SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS at PETERHEAD

 

 

Case Reference No: A624/05

INTERLOCUTOR   in the cause   Jemima McClusky, residing at 13 Lochside Road, Peterhead   PURSUER   against   Aberdeenshire Council, having a place of business at Arbuthnot House, Broad Street, Peterhead DEFENDER

 

 

Act: McCrossan

 

Alt: McLaren

 

 

 

PETERHEAD, 21 February 2007

 

The Sheriff, having resumed consideration of the cause

 

Finds the following facts admitted or proved

 

 

1. The pursuer is Mrs Jemima Morris McClusky. She is 68 years of age and resides at 13 Lochside Road, Peterhead.

 

2. The defender is Aberdeenshire Council, a local authority having a place of business at Arbuthnot House, Broad Street, Peterhead.

 

3. The Sheriff Court of Grampian, Highland and Islands at Peterhead has jurisdiction in respect that the present action seeks reparation for loss, injury and damage following upon a harmful event which occurred in Peterhead within the jurisdiction of this court.

 

4. There are no proceedings pending before any other court involving the present cause of action and between the parties to this cause and no agreement exists between the parties prorogating jurisdiction of the subject matter of the present cause to another court.

 

5. The pursuer moved to her present address in or about November 2003. Her home is situated close to the small shopping centre on Berryden Road, known as the Meethill Shopping Centre.

 

6. Prior to the incident the pursuer could to walk from her home to the small shopping centre in approximately 15 minutes. After moving to her present address she visited the centre most days.

 

7. To reach the said shops the pursuer walked on Berryden Road and then turned left onto a paved pathway leading to the shops.

 

8. Said pathway contained four steps leading downwards to the area in front of the shops.

 

9. These steps were constructed using paving slabs. There were five slabs in width with a wall at each side and a metal handrail at the left hand side, on descent.

 

10. The pursuer visited these shops shortly after 4.00pm on 30 December 2003. The purpose of her visit was to purchase cigarettes.

 

11. At that time it was beginning to become dark. The weather was poor with snow which had turned to slush lying on areas of the pavement and pathway.

 

12. Before descending the steps, the pursuer acknowledged another person who was walking in the area of the bus stop which is situated next to the pathway.

 

13. The pursuer descended the steps. She placed her right foot on the last step. She felt her ankle jar and tilt over. She felt substantial pain from her right ankle. She took hold of the rail in order to keep her balance.

 

14. The pursuer steadied herself for a moment and then was able to make her way to the paper shop where an ambulance was called.

 

15. Immediately after this incident the pursuer noted that one of the paving slabs had been removed from the bottom step. She noted that the removed slab was lying on the grass next to the pathway.

 

16.              In the area of the missing slab there was uneven gravel and cement at a level approximately the depth of two slabs lower than the upper level of the slab, when in place.

 

17.              The pursuer had stepped on the area of the missing slab.

 

18.              The pursuer had descended the steps at a reasonable pace. She was not carrying anything.

 

19. When descending the steps the pursuer was looking directly in front of her and was not looking where she placed her feet.

 

20 The pursuer was in considerable pain as a result the injury sustained in this incident.

 

21. An ambulance was called for the pursuer at the shop but as its arrival was delayed, a taxi was called which conveyed the pursuer to the local casualty department.

 

22. As a direct result of this incident the pursuer sustained a flake fracture of the tip of the lateral malleolus of her right ankle. She further sustained a chronic lateral ligament strain. The injury has healed but has left her ankle more vulnerable than it would otherwise have been.

 

23. She has suffered continuing pain as a direct result of the accident but that is now masked by the onset of vascular disease, which has no connection to the accident.

 

24. The pursuer's ankle injury was treated with strapping for a six week period which strapping was thereafter removed.

 

25. In the period of approximately five months prior to the pursuer's accident two other persons fell and sustained injury at the same point as a result of the loose or missing slab.

 

26. The pursuer's next door neighbour, Ian Gray, a male seaman, sustained an ankle injury when he fell on the steps at that point. He was off work as a result and did not return to that work after recovery.

 

27. Mrs Laureen Nicol or Strisciuglio, a shop proprietor, suffered a fall as a result her stepping on the loose slab on the last step.

 

28. On a number of occasions prior to December 2003 Mrs Margaret Walker Stephen, who resides on Berryden Road immediately opposite the said pathway and steps, had tripped on the loose slab on the last step but had not sustained injury. As a result she had developed a practice of using the ramp adjacent to the steps rather than the steps themselves.

 

29. In or about April 2004 the granddaughter of Mrs Margaret Walker Stephen tripped on the loose slab on the lowest step next to the rail and sustained minor injury.

 

30. During a period of around one year, from or about August 2003 to or about August 2004, the paving slab on the lowest step and situated nearest to the handrail was not properly secured and was in such condition as to present a danger of injury to any person stepping thereon. It was in an unsafe condition.

 

31. At certain times the paving slab was completely removed.

 

32. At other times the paving slab was in position but was not secure and was liable to tip.

 

33. Alan Cook is employed by the defender in their estates section. He is responsible for the management of 400 industrial units including shopping and business centres. In particular he is responsible for management of the small shopping centre at Berryden Road, Peterhead.

 

34. Mr Cook carried out a visual inspection of the shopping centre and surrounding area each month. He carried out this inspection when at the centre for other purposes.

 

35. His inspections were not detailed and were insufficient to identify certain defects, in particular the defect to the insecure slab at the steps.

 

36 Following upon the pursuer's claim against the defender in respect of her accident Mr Cook was given a map incorrectly designating the position of the incident and asked to inspect and report. He duly carried out an inspection and reported that there were no steps at the point identified on the map.

 

37. In or around August 2004 Mr Cook was provided with a correctly designated map. He then inspected the steps and found that the slab on the lowest step and situated nearest to the handrail was not properly secured.

 

38. In the opinion of Mr Cook the condition of this slab in August 2004 constituted a hazard.

 

39. Mr Cook immediately arranged for the slab to be properly secured with cement. This work was undertaken on the day following his inspection and instruction thereof.

 

40. The said slab no longer constitutes a hazard.

 

Finds in fact and in law

 

1. The sum of £6,000.00 is a reasonable level of reparation for the pursuer's said loss, injury and damage.

 

2. The small shopping centre at Berryden Road and in particular the access path and steps are owned, occupied and controlled by the defender.

 

3. In terms of the Occupiers Liability (Scotland) Act 1960, the defender has a duty to take reasonable care so that persons entering upon the property, and in particular the steps, do not suffer injury or damage.

 

4. The defender was under a duty of care to take reasonable care for the safety of individuals such as the pursuer whom they knew or ought to have known would be walking on the said steps.

 

5. The defender was under a duty to take reasonable care to maintain the steps in a safe condition.

 

6. The defender was under a duty to carry out regular, reasonable and appropriate inspections of the property and in particular of the steps.

 

7. The defender's cursory and visual inspections were inadequate and failed to notice the hazard caused by the insecure paving slab.

 

8. It was reasonably foreseeable that such an insecure paving slab might lead to an accident such as that suffered by the pursuer.

 

9. It was reasonably foreseeable that an insecure paving slab might tilt or be worked loose or be removed.

 

10. A reasonable and adequate inspection would have revealed that the said paving slab was loose and insecure.

 

11. The defender's failure to carry out regular, reasonable and appropriate inspection at the site resulted in a failure to identify the existing hazard. This breach of their duty of care to the pursuer the principal cause of the pursuer's accident.

 

12. The pursuer was under a duty of care for her own safety. She ought to have been keeping a proper lookout and in particular, as she was descending steps, she ought to have been looking where she was placing her feet.

 

13. The pursuer's failure in this duty of care materially contributed to the accident.

 

14. The pursuer's contribution to the accident is reasonably assessed at 30%.

 

Therefore,

Sustains the pursuer's pleas in law 1 and 2; Sustains the defender's pleas in law 6 and 7; Repels the defender's pleas in law 3, 4 and 5 and

 

Grants Decree for payment by the defender to the pursuer of the sum of FOUR THOUSAND TWO HUNDRED POUNDS (£4,200.00) STERLING with interest thereon at the rate of eight per centum per annum from the date of Decree to follow hereon until payment;

Reserves the question of expenses and Fixes a hearing on expenses at 9.45 am on 23 March, 2007.

 

 

 

 

Sheriff

 

 

 

NOTE

 

[1] This is an action for reparation arising from an incident on 30 December 2003. Although not entirely clear from the mode of the pursuer's pleadings, the action proceeds, principally in terms of the Occupiers Liability (Scotland) Act 1960, against the defender as occupier of the property, path and steps where the accident took place. The pleadings, and in particular the pleas in law, do not fully and properly reflect this as the basis of the action, but no point was taken by the defender with regard to that issue.

 

[2] The action called for proof on 22 and 23 January 2006. The pursuer led evidence from five witnesses and the defender led evidence from one witness.

 

[3] During the course of the proof the pursuer sought to introduce as evidence a statement (Production 5.4.1) from Mrs Laureen Nicol or Strisciuglio. I was advised that this lady had now died. The pursuer led evidence from the precognition officer, Mr Burnett, who had taken the statement from the witness. The solicitor for the defender objected to the introduction of the statement claiming that it was inadmissible. Having heard argument I agreed to hear the evidence of Mr Burnett before deciding on the admissibility of the statement. The statement had not been properly introduced in terms of Rule 29.3 of the Ordinary Cause Rules 1993. On the motion of the pursuer I agreed to waive non-compliance with that Rule and to allow, if necessary, the appropriate docquet to be appended to the document.

 

Having heard the evidence from Mr Burnett I formed the view that the statement itself was inadmissible. It was clear from the statement when put in the context of the evidence of Mr Burnett that it was more a precognition than a statement in the proper sense. It had been taken by a precognition officer sent out to find the witness and note her evidence. He had done so taking hand written notes which he had then dictated into a dictaphone and which had then been typed up by the office of the solicitor who had instructed him. He accepted that he had not written down or included everything that had been said by the witness. He accepted that neither he nor the witness had checked the final version produced in court, in his case against his notes and, in her case, against what she had said. The document was not signed. It had been elicited from questions and answers. Whilst none of these factors on their own would have justified a view that the document took the form of a precognition I was satisfied that the combination of these factors gave the document all the hallmarks of a precognition and that as such it was not admissible. Civil Evidence (Scotland) Act 1988 section 9.

 

Although the statement itself was not admissible that did not make the evidence of Mr Burnett inadmissible, although hearsay, with regard to what he had been told by this person.

 

Pursuer's witnesses

 

[4] Although there were undoubtedly some differences in the detail of the pursuer's witnesses evidence and some of the detail did not accord with the detailed case set out on record, I was satisfied that each of the witnesses were truthful and generally reliable in their evidence.

 

Mrs McClusky herself gave evidence in a clear manner, she did not appear confused about what had happened although, given the passage of time before the case was heard in court, she could not recall certain of the details. She spoke to the area, with reference to the photographs presented to her (Production 5.3.3 A to G). She described the accident clearly, how she had put her right foot on what she thought was the bottom step, how her ankle had then tilted over, how she had felt her leg jarring and had taken hold of the rail to keep her balance. She had then noticed the missing slab which she had again noticed on her way to hospital. She accepted that when she had looked again the fact that the slab was missing was quite visible. She had hobbled to the newsagent's shop where an ambulance had been called but as it was delayed she had eventually gone to hospital by taxi. She had received treatment there, gone back home and had telephoned the council to report the matter and to make a claim. She spoke to the missing step. She had thought it to be the second one from the rail side on the lowest of the steps. She had not known of a problem prior to the accident but she had since been told by her neighbour, Ian Gray, that he had also injured his ankle on the same step. She had also been told by Mrs Strisciuglio that she had also fallen on the same step some time earlier. She confirmed that her daughter's partner, witness Ronald Duncan, had taken photographs of the area when he had returned from his employment at sea towards the end of January 2004. She had been told by Mrs Strisciuglio that the step had been faulty since the previous summer. She had been told by her that, on occasions, children had removed the loose step and thrown it onto the grass. She had, after her accident, noticed the slab lying on the grass on the far side of the wall next to the steps. She believed that the council had repaired the step on the 3 or 4 January 2004 but she had not seen them do that. When she had next seen the steps there appeared to have been a repair. She accepted that when descending the steps she had looked straight ahead and not at her feet. She had not slipped on snow or slush.

 

[5] The pursuer's second witness was Miss Dolina Hutchison who at the time worked as an assistant in a newsagent's shop. She spoke to the area with reference to the photographs. Her recollection was that she had been told by a customer that the pursuer had fallen rather than being told by the pursuer herself and she did not recall calling for an ambulance. She confirmed that as a regular user of the steps she was aware that one of the slabs was wobbly. It had been in that condition for some months before the accident. She identified the defective step as being second from the bottom but was not sure. She confirmed that as far as she was aware there had been only one defective slab. At various times she had seen it removed altogether and lying against a wall or back on the step. At other times it had been wobbly. She had not seen it repaired on any occasion. It was her recollection that the step had been in that condition for most of the summer of 2003 and into the winter. She was aware of children having fallen but that they had not sustained any serious injury. She recalled that Mrs Strisciuglio had told her that she had fallen at the steps but she could not recall how badly she had been injured. She conceded that she could be mistaken about Mrs McClusky not having come in to the shop on the day of her incident.

 

[6] The pursuer's third witness was Ian Gordon Burnett, a precognition officer, who spoke to taking a statement from the shop proprietor, Mrs Strisciuglio. As indicated I was not prepared to admit that statement in evidence, nevertheless his verbal evidence confirmed that this lady had told him that she had fallen some weeks before the pursuer's fall as a result of a loose and broken paving slab. She had told him that she or her husband had telephoned the council to report the defect. She had told him that since Mrs McClusky's accident a girl, Jayne Stephen, had also had a fall on the step.

 

[7] The fourth witness for the pursuer was Margaret Walker Stephen. She resides in a house on Berryden Road immediately opposite the path and steps. She spoke to an incident at around Easter 2004 when her granddaughter, Jayne Stephen, had fallen on the steps when returning from the shops to her house. She had been watching and had seen her place her foot on the slab nearest to the handrail on the last step which slab had then tipped causing her to fall. She believed that the step had been loose for six to eight weeks prior to her granddaughter's accident but further that it had been in that condition a few times on earlier occasions. She had seen the slab taken from the steps and put against the shop wall. The slab had been on or off its correct position over a number of years. She had not reported that. She had seen the step with the slab off and confirmed that when it was off the space underneath where the slab should have been was of similar depth to the slab itself. She herself had tripped a few times on the slab and for that reason used the adjacent ramp to avoid any difficulty. The problem went back well beyond December 2003. She considered the step to be a hazard. She had not seen any work being done on the step. When she had spoken to the shop proprietor, Laureen Strisciuglio, she had said that the same thing had happened to her and that she had also tripped. She could not recall when she had said her trip had occurred. She confirmed that as far as she was aware the steps had now been repaired properly by the slab being cemented back into place. She had used the steps on a number of occasions since the repair and found them satisfactory. The steps had not been repaired immediately after Jayne's fall. She recalled that they had been repaired during the summer but was not sure in which year. They were now satisfactory.

 

[8] The final witness for the pursuer was Ronald James Duncan who is the partner of the pursuer's daughter. He had commenced a trip at sea on 30 December and had returned on 28 January when he had, on hearing of the pursuer's fall, agreed to take photographs of the area. He was shown productions 5.3.3 A to G and confirmed these to be the photographs he had taken. He understood from Mrs McClusky's account that she had fallen on the bottom step closest to the handrail. He had seen that step broken before. It had originally been wobbly and then the step had been removed and thrown over the wall. The step had been in a state of disrepair for some time. Under the step was a rough concrete and gravel area about the same depth as that of the slab which was missing. He knew Mrs McClusky's next door neighbour as he worked on the same boat. He was aware that he had also fallen and broken an ankle at the same location. He had spoken to him about the accident. He had used the steps on 30 December before going to sea. He was aware of the defective step and knew to avoid it. He believed that the step had been repaired before he returned. With reference to photograph production 5.3.3E it was his view that this showed the repair. It was also his evidence that this was the slab closest to the edge but that there was a part of a slab immediately against the wall which showed on the right hand side of the photograph. He had not seen any repair being undertaken. He confirmed that the area was not lit by street lighting and that by 4.00pm at that time of year, it was dusky in the area.

 

Defender's evidence

 

[9] The defender led evidence from one witness, Alan Cook. He was an employee of the defender operating in their estates section and dealing with transportation and infrastructure. He had 23 years in post. It was his brief to look after the management of the industrial development buildings including shopping centres and business centres. He covered the whole of the Aberdeenshire area. He was familiar with the shopping centre in Berryden Road known as the Meethill Shopping Centre. His first involvement in this specific incident was a request from the insurance section of the council for him to check out a location where it was claimed a fall had taken place. A plan was passed to him showing an X marking the supposed location of the fall but when he inspected the area he was able to confirm, as he already knew, that there were no steps at that location. He reported back and a number of months later the plan was returned to him showing the X marking at the steps leading down to the centre. He went back and photographed the area, inspected the steps and found that there was a loose slab which was not properly bedded in. He immediately instructed that work be undertaken to the slab and it was undertaken on the following day. It was his recollection that this occurred in August 2004. The loose slab was situated on the lowest step in the right hand corner next to the handrail. It was his evidence that the slab was positioned against the wall there being no part slab between it and the wall. He confirmed that he had checked the defender's records and could find no record of any earlier report of a problem with a slab on these steps. He also confirmed that there was no record of any work being carried out in early January to repair the steps and his evidence was to the effect that he was satisfied that if such work had been carried out it would have been noted in the records.

 

[10] Although he did not visit the site specifically for the purpose of an inspection he was there normally once per month and when there carried out an inspection. This involved walking round the site and was a visual inspection. He would be looking for hazards, broken pipes, physical damage to the building, graffiti and such matters. If there was any specific complaint he would check that. He had been responsible for this particular area since 1996 and had heard of no accidents in the area other than relating to the present claim. He accepted that the loose slab which he found could be dangerous and did constitute a hazard. It was his evidence that the steps had been checked in both December 2003 and January 2004 and no problem had been found. He did not have any record of the inspections carried out or notes thereon. He confirmed however that these took place on a monthly basis, sometimes more frequently. He confirmed that the inspection was a visual inspection undertaken as he walked either up or down the steps. He believed that if there had been a significant problem with the slab it would have been reported to the council. During visual inspections he had never seen the slab removed and placed against the wall. Had he done so he would have attended to its repair. He did not think he had simply missed noting the problem of the slab. He did accept that other than his visual inspection he had not made any further enquiries of, for example the shop proprietors, as to whether there were any problems. I understood that he had not so enquired even at the point of his finding the defective slab.

 

Pursuer's submissions

 

[11] Miss McCrossan for the pursuer submitted that I should accept the evidence of the pursuer and her witnesses to the effect that she had been injured on 30 December when negotiating the steps at the shopping centre. The steps were the responsibility of the defender, Aberdeenshire Council, in terms of the Occupiers Liability (Scotland) Act 1960. A defective slab on the steps posed a foreseeable hazard. It had been established on the balance of probabilities that the pursuer had sustained injury as a result of a fall on the steps, that this was caused by the disrepair of the steps and that the accident was reasonably foreseeable. The defender had failed to implement a reasonable inspection regime. The defender claimed they had fulfilled all their duties and supported this in terms of their averments in answer 3. They averred that the accident was caused by the pursuer herself. They averred alternatively that the pursuer had a duty of reasonable care in which she had failed and had contributed to the accident. They had not established either of those positions in evidence. She referred to condescendence 3 in the pleadings setting out the facts and submitted that these had been largely established. It had been established that it had been snowing and that the steps were at least partially covered with snow. It was not suggested that the view of the defective step was obscured by heavy snow. She accepted that the evidence supported that the pursuer had overbalanced rather than fallen as stated on record but submitted that that was not crucial to liability in the present case.

 

[12] It was agreed that the pursuer had sustained injuries. The evidence of Mrs Strisciuglio, which she had intended to introduce in terms of the statement and which had not been allowed was accordingly not available for the court, however Mr Burnett who had taken the statement had given evidence to the effect that she had told him that she had fallen and that she had reported the accident. Although hearsay that evidence was admissible and should be taken into account and given appropriate weight.

 

[13] It was submitted that in terms of the Council's own code of practice they should inspect the area once every three months. Repairs had been undertaken to the step on 4 or 5 January. These matters had been established by evidence. In particular she submitted that it had been established that the slab had been re-cemented by the end of January.

 

[14] Condescendence 4 set out the legal basis of the claim. The evidence led supported this basis. Mrs McClusky's own evidence was given with a clear recollection. She had not been previously aware of any problem with the steps and had not paid any particular attention to them looking straight ahead. She had not been rushed nor carrying anything. She had not been distracted. Her approach to the task of descending steps could not be criticised. At the time there was the onset of twilight. The steps were not well lit. She had placed her right foot on the area where the slab should have been and her ankle had twisted before she steadied herself. She had sustained a fracture as a result of the fall. The slab had been off the step leaving a significant depression below the level of the rest of the steps. She had seen the slab at the side of the steps. Her evidence had been credible.

 

[15] She accepted that Mrs Hutchison's evidence had been less clear about dates and the precise step involved but it was clear she was speaking of the same incident and she did speak to her concern about the steps. Further evidence about the condition of the steps had come from Mr Duncan and Mrs Stephen. If their evidence was accurate then the condition of the steps was a hazard. Mr Cook himself had accepted that when he inspected the step in August 2004 he found it to be an obvious hazard in need of immediate repair. It was a foreseeable hazard and was not a safe system.

 

[16] She made reference to the case of McClafferty -v- British Telecommunications 1987 SLT 227 which confirmed that a council in these circumstances were not responsible for every defect but was responsible for foreseeable hazards, as in this case. Each of the pursuer's witnesses had confirmed that. There was also the evidence of the other falls which had taken place.

 

[17] She submitted that Mrs Stephen was a particularly credible witness who spoke to having witnessed her granddaughter fall off the steps. She was clear about her concern and that the steps had been repaired by the council sometime after the incident leaving them in a satisfactory and non-hazardous state. It was accepted that there was some dubiety about when the steps had been repaired. The council's witness had not been entirely clear. There was evidence of the steps being in an unsatisfactory condition from summer 2003. The council had clearly failed to carry out proper inspections to identify this hazard.

 

[18] With reference to the council's code of practice she submitted that this constituted a public road which required a reasonable system of inspection once every three months. It had been agreed that it constituted a secondary walking route which required that level of inspection. Mr Cook had said that it was inspected monthly although the council had not averred that in their pleadings. In her submission there had not been a reasonable inspection and the council had therefore failed in its obligations. Mr Cook was responsible for 400 properties which he visited regularly. His inspection appeared no more than a walk round. He was not able to say whether or not there was a defect prior to the accident. He had no record of visits and had not produced his diary records of the dates of his attendance to inspect. He had carried out a number of visual inspections after the accident and had not noticed this fault until he was specifically asked to look for it. It was clear that given his responsibilities he carried out no more than a brief visual look at the steps. Such an inspection was inadequate. His evidence showed that he had paid no real attention to the condition of the steps.

 

[19] She referred to Rush -v- Glasgow Corporation 1948 SLT 37 and submitted this as authority for the proposition that an inspection must be reasonable. Had a reasonable inspection been carried out at three monthly intervals then the defect on the steps would have been noted and repaired.

 

[20] She accepted that there were some discrepancies between the pursuer's witnesses concerning the precise step but the principal witnesses were all clear that it was the bottom step. It was that step which had ultimately been repaired and it should therefore be taken as established that all were speaking about the same step.

 

[21] With regard to the defender' position on contributory negligence, she submitted that the pursuer had not contributed to the accident. With reference to the cases of McClafferty -v- British Telecommunications and Brown -v- City of Edinburgh 1999 SLT(ShCt)43, she submitted that these could be distinguished from the present case as this case involved a flight of steps which were wide. The pursuer had been looking ahead as opposed to at her feet and that was perfectly reasonable and sensible. She had not been hurrying. There were a number of reasons why she might not have noticed the slab including the lack of proper lighting, her lack of awareness of any difficulty and the conditions. Every case should be looked at on its own particular circumstances. It was significant that Mrs Stephen had used an alternative route after having almost fallen on the steps. She submitted that there should be no element of contribution but if the court was with the defender on that matter it should certainly not exceed 10%.

 

[22] She submitted that the court should accept the pursuer's evidence and that of her witnesses, should regard the defender's evidence as being not reliable as the defender's witness was unable to assist with detailed information concerning dates, times and records. Such evidence as he had given was clearly inconsistent with the evidence of the pursuer and her witnesses. She asked that I find in favour of the pursuer.

 

Defender's submissions

 

[23] Mr MacLaren for the defender primarily submitted that the pursuer had not proved her claim on the balance of probabilities and that the court should find against her on the facts proved. He submitted in particular that the code of practice referred to by the pursuer did not apply to this type of area being a code for highways under the Roads Act. He submitted that there had been no satisfactory evidence of complaints made prior to the accident and this had been confirmed by Mr Cook. He submitted that there was no evidence that the incident was caused by a defect in the paving stone again as stated by Mr Cook. He submitted that even if the view was taken that there had been a defect in the steps the pursuer's evidence was confused as between a broken slab and a missing slab and there had been no consistent evidence from the pursuer's witnesses about the precise defect. There had been no evidence that the step had been defective for a six month period. The defender had established that they had a reasonable system for dealing with complaints, repairs and inspections. The pursuer had established that there had been no work undertaken to the step until it was repaired on the instructions of Mr Cook in August 2004. It could be implied from the pursuer's evidence that the pursuer had not been looking where she was going.

 

[24] In general he asked that where there were conflicts in the evidence the court should prefer the defender's witness. The pursuer's witnesses had proved unreliable with considerable discrepancies in their evidence. They had spoken about different steps and their evidence did not accord entirely with that on record. Taken as a whole the pursuer's evidence was unsatisfactory. There were further discrepancies about whether the pursuer had gone into the shop after the accident. The pursuer's evidence was unreliable as was that of her witnesses. There was no evidence whatsoever that there had been any previous reports to the council.

 

[25] The pursuer argued that the area was dangerous and that had a certain legal effect. This had not been proved by the pursuer. There was no reliable evidence to support the alleged defect referred to in the pleadings. There was no basis for finding that the area was inherently dangerous. With reference to the case of McClafferty -v- British Telecommunications a height difference of 3/6 of an inch had been declared not to be a defect. A reasonable rule of thumb approach was that a 1 inch defect was necessary before there was a hazard. The terms of the Roads Act did not apply to this case. There were therefore different tests which were appropriate. Under the Occupiers Liability (Scotland) Act 1960 each case required to be looked at on its own merits. Such an approach also affected private bodies and it was therefore not appropriate to use a council memorandum as the test. The council do not have a higher duty in law than a private landowner. Mr Cook had confirmed there had been no complaints. There was no evidence to support the view that there was any defect in the council's complaint system. The lack of complaint implied that the area was not dangerous. It was most probable that this accident had been caused by the pursuer's own fault.

 

[26] It was averred that the defect had been brought to the attention of the council but there was no evidence to prove this. Any evidence on that point should be disregarded. The statement from Mrs Strisciuglio had not been entered into the evidence. The general evidence of the pursuer and her witnesses on this point was inconsistent and should be disregarded.

 

[27] There was no reliable evidence to suggest that the defender had failed to have a reasonable system of inspection. The pursuer had offered to prove the defect was in existence for a six month period but had not done so. The pursuer herself had no personal knowledge of the length of time of the alleged defect, such evidence as there was came from others. If there was no evidence concerning that matter then there could be no defect in a system designed to establish such a defect. There was of course no absolute duty of the council to ensure that the steps were in perfect condition. If something happened to the steps before an inspection the council were not responsible. He repeated that the proposed frequency of tests was not appropriate to these premises as they were not part of a highway. The guidelines produced did not apply to all council premises. Mr Cook had confirmed he inspected on a monthly basis. It was a walking inspection but a reasonable system.

 

[28] He referred to the case of Rush -v- Glasgow Corporation. This was not an Occupiers Liability case but one relating to a public road. It was not applicable as authority for the present circumstances.

 

[29] He submitted that if the defender were to be found liable to some degree the pursuer had to take a significant level of responsibility. In cases such as this knowledge of the area and a claimants own responsibility for looking where they were going required to be taken into account. With reference to the cases of McClafferty, 50% and Brown, 20%, he submitted that an appropriate contributory level would be 50% given that the circumstances of this case were closer to that of McClafferty than Brown. The pursuer had been looking ahead and not at her feet. She had been on steps and should have been watching her feet. She was familiar with the route having visited on a daily basis for the previous month. If the step were in poor condition she should have had knowledge of that situation.

 

[30] Primarily therefore he sought to have the defender assoilzied with expenses but if a finding was to be made in favour of the pursuer there should be a 50% contribution.

 

Pursuer's response

 

[31] In response Miss McCrossan confirmed that witnesses had spoken to the significant depth of the hole created by the missing slab. They had spoken to the slab being missing rather than wobbling and there was ample evidence of the history of difficulties with the slab. The pursuer should not be criticised for not noticing a difficulty before. She had only discovered about the other falls after the event.

 

Expenses

 

[32] It was agreed that I should reserve expenses for a hearing after a final decision.

 

 

My decision

 

[33] In assessing the evidence led at proof I was satisfied that each of the witnesses were endeavouring to give a truthful account. I was satisfied that they were each credible. Generally I considered the witnesses to be reliable although the pursuer's witnesses did exhibit a number of inconsistencies of detail which I did not consider to be critical. The defender's witness was generally reliable but, as I detail below, on one critical element of the defender's case, the sufficiency of the inspections, his evidence fell to be rejected.

 

[34] There was a substantial weight of evidence supporting the fact that from mid 2003 to mid 2004 there were a significant number of accidents at the steps leading down to the Meethill Shopping Centre. There were discrepancies regarding whether these accidents occurred on the last or second last step but none of the witnesses suggested anything other than that there was one faulty slab and it is, in my view, understandable that there might be a discrepancy on the precise slab involved. I found the pursuer's account of her accident to be entirely credible and reliable and do not consider that the minor discrepancies between her account in court and that set out in the pleadings was of great importance. I considered Mrs Stephen's account of her granddaughter's fall to be similarly entirely credible and reliable and I accepted the hearsay evidence supporting the proposition that there had also been other falls in particular by the shop proprietor Mrs Strisciuglio and the pursuer's neighbour. The evidence clearly pointed to a slab which was not properly cemented into the structure of the steps and which at certain points worked itself to a position where it rocked or wobbled. At other points it was removed altogether, presumably due to this defect. It was also clear that from time to time the slab having been removed would be replaced. Neither the removal nor the replacement appears to have been undertaken by or on behalf of the defender. From all of the evidence I consider it probable that while the pursuer and her daughter's partner would have seen that the slab had been replaced after her accident this was not done by or on behalf of the defender nor was it done to any proper extent. The slab photographed by Mr Duncan does not appear to be the correct slab as, from all other evidence, the problem slab was the one next to the wall whereas he has photographed one at some point towards the middle of the step. I accept therefore that when the pursuer descended these steps on 30 December 2003 the slab on the lowest step nearest to the wall and railings had been removed, that she did not notice this, that she stepped on to the rough area underneath the slab and that the combination of the greater level of drop and rough surface caused her to injure her ankle in the way she described.

 

[35] I accept the evidence from Mr Cook, the defender's witness to the effect that he undertook an inspection of the area on a monthly basis. His inspection however appears to have been a visual one and at no point did he indicate that he tested the steps other than by simply ascending or descending them and having a look as he passed. It is entirely probable that such an inspection would not result in the defect being noted unless Mr Cook happened to stand on the offending slab and it happened, at that point, to be in a position when it rocked or moved to indicate a fault or unless he undertook a detailed inspection as ultimately he did. This is, in my view, supported by the whole evidence in the case. Firstly, on Mr Cook's own account, on the first occasion when he inspected the steps in detail, which was in mid 2004, he discovered the defective step and he had it immediately repaired. It was his clear evidence that, at no point in the year prior to that, had the council undertaken any repair to the steps. Given that on a number of occasions individuals including the pursuer fell due to a loose or missing slab it is clear that the inspections which Mr Cook carried out simply failed to detect the defect.

 

[36] I consider that the evidence of Mrs Stephen is particularly telling in this matter. She has absolutely no connection with either side. Her evidence was discovered by the pursuer's investigator. Her account related to an incident where her granddaughter fell and sustained minor injuries but Mrs Stephen was not minded and did not make any complaint to the council about that incident. Her house overlooks the steps and it was her recollection that the only repair carried out to the steps had been carried out some time in the summer, after her granddaughter's fall. This coincides with Mr Cook's evidence that no repair was undertaken until mid 2004. It also supports the view that such action as was taken to replace the missing slab after the pursuer's fall was not a complete and proper repair as Mrs Stephen's granddaughter fell on the same step a few months later. It was also her evidence that following upon the repair by the council there had been no further problem.

 

[37] All these factors when taken together support the high probability that there was a defective slab, that there was only one such defect, that it had been in a defective condition since at least August 2003, midsummer, that the defender's monthly inspections had failed to detect the fault and that it was only properly repaired by the defender once, in August 2004.

 

[38] I do not consider that the pursuer established that anyone, other than the pursuer, had reported the defect to the defender. I accept that she reported the incident by phone almost immediately. There is therefore no issue in this case of a defective system for dealing with reports and complaints. I should comment that the defender's response to the pursuer's complaint does not appear to have been adequate. They were aware, through Mr Cook, that there was only one set of steps at the locus but due to someone placing an X in the wrong position on a plan they did not identify the defect for almost eight months. They also appear to have responded more to her written claim for compensation than her initial verbal report of the defect.

Liability of Defender

 

[39] The basis of liability in this case is stated in condescendence as a breach of the defender's duties under and in terms of the Occupiers Liability (Scotland) Act 1960. However I note that their plea in law is not specifically directed to a breach of liability under that statute. In my view that is not correctly pleaded. Indeed there are other areas in the pursuer's pleadings which might also be criticised. The defender did not seek to take or argue this technical point and, in submission, accepted that the statute did apply and that they were under certain duties, which they had undertaken correctly. There is an admission in answer 3 that the defender is the owner of the property and has responsibility for its upkeep. Mr Cook in evidence, at least by implication, also accepted that position. There is no specific admission nor was there specific evidence that they are also the occupiers of the relevant area but the evidence taken from Mr Cook did confirm this to be the case. I am satisfied therefore that the defender is under the duty set out in the Act to take reasonable care to see that persons legitimately on the premises will not suffer injury or damage by reason of any dangers due to the state of the premises. Although the action was not pleaded in this way, I consider that in the circumstances of the present action the pursuer would also have been under similar duties at common law.

 

[40] The duty is not one of strict liability but a duty of reasonable care in the circumstances of the case. It is clearly forseeable that an insecure, loose or missing slab on steps such as these will present a danger. It is reasonably forseeable that an insecure slab might work its way loose or be removed. It is reasonably forseeable that an accident might occur as a result of such a defect and that personal injury might occur. The nature of the construction of these steps, namely concrete slabs cemented into position, make it more likely that such a defect might occur. I am satisfied from all of the evidence that the missing slab, and indeed the slab when present but insecure, did present a reasonably forseeable risk of injury to persons using the steps. I am satisfied that in order to comply with this duty the defender requires to have an adequate system of inspection and response to complaints. I did not understand that to be in dispute.

 

[41] I did not find the case of Rush v Glasgow Corporation to be of help as it refers to duties under a different and specific statutory instrument. I also did not find the decision in McClafferty v British Telecommunications to be of assistance. There are a number of cases concerning uneven pavings and the level of protrusion required to make such into a defect requiring repair. These are essentially cases where the claimant has tripped over a protruding edge. That is not the position in the present case. Here whilst the depth of the hole created by the missing slab is a factor it is a combination of the hole, the rough surface beneath and that the pursuer was stepping down onto that surface which has caused this accident. In any event I am satisfied from the evidence that the depth of the defect was approximately twice the depth of a slab which would be well in excess of one inch.

 

[42] Mr Cook in his evidence accepted that the step when inspected by him in mid 2004 was in a dangerous and hazardous condition. He did not see the slab out of position. It was his evidence that as soon as he was aware of this defect he had an immediate repair undertaken and that this was completed the following day. His evidence therefore accords with the position of the pursuer that the defect was dangerous and hazardous. It follows from my view of the other evidence that this hazard had been present since around the middle of 2003. Such inspections as had been carried out by Mr Cook had failed to reveal the defect. I am satisfied from Mr Cook's own evidence that had his inspection revealed this defect then he would have attended to its immediate repair.

 

[43] In order to carry out their duty of care it is well established, and indeed obvious, that the defender required to carry out regular and adequate inspection. The principal issue on liability therefore turns on whether or not the inspections carried out by Mr Cook were sufficient and adequate. In my view they were not. It is clear that when Mr Cook carried out his detailed inspection the defect was immediately apparent. It is also clear that, had it not been for that detailed inspection, the defect would not have been discovered and would not have then been repaired. It follows therefore that in order to comply with their obligations the defender required to undertake a more detailed form of inspection. Cursory visual inspections which failed to notice a serious defect were insufficient.

 

[44] There is then the issue of the frequency of such inspections. It was suggested by the pursuer that in terms of the council's code of practice for maintenance management an adequate inspection should be carried out at least once every three months. The defender's position was that these guidelines related to highway maintenance and did not apply to steps and paths which were not directly part of the highway and which, as in this case, were part of a commercial development. I accept the defender's submission on that point as it does appear that the code of practice does not apply to this type of area. The terms of the joint minute are very clear. Firstly it is agreed that the code applies to roads and thoroughfares adopted in terms of the Roads Act. There was no evidence in this case that this formed part of either a road or a thoroughfare which had been so adopted and I rather think it did not. The definition of a secondary walking route was accepted as fact in the joint minute but in absence of any evidence to the contrary it appears to me that the phrase "feeding into.. local shopping centres" refers to routes to such a venue and not pathways which are part of such a venue. The joint minute agrees that secondary walking routes should be inspected no less than once in every three months but as it has not been proved that these steps formed part of such a route and that is not agreed in the joint minute. Accordingly, that is of no relevance to the present case.

 

[45] There is in my view a duty on the occupiers of premises to carry out such inspections as are necessary and reasonable to identify hazards and to repair same. I do not think that it is necessary or appropriate to attempt to set down any particular time period for such inspections. The regularity of inspection will, in absence of any statutory guidance or code be dependant on the particular circumstances of the location. Given the time scales involved in this case, the defender cannot legitimately rely on any lack of reporting of the defect, by a member of the public. It was not established that any relevant incident, other than the pursuer's, had been reported to the defender. I accept that there was no suggestion that the slab had been removed by anyone acting on behalf of the defender. There is therefore no relevant issue of a defective complaints procedure. The response to the pursuer's report and complaint does seem inadequate but has no direct relevance to her own claim.

 

[46] In this case I am satisfied from the weight of evidence that the defect had been present from mid 2003. Without setting any particular period for inspection it appears to me that it is inappropriate that the occupiers, namely the defender, failed to identify and rectify this admitted hazard for a period of five or six months before the pursuer's accident. In my view, a monthly inspection regime would, if it involved adequate inspection on each occasion, be sufficient. A less frequent but adequate inspection regime would also be satisfactory. Indeed a combination of the two could also be sufficient. In this case it is not the frequency of the inspections but their adequacy which is critical.

 

[47] I consider that in these circumstances the pursuer has established that the defender was in breach of their duties and that her accident has been established as caused by the defender's fault and negligence.

 

Solatium and damages

 

[48] It is agreed in terms of the joint minute that full liability in this case should be assessed at £6,000 inclusive of interest to the date of proof, 22 January 2007. I have accordingly made the appropriate finding and based the pursuer's award on this figure.

 

Contributory negligence

 

[49] The defender pleads and argues that in the event that they have any liability there should be a finding of contributory negligence. They cite the authorities of Brown and McClafferty in support of that proposition. The pursuer denies this and claims that she acted perfectly reasonably in the manner in which she descended the steps. In my view the pursuer did contribute to her own accident. I consider that she failed to keep a good look out and watch where she was placing her feet. In my view an individual descending steps has a greater duty to watch where they are placing their feet than someone who is simply walking on flat surface. In this case the slab was missing and could have been seen, had she kept a proper look out. Had the slab been in place but unstable that would have been more difficult to notice. Her level of contribution is similar to that found in the case of Brown. She was unaware of any problem. As in that case she would not have noticed any problem until she was almost upon it. The duty on her was higher as she was descending steps. She did not establish any legitimate reason for looking elsewhere. There was snow and slush in the area, although the pursuer fairly conceded that the steps were not covered and that the defect was not therefore obscured. The light and lighting at the time was not particularly good. Given the circumstances I do not consider that this is a case, as in McClafferty, where there is equal blame. Balancing all of these factors I consider that the pursuer has contributed to this accident to the extent of 30% and I have reduced the award by that figure.

 

Interest

 

[50] I was not addressed on interest. The agreed figure is inclusive of interest to the date of the proof. By finding interest due thereafter there is a danger of applying interest on the interest element of the award. In absence of any submission I have awarded interest from the date of decree.

 

Expenses

 

[51] As agreed I have reserved the question of expenses and set the case out for a hearing thereon.

 

 

 

Sheriff of Grampian Highland & Islands at Peterhead.