Scottish Sheriff Court Decisions

A134/03

SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT DINGWALL

 

INTERLOCUTOR   In causa   MORAG LAWSON, residing at 51 Athollbank Drive, Perth PH1 1NF Pursuer   Against   THE BROOMFIELD HOLIDAY PARK, Shore Street, Ullapool, Ross-shire IV26 2SX Defenders

 

 

DINGWALL, 13 July 2007

The Sheriff, having resumed consideration of the cause, FINDS IN FACT: -

1.      The pursuer is Mrs. Morag Lawson. She was born on 7 May 1934. She resides at 51 Athollbank Drive, Perth with her husband, George Andrew Lawson.

2.      The defenders are The Broomfield Holiday Park, Shore Street, Ullapool, Ross-shire. They operate premises in Ullapool known as the Broomfield Holiday Park. Those premises are a camping and caravanning site. The Broomfield Holiday park is referred to herein as 'the site'.

3.      This court has jurisdiction.

4.      In September 2002 the pursuer and her husband resolved to take a holiday in Scotland in their camper van.

5.      In the course of that holiday, on 8 September 2002 they drove from Dingwall to the site in Ullapool, intending to stay the night there. They arrived there at about 4pm, with the pursuer's husband driving.

6.      A private road led from the main entrance into the site. It led to the reception building and afforded access to the whole site for vehicles and pedestrians. It did not have any pavement to its side.

7.      That main road was tarmacadamed. Some distance in from the main entrance, it contained a raised speed hump, the purpose of which was to compel drivers of motor vehicles to slow down. The speed hump stretched from one side of the road to the other. It sloped up gently to a height of about four inches.

8.      The speed hump was a raised area of tarmac on the surface of the road. It presented a hazard of tripping to pedestrians.

9.      When the pursuer and her husband entered the site in their camper van, they had to cross that speed hump (and another speed hump) before arriving at the reception building. As they crossed the speed hump, the pursuer, although not paying any particular attention, felt the camper van rise and fall slightly.

10.  Thereafter they checked into the site, attached their camper van to the available services, took their dog for a walk and had a meal. At about 10pm they went out for a final walk with the dog before retiring for the night. It was their intention to walk out of the site and into the village of Ullapool.

11.  At that time it was dark. The pursuer had not crossed the speed hump on foot prior to the walk at 10pm.

12.  The pursuer and her husband walked from their camper van along that private internal road heading towards the main exit from, i.e. the main entrance to, the site.

13.  The pursuer was wearing flat-soled lacing shoes, suitable for the surfaces on which she was walking that night.

14.  There were no signs to warn either pedestrians or motorists of the presence of the speed hump on the road.

15.  There were no other visible objects, such as painted stones at either end of it, to warn of the presence of the speed hump on the road.

16.  The word 'SLOW' had been painted in large letters on the side of the speed hump facing the main entrance, namely the opposite side to that approached by the pursuer. The paint was faded and barely visible. Given its position on the speed bump and its condition that painted mark was invisible to the pursuer as she approached the speed hump. White marks at each of the corners of the speed hump were equally faded and invisible to the pursuer as she approached the speed hump.

17.  The lighting in the area was poor. The speed hump was not illuminated. The nearest lights to the speed hump were the public street lights on the public road outside the site, an external light at adjacent premises, the Arch Inn, and lights at the site reception building. None of those cast any light on to the speed hump. The speed hump was invisible to the pursuer and her husband.

18.  Unaware of its presence, the pursuer caught her foot, tripped over the speed hump and fell forward. She struck her face and head on the road. She suffered personal injury.

19.  On full liability, Three thousand pounds (£3,000) sterling represents a fair and reasonable value of the loss, injury and damage suffered by the pursuer as a result of her fall.

 

FINDS IN FACT AND LAW:

1.      The defenders owed the pursuer a duty of reasonable care for her safety when walking along the private road within the site leading to the main entrance.

2.      It was reasonably foreseeable to the defenders that pedestrians would walk along that road during the hours of darkness. It was reasonably foreseeable that if the speed hump were not seen there was a risk that a pedestrian would trip over it and fall.

3.      In those circumstances reasonable precautions to prevent such an accident would have been to illuminate the speed hump, to erect signs or painted stones to warn of its presence or to have and maintain bright and visible paint on the speed hump to alert pedestrians of its presence.

4.      The defenders failed to take any of those reasonable precautions and as a result of that failure the pursuer did not see the speed hump before she tripped on it and fell over.

5.      The pursuer suffered loss, injury and damage as a result of the defenders' failure to fulfil their duty of care towards her.

6.      In terms of the Occupiers Liability (Scotland) Act 1960, section 1, the defenders were occupiers of premises, namely the site. They were under a duty to show reasonable care to the pursuer as a person entering thereon in respect of dangers due to anything done or omitted to be done.

7.      The unmarked, unilluminated speed hump was a danger to pedestrians approaching it while walking along the road towards the main entrance of the site from within the site. The defenders' failure to paint, mark with warning signs or painted stones, or to illuminate the speed hump were omissions for which they were as occupier of the site responsible.

8.      The defenders failed to take reasonable care to see that the pursuer did not suffer injury or damage by reason of that danger. That amounted to a failure to comply with their responsibility under section 2(1) of the 1960 Act.

9.      As a result of that failure to comply with their statutory duty, the defenders caused the pursuer to suffer loss, injury and damage.

10.  The pursuer contributed to the occurrence of her trip and fall. She was under a duty to keep a look out as to where she put her feet. She was aware of the existence somewhere along the road of the speed hump. She ought to have taken some measure to take care for her own safety, such as carrying a torch to illuminate the road ahead of her. She failed to comply with that duty.

11.  In those circumstances, the injury suffered by the pursuer was contributed to by her own fault to the extent of twenty per cent.

 

FINDS IN LAW:

1.      The pursuer having suffered loss, injury and damage through the fault and negligence and breach of statutory duty, under the Occupiers Liability (Scotland) Act 1960, of the defenders, she is entitled to reparation from the defenders therefor.

2.      The pursuer having contributed by her own fault to the extent of twenty per cent to her loss injury and damage, the damages awarded fall to be reduced in terms of the Law Reform (Contributory Negligence) Act 1945, section 1, to Two thousand four hundred pounds (£2,400) sterling.

 

THEREFORE Sustains the pursuer's second and, to the extent of the sum awarded, third pleas-in-law; Sustains the defenders' fourth and fifth pleas-in-law; Repels the defenders' first and third pleas-in-law; Grants decree against the defenders for payment to the pursuer of Two thousand four hundred pounds (£2,400) sterling together with interest thereon at the rate of eight per centum per annum from 8 September 2002 until payment; Certifies Mr. Mr. William G. Morrison, Consultant in Accident and Emergency Medicine, Ninewells Hospital, Dundee as a skilled witness; Finds the defenders liable to the pursuer in the expenses of the cause so far as not already awarded, Allows and account thereof to be given in and Remits same, when lodged, to the Auditor of Court to tax and report thereon.

 

 

 

 

 

NOTE

 

Introduction

 

[1] In this action the pursuer sought reparation for injuries sustained by her in an accident which she said occurred at the defenders' premises, a camping and caravan site known as the Broomfield Holiday Park, in Ullapool, Ross-shire on 8 September 2002. According to her averments when she was walking along a private road within the site she tripped and fell over a speed hump on that road.

 

[2] The speed hump stretched from one side of the road to the other. Lighting was inadequate and insufficient to allow pedestrians such as the pursuer to see where they were walking. The word 'SLOW' had been painted on the hump however on the date of the accident the lettering was worn and barely visible and not visible at all in low lighting. The pursuer was unable to see the speed hump. She caught her foot on the upward sloping part of the speed hump and was unable to keep her balance and fell forwards.

 

[3] The pursuer averred that in the circumstances, an accident of this nature at this location was reasonably foreseeable. The defenders ought to have had the speed hump painted clearly with bold, clear lettering in reflective paint, to have installed signs warning pedestrians of the presence of the speed hump and to have had suitable and sufficient lighting installed to allow pedestrians to walk along the road in darkness safely. Their failure to provide any of the foregoing precautions amounted to a breach of their duty of reasonable care to the pursuer.

 

[4] The pursuer also brought a case under the Occupiers Liability (Scotland) Act 1960, section 2(1), which is in the following terms:

'The care which an occupier of premises is required, by reason of his occupation or control of the premises, to show towards a person entering thereon in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them and for which the occupier is in law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.'

 

[5] In answer the defenders admit that the pursuer was in their caravan site on 8 September 2002. However the occurrence and circumstances of any accident are not known or admitted. They aver that the speed hump in question was lit by a floodlight at the rear of adjacent premises, namely the Arch Inn approximately fifteen metres away, lights at the entrance some five metres away and from the reception building some fifty-five metres away. They aver that the word 'SLOW' was clearly visible on the hump, even in poor lighting and that there were no sudden rises or falls in the level of the road surface which would cause a reasonable person to trip and fall.

 

[6] The defenders admit that they owed duties of reasonable care to the pursuer and other pedestrians. They aver that they complied with those. In addition they averred that it was not reasonably foreseeable that the speed hump represented a tripping hazard to pedestrians in daylight or the hours of darkness.

 

[7] With regard to the statutory case under the 1960 Act the defenders admit that they were the occupiers of the caravan site but averred that they had fulfilled all duties of reasonable care required of them.

 

[8] As a result of the accident the pursuer averred that she suffered injuries to her face. Damages, in the event of full liability, were agreed in the sum of £3,000 with interest at the rate of 8 per cent per annum from 8 September until the date of decree. The defenders sought absolvitor, failing which a reduction in any damages awarded by way of contributory negligence under reference to the Law Reform (Contributory Negligence) Act 1945, section 1.

 

[9] The initial writ in this action was warranted on 29 October 2003. It was defended and an options hearing assigned for 12 February 2004. On that date the options hearing was discharged and on joint motion the action was sisted to await a decision in the Court of Session on an 'analogous point of law'. The action remained sisted until 1 March 2006, when the sist was recalled and a further options hearing assigned for 20 April 2006. On that date I closed the record, allowed a debate on the defenders' preliminary plea and repelled the pursuer's preliminary plea for want of insistence. The debate proceeded before me on 2 June 2006 and on 31 August 2006 I issued an interlocutor and note excluding certain of the pursuer's averments from probation and allowing parties a proof. The proof was assigned for 15 January 2007 and proceeded before me then. In the meantime a commission to take the evidence of a witness had taken place on 16 October 2006. At the proof the pursuer was represented by Miss C. Fraser, solicitor, Dundee, and the defenders by Mr. Marshall, solicitor, Dingwall.

 

Assessment of the evidence

 

Witnesses for the pursuer

 

Mrs. Morag Lawson

 

[10] The pursuer gave evidence on her own behalf. Although initially somewhat nervous, that seemed to be attributable to unfamiliarity with a court room and the experience of giving evidence rather than to any alternative, sinister cause. Her recollection of the circumstances of the accident were clear. Her account was supported by her husband's evidence and consistent with that of the witness Donald Geddes who arrived on the scene shortly afterwards. Of particular significance she said that it was dark at the part of the private road where the speed hump in question was situated; no light source cast any illumination there. There were no signs or painted stones warning of the presence of a speed hump.

 

[11] Further, the word 'SLOW' was only present in faint lettering and in any event was painted on the side of the speed hump facing the entrance/exit, i.e. on the other side to the one from which the pursuer was making her approach. She said that the photographs produced by the defenders did not accurately reflect the appearance of the speed hump as at the date of her accident. The condition of it could be seen in the photographs taken by her husband on 9 September 2002, the day after the accident.

 

[12] Mrs. Lawson's demeanour in the witness box was that of an honest, if nervous, individual endeavouring to recall incidents from some four years earlier to the best of her ability. Her account was supported by other witnesses. I found her credible and reliable.

 

Donald Geddes

 

[13] Mr. Geddes was a 23 year old resident of Ullapool, unemployed at the time of giving evidence. He gave an account of coming across Mr. and Mrs. Lawson on what must have been 8 September 2002 at the site. Mr. Lawson told him that his wife had tripped over one of the speed humps in the caravan site. He assisted Mrs. Lawson to the back of the Arch Inn, where he himself had been heading. He noticed blood on the pursuer's face.

 

[14] He said that although there was a powerful light at the Arch Inn, he did not consider that it illuminated as far into the site as the location of the speed hump in question. He said that part of the road was in darkness. He described the speed hump as a fairly low one.

 

[15] Mr. Geddes was visually impaired, having no sight whatsoever in his right eye and 90% vision in the left. He said that his night vision was poor.

 

[16] Mr. Geddes was clearly doing his best to be helpful when giving his evidence. There was no apparent or suggested reason for him to be untruthful. His demeanour was that of an honest witness. I found him credible. Although he was visually impaired, he seemed to have no difficulty in differentiating between light and dark areas at the site. His perception of the level of light in the site and at the location of the accident was consistent with that of Mr. Lawson and the pursuer. Even taking account of the limitation of his sight, I found him reliable.

 

Robin Fraser

 

[17] Mr. Fraser, aged 38 years, was an experienced environmental health officer employed by the local authority, the Highland Council. His involvement with this matter started with a report to him on 11 September 2002 of her accident from Mrs. Lawson. He telephoned Mr. Ross, the proprietor of the defenders and discussed the matter with him. He said that he had already tried to report it to the local authority but had been told that in the circumstances described, it was 'not reportable'. Mr. Ross had told Mr. Fraser that he considered the speed bump to be adequately lit. He had said to him that the wording on the speed hump was normally repainted before the start of each season and accepted that it had normally faded by the end of the season.

 

[18] Mr. Fraser recommended to Mr. Ross that the warning on the speed hump be re-painted. He said that Mr. Ross accepted that advice. He discussed the matter with a colleague and decided that Mrs. Lawson's accident did not as a matter of law require to be reported to the local authority or the Health and Safety Executive.

 

[19] It so happened that a few weeks later Mr. Fraser was in Ullapool on unrelated business and decided to look in at the site. This was at night. He did not meet Mr. Ross. However he felt confident that he had been able to identify the speed hump in question; it seemed to him to have been recently painted.

 

[20] With regard to the lighting, Mr. Fraser confirmed that there were lights on the buildings, in particular the reception booth. Beyond that he described the lighting in the site as minimal. He did not recall there being any additional lighting. He said that at the speed hump he would not call it well lit.

 

[21] He accepted that it was a shallow speed hump.

 

[22] Mr. Fraser gave his evidence in a confident, professional and objective fashion. There was no reason for him to be partial. He was simply recounting what to him must have been a routine and relatively minor enquiry and investigation in the course of his occupation. He was credible and reliable.

 

George Andrew Lawson

 

[23] Mr. Lawson was the pursuer's husband. He was the witness whose evidence had required to be taken on commission. That had taken place on 16 October 2006, i.e. before the proof. The report of the commission, number 16 of process, contains the extended notes of his evidence. That indicates a version of events similar to the account given by the pursuer in her evidence. He described the area of the speed hump as being dark and not served by any light. He said that the speed hump was not visible. He took photographs the next day. He was sure that the speed hump did not appear then as it did in the photographs produced by the defenders.

 

[24] Although I did not see or hear Mr. Lawson as he gave his evidence, I did note the points of congruity between his and the pursuer's versions of events.

 

 

 

Witnesses for the defenders

 

Sander Mackenzie Ross

 

[25] Mr. Ross had been the tenant and operator of the Broomfield Holiday Park since 1998. Before that he had worked on the site since 1978. Using a combination of metric and imperial measure (as many witnesses do) he described the speed hump in question as being one metre in width, i.e. from the front to the back, and four inches high, tapering very gently. The road was tarred as was the speed bump. He claimed that the condition of the paintwork was identical at the date of the accident and in the photographs produced for the defenders, which were taken by him, according to his evidence on 20 November 2002. He denied that the paintwork on the speed hump had been touched up during the intervening period.

 

[26] He said that the speed hump was in good condition. The tar was not crumbling. This was the first accident of this nature ever reported to him or of which he had been made aware since 1978. The speed hump had never been illuminated or had warning signs of its presence to the side. He said that it could be seen with the benefit of lighting from the street, the light from the Arch Inn and the light from the building fifty to sixty metres away.

 

[27] He did not recall the telephone call from Mr. Fraser or his advice that it would do no harm to repaint the wording on the speed hump.

 

[28] I found Mr. Ross's evidence regarding the date of repainting of the word 'SLOW' on the speed hump unsatisfactory. In the first place I accepted the evidence from the pursuer, supported in his evidence at the commission by Mr. Lawson , that the appearance of the paint was much fainter on 8 September 2002 than appeared in the photographs produced by the defender. That divergence of appearance was supported by the faintness of the word on the pursuer's photographs taken the next day. Mr. Ross clearly said that he had taken his photographs, lodged as productions for the defenders, on 20 November 2002. He could not explain why, in a letter to the pursuer's solicitors dated 27 March 2003, the loss adjusters acting on behalf of his insurers had claimed these photographs had been taken the day after the accident. While that may have been due to no fault on the part of Mr. Ross, it did seem quite clear that prior to the taking of the photographs produced by the defenders, the word 'SLOW' had been repainted and was much clearer and easier to see than appeared in the photograph taken by Mr. Lawson on 9 September 2002.

 

[29] That contradicted Mr. Ross's evidence that the speed bump had not been repainted until about Easter 2003. That was a matter entirely within his own knowledge and control as the operator of the site. It seemed quite apparent that the situation regarding the lettering on the speed hump as presented in the defender's photographs was not their condition at the date of the accident; nevertheless Mr. Ross had tried to persuade the court otherwise. It seemed that he was being deliberately untruthful about that. That had a grave effect on the amount of credit which could be placed on him generally as a witness. Where his evidence diverged from that of Mrs. Lawson, for example on the amount of light thrown on to the area of the speed hump and its visibility, I preferred that of Mrs. Lawson who had been straightforward on giving her evidence.

 

Submissions for the parties

 

Pursuer

 

[30] On behalf of the pursuer, Miss Fraser helpfully presented written submissions. Those are lodged in process and need not be repeated herein. She supplemented those by commenting on the evidence of the witnesses. She invited me to accept as credible and reliable the pursuer and Mr. Lawson. Mr. Geddes's evidence should be accepted especially when he said that the area of the speed hump had been dark. She accepted that it was not clear how far one could go with Mr. Fraser's evidence in that he had not seen the location of the accident prior to his visit some weeks after the accident when the wording on the hump seemed freshly painted. However he was credible and reliable.

 

[31] She said that this speed hump had clearly been a trip hazard in that it was a big hump on a road. She referred in that connection to the decision of McClafferty v. British Telecommunications plc 1987 S.L.T. 327 and suggested that the speed hump passed the test set out in that case as being a projection on to the surface of the road which would present a reasonably foreseeable risk of injury to persons passing along the road.

 

[32] With regard to the issue of contributory negligence, she confirmed that the primary position on behalf of the pursuer was that there should be no deduction in respect thereof. That was because of the following factors:

·        the pursuer was not well acquainted with the site;

·        she had not passed over the speed bump on foot prior to the accident; and

·        when the camper van had passed over it, she had simply been a passenger and could not be reasonably expected to remember it or its location.

 

[33] Miss Fraser referred to the sheriff court decision of Brown v. City of Edinburgh Council 1999 S.L.T. (Sh Ct) 43 as a not entirely dissimilar case in which 20% had been deducted from the damages by reason of contributory negligence. If I were persuaded that some deduction should be made for contributory negligence, then she submitted that the absolute maximum should be 20%.

 

[34] With regard to the defenders' argument regarding whether the speed hump was crumbling or not, she submitted that were it not for the presence on the road of an unilluminated speed bump, then Mrs. Lawson would not have fallen at all and the condition of the speed hump did not have a large part to play.

 

[35] She invited me to sustain the pursuer's pleas-in-law, repel the defenders' and award damages of £3,000 together with interest as craved and expenses as taxed, certifying Mr. William G. Morrison, Consultant in Accident and Emergency Medicine, who had examined the pursuer and written a report as a skilled witness.

 

Defenders

 

[36] For the defenders, Mr. Marshall submitted that the pursuer's evidence pointed towards her having tripped by catching her toe at an area where the tar had crumbled away, that was to say not on the speed hump itself but on the edge of it. In addition she had said that she reckoned the part where she had fallen was about half or a quarter of an inch high. According to her evidence, she had tripped on the very beginning of the speed hump. He therefore questioned what exactly had been proved.

 

[37] The duty owed was one of reasonable care. He referred to the three element test to be applied in Scotland in personal injuries actions based on a duty of care, as described in Bennet v. J. Lamont & Sons 2000 S.L.T. 17, namely foreseeability, proximity and considerations of fairness, justice and reasonableness. The defenders accepted that the element of proximity was present. However, and this was a major part of the defenders' argument the pursuer's accident had not been foreseeable. The defenders' evidence had been that over many years there had been no such accident. The pursuer had to take care for her own safety; the obligation on the defenders was to take reasonable care for her safety. In support of those propositions he referred to the decision of Stevenson v. Corporation of Glasgow 1908 S.C. 1034. This was not a danger of which the pursuer was unaware.

 

[38] He submitted that the pursuer had failed to establish any breach of duty at common law or under the 1950 Act on the part of the defenders.

 

[39] If liability did attach to the defenders, then he submitted that the pursuer had been contributorily negligent. She had gone out walking in what she said had been a dark, unlit stretch of road without a torch. He referred me to two decisions, Craig v. Strathclyde Regional Council 1998 Housing Law Reports 104 from Glasgow Sheriff Court on 22 April 1998 and McEwan v. Lothian Buses plc 2006 S.C.L.R. 592. In the first of those an attempt by a nine year old boy to carry a mountain bike down an entirely unlit common stairway had led to a deduction of 10 % in respect of contributory negligence, when the absence of lighting was due to negligence on the part of the defenders. McEwan was authority for the proposition that a substantial deduction, even of 100%, could be made from an award of damages by reason of contributory negligence.

 

[40] Under reference to the defenders' pleas-in-law, Mr. Marshall invited me to assoilzie the defenders, failing which to make a deduction from any damages awarded by reason of contributory negligence.

 

[41] With regard to expenses, he submitted that the normal rule of expenses following success should be applied.

 

Discussion

 

Liability

 

[42] I have already given my assessment of the credibility and reliability of the witnesses. In the first place, I was satisfied by reason of the evidence of the pursuer and Mr. Lawson that an accident did take place as averred. That was entirely consistent with Mr. Geddes's evidence. With regard to the mechanics of the accident, in my view the evidence pointed towards the pursuer having tripped over the speed hump itself. It is, I think misleading to suggest that she tripped over a low piece of crumbling tar at the end of the speed hump. The critical factor which I took from the pursuer's evidence, supported by Mr. Lawson, is this: it was the presence of the speed hump which caused Mrs. Lawson to fall. Had the speed hump not been there, she would not have fallen. In my view, its condition or height at the end of it, over which the pursuer was passing when she fell, is secondary to the presence of the speed hump in the first place. In any event, there was little detailed evidence about that aspect of the case. Further the only direct evidence as to the actual, precise location of the accident, i.e. to a certainty of inches, came from the pursuer. In my view, she was hardly likely, given the whole circumstances of the accident and the fact that it occurred in the dark, to be entirely reliable as to the exact location, to a matter of inches, from left to right, of her fall.

 

[43] What is proved, on the evidence, is that it was some part of the speed bump over which she tripped. On any view, the speed hump was a substantial, raised obstruction across an otherwise flat surface. It was high enough to have been noticed by the pursuer as a passenger at 4pm when her husband had driven their camper van across it.

 

[44] Given the size and location of the speed hump, it seemed to me that it could easily be described as a trip hazard. It was a short, raised section of the main road within the site running through the site towards the main entrance. That road had no pavement. It was clearly foreseeable that pedestrians would walk along it.

 

[45] Mr. Ross of the defenders said that no such accident had ever been reported to him since his first involvement with the site in 1978. Dealing with that, I have already given my low assessment of his credibility and reliability and the reason therefor. Further, as he conceded in cross-examination there was not an accident book kept at the site; so even if there had been a prior similar accident there was nowhere for that to be recorded in writing had it been notified to a staff member other than Mr. Ross. Accordingly, I did not feel able to find that there had been no similar accident at the site prior to the pursuer's.

 

[46] Even if, as a matter of fact, there had not been a previous similar incident, that does not absolve the defenders of liability, either at common law or under the 1960 Act. The question of reasonable foreseeability is an objective one. This was a raised section of road through a camping and caravan site. Clearly pedestrians could be expected to walk along the road at all times of the day and night. If it were dark and there were no warning signs on or beside the speed hump, then in my view it was reasonably foreseeable that a person could trip over it. Further under the 1960 Act, it seemed to me that a speed bump on a road within the site presented a danger to visitors, in the form of a trip hazard, and that the defenders ought to have taken such care as in all the circumstances of the case was reasonable to see that that a person such as the pursuer would not suffer injury or damage by reason of that danger.

 

[47] The pursuer averred certain steps which, if taken, she says would have fulfilled the defenders' duty of care towards her. They were:

·        painting the speed bump with bold lettering in reflective paint visible at night;

·        signs at the side of the road to alert approaching pedestrians of the presence of the speed bump and the hazard which it presented; and

·        sufficient and adequate lighting to allow pedestrians to walk along the road in darkness safely.

 

[48] In my view, those were all reasonable steps and if in place would have been reasonable precautions in terms of the 1960 Act. Indeed even any of them might have been sufficient to for the defenders to comply with their common law duty of reasonable care and statutory responsibility.

 

[49] However, in my view, the evidence clearly showed that none of these precautions was present. Firstly, the paint on the speed hump was faint and almost illegible in daylight. To all intents and purposes in the hours of darkness the speed hump was unpainted. Further, the word 'SLOW' was painted on that side of the speed hump facing the main entrance, i.e. the other side to the one facing the pursuer on her approach on foot at 10pm. The side facing her then had at best the faint, and in the darkness invisible, top of each of the letters. Even if I had accepted that there was bold, visible lettering on the speed hump on 8 September 2002, as claimed by Mr. Ross, that would not have provided sufficient warning or precaution given its location on the opposite side of the speed hump to that approached by the pursuer.

 

[50] There were lines painted at each corner of the hump, but they too were quite faded and I accepted the pursuer's and Mr. Lawson's evidence that no marking on the hump was visible to her.

 

[51] Secondly, there was no evidence whatsoever of the defenders placing warning signs or painted stones at each side of the speed hump. No such precaution was in place.

 

[52] Thirdly on the issue of lighting, I preferred the evidence of the pursuer, supported by Mr. Geddes and Mr. Lawson, that the precise area of the speed hump was in darkness at 10pm on 8 September 2002. I did not accept Mr. Ross's evidence that the speed hump was illuminated by certain sources of light. None of the sources canvassed were in fact designed to cast light on the speed hump. One was the public street lighting, another the light outside and belonging to the nearby premises of the Arch Inn and the third lighting to illuminate the reception building of the site. The evidence which I accepted was that while those light sources were all present, they were all too far away to cast any significant light on to the area of the road containing the speed hump. That stretch of the road was in darkness at the time of the pursuer's accident.

 

[53] In all those circumstances I decided that the defenders had not put in place any reasonable precautions or exercised reasonable care towards the pursuer. Those failures had caused the speed hump to be invisible to her as she approached it. Those failures caused the accident to happen. Had the pursuer been aware of the precise location of the speed hump, she could have taken sufficient care to avoid tripping over it. Her ignorance of its precise location was due to the fault and negligence and failure to fulfil statutory duty on the part of the defenders.

 

Contributory negligence

 

[54] The next issue was whether the pursuer herself had contributed to her accident. In that connection the following were significant factors in my view:

·        The pursuer was aware of the presence of two speed humps on the stretch of road along which she was walking. She had been aware of the camper van driving over them when she and her husband had driven into the site earlier that day.

·        Although her route was originally illuminated by light from the reception building, when it became dark, she could have taken more care for her own safety, in the knowledge of the presence on her route of the speed humps.

·        It would have been reasonable in those circumstances for her to carry a torch or even to return to the camper van to collect a torch. In all likelihood a torch would have illuminated the road ahead of her and alerted her to the presence of the speed hump.

 

[55] In those circumstances, it seemed to me that the pursuer could have done more to take reasonable care for her own safety. She therefore had to carry a share of the responsibility for the damage arising from the accident and the award of damages in her favour falls to be reduced by reason of contributory negligence.

 

[56] Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 provides,

'Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage:'

 

[57] In assessing where justice and equity lie, regard must be had both to the relative importance of the pursuer's act in causing the damage and also to her relative blameworthiness. In my view, the pursuer's part in this accident was minor. The principal reasons that she tripped over the speed hump were that it was unlit, effectively unmarked and there was no warning of its presence to approaching pedestrians.

 

[58] Previous decisions are of limited value in determining how much should be deducted by reason of contributory negligence. However, I noted that in Craig v. Strathclyde Regional Council (supra) a nine year old child who injured his ankle when carrying his mountain bike in an unlit, and completely dark, stairway, suffered a deduction of 10% by reason of contributory negligence and that in Brown v. City of Edinburgh Council 20% was deducted in circumstances where the sheriff held the salient factors to be as follows: the pursuer knew that there were "potholes" along the length of the pavement but the pothole or depression into which he fell was one that, because it was the same colour as the rest of the pavement, he would not have noticed until he was almost upon it. He was not looking where he was putting his feet, but at the time he was legitimately looking to see if it was safe to cross the road. In the circumstances the sheriff considered that the pursuer was contributorily negligent to the extent of twenty per cent.

 

[59] In McClafferty v. British Telecommunications plc (supra) the Lord Justice Clerk, sitting in the Outer House said that had liability been established in a case arising out of a trip over a raised manhole cover, then he would have deducted 50% from any damages awarded in light of the pursuer failing to keep a good lookout and to have watched where she placed her feet when proceeding along the pavement.

 

[60] In terms of the degree of responsibility on the part of the claimant, it seemed to me that the closest of those three cases to the present case was Brown. I considered that the pursuer's contribution in the present case was higher than that allocated to the child in Craig. That case had featured a particularly serious failure of duty on the part of a local authority to illuminate a common stairway rendering it entirely dark. In contrast, the present case featured a tripping hazard of which in a general sense the pursuer was already aware in an outdoor location. In all the circumstances it seemed to me that the pursuer bore 20% of the responsibility for her fall. I therefore decided that she should suffer a reduction by 20% of the damages awarded by reason of her contributory negligence.

 

Decision

 

[61] Damages were agreed on the basis of full liability in the sum of £3,000. In light of the pursuer's contributory negligence, that sum fell to be reduced by 20%, namely £600. Therefore the pursuer was entitled to decree for £2,400 together with interest at the judicial rate, 8 per cent per annum, from the date of the accident 8 September 2002. Parties were agreed that expenses should follow success. Accordingly the pursuer is entitled to expenses, insofar as not already determined, as taxed. I have certified Mr. Morrison as a skilled witness.