Scottish Sheriff Court Decisions

A38/04

SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT DINGWALL

 

INTERLOCUTOR   In causa   MRS. ISABELLE MACKENZIE, Pursuer   Against   CO-OPERATIVE GROUP (CWS) LIMITED, Defenders

 

 

 

DINGWALL, 17 APRIL 2007

The Sheriff, having resumed consideration of the cause, Finds in fact: -

1. The pursuer is Isabelle Mackenzie. She resides at 17 Crawford Avenue, Fortrose, Ross-shire. She was aged 50 years at the date of proof.
2. The defenders are a company incorporated under the Companies Act namely Co-operative Group (CWS) Limited. They have a place of business at 60-73 High Street, Fortrose.
3. This court has jurisdiction.
4. On 4 February 2002 the pursuer began employment with the defenders at their shop premises in Fortrose, Ross-shire.
5. In about August 2002 she was promoted to the position of supervisor there.
6. In the evening of 30 December 2002 the pursuer consumed a quantity of 'Bacardi' rum.
7. When collected for a lift to work by a colleague, Lorna Gilbert, at about 6.20am on 31 December 2002, the pursuer's breath smelt slightly of alcohol.
8. The pursuer was not intoxicated on the morning of 31 December 2002. Nor was she affected by alcohol to the extent of being unsteady on her feet or incapable of performing routine personal or work-related tasks.
9. Her duties as supervisor included the opening up of the shop and the removal of trolleys kept overnight within the shop to a trolley bay situated outside the front door of the shop.
10. The area immediately outside the front door had a slight incline from the car park towards the front door. That area was a part of the pursuer's workplace.
11. On 31 December 2002 at about 6.25am the pursuer entered the shop by way of the rear door. That was her habitual mode of access to the shop.
12. The pursuer's duties as store supervisor also included the assessment of the external condition of the ground surface in the area of the front door and to apply salt or grit as appropriate using the salt or grit supplied by the defenders for that purpose.
13. That salt or grit was kept in a bright yellow grit bin situated close to the external trolley bay.
14. A small hand shovel was stored in the rear store of the shop, the purpose of which was to spread salt or grit from the yellow grit bin.
15. The pursuer was aware of the procedure to be followed by her regarding the checking for ice and the application of salt or grit if required in the external area of the defenders' shop premises.
16. She was aware of the location and contents of the grit bin and the location of the shovel.
17. In order to access the rear door from the car park, when she entered the shop on 31 December 2002 the pursuer walked past that yellow grit bin.
18. At about 6.30am the pursuer left the shop premises by way of the front door.
19. As she descended the slight incline from the front door the pursuer lost her footing and fell heavily to the ground.
20. The reason that the pursuer lost her footing was the presence of a layer of ice on the paving slabs.
21. The ice was untreated by salt or grit.
22. As a result of her fall the pursuer sustained injury, primarily to her right shoulder.
23. As a consequence of the accident and her injury the pursuer suffered loss.
24. The pursuer was absent from work from the date of the accident until 16 September 2003.
25. For reasons unconnected with the accident on 31 December 2002 the pursuer terminated her employment with the defenders without giving notice on 26 September 2003.
26. Damages for the loss injury and damage suffered by the pursuer are reasonably stated, on the basis of full liability, in the sum of £7438.

 

 

Finds in fact and law:

1. The defenders owed the pursuer, as their employee, a duty of reasonable care for her safety and to avoid exposing her unnecessarily to the risk of injury.
2. The defenders complied with that duty and the accident was not caused by any failure on their part to fulfil that duty.
3. The defenders owed duties to the pursuer imposed on them by Regulations 5 and 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 ('the 1992 Regulations').
4. The defenders failed to comply with those duties in that the pursuer's workplace was not kept in an efficient state, in efficient working order and in good repair in that on 31 December 2002 it was slippery so as to expose a person such as the pursuer to a risk to her health or safety.
5. The defenders failed to comply with those duties in that the area outside the front door of the shop being a traffic route in a workplace was not kept free of a substance, namely ice, which may cause a person to slip, trip or fall.
6. The defenders did not take reasonably practicable steps to avoid breaching the duties incumbent on them under the 1992 Regulations.
7. The pursuer's accident was caused partly by the defenders' breach of the duties imposed on them by the 1992 Regulations.
8. The accident was also caused partly by the fault of the pursuer in that she failed to take reasonable care for her own safety.
9. The proportion of fault attributable to the defenders is three-fifths and to the pursuer two-fifths.

 

 

Finds in law:

1. The defenders are bound to make reparation to the pursuer.
2. The damages payable to the pursuer fall to be reduced in terms of the Law Reform (Contributory Negligence) Act 1945.

 

 

THEREFORE Sustains the pursuer's first plea-in-law to the extent of finding the pursuer entitled to reparation through the defenders' breach of statutory duty, Sustains the pursuer's second plea-in-law to the extent of the sum decerned for; Sustains the defenders' second, fifth and sixth pleas-in-law, Repels the defenders' first and third pleas-in-law; Grants decree against the defenders for payment to the pursuer of the sum of Four thousand, four hundred and sixty two pounds 80 pence (£4462.80) sterling with interest thereon at the rate of eight per centum per annum from 25 October 2004 until payment: Certifies Mr. Sean Kelly, consultant orthopaedic surgeon, Raigmore Hospital, Inverness, as a skilled witness; meantime Reserves all outstanding questions of expenses and appoints parties to be heard thereon on

 

 

 

 

NOTE

 

Introduction

 

[1] In this action the pursuer sought reparation from the defenders in respect of injuries which she claimed she had suffered in an accident in which she had been involved in the course of her employment with them on 31 December 2002. At that date the pursuer worked for the defenders as a supervisor at their shop premises in Fortrose, Ross-shire. She averred that on the morning of 31 December as the first person to arrive at the shop it was part of her duties to move a number of shopping trolleys from inside the store to a trolley bay situated outside the front door. The area outside the door was laid with paving slabs and had a slight incline upward from the trolley bay to the front door. At the time, namely about 6.30 am, that area was covered with a layer of sheet ice. That area of ice was untreated and she averred that no grit or salt was available to her. The pursuer averred that she lost her footing on the ice and fell heavily on to the ground. As a result of that fall she sustained loss, injury and damage.

 

[2] The pursuer averred that the accident had been caused by the fault and negligence on the part of her employers, the defenders. She averred that they had failed to take reasonable care for her as their employee. She averred that they ought to have instituted a reasonable system of inspection and gritting of paving slabs, that they ought to have provided workers in the area with access to grit or salt with which to treat the ice. According to her pleadings she had no knowledge of any such arrangements. She also averred that the system claimed by the defenders to be in place would have been flawed, involving the need for the employee to cross ice in order to gain access to the grit bin. She denied being affected by alcohol.

 

[3] Further she averred separately that the accident had been caused by the defenders' breach of the statutory duties imposed on them by Regulations 5 and 12 of the Workplace (Health, Safety and Welfare) Regulations 1992. Those Regulations imposed a responsibility on the employer to maintain the workplace in an efficient state. Regulation 12 provides that the floor of a traffic route shall be suitable for the purpose for which it is used and, so far as reasonably practicable, kept free of any substance which may cause a person to slip, trip or fall.

 

[4] In reply the defenders admitted that on 31 December 2002 the pursuer reported that she had suffered an accident at about 6.30am and that there was a slight incline from the car park to the front door of the store. Beyond that the defenders averred that the circumstances in which the pursuer came to suffer any accident were not known and not admitted. They averred that as the supervisor responsible for opening up the store on that day she would have gained access by a rear door and that in order to do so, she would have passed a bright yellow grit bin adjacent to the external trolley store. They averred that a shovel was available to spread grit or salt and that the pursuer as the store supervisor opening the shop that morning was responsible for assessing the external condition at the entrance door to apply salt or grit from the yellow bin as appropriate.

 

[5] Against that background the defenders averred that they had fulfilled all of the common law duties incumbent on them and that they had provided the pursuer with a safe place of work and had not exposed her unnecessarily to any risk of injury. They averred that, in the event that an accident had occurred as averred by her, the pursuer was the author of her own misfortune or that she had materially contributed to the accident. They averred that she had been affected by alcohol on the day in question.

 

[6] With regard to the case against them under the 1992 Regulations, the defenders averred that they had done all that was reasonably practicable in terms thereof.

 

[7] Helpfully, in joint minute of admissions number 14 of process, parties agreed the extent of damages in the event of the defenders being found liable, on the basis of full liability, to make reparation to the pursuer, namely £7438. That sum was made up of solatium of £4,750, net loss of earnings from the date of the accident to 16 September 2003 of £1,188, an award for past loss of services of £500 and an award for loss of future employability/restriction on the job market of £1,000. The first three of those included interest to 25 October 2004.

 

[8] After commencement the action proceeded along a conventional path. Delay entered the process for different reasons but eventually a proof before answer took place before me. Although that started on 9 November 2005, unfortunately the unavailability of an essential witness, due to protracted ill health, delayed the conclusion of the proof until 3 November 2006. At the proof before answer the pursuer was represented by Mr. Kernaghan, solicitor, Dundee. On the first day the defenders were represented by Mr. Scoullar, solicitor, Glasgow. As a consequence of Mr. Scoullar's retiral from practice in the intervening period, Mr. Mackenzie, solicitor, Glasgow, took over representation of the defenders on the second day of the proof before answer.

 

Assessment of the evidence

 

[9] Certain facts were agreed in the joint minute of admissions. Beyond that, the pursuer gave evidence and evidence was led on her behalf from Alexander Mackenzie, Lorraine Mackenzie, Ian Cook and David John Nimmons. For the defenders evidence was led from Lorna Gilbert and Sheena Rose. Taking account of the submissions made for the parties, I made the following assessment of the evidence.

 

Witnesses for the pursuer

 

Pursuer

 

[10] Mrs. Mackenzie was rather nervous in giving her evidence. I accepted her account of the circumstances of the accident. There were no other eye witnesses to what had actually occurred. However, it was clear that she had complained of her fall fairly soon after it had occurred and her account had always and continued to be internally consistent.

 

[11] I had some difficulty in accepting other aspects of the pursuer's evidence. In matters which it seemed she thought were of significance to the success of her claim she was emphatic in giving accounts of events quite at odds with other witnesses' versions of events. For example, she would not have it that it was any part of her duties to check for ice and to apply grit or salt from the prominent yellow grit bin. That was in direct contradiction to the evidence of David Nimmons who said that she did know about that aspect of the job and that he had previously seen evidence of grit having been applied in a situation when the only person who could have done that was the pursuer herself. She ascribed motives to the witnesses Nimmons and Gilbert for giving false evidence against her. When she gave that evidence, the pursuer lacked credibility. I also did not accept her evidence that she had signed a form as indicating that she had received training when in fact she had not received it.

 

[12] The impression which I formed was that the pursuer was endeavouring to persuade the court to find the defenders entirely at fault. The picture which she seemed to be painting was one in which she had received no relevant training at all, yet had been invited to (and agreed to) fraudulently claim that she had received training, and the defenders were employers who took no precautions whatsoever to prevent her from slipping on ice and who had not told her anything at all about what to do if she came across ice in the external area of her workplace. When giving evidence of that nature, she lacked credibility. She sought to provide reasons for witnesses contradicting her, saying that they were interested in furthering their careers with the defenders or had some sort of grudge against her. Neither motive was supported by any other witness and no witness at all seemed to bear any ill-will towards Mrs. MacKenzie.

 

[13] The conclusion that I reached was that she was credible and reliable so far as the circumstances of the accident were concerned. Beyond that I did not consider that I could place reliance on her evidence where it was contradicted by other witnesses.

 

Alexander Mackenzie

 

[14] This witness was the pursuer's husband. He was led in order to support the pursuer's assertion that on the night before the accident she had not consumed an excessive amount of alcohol. He gave evidence to the effect that Mrs. Mackenzie had consumed three or four glasses containing 'Bacardi' rum and retired to bed at about 1am. I had no reason to doubt the truthfulness of this witness. He was credible and reliable.

 

Lorraine Mackenzie

 

[15] This witness was Mr. Mackenzie's sister-in-law. She and her son had visited Mr. and Mrs. Mackenzie on the evening of 30 December 2002. She had not observed the pursuer consuming any alcohol at all. She was not cross-examined. I had no reason to disbelieve Miss Mackenzie. She was credible and reliable. Given that the pursuer accepted having consumed a limited amount of alcohol, Miss Mackenzie's evidence was of limited value.

 

Ian Cook

 

[16] This witness was a health and safety officer with the defenders. He did not know the pursuer. He had not been involved for the defenders in any investigation into the pursuer's accident on 31 December 2002. He noted from the accident form completed by the pursuer's colleague, David Nimmons, that it made no reference to alcohol as a significant factor in the accident. While Mr. Cook gave evidence of a general nature regarding the training given to employees, he was unable to supply any specific information about the training actually given to the pursuer. The impression which I gained from Mr. Cook's evidence was one of vagueness as to his actual knowledge of what was contained within the items of training supplied by the defenders to Mrs. MacKenzie with particular regard to the prevention of slips on ice. He did not give any evidence whatsoever about training given to the pursuer or any other employee about the question of what the key-holder should do on arrival at a shop who finds ice. It seemed that much of his evidence consisted of his trying to give an account of what a training officer might have supplied, against the background that he himself was not a training officer far less the training officer who had provided health and safety training to the pursuer herself. He mentioned a training video recording which he said included a short section on ice. However, that video recording had not been lodged as a production.

 

[17] My overall assessment of Mr. Cook was that he was a credible witness. However, it seemed to me that he was giving evidence regarding matters outwith his area of responsibility and he was unable to give any specific evidence regarding training of the pursuer or her awareness or otherwise of matters germane to the subject-matter of this action.

 

David John Nimmons

 

[18] When he gave his evidence this witness, aged 23, was a duty manager with the defenders at their shop in Wick, Caithness. In December 2002 he had been a store supervisor at the shop premises in Fortrose. The pursuer had reported the accident to him and he had completed an entry in the shop accident book. He had smelt alcohol on the pursuer's breath on the morning in question but did not consider that she was openly affected. He was quite clear that on dates prior to this accident he had attended work after the pursuer to find that gritting outside the shop had already been done and that the pursuer had been the only member of staff present at the shop before him. The inference which could be drawn from that evidence was that the prior to her accident on 31 December the pursuer was perfectly aware of the availability and location of grit or sand and had applied it previously in the area outside the shop premises. Mr. Nimmons said also that there had been some grit present on 31 December; he thought that that had been applied by the pursuer after her accident.

 

[19] Mr. Nimmons did not remember receiving any formal training himself regarding the checking for ice and application of grit or salt. He recalled being shown the grit bin and shovel by his supervisor Lorraine Davidson. He was emphatic that the pursuer knew about the gritting procedure.

 

[20] I found Mr. Nimmons to be an impressive witness. It was apparent from his demeanour and the answers which he gave that he did not bear any ill will towards the pursuer. I did not consider that he was tailoring his evidence to suit the convenience of his employers. He gave his evidence in a restrained manner. His demeanour was that of a witness endeavouring to tell the truth. It was noteworthy that he was candid about his own lack of training regarding gritting procedures. I found him a credible and reliable witness. His evidence was helpful in resolving disputes as to fact.

 

Witnesses for the defenders

 

Lorna Gilbert

 

[21] This was the witness whose previous ill health had prevented her attending the first day of the proof. In 2002 she had worked for a cleaning company who held the contract for cleaning the defenders' shop in Fortrose. In 2002 if she and the pursuer were on the same shift, it was her habit to give the pursuer a lift to work. On 31 December she had done so. The only variation from the norm was that the pursuer seemed to be running late when Miss Gilbert arrived in her car outside her house. Further she said that the pursuer smelt slightly of alcohol and said at one point that she had been up drinking until 3am. However she said that the pursuer was not drunk.

 

[22] Later in the morning the pursuer had told her that she had fallen. She could not remember if a reason for the fall had been given. Nor could she recall what the weather had been like that morning.

 

[23] This witness did not seem given to exaggeration. Neither did she seem to bear any ill will towards the pursuer. She was steadfast under cross-examination on the utterances of the pursuer. Her demeanour was that of an honest individual endeavouring to recall an incident of little significance to her from over four years previously. She was credible and reliable.

 

Sheena Rose

 

[24] This witness was employed by the defenders at their Fortrose shop premises and had worked there since 2001. Crucially she said that the supervisor on duty, such as the pursuer, would have known to grit the external area at the shop if it was slippy. She said that in her view the pursuer would have known to do that. She also said that on 31 December 2002 when in the pursuer's company she had noted the smell of alcohol on her breath and thought that she was slurring her words. She said that she got on with the pursuer and had nothing against her.

 

[25] Ms. Rose was not cross-examined on behalf of the pursuer. Her demeanour was that of an honest individual. She was credible and reliable.

 

Submissions for the parties

 

Pursuer

 

[26] Mr. Kernaghan helpfully lodged written submissions. He took me through those. They accurately reflect the pursuer's arguments. They have been lodged in process and need not be repeated herein.

 

Defenders

 

[27] On behalf of the defenders, Mr. Mackenzie reminded me of the parties' respective cases on Record. In particular he pointed out that, in the context of her case at common law, the pursuer had not averred what would have been a reasonable system for the defenders to have in place to take reasonable care for her safety in the circumstances of this accident. With regard to the case brought under the 1992 Regulations, the defenders had averred that they had done all that was reasonably practicable.

 

[28] With regard to the evidence, Mr. Mackenzie invited me to prefer the evidence of the pursuer's colleagues to her own evidence whenever there was a conflict in their accounts of events. In particular they should be preferred on the issues of training, the pursuer's prior knowledge of the existence of the grit bin and its intended use and her statement regarding alcohol consumption and the amount of sleep which she had got the night before the accident.

 

[29] Those witnesses did not have any axe to grind, yet in evidence the pursuer had characterised their accounts as lies.

 

[30] He invited me to disregard the evidence regarding any alternative system such as checking the night before for the likely temperature. He pointed out that the pursuer had averred no such alternative case in her written pleadings.

 

[31] He contrasted the situation found in the decision of Doherty v. Artagen Properties Ltd. 1981 S.L.T. (Notes) 33 with the present case. In Doherty there had been no steps taken by the defenders' employees to see that a ramp in conditions of snow was safe, i.e. free of ice: in the present case a system was in place and it failed because the pursuer herself had failed in her duties.

 

[31] He urged me to accept the evidence of Mr. Cook to the effect that the pursuer would have received adequate, relevant training.

 

[32] With regard to the case brought under Regulations 5 and 12 of the 1992 Regulations, Mr. Mackenzie questioned whether the pursuer had established any link between the slope of the ramp and her accident: that was different from the situation in the case of Gilmour v. East Renfrewshire Council Court of Session 5 December 2003 (unreported) in which a case brought successfully under Regulation 12 had involved the combination of a ramp and a slippery object, namely a discarded chip.

 

[33] With regard to Regulation 12(3) he said that the defenders had fulfilled their duty to do all that was reasonably practicable: that had been achieved by the pursuer being expected to apply grit to the surface starting at the back door and working towards the front door. The situation was similar to that described in the decision McCondichie v. Mains Medical Centre Court of Session 31 October 2003 (unreported) in which the provision of a similar system to that in place in the present case would have been all that was reasonably practicable if the Regulations had applied to that pursuer.

 

[34] In all the circumstances, he submitted that the pursuer's case at both common law and under the Regulations failed and that the defenders should be assoilzied.

 

[35] In the event that I was persuaded that liability did attach to the defenders, Mr. Mackenzie argued that there should be a significant deduction from the damages awarded by reason of contributory negligence on the pursuer's part. She had substantially contributed to her own misfortune by reason of her consumption of alcohol the night before, her knowledge of the need for the surface to be gritted, her failure in her obligation as a pedestrian to watch where she placed her feet and her obligation to avoid losing her footing. He referred in general terms to the list of authorities for the defenders. The cases listed therein provided a range of figures in similar cases. He suggested that a deduction of 75% was justified in the circumstances of this case.

 

[36] Mr. Mackenzie suggested that interest should run from the date of this judgement.

 

[37] Parties were agreed that the question of expenses should be meantime reserved.

 

Discussion

 

[38] I have already given my views on the credibility and reliability of the witnesses. Those views have consequences on certain important issues.

 

[39] The first of those is that I was satisfied that the pursuer was well aware of the availability of grit or salt with which to treat any ice and the whereabouts of the shovel with which to apply it. I was also satisfied that it was one of her responsibilities as store supervisor to check the area outside the shop for ice and, if appropriate, to apply grit or salt.

 

[40] The pursuer was a mature adult. She must have been aware of the risk of the presence of ice when she emerged from a car into the car park. If the ice had not melted, then the temperature must have been below zero degrees Celsius. That level of cold would have been obvious to any mature adult.

 

[41] The defenders had a system in place to provide for the eventuality of ice outside the shop. They had provided a bright yellow grit bin and a shovel with which to apply it.

 

[42] The evidence regarding the training provided was unsatisfactory. Even if the pursuer had received relevant training, two issues arose. The first was how much, if any, of the training had dealt with the treatment of ice. However, the system in place was not complicated. In fact it was perfectly simple and straightforward, namely the provision of grit or salt and a shovel with which to apply it when ice was found outside the shop. Nothing could be simpler or more obvious.

 

[43] Whether the pursuer had received training on this was not, in my view, when considering the common law case, strictly relevant. That was because I accepted as true the evidence from Mr. Nimmons that on previous occasions he had seen evidence of grit having been applied in circumstances when that could only have been done by the pursuer. Accordingly, she was, on my assessment of the evidence, perfectly well aware of the availability of the grit or salt, its storage location and the location of the shovel with which to apply it. She was also aware that it was her duty as the employee responsible for the opening of the shop to apply it if required.

 

[44] In those circumstances for the pursuer to set off from the front door of the shop without thinking to check for ice was, in my view, foolhardy. The question, so far as the common law case was concerned, was whether in that situation the defenders had failed in any duty of care owed to the pursuer.

 

[45] From the evidence, it was clear that the defenders had a system in place for the treatment of ice. That was hardly surprising, given that they operated retail premises with a car park. It seemed to me that, notwithstanding its simplicity, that system was likely to be effective to prevent or minimise the occurrence of slips on the ice by persons walking on the incline between the car park and the front door, be they customers, other visitors to the shop or employees. A little care or forethought by the pursuer, as the first person on the scene, might have prevented any slip by her at all.

 

[46] It was also worth examining the basis on which the pursuer's case at common law was brought, both in respect of the steps averred as required to fulfil the duty of reasonable care to the pursuer and the factual situation averred and spoken to by her. The pursuer averred that the defenders ought to have instituted a system of inspection and gritting of the area in question and that they ought to have had grit or salt available to persons working in that area. In evidence the pursuer said that she had no knowledge of the arrangements which the defenders had in place for gritting or salting at the time and that she had received no instruction or training on that.

 

[47] As already indicated, I have accepted that the defenders did have a system in place and I have found that the pursuer was well aware of it and had applied grit herself prior to the accident. So far as the common law case was concerned, the issue of training was neither here nor there. Common sense would alert a mature individual to the possible presence of ice. When that individual was the first person on the scene, then I think that to require the operation of some elaborate system of checking air temperature the night before and taking steps to apply grit or salt prior to the arrival of that first employee at the site would have been to place a higher standard on the employer than reasonable care. That is particularly the case when the pursuer knew the location of the grit store, the shovel and that it was her responsibility to apply it if necessary.

 

[48] Accordingly, I have decided that the pursuer has failed to make out a case at common law against her employers. In my view, they fulfilled their duty of reasonable care towards her.

 

[49] However, matters did not stop there. The pursuer also averred a separate case under the 1992 Regulations. In particular Regulation 12(3) provides that,

'So far as is reasonably practicable, every floor in a workplace and the surface of every traffic route in a workplace shall be kept free from obstructions and from any article or substance which may cause a person to slip trip or fall.'

 

[50] It was not disputed that the area where the pursuer fell was a traffic route in her workplace, or that ice was a substance which may cause a person to slip trip or fall. In those circumstances the pursuer was entitled to the protection of Regulation 12(3). The issue therefore was whether what the defenders had done was reasonably practicable. In McEwan at paragraph [22] Lord Emslie said,

'Dealing first with regulation 12(3) [of the 1992 Regulations] on which the pursuer principally relied, it was a matter of agreement between the parties (rightly, in my opinion) that in the circumstances of this case a breach would inevitably arise unless the defenders could discharge the obligation of proving that it would not have been reasonably practicable to prevent it.'

 

[51] That case had involved an employee in a vehicle workshop slipping on spilt coolant fluid who, his lordship decided on the balance of probabilities, had spilt the fluid himself. I found that the approach taken to the issue of how to apply regulation 12(3) to the factual situation most helpful in the present case. In my view, exactly the same situation applies in this case. A breach of regulation 12(3) would arise unless the defenders prove that that it would not have been reasonably practicable to prevent it.

 

[52] It is at this stage that the unsatisfactory nature of the evidence regarding training comes into play. The circumstances of the accident require to be borne in mind. This case did not concern the application of grit or salt to prevent the anticipated formation of ice. This case concerned the pursuer coming across and slipping on ice which had formed in the overnight period prior to her arriving at work in the dark, early hours of a December morning.

 

[53] There was a significant gap in the evidence regarding what was expected of the pursuer or any other employee as to what to do when confronted with ice already formed in the area outside the shop. In particular there was no evidence whatsoever as to what instruction or training was given to her as to how, when applying the grit or salt to the already icy surface, she should protect herself from slipping thereon. It was one thing to expect her, as the first employee on the site, to be responsible for checking the ground conditions and, if necessary, spreading grit or salt. It was quite another thing simply to give her no advice or instruction as to how she should protect herself from slipping on ice when she passed over an affected traffic route before it had been treated with grit or salt. On my construction, there was no satisfactory evidence of the defenders having provided the pursuer with any such advice or instruction. The evidence regarding the content of the training offered was vague; there was not even the shadow of evidence of instruction or training having been given on this particular situation. That was important because an individual such as the pursuer as the first employee to arrive at a workplace was equally entitled to the protection of regulation 12(3) as any other employee arriving later in the day.

 

[54] The question of statutory liability to intoxicated persons does not arise. As it came out, there was no evidence on which any finding could be made that the pursuer was intoxicated by alcohol at the time of her fall. Whether she was sitting up late or consuming alcohol into the early hours of the morning was immaterial. Nobody said that she was intoxicated or affected by alcohol in the morning.

 

[55] I have therefore concluded that the defenders have failed to discharge the burden on them to prove that it would not have been reasonably practicable for the breach of regulation 12(3) to be prevented. They are therefore liable to make reparation to the pursuer.

 

[56] Breach of regulation 12(3) does not absolve an employee from the obligation to take reasonable care for his own safety. Even though the employer may have breached the terms of regulation 12(3), if the circumstances warrant it, a deduction from any award of damages may be made if the employee has been contributorily negligent. In the present case, the pursuer was a mature individual. At that time of year she must have been aware of at least the possibility of ice having formed overnight at her workplace, which I noted was situated in the same village as her home. There was nothing to prevent her from exercising care to protect herself from falling. It was apparent from her evidence that she was oblivious to the possibility of ice. While she seemed to have expected the defenders to have some system in place, and it was reasonable for her to do, that did not remove all obligation on her to assume that the ramp would be entirely risk free in the early hours of a cold, December morning. That was particularly the case when, as she well knew, she was the first employee to arrive at the site and it was part of her duties to check for ice and, if appropriate apply grit or sand to the external surfaces.

 

[57] I therefore decided that the pursuer had contributed to her own misfortune. The assessment of the extent of contribution by an individual to the circumstances giving rise to a claim is an exercise which depends entirely on the circumstances of each individual case. Previous decisions can only give guidance as to approaches taken.

 

[58] In the present case, I have taken account of the following factors:

·        the nature of the obligation placed on employers by regulation 12(3);

·        the lack of evidence of training of the pursuer as to the procedure to be followed by the first employee arriving at the site, where ice might be come across;

·        the absence of evidence on the pursuer's part of any steps taken by her to take reasonable care for her own safety when, as a mature adult, she might reasonably have suspected the surface in question to be slippery by reason of the possible presence of ice;

·        the fact that the pursuer had only been employed by the defenders since February 2002.

 

[59] Taking account of those factors, I have decided that the pursuer was responsible for the accident to the extent of two-fifths, with the major responsibility for breach of the statutory case resting with the defenders to the extent of three-fifths. Damages having been agreed, on full liability, at the sum of £7438, the pursuer is entitled to decree for three-fifths thereof namely £ 4462.80.

[60] With regard to interest, I noted from the joint minute of admissions that the elements of the agreed damages relating to the past included interest to the date of lodging thereof, namely 25 October 2004, which was the first date on which a diet of proof had been assigned (although that diet was discharged on the motion of the pursuer). Given that I have found in favour of the pursuer, in my view she is entitled to interest on the sum awarded in her favour at the judicial rate from that date until payment.

 

Expenses

 

[61] I have certified Mr. Kelly as a skilled witness. Otherwise, as requested by both parties, I have allowed a hearing on expenses to be assigned.