Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

PD1/1O

JUDGMENT by SHERIFF J K TIERNEY in the cause ANTHONY DAVIS Pursuer against UNIVERSITY OF ABERDEEN Defenders

Act: Nicholson

Alt: Baxendale

ABERDEEN, 25^th February 2011.

The Sheriff, having resumed consideration of the cause:-

FINDS IN FACT:-

(1) The pursuer was at the relevant time and remains employed by the defenders as a porter. One of his duties involves the delivering of mail around the departments of the university.

(2) On the 6 January 2009 the pursuer was engaged in his duties delivering mail at Meston Walk within the King's College Campus of the university. He had started work at approximately 7 am and had started delivering mail some time later. At 7 am the weather was wet. Soon thereafter the temperature suddenly dropped and the road conditions became icy. This was consistent with forecast weather conditions, and with the weather conditions that had pertained over the previous few days.

(3) The total area of the university estate in Aberdeen is in the region of 175 acres. The total length of roads and footpaths within that acreage was not established.

(4) In January 2009, the defenders had a procedure in place for the gritting of roads and footpaths within the estate when weather conditions required. This procedure involved a prioritisation of work running from priority 1 - "immediate" down through 2 "urgent", 3 "follow up", 4 "not urgent" and ending at priority 5 - "no immediate action".

(5) The area of Meston Walk and the Crombie Annexe falls in category 3 - "follow-up".

(6) On the 6 January 2009 at about 10 o'clock in the morning the pursuer, as part of his employment duties, was required to deliver mail within the university campus and in particular to deliver mail to the Meston Building. To do this he parked his car near the Crombie Annexe and walked along Meston Walk to the Meston Building. On his return, when walking on Meston Walk at or close to where his car was parked, he slipped upon ice and fell, sustaining injuries to his back. Ice it need hardly be said, is a substance which may cause a person to slip and to fall.

(7) The area on which the pursuer was walking both to and from the Meston Building, namely Meston walk, was icy and slippery. It had not been treated under the gritting procedure, nor was it anticipated that the area would have been treated on that day by that time. The gritting or salting of the roads, walkways and footpaths at the university, when carried out in accordance with the defenders' schedule for gritting, would have taken most of the day to complete. In circumstances when gritting operations had started at 8 am the area at Meston Walk would not have been cleared and would not have been expected to have been cleared by 10 am.

(8) The Grounds Officer for the university, Mr Bruce David Reid, was responsible for gritting operations generally. He had a staff of 13 to 14 groundsmen. He was the person who instructed gritting to be carried out on this day. Gritting operations commenced on the 6^th January at approximately 8 am, by which time Mr Reid was aware of widespread ice on the campus.

(9) There was no evidence of any procedure or precaution being taken by the university to keep Meston Walk free from ice at a time when workers such as the pursuer would be walking on it, other than the schedule or programme of gritting.

(10) There was no evidence of any procedure or precaution having been considered by the university to keep Meston Walk free from ice at a time when workers such as the pursuer would be walking on it, other than the schedule or programme of gritting.

(11) The walkway known as Meston Walk is a traffic route in a workplace for the purposes of the pursuer's employment with the defender, and for the statutory purposes of Regulation 12 (3) of the Workplace (Health, Safety and Welfare) Regulations 1992.

(12) On the 6^th of January 2009 at or about 10 am, the pedestrian way at Meston Walk was covered in ice and accordingly was not free from a substance which might cause a person to slip or fall. Because of this the pursuer slipped and fell.

(13) As a result of the accident the pursuer sustained injuries, solatium for which is fairly stated at £3,500. In addition, the pursuer lost wages totalling £414.

FINDS IN FACT AND IN LAW:

That the defenders have failed to discharge the onus on them, that such steps were taken as were reasonably practicable to keep the surface of Meston Walk free from a substance, namely ice, which would cause a person such as the pursuer to fall.

FINDS IN LAW:

The pursuer having suffered loss, injury and damage through a breach of statutory duty by the defenders is entitled reparation therefor

THEREFORE Grants Decree against the defenders for payment by the defenders to the pursuer of the sum of THREE THOUSAND NINE HUNDRED AND FOURTEEN POUNDS (£3,914) with interest thereon at the rate of eight per centum per annum from the date hereof until payment; Appoints parties to be heard on (a) interest on solatium prior to decree and (b) expenses and fixes 23^rd March 2011 at 9.45 am as a diet for a hearing thereon.

NOTE:

[1] This is a case of a workman slipping and falling on ice on a pavement at his place of work. The defenders admit that the pursuer slipped and fell on the ice. The pursuer, in his statement of claim, contends that the defenders were in breach of their obligation under paragraph 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1922. So far as relevant to this case the Regulation provides : -

"So far as reasonably practicable every floor in a workplace and every surface of every traffic route in a workplace shall be kept free from . . . any ... substance which may cause a person to slip . . . or fall"

The pursuer's statement of claim also made reference to an alleged failure to provide snow chains for attachment to the pursuer's footwear in terms of the Provision and Use of Work Equipment Regulations 1998, and separately to an alleged breach of the Personal Protective Equipment at Work Regulations 1992. The pursuer's solicitor Mr Nicholson ultimately did not found on either of these. He confined himself to the Workplace Regulations.

[2] I heard evidence briefly from the pursuer himself and from Mr William O'Britis, a chartered engineer who had been instructed by the pursuer some months after the accident who spoke to weather conditions and temperatures in Aberdeen on the day which he had ascertained from an international weather site on the internet, (tutiempo. com) which were not really in dispute. Mr O'Britis also spoke about the defenders' gritting programme. He considered that it could perhaps have been started earlier, and that the defenders had been reactive rather than proactive having regard to the weather conditions on the day. He commented that he had not seen a risk assessment.

[3] The defenders led evidence from their head groundsman Mr Bruce Reid who spoke to the gritting operations and the defenders procedures for dealing with snow and ice on the campus.

[4] I considered that all the witnesses were truthful and generally reliable.

[5] Mr Nicholson for the pursuer submitted that the defenders had not kept Meston Walk clear of a substance - namely ice - on which a person might slip or fall. They had failed to discharge the onus that was on them in respect of reasonability. There was no evidence that they had considered other ways of gritting the area before the pursuer was required to walk on it or that any consideration had been given to keeping workers such as the pursuer away from the area until it was free from ice.

[6] Miss Baxendale sought to argue for the defenders that they had discharged the onus which was on them in respect of reasonable practicability by relying on the fact that they had a well considered schedule or programme of works for dealing with ice on the roads and footpaths and walkways within their estate. I was told by Mr Reid, the member of the defenders' management responsible for such matters, that it would take all day to grit all of the roads in the estate, and that the locus of the accident would not have been expected to have been gritted until some time after the accident had happened. They had checked the weather, they provided for an early response. The pursuer was seeking to apply an impossibly high standard. Conditions on the day were changing all the time.

[7] So far as the gritting programme was concerned it seemed to me that it was of the general type of programme that might be expected on an extensive site or group of sites such as the University campus. There was however no evidence of any formal assessment of the risks the programme was supposed to address or of the cost of a more intensive or differently focussed programme. It was just the system that was operated at the time. It had not been devised by the defenders' witness Mr Reid.

[8] It seems to me that if the programmed gritting was the only precaution that the defenders have taken then it is inherent in that approach that for some hours after 8 o'clock on 6^th January 2009 Meston Walk would not be free from ice whilst employees such as the pursuer could be expected to be using it, and the defenders knew that that would be the case. There was no evidence that any consideration had been given as to how to ameliorate the risk caused to persons such as the pursuer by ice at Meston Walk during the hours when it was waiting its turn in the gritting schedule. An obvious example would be by gritting any of the areas such as Meston Walk by hand. There was no evidence that any thought had been given as to how to address the risk to workers of the known presence of ice in Meston Walk.

[9] Nor, approaching the problems from the other end, does it seem that any consideration was given to keeping employees away from Meston Walk.

[10] The purpose of Regulation 12(3) (quoted above in para [1]) is the protection of people at work. The qualification "so far as is reasonably practicable" applies to the combination of, on the one hand substances on the floor or traffic route which might cause a person to slip or fall, and on the other hand the presence of persons on the affected surface who might slip or fall thereon. For example, there is no requirement under the regulations to keep a traffic route such as a pavement free from ice if no one is going to be using the traffic route, even though it might be very easy to do that. Similarly if the surface of a traffic route is known to be subject to a substance which might cause a person to slip or fall the "reasonably practicable" requirement of the regulation could, in my opinion, be met by the employer taking steps to see that there were no persons on the route who might suffer the slip or fall which the regulations seeks to prevent. In the particular circumstances of the present case that might, for example, as Mr Nicholson submitted involve instructing employees such as the pursuer to delay delivering mail to the Meston Building until Meston Walk had been gritted.

[11] I was referred to a number of first instance cases, in both the Sheriff Courts and the Court of Session, dealing with similar situations. The underlying principle is simple. In McCondichie v Mains Medical Centre (SCOH 31^st October 2003, para. 26) Lord Drummond Young summarised the law relating to the defence of reasonable practicability when pled in respect of Regulation 12(3) of the Workplace Regulations: it "involves a comparison of, on one hand, the risk presented to persons in the position of the pursuer and, on the other, the cost to the defender of taking the necessary precautions to obviate the risk. Generally speaking precautions must be taken unless the cost, in terms of time, effort and expense is grossly disproportionate to the risk involved".

[12] I was not persuaded by Miss Baxendale's attractively presented argument. It failed to take into account the fact that however good the system for using gritters per se, no further consideration had been given to the protection of employees from the presence of ice on Meston Walk, which the defenders knew was present, until such time as gritting of the site had been accomplished.

[13] The defenders' management, in focussing purely on the gritting of the icy roads and walkways would appear to have failed to consider any other precautions which might have been taken pending gritting operations being completed. They have not considered how the risk to employees of slipping or falling on ice which was known to be present could be addressed either by dealing with the ice itself or by keeping employees away from it. There was no evidence that they gave any consideration at all to any other procedures or precautions of any kind to meet this short term but obvious risk, let alone that they carried out any assessment of the kind referred to by Lord Drummond Young.

[14] I considered that Mr Nicholson's submissions were sound. In these circumstances the defenders having failed to discharge the onus upon them, the pursuer must succeed. I have put the case out for a hearing on the questions of interest and expenses.