Case Reference Number:

A880/08

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT KIRKCALDY

JUDGMENT OF SHERIFF G A WAY

in causa

PURSUER CAROLINE JARRETT, residing at 44 Dundas Street, Lochgelly, Fife KY5 9AQ as legal representative of MEGAN JARRETT residing with her there

against

DEFENDERS KIRKCALDY ICE RINK, a company incorporated under the Companies Acts and having its place of business at Fife Ice Arena, Rosslyn Street, Kirkcaldy, Fife KY1 3HS

Act: Morison; Alt: Waton.

Kirkcaldy 2 July 2009. The Sheriff, having resumed consideration of the cause, finds in fact:-

1. The pursuer's daughter, Megan suffered an accident which occurred at Kirkcaldy Ice Rink on 30 October 2007 at approximately 8.30pm.

2. Megan was ice skating on the ice and was wearing ice skates.

3. Megan was attending an organised event at the Ice Rink known as an "Ice Disco" and the lights were dimmed to create a social or night club like effect.

4. The Ice Rink is bounded by a one metre high barrier with at least one exit therein which is at a point where the parabolic curve forming the oval or "D" end commences.

5. At least one exit from the ice leads directly onto a walk way which is floored with a dark coloured carpet tile like material and adjacent to that exit there was black netting hanging from a rail above the barriers to form a defence designed to prevent ice hockey pucks exiting the rink and harming spectators.

6. The netting is pulled back when not in use for ice hockey matches as it is not required during ordinary skating.

7. The netting, when pulled back, gathers at the end and the pursuers system for securing it was to fix it clear of the ground or walkway by a series of hooks on the underside of the upper rim of the barrier and then tensioned by a length of twine tied between the gather end of the net and the nearest available upright support.

8. The nearest upright support available for tensioning the netting was the second support approximately one metre from the exit.

9. That the defenders carried out a daily inspection of the whole ice rink for any obstacles or hazards to users and have attendants on duty when the Ice rink is in use.

10. At the time of the accident the netting was hanging down onto the walkway side of the barrier, trailing on the floor to the left of the exit (looking from the ice) leading to the skate hire room at a point somewhere between the second upright support of the barrier (counting from the exit and to which the netting is normally tensioned by a tie) and the third upright support. This is a distance of at least one metre.

11. Megan turned walked towards the Ice Skate hire room taking three or four steps whereupon she caught her right skate on the netting which was trailing on the ground.

12. This caused her to fall to the ground, twisting her right ankle and causing her injury.

13. Damages are agreed by Joint Minute at £2,250.00, net of any recoverable benefits but inclusive of interest to the date of the Proof.

Finds in Fact and in Law:-

1. The defenders are the occupiers of Kirkcaldy Ice Rink within the meaning of the Occupiers Liability (Scotland) Act 1960; that the ice rink and walkway are premises within the meaning of the Act and that the defenders were in control of the premises.

2. That the pursuers fulfilled all duties incumbent upon them towards Megan for whom the pursuer acts in a representative capacity, both at common law and statute.

Consequently, repels the pursuer's First and Second Pleas-in-Law; Sustains the Defenders Second and Third Pleas in Law; Assoilzies the defenders from the Crave of the Initial Writ; quoad ultra ASSIGNS Monday, 13 July 2009 at 9.30 am within the Sheriff Court House, Whytescauseway, Kirkcaldy as a hearing on expenses.

NOTE

Statute referred to:

Occupiers Liability (Scotland) Act 1960

Section 2 Extent of occupier's duty to show care

"(1) 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."

Cases referred to:

Dawson v Scottish Power plc 1999 SLT 672

Hanlon -v British Rail Board 1991 SLT 228

Kerr v East Ayshire Council 2005 SLT(Sh Ct) 67

Diana Cheesman v International Travel Service Ltd
[2008] CSOH 58

Introduction

1. On 30 October 2007 Megan Jarrett was attending an event at Kirkcaldy Ice Rink which was described as an "Ice Disco". It was explained that this was a social event with dimmed lights and music of the kind played for dancing in night clubs and the like. Megan was 12 at the time and went with a small group organised by Dunfermline Women's Aid. Her mother was not with her.

2. The ice rink is rectangular with two "D" ends or might equally be described as an elongated oval. It is a popular venue and hosts a number of different ice based activities and for the purposes of this case in particular this includes ice hockey. The rink is surrounded by a wooden barrier one metre high with simple wicket gates off the ice onto walkways leading to the rest of the building, where, for example, there is seating for spectators. The walkways are covered with what appears to be large carpet tiles to facilitate customers leaving the ice still wearing ice skates. These are of a dark material.

3. In addition to the barrier there is also a black net which runs along an overhead rail and hangs down to form a protection against flying ice hockey pucks which might injure spectators when matches are played. This net is secured to the barrier by hooks and when not in use is kept clear of the walkway by the free ends being tensioned. This is achieved by tying the end of the net to a convenient upright with twine.

4. At about 8.30 pm Megan decided to leave the ice. There is, at this point, a dispute on the evidence. The pursuer on record states that Megan came off the ice rink at one of the exits and as she stepped onto the walkway around the rink she caught her right foot in black netting that was trailing onto the floor. She expands upon this general description at Article of Condescendence 2 line 12 where it narrates that "Megan took her first step from the ice onto the walkway with her left foot. She then stepped from the ice with her right foot. Her right foot and skate became entangled in the netting trailing on the floor of the walkway". The defenders say that this version of events is physically impossible. They argue that the position of the net was such that even if the tensioning rope had completely failed and the net was trailing on the ground (which they deny) the net could only have trailed on the ground (the witnesses likened this to a puddle effect) somewhere much further from the exit Megan used that just one step away. I will return to this later.

5. Megan was intending to proceed left along the walk way to the skate hire room. She tripped and fell. She hurt her ankle. She was helped from the ground by adults not known to her, perhaps by employees of the defender, who untangled her skate and, initially, sat her on a chair. One of the Women's Aid organisers, Morag Hyde, had noticed that Megan was no longer in her sight and she went to investigate. She did not see Megan fall but came upon her very soon thereafter whilst she was still recumbent and being helped up off the ground. She observed that Megan appeared to have tripped on netting which she saw on the ground and which was clear was not tied up. She went with Megan to the Ice Rink offices where she was seen by a First Aider and then an ambulance was called. Megan was taken to Hospital where a soft tissue injury was diagnosed. Damages have been agreed in this case and there is no reason to further narrate Megan's injuries and recovery. Suffice it to say that she made a full recovery with no discernible lasting damage.

The Pursuer's Claim

6. The pursuer claims damages as the legal representative of her daughter Megan on two grounds. Firstly, she avers that the defenders are liable in delict at common law. The defenders owed Megan a duty of care to take reasonable steps to ensure the safety of those using the ice rink against foreseeable risks. Obstructions on a walkway are clearly foreseeable hazards. In the circumstances here customers will still be wearing ice skates. The pursuer avers that the defenders were negligent in failing to keep the anti puck net safely off the ground. They suggest that they could have removed the net altogether when not in use; this however they departed from at the proof and led no evidence in support. They could have tied the netting up and away from the floor; shortened it or pinned it to the outer edge (by this I have taken them to mean the wooden barrier) of the ice rink. The defenders' failure to do these things are alleged failures in duty.

7. Secondly, the pursuer relies upon the statutory duties incumbent upon the defenders as occupiers and controllers of the ice rink premises in terms of the Occupiers Liability (Scotland) Act 1960. It was a matter of agreement between the parties that the defenders and their premises were subject to the provisions of the 1960 Act. Under section 2(1) of the 1960 Act the defenders have a duty to take reasonable care to see that Megan and other ice rink users do not suffer injury as a result of dangers due to the state of the premises. The pursuers contend that the defenders failed in their statutory duties and are accordingly liable in the agreed damages.

The Defenders Answer to the Claim

8. The defenders state three discrete lines of defence. Firstly, the accident simply did not happen as the pursuer alleges. The pursuer, to meet her obligation to give fair notice of her case, has described her recollection of the accident in considerable detail. She says that as Megan approached the exit in the barrier from the ice she first put her left foot on to the walkway. She then put her right foot onto the walkway. As she did so, her right foot became tangled in netting trailing on the floor of the walkway. The defenders say that for this narrative of the accident to be correct, the netting would have had to be trailing on the ground some two steps away from the exit point. The defenders position is that because of the way in which the overall netting was positioned, this was not physically possible. The net was pulled back on the overhead rail and then tensioned by being tied to a post approximately 1 metre from the exit. In the event that the netting were pulled down or otherwise became untied, the net, according to the laws of physics, must fall pivoting on the upper rail and would fall further to the left of the exit, not closer to it. This would be more than a metre from the exit. They argue that it follows from this that for Megan to become entangled in the trailing net ( which of course they deny) she must have taken a step off the ice and perhaps two or three more steps to the left on the walkway. The position they say, is clearly shown in the photographs lodged as productions. The significance of the number of steps taken will be discussed later.

9. Secondly, they say that the pursuer's common law case in delict must fail, even if I accept every word of the pursuers witnesses evidence, because beyond a bare averment that there was fault the pursuers have failed to establish any negligence on the part of the defenders. The duties are to take reasonable care in the face of foreseeable proximate risks and the standard is that of the reasonably prudent ice rink operator using ordinary care and skill in all the circumstances. It is not enough for the pursuer to establish that the netting was trailing along the ground in such a position that Megan could trip on it to succeed. The pursuer to establish fault on the part of the defenders must prove how the net came to be on the ground; how long the net was in such a position before the accident; why the defenders should have known that the net was in such a position prior to the accident; any other ground of alleged neglect such as failure to note the position of the net during the last inspection prior to the accident.

10.      Thirdly, they argue that the pursuer's statutory case must equally fail even if I accept all the evidence of the pursuers witnesses. The statutory test, they say, is also not absolute or strict but based upon taking reasonable care in all the circumstances to see that a person will not suffer injury or damage by reason of dangers due to the state of the premises. They argue that the pursuer's case is deficient on a number of crucial points. The pursuer has no Record and offered no evidence to establish how long the netting was left in the position that it was in at the time of the accident. Thus it is not possible for a finding to be made that it when it should have been noticed and tied up. The pursuer asserts that in fulfilment of their duties under the Act and at common law, the defenders should have taken reasonable care to tie up the netting but does not say that they did not do so. They suggest what might have been alternative methods for securing the netting. The defenders could have removed netting when ice hockey was not being played; but the pursuers departed from this at the Proof. The defenders could have tied the netting up; shortened the netting or pinned it to the outer edge of the ice rink. These are alternatives yet the pursuer does not aver that any of these steps would have been preferable to the others or that they would have actually avoided or materially reduced the risk of accident. The pursuer has no Record for the contention that the defenders system of inspecting the net or checking that the netting was tied up was inadequate.

The Pursuer's Submissions after Proof

11. The Pursuers Agent made the following submissions on the facts. I should accept evidence given by the pursuer, Megan Jarrett, Morag Hyde along with productions 5/3 which was the first aid report, and 5/5 A-E (which are the photographs showing the locus where Megan fell) as both credible and reliable. There is no dispute that Megan suffered a fall near the exit from the ice on the arena walkway. It is the cause of the accident that is in dispute. Megan stated in evidence that she caught her right skate in netting lying on the walkway when she was exiting from the ice rink and this caused her to fall and twist her ankle. We did not need to hear from Megan about the effect that this injury had on her as quantum has been agreed between the parties. However, it was apparent from the evidence that this was a nasty injury. She gave her evidence in a straightforward and mature manner despite the fact that she is a 13 year old girl recalling events that occurred some 18 months ago or so when she was only 12. Megan has never deviated from her assertion that she fell due to the netting being on the floor. This was brought out in the first aid report form number 5/3 of process which states that she said she had caught her skate in the net and her evidence today. The pursuer, Caroline Jarrett was able to report what Megan had told her about the accident later that evening at the hospital. She was not there when the accident occurred but she corroborated the fact that Megan was consistent throughout as to how the accident occurred.

12. There was the evidence of Morag Hyde. She is a support worker with Dunfermline Women's Aid and she was in charge of the trip to the ice rink that day. Mrs Hyde was an independent witness who only knows the Jarretts in a professional capacity and would not describe herself as a friend of the family. She did not see Megan catch her skate in the netting but she came upon Megan immediately after the fall and was able to state what Megan told her about how she came to fall. She clearly stated that she observed that the netting was not tied up but was lying on the walkway causing an obstruction.

13. Finally, she commented upon the defenders only witness, Mr Dempster, an employee of the defender's who was on duty at the rink when Megan's accident occurred. He rendered first aid and filled out an accident report form. He did not witness Megan's accident. He stated when he reached the locus, after he had rendered first aid to Megan, the netting was hanging down a bit but not touching the ground. He could not speak to the state of the netting immediately after Megan fell. He could only say what it was like 10 minutes after Megan fell. He accepted it was possible for someone to have fixed the netting back into position by the time he arrived at the scene. He accepted the netting would be a hazard if trailing on the ground. He conceded, upon cross examination, that the netting was tensioned across to an upright and if the twine securing it gave way, for any reason, the net must descend towards the ground. He would not accept that the net could have trailed upon the ground. The pursuers agent observed that Mr Dempster was only asked to give a statement in February 2009 some 16 months or so after the accident. She suggested that his memory may not have been as clear as if he had been asked to recall the accident nearer to the time. She invited the court to find that Mr Dempster was mistaken in his evidence and it was not reliable.

14. The pursuer's agent submitted that her client had met the legal and evidential tests for fault at common law and breach of statutory duty. At common law it was her position, in short, that the danger of netting trailing onto the walkway and that patron's skates might tangle in it causing a fall was reasonably foreseeable. The defenders were negligent in the steps they took to prevent a foreseeable risk causing injury. Equally, in terms of the 1960 Act the defenders had a duty to: take reasonable care for the health and safety of those using the premises; take reasonable steps to ensure that the exits from the ice rink were free from obstructions and items which may cause users to trip or fall; adequately secure or otherwise fix the netting which if allowed to trail on the floor was an obvious tripping hazard to properly assess as part of the condition or state of the premises In those duties the defenders failed. The pursuer submitted that there were reasonable steps the defenders could have taken to ensure that the net did not trail on the floor. They could have had it secured fastened or pinned to the outer edge of the barrier to ensure that it did not come loose. They could have tied the netting securely up and away from the floor. They could have shortened the length of the net. The defenders were in breach of their duties of reasonable care in terms of section 2(1) of the 1960 Act.

15. She referred me to the following authorities: Dawson v Scottish Power plc 1999 SLT 672 and Kerr v East Ayrshire Council 2005 SLT (Sh Ct) 67. She invited me to sustain pleas in law 1 and 2 for the pursuer and repel pleas in law 1 to 6 for the defenders; to award Megan the sum of damages set out in the parties Joint Minute of Admissions no 12 of process and to reserve the question of expenses to a further hearing in the event that the pursuer was successful.

The Defenders' Submissions

16.      The defenders agents essentially reiterated their case set out on record. The evidence showed that the accident could not have happened as averred by the pursuer. This was physically impossible. Megan under cross examination conceded that she might have taken a step or two more on the walkway before her skate became entangled in the net and she tripped. This was consistent with her description to the Court of where she was lying relative to the barrier as the locus was depicted in the photographs lodged as productions. The parties had both used these photographs and it was not disputed that they accurately depicted the locus even if they did not show the net as it may have been at the time of the accident. The defender's agent carefully drew attention to the discrepancy between the very precise averments in the Record regarding Megan's movements upon leaving the ice and the evidence of both Megan and Mrs Hyde as it was lead at Proof. He submitted that as the pursuers averments were formulated to give the defender fair notice if the court held that the accident did not occur as averred then, no matter what the decision on liability, he would found upon this in an argument on expenses.

17.      He then submitted that in any event, the pursuer's case both at common law and statute must fail, even if I accepted all the evidence for the pursuers. The pursuers had failed to aver or prove essential elements of the legal tests applicable to each. I will not rehearse these at length but refer to paragraphs 9 and 10 above and seek to sum up the position as follows. In relation to common law duties the defenders submit that there was no evidence of negligence. The pursuers have failed to prove that the method of securing the netting was neglectful or at least such that no reasonable ice rink operator using ordinary care and skill would have used. They failed to prove that the netting did not become loose and trailed upon the floor within a matter of moments before Megan slipped and fell on it. In that case the defenders could have reasonably prevented the accident. So far as statutory duties were in issue the defenders had lead unchallenged evidence which proved that they had a system of inspection, including the walkways, each day before the rink was opened to users. They ensured that the exit passages around the ice rink were kept reasonably free from hazards and obstructions particularly having regard to the fact that their customers will be wearing ice skates. They lead unchallenged evidence that there were three attendants (two on the ice and one off) charged with general security and health and safety duties. These were reasonable precautions. They submit, however, that the pursuer cannot succeed because she does not impugn the defenders system relating to the netting. They do not aver nor did they attempt to prove, that the net should have been inspected more regularly. They do not aver nor did they attempt to prove, that there was a better or indeed any preferable alternative method of securing the net which would have been more likely to avoid accidents of the type which befell Megan. The pursuer, as already observed, offered no evidence as to the state of the netting at any time during the evening in question before the point of Megan's accident. In the absence of such evidence it is possible that another patron, who exited the ice only moments before Megan, could have stumbled on the walkway and grabbed on to the netting for support and pulled it down to the ground without then alerting the defender's staff or otherwise warning of the hazard they had created. In such circumstances the burden lay on the pursuer to prove what system she says the defenders' should have had in place to prevent such an accident. In the absence of such averments the defenders were being held to an unknown standard.

18.      Finally, the defenders' agent addressed his pleas of contributory negligence. He had already conceded that any such contribution would have been modest but in light of the way in which the evidence had emerged he would not insist upon that plea.

19. He referred me to the following authorities: Hanlon v British Rail Board 1991 SLT 228 and Diana Cheesman v International Travel Service Ltd [2008] CSOH 58.

DISCUSSION

20. The parties agents referred me to authority. I have considered the case law but I do not propose to analyse or rehearse it here in any detail. Personal Injury cases tend to turn heavily upon the individual facts of the incident in question and in general only broad points of principle can usefully be drawn unless the precedent is factually on all fours. There are a whole slew of cases on slipping and tripping which involve major supermarkets and as the layout and disposition of products within such premises is often very similar, I accept that those cases may usefully inform the court on accidents in supermarkets in general. Here, however, we have a very special type of premises, an Ice Rink, and no evidence of any kind was lead at Proof on the layout, design or Health and Safety practices of other Ice Rinks or indeed Ice Rinks in general.

21. There is no doubt that Megan left the ice rink in a perfectly normal way and there was no evidence that she was not taking reasonable care for her own safety. She left the ice and turned left onto the walkway to go towards the ice skate hire room. I cannot accept, on the balance of probabilities, the case, set out on Record, that she had taken only one full step on the walkway when she tripped. She gave her evidence in a very mature and unaffected way, standing her age, and I have no doubt that she is credible and was trying to relate the incident as she recalled it. I consider it more probable that she took perhaps two or three steps on the walkway. She conceded this might be so both on cross examination and in answer to me when she considered where she remembered lying on the ground relative to the photographs of the locus she was shown. I should observe at this point that the number of steps she took is irrelevant, in my estimation, to issue of liability and I remark upon this only because I was invited to do so by the defender's agent with regard to certain issues of expenses which might arise.

22. Megan then lost her footing and fell heavily forward to the ground. Her evidence was entirely consistent with something on the ground trapping her skate and tripping her up. She was helped to turn round by others (who, was never established but it may have been employees of the defenders; this was certainly the impression of both Megan and Mrs Hyde) and at that point she saw that her right skate was tangled in netting. Someone extricated her skate from the netting and helped her to a chair. Thereafter she was taken to another room, given first aid and then taken to hospital for further examination. Quantum has been agreed in this case and it is therefore unnecessary to further narrate the diagnosis and treatment of her injuries. Suffice to say she had a nasty soft tissue injury and a fair degree of discomfort. She went on to make a full recovery.

23. The netting used at the Ice Rink is for a proper purpose: to protect spectators from fast high flying ice hockey pucks. No evidence was offered that this was not so or that some other system of protection should have been used. The pursuer had plead such a case but departed from it at Proof. I am, therefore, bound on the evidence to accept that the presence of the netting was not of itself a negligent act or breach of statutory duty. The netting was black and the floor covering of the walkway is also of a dark hue. There is little doubt that a trailing section of net, which was variously referred to throughout the proof as much like a "puddle", on the floor would not be readily visible in such circumstances. No evidence was, however, lead to suggest that either the net or the flooring should have been of contrasting colours or that had such a colour contrast would have any way prevented or at least materially reduced the risk of accident. The evidence of the defenders, which was unchallenged, was that each day before customers were admitted the whole rink was inspected for any hazards. Attendants were on duty throughout opening times to respond to any emergency or emerging health and safety issue. The net was fixed up off the ground by being affixed to hooks set into the upper rim of the wooden safety barrier around the rink. The end was tied off with twine and tensioned to an upright on the same barrier. This would be inspected and checked as part of the routine daily check. The site attendants were on duty to respond to reports of hazards or take steps if they encountered anything of that nature themselves. The defenders lead evidence to that effect and pointed to the accident report which was spoken to at the Proof, which clearly stated that after the accident the netting was checked to ensure that it was securely tied up off the ground. All of this the defenders submitted indicated reasonable routine safety procedures.

24. The pursuer has failed in my opinion to make out her case at common law. She has not proved, on the balance of probabilities, that the presence of the "puddle" or trail of netting was a result of negligence on the part of the defenders or their employees. The defenders were entitled to have such netting in situ. They reasonably foresaw that if the netting were to come loose it might reach the floor of the walkway and took certain steps to prevent this. They fixed the net up onto hooks set at intervals around the underside of the rim of the barrier. They tensioned the free end of the net by tying it off with twine and securing this tightly across to an upright. The method used was clearly illustrated in the photographs of the locus. No evidence was lead to contradict what the court was shown. There is no doubt that the method of tying off could have been made more sophisticated, perhaps with the use of metal bolts and eyes or proprietary fittings such as carabineers, but there was no evidence lead that any such fittings should have been used or that doing so would have had any particular efficacy against an accident such as befell Megan. The defenders regularly inspected the rink for health and safety hazards. There was no evidence lead to challenge this. I am bound therefore on the evidence to accept that it is probable that the netting was tensioned and secured before the admission of patrons on the day in question. The pursuer offered no evidence as to when the netting might have come adrift from its tensioning upright or what steps, if any, the defenders should have taken to prevent it. The paucity of evidence on the condition of the locus prior to Megan leaving the ice and tripping over makes it impossible for the court to conclude that the presence of the trailing or puddle netting was as a result of neglect. I accept the defenders submission that the netting could have come loose only moments before Megan left the ice. In that event, aside from the mere chance that an employee (or indeed a good Samaritan patron) seeing the hazard would effect a repair or perhaps set out a warning sign of some kind before she became entangled in it, there was nothing the defenders could do. I should add for the sake of completeness that I was not invited to hold that the evidence in this case could be such as might found liability on the basis of the legal doctrine of res ipsa loquitur. I would, however, had I been so addressed declined to accept such a submission on the facts of this case. The pursuer has, accordingly failed to meet the legal tests or prove on the balance of probability any factual basis for liability based on negligence or delict at common law.

25. The pursuer has, equally, failed to make out her statutory case. I adopt here the factual conclusions drawn in the last paragraph as to the presence of the netting at the rink on the day in question, the construction and design of the same, the prospect that the fittings for tying off the netting could have been more elaborate and the possible timing of the creation of the trail or puddle of netting on the walkway. The test under the 1960 Act is not one of absolute or strict liability but one of reasonableness. The relevant section is set out at length above. The defenders referred me to Hanlon v British Rail Board. In that case the pursuer had slipped on a platform and the injury was attributed to the presence of a puddle of water or oily substance. The Lord Ordinary ( Lord Cameron of Lochbroom) concluding that the pursuers case had failed stated at page 229:

"The pursuer's case thus depends upon establishing the probability that the particular substance had been present on the platform at Pollokshields East station for a sufficient length of time to enable the substance to have been observed and cleaned up by the staff at the station. But to substantiate such a case it is not sufficient for the pursuer to rely upon the need for station platforms to be inspected for those dangers to users of the platforms, especially the travelling public, which are reasonably to be anticipated. The pursuer has in addition to establish that a reasonable system of regular inspection, maintenance and cleaning would have discovered the slippery material in this one puddle and caused it to have been removed before the pursuer came to slip on it. The pursuer led no evidence as to the type or regularity of inspection which was or should have been made........... That being so, I am of opinion that there is no basis upon which the pursuer can rest a case of failure to carry out a regular inspection of the platform such that it would have enabled the puddle with the oily or greasy film upon it to have been removed prior to the pursuer's accident. In these circumstances I am satisfied that the pursuer has failed to prove any breach of a duty of reasonable care by the defenders in this case."

I respectfully concur with His Lordship's formulation of the statutory tests applicable to slipping or tripping hazards of that kind. The pursuer referred to the cases of Dawson v Scottish Power and Kerr v East Ayrshire Council. Those cases do not, with respect, overly assist here. In each case the court was considering a fixed element of premises (in Dawson a fence and in Kerr a pane of glass) which was found to be not up to the task it was to perform. The court held that the fence was not high enough and the pane of glass was not strong enough. It follows, therefore, that the very existence of the inadequate fence or the weak pane of glass was actionable. In this case the netting was perfectly fit for its own purpose and it was its temporary and unintended presence on the walkway which constituted the hazard. I consider that this case is therefore akin, factually, to a puddle of oil on a platform or as is common in Supermarket cases, the contents of broken bottles of tomato sauce or mayonnaise lurking on the floor to ensnare the unwary. I, for this reason prefer to apply Lord Cameron's analysis to the facts of this case rather than the dicta in Dawson or Kerr.

26. The pursuer has, therefore for the reasons set out above failed both to meet the legal test under the statute and to prove on, the balance of probabilities, that the defenders did not take such care as was reasonable to see that Megan did not suffer injury or damage by reason of the condition or state of the premises. I have no accordingly no choice on the basis of the evidence , the legal submissions and authorities referred to by the defenders but to repel the pursuers First and Second Pleas-in-Law ; sustain the Defenders Second and Third Pleas in Law and assoilzie them from the Crave of the Initial Writ. The parties invited me to reserve questions of expenses meantime and this case will therefore be put out to a procedural hearing.

GAW