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Case Reference
Number:
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A140/05
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SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT
KIRKCALDY
JUDGEMENT OF SHERIFF WILLIAM HOLLIGAN
in causa
PURSUER NICOLE BYE, residing at 306 William Path, Glenrothes, Fife
KY7 6SP
against
DEFENDERS FIFE COUNCIL,
Fife House, North Street,
Glenrothes, Fife KY7 5LTosueH
Kirkcaldy 27 December 2006.
The sheriff, having resumed consideration of the cause, FINDS IN FACT: -
[1] The
pursuer resides at 2 Larsah Court,
Kirkcaldy. The defenders are a local authority incorporated under the Local
Government (Scotland)
Act 1994. They have their headquarters at Fife House, North
Street, Glenrothes, Fife.
[2] There
is an adventure playground at Huntsman Road,
Glenrothes ("the park").
[3] The
defenders are the occupiers of the park within the meaning of the Occupiers
Liability (Scotland)
Act 1960.
[4] On
10 August 2001 ("the
relevant date") the pursuer was playing with friends at the park. She was then
aged 12.
[5] On
the relevant date the pursuer was playing on a swing in the park. The swing was
a four way swing ("the swing").
[6] The
swing was of a see saw type. The seat of the swing comprised a rubber ring
attached to wood by a metal chain.
[7] Underneath
the seat of the swing and on the ground around it was a base covered in bark
chips.
[8] Bark
chips help to absorb the impact of any fall.
[9] On
the relevant date when playing on the swing, when the swing was at it highest
point from the ground, the pursuer fell off the swing and landed on the ground.
[10] On
the relevant date, the height between the seat of the swing, when the swing was
its highest, and the ground, was 2.3 metres.
[11] It
was reasonably foreseeable that a child playing on the swing might fall from
the swing and suffer injury.
[12] The
swing ought to have complied with BS 5696 ("the relevant standard") on the
relevant date. Nos 5.5 to 5.7 of Process are copies of the relevant standard.
[13] The
swing did not comply with the relevant standard on the relevant date. The height between the seat and the ground
was 2.3 metres which exceeded the height of 1.8 metres provided by the relevant
standard.
[14] The
distance between the ground and the base of the seat of the swing on the
relevant date was too high. There was a material risk that if a child fell from
that height the child would injure herself. The fall from that height
materially contributed to the pursuer's injury.
[15] As
a result of the fall the pursuer suffered a ruptured spleen.
[16] The
Pursuer was admitted to hospital. She required a blood transfusion and
antibiotics.
[17] The
Pursuer remained in hospital from the relevant date for approximately 2 weeks.
She should have started secondary school in August 2001.
[18] The
pursuer remained at home until some time after the October school break when
she returned to school. She had a home tutor when at home.
[19] The
pursuer suffered pain and discomfort throughout this period.
[20] The
pursuer was unable to undertake physical activities for some time after the
relevant date. She was unable to continue with her past time of disco dancing
after the relevant date. She did not resume her interest in disco dancing.
Prior to the relevant date she had been an enthusiastic and successful
performer.
[21] The
pursuer was the subject of taunting by other children on account of her
inability to participate in games and other physical activities. Her absence
from school, the restrictions on her physical activities and the taunting from
other children caused the pursuer distress.
FINDS IN FACT
AND IN LAW the pursuer having suffered loss injury and damage through the
defenders breach of statutory duty is entitled to reparation therefor; THEREFORE sustains the 1st plea in law for
the pursuer and the 2nd plea in law to the following extent; repels
the defenders' pleas in law; Grants DECREE for payment by the defenders to the
pursuer of the sum of THREE THOUSAND FIVE HUNDRED POUNDS (£3,500.00) STERLING
with interest thereon at the rate of four per
centum per annum from 10 August 2001 until January 2002 and at the rate
of eight per centum per annum
from January 2002 until payment, and DECERNS; finds the defenders liable to the
pursuer in the expenses of the action; appoints an account thereof to be given
in and remits the same, when lodged to the Auditor of Court to tax and report.
(Signed) W H Holligan
NOTE
[1] This
case involves a swing situated in an adventure playground at Huntsman
Road, Glenrothes.
[2] I heard evidence from the pursuer, Nicola Bye, Dr Alan Boyd,
Hannah Bell, William Dewar, Pamela Bye (the pursuer's mother) and Peter Heal.
The defenders led no evidence.
[3] After the evidence concluded the pursuer lodged a minute of
amendment to which there was no opposition.
The minute of amendment introduced a case under the Occupiers Liability
(Scotland) Act
1960. I allowed the record to be amended in terms thereof. There is a joint minute concerning certain
medical notes.
[4] The pursuer said that on 10 August 2001, she was playing in the park on a four way
swing with her friends Robert Bell, Hannah Bell and Emma Bell. She was then aged 12. She said she was
playing on the swing with Robert. When
the swing was at the highest point from the ground it made a click and a
jerking noise. She fell off the swing.
She was not on the swing for very long. It was the second time it was going up
and down that she fell from it. She had
played on the swing before but not on that day.
She fell to the ground. After she struck the ground she found it
difficult to breath. Her friends Hannah
and Emma helped her home. The park was
not far from her house.
[5] The
pursuer was shown photographs which are part of No 5/3 of Process. She identified the swing in photograph number
1 as the piece of equipment she was playing on when she fell, other than there
was another piece on the swing to make it a four way swing, rather than a two
way swing shown in the photographs. She
said that the swing was hard to get on because it was high up.
[6] Hannah
Bell said she was in the park the day the pursuer fell from the swing. She said that the pursuer was on the swing
with her brother, Robert. The pursuer
was a friend of Hannah Bell. She said
that the swing jerked at the top and the pursuer fell to the ground. She was shown photograph number 1. She said that was the type of equipment on
which the pursuer was playing when she fell.
Hannah Bell was aged 10 on the relevant date.
[7] William
Dewar gave evidence for the pursuer. It became apparent fairly soon that Mr
Dewars' evidence was not what Mr Fraser expected it to be. Mr Fraser stated his
intention to cross examine Mr Dewar.
[8] Mr
Dewar had been employed by the defenders as part of a landscaping squad for
four years but he was not so employed in August 2001. I have no doubt this was
not the answer Mr Fraser was expecting. He said he was familiar with the park
having attended the park with his niece in August 2001. He identified the park
by reference to photograph number 1 as being the park he attended with his
niece in August 2001. He said there was bark under the swing when he saw it but
that the bark had been moved away from under the swing leaving the rubber
material underneath visible. He was quite clear that the bark had been in that
state in August 2001.
[9] The
next witness for the pursuer was Mr Peter Heal, a safety and consulting
engineer. Mr Heal produced a report
which is No 5/3 of process Mr Heal is an experienced engineer with particular
expertise in the field of health and safety.
Annexed to his report is a set of photographs which he took of the swing
and the park. These were the photographs put to the pursuer and Hannah Bell.
It
was Mr Heal who measured the distance between the seat of the swing and the
ground. He found it to be 2.3 metres.
He
also noted bark on the ground the below the seat of the swing.
[10] Mr Heal
was asked about the existence of Standards for the provision of play equipment
in children's parks. He referred to BS
5696 and BS EN 1176 (Nos 5.5-5.8 of Process).
The earlier of the two standards is BS 5696 which is the British
Standard. He said that BS EN 1176 was an
attempt to harmonise Standards throughout Europe. The Standards had been endorsed by the Royal
Society for the Prevention of Accidents and constituted the authoritative
Standard for children's play equipment.
As far as he knew, these are the only Standards available. Companies manufacturing children's' play
equipment do so to the Standards. Mr
Heal said he had carried out health and safety work for local authorities and,
so far as he knew, the Standards were adopted by local authorities. He was not aware of anybody in the industry
who did not use the Standards.
[11] In Mr
Heal's opinion, it is the installation date of equipment which dictates the
Standard that applies. BS 5696 has been superseded by the later Standard. That later Standard calls for a difference in
height of no more than 1.5 metres whereas the earlier Standard calls for a
height of no more than 1.8 metres.
Mr
Heal had measured a distance of 2.3 metres between the ground and the seat of
the swing at its highest. Therefore,
whichever of the Standards applied at the time, there was a failure to comply.
Photographs 1 and 3 show the distance between the ground and the seat of the
swing.
Mr
Heal was asked about the difference in the Standards in that one prescribes a
height of 1.5 metres and another 1.8 metres. In his view there was a difference
of opinion. In the United
Kingdom, committees are formed to consider
the Standards and those committees include medical advice. One obvious purpose
of the Standards is the prevention of serious accidents.
[12] Mr Heal
went on to explain that when he saw the surface area, the bark had formed a
hollow. The relevant standard (BS 5696 at para 4.2.5.3) refers to the use of
bark or other material. There should have been a bed of absorbent material
300mm deep. Bark helps to absorb any impact. When Mr Heal examined the ground
there was bark below the swing but the material directly under the swing had
become compacted. It had not been raked to give an even depth. The depth was
not 300mm. The bark was deeper at the extremities. It could have been kicked
there; children might have played with it; or wind movement might perhaps have
moved it. Compacting can happen early which is why it is important to ensure
the material is raked regularly. Body weight landing on a regular basis on the
same spot is another factor. In Mr Heal's opinion, the extensive compression
and the hollow showed this had happened over a long period of time. In his
view, contrary to the relevant standard (para 10.3) the bark had not been raked
daily. He saw no evidence of any system of raking. He did not think it had been
regularly maintained.
[13] Mr Heal
was referred to his conclusion, set out in paragraph 7.1 of his report, in
which he comments upon the swing and its construction :-
"1. The
height of the seat from the surface and the inclination of the beam were too
great.
2. Failure of the defenders to maintain the level
of bark chippings to the required 300mm, which would significantly have reduced
the risk of injury when falling on it.
3. Failure of the defenders to instigate the
recommended system of equipment inspections and maintenance.
4. Failure of the defenders to assess the risks
the equipment posed to users and to ensure the equipment was up to the required
standard. This includes identification of the risk the inclined log poses to
anyone climbing on it/or falling off the swing."
[14] In
relation to paragraph 4 (inspection and maintenance) Mr Heal said when there is
a change of Standard there is an obligation to carry out a risk assessment. Had
he been asked to carry out a risk assessment on the swing in the photographs,
one solution might have been to extend the length of the chains but that would
have given rise to a risk that the chain might become wrapped around a limb. In
his view, any safety advisor, looking at that swing, would have had alarm bells
ringing. The main problem is height. In his view one could look at the issue in
two ways: either the application of the Standard (which refers to a height) or
by looking at it from the perspective of work at a height. In the latter case,
there had been an industry standard to prevent falls from a height in excess of
2 metres but the HSE had now moved to risk assessment, recognising that
injuries can still occur even when the Standards were complied with. Compliance
with the Standard would not eliminate risk altogether but, a maximum height of
1.8 metres, combined with a bark surface of 300mm, would reduce the chances of
suffering serious injury.
[15] The only
cross-examination of Mr Heal was to the effect that he saw the swing on 20
November 2003, more than two years after the accident. He was therefore assuming that the swing was
in the same, or a similar condition, at the time of the accident. He accepted that if the swing had changed
from a four seat swing to a two seat swing there might have been other changes
as well.
[16] Dr Alan
Boyd is a consultant surgeon. He treated
the pursuer. She was presented to him on
14 August 2001. She had a ruptured
spleen. Dr Boyd was asked about the injury and the connection with a fall from
a height. Dr Boyd was not aware of any
other injury which would have accounted for the ruptured spleen. He was shown the photographs showing the distance
between the swing and the ground. As I
have him in noted, he said that a fall from a height of 2.3 metres was capable
or likely to cause the injury from which the pursuer suffered. Injuries to the spleen usually occur from
blunt force such as a fall or sudden deceleration such as in a road traffic
accident. Where there is a fall from a
height, the greater the height, the greater the energy to be dissipated. Where there is a fall onto a hard surface
that will increase the rate of deceleration and hence injury. Dr Boyd could not say that there was a safe
height from which to fall. He had known
of cases where a patient had suffered a ruptured spleen tripping over on the
pavement. What he could say was that,
the lower the height, the less the likelihood of injury. The lower height meant less energy to be
dissipated. In cross-examination he
accepted that he could not say that, had the pursuer fallen from a lower
height, she would not have suffered the same injury.
PURSUER'S
SUBMISSIONS ON LIABILITY
[17] Mr
Fraser submitted that all his averments in article two should be found to be
proved. Article two says
"Photographs of the said the swing are produced". The clear evidence
of the witnesses was that the swing which was photographed by Mr Heal was the
same swing from which the pursuer fell. The only difference was the cross beam.
Both the pursuer and Hannah Bell said the pursuer fell from the point where the
swing was at its highest. Whatever the height was, it was at least half a metre
higher than it would have been if the swing had complied with the relevant
standard. The unchallenged evidence of
Mr Heal was that the height was 2.3 metres and that the relevant standards were
either 1.5 metres or 1.8 metres. In relation to article four, Dr Boyd said he
was unaware of any other mechanism which would have caused this injury
The
defenders accepted they were the owners of the park and they were therefore the
occupiers. Mr Fraser accepted there was no evidence as to exactly when the
swing was manufactured and thus he could not say definitively which of the two
Standards applied. Mr Fraser accepted he was probably bound by the earlier
Standard which prescribed a height of 1.8 metres. The evidence of Mr Heal was to the effect
that changes did not usually occur when the Standards changed. Although there was a case on record
concerning the angle of elevation of the swing (and referred to by Mr Heal) Mr
Fraser did not insist on that.
[18] There was
an averment concerning the depth of the bark in article three. He submitted
there was sufficient evidence for me to hold these averments proved. Mr Heal said that the bark had become
compacted over some time. Mr Fraser
accepted that Mr Dewar was not a satisfactory witness. Mr Dewar did say that
about the time he visited the park the amount of bark was inadequate and rubber
was showing. I ought to accept that part of his evidence.
[19] Article
three averred that if the maximum height of the swing had been less than or
equal to the maximum height recommended by the relevant standard the risk of
injury would have been materially reduced.
Mr Heal's evidence was relevant.
Dr Boyd said the greater the height from which one falls and the harder
the surface, the greater the risk of injury.
An increase in either is a material increase in risk.
[20] Mr
Fraser said he had no direct authority in point. I took him to mean that he had
no direct authority on the Occupiers Liability (Scotland) Act 1960 as it
applied to playgrounds.
[21] Mr
Fraser then referred me to the case of Barker
v Corus (UK) plc [2006] UKHL 3 May 2006, particularly at paragraph
[72].Whatever else might be said, an increase in height of half a metre was not
de minimis. As I have him noted, Mr
Fraser said that, for her to succeed, the pursuer must show the fact that the
height from which she fell was greater than it would have been but for the
defenders' breach of duty, materially increased the risk that she would suffer
the injury which she did suffer.
[22] So far
as duty was concerned the question was one of reasonable care. It was
reasonably foreseeable that a child might fall and injure herself. The pursuer did not say that the Standards
had legal effect but the Standards were accepted as authoritative by health and
safety professionals and local authorities.
That was the evidence of Mr Heal.
Mr Heal said their application was a universally accepted practice. For the defenders to fail to follow the
Standards was a breach of duty. Mr Fraser referred to the case of Wyngrove v Scottish Omnibuses 1966 SLT
273. It was proved that the defenders had failed to provide equipment which
complied with the relevant standard and that Standard was BS 5696. That
Standard applied to the swing.
[23] On the
question of causation the height of the swing was at least half a metre higher
than it would have been because of the defenders' breach of duty. The same analysis applied to the hardness of
the surface. Mr Fraser then took me in some
detail to the cases of Barker v Corus;
Fairchild v Glenhaven Funeral Services
Limited [2002] UKHL 20th June 2002 and McGhee v National Coal Board 1973 SLT 14. Applying the McGhee case, the brick dust here was the
impact. It was that which caused the
injury. Reference was also made to the Shire
of Wakool v Walters [2003] VSC 492 (17th December 2003) which involved a
fall from a climbing frame onto bark.
[24] Mr
Fraser analysed the dicta of the Judicial Committee in Fairchild particularly
in relation to Lord Bridge's comments in Wilsher
v Essex Area Health Authority [1988] AC 10. Mr Fraser referred to the
evidence of Dr Boyd. Dr Boyd said he could not know, and it was not possible to
say, whether the injury would have happened had the pursuer fallen from a
height half a metre less than that from which she fell. He could not say that
half a metre caused the injury. The analogy with McGhee was clear. It is the
very fact that it is not known whether the injury was caused by the height to
which blame attaches, and one to which no blame attaches, which leads the
pursuer to rely on the material risk theory of causation. Reference was made to
Barker. The cases of McGhee, Barker and Fairchild
showed that, where one cannot say if the accident was caused by a wrongful act
or a non wrongful act, but the pursuer could show that the wrongful act
materially increased the risk, that was enough. A material increase in risk
caused by the defenders' breach of duty is all that is required. A key finding
in fact is that this injury was caused by the impact of her fall and any
material increase in height materially increased the risk of injury.
[25] In his
reply to Miss Beattie's submission, Mr Fraser said the pursuer loses on the
application of the "but for" theory of causation.
[26] So far
as British Standards were concerned he referred to the case of Perry v Butlins Holiday World 28
November 1997. If there is a British
Standard which is relevant a defender needs very good reason why it should not
be followed.
DEFENDERS'
SUBMISSIONS ON LIABILITY
[27] On
liability Miss Beattie divided her submissions between the evidence as to the
swing at the time of the accident and whether there was any breach of the
defenders' duty of care.
[28] So far
as the evidence as to the height of the fall was concerned the pursuer had
given evidence that the equipment shown in photograph number one was the piece
of equipment from which she fell although one of the beams had been
removed. The beam that remained was the
one from which the pursuer said the swing was attached. She said that when she reached the top of the
swing it made a jerking noise and she fell off.
No evidence was led of any measurements taken of the equipment at the
time of the accident. There was no
evidence led as to the height from which the pursuer fell. There were no contemporaneous photographs
taken which established the height from which she fell.
Neither
the pursuer nor Hannah Bell had been asked to confirm the height of the seat at
the time of the accident. Nor were they
asked to confirm the depth of the bark at the time of the accident. Mr Dewar's evidence did not show he was there
on the day of the accident. Mr Heal's
inspection was carried out two years after the accident. Mr Heal's report is based entirely on the
assumption that the condition of the equipment at the time of inspection was
more or less the same condition at the time of the accident. He accepted that the measurements could have
changed between the date of the accident and the date of preparation of his
report.
Miss
Beattie submitted that it was within judicial knowledge that bark is soft,
light and is a substance which can be easily moved or brushed away. Mr Heal had given evidence that repeated
usage of the area and weather conditions can affect the bark.
In
Miss Beattie's submission, for the pursuer to succeed, she must prove the
dimensions of the equipment on the day of the accident; prove that the
defenders were in breach of their duty of care; and prove a causal connection
between the breach and the injury.
[29] The
pursuer's case on record alleges that the maximum height of the swing was too
high; the maximum angle of the beam was too great; the bark below the swing was
inadequate. There was no evidence in
relation to the second issue. So far as
the first and third issues were concerned Miss Beattie repeated what she had
said in relation to the evidence of the pursuer and her other witnesses. In short, the pursuer was unable to prove
that the dimensions of the play equipment at the time of inspection in November
2003 were same as the dimensions of the play equipment at the time of the
accident. For that reason alone the
pursuer must fail.
[30] If the
court were against her on that issue there was still the issue of breach of
duty of care. The pursuer alleges that
her injury was caused or worsened by the contravention of British Standards and
not a defect in the actual equipment itself.
In the defenders' submission, British Standards are guidelines only and
encourage an ideal state of affairs but do not impose minimum requirements. In
support of that submission Miss Beattie referred me to the cases of Ward v Ritz Hotel (London) Ltd 1992 PIQR
315 and Green v Building Scene Ltd
1994 PIQR 259. In order to establish
liability, foreseeability must be established: in other words that the
defenders knew or ought to have known of the risk of harm. The pursuer has no case the based upon a
failure of a system of inspection, nor upon prior accidents or previous
complaints. In the absence of these
averments foreseeability cannot be established.
The departure from the recommended standard in the British Standards is
not enough.
[31] In
relation to causation, Dr Boyd was unable to comment on whether there is a safe
height from which one can fall. A simple
fall can produce a ruptured spleen. When
asked about falls from various heights
Dr Boyd accepted that had the pursuer fallen from a height lower than
2.3 metres, she could have sustained the same injuries. Although he said the greater the height the
greater the energy and therefore the greater the risk of injury, he also said
that a fall from a higher height could produce bruising. There are many variables such as the actual
height of the fall, the surface on which you fall and the angle of the fall. On this evidence it has not been established
on the balance of probabilities that the excess height made it "more
likely than not" (the way in which the balance of probability test is
commonly defined) that there would be injury.
The same injury could have been caused had the pursuer fallen from a
height which according to the pursuer would have been safe.
[32] So far
as material increase of risk of harm is concerned the cases referred to concern
industrial diseases and are not relevant here.
Miss Beattie referred to the cases of Porter v Strathclyde Regional Council 1991 SLT 446; Muir v Cumbernauld and Kilsyth District
Council 1993 SLT 287; and Fairchild. There was no suggestion in anything said by
Lord Rodger that the "McGhee principle" has any application beyond industrial
disease or similar cases (e.g. medical negligence). There is no basis in extending the McGhee test the circumstances such as
the present. Reference was also made to
in article from the Journal of Personal Injury Law 2003 entitled "Three
Steps to Heaven". The material increase
in risk test applies only to cases of industrial disease or cases, such as
medical negligence, where the limits of our knowledge of medical science make
it necessary to apply a different test to the usual "caused or
contributed" test.
Accordingly,
there exists a crucial gap in the pursuer's case in relation to causation which
cannot be bridged by speculation -- unsupported in the evidence -- as to the
likelihood of the additional 50 centimetres to 80 centimetres having caused the
injury. The pursuer therefore fails on
the grounds of causation.
QUANTUM
[33] So far
as quantum is concerned, Mr Fraser submitted there were two material
components: (1) immediate pain and suffering (2) the psychological distress
suffered by the pursuer in the aftermath of the injury.
The
evidence came principally from the pursuer herself, Mrs Bye and Dr Boyd.
[34] The
pursuer suffered a ruptured spleen as a result of the fall. She was in considerable pain. She was eventually admitted to hospital where
she remained for a number of weeks. Her treatment was described by Dr Boyd as
conservative. There was no surgery. She had cuts and bruises to her forehead.
The
pursuer should have started first year at secondary school in August 200l. She did not return to school until sometime
before Christmas. The exact date was
unclear. There seemed to be some
confusion on the part of the pursuer's family as to whether the pursuer could
return to school. Reference was made to
a letter from Dr Boyd dated 2 October 2001 (No 5/2 of process, page 3) in which
Dr Boyd specifically said she could return to school but that she should not
engage in games or other playground activities which might result in her being
jostled or knocked about.
The
pursuer continued to be in pain on her return from hospital. She required a home tutor.
[35] When she
did return to school she was restricted in some of her activities. She needed to use the school lift. She had to stay in the library when others
were at games. At one point, it appeared
that the pursuer's position might be that her entire school career was blighted
by the accident. She had been accused of
being a "skiver" by other children and regularly criticised on account of
that. She became reluctant to go to
school. She left school with no
qualifications. However, Mr Fraser said
he was not pursuing any head of claim in relation to that.
[36] Prior to
her accident, the pursuer had been a successful disco dancer. She began at the age of six. She had won the Scottish championships three
or four times and had come third in the British Championships. She gave it up after the accident. Her dance partner moved on. She had become unfit.
[37] Mr
Fraser referred to the Judicial Studies Guidelines; Gray v Lanarkshire Health Board 1996 SLT 390; McNulty v Alam 1996 SLT (Sh Ct) 71.
He suggested damages in a range of £3,000-£5,000 and that £5,000 would
be reasonable under this head of claim.
[38] In
relation to psychological distress, Mr Fraser submitted there was an analogy
with solatium for defamation. Mr Fraser
referred to Muirhead v George Outram Ltd
1983 SLT 201. The present case was one
where the impact of the accident was more than just the time in hospital. Whereas he made no claim for loss of earnings
or loss of employability because the pursuer left school with no
qualifications, there was a long period of invalidity. The pursuer had never really got over the
accident.
[39] He
sought interest on any award with one half from the date of the accident until
January 2002 and at the full judicial rate of interest from January 2002.
[40] In
reply, Miss Beattie referred to the Judicial Studies Board Guidelines and the
unreported case of H v Pitfield 4
January 2006. There was no evidence of,
nor any record for, psychological injury.
The pursuer had failed to make out any claim for loss relating to her
disco dancing activities nor was there any claim for her not attending school
regularly and leaving with no qualifications.
If I were minded to award damages they should be limited to £2250 which
was in accord with H v Pitfield.
DECISION
[41] In my
view, there are three major issues in this case: (1) whether the pursuer has proved that the
accident happened and, in particular, the state of the swing and the bark on
the relevant date; (2) if she has,
whether there was a breach of duty on the part of the defenders; (3) whether that breach of duty caused her
injury?
The First
Issue
[42] The
witnesses to the accident were the pursuer and Hannah Bell. Both were young at the time of the
accident. I found them both to be
credible and reliable witnesses in relation to the accident. They gave their
evidence in a straight forward and measured way. It was not suggested that
either was lying or unreliable. The
incident was unusual. It is something
that both would have remembered. The
pursuer was consistent in her account to Dr Boyd. Mrs Bye did not see the accident but was
clearly shocked by the pursuer's condition when she saw her the next day. I do not think one could be mistaken as to
the occurrence of such an event and having seen both witnesses I do not believe
they were lying about its occurrence. In fairness, the pursuer was not
cross-examined so as to suggest the incident did not happen in the way she said
it did. I have little difficulty holding
that it did happen in the way she and Hannah Bell said it did. I should also
say that I found both Mr Heal and Dr Boyd to be credible and reliable
witnesses. Indeed, I would go further and say that I found both to be
impressive witnesses. Both struck me as being entirely truthful and were both
measured and thoughtful in responses to questioning. The evidence of Mrs Bye
went largely to the consequences of the accident. Allowing for a small degree
of maternal exaggeration as to the effects of the injury I broadly accept her
evidence. I will comment on Mr Dewar separately.
[43] The
state of the swing and the bark is somewhat more difficult. It is clear that Mr Heal carried out his
inspection in 2003. He quite fairly
accepted that he could not speak to the state of the swing in 2001. There was no direct evidence led by the
pursuer to prove the measurement between the seat of the swing and the ground
on the relevant date. However, there
were photographs taken by Mr Heal. These
photographs were put to both the pursuer and Hannah Bell. Both said that, on
the relevant date, there was another part to the swing. I understood them to say that this other part
made it a four way swing. They were both
clear as to the presence of the bark below the swing. It is a crucial part of
the pursuer's case that, on the relevant date, the distance between the seat of
the swing and the ground was in excess of 1.8 metres and was, in particular,
2.3 metres.
The
defenders led no evidence as to the state of the swing, or the park, at any
time although they admit they were the occupiers of the park. They led no evidence to contradict the
pursuer's case.
Both
the pursuer and Hannah Bell said that the swing in the photographs taken by Mr
Heal in 2003 was the swing from which the pursuer fell. The only change was the other part of the
swing from which the pursuer did not fall. I accept the evidence of the pursuer
and Hannah Bell when they say that the swing was the one from which the pursuer
fell on the relevant date. The swing was of a particular type, not what one
might call the type of common swing attached by chains to a single bar but a
T-shaped construction. On any view, the
evidence is that the type of swing was the same. It follows that for the height to be
different this swing must have been taken down and rebuilt or the length of the
chain adjusted or had some other major alteration. I remind myself that matters have to be
proved on a balance of probabilities, that is, something is more probable than
not. In my view, it is more probable
than not that the swing in 2003 is the same swing as in 2001 and that it was
the same height. The girls were clear in
their identification of what is, as I said, a particular type of swing. I have
found them both to be credible and reliable.
There is nothing which suggested any reason why the swing would have
been taken down and rebuilt or the lengths of chains altered. There is nothing inherently improbable in the
swing remaining at the same height between 2001 and 2003.
I
have considered the issue of the crossbeam.
Again, both girls seem to dismiss its presence as being largely
irrelevant. It was not put to either of them in cross-examination that it was
of any significance. Nor was it put to
them that the swing was not, in material respects, the same between the two
dates.
[44] The
defenders chose not to lead any evidence on this issue. They do not take issue that they are
responsible for the swing. Its condition
is within their knowledge. I do not
think is open to them to object to the drawing of inferences adverse to them
when it is something they did not put to the witnesses and could easily have
contradicted had they been so minded.
[45] So far
as the state of the bark is concerned, I do not think I can make any finding as
to its precise state on the relevant date other than to say that bark was
present. Neither the pursuer nor Hannah
Bell gave clear evidence on this issue.
Mr Dewar did give evidence on this issue. I do not find him to be a
reliable witness. I did not find the way he gave evidence to be impressive. He
had to be cross examined by Mr Fraser. I find it odd that he should be so
certain as to the state of the bark about the time of the accident when he was
less certain in other parts of his evidence. I accept Mr Heal's evidence when
he said that, when he saw the bark, it had become compacted. However, that was
some time after the relevant date. The evidence is that the bark is easily
moved. It is not the same as the swing which is a major item of playground
furniture. There is no doubt that bark was present underneath the swing on the
relevant date. I can accept Mr Heal's evidence that it did not look as if it
had been properly attended to but given its nature I do not think I can infer it
was in that condition on the relevant date. I do not think there is sufficient
evidence to allow me hold that the bark had been displaced so as to form a
hollow on the relevant date.
THE SECOND
ISSUE
[46] The
second issue in this case concerns the significance of the British
Standards. Mr Heal made reference to
these in his evidence. There does not
appear to be any dispute that the Standards do apply to the swing. Mr Fraser relies upon BS 5696.
I was
referred to Munkman paras 2.99-2.104; Ward
v The Ritz Hotel (London) Ltd [1992] PIQR 315; Green v Building Scene Ltd [1994] PIQR 259 and Perry v Butlins Holiday World 28 November 1997.
[47] It was
not suggested to me that a British Standard has the same effect as a legally
enforceable regulation, in the same way as, for example, statutory instruments
enacted pursuant to the Health and Safety at Work etc Act 1974. I accept Mr Heal's evidence that the
Standards are accepted by health and safety professionals and local authorities
alike and that the determination of the content of the Standard involves
consideration of, amongst other things, medical issues by committees of
qualified persons.
In
the case of Ward, there was evidence
that a balustrade had not been raised to a height recommended by the particular
Standard. In the case of Green, a stairway did not have a
handrail which conformed to the particular Standard. Both cases are decisions of the Court of
Appeal in England. In the case of Ward the defendants were held
liable. In the case of Green there were not. In Ward, the Court of Appeal found for the
plaintiff by a majority. In his dissenting judgement, Lloyd LJ described the
British Standards as no more than a recommendation. McCowan LJ, quoting from an
earlier decision, held that the Standards represented the knowledge and
expertise of the profession when they were issued. They represent the consensus
of professional opinion and practical experience as to sensible safety
precautions. As I read Green, on its
facts, the British Standard was not relevant. In the course of his judgement
Staughton LJ accepted that the Standards were something of which account should
be taken as they represent the current professional opinion as to what is
desirable in order that accidents should be avoided. His Lordship went on to
say that the laying down of Standards is one thing but it is another to decide
what is reasonably safe.
[48] In my
opinion, failure to comply with the British Standard does not, in itself,
equate to negligence. (In fairness, it
was not suggested that it was.) In this case, the Foreward to BS 5696 says it
is a code of practice prepared for reasons of safety. It is up to a court to conclude whether there
has been negligence on the part of the defender. The application and content of a British
Standard may be a relevant consideration to take into account when determining
that question.
[49] In my
view, at the relevant standard is a fact to which I ought to have regard when
considering whether there has been a breach of duty on the part of the
defenders. The relevant standard applies
to parts and equipment such as that under consideration here. I have accepted Mr Heal's assessment of their
standing amongst relevant professionals. The particular passage relating to the
height of the swing (para 13.1) seems to me to be particularly relevant to what
I have to consider. As I read it, this
passage is dealing with the very matter before me, namely injuries arising as a
result of a fall from a swing and therefore the height of the swing is relevant.
For my own part, having heard the witnesses and looking at the photographs, I
conclude that, at its highest point, the swing was too high.
Applying that analysis, I conclude
that there was a breach of duty by the defenders in that the swing exceeded the
height prescribed by the relevant standard.
THE THIRD
ISSUE
[50] One of
the most difficult issues in this case concerns causation and I confess it is
one which has caused me no small difficulty.
The
debate proceeded before me upon the basis that the general rule as to causation
is encapsulated in the "but for" rule. The pursuer's position is that, if that rule
is applied to the current case, then she loses.
The defenders say that the "but for" rule applies to this case and, for
essentially the same reasons as the pursuer advances, the pursuer loses.
The
pursuer sought to overcome this difficulty by the application of what I will
describe for reasons of brevity as the "McGhee principle". Given
that both parties take the position that, applying the "but for" test
of causation the pursuer cannot succeed, the issue is whether the McGhee principle (if there is one)
applies to this case.
The
pursuer felt constrained to adopt this position because of the evidence of Dr
Boyd. The pursuer's case is that the
defenders' breach of duty is the failure to adhere to the height of 1.8 metres
between the ground and the seat of the swing specified in the relevant
standard. The pursuer says she fell from
a height of 2.3 metres. Applying the
"but for" test, if the pursuer had fallen from a height of only 1.8 metres
would she had suffered the injury she did?
The injury was a ruptured spleen.
Dr Boyd could not say that, had the pursuer fallen from a height of only
1.8 metres, as opposed to 2.3 metres, she would not have suffered a ruptured
spleen. What he could say was that the
lower the height, the lower the likelihood of the injury and conversely the
higher the fall the greater the risk of injury.
A fall from a height of 2.3 metres was capable of causing the injury and
likely to cause the injury. The greater
the height, the greater the energy to be dissipated. Mr Heal said substantially
the same thing. Dr Boyd also said that he had known of patients to suffer a
ruptured spleen falling over on the pavement.
[51] It is
axiomatic that in negligence cases (and I include occupiers liability cases)
there has to be a causal connection between a wrong and a loss. In many cases it is easy to show a link
between the two: the negligent driver who runs down the pedestrian; the
negligent employer who allows a machine to remain unguarded when the guard
would have stopped the injury. The
"but for" test is counterfactual.
But for X, Y would not have happened.
In the majority of negligence cases the test is convenient and easy to
apply.
[52] Lord
Bingham observed in Fairchild
(particularly at [8] to [13]) the traditional "but for" test formulation may
work injustice. But that very observation begs the question why it is thought a
particular conclusion is unjust and on what basis a rule can be formulated to
avoid injustice. On this question of principle, in my respectful view, it is
helpful to have regard to what Lord Hoffmann said in Fairchild. If I have understood his Lordship correctly, the real
issue lies in the nature of the inquiry under review and that inquiry is an
examination as to negligence.
"....... The
concepts of fairness, justice and reason underlie the rules which state the
causal requirements of liability for a particular form of conduct ... just as
much as they underlie the rules which determine that conduct to be tortious.
And the two are inextricably linked together: the purpose of the causal
requirement rule is to produce a just result by delimiting the scope of
liability in a way which relates to the reasons why liability for the conduct
exists in the first place."
Lord
Hoffmann went on to identify certain features in Fairchild (at para [61]) and that on the facts of that case "...that
the cause of Mr Matthews' cancer was his significant exposure to asbestos
during two employments over a period of 8 years, without being able to identify
the day upon which he inhaled the fatal fibre, is a meaningful causal
statement."
[53] The
speeches I have referred to illustrate the point that causation, as a legal
concept at least, may not lend itself easily to a single all encompassing test
of uniform application. Applying one test has not always been straight forward.
As Lord Hoffmann observed (at para [59]) the "lost opportunity rule" was an
attempt to deal with the rule that a finding of contributory negligence was a
complete bar to recovery.
[54] With that in mind, I now turn to the trilogy
of cases to which I was referred, namely McGhee
itself, Fairchild and Barker.
The latter two cases make extensive reference to McGhee and seek to explain its application.
[55] I start
by referring to the facts in the case of McGhee. Mr McGhee worked in a brick kiln. He suffered from dermatitis. The atmosphere in which he worked was hot and
dusty. There were no showers. He cycled home from work still caked in dust
and grime. The medical evidence showed
that his dermatitis might have arisen as a result of an accumulation of
abrasions or a single abrasion on his skin. The way the case developed, the
pursuer could only succeed by relying on the absence of shower facilities at
his employment. Applying Wardlaw v Bonnington Castings Ltd 1956
SC (HL) 26 the pursuer could say that the accumulation of abrasions arose as a
result of his exertions as a whole, that is both in the kiln and on the way
home. In other words, there would be no
need to distinguish the "innocent" particles at work from the
"guilty" particles on the way home.
The problem was that the condition could have started from a single
abrasion, not the cumulative effect, and the pursuer could not prove that had
been caused during exertion on the way home, rather than in the kiln. Put
another way, Wardlaw involved
concurrent causes whereas McGhee
involved what might be concurrent causes. It followed that the pursuer could
not succeed because he could not prove that the absence of showers had caused
or materially contributed to his injury.
The pursuer failed in his claim before the Lord Ordinary and the Inner
House but succeeded on appeal to the House of Lords.
[56] The
precise basis upon which the Committee allowed the appeal, and the implications
thereof, is, to say the least, controversial.
The cases of Fairchild and Barker to which I was referred set out
in some detail the arguments which have followed from the decision in McGhee.
Fairchild in particular
contains extensive references to other cases, both within the United Kingdom
and elsewhere, which have analysed and referred to McGhee, one of which is Wilsher
v Essex Area Health Authority [1988] AC 10.
[57] The
issue appears to be whether McGhee
established a different test for causation and, if it did, in what
circumstances it is appropriate to apply it?
Up to
now, I have concentrated upon the "but for" test which featured heavily in the
debate before me. However, in my opinion it is important, and indeed may be
crucial in this case, to recognise that the standard test of causation is
expressed as "caused or materially contributed". That was the averment for the
pursuer in McGhee as indeed it is in
most cases of negligence. As Lord Rodger observed in Fairchild (paras [128] and [129]), by the time of Wardlaw, material contribution was a
well recognised test.
"The
idea of liability based on wrongful conduct that had materially contributed to
an injury was ...well established long before Wardlaw...Since
it is enough that the defendant's wrongful act materially contributed to the
claimant's injury, the law is not applying the causa sine qua non or "but for" test of causation....in the Court of
Session in McGhee the judges
lost sight of this important point."
[58] On that
analysis, the material contribution element of the test of causation is thus
not predicated upon the "but for" test. The innovation in McGhee, if it was an innovation, was the proposition that a
material risk of injury was enough to satisfy the requirements of
causation. Lord Reid put the matter thus
(1973 SLT at p22):-
"There
may be some logical ground for ... a distinction [between materially increasing
the risk that a disease will occur and making a material contribution to its
occurrence] where our knowledge of all the material factors is complete. But it
has often been said that the legal concept of causation is not based on logic
or philosophy. It is based on the practical way in which the ordinary man's
mind works in the everyday affairs of life. From a broad and practical
viewpoint I can see no substantial difference between saying that what the
defender did materially increased the risk of injury to the pursuer and saying
that what the defender did made a material contribution to his injury."
[59] In Fairchild, Lord Rodger thought that the
decision was a development in the law of causation (para [154]). Lord Nicholls thought it was the application
of a less stringent test (para [44]).
Lord Hutton thought there was no clear statement as to the underlying
basis of the decision (para [106]).
(Although he did seem to think that the correct basis was the making of
an inference.) Lord Hoffmann thought
that McGhee did introduce in limited
circumstances, a test of material risk as sufficient to satisfy the causal
requirements for liability (para [67]).
Lord Bingham accepted that McGhee
did equate material risk with material contribution, albeit on the facts of the
particular case (para [21]).
[60] As I
said, reference was made to the case of Wilsher. I refer to that because of the reference to
the speech of Lord Bridge in which he explained what he thought the House had
decided in McGhee. Lord Bridge seemed
to think that McGhee laid down no new
principle of law at all and was based solely upon an inference of fact. He held
that McGhee did not modify the nature
of the burden of proof of causation, a conclusion which the Committee in Fairchild felt unable to share. I refer
to this because this is the passage which was cited with approval in the case
of Porter v Strathclyde Regional Council
1991 SLT 446 to which I was referred.
[61] I have
already made reference to Fairchild
in its general application to issues of causation. The decision itself
concerned a number of cases in which claims were pursued for loss and damage as
a result of employees contracting mesothelioma following exposure to
asbestos. One of the issues, if not the
major issue, was that the claimants could show exposure to harmful dust and
employment by a number of employers but they could not prove the causative link
between the particular employer and the particular employee. The factual circumstances were different from
McGhee. In McGhee
there was only one employer and a different disease.
The
claimants were successful. In finding
for the claimants the Committee acknowledged the implications of the decision.
The Committee did not seem to shy away from the conclusion that, in finding for
the claimants, the House was departing from the usual "but for" test. Lord
Bingham, in particular, acknowledged that, at the end of the day, the House was
reaching a policy decision (para [33]) and that in so doing McGhee had relaxed the usual rules as to
causation. Lord Bingham acknowledged that the principle might be the subject of
"incremental and analogical development"(para [34]).Of the five members of the
Committee, Lord Rodger addressed squarely the basis upon which the principle in
Fairchild might be applied (at para
[170]):-
"First
the principle is designed to resolve the difficulty that arises where it is
inherently impossible for the claimant to prove exactly how his injury was
caused. It applies, therefore, where the
claimant has proved all that he possibly can, but the causal link could only
ever be established by scientific investigation and the current state of the
relevant science leaves it uncertain exactly how the injury was caused and, so
who caused it. McGhee and the present cases
are examples. Secondly, part of the
underlying rationale of the principle is that the defendant's wrongdoing has
materially increased the risk that the claimant will suffer injury. It is therefore essential not just that the
defendant's conduct created a material risk of injury to a class of persons but
that it actually created a material risk of injury to the claimant
himself. Thirdly, it follows that the
defendant's conduct must have been capable of causing the claimant's injury. Fourthly, the claimant must prove that his
injury was caused by the eventuation of the kind of risk created by the
defendant's wrongdoing. In McGhee, for
instance, the risk created by the defender's failure was that the pursuer would
develop dermatitis due to brick dust on his skin and he proved that he had developed
dermatitis due to brick dust on his skin.
By contrast, the principle does not apply where the claimant has merely
proved that his injury could have been caused by a number of different events,
only one of which is the eventuation of the risk created by the defendant's
wrongful act or omission. Wilsher is an example. Fifthly, this will usually
mean that the claimant must prove that his injury was caused, if not by exactly
the same agency as was involved in the defendant's wrongdoing, at least by an agency
that operated in substantially the same way. "
[62] McGhee and Fairchild itself were again extensively reviewed in the case of Barker. Like Fairchild, the case of Barker
concerned claims on behalf of employees who had contracted mesothelioma as result
of exposure to asbestos. (I note in passing references in the speeches as to
liability qua employer and occupier.) The real issue in Barker was the question of apportionment of liability amongst a
number of employers whose liability was based on the application of the Fairchild principle. By a majority, the Committee held that
liability amongst the employers should be apportioned, not on a joint and
several basis, but on a several basis.
One of the issues referred to in the speeches is was whether McGhee, properly interpreted, meant that
material risk amounted to material contribution and thus satisfied the test of
causation, or whether the material risk test was enough to establish liability
without equating to causation.
[63] As I
read the majority speeches, the decision proceeded upon the basis that the McGhee principle, as applied in Fairchild, was that the acts of the
employer had materially increased the risk that the employee would contract
mesothelioma but that should be categorised as increasing a risk or chance as
opposed to actually causing the disease.
Lord Rodger dissented. In his
opinion, the correct ratio of McGhee,
principally following the speech of Lord Reid, was that material risk did
satisfy the test of material contribution.
It was not a case of the risk being deemed to have satisfied causation.
[64] The
result of the authorities I have been referred to seems to me to be this.
Causation is part of an inquiry into the alleged wrongdoing of a party. The
alleged wrongdoer should only be liable for the consequences of his acts or
omissions. Causation is an essential link between the alleged wrongdoer's acts
or omissions and the injury suffered by the innocent party. The test of
causation has to do justice between the parties. The test is not determined as
a scientific or philosophical exercise, perhaps because the determination of
what is just does not always lend itself to examination in that way. In the
vast majority of cases the "but for" test does do justice between the parties.
Following Lord Rodger in Fairchild,
the "material contribution" test is not the same as the "but for" test. I have
to confess it is not wholly clear to me as to when it is appropriate to apply
the material contribution test, rather than the "but for" test, or where its
limits lie, if indeed it has any. However, as Lord Rodger pointed out, it has a
lengthy history and has existed without challenge. McGhee did represent a departure from the usual "but for" test and
did so by holding that material risk, in that case at least, satisfied the
requirements of material contribution. (In terms of strict judicial precedent, McGhee, being a Scottish appeal binds
me, whereas Fairchild and Barker,
being English appeals do not, although they are highly persuasive.)
[65] Can the
test of an increase in material risk apply to the facts of this case? I
referred earlier to the case of Porter
in which the Lord Ordinary sought to apply the McGhee test to a slipping case. The Inner House held that the
appropriate test was the "but for" test but upheld the Lord Ordinary's
conclusion. As I have observed, the Inner House made express reference to that
part of the speech of Lord Bridge which did not find favour in Fairchild. In any event, in my
respectful view, Porter can be distinguished.
If I am correct in my analysis of this case, the "but for" test does not apply.
In any event, its application to slipping cases is well established and is not
in doubt. I do not read Porter as
establishing a proposition that in each and every case the "but for" test
applies. As the speeches in Fairchild
and Barker acknowledge, once an
exception to the usual test of causation is established, there is immediately
an issue in setting the boundaries and defining the test. The speeches also
noted that this was not done in McGhee
itself.
[66] Returning
to the facts of this case, it was reasonably foreseeable that a child might
fall from a swing whatever its height. I have already said that, in my view,
the swing was set too high. Height clearly is a relevant issue. The relevant
standard prescribes a height and does so in order to minimise or reduce the
risk of injury to children. Dr Boyd explained what is almost intuitive namely,
the higher the height from which a child falls, the greater the risk of injury.
Put bluntly, the greater the height, the greater the risk. The very risk which
the relevant standard sought to address happened here and the pursuer was
injured. The pursuer has proved all she can do. It is not possible to prove
exactly what difference the extra half metre made in this particular case but
there is evidence that an increase in height does or may make a difference. If
the swing had been at a height of say, 4 metres, and the pursuer fell and
suffered the same injury, on the defenders' argument, the defenders would not
be liable because she might have suffered the same injury from a fall at a
lower height. That may be true but the evidence seems to establish clearly that
falls from a greater height do increase the risk of greater injury. As I
understand it, a fall from a greater height contributes to an injury. There is
no other competing cause or agency for which the defenders are not responsible.
It should be remembered that, in the final analysis, the standard of proof in
causation is that it is more probable than not that the wrongdoing caused the
injury. I am inclined to think that, on the facts of this case, it is
sufficient to say that the height materially contributed to the pursuer's
injury. But if I am wrong about that, particularly having regard to the dicta
of Lord Rodger in Fairchild at para
[170] and their application here, the McGhee
principle does apply and it open to me to do so which I do.
[67] So far
as quantum is concerned, I do not however accept Mr Fraser's approach in
putting forward, in effect, two heads of claim. I consider Miss Beattie is
correct when she says that there is no record or basis for psychological
distress or for long term consequences resulting from the accident. In short
the pursuer suffered a ruptured spleen which undoubtedly caused her pain and
discomfort. She was in hospital for some time and suffered restrictions and
limitations on her return to school. In my judgement, an appropriate award for
solatium is £3,500. Although there is a plea of contributory negligence it was,
correctly in my view, not argued. Parties were agreed that expenses should
follow success. I shall grant decree in favour of the pursuer in the sum of
£3,500 and find the pursuer entitled to her expenses as taxed.
(Signed) W H Holligan
