Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 42

PD1340/15

OPINION OF LORD TURNBULL

In the cause

THOMAS FLEMING

Pursuer;

against

GLENDOICK GARDENS LIMITED

Defenders:

Pursuer:  Middleton;  Slater & Gordon

Defenders:  Martin-Brown;  BLM Law

15 March 2016

Introduction

[1]        The pursuer in this case was employed as a general assistant in the restaurant operated by the defenders at their garden centre in Glendoick, Perth. He claims damages for injuries sustained at his place of work on 20 June 2012 based upon the premise that he slipped on pieces of onion that had been left on the kitchen floor, causing him to fall and injure his left knee.

[2]        As restricted in closing submissions, the pursuer’s case is based on breaches of his employer’s common law duties to take reasonable care to provide him with a safe place of work and to devise and enforce a safe system of work, along with breaches of Regulations 9(1), 9(3) and 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992. The issues in the case were, first, whether the pursuer had established that the accident occurred in the way founded upon by him, secondly, if so, whether the accident was caused by breach of duty on the part of the defenders, and, thirdly, if so, whether the pursuer’s own negligence contributed to any extent to his accident.

The pursuer’s accident

[3]        The pursuer’s work duties included clearing tables in the restaurant and removing dirty plates and cutlery to the dishwashing area in the kitchen. He would also from time to time be responsible for taking various items from the kitchen to the restaurant in the public area.  Around 13:15 hours on the day of his accident he was instructed by another employee, Ms Allison Winn, to take two water jugs from the restaurant area into the kitchen to be refilled and returned to the restaurant for use by customers. His route took him through a short corridor in the kitchen to the area where workbenches and other kitchen items were located, at which point he turned approximately 90° to his left intending to make his way towards the sink.  Having done so he slipped and fell to the ground injuring his left knee. He did not know what had caused him to lose his footing.

[4]        No one saw the pursuer fall but other members of staff who were nearby, or in other parts of the premises, came to provide him with help.  Ms Kirsten Duffy was in the area of the dishwasher when she heard the noise of the pursuer falling. On turning to look she saw him on the floor and went over to assist.  Ms Winn was in the public area of the restaurant near to the entrance to the kitchen through which the pursuer had commenced his journey. She heard a noise and when looking into the kitchen saw the pursuer lying on the floor and went to assist him.  Ms Carol Hunter, the Assistant Manager of the restaurant, was in her office in the rear area of the kitchen when she was told that the pursuer had fallen.  She went into the kitchen and found him on the floor being assisted by others.  Ms Heather Borderie, the Operating Director of the Garden Centre, also attended on being informed and found the pursuer on the floor sitting propped up against an item in the kitchen. The pursuer was then taken into Ms Hunter’s office where she discussed the circumstances of the accident with him and completed an Accident Report Book, No. 7/3 of process.

Conflicting aspects of the evidence

[5]        In his evidence the pursuer explained that prior to his accident he took a number of glasses on a tray from the kitchen into the restaurant.  He was then asked by Ms Winn to refill two water jugs, each of which was almost empty.  He placed the jugs upright on his tray and carried them into the kitchen in that fashion and did not spill any of the water.  He denied that the information about the circumstances of his accident which had been entered into the Accident Report Book had been provided by him and initially denied that Ms Hunter had asked him for any information about what had happened.  He claimed that a few days after the accident he was communicating with Ms Duffy on Facebook when she informed him that she had seen pieces of onion underneath him somewhere after his fall.

[6]        Ms Winn’s evidence was that the pursuer did not have a tray and carried one jug in each hand, with the top of each jug angled inwards towards the other.  On her evidence one of the jugs was empty and there was a little water, perhaps a couple of inches, in the other.

[7]        Ms Duffy’s evidence was that she saw a tray on the floor and that the pursuer might have been carrying plastic jugs or something on it. When the pursuer was helped to his feet she saw about half of a handful of chopped onion on the ground in the area where he had been sitting.  She denied being in any form of contact with the pursuer in the days after the accident.

[8]        Ms Hunter explained that the Accident Report Book was completed by her in her office in the presence of the pursuer. In the part of the form headed: “Description of incident” she had entered the words: “Slipped on Water From Water Jug That Spilt. Hurt Left Knee” and confirmed that this is what the pursuer told her.  In the passage headed: “Action taken/recommendations” she had entered the words: “Use A Tray To Carry Water And Proper Footwear Not Trainers”, although she was not able to remember how she came to these conclusions.

[9]        Each of Ms Hunter, Ms Winn and Ms Borderie said that there were no pieces of onion, or for that matter any water, in the area around where the pursuer fell, either whilst he was on the ground or after he had been helped up.

General circumstances within the kitchen

[10]      Ms Hunter was responsible for undertaking kitchen risk assessments on behalf of the defenders and spoke to the reports which she had prepared, including No. 7/2 -7 of process, the report dated February 2012 in which it was noted that spillages constituted risks to be guarded against.  She acknowledged that this was intended to include spillages of food, liquid, water and other items from plates and that the probability of frequency of slips and the likes due to spillages would be higher than the medium rating attributed by her in the report at times when the restaurant was busy.  All of the witnesses who were led gave evidence concerning the health and safety training provided to new employees and it was clear that all employees were aware of the need to clean up any spillages which they caused themselves or of which they became aware immediately and before continuing with other tasks, referred to by some as “cleaning as you go”.  General cleaning duties were undertaken by other employees each morning and evening, which included mopping and sweeping the floor.

[11]      On the workbench nearest to where the pursuer fell there was quite a large implement which looked like some form of food processor or the like. It was described in evidence as a device used for grating cheese. Some witnesses also thought that it was used for grating or dicing vegetables, including onions.  Some food preparation was undertaken on the workbenches further away from the area where the pursuer fell but the generality of the evidence suggested that, when necessary, prepared food was taken in containers from the kitchen to the counter area in the restaurant where it was plated as required.  Used crockery and leftover food ought to be brought from the restaurant to the dishwashing area in the kitchen using a separate route from that taken by the pursuer in compliance with the one-way system in operation between the kitchen and restaurant. The route which the pursuer took prior to his accident ought ordinarily to be used by those leaving the kitchen rather than entering it.  Having brought used items into the kitchen, employees would then return to the restaurant passing the point where the pursuer fell and might do so carrying trays which had not been wiped down properly and could therefore still have items of leftover food on them.

Submissions for the pursuer

[12]      I was invited to accept the pursuer as an honest and reliable witness and to accept the evidence of Ms Duffy to the effect that pieces of chopped onion were seen on the floor after his fall.  I was asked to infer that the reason for the pursuer’s fall was that he had stood on these pieces of onion causing him to slip whilst carrying a tray with water jugs on it.  I was asked to conclude that there were a number of circumstances described in the evidence which could explain the presence of dropped pieces of onion on the kitchen floor, that spillages of this sort had been identified as a risk within the kitchen environment, that the presence of this risk was what caused injury to the pursuer and that the presence of this risk demonstrated that the training and instructions which the defenders had in place were inadequate or had not been complied with.  In these circumstances I was invited to conclude that the defenders were in breach of their common law duties and the duties imposed by the Regulations mentioned above.

Submissions for the defenders

[13]      On behalf of the defenders I was invited to conclude that the pursuer had failed to prove there was any onion present on the floor, or that the presence of onion had caused him to slip.  In the event of being satisfied that the pursuer had established the cause of his fall as relied upon I was invited to conclude that the defenders had complied with all of the duties incumbent upon them.

Discussion

[14]      Overall, the evidence satisfied me that the defenders’ kitchen premises were well-run and kept in a clean condition.  There was good attention given to risk assessment and appropriate and effective training was given to employees. This view was reflected in the pursuer’s own evidence. There was no evidence of regular unattended accumulation of foodstuff or other conditions leading to risk. There was a degree of ambiguity in the evidence as to what was meant by the term “clean as you go”.  To the extent that counsel for the pursuer sought to rely on the evidence of Ms Hunter, my own assessment of what she was describing was a high level of supervision and constant enforcement of standards.

[15]      No witness spoke to seeing any pieces of onion on the kitchen floor near to where the pursuer slipped prior to his fall.  The general contentions advanced on his behalf were that the grating machine might have been used for chopping onions and that some could have fallen onto the floor, or that some onion could have fallen out of a container being taken from the kitchen to the front counter, or that some leftover food items could have dropped off a plate if being brought along the incorrect route, or that some leftover items might not have been wiped off a tray properly and may have fallen to the floor as an employee made his or her way back to the restaurant using the correct route.  There was no evidence of any activity such as might be consistent with any of these explanations in the period shortly before the pursuer’s fall.

[16]      Although aged 32, the pursuer presented as a rather vulnerable individual. For the most part I was satisfied that he gave his evidence in a careful, honest and reliable manner. There was though one particular passage which stood in quite stark contrast to the remainder of his testimony.  In examination in chief he denied providing Ms Hunter with the information which she recorded in the Accident Report Book concerning how the accident had occurred.  In cross examination he accepted that, having taken him to the staff room, Ms Hunter spoke to him and asked him questions to enable her to complete the report.  In re-examination, using words of his own, he explained that Ms Hunter had asked him how he had hurt himself and what could be done to make sure the same did not happen in the future.  On being asked what he had replied he then claimed not to remember. I found Ms Hunter’s evidence on this topic to be straightforward and acceptable.  It was obvious from the totality of the pursuer’s own evidence on the matter that he did have a recollection of what had transpired in Ms Hunter’s office, that he did give her the account which she had recorded, that his denial of doing so was untrue and that his subsequent claim of not being able to recollect what he told her could not be accepted.

[17]      It follows that at the time of his accident the pursuer himself thought that he had slipped on some water which had spilled from a jug that he was carrying.  Whilst Ms Hunter herself could not recollect why the recommendations section of the report had been completed as it was, it seemed to me that the inference which flowed most reasonably was that the pursuer had informed her that he was not using a tray to carry the jugs.  This of course would be inconsistent with his own evidence but consistent with that given by Ms Winn and leads me to have significant doubts as to whether I can accept that the pursuer carried the water jugs in the manner described by him.  I think it more likely that Ms Winn’s evidence on this matter is reliable.

[18]      The only witness who spoke to the presence of onion on the kitchen floor was, of course, Ms Duffy and her evidence was therefore crucial to establishing the pursuer’s case. Her age was not taken in evidence but it was clear that she was quite a young lady and, for the most part, it seemed to me that she gave her evidence in a straightforward fashion. However, I concluded that there were a number of aspects of her testimony which were not reliable.  In evidence in chief she described hearing the noise of the pursuer falling but it was plain that she had not seen him approaching.  Any impression which may have been formed that she had seen the pursuer carrying jugs on a tray was clearly a misunderstanding.  Her recollection of what she saw when she looked over to the pursuer seemed hazy and unreliable.  Having stated that she went over to assist the pursuer, her evidence was that when he stood up she saw bits of chopped onion on the floor in the area where he had been sitting.

[19]      In cross examination Ms Duffy’s position was weak. When asked if she might be mistaken about seeing some onion on the floor she seemed to indicate that with the passage of time she was no longer sure but that she remembered giving a statement that she had seen some onion.  It became clear that she was referring to a precognition which she had provided to the pursuer’s solicitors but there was no evidence led to identify when this had been taken or what its contents were.  Nor did she have any recollection of discussing matters with the pursuer in the few days after the accident as he had claimed.  Ms Duffy’s evidence was that she thought somebody had cleaned the onion up after the pursuer had been taken away but she was unable to suggest who this might have been and it was not suggested to any of the other witnesses that they had done so.

[20]      Each of Ms Hunter, Ms Winn and Ms Borderie was present at the scene before the pursuer was helped up from the floor and taken to Ms Hunter’s office. Each denied in a clear and confident manner that there had been any onion lying on the floor.  I accepted that their evidence on this was given in an honest and reliable manner. In light of the quality of the evidence given by Ms Duffy, and the stark conflict which was present between her evidence on the one hand and the evidence of the three ladies on the other, I was not able to accept that Ms Duffy was reliable in her evidence about the presence of the onion.

[21]      Counsel for the pursuer was no doubt correct in submitting that none of the other ladies spoke to seeing spilled water either, or even to seeing the presence of jugs.  However, they were interested in and concerned about what had happened to the pursuer.  I do not accept that none of them would have noticed it if the onion was in fact there to be seen when he got to his feet.

[22]      In these circumstances I find that I prefer the evidence of the three competing witnesses to the evidence of Ms Duffy, with the consequence that am not persuaded on the balance of probabilities that there was any onion present on the floor in the area where the pursuer lost his footing.  Accordingly, I am not persuaded on the balance of probabilities that his accident was caused in the manner claimed and I have to conclude that his action against the defenders must fail. In these circumstances it is not necessary to consider the question of whether the defenders would have been in breach of any duty had I been persuaded that the cause of the accident was as founded upon in the pursuer’s pleadings.

Decision

[23]      For the reasons which I have outlined above I am not persuaded that the defenders are liable to make reparation to the pursuer and I will grant decree of absolvitor.  I will make an award of expenses in the action in favour of the defenders.