Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT HADDINGTON

Court Ref: PD24/10

Judgment by

SHERIFF PETER J BRAID

In the cause

MR COLIN SYME, residing at 107 High Street, Tranent, East Lothian

Pursuer

against

EAST LOTHIAN COUNCIL, having a place of business at John Muir House, Haddington, East Lothian EH41 3HA

Defender

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1

In this action, which is a personal injuries action as defined in, and governed by, Chapter 36 of the Sheriff Court Ordinary Cause Rules 1993, the pursuer sues the defender, a local authority, for damages of £100,000 in respect of injuries said to have been sustained in an accident on 6 July 2007.

2

The initial writ was lodged on 1 July 2010, shortly before the expiry of the triennium. I deal with the pleadings more extensively below but at this stage, suffice to say that the pursuer avers that he was injured when his foot caught in a drain on a footway owned by the defenders, from which the cover was missing. His case, stated briefly, is that the defenders, as occupiers of the footway, ought to have inspected the footway and that, had they done so, the accident would not have occurred. The defenders admit that they owed certain duties to the pursuer but deny that they were the occupiers of the footway or that they had any duty of inspection.

3

Although there is nothing intrinsically complicated about the facts of the accident, and although it is now some fifteen months since the action was raised, no proof has yet taken place, nor indeed been assigned. Rather, the case called before me for debate on 7 October 2011.

4

Since the Chapter 36 rules make no provision for debates, but provide for a truncated style of pleading with no pleas in law, it is, I think, necessary to say something of how the debate came to be fixed, and what the purpose of it is. In January 2011, the pursuers lodged a record along with a motion for a proof to be assigned for the date previously allocated provisionally in the timetable issued to the parties. That motion was opposed and a debate was fixed for 13 May 2011. That debate was subsequently discharged to enable amendment procedure at the instance of the pursuer to be followed through. At the conclusion of that procedure, a further debate was fixed for 19 August 2011. Shortly before that debate the pursuer lodged another minute of amendment and the case called before me (for the first time) on 18 August 2011. Not without some hesitation, I allowed the minute of amendment to be received and answered, and discharged the debate set down for the next day. Following that amendment procedure, the case next called on 3 October 2011, when the defenders renewed their motion for a debate, founding upon their "revised paper apart" in which they stated that they opposed the fixing of a proof on the grounds stated therein. The essence of the defender's position was that certain averments should not be admitted to probation as being irrelevant, and that following deletion of those averments, there remained no relevant averments of common law fault. The action should therefore be dismissed.

5

In an ideal world, I would have dealt summarily with the question of further procedure on 3 October, by deciding on that date whether the pursuer's averments were adequately specific to allow inquiry or not. However, I noted that previous debates had been allowed and that the defenders' position was that notwithstanding the amendments the previous defects in the pursuer's pleadings had not been cured. There was in any event insufficient time to argue the matter fully on that date. Further, it is unclear how chapter 36 is intended to operate where a court refuses to grant a motion by a pursuer to fix a proof on grounds of lack of specification. I therefore fixed a further debate. However the fact that a further debate was set down and duly took place should not in my view detract from the true nature of the issue before me which is whether the pursuer's averments are sufficient allow him to proceed to proof having regard to the provisions of Chapter 36 of the rules. That said, it was not suggested to me that the power to dismiss an action as irrelevant has been removed provided that the test in Jamieson v Jamieson 1952 AC 925 is satisfied, that is, if the action would be bound to fail, although the conceptual basis for doing so in the absence of pleas in law, or a specific power of dismissal, was not explored before me. I therefore do proceed on the basis that if I were to conclude that the action is bound to fail, I would be entitled, or even bound, to dismiss it.

6

Against that somewhat lengthy preamble, I now turn to the debate of 7 October. The pursuer was represented by Mr O'Carroll, Advocate and the defenders by Mr McNaughtan, Advocate.

7

In line with the revised paper apart, Mr McNaughtan invited me to dismiss the action. The first branch of his submission was that the pursuer had pled no relevant breach of statutory duty. In amplification of this submission, he argued, first, that the Roads (Scotland) Act 1984 had no application since the footway in question has not been adopted. (In the event, this was not disputed by the pursuer, and I find it unnecessary to refer to the 1984 Act in any detail).

8

Next, Mr McNaughton argued that the pursuer's averments were not relevant to establish that the defenders were the occupiers of McNeil Path in terms of the Occupiers' Liability (Scotland) Act 1960 ("the 1960 Act"). Ownership did not create the necessary degree of occupation and control necessary for there to be occupation. It was not sufficient to aver, as the pursuer did, simply that the defenders were the occupiers. That averment was irrelevant in the absence of any specification as to what actual occupation or control was exercised. The footpath was not a council headquarters, sports centre or even the common close of council housing. In terms of section 1 of the 1960 Act, an occupier was a person occupying or having control of land or other premises. Although section 2 of the Act had effect in place of the common law rules, section 1(2) made clear that the common law rules still applied in determining who should be regarded as an occupier. That was illustrated by Murray v Edinburgh District Council 1981 SLT 253, in which it was also held that a person was only in occupation or control of premises for the purposes of the 1960 Act if he was in a position to say who shall and who shall not come on to the premises. So, in that case, a landlord could not be said to be in occupation of premises which were tenanted to the pursuer. In the later case of Gallagher v Kleinwort Benson 2003 SCLR 384, Lord Reed had conducted a detailed analysis of what had to be pled to establish that defenders were occupiers of property. One of the issues in that case was who were the occupiers of the flat roof of a Victorian building, the pursuer having sued various parties under the 1960 Act. One of those parties was the proprietor of the basement and ground floor of the building who had a right in common to the roof. However, the case against that party was held to be irrelevant. After reviewing the authorities cited to him, Lord Reed concluded that ownership of premises did not of itself render the owner an occupier of the premises (subject to possible exceptional circumstances). Rather, the status of occupier was normally dependent on some degree of physical control. That generally meant occupational control. An occupier's liability was based upon his capacity to act so as to make the premises safe. Lord Reed noted that conspicuously absent from the pursuer's pleadings was any averment that the first defenders had physical control to any degree of the roof. He therefore concluded that the averments against the proprietor of the basement and ground floor were irrelevant, so far as based upon the 1960 Act.

9

In Gallagher, Lord Reed had also considered what was meant by "control" of premises for the purposes of the 1960 Act. At page 416, he stated:

"The 'control' of premises which brings a person within the ambit of section 2(1) of the 1960 Act is such control of the premises as enables that person lawfully to take the steps which are necessary to fulfil the duty of care imposed by that section."

So, he also held as irrelevant, averments that the eighth defenders in that case, who were subtenants of two offices within the building including the office from which entry was obtained to the roof, were occupiers.

10

Applying Lord Reed's analysis to the present case, the pursuer had made no averments that the defenders had actual physical control of the locus. Accordingly, there was no relevant case and the occupier's liability case fell to be dismissed.

11

Mr McNaughtan then turned his attention to the pursuer's common law case. Although the road was not a public road which the defenders had any duty to maintain, the body of case law which considered a local authority's duties in relation to gritting of roads and pavements, and inspection for defects, could be "read across" in order to ascertain what duties might be incumbent upon the defenders here. Mr McNaughtan referred to the following cases: Gordon v Inverness Town Council 1957 SLT (Notes) 48; Grant v Lothian Regional Council 1988 SLT 533; Gibson v Strathclyde Regional Council 1993 SLT 1243; and Syme v Scottish Borders Council 2003 SLT 601.

12

Mr McNaughtan then submitted that on the basis of those authorities, the pursuer's case could be attacked in respect of his failure to plead: how long the defect had been present; what a reasonable system of inspection would have been; what other local authorities do in the circumstances of non-adopted footpaths; and what, if any, special circumstances prevailed in relation to the locus or the defect.

13

Developing his argument, he referred to the averments about how long the defect had been there. They were so lacking in specification as to be irrelevant. The pursuer averred that the drain cover had been missing "for a considerable period of time, and certainly since the autumn of 2006, and possibly since spring 2006." After making averments about leaves in the gully, and about rust, the pursuer then averred: "Believed and averred that the cover had been missing since spring 2006. Believed and averred that the drain cover was missing on 21 March 2007..." These averments fell foul of the weaker alternative rule, as explained by Lord Stott in Haigh & Ringrose v Barrhead Builders 1981 SLT 157. If legal liability arises only on fact A and the pursuer offers to prove fact A or fact B, his pleadings are irrelevant. So, here, the pursuer offered to prove that the cover had been missing since autumn of 2006 or spring of 2006. Liability could arise only on the latter. The case must be tested by reference to the former, and was therefore irrelevant.

14

Further, Mr McNaughtan submitted, the use of "Believed and averred", in the context in which it appeared in the pursuer's pleadings, was irrelevant: Brown v Redpath Brown & Company Ltd 1963 SLT 219. The averments which followed that phrase were not of matters which could reasonably be inferred from what had gone before. The pursuer founded upon two matters in support of his belief: the significant amount of decomposed leaves in the gully; and the frame of the gully being rusted in a manner consistent with its absence since early 2006. Those averments were lacking in specification. How many leaves? How long does it take that number of leaves to gather? What type of metal was the gully made of? How long does it take for that type of metal to corrode to the degree it had done? The pursuer's belief that the cover had been missing since spring 2006 was irrelevant.

15

Mr McNaughtan then turned his attention to the pursuer's averments re frequency of inspection. These were inconsistent, since he offered to prove alternatively that there ought to have been a 6-monthly, and a 12-monthly, inspection. The defenders lacked fair notice of what the pursuer was offering to prove.

16

Third, Mr McNaughtan attacked the absence of averments about the practice of other local authorities in relation to unadopted paths. There were averments about what one other local authority did in relation to response times, but none in relation to the question of how frequently a local authority should inspect an area such as the locus ie an unadopted public path in a housing estate. The pursuer made reference to the "Well Maintained Highways Code of Practice for Highways Maintenance 2005" but did not offer to prove that the Code applied to footpaths which have not been adopted. Further, the averment that the defenders could have carried out a six-monthly inspection was irrelevant: Syme. What the pursuer had to aver was what they should, not what they could, have done.

17

Finally, Mr McNaughtan criticised the absence of any averments that the missing gully cover constituted an obvious hazard. Such averments were necessary in the absence of averments about the practice of other local authorities. The pursuer did aver that the locus was close to Ross High School, the Tranent Library and the Tranent Local Community Centre but did not aver how close, nor the amount of footfall generated in the locus. The averments were so lacking in specification as to be irrelevant. The pursuer's averments fell far short of what was required in Gibson at 1246C-D. In that case, a bald averment that the defenders, a local authority, ought to have carried out daily inspections was held to be irrelevant in the absence of averments about other practice, or of special circumstances such as knowledge of frequent removal of covers, or frequent complaints.

18

In moving for a proof, Mr O'Carroll submitted that the pursuer's averments were sufficient to justify inquiry. The action could be dismissed only if it was bound to fail: Jamieson v Jamieson [1952] AC 525. Further, while certain of the defenders' pleading points might have had validity under the traditional rules of pleading, a different approach had to be taken to personal injuries actions under part AI of Chapter 36 of the Sheriff Court Rules.

19

Mr O'Carroll stated that the pursuer's case was predicated on establishing that the defenders were the occupiers of the footway. If they were not, then, since it was accepted that no duties were incumbent upon the defenders under the Roads (Scotland) Act 1984, then there could be no breach of duty and the action would be bound to fail.

20

Accordingly, the first hurdle for the pursuer to clear was to make sufficient averments that the defenders were in occupation of the footway. The 1960 Act did not differentiate between public and private property. Any rule that the 1960 Act did not apply to roads, applied only to public roads which were excluded from the scheme of that Act which were the responsibility of local authorities under separate legislation: Gloag and Henderson, 12^th edition, paragraph 27.17; Kirkpatrick v Dumfries and Galloway Council 2001 SCLR 261. A better formulation of this proposition was that the 1960 Act did not apply to public roads because they were the responsibility of the local authority. It followed that the 1960 Act did apply to private roads and footpaths. Ordinarily that would mean that the duty to take reasonable care to prevent any defects on the land from causing injury to any persons entering upon it fell upon the private individual or organisation who owned the land. It just so happened that in the present case, the occupiers happened to be a local authority. It was enough for the pursuer to make a bald averment that the defenders were the occupiers. Stewart, Delict, paragraph 19-06 referred to the case of Todd v British Railways Board, unreported, 24 February 1998, in which Lord Penrose held that a bald averment that British Railways Board were the occupiers of Waverley Station was sufficient, and that specification was not required of the factual basis of occupation and control. In any event, the pursuer had made more than a bald averment. One might ask, if the footpath was not occupied by the defenders, by whom was it occupied? As owners and the sole party who could exercise control, it was conceivable that the defenders could, if they wished, erect fences or signs preventing members of the public from using the path.

21

Insofar as the adequacy of the averments about inspection were concerned, Mr O'Carroll submitted that the duties incumbent upon the defenders were analogous to those incumbent upon a local authority responsible for the maintenance of adopted roads. There was a duty of inspection, just as there was on any large landowner. The 2005 Code of Practice, referred to in the pleadings, was founded upon to establish the care which should be taken by any owner of a non-adopted road. While accepting that the averments about the length of time for which the cover had been missing, and the frequency with which inspections ought to have been undertaken, were to some extent inconsistent and far from ideal, Mr O'Carroll submitted that the pursuer's position was that he was offering to prove that the cover had been missing for more than a year, and that an inspection ought to have been carried out within that period. The averment that the cover had possibly been missing since spring 2006 was superseded by the one that it had been missing since that date. Accordingly, the weaker alternative rule should not be applied. As for the averments preceded by "Believed and averred", there was a logical and proper basis for making those averments. Given that no-one knew the precise date, the date from which the cover had been missing could only ever be the subject of inference. Finally, there was authority for the proposition that an occupier of premises ought to carry out inspections, and not simply wait for defects to be reported to him: Dolan v Burnet (1896) 23 R 550; Matthew v Perthshire Cricket Club (1904) 12 SLT 635.

22

In a brief response to Mr O'Carroll's submissions, Mr McNaughtan argued that the issue of sufficiency of pleadings in personal injury cases had been considered in two Court of Session cases, Higgins v DHL, 2003 SLT 1301 and McGowan v J&R Watson 2007 SC 272. Notwithstanding the need for brief pleadings, fair notice had to be given. Dolan was distinguishable, as was Todd: it was easy to see why British Railways Boards could be baldly averred to be occupiers of a station, but it was not self-evident that the defenders occupied a footway. The defenders could, as local authority, have a duty of care at common law in relation to the pursuer in relation to a private footway: Gloag and Henderson, paragraph 27.17.

23

At the outset, it is worth repeating what I consider to be sole issue I have to decide at this stage, which is whether the pursuer's averments satisfy the requirements of Chapter 36 of the rules such as to entitle him to a proof. This necessitates a consideration of the general approach which requires to be taken to Chapter 36 pleadings. The pursuer's averments must then be scrutinised, in order to ascertain precisely what it is that he offers to prove. The question which then has to be decided, under reference to the legal principles involved, is whether his averments, viewed through the prism of the Chapter 36 approach, (as opposed to the traditional rules of pleading), are sufficient to entitle him to attempt to prove either common law fault or breach of statutory duty. This entails consideration of the sufficiency of both the pursuer's averments in relation to the 1960 Act, and his averments of duty of inspection.

24

First, then, I will consider the approach to pleading in Chapter 36 Cases. Rule 36.B1 states that the initial writ in personal injuries action shall be in Form PI1, and that there should be annexed to it a brief statement containing averments relating only to those facts necessary to establish the claim. It is not unfair to say that the pursuer's pleadings fail to comply with the second of these requirements, although that is doubtless due at least in part to the defenders' repeated complaints of lack of specification. Form PI1 requires a pursuer to aver only six things. These are: his own designation; the defender's designation; averments about jurisdiction; brief facts necessary to establish the claim; brief details of the injuries and heads of claim; and a statement whether the claim is based on fault at common law or breach of statutory duty, and, if the latter, a statement of the provision of enactment.

25

In my view, this requires a fundamentally different approach to be taken to pleading from that traditionally required (although it is not unfair to say that in my experience, many pleaders have failed wholly to embrace the new ethos). Simply having regard to the plain wording of the rule, the requirement is to aver brief facts necessary to establish the claim. Further, it will be noted that detailed averments of duty are not required. Instead, a simple statement as to whether the claim is based on fault at common law or breach of statutory duty along with a provision of the enactment said to have been breached, is all that is required. Inevitably, these requirements will result in shorter and more concise pleadings than before. Indeed, that is one of the objectives of the rules. It is in my view incompatible with these provisions that a defender be permitted to take pleading points based upon a lack of specification, provided that the pursuer has averred brief facts necessary to establish the claim and provided that fair notice of the claim has been given.

26

The cases of Higgins v DHL 2003 SLT 1301 and McGowan v W & JR Watson 2007 SC 272 exemplify the approach taken in the Court of Session. In Higgins, Lady Paton, referring to the equivalent Rule of Court, stated that:

"Whilst it is accepted that the new rules seek to introduce a different pleading culture, and whilst it is accepted that, as a direct result of the rules, concise pleadings (which might fail to satisfy former tests of relevancy and specification) may now satisfy the rules and therefore be deemed suitable for proof... nevertheless rule 43.2(1)(a) requires averments of those facts "necessary to establish the claim".

It is worthy of note that in holding the pursuer's averments in Higgins unsuitable for jury trial, Lady Paton nonetheless allowed a proof. We therefore see in that case not only a judicial acceptance that averments, which might previously have failed to satisfy former tests of relevancy and specification, may now be deemed suitable for proof, but an example of a proof being allowed on averments which might previously have been held to be lacking in specification. The issue in McGowan, a decision of an extra Division of the Inner House, was the extent to which defenders had to make averments in support of a plea of contributory negligence. The Inner House held that the basic requirement was one of fair notice, stating:

"There is, nevertheless, as counsel for the defenders recognised, a requirement, which is imposed on defenders as much as on pursuers, to give at least fair notice of a case which it is proposed to make. Thus defenders could not secure a finding of contributory negligence if they had not at the very least made some reference to it in their pleadings. How much beyond that is required depends very much on the circumstances of each case."

Again, it is worth making the point that the decision in McGowan was reached after proof (which illustrates, if nothing else, that the courts are capable of dealing with specification points at or beyond the proof stage to ensure that no prejudice is suffered by a party due to a failure on the part of his opponent to give fair notice of his case).

27

In light of the plain wording of the provisions of Chapter 36, and the approach taken in the Court of Session, I therefore proceed on the basis that a proof should be allowed even when the pursuer's averments are brief (that being a pleading requirement under the rules) and possibly when the averments would not have been sufficient under traditional rules of pleading, subject only to a requirement that a defender be given fair notice of the case he has to meet; and even then, any defect in the pursuer's pleadings is as likely to be dealt with by disallowing evidence at a proof rather than at any earlier stage. Indeed, as I have already pointed out, there is no mechanism within Chapter 36 for debates in the traditional sense to take place. Put another way, the default position is that actions be decided after proof, that is, after inquiry into the facts.

28

Having set out what I consider to be the approach to be taken to Chapter 36 pleadings, I will now turn to the pursuer's pleadings. By no stretch of the imagination could they be described as a model of brevity or indeed clarity (as Mr O'Carroll, who did not draft them, conceded). They are in parts inconsistent and confusing. Nonetheless, it seems to me that it is possible to discern the following salient facts from the pursuer's averments. Stating them briefly, his case is that on 6 July 2007 he was engaged in his employment as a postman, carrying out a delivery on McNeil Path, Tranent. It is a footway, owned by the defenders, which forms part of an estate comprising houses either owned by the defenders (and occupied by tenants) or previously owned by them. It has not been adopted by the defenders in their capacity as local authority. The defenders are the occupiers of the footway within the meaning of the 1960 Act. Some or all of the residents at McNeil Path are tenants of the defenders' housing department. The housing department is responsible for the maintenance of footpaths at McNeil Path. On the footway was a drain which had had its cover removed and which had become filled with debris, leaving a drop in height of around 2 inches. Having moved aside to let a bicycle pass, the pursuer stepped forward again and in doing so his right foot caught the edge of the drain causing him to slip and suffer injury. The drain cover had been missing for some considerable time. The uncovered gully contained a significant amount of decomposed leaves. Larger leaves would have been prevented from entering had a gully cover been present. Rusting on the frame of the gully was consistent with the absence of the cover from early 2006. The defenders had not inspected the footway for at least the year prior to the accident and indeed had no system of inspection at all until some time after the accident. In article 6 of his pleadings, the pursuer avers that his action proceeds upon a statutory breach of duty, viz section 2 of the Occupiers' Liability (Scotland) Act 1960 and at common law.

29

Although there is reference to breach of common law duty, in fact the pursuer's primary case is predicated on his proving that the defenders were, at the time of the accident, occupiers of the footway within the meaning of the 1960 Act. Indeed, as I understand it, Mr O'Carroll conceded that if the defenders were not shown to be occupiers, then no duty of care could have been incumbent on them and the case must fail. Having said that, Gloag and Henderson, paragraph 27.17, to which Mr McNaughtan referred in his closing submission, at least leaves open the possibility that the defenders could owe the pursuer a duty of care at common law in respect of the footway if it is one which could be described as "public"; and the pursuer's averment that the general public had free and unrestricted access to McNeil Path would appear to bring it into the category of public footpaths (although for the purpose of the Roads (Scotland) Act 1984, a road is a public one only if it has been adopted, which McNeil Path was not). Leaving that point aside for the moment, the first issue at this stage is whether the pursuer's averment that the defenders were the occupiers of the path is sufficiently specific, in the context of the approach to be taken under Chapter 36 pleadings, to allow the pursuer an inquiry into the facts. While that averment was dismissed by Mr McNaughten as being no more than a bare averment, the pursuer's position is that it is fleshed out by the surrounding averments as to the location of the footway and that the defenders are in fact responsible for its maintenance (a fact which the defenders admit).

30

That question then becomes whether the pursuer has given fair notice of his case. Has he sufficiently averred that the defenders were the occupiers of the footway, or must he aver facts and circumstances showing "occupational control", as the defenders contend? This leads on to a consideration of what requires to be proved in order to establish that a person is in occupation of land.

31

While it has been said that occupation or control do not ordinarily follow from the mere fact of ownership, the cases relied upon by the defenders are either cases where there were multiple defenders, each having had a different role in relation to the land or buildings in question, or cases where the owner had clearly relinquished both occupation and control to a third party such as a tenant. So, in Murray v Edinburgh District Council 1981 SLT 253, the defenders were held not to be occupiers because they had installed a tenant. Similarly, in Gallagher v Kleinwort Benson 2003 SCLR 384 the proprietors could clearly be seen to have parted with occupation and control. In cases where land has not been leased, or control of which has not been passed to a third party in some other way, it may well be easier to establish that the owner retains control, even if he does not occupy the land in any physical sense (and it should be borne in mind that section 1 of the 1960 Act defines "occupier" as a person occupying or having control of land). While I would not necessarily go so far as to say that all land must always have an occupier, who, in the absence of any other person having occupation or control, must always be the owner, it is difficult to envisage land which is not occupied by anyone, which would bring to mind the notion of land over which no-one had any control. There is also some suggestion in the reported cases that in some circumstances, ownership may be sufficient to establish occupation. For example, in considering the authorities in Gallagher, Lord Reed referred to the following observation by Lord Jauncey in Pollock v Stead & Simpson Ltd 1980 SLT (Notes) 76 at pages 76-77:

"It is trite law that in matters arising out of the unsafe condition of property there is no liability on the owner thereof ex dominio soli. The test to be applied in fixing liability is to ascertain with whom the possession and control was at the date of the accident. Infeftment per se does not necessarily import occupation and control because the property may be the subject of a lease or indeed may be in the occupation of a purchaser consequent upon the execution of missives and payment of the purchase price..."

The reference to infeftment not necessarily importing occupation and control tends to suggest that in some circumstances, infeftment may suffice, if for example there is no lease and no-one else occupies the premises for some other reason. In Murray, Lord Maxwell said at page 255:

"It is, I think, clear on authority that a person is only in occupation or control [of premises] if he is in a position in law to say who shall and who shall not come on to the premises and in particular a landlord is not in occupation or control of premises which he has let."

Lord Reed then referred to the speech of Lord Denning in Wheat v E Lacon & Co Ltd [1966] AC 552, at page 578, where he said:

"Whenever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an "occupier"...In order to be an "occupier" it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice it that he has some degree of control".

32

Lord Reed concluded (at page 392) that:

"It is apparent from Wheat v Lacon and the other authorities cited to me, that the ownership of premises does not in itself render an owner the 'occupier' of the premises within the meaning of the 1960 Act (subject to possible exceptional circumstances with which I am not in the present case concerned). As Lord Denning explained [in the above passage] the status of occupier is normally dependent on some degree of physical control. This is reflected by the observation made by Viscount Dilhorne in the same case (at p 571): "The respondents, being a limited company, can only occupy premises by their servants." It is also made clear by Lord Pearson's observation, at pp 589-590: "The foundation of occupier's liability is occupational control, ie control associated with and arising from presence in and use of or activity in the premises."

33

Lord Reed concluded, at page 393, that:

"Putting the matter shortly, an occupier's liability is based on his capacity to act so as to make the premises safe."

34

The defenders in the present case argue that the absence of any averments by the pursuer that they were in occupational control renders his pleadings irrelevant. However, it is not easy to reconcile all the dicta referred to above, which must be read in the context of the facts and circumstances of each case. The test formulated by Lord Reed, that an occupier's liability is based on his capacity to act so as to make the premises safe does not necessarily require presence in and use of or activity in the land, since an owner may at least in some circumstances retain that capacity, if the land has not been leased or occupied in a physical sense by a third party. Indeed, Lord Reed himself left open the possibility that in exceptional circumstances ownership may render an owner the occupier of premises within the meaning of the 1960 Act. Equally, I am not sure if Viscount Dilhorne's observation that a limited company (or, one might say, a local authority) can occupy premises only by its servants adds a great deal to the analysis of the present case. It is self evident that the defenders can operate only through its employees but to the extent that it is averred and admitted that its housing department is responsible for maintaining the footway, then it is the employees in that department in whom the control would vest. Accordingly, it is tolerably clear from the pursuer's averments that it is those employees who are said to have had the necessary control.

35

The nature of the land in question must be a relevant circumstance in determining whether, and if so, by whom, land is occupied. It is simply not possible to occupy a footpath in the sense that one can occupy a school, a house or a sports centre. Accordingly, it may be, and I put it no higher at this stage, that ownership of a road or footway in a housing estate, which is not occupied by anyone in the sense that a building is, constitutes one of the exceptional situations envisaged by Lord Reed where ownership is by itself sufficient to render a person an owner. The issue as to whether a road can ever be occupied for the purposes of the 1960 Act is not one on which I was referred to an extensive tract of authority. While Mr O'Carroll suggested rewriting paragraph 27.17 of Gloag & Henderson, I do not see the basis for doing that, nor am I necessarily convinced by the soundness of his logic that because public roads cannot be occupied, private roads can. Nonetheless, it appears to be generally settled that the 1960 Act does not apply to roads which the local authority has a duty to maintain, apparently on the basis that there is a separate scheme for their maintenance. While there is no statutory duty to maintain private footpaths, the defenders may, as they appear to concede, retain some residual common law duty in relation to them. However, I do not see any requirement in this case to reach any decision on the broader point of principle as to whether or not the 1960 Act applies to all private footpaths. What I am concerned with here is the much narrower question of whether a local authority which happens to be the owner of such a footpath can be said to be the occupiers of it for the purposes of the 1960 Act. As has been pointed out, the Act applies to all land and I see no reason in principle why it cannot, at least in some circumstances, apply to a private road, responsibility for which has not been taken over by the local authority as roads authority. Further, in considering whether a footway can be said to be occupied by the owner, then it seems to me to matter not whether the owner is a local authority or some other person.

36

It can also be said that there is no other person who is obviously the occupier of McNeil Path. Moreover, not only does the pursuer aver that the defenders' Housing Department is responsible for the maintenance of the footpaths at McNeil Path, which would appear to satisfy Lord Reed's formulation of the test that the defenders had the capacity to act so as to make the premises safe, but the defenders admit that averment. As owners, and in the absence of any averment that any other person was in occupation, the defenders would on the face of it enjoy the normal incidental right of ownership to say who and who does not come on to the path, another test which has been applied. The extent to which they can in fact do so, standing the averment that the public has unrestricted access, is doubtless something which could be explored in evidence. The pursuer also avers in statement 6, that the defenders now have a system of inspection and repair, a further factor pointing towards their having control.

37

All that it is necessary to decide at this stage is whether the pursuers have sufficiently averred that the defenders were the occupiers for the purposes of the 1960 Act. Although the pursuer's averments are brief, that is a requirement of the rules. It seems to me that the pursuer is averring no more nor less than that the defenders are the occupiers because they own a private footway in a housing estate which it is admittedly their responsibility to maintain and which they do maintain, and there being no other person or body who could be said to be the occupier. Standing the state of the authorities, as discussed above, it seems to me that the pursuer has relevantly, and with sufficient specification averred that the defenders are the occupiers in terms of the 1960 Act. I am therefore unable to hold that the case is bound to fail due to an inability to prove that the defenders were the occupiers, and would in any event be reluctant to dismiss the action at this stage, for a failure to plead sufficiently specifically a duty of care, when the defenders admit that there was a duty of care upon them. As for fair notice, the defenders do have fair notice of the case as I have just expressed it. Of course, if the pursuer attempted to lead evidence at the proof for which there is no notice on record, and which might prejudice the defenders, then the defenders would be entitled to object. However that is a matter which of necessity must be left until the proof. Finally, there does not seem to me to be a great deal of difference in substance between a bald averment that British Railways Board occupies a station and one that a local authority occupies a path in an estate which is comprised of houses many of which they own, or formerly owned, and which they are admittedly liable to maintain. I therefore propose to follow Lord Penrose's robust approach in the unreported case of Todd v British Railways Board and to hold that the pursuer has sufficiently averred that the defenders were the occupiers of the footway such as to entitle him to prove that fact.

38

In considering the pursuer's inspection case, it is necessary not to lose sight of the fact that the principal case against the defenders is predicated not on their status as a local authority, but on their averred status as occupiers of the footpath. Having held that the averments in that regard are sufficient to found an inquiry, the question for decision is whether the averments that the defenders have breached their duty of care under section 2 of the 1960 Act are also sufficient.

39

Section 2 of the 1960 Act provides:

"(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...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."

40

Accordingly, the issue for determination, assuming that the pursuer succeeds in showing at proof that the defenders were indeed the occupiers, will be whether in all the circumstances of the case they took such care as was reasonable to see that he did not suffer injury by reason of any danger on the footpath (for completeness, it is clear from section 1 of the Act that the term "premises" means "land or other premises" and there is no dispute that the Act applies to land as well as to premises in the more traditional sense of that term).

41

I have already alluded to the fact that it is in my view nothing to the point that the defenders happen to be a local authority. Any duties owed by them to the pursuer are said not to arise because they have any duty as local authority but because they have occupation or control of the footpath because of their occupation, and consequent control, of it. I do not see why the case should be approached any differently than it would be had the accident happened on land owed by an individual or a private enterprise. It follows that as the duty on the defenders is said to arise by virtue of their occupation and control of the premises, rather than their status as a local authority, I do not consider that the body of case law which deals with the duties incumbent upon local authorities in relation to gritting or maintenance of public roads, is necessarily of any particular significance. In Stewart, Reparation: Liability for Delict, the author states at paragraph A22-02, that the question of fault in cases of pavement and road maintenance is not normally one for the court. Rather, the conduct of a local authority is judged not by the standard of the reasonable man, but by the practice of other local authorities. However, that discussion is in the context of what duties are incumbent upon local authorities in relation to public roads. Even if it also applies to some private roads (which a local authority has no duty to maintain), there is no reason why it should be taken as applying to private roads of which the local authority is the occupier.

42

Accordingly, I derive little assistance from that body of case law. It seems to me that a wider approach is required, namely, consideration of the duties incumbent upon any occupier of a footway such as this and in particular whether the duty to take reasonable care encompasses a duty to have some system of inspection or whether it is sufficient simply to react to complaints of defects.

43

At this stage, it is necessary to consider the averments of fault. First it is necessary to deal with the two "pleading points" raised by Mr McNaughtan, bearing in mind that this is an action to which the traditional rules of pleading do not apply.

44

I will deal first with the submissions about the averments preceded by the phrase "believed and averred" since the inclusion or otherwise of those averments has a bearing on the weaker alternative argument. I accept Mr O'Carroll's submission that the averments in question do contain statements of inference, based upon the averments which precede them. Whether or not those inferences are justified is a matter of proof. I do not consider that there is any merit in the defender's suggestion that they do not have fair notice of the case against them in this regard. They do have notice that the pursuers will be inviting the court to infer, from the leaves found in the gully and the rusting, that the cover had been missing since spring 2006. Bearing in mind that the pursuer will only have to show that the cover had probably been missing since that date, that is a tenable position for him to take and a position capable of being understood and rebutted by the defenders. It is unrealistic to expect the pursuer to have counted the number of leaves present, or to ordain him to provide further specification of that. It will be open to the defenders to cross-examine the pursuer's expert on the number, size and state of the leaves and to put to the expert the proposition that it is not possible to infer that the leaves had been present since before the autumn of 2006. As for the type of metal from which the cover was constructed, one would assume that was a matter within the defender's knowledge, or at any rate, information which they could ascertain by specification or otherwise. Again, it will be open to them to cross-examine the pursuer's expert and indeed to lead contrary expert evidence of their own. It may be that having heard all the evidence the court will find that the matters relied upon by the pursuer are equally consistent with the cover having been absent from spring or autumn 2006. In that event, the pursuer will have failed to prove that the cover had probably been missing from the earlier date. However, that does not mean that he should be denied the opportunity of proving that. Finally on this point, there was also some force in Mr O'Carroll's submission that the date from which the cover went missing could only ever be decided as a matter of inference. Accordingly, I consider that the use of the phrase "Believed and averred" is not inappropriate and that the averments which follow that phrase are both relevant and specific.

45

Having held that the averment "Believed and averred that the cover had been missing since spring 2006" is relevant, that is really sufficient to dispose of the argument based upon the weaker alternative rule, which I do not consider has any true application. While it is true that read literally the pursuer is offering to prove, in a separate averment, that the cover had been missing since Autumn of 2006 and possibly since the spring of 2006, and that that averment in isolation would possibly be liable to fall foul of the weaker alternative rule, the fact of the matter is that the pursuer has a plain averment that the cover had been missing since spring 2006, which Mr O'Carroll confirmed was his primary position. The defenders therefore have notice that that is the pursuer's case. Although the pleadings leave much to be desired in relation to the conflicting averments which they contain, I do not consider it appropriate to deny the pursuer a proof as a result, when no real prejudice will be sustained by the defenders (although there may be expenses implications, particularly if it turns out that the defenders received clarification of the pursuer's position only at the debate). If need be, and to avoid confusion at the proof, I will exclude from probation those averments in the pursuer's pleadings which are inconsistent with his primary position.

46

So, the pursuer is offering to prove on the one hand that the cover had been missing since spring of 2006, his accident having occurred in July 2007. He also avers, although again his pleadings are not the model of clarity they might be, that the defenders had no system of inspection at all.

47

The adequacy of the pursuer's pleadings is made murkier by the averment that the defenders "could" have instituted a six-monthly system of inspection; and I accept on the authority of cases such as Syme v Scottish Borders Council 2003 SLT 601 that an averment that something "could" have been done is generally insufficient when what is legally significant is what "should" have been done. Nonetheless, I am aware that there is a body of authority to which I was not referred, on slipping cases generally. Perhaps if parties had focussed on the fact that the defenders' liability is said to arise because they were occupiers rather than because they were a local authority, then I might have been referred to that body of authority. However, for present purposes it seems to me sufficient to express the view that if the pursuer succeeded in proving both that the cover had been missing for some 15 months, and that the defenders had no system of inspection whatsoever, the court might be entitled to hold both that the defenders had failed to take reasonable care for the safety of persons entering on to the path and that on a balance of probabilities that failure had led to the accident. I consider that the pursuer's pleadings, viewed liberally, would allow him to make such a case, so that while it would not be enough for him to show merely that the defenders could have inspected, he is entitled to attempt to prove, on his pleadings, that there was no inspection system at all, and that that was negligent. Further, while I have said that I do not consider the gritting cases to be particularly relevant, it is worth pointing out that those cases by and large involve the alleged failure of the local authority to treat a road or pavement within a relatively short period of time, generally because other roads or pavements had been given a higher priority. In that context, it is not sufficient to say that a road or pavement could have been treated sooner than it was. In the present case, however, the pursuer avers not only that the defenders could have inspected the footway, but that they had no system for doing so. An averment of absence of system in my view takes the case outwith the ambit of the "gritting" cases, and such an averment, if proved, could well lead to a finding of negligence. There is some echo of this in the submission of counsel for the defenders in Grant v Lothian Regional Council 1988 SLT 533, recorded at page 354 D to E, that in that case the pursuer had not shown any absence of system or inadequacy of system, leading to an inference that if there had been such absence or inadequacy, a finding of negligence might have followed. Similarly, in Gibson v Strathclyde Regional Council 1993 SLT 1243, Lord Weir said, at page 1248A:

"I do not rule out the possibility that in some situations the failure to adopt measures, even in the absence of practice, may give rise to an inference of negligence."

While he did go on to say that the circumstances must be special, exceptional and obvious, there is nonetheless some recognition that failure to adopt any measures may in itself, in appropriate circumstances, be negligent. In the present case, the defenders criticised the purser for a failure to plead the practice of other local authorities or knowledge of previous complaints, but I do not see that there is any absolute requirement to make such averments, these simply being examples of other averments which can also lead to a finding of negligence.

48

Further support for the proposition that a failure by an occupier to have any system of inspection is found in Dolan v Burnet (1896) 23R 550 in which it was held that a shop-owner was at fault in not having inspected his premises, even though he had no reason to suspect any defect.

49

Finally, if paragraph 27.17 of Gloag and Henderson can be read as authority for the proposition that the defenders have a duty of care in relation to unadopted roads over which the public have a right of access, as here, then that would suggest that there was a duty of inspection incumbent upon the defenders.

50

At this stage, of course, I do not require to decide whether there was a duty of inspection in the absence of any complaints, simply whether the pursuer is bound to fail to prove that there was such a duty. In light of the foregoing authorities, in my view it cannot be said that he is bound to fail, if for no reason other than that a case that the defenders' failure to have any system of inspection was negligent and caused his accident may succeed after proof.

51

In conclusion, and bearing in mind that there is no requirement under Chapter 36 to make detailed averments of duty, I find that the pursuer has averred a sufficiently relevant and precise case in terms of Chapter 36 to entitle him to a proof under that Chapter. I will add only that, stepping back from the detailed arguments which were presented, the real issue between the parties is, it seems to me, whether the failure of the defenders to have any system of inspection whatsoever, was negligent or not; and, if it was negligent, whether that caused the pursuer's accident. It seems to me that is a relatively straightforward issue which the pursuer is entitled to have tried. Whatever the position might have been under traditional pleading rules, I do not consider it appropriate for the defenders to deny the pursuer the opportunity of a proof on the basis that certain facts or duties might have been specified with greater precision. That would be a particularly unsatisfactory outcome given that the defenders admit that they owed the pursuer a duty of care. Similarly, and following the example of Lady Paton in Higgins, I propose (subject to deleting averments upon which the pursuer is no longer founding and which are inconsistent with his primary case) to allow a proof at large, rather than become embroiled in an exercise of deleting certain averments for lack of specification. I am keen to discourage any such approach by defenders, which runs counter both to the spirit and the letter of Chapter 36.

52

Rather than assign a date for the proof in this interlocutor I have decided to put the case out for a procedural hearing for a convenient date to be fixed, and also to enable parties to address me further as to which parts of the pursuer's pleadings might usefully be culled so that the case proceeds to proof on averments which are not contradictory. That hearing will take place on 5 December 2011 and will also be a hearing on expenses.