Scottish Sheriff Court Decisions

ERIC FOX v. GLASGOW CITY COUNCIL [2000] ScotSC 16 (4th July, 2000)

NOTE:-

In this action for damages for personal injuries the pursuer maintains that he tripped whilst walking on a pavement which the defenders had a duty to maintain. In the course of the debate, in which the pursuer was represented by Mr Smart and the defenders by Miss Cormack, the defenders attacked the pursuer's pleadings in a number of respects. Mr Smart conceded that amendment was necessary. However he asked that I should give my views on the merits of one attack because he acknowledged that he would not be able to make the pursuer's pleadings any better in this regard. This approach commended itself to Miss Cormack and also to myself. It seemed to me that there was no point in amending in some respects if the pursuer was always going to fall at a hurdle which was capable of identification now.

Miss Cormack attacked the pursuer's pleadings by submitting inter alia that they did not give fair notice to the defenders of the case which the defenders had to meet in that the pursuer failed to offer to prove the precise extent to which one level of the pavement was above the other at the point where the pursuer tripped and fell to his injury. What the pursuer offered to prove was that the cause of the fall was the broken and uneven nature of the pavement (article 2). It was thus rendered dangerous and likely to cause persons to trip and fall (article 3). This she said was not enough. She referred me to the case of McClafferty v British Telecommunications plc 1987 SLT 327.

For the pursuer, Mr Smart submitted that the defenders had been given sufficient notice by what is said on record.

Whether something is dangerous is a conclusion which must be drawn from facts. The pursuer must therefore plead sufficient facts to allow the conclusion that the pavement was likely to be a foreseeable cause of injury to be drawn. It is well established that the obligation on the defenders is not to maintain a footpath to a standard where the levels thereof are completely uniform (Gordon v Glasgow Corporation unreported First Division 26 June 1923 and quoted in McClafferty at p 328F). If complete uniformity is not the requirement it seems to me that a pursuer must do more than say that the pavement was broken and uneven. A pursuer must offer to prove the extent to which there was unevenness in order that a conclusion can be drawn as to whether the condition of the pavement was likely to be a foreseeable cause of injury. To do that a pursuer would ordinarily offer to prove the difference between the two levels of the uneven pavement at the point where the pursuer tripped and fell to his or her injury. Since the pursuer in this case has not done that it follows that the defenders have not been given the requisite degree of notice.

I was fortified in this view by the opinion of Lord Justice-Clerk Ross sitting in the Outer House in McClafferty where he held that a projection of three quarters of an inch above the level of the surrounding pavement was not a foreseeable cause of injury. In that case the pursuer offered to prove, on record, that the manhole cover over which she tripped stood proud to a height of forty four millimetres. This to me supports the view that a particular degree of unevenness falls to be the subject of averment.

Furthermore, in the course of his opinion (p 327K) his Lordship said "One critical question, however, is to determine the extent to which the manhole cover was protruding.". It would be strange if a fact correctly stated to be critical and determinative of the case did not require to be the subject of averment.

On record the pursuer has referred to photographs which are lodged in process at 5/1(a) - (c). They are Polaroid or similar in nature and not of very good quality. Regrettably they do not assist in determining the extent of the unevenness of the pavement.

I am therefore of the view that the pursuer has not averred sufficient to allow the case to go to proof.

In the course of the debate Mr Smart explained that the reason why he would not be able to improve the specification of the pursuer's claim in this respect is that upon being instructed he attended at the locus by which time it had already been repaired. If it was the case that the pavement had been repaired before the pursuer could reasonably have carried out a proper investigation of the accident then an argument might be conceived that the normal rules of fair notice would not apply in their full rigour. No such argument was presented to me however and it would therefore be improper of me to carry out my own research and give a view. That must be a matter of averment and subsequent discussion.

I have put this case out for a by order hearing on Friday, 7 July 2000 at 9.30 am. If that is inconvenient to the parties then they might please let me know through the sheriff clerk.

Glasgow, 4 July 2000.