middle of the road.  He had his right leg under his left leg and his arms out to his sides, with the back of one hand on the road and the palm upwards, with the fingers slightly elevated.  He had a large swelling in his right eye and dirt and gravel on his hair, clothing and hand.  A passing doctor, a Dutch tourist who was an anaesthetist, rendered first aid to Michael [the pursuer] by putting a finger in his mouth and clearing his airways of dirt, gravel, blood and clear fluid.  Mr Leonard called an ambulance on his mobile phone.  It arrived a few minutes later and transported Michael to the nearby car park, where he was airlifted by air ambulance and taken to the Southern General Hospital in Glasgow.  He was found to have sustained a left acute subdural haematoma with associated small left contusion and minimal shift, a fracture of the right anterior cranial fossa, abrasions to his right arm, elbow, pelvic area, hip, knee and heel and left knee and heel, a swollen right eye, contusions, abrasions and cuts to his nose and right forehead and contusions on his right shoulder.”

[4]        The pursuer could remember nothing of the accident.  The Lord Ordinary summarises his evidence thus:

“[4]      Michael could remember nothing of the accident.  The last thing he remembered was being at the top of the hill and starting to come down it at walking pace.  His footwear consisted of a pair of white trainers.  He next remembered waking up in a room in hospital.  He had no idea how he ended up injured on the road.”

Because the pursuer had gone ahead and was out of their sight, none of his father, his mother or his sister saw what had occurred which unfortunately led to him sustaining the injuries which he suffered.

[5]        At this point it is convenient to describe the relevant topographical features of the West Highland Way as it approaches the asphalt road upon which the pursuer was found lying.  Below the point at which the pursuer had passed out of the sight of his family members, and as it comes towards the road, the path descends generally at about 90 degrees across any contour lines to a point a little above the road at which (as one descends) the path turns sharply to the left.  Downhill from that turn the path proceeds at an angle to any contour lines, and thus at a more gentle gradient, towards the road.  Immediately above that turn in the pathway, the path consists of a “stone pitched path”.  Immediately after the turn the surface of the path consists of gravel or aggregate.  Thereafter the path again becomes a stone pitched path for the final, short section of descent to the road.  At the turn there is a large stone placed to form a water bar (to prevent water flowing down and scouring the gravel or aggregate section of the path).

[6]        There were available to the Lord Ordinary various photographs of the locus, to which reference was made in the course of the evidence;  and a moving image of the route up and down the hill was similarly available as a DVD.  Additionally, the Lord Ordinary himself inspected the locus in the company of parties’ solicitors and counsel and walked over the route which had been taken by the family. 

[7]        The Lord Ordinary was thus very familiar with the relevant topographical features.  In his opinion he refers to a number of photographs and to the DVD as descriptive of those features.  Although not all mentioned in the Lord Ordinary’s opinion, certain measurements were spoken to in evidence by Bridget Jones, the defenders’ head of visitor services, which are not disputed.  For completeness we record that in terms of vertical height difference the water bar stone at the apex of the turn is approximately 2.6 metres above the level of the asphalt road.  Measured in a continuation of the line of the path prior to the turning, the distance from the outer edge of the water bar stone to the landward (as opposed to lochside) edge of the asphalt road is 5.7 metres.  The width of the road itself is 3.4 metres.  On a continuation of the same line, the ground between the apex of the turning and the asphalt road descends first gradually and then more steeply.  The latter, steeper part was sometimes described in evidence and submissions as an “embankment”.  The surface of the ground between the turn and the edge of the road consists of soil with vegetation, principally bracken, but also some small saplings immediately adjacent to the path where it turns at the water bar stone.  With a view to assisting an understanding of our description of the locus we reproduce in an appendix to this opinion four of the photographs lodged in process.

[8]        Before the Lord Ordinary the defenders adduced expert evidence respecting the nature of a “stone-pitched path” and its construction.  For present, explanatory purposes, it is sufficient to say that it is a traditional technique (dating at least to the times of the Roman Empire).  It is now again commonly employed in forming paths in rural areas in order, inter alia, to avoid erosion by the rainwater and footfall, particularly on a gradient; and thereby also to provide the walker with a more secure surface upon which to walk.  Very briefly, the technique involves the setting of naturally formed stones or small boulders – in the jargon referred to as “pudding stones” - into the soil.  The technique intentionally does not seek to provide, or result in, the construction of the pathway of the regularity expected within a building or in a wholly urban setting.  The broadly horizontal surfaces will be at varying angles.  And the “risers” between any “steps” will vary in height.

The cause of the pursuer’s misfortune
[9]        The pursuer seeks to attribute the accident which he suffered to the physical state of the pathway.  As his counsel confirmed to us, the central and crucial averment on behalf of the pursuer is to be found in Statement IV of the Statement of Claim [2]:

“At or above the point where the path turned sharply left on its final descent to the road the pursuer tripped or lost his footing and fell from the path down a steep bank and onto Lakeside Road, thereby sustaining the loss, injury and damage hereinafter condescended upon.”

It was therefore necessary – as the starting point in his claim against the defenders - for the pursuer to prove, on the balance of probabilities, that what initiated or precipitated the sequence of events leading to his being found in his injured state on the roadway was his having tripped or having lost his footing on the path at a point at or superior to the turn.  Plainly, since the pursuer had no recollection of events and he had been out of the view of the other members of the family, and there were no others present, that exercise could only be accomplished by a proof of primary facts enabling the requisite inference properly to be drawn.

[10]      The Lord Ordinary records that before him certain indirect evidence was also relied upon by the pursuer as enabling that inference to be made.  The Lord Ordinary summarises that evidence in paragraphs [7] and [8] of his opinion:

“[7]      There is therefore no direct evidence of what caused Michael to end up lying injured on the road.  In these circumstances it was sought to rely on indirect evidence from which, it was submitted, an inference could be drawn about what happened to him.  That evidence came from Dr Ian McLaren (62), a consultant in emergency medicine at Monklands Hospital, Airdrie and Andrew Petherick (62), a sport and leisure consultant from Bedford.  The evidence of Dr McLaren (given by way of affidavit) was that on the balance of probabilities Michael’s injuries were consistent with a fall from a height.  He thought it most unlikely that Michael’s injuries were caused by impact with a motor vehicle on the road as in that event he would certainly have expected serious leg injuries.  He considered it far more likely that Michael sustained his injuries by falling down the embankment onto the road.  He thought it was likely that Michael was travelling with some momentum when going down the path – that is to say, not walking.  He accepted that he could have been running voluntarily or involuntarily as he had lost his balance and was being propelled down the embankment.  On the assumption that Michael fell down the embankment from the downhill path he found it difficult to reconcile the fact that he travelled 3.4 metres to the opposite side of the road with his having only been walking on the path before his fall.  It was pointed out that there was no evidence from the other members of the Leonard family that Michael had been running before he was out of their sight. 

[8]        The evidence of Mr Petherick was to the effect that anyone coming down the path would find it hard to control the speed of his descent and that tripping hazards in a sharp turn in the path above the embankment were not readily visible to the discerning walker.  He said that if someone tripped above the embankment the likelihood was that he would fall forward onto the embankment and not the path because of the 90 degrees turn in the path immediately above the embankment and it would be quite possible for him to do a gymnastic roll, particularly if his momentum was increasing as he came down the path.”

[11]      Having properly recognised under reference to certain authorities that it is of course open to a court to make findings on the causation of an accident by way of drawing a justifiable inference from other facts, the Lord Ordinary noted – on our reading, essentially as an example of a case in which the requisite inference could not be drawn – Fegan v Highland Regional Council 2007 SC 723.  In that case the court was readily able to infer that the pursuer (Ms Fegan) had been injured by falling over a sea cliff but no justifiable inference could be drawn as to the matters which had led to Ms Fegan’s having, unfortunately, fallen over the cliff in question.  The Lord Ordinary then concluded:

“[11]    In the present action, which went to proof on the issue of liability alone, the mechanics of the accident have not been proved.  There is no evidence to prove the crucial averment that at the point where the path turned sharply to its left on its final descent to the road Michael tripped or lost his footing and fell down a steep bank onto the road.  There is no evidence about precisely where any trip or fall occurred on the hill (even whether it occurred on the path), or what caused any such trip or fall.  There are several possibilities which come to mind as well as tripping to account for Michael ending up lying on the road: he could have been running down the hill so fast that he could not stop running, he could have jumped from the hill onto the road, or something could have happened to him on the road itself to cause him to end up in the position on which he was found.  What caused him to end up in that position must remain a mystery.  That being so, his action must fail.”

The criticism of the Lord Ordinary’s conclusion on the mechanics of the accident
[12]      In challenging the Lord Ordinary’s conclusion that the pursuer had failed to prove that the accident had been caused in the manner averred, counsel for the pursuer submitted that the Lord Ordinary had failed to narrate or set out the detail of what, she contended, were significant chapters of evidence.  The Lord Ordinary had overlooked or misstated the evidence in those chapters.  Those chapters of evidence are catalogued in the written note of argument for the reclaimer under six heads.  It is convenient and appropriate to consider each in turn.

[13]      The first head refers to passages said to have been overlooked and which consisted of passages in the evidence of the pursuer’s father, mother and sister to the effect that while the pursuer was with them they were walking or “ambling” along; and that in so far as the pursuer had any recollection, he too thought he had been proceeding at a walking pace.  In our view it is incorrect to say that the Lord Ordinary has overlooked this evidence.  As respects the pursuer’s testimony, we have quoted above paragraph [4] of the Lord Ordinary’s opinion in which the Lord Ordinary records the pursuer’s recollection of coming down the hill at a walking pace.  Similarly the Lord Ordinary finds that when the pursuer left the immediate company of his family he “walked ahead”.

[14]      Secondly, counsel submitted that the Lord Ordinary had failed to set out the evidence of the family members respecting the state of the path below the point at which the pursuer had disappeared from their view and the difficulties which they said they had experienced in negotiating it.  However, as counsel for the defenders pointed out, the Lord Ordinary not only had before him the photographic materials respecting the path but also had the benefit of his accompanied site inspection.  There is no suggestion in the evidence that on the day of the accident the condition of the path was in any material respect different from its state at the times when it was photographed or inspected by the Lord Ordinary.  It may be added that, in so far as any family member expressed any real difficulty in negotiating the path, this was at the stage at which they were hurrying to reach the pursuer whom they had seen lying on the roadway.  Further, it is evident from paragraph [25] of the Lord Ordinary’s opinion that he well appreciated that the path in question presented the risks of tripping or slipping inherent in any hill path if care were not taken.  We therefore find that this criticism also lacks merit.

[15]      The third point advanced in this branch of the submission on behalf of the pursuer concerned the Lord Ordinary’s description of the time between the pursuer’s disappearance from his family’s view and their subsequent sighting of the pursuer lying unconscious on the roadway.  The pursuer’s mother had estimated an interval of 30 seconds and the Lord Ordinary had failed to note that in his opinion.  He had instead taken the father’s evidence of an interval of two to three minutes.  We observe, as did counsel for the defenders, that while Mrs Leonard initially offered an estimate of some 30 seconds, she later, and perhaps understandably, accepted in her evidence that such an estimate might be wrong and she did not demur from her husband’s view of the lapse of time.  Estimates of time are notoriously difficult to make, particularly in circumstances such as those of the present case.  The precise length of the short time which elapsed between the pursuer walking out of sight of the rest of the party and next being seen lying on the roadway is in many ways of no materiality.  Counsel for the pursuer was unable to advance any reason to the contrary.

[16]      Fourthly, it was contended that the Lord Ordinary had ignored evidence relating to the resting position of the pursuer’s body on the roadway.  But, as members of the Bench pointed out to counsel during her oral submissions, the Lord Ordinary made detailed findings respecting the position of the pursuer’s unconscious body.  We have already quoted these.  Counsel did not seek to challenge the accuracy of the Lord Ordinary’s findings in this respect.  Under this head, the note of argument makes reference to the evidence of Dr Ian McLaren, a consultant in emergency medicine, and Mr Andrew Petherick, a leisure and sports consultant.  But they were not witnesses to the facts of where the pursuer’s unconscious body was found.  Counsel for the defenders observed, in our view rightly, that since the Lord Ordinary had set out fully his findings as to the position of the pursuer’s body when he was found and the accuracy of those findings was not open to challenge, it was hard to see that the location of the body (some nine metres from the turn in the path) did other than militate against the making of any inference that the pursuer had tripped or lost his footing while on the path.

[17]      The fifth head of criticism is that the Lord Ordinary ignored -

“... evidence that it was the immediate assumption of those who were there and saw what happened before and after the pursuer went out of sight that he had lost his footing and had fallen over the embankment to the road.”

As counsel for the defenders observed in his response, the assumptions formed by the pursuer’s father, mother and sister, all of whom did not see what happened to the pursuer, could only be views reached from their impression of some of the primary facts now before the court.  In deciding what inferences were to be drawn from those primary facts, the assumptions of the family members were not relevant.  Indeed, it would have been wrong for the Lord Ordinary to have attached weight to them.  We agree with those observations.  We would add that in so far as Mrs Leonard and the pursuer’s sister indicated in their evidence an assumption - not simply that the pursuer had somehow sustained a fall from the embankment onto the roadway, but that he had indeed tripped on the path - it is far from clear that this was a contemporaneous conclusion.  For what it may be worth, the account given by the pursuer’s father to the emergency services was that the pursuer “has fell off a cliff and he’s unconscious”.  The pursuer’s father’s immediate assumption was thus that the pursuer had fallen from the embankment and not that he had sustained a trip or fall on the pathway.

[18]      Lastly, it is said on behalf of the pursuer that the Lord Ordinary left out of account evidence from the pursuer’s father – and to a limited extent from his sister – respecting the finding of dirt on the pursuer’s body and clothing.  In our view it is again not correct to say that the Lord Ordinary overlooked that evidence.  As already narrated, he records as a finding in fact that the pursuer had “... dirt and gravel on his hair, clothing and hand”.  But in any event, as counsel for the defenders pointed out, the fact that the pursuer had dirt and gravel on parts of his body and clothing tells one little, if anything, as to the circumstances in which he came to be lying on the roadway; in particular, it does not assist in any respect in showing that the pursuer tripped or lost his footing while on the pathway.

[19]      In these circumstances we consider that the leading contention advanced on behalf of the pursuer to the effect that the Lord Ordinary ignored or misstated relevant chapters of evidence is without substance.  In her oral submissions counsel made complaint that the Lord Ordinary had not narrated in detail the evidence of the family members before the pursuer disappeared from their view and after they had found him on the roadway; and that the Lord Ordinary had not set out in detail her written submissions on the evidence respecting the cause of the unfortunate mishap.  In our opinion there was no need for the Lord Ordinary to do so.  The Lord Ordinary properly addressed himself to what was relevant and material and in doing so did not omit evidence of any relevant fact.  Despite invitation from the Bench, counsel for the pursuer was unable to say what primary fact or facts she contended the Lord Ordinary ought to have found, but did not find, and which, if found, would have directed the Lord Ordinary to drawing the inference that the pursuer tripped or lost his footing on the path.  Counsel further accepted that she was quite unable to say at what point on the path she contended that the pursuer tripped or otherwise lost his footing.  She thus could not say what particular feature, if any, caused the pursuer to trip.

[20]      In these circumstances we consider that the Lord Ordinary was well justified in concluding that such primary facts as had been established in the evidence did not enable him properly to draw the inference – crucial as the first step in the case advanced against the defenders – that the event precipitating the pursuer’s injuries was that he tripped or lost his footing on the path.  The Lord Ordinary was equipped, not only by way of photographic materials but also from his inspection of the locus, with direct knowledge of the relevant topography.  While at times counsel for the pursuer sought to describe the path, at its turn, as bordering on some almost cliff-like drop, it is clear that a significant area of ground lay between the turning point and the roadway.  The photographs taken a little later in the summer of 2006 show it to be covered with vegetation.  Dr McLaren’s expertise as a medical practitioner could no doubt assist in excluding as a cause of the accident a collision with a motor vehicle.  To what extent, as an expert, he might go beyond that may be debatable but in any event he had understandable difficulty in comprehending how someone walking on the path who sustained a trip or fall could end up in the position in which the pursuer did.  Mr Petherick (again without expertise in this field) had to postulate some apparent form of gymnastic roll.  For our part in addition to, or perhaps more accurately in elaboration of,  the real possibilities canvassed by the Lord Ordinary, it is evident that the pursuer, a 12 year old boy,  may have decided to take a shortcut down to the roadway and in doing so came to grief in negotiating the embankment.  Or he may have jumped from the embankment and landed awkwardly hitting his head on the roadway.  Or he may have been running.  One simply cannot tell.

[21]      Further, even if the primary facts might allow the necessary inference to be drawn, it is in our view plain that they do not compel that inference.  Counsel for the pursuer did not submit to us that no reasonable trier of fact could fail to draw that inference or that the Lord Ordinary was “plainly wrong” in not doing so.

[22]      Accordingly, we must conclude that on this primary issue respecting the mechanics of the accident, the argument for the pursuer in this reclaiming motion fails.  For that reason the reclaiming motion must be refused.

[23]      It is therefore unnecessary for us to give any detailed exposition of the pursuer’s submissions on whether the Lord Ordinary was in error in holding that – on the important, but un-established, assumption that the pursuer did somehow trip or lose his footing on the path – no liability accrued to the defenders.  However, putting matters very briefly, we are satisfied that the Lord Ordinary was not in error in that respect. 

[24]      The approach of the Lord Ordinary was first to consider whether the stone pitched path which had been put in place contained defects or departures from normal expectations in such a path.  The defenders tendered expert evidence respecting the construction of stone pitched paths from Bridget Jones and Mr Douglas Baird.  Those witnesses were, in our view, plainly well qualified to give that expert testimony.  By contrast, Mr Petherick was on any view much less qualified to give expert evidence on the matter.  We consider that, for the reasons which he gives, the Lord Ordinary was fully entitled to reject the evidence of Mr Petherick and to hold that the path in question had been constructed to and met accepted standards for stone pitched paths.

[25]      Having reached that conclusion, the Lord Ordinary reviewed the authorities and correctly concluded that the law is to the effect that there is no duty on an occupier of land to warn or fence against obvious dangers.  In so far as a stone pitched path – as in the case of any rural path- inherently presents some risk of tripping or slipping, the Lord Ordinary was in our view well entitled to regard such as an obvious danger to which those using such a path required to be alert and to exercise appropriate care.  Counsel for the pursuer sought to make some exception – and to distinguish Fegan v Highland Council 2007 SC 723 - on the basis that in the present case the path, at its turn, took the walker to the brink of some precipitous drop, which required to be fenced.  But the Lord Ordinary had the benefit of his own inspection of the locus; and for our part, we do not consider that any of the still or moving images in the case, or the accepted relevant vertical and horizontal dimensions contained in the evidence before the Lord Ordinary, give credence to counsel’s somewhat extravagant description of the sloping of the land between the turn in the path and the road. 

[26]      Accordingly, we do not find any error in the conclusions reached by the Lord Ordinary.  For all these reasons the reclaiming motion must be refused.

APPENDIX

Photograph 1 – View of the path descending towards the turn (taken August 2006).

Photograph 2 - View taken from shortly above the turn, with the water bar stone in the centre;  the person standing on the road is at the approximate position in which the pursuer was found (taken August 2006).

Photograph 3 - View from the road showing the descent of the path to the road (after the turn) and the sloping of the ground from the turn to the road.

Photograph 4 - View uphill from the road towards the turn (with the water bar stone central).