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Cite as: [2023] CSOH 94, [2023] ScotCS CSOH_94

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OUTER HOUSE, COURT OF SESSION

[2023] CSOH 94

A164/21

OPINION OF LORD YOUNG

In the cause

JON WILLIAM DAVIE

Pursuer

against

(FIRST) POWERTEAM ELECTRICAL SERVICES (UK) LIMITED

(SECOND) VINCI ENERGIES UK HOLDING LIMITED

Defenders

Pursuer: J Brodie KC, C Oliver; Jones Whyte LLP

Defenders: L Shand KC; BTO LLP

19 December 2023

[1]

This case came before me on the procedure roll on the joint motions of both

defenders. The first and second defenders seek dismissal of an action of damages for

personal injuries raised by the pursuer.

The pursuer's pleadings

[2]

The pursuer sustained a catastrophic injury in the early hours of 29 September 2017

in Charlotte Street, Aberdeen when he was 28 years of age. The pursuer had been

socialising on the previous evening with friends in a pub. He had been drinking alcohol.

On his way home, he came across a temporary construction site in Charlotte Street. This site

was under the control of the first defenders and it related to construction works being

carried out on a nearby electrical substation. These works had commenced on about

16 November 2016. The pursuer followed a pedestrian route which ran through the

construction site. Towards the northern end of the site, the pedestrian route ran passed two

portacabins positioned on the carriageway with one being positioned on top of the other.

Plastic barriers and traffic cones separated the pedestrian path from the lower portacabin.

[3]

Access to the upper portacabin was provided by virtue of a metal stairway which led

from ground level to a landing in front of the upper portacabin. A guardrail ran around the

landing area at a height of about 1 metre above the landing itself. The roof of the upper

portacabin was about 2 metres above the landing. The guardrail provided a means by

which to climb up onto the roof of the portacabin. The nature of the stairway's construction

was that it constituted a "climbing frame" leading to the roof.

[4]

At ground level, heras fencing on the north side of the site extended into a gate

which could be swung across the access to the stairway. When the pursuer got to the

portacabins, he found that the gate was not closed over the entrance to the stairway with the

consequence that the stairway was openly accessible. The pursuer wanted a quiet place to

sit and think, and he decided that the roof of the upper portacabin was a good place to do

so. He climbed the stairway before gaining access to the roof of the upper portacabin using

the guardrail. After sitting for a period of time, he decided to descend from the roof and

make his way home. In doing so, he lost his footing and/or grip and fell to the ground. The

pursuer fell approximately 18 feet to the road and sustained a C4/C5 unstable fracture

resulting in tetraplegia.

[5]

The pursuer's case is pled under both common law and the Occupiers' Liability

(Scotland) Act 1960. At debate, senior counsel for the pursuer acknowledged that the case

stood or fell by reference to the 1960 Act alone and I was not addressed on the common law

by either party. In terms of the specific ground of fault, it is averred that the defenders

ought to have had an effective barrier preventing access being taken to the stairway from

which further access was gained to the roof of the portacabin. It is averred that the first

defender ought to have known that the site constituted an attraction and allurement to

members of the public; that it was known that licensed premises were in the locality; and

that the stairway and guardrail provided a ready climbing frame and means of access to the

roof of the portacabin. The pursuer also makes extensive reference to parts of the Health &

Safety Executive's document HSG151, 2009 which is incorporated brevitatis causa into the

pleadings.

Statutory Provisions

[6]

The Occupiers' Liability (Scotland) Act 1960 provides:

"1(1) - The provisions of the next following section of this Act shall have effect, in

place of the rules of the common law, for the purpose of determining the care which

a person occupying or having control of land or other premises (in this Act referred

to as an `occupier of premises') is required, by reason of such occupation or control,

to show towards persons entering on the premises 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 he is in law responsible.

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."

Submissions for the defenders

[7]

Senior counsel for the defenders adopted her note of argument. The principal

submissions for the defenders can be summarised as follows:

The 1960 Act required a linear approach. In considering the relevancy of the

pursuer's case, the first question is whether a relevant danger has been averred

(Heary v Phinn t/a Phinn Parts 2013 SLT (Sh Ct) 145, per Sheriff McGowan at

paras [192], [193] & [195]). It was submitted that this approach was in accordance

with Dawson v Page [2013] CSIH 24 at paras [11] and [13]. If premises did not present

a danger in themselves, the misuse of those premises by the pursuer could not

render them dangerous for the purposes of the 1960 Act. The stairway and the

portacabin did not present a danger in themselves. The pursuer had failed to aver

facts which, if proved, could establish that there was a danger on the site.

Intoxication on the part of the pursuer could not turn something which was not

dangerous into a danger for the purposes of the 1960 Act.

The duty owed by an occupier under section 2(1) of the 1960 Act is an

objective one (McGlone v British Railways Board 1966 SC (HL) 1 per Lord Guest at

p16). The occupier requires to take account of the age and state of knowledge of the

type of persons who can reasonably be expected to enter onto the premises with the

consequence that more exacting precautions may be required for children than for

adults (McGlone v British Railways Board per Lord Reid at page 13; Titchener v British

Railways Board 1984 SC (HL) 35 per Lord Fraser of Tullybelton at p55; and Devlin v

Strathclyde Regional Council 1993 SLT 699 per Lord Coulsfield at p703C).

Even if the linear approach is not correct, the authorities show that whether

the occupier has failed to exercise the appropriate degree of care will depend on the

age and state of knowledge of the pursuer as well as whether the danger is an

obvious one or a hidden one (Titchener per Lord Fraser of Tullybelton at p55). The

authorities demonstrated that there is no general duty to fence off dangerous parts of

premises where the danger is well known to the pursuer and there is no risk of

inadvertently coming into contact with the danger. The pursuer was an adult who

must have been fully aware of the risk of falling from the roof. He came to be on the

roof after taking a deliberate decision to walk up the stairway and then manoeuvre

himself via the guardrail up and onto the roof. The pursuer had failed to aver facts

that if proved would establish that the accident was caused by any failure in

reasonable care on the part of the defenders. The pursuer's averments were

incapable of establishing that it was reasonably foreseeable to these defenders that an

adult would climb up on this portacabin at this site such that an inaccessible barrier

required to be provided in the exercise of reasonable care.

The fact that, with hindsight, something could have been easily done

(ie securing or locking the gate in place) which would have prevented the pursuer

getting access to the landing and then onto the roof, does not mean that there is a

breach of duty for failing to take that additional precaution. The duty of exercising

reasonable care does not require the taking of such precautions as would repel a

deliberate invader, (McGlone v British Railways Board per Lord Guest at p15). The

occupier is bound to do no more than fulfil its statutory duty and is not to be faulted

if it has failed to take an additional easy precaution beyond the scope of that duty,

(McGlone v British Railways Board per Lord Reid at p13).

At the debate, senior counsel went through the various sections of the HSE

guidance documentation. The broad submission being that the guidance was wide

ranging and general in nature. Much of it was irrelevant to a site of this nature and

size. The document was said to be of no real relevance to the specific circumstances

of this accident involving an adult obtaining access to the roof of a portacabin.

Although the pursuer avers that the site was an attraction or allurement to

the public, there are no averments of previous incidents involving members of the

public accessing the area within which the portacabins were located, or of accessing

the roof of the portacabins. The use of the term allurement in previous cases has

been confined to situations where the premises amount to a trap to a child but would

not be such to an adult. The description of the staircase and portacabin as being a

"climbing frame" is a characterisation by the pleader but the guardrail which the

pursuer misused was a standard guardrail around a landing area.

This was a highly unusual case on the facts averred. The test set out in

Jamieson v Jamieson 1952 SC (HL) 44 per Lord Normand at p50 was met in that, even

if the pursuer proved all his averments, the action would necessarily fail. There was

no advantage in sending this case to proof which would involve expending time and

expense on a fruitless inquiry, (Mitchell & Another v Glasgow City Council

[2009] UKHL 11 per Lord Hope of Craighead at para 12).

Regardless of the above, the case against the second defenders was irrelevant

as there was no averment that the second defenders were occupiers of the site. It was

averred that the second defenders had overall control of the first defenders'

operations but that the first defenders were the occupiers of the site.

Submissions for the pursuer

[8]

Senior counsel for the pursuer also adopted his note of argument and proceeded to

develop his submissions as follows:

The pursuer had previously offered a proof before answer which offer was

renewed.

With reference to Jamieson v Jamieson and Miller v SSEB 1958 SC (HL) 20, per

Lord Keith of Avonholm at p33, I was reminded that the action could only be

dismissed if it was bound to fail. Actions of reparation would rarely be capable of

being determined without evidence being led. It was of some significance that the

authorities relied upon by the defenders based on the 1960 Act had all been decided

after proof. What amounted to reasonable care in an occupiers' liability case is

largely a question of fact, (McGlone v British Railways Board per Lord Guest at p15)

While senior counsel for the pursuer did not see huge differences between the

parties on the law, he did take issue with the linear approach advanced by the

defenders. Breaking the issue down in the way suggested would, as a matter of

relevancy, preclude any claim which proceeded on the misuse of premises since the

inquiry would end after answering the question is there a danger arising from the

premises alone. That was not the approach adopted in Scots law and drew no

support from the Inner House in Dawson v Page.

The pursuer had relevantly averred that the temporary site was an

allurement to members of the public; that access to the roof could be gained through

the staircase and the "climbing frame" at the landing area; and that it was reasonably

foreseeable that any person obtaining access in this way could fall and be injured.

This risk could have been removed if the defenders had secured the gate across the

access into the stairwell. There was no reason to limit "allurements" to such

premises that children were drawn to. The averments based on the HSE publication

also went to demonstrate that the construction industry was aware that members of

the public could misuse the temporary construction site and that external fencing to

the site required to be secure. In reply to a question why owners of static caravans

would not also owe a duty to erect a barrier across steps leading up to any landing

outside their caravan, senior counsel suggested that it was the temporary nature of

the portacabins which acted as the particular allurement necessitating such

additional precautions.

The averments of the pursuer's alcohol consumption were not intended to

suggest any additional duty being owed to him. These averments were to bring

home that it was foreseeable that members of the public drawn to the premises could

include persons who had been drinking alcohol.

Decision

[9]

In my opinion, this is one of those rare and exceptional cases in which an action for

personal injuries falls to be dismissed. Senior counsel for the pursuer was correct to point

out that all of the occupiers' liability cases which were under discussion at the debate were

determined only after evidence was led. It is indeed rare to identify an occupiers' liability

case dismissed at debate although an example can be seen in Graham v East of Scotland Water

Authority 2002 SCLR 340. Given the heart breaking injuries suffered by the pursuer, there is

a strong temptation simply to allow a proof before answer restricted to liability. However, I

have ultimately come to the view that there is nothing to be gained from the leading of

evidence in this case and that the pursuer's claim is bound to fail even if he proves all of his

averments.

[10]

Before turning to the defenders' submissions which I do accept, I need to say

something about certain submissions which I was not persuaded by. I was not persuaded

by the defenders' submission based on Heary v Phinn and Dawson v Page that the approach

to section 2(1) necessitated a staged approach in which the first question to be answered is

"what danger arises from the premises". Rather, it seems to me that the Inner House in

Dawson at para [13], while finding it unnecessary to determine this question, favoured a

synthesised approach. Although I was not addressed to any significant extent on the law of

England, this approach of asking "what danger arises from the premises" is one which

appears to have developed in English law at least in terms of the Occupiers' Liability

Act 1984 (Tomlinson v Congleton Borough Council [2004] 1 AC 46 per Lord Hoffmann at

paras [26]-[29]. Given the unhappy history of the interaction of Scots and English law in

this area, I am reluctant to look south of the border for assistance in relation to the 1960 Act.

[11]

While I do not agree that an initial exclusory question of "what danger arises from

premises" falls to be asked, that does not mean that it is an irrelevant question in the round.

So, in the present case, the fall from the roof was not caused by the state of the roof itself

such as by a slippery surface or part of the roof surface giving way. There was no defect in

the roof itself. The relevance of this is that the defenders' own actions have not created a

danger on the roof. Nor has there been an omission such as a failure to maintain or inspect

the state of the portacabin roof, which has created a danger. If the defenders' acts or

omissions had directly contributed to the creation of a dangerous roof, that is likely to have

relevance when considering whether the accident was reasonably foreseeable to the

occupier. In the present case, the danger of falling from the roof was created solely by the

pursuer climbing onto the roof. It is also of some relevance that the specific duty founded

upon by the pursuer, namely to prevent access to the stairway, is neutral in relation to the

risk of falling from the roof. So, for example, the presence of a suitable barrier around the

edge of a roof will minimise the risk of a person falling from the roof, but a barrier at the

stairway entrance does not alter the risk of falling once the person is on the roof. Again, this

observation may have some relevance to reasonable foreseeability as an occupier

considering whether to secure a barrier in place at the entrance to the stairway will primarily

be focussed on whether there is a desire to prevent access to the stairway or to the

portacabin itself, rather than access to the roof of the portacabin.

[12]

The pursuer has no averments of previous incidents at this construction site

involving members of the public gaining access to the roof of the portacabin. Nor is it

averred that the defenders had experienced particular issues with members of the public

accessing the portacabin area in general. There are no averments of reported falls from

portacabin roofs on other sites, which the defenders knew or ought to have known about.

While it can no doubt be said in general terms that adult members of the public could seek

to gain access to the roof of a portacabin on a construction site (or indeed almost any

building), the pleadings do not set out a basis on which these defenders ought to have

reasonably foreseen this risk on this site. The extensive references to an HSE document do

not assist the pursuer's case beyond the general proposition that construction sites present

numerous dangers to both workers and members of the public such that perimeter security

needs to be carefully considered. By its very nature the HSE document is in general terms

and has multiple aims. It does not assist on the issue of whether it is reasonably foreseeable

that adult members of the public will gain access to the roof of this portacabin, and what a

reasonable occupier should do, if anything, to mitigate against that risk.

[13]

I agree with the observation made by senior counsel for the defenders that

descriptions of premises as being an "allurement" tend to feature in cases involving injuries

to children. There is no doubt an interesting historical basis for the regular use of this term

in occupiers' liability pleadings. It seems likely to derive from the former distinctions

between invitees, licensees and trespassers, with a licensee being owed a duty only if lured

into a trap (Donald v William Dixon Ltd 1936 SLT 429 per Lord Robertson at p431). The

1960 Act has done away with such categorisations and, with that, the importance of making

averments of both an "allurement" and a "trap". Nonetheless, the description of aspects of

premises as being a particular allurement to the public is still a relevant averment under the

1960 Act and it may relate to an adult pursuer as well as to a child (see Fegan v Highland

Regional Council 2007 CSIH 44 at paras 10 and 17). In fact, I do not think that anything turns

on the use of these words in the pursuer's pleadings. The averment is that the construction

site, including the portacabins and stairway, was an allurement (article 6). It is also averred

that the top of the portacabins afforded a viewpoint into the substation works and provided

the only accessible point of height in the area (article 4.7). However, if the roof of the

portacabins was an allurement for adult members of the public, I would expect that the

pursuer would be able to make averments of incidents when others were enticed to climb

upon the portacabins in the 10 month period since the works commenced, or at least,

averments of similar incidents within the construction industry on other sites. I do not

understand why a temporary construction falls to be considered more of an allurement than

a permanent one. The risk of an adult getting unauthorised access to the roof of a structure

does not seem to me to increase or decrease depending on the classification of the structure

as being temporary or permanent in nature.

[14]

For these reasons set out in paragraphs 11-13 above, I accept the defenders'

submission that the pursuer's averments, even if all proved, cannot establish that the

defenders ought to have reasonably foreseen that an adult member of the public would

climb onto the roof of the portacabin on this site.

[15]

Alternatively, in my opinion it cannot be said that the scope of any duty owed by the

defenders to the pursuer could ever extend to ensuring that there was an effective barrier on

the stairway. Questions as to the scope of a duty of care are questions of law, (Mitchell v

Glasgow City Council [2009] UKHL 11, as per Lord Hope of Craighead at para [11]. The crux

of the pursuer's case is that a secure barrier ought to have been in place to prevent him

gaining access to the stairway from which he then gained access to the portacabin roof. The

authorities referred to by the defenders establish that the exercise of reasonable care does

not require an occupier to fence off a danger on his land where that danger is obvious to the

pursuer. Thus, in Titchener v British Railways Board per Lord Fraser of Tullybelton at p55,

where the 15 year old pursuer was aware of the danger presented by the railway line and

there was no risk of her straying onto the railway line unawares, there was no duty to repair

gaps in the fencing or indeed, to provide any fencing at all. In McGlone v British Railways

Board, Lord Reid at page 11 stated that it would be "quite unreasonable" to insist that a

highly dangerous object (in that case an electrical transformer) brought onto land where

children were known to play, had to be placed behind an impenetrable fence. In Devlin v

Strathclyde Regional Council at p702I-J, following the death of a 14 year old school boy,

Lord Coulsfield dealt with the proposition that the Council's duty was to prevent children

getting onto the school roof by altering the rhone pipes used for access or by otherwise

making the roof inaccessible. Lord Coulsfield stated that there was an obvious risk of a

pupil falling and being seriously injured if they gained access to the school roof, but he held

that the Council were under no duty to make the roof inaccessible since there had been no

accidents from the roof of the school building over the years. In Graham v East of Scotland

Water Authority 2002 SCLR 340 at para 18, Lord Emslie dismissed an action of damages, in

part, on the basis that the danger presented by a low wall running alongside the edge of a

reservoir was such an obvious hazard that there was no duty to fence a section of the wall.

It was said that, in the absence of a history of accidents or complaints, the danger alleged

would require to be unusual, unseen, unfamiliar or otherwise special to warrant a duty to

erect fencing.

[16]

The features of this case which are important to the specific duty pled are (i) the

pursuer is an adult without any special vulnerabilities at the time of the accident, (ii) the

pursuer came onto the site uninvited (McGlone v British Railways Board per Lord Reid at p10),

(iii) the portacabin roof presented no danger in itself and it was the pursuer's own activity

which created the danger, (iv) the portacabin roof was not designed or intended to be used

for the pursuer's activity, ie as a place to sit, (v) the pursuer consciously gained access to the

roof and so no question of inadvertent exposure to risk arose (Titchener), (vi) the activity of

climbing up, sitting and descending from the roof while intoxicated presented obvious risks

which the pursuer must have been aware of at the time (Titchener; Graham), (vii) to get onto

the roof itself, the pursuer improvised a means of access (i.e. by using the guardrail) which

was not intended for use in that way, (viii) the defenders had not been put on notice that

members of the public were accessing the roof of the portacabin on this site at any previous

time, and (ix) there are no averments of previous similar accidents known to the defenders

or which they ought to have been aware of (Devlin). Each of these features appear from the

pursuer's own pleadings or, at least, there is no basis in the pursuer's pleadings to allow

evidence to be led to contradict the features as set out. In line with the authorities discussed,

the scope of any duty owed to the pursuer in the averred circumstances cannot extend to a

duty to provide a barrier to prevent him engaging in his own dangerous activity. There is

accordingly no benefit to be obtained from hearing evidence in this case.

Disposal

[17]

I shall sustain the first pleas-in law for each defender and dismiss this action. I was

not addressed by the parties on the issue of expenses and so I shall reserve them meantime.

If parties are unable to agree on the question of expenses in the light of my decision, the

matter can be put out by order.