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Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Dooner v. North Ayrshire Council [2005] ScotSC 81 (17 November 2005)
URL: http://www.bailii.org/scot/cases/ScotSC/2005/81.html
Cite as: [2005] ScotSC 81
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A1970/04
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JUDGEMENT OF SHERIFF WILLIAM SEITH STANNERS IRELAND in the cause ANTHONY DOONER Pursuer; against NORTH AYRSHIRE COUNCIL Defenders: ________________ |
Act: Thomson (Counsel)
Alt: Waterfield
KILMARNOCK: 17 November 2005.
The Sheriff having resumed consideration of the cause, Reserves the Defenders' first plea-in-law and Allows parties a Proof before Answer; Appoints the cause to call on the Diet Roll on 7 December 2005; Finds the Defenders liable to the Pursuer in the expenses of the Debate; Refuses Pursuer's, opposed, motion made at the bar to sanction the employment of Counsel at the Debate.
Note
This case called for debate before me on the Defenders' preliminary plea-in-law number one that the Pursuer's averments being irrelevant et separatim lacking in specification the action should be dismissed. The Defenders had lodged an extensive Rule 22 Note in support of that plea.
The ground of action is by a father acting as a legal representative and guardian of his son. It is an action for reparation. It is averred that the 8 year old boy kicked a football whilst playing in premises, for which the Defenders are responsible, whereby the ball struck a ceiling tile which fell hitting the boy, causing him injury. It is averred by the Pursuer that the Defenders breached duties of care at common law and under the Occupiers Liability (Scotland) Act 1960 Section 2(1).
The Defenders' plea is directed to whether such duties of care exist and the specification of same.
Defender's Submissions
Miss Waterfield began by stating that she would be relying only on points 2-9, inclusive in her Rule 22 Note.
She submitted that the Pursuer here failed to state what legal duties were incumbent upon the Defenders which the Defenders had either not implemented or had broken and failed to show that the alleged breach of duty had in fact caused injury to the Pursuer (under reference to D.M. Walker on Delict 2nd Edition page 170).
There was a lack of specification in the Pursuer's averments in Articles 3 and 4 of Condescendence of the alleged duties owed by the Defenders. There was no fair notice as is required (McPhail "Sheriff Court Practice" 2nd Edition paragraph 9-27, page 271). In particular the Pursuer had not set out what requirements of supervision the Defenders ought to have had in place or indeed that such supervision would have prevented the accident. The averment by the Pursuer that the Defenders had a duty to issue appropriate instructions to children to prevent them kicking a football above head height was too absolute and not based on a duty of reasonable care. Further there was no averment as to what "appropriate instructions" would have prevented the accident. In this case the Pursuer's averments lacked clarity, which the Defenders were entitled to have (Jamieson v Allan McNiel and Sons 1974 SLT (Notes) page 9).
There was no averments as to foreseeable risk of injury. The Pursuer does not aver any defect in the ceiling which could give rise to foreseeability. The factual averments failed to state whether the tile was hanging loose nor indeed do they specify how easy it might be to dislodge the tile or indeed whether there was any defect therein.
It was submitted that the Pursuer here was relying on an averment in Article 5 that the playing of football in the hall, having regard to the condition of the roof, constituted a danger. The Defenders submitted that the word "condition" required further specification to give the Defenders fair notice.
There was no causal link averred between the height of the ceiling or its type to show that it provided a potential for injury. If the Pursuer was relying on the type of ceiling then they should aver that.
Miss Waterfield submitted that the Pursuer's averred in Article 4 of Condescendence that the Defenders knew or ought to have known about the alleged duties. However, there were no averments as to any previous complaints to the Defenders nor indeed any previous incidents which might import that knowledge to the Defender, that such an accident which had occurred here could occur (Robb v Dundee District Council 1980 SLT (Notes) page 91). Any duty upon the Defenders is one of "reasonable care" only. The Pursuer required to show knowledge on the part of the Defenders and foreseeability. There was no duty of "perfection". It could not be said that the playing of football with a sponge ball, as the Pursuer's son did, was to be seen potentially by the Defenders as being intrinsically dangerous. The test is whether a reasonable man, contemplating the circumstances of a child playing with a soft football, would contemplate a struck tile to fall from the ceiling striking and injuring the child. All of this had to be seen against the background where the Pursuer's pleadings lacked clarity as to whether the ceiling was defective in some way. There was therefore no fair notice to the Defenders.
The Defenders could only be fixed with liability if it could be shown that there materialised a risk that ought to be within the Defenders' reasonable contemplation (per Lord Romer in Muir v Glasgow Corporation 1943 S.C. (H.L.) page 3 at page 10). Here the court should place itself in the position of the person charged with the duty and consider what they should have reasonably anticipated as a natural and probably consequence of neglect and should not give undue weight to the fact that a distressing incident had happened (Muir op cit per Lord Thankerton at page 9).
The Pursuer's averments sought to import a duty upon the Defenders not to allow football to be played without adequate supervision without saying what the level of supervision should be. The Pursuer's also aver that playing football in itself is a risk without specifying what precautions were available to the Defenders to take. In effect the Pursuer was therefore asking for extraordinary precautions which cannot, being extraordinary, found negligence against the Defenders. It was the duty of persons to guard against reasonable probabilities not to guard against fantastic possibilities (Fardon v Harcourt-Rivington 146 T.L.R. (1932) page 215).
The Pursuer's case in terms of the Occupiers Liability (Scotland) Act was subject to the same criticisms as those against the common law case and equally as the Pursuer had failed to aver sufficient and relevant knowledge and foreseeability, the Pursuer's case under that statutory heading must also fail.
All the Pursuer did in the present case is to list a number of duties without specification or justification which denies the Defenders fair notice.
In these circumstances the action should be dismissed with expenses in favour of the Defenders.
Pursuer's Submissions
Counsel's principle submission was that the circumstances of this case actually describe a remarkably straightforward incident, with no complexity or difficulty. This case was unlike an accident at work where a number of different possibilities of cause of the accident, requires in the pleadings, perhaps averment of normal practice or where, for example, the issue involves damage to a vehicle due to a faulty road, where averment of practices of inspection and the timing of inspection may require to be averred to bring home liability to the Defender. Here, the Pursuer alleges a small number of specific duties as being owed by the Defenders to the Pursuer. The factual circumstances in the cause are within everyday experience and knowledge.
In reparation actions it is important to read the pleadings as a whole and to have regard to the facts admitted on record by the Defender. In answering the question whether the Pursuer's pleadings are irrelevant and lacking in specification it would be wrong to simply look at particular averments in isolation, as the Defender's argument invited the court so to do.
Article 2 sets out a relationship between the parties - the child attends an after care centre for which the Defenders are responsible. There is therefore a relationship between Pursuer and Defenders.
Secondly the court would require to look at the purpose of the centre - it is to look after children. The accident which occurred has to be looked at against the background of that factual and legal relationship. The centre is charged to look after children.
Against that background, it is averred there is a particular ceiling with suspended unfixed tiles. It is a duty then upon the Defender not to allow football to be played under such a roof in a room of that type. The Pursuer's case is that the design and nature of the roof is not appropriate to permit football to be played thereunder. The structure of the ceiling is a fact and it is within everyday knowledge that if tiles which are not fixed are struck by a football they might well fall to the ground. The particular circumstances of what happened do not need to be foreseen but what must be foreseeable is the risk of injury.
Given the facts averred here it is possible to offer to prove them and to invite a court to hold, after inquiry, that there was a duty of care and that that has been breached. The question of foreseeability resolves to a question of fact: a jury question.
In this case therefore the court ought to hear evidence on the nature of the roof and if it were satisfied that the accident was not reasonably foreseeable then of course the Defenders would be entitled to Absolvitor.
The young boy in this case was given a football to play with and, as averred, no instructions were given to him as to the use of football in the hall. The court should look with some care at Answer 3 where it is averred that there were instructions given to him not to kick the ball above head height. The Pursuer submits that this is a recognition, by the Defenders, of a legal duty upon them. Consequently it is a matter for inquiry as to why the Defenders should feel obliged to issue that instruction.
The duties outlined in Article 4 of Condescendence are commonplace. Importantly, they include a duty not to allow children to engage in activities which might result in injury when attending the centre. Consequently a duty may be inferred not to allow children to play football in the hall with that type of ceiling. The duty could not be plainer - its reasonableness arises in a consideration of the whole facts and circumstances.
Consequently, Counsel argued, that at the stage of debate where the court has not heard evidence as to whether allowing football to be played under that roof gives rise to a duty or not (which depends on the evidence) the case should be allowed to proceed. The pleadings beg the question, which only the evidence can assist in answering, whether it is part of the duty of reasonable care for the children, which is generally averred, not to allow the game of football to take place.
Even if that line of argument were not to find favour after proof, there remains a secondary argument not to allow the football to be kicked above head height. The Defenders in the case say there was supervision and that instructions were given to the child not to kick the ball above head height - in these circumstances it must be assumed by the court that the Defenders therefore have fair notice of the point.
A proof on the facts was necessary to establish what, if any, was the supervision and what, if any, were the instructions given to staff or children and consequently what duty that set of facts give rise to.
Counsel agreed that the case in terms of the Occupiers Liability (Scotland) Act gave rise to consideration of the same duties as that under the common law case.
Dealing with the Defenders' Rule 22 Note in some detail Counsel submitted that it was averred how the tile was held on the roof and how it came to be dislodged. The Defenders consequently knew that the tile was dislodged so they had fair notice and that is admitted in Answer 3. The claimed lack of notice of duties was cured by the list of duties averred in Article 4 which are self evident. There is a clash between the Pursuer's averment that no instructions are given to staff and the Defenders' position instructions are given. That makes the matter a question to be resolved at proof.
As regards legal principles which might have a bearing, Counsel submitted that there was a proposition that the standard of care owed by the Defenders when dealing with children was a higher one (under reference to Professor Walker's book on Delict op cit page 626. It is averred that there is a degree of supervision required of children and that is part of the case here.
Further support for the Pursuer's argument as regard the duty of reasonable care owed by the reasonable man could also be seen in Mr William Stewart's book "Delict" 4th Edition, paragraph 9.9 at page 114. The learned author there quoted from the speech of Lord McMillan in the case of Muir (op cit) that the standard of care of the reasonable man involves in its application a subjective element. Consequently it could be argued it is still left to the judge to decide what, in the circumstance of a particular case, the reasonable man could have in contemplation and what accordingly the party sought to be made liable ought to have foreseen. Consequently it was the facts in each case that required to be looked at.
Counsel also referred to the case of Hughes v Lord Advocate 1963 S.C. (H.L.) page 31. The precise mechanism of injury might not be foreseeable (although in the present case that in fact is not the position adopted by the Pursuer) but yet the risk of injury could be foreseeable which can give rise to a duty of care (per Lord Reid at page 39). In the present case the averment is not fanciful as here it is averred that football was allowed to take place by the Defenders when there was a loose tile and where there was no instruction to children not to play football and where there was no supervision and where, unlike the Muir case, there was no third party intervention and thus the facts offered for proof in the present case could give rise to the duties which the Pursuer founds upon.
The case of Farden referred to by the Defenders' agent could be distinguished on its facts. The facts averred in the present case, and the duties alleged were not fantastical.
Further support for the Pursuer's case is to be found in Gibson v Orr 1999 SC 420 and Lord Hamilton's analysis at p 430 of economic loss and the decision in Caparo plc v Dickman as regards the relationship of foreseeability of damage, the proximity of the parties and whether the court considered it fair, just and reasonable that the law should impose a duty of a given scope upon one party for the benefit of the other.
In the present case the pleadings indicated that it was reasonably foreseeable that injury might be sustained, there was sufficient proximity and it would be fair, just and reasonable to impose duties in the circumstances of this case.
In the present case the Defenders have had fair notice of what the Pursuer avers as to what occurred and the legal duties he avers the Defenders had.
It will be for the court, after inquiry, to decide whether the Defenders are liable or not but it could not be said on the present pleadings that the Defenders have been taken by surprise.
The present action is not one of those rare cases involving personal injury which could be disposed of on relevancy (per Lord Keith in Miller v South of Scotland Electricity Board 1958 S.C. (H.L. page 21 at page 33).
Further, in this case, it could not be said that even if the Pursuer was to prove all his averments he would be bound to fail (Jamieson v Jamieson S.C. (H.L.) 44 per Lord Reid at page 63.)
Accordingly the court was invited to allow a proof before answer and to reserve the Defenders' plea.
Reasoning
In considering the pleadings in this case I begin against the background of the authoritative decision of Miller v SSEB 1958 (op cit). In his speech Lord Keith (at page 33) said that in claims of damages for alleged negligence it can only be in rare and exceptional circumstances that an action can be disposed of on relevancy. The reason, as his Lordship said, is that in Scotland the law of negligence proceeds on principles of culpa. That is breach of the duty to take that care which the circumstances demand from the reasonable man. These circumstances in any particular case will normally have to be ascertained by evidence.
I have therefor found myself in agreement with the submissions made by Pursuer's Counsel that this case is one where, before deciding the legal questions, a proof before answer is necessary.
Miss Waterfield, with some care in her Rule 22 Note and in her argument before the court, has highlighted what the Defenders perceive as lack of specification of the duties it is said the Defenders owe to the Pursuer and how, according to the Pursuer, the Defenders have allegedly failed to meet those duties.
However I find force in Mr Thomson's argument that what is important in reparation actions is to look at the pleadings as a whole including matters admitted on record by either party.
It is also right to say that all the Defenders' very careful submissions on the authorities which she had found may have particular force as regard whether the alleged incident was foreseeable and therefore the Defenders under a legal duty of care, but it seems to me that the principles enunciated in these authorities and the other illustrative cases can only be applied once the factual situation is clear.
When one looks at the pleadings as a whole in this case one finds the following. The Pursuer avers in Article 2 of Condescendence that the child attended an after care centre controlled by the Defenders, this is admitted. It is further averred that staff employed by the Defender look after and supervise children attending the centre. This is admitted. The Pursuer's aver the dimensions of the hall where the children play and that the ceiling is a suspended one with tiles resting on a grid frame. The tiles are made of polystyrene. It is admitted by the Defenders that the tiles are polystyrene although other matters are not known and not admitted.
In Article 3 the Defenders set out the details of a football game which the child is said to have played after having been given the ball by staff. This is admitted in Answer 3. The Pursuer avers that no instructions, warnings or cautions were administered to the children as regards the use of the football. The Defenders in my view significantly as regards whether the action should proceed to proof deny that but aver that the boy was instructed two or three times not to kick the ball in the air but to dribble with it at floor level. They further aver that the boy deliberately kicked the ball against the ceiling dislodging the ventilation grill to his own injury.
There is therefore a dispute as to whether instructions were given but potentially and with some significance it might be thought there is some potential admission by the Defenders of a duty of care in that they aver that instructions were given. The question may be asked by the Pursuers on the Defenders' averments "Why were instructions issued?"
In Article 4 the Pursuer avers a list of duties which the Defenders have to care for the child and as regards to playing football in the hall with that type of roof. It is particularly averred that there was a duty upon the Defenders to supervise the children and to issue appropriate instructions to prevent the children kicking the football above head height. It is averred that but for the failures in duty the accident would not have happened. The Defenders aver in Answer 4 that they fulfilled all their duties and further aver that the accident was caused by the Pursuer's son's own fault and if the Defenders are responsible the Pursuer's son contributed to the event.
It is in my view reasonably clear from an examination of and consideration of the pleadings as a whole that various duties are averred by the Pursuer as being owed by the Defenders. They give notice of them. It does not seem to me, at the stage of debate, that it can be said that the Defenders have not been given fair notice of the duties which are claimed.
Moreover the facts averred do not seem to be so fantastic or fanciful as to deny the possibility of foreseeability being found to have existed, and thus to prevent the action proceeding at this stage.
The Pursuer's son was a child and it is recognised that for such a class of persons a reasonable Defender must be aware of the susceptibility of children to be placed in danger (see Walker on Delict at page 205).
I do not accept the Defenders' argument that it is necessary that the Pursuer requires to give further specification as to the roof's defect or whether inspection should have been carried out. I do not read these pleadings, nor understand the Pursuer's case, to be based on any claim to lack of inspection by the Defenders. The Pursuer's argument relates to the type of roof, itself, and the playing by children of football thereunder and further that there is no warning or supervision as to potential dangers of playing football under such a roof. As I have noted above the Defenders admission that there has been supervision and instructions might be said to have apprehended that danger and in particular by their instruction to the child only to dribble the ball along the floor. In these circumstances the Defenders it may be argued has foreseen the danger although not the particular mechanism which in itself may give rise to the duty of care (Hughes v Lord Advocate op cit per Lord Reid at page 39). It seems to me arguable that the Defenders apprehend the foreseeability of danger.
Further it is averred that there is a relationship between the parties (there is a child being looked after by the Defenders' staff).
It remains to be established in evidence whether the actual circumstances of the accident are such that the court should consider it fair, just and reasonable that the law should impose the averred duties upon the Defenders. It seems to me that this case meets the test set out in Caparo plc v Dickman [1990] 2A.C. page 605 at page 617H to 618B. It is in the present case at least arguable on the pleadings that it would be fair, just and reasonable that the law should impose the duties given rise to a right to reparation on behalf of the present Pursuer if the factual circumstances can be established after proof. Whether the factual matrix averred by the Pursuer gives rise to the foreseeable danger, and thus to a duty of care, can only be decided after the facts have been established and after hearing parties' submissions thereon and the legal principles to be applied - the very legal principles that the Defender has with some care researched.
The Defenders here have been put on notice that the Pursuer is relying on the roof, its make-up, the age of the child, the playing of football and the lack of instructions or warnings. In my view that is sufficient notice of the matters to be heard and argued over.
The pleadings in their whole terms have required to be examined and having done so I am satisfied the Defenders' plea and argument does not, at the stage of debate, lead to a situation that even if the Pursuer were to establish all the facts averred that he would be bound to fail (Jamieson v Jamieson op cit per Lord Reid at page 63).
In my view therefore this is not a case where the action should be dismissed without inquiry.
Decision
I have decided therefore to reserve the Defenders' first plea-in-law and to appoint a proof before answer.
Expenses
The Pursuer's Counsel submitted that if I did not sustain the Defender's plea-in-law but rather allowed parties a Proof before Answer, the expenses of the Debate should be awarded to the Pursuer. I was reminded that the Pursuer had offered a Proof before Answer at the continued Options Hearing.
The Defenders' agent submitted that should I not be dismissing the action, as she had invited me originally to, I ought to reserve the question of expenses for the reason that the Defenders could not have known the basis, and the detail of the Pursuer's case without having heard it at debate. It was only at debate that the issues had become clear.
The second issue arising under the heading of expenses was the motion by the Pursuer to the court that the cause was complex and difficult and novel to a degree to warrant the employment of junior Counsel to argue it at debate.
The Defenders' agent objected to certification in that, as Counsel for the Pursuer had said in his submissions, the circumstances of this case describe a remarkably straightforward incident with no complexity or difficulty.
I have resolved that the Pursuer having been successful, and having offered a Proof before Answer at the Options Hearing and the court now so ordering, that the normal rule of expenses following success should apply and I have therefore awarded the expenses of the Debate to the Pursuer.
As regards certification of the cause as suitable for the employment of junior Counsel, I have had regard to the principles outlined in McPhail "Sheriff Court Practice" 2nd Edition, pages 387-388, (paragraphs 12.24-12.25).
In my view having regard to those matters it cannot be said that the case is one of very high value, nor, however eloquently and forcibly Counsel presented his argument, as one of a novel, difficult or complex nature. Indeed as Counsel himself put it, it is ultimately a remarkably straightforward matter as to its facts and the principles of law which will require to be applied. In the circumstances, in the exercise of my discretion I have declined to grant Counsel's motion for certification of Counsel.