Scottish Sheriff Court Decisions

2015SCLER22

 

SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT LERWICK

Judgment

of

Sheriff Philip Mann

In Causa

DION WILKINSON residing at Virkie, Shetland

PURSUER

against

HJALTLAND HOUSING ASSOCIATION LIMITED, a Company Incorporated under the Companies Acts and having a place of business at 2 Harbour Street, Lerwick, Shetland, ZE1 0LR

DEFENDERS

Act: Mr Godden, Messrs Blackadders, Edinburgh

Alt: Miss Stewart, Messrs Simpson and Marwick, Aberdeen

Lerwick 09 March 2015

The sheriff, having resumed consideration of the cause finds in fact:

1.         The pursuer is Dion Wilkinson.  She resides at the address in the instance.  She is a 36 year old service manager for a voluntary organisation.  On 30 November 2010 she was employed by Shetland Islands Council as a social care worker.

2.         The defenders are Hjaltland Housing Association Limited, having a place of business as narrated in the instance.

3.         The defenders are the landlords of the development known as Arheim, Lerwick, hereafter referred to as “Arheim”.

4.         Arheim comprises a number of dwellinghouses which are let out by the defenders to tenants who have social care needs.

5.         The social care needs of the defenders’ tenants are provided by Shetland Islands Council.

6.         Arheim is part of an independent living project which involves both the defenders and Shetland Islands Council.

7.         The defenders thus knew from the outset that Arheim would be a place of work for employees of Shetland Islands Council.

8.         Part of the duties of the pursuer’s employment on 30 November 2010 was to provide, on behalf of her employers, the social care needs of the defenders’ tenants at Arheim.

9.         Arheim includes a unit known as the Core House, which is an administrative office used by the pursuer’s employers, and which was used by the pursuer on 30 November 2010, in connection with the provision of those social care needs.

10.       Within the development at Arheim there is a courtyard around which the residential units and the Core House are clustered.  Within the courtyard there are pathways leading to and from the various residential units and the Core House.  The remainder of the courtyard is set aside as decorative areas for, inter alia, the erection and maintenance thereon of various features.

11.       One of those erections was a water feature which comprised a globe around which water was continuously pumped from a sump which extended below ground level under the globe to a depth of approximately nine inches.  The pump was powered by electricity.

12.       The development of the courtyard was a joint project between Shetland Islands Council, the Defenders and an organisation known as Shetland Arts, in consultation with the tenants at Arheim.

13.       The defenders, as landlords, had control of, and responsibility for, the layout, maintenance and repair of the courtyard and its features.  They employed a handyman, Edward Low, to carry out works of maintenance.

14.       The pathways within the courtyard were constructed of block paving.  Other areas of the courtyard were covered in stone chips.  The edges of the pathways were marked with small lamp posts.

15.       At some point in the early morning of 30 November 2010, or on the day before, the globe of the water feature was dislodged by strong winds and was being blown around, still attached to its electrical wires.  The defenders were alerted to this by the pursuer’s employers.

16.       On 30 November 2010 the defenders, without having themselves inspected the locus, issued a repair order to a company called E & H Building Contractors Limited.  The repair order instructed them “to make safe water feature provided by Social Work”.  That company attended and removed the globe.  They did not fill in the hole which formed the sump.  They did not erect any barrier around the hole or any sign to warn of its existence.

17.       The defenders received a report from the contractors that the work instructed by the repair order had been carried out but took no steps to satisfy themselves as to what work the contractors had actually carried out.

18.       Shortly before 1300 hours on 30 November 2010 the pursuer, in the course of her employment, was making her way across the courtyard from one residential unit to another.

19.       At that time a snow storm was in progress.  Visibility was poor.  The pursuer had to shield her face against the cold and wet with the collar of her coat.

20.       At that time there had been heavy snow which lay to such a depth on the ground as to obscure the existence of the hole.  The whole courtyard, including the pathways, was covered with snow, although the defenders’ handyman had cleared snow at Arheim for an hour on 29 November 2010 and for half an hour at some point on 30 November 2010.

21.       The pursuer did not stick to the pathways.  She deliberately walked on the gravelled areas of the courtyard as she expected that to give her more grip underfoot than if she had walked on the pathways.  She knew that she was walking on the gravel rather than the pathways because she could feel the gravel under her feet.

22.       Persons having occasion to cross the courtyard generally did not stick to the pathways.

23.       The pursuer took a short cut which took her across the area where the water feature had been.  She stepped into the hole left by the removal of the feature and, as a result, she fell and sustained an injury.

24.       As at 30 November 2010 the pursuer had not visited Arheim for several months.  On that date she was not aware that the water feature had been there but had been removed.

25.       The pursuer’s accident was reported to her employers who, in turn, reported it to the defenders.

26.       The defenders instructed E & H Building Contractors Limited to attend again at the courtyard to make the hole safe.  In the meantime, the pursuer’s employers instructed their own employees to fill in the hole as a temporary safety measure.

27.       A wooden board was placed over the hole. A warning cone which bore the name of the pursuer’s employers was placed upon the board.

28.       Soon after the pursuer’s accident the pathways were cleared of snow.

29.       E & H Building Contractors Limited were regarded by the defenders as reliable contractors.

Finds in fact and law:

1.         In relation to the pursuer on 30 November 2010 Arheim was a workplace, provided by the defenders, as defined by regulation 2(1) of the Workplace (Health, Safety and Welfare) Regulations 1992.

2.         The courtyard was part of the workplace.

3.         The location where the accident occurred was part of a traffic route within the workplace.

4.         The defenders had control of the workplace, including the traffic route where the accident occurred.

5.         The control which the defenders had of the workplace was in connection with the carrying on of their undertaking to provide accommodation to persons having social care needs that were serviced by Shetland Islands Council.

6.         The requirements of regulation 12(2)(a) of the Workplace (Health, Safety and Welfare) Regulations 1992 relate to a matter which was within the control of the defenders, namely the maintenance of the surface of the traffic route within the workplace.

7.         In terms of the Occupiers Liability (Scotland) Act 1960 the defenders were occupiers of, and had control of, the premises comprising the development, including the courtyard and its traffic routes.

8.         The pursuer’s accident was due to the state of the premises.

Finds in law:

1.         The defenders had a duty in terms of regulation 12(2)(a) of the Workplace (Health, Safety and Welfare) Regulations 1992, as applied by regulation 4(2) thereof, to ensure that the floor, or surface of the traffic route, should have no hole or slope, or be uneven or slippery so as, in each case, to expose the pursuer to a risk to her health or safety.  The defenders failed in that duty and thus caused the pursuer’s accident on 30 November 2010.  They are thus liable to make reparation to the pursuer.

2.         The defenders had a duty under regulation 2(1) of the Occupiers Liability (Scotland) Act 1960 to take such care as in all the circumstances of the case was reasonable to see that the pursuer would not suffer injury or damage by reason of the danger posed by the state of the premises.  The defenders failed in that duty and thus caused the pursuer’s accident on 30 November 2010.  They are thus liable to make reparation to the pursuer.

3.         The award of damages, if any, made to the pursuer does not fall to be reduced to reflect any element of contributory negligence.

Therefore, finds the defenders liable to make reparation to the pursuer in respect of the injuries sustained by her in the accident on 30 November 2010; appoints the cause to a hearing within the Sheriff Court, King Erik Street, Lerwick on 17 April 2015 at 10:00am to identify further procedure; meantime, reserves the question of expenses of the proof on 24 November 2014.

 

 

 

Sheriff Philip Mann

Note

1.         Introduction

1.1       On 30 November 2010 the pursuer was walking across a courtyard within the development known as Arheim, Lerwick when she had an accident.  In this action she is suing the defenders for reparation for injuries sustained in that accident.  On record she bases her case on fault at common law and on Regulations 4(2) and 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 and on the Occupiers Liability (Scotland) Act 1960.

1.2       Regulation 2(1) of the Workplace (Health, Safety and Welfare) Regulations 1992 (hereafter referred to as “the 1992 regulations”) defines workplace as:

 “any premises or part of premises which are not domestic premises and are made available to any person as a place of work, and includes—

(a) any place within the premises to which such person has access while at work; and

(b) any room, lobby, corridor, staircase, road or other place used as a means of access to or egress from that place of work or where facilities are provided for use in connection with the place of work other than a public road.”

1.3       Regulation 4(2) of the 1992 regulations provides:

“(2) Subject to paragraph (4) [which is not applicable to this case], every person who has, to any extent, control of a workplace, modification, extension or conversion shall ensure that such workplace, modification, extension or conversion complies with any requirement of these Regulations which –

 (a) applies to that workplace or, as the case may be, to the workplace which contains that modification, extension or conversion;

(b) is in force in respect of the workplace, modification, extension, or conversion; and

(c) relates to matters within that person's control.”

1.4       Regulation 4(3) of the 1992 regulations provides:

“Any reference in this regulation to a person having control of any workplace, modification, extension or conversion is a reference to a person having control of the workplace, modification, extension or conversion in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not).”

1.5       Regulation 12 of the 1992 regulations, so far as relevant, is in the following terms:

“(1) Every floor in a workplace and the surface of every traffic route in a workplace shall be of a construction such that the floor or surface of the traffic route is suitable for the purpose for which it is used.

(2) Without prejudice to the generality of paragraph (1), the requirements in that paragraph shall include requirements that -

(a) the floor, or surface of the traffic route, shall have no hole or slope, or be uneven or slippery so as, in each case, to expose any person to a risk to his health or safety; and

(b) …….

(3) So far as is reasonably practicable, every floor in a workplace and the surface of every traffic route in a workplace shall be kept free from obstructions and from any article or substance which may cause a person to slip, trip or fall.

(4) In considering whether for the purposes of paragraph (2)(a) a hole or slope exposes any person to a risk to his health or safety—

(a) no account shall be taken of a hole where adequate measures have been taken to prevent a person falling; and

(b) …….”

1.6       Section 2(1) of the Occupiers Liability (Scotland) Act 1960, hereafter referred to as “the 1960 Act”, is in the following terms:

“(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.”

1.7       On 24 November 2014 I heard a proof restricted to the question of liability.  The pursuer was represented by Mr Godden.  The defenders were represented by Miss Stewart.

2.         The Evidence

2.1       Evidence for the pursuer was given by the pursuer and by Karen Erasmuson who, as at the date of the accident, was a senior social care worker in the employment of Shetland Islands Council.  The pursuer described the accident whilst Karen Erasmuson gave evidence about the report of the accident to her and the instructions she gave for action to be taken to have the hole filled in.

2.2       Evidence for the defenders was given by their housing manager Fiona Robertson and by their estates support worker Edward Low.  Fiona Robertson spoke about the relationship between the defenders and Shetland Islands Council in relation to the provision of care services to the defenders’ tenants at Arheim.  She spoke of the instructions given to E & H Building Contractors Limited by way of a work order for the repair of the damaged water feature and what would have been expected of them in regard to those instructions.  Edward Low spoke about the maintenance work, including snow clearing, that he carried out at Arheim and other places in the course of his employment with the defenders.

2.3       There was no dispute as to how the accident happened.

2.4       The only factual dispute of any note, although not of any consequence, was as to when the water feature was damaged.  On record and in her evidence the pursuer’s position was that it had been damaged about a week before her accident.  She had no direct knowledge of this and was relying on information relayed to her by someone else.  On record, the defenders’ position was that they had received notification during the morning of 30 November 2010 that the water feature was broken.  Fiona Robertson was not entirely sure when the damage had occurred but going by the contents of the repair order, number 6/1/3 of process, her evidence was that it had occurred about 30 November 2010.  I preferred the evidence of Fiona Robertson supported by the work order.  However, there was no dispute that the damage had occurred and that works, ostensibly to make the water feature safe, had been carried out before the pursuer’s accident.

2.5       Apart from the foregoing, no issues of credibility and reliability arose.

3.         Submissions

3.1       Both parties responded to my request for written submissions, for which I am grateful.  The submissions were full, extensive and helpful.  They are in process.

            The Workplace (Health, Safety and Welfare) Regulations 1992.

3.2       In respect of the 1992 regulations the pursuer submitted that it was clear that the courtyard within which the pursuer’s accident happened was a workplace in relation to the pursuer.  Part of the purpose of the development was to house people who needed the services of the council social workers.  The defenders intended the council to use it as a workplace, with the core house as a base for their social work operations.  They knew that council employees did use the premises for that very purpose.

3.3       The place where the accident happened was a traffic route within that workplace.  It was part of a courtyard where pedestrians routinely did not stick to the designated footpaths. The situation in this case was similar to the case of Caerphilly County Burgh Council v Button, [2010] EWCA CIV 1311 where a verge adjacent to a car park was used by employees to get from the car park to a building and was held to be part of a traffic route.

3.4       The courtyard could not be described as domestic premises in relation to the pursuer whilst she was at work.

3.5       The defenders had control of the workplace, they being the owners and landlords of it and they being the ones who had the responsibility to instruct repairs to the damaged water feature, the precise matter which gave rise to the pursuer’s accident.

3.6       Thus, the defenders had the responsibility in terms of the 1992 regulations to ensure that the traffic route did not have a hole in it which could compromise the health and safety of the pursuer.

3.7       Regulation 12(2) of the 1992 regulations, as applied by regulation 4(2), imposed strict liability on the defenders.  They could not avoid liability by pleading that they had entrusted another person to take action to make the traffic route safe.  There was no defence of reasonable practicability or the like.  There was support for this in the case of McMillan v Wimpey Offshore Engineers and Constructors Ltd 1991 SLT 51, a case involving the Offshore Installations (Operational Safety, Health and Welfare) Regulations 1976.  Those regulations imposed a duty on employers to ensure that employees complied with certain duties.  One of those duties was not to do anything likely to endanger the safety or health of themselves or other persons.  On the basis of those regulations the employers were found liable to an employee who had been assaulted by another employee, their duty being absolute and not subject to a defence of reasonable practicability.

3.8       The defenders suggested that as the locus was on a decorative, stone chipped area of the courtyard situated between the doors of two residential properties the locus comprised part of domestic premises and was thus not covered by the regulations.

3.9       They submitted that if the locus was covered by the 1992 regulations then it was not provided by the defenders to the pursuer as a workplace.  Rather, the defenders had let out the Core House to the pursuer’s employers who, in turn, provided it to the pursuer as a place of work.  In this connection the defenders referred to the case of Brown v East Lothian Council [2013] CSOH 52 where the defenders were found not liable under the regulations on the basis that they did not know when letting the premises to the pursuer that the pursuer intended to use them as a place of work rather than a place of recreation.  In these circumstances the duties under the 1992 regulations were owed to the pursuer by her employers not by the defenders.

3.10      The defenders maintained that the pursuer was more akin to a visitor or member of the public.  They maintained that having regard to the locus as a courtyard giving access to residential properties, it would seem odd that someone who happened to be at work (e.g. a police officer or pizza delivery person) would enjoy greater protection than a friend visiting one of the residents.  Referring back to the Brown case the fact that a person happened to be at work was not sufficient to engage the regulations.

3.11      Dealing with the question whether or not the locus was a traffic route the defenders sought to distinguish the case of Caerphilly County Burgh Council v Button on the ground that in that case the respondents were the claimant’s employers which was not the case here.  In this case, said the defenders, the defenders, not being the pursuer’s employers, would have no way of knowing whether or not employees of Shetland Islands Council habitually used a particular short cut such that it might become a traffic route. Nor would the defenders have the requisite control to give instructions to employees of Shetland Islands Council that they should or should not use a particular route.

3.12      The defenders went on to suggest, under reference to the case of King v RCO Supports Services Ltd & Another [2000] EWCA Civ 314, that the defenders did not have control of the matter which gave rise to the accident, the matter, they said, being the use of the decorative area as some sort of traffic route.

3.13      The defenders suggested that the hole left by the removal of the water feature could be seen as a transient defect.  Under reference to the case of Ellis v Bristol City Council [2007] EWCA Civ 685, the defenders suggested that they had no obligation under regulation 12(2) of the 1992 regulations in respect of such a defect.  Their obligation would truly have been under regulation 12(3) of the regulations, an obligation which does not impose strict liability to ensure but rather a liability to ensure so far as is reasonably practicable.

            The Occupiers Liability (Scotland) Act 1960

3.14      The pursuer submitted that the defenders were the landlords of the development at Arheim.  They were the occupiers and persons having control of the premises where the accident happened.  Accordingly, they had a duty in terms of the 1960 Act to take reasonable care to see that a person such as the pursuer entering the premises would not suffer damage or injury as a result of a danger that was due to the state of the premises.

3.15      Although instructing reputable tradesmen to remedy a dangerous situation might amount to taking reasonable care the defenders were liable on the basis that they had given instructions to their contractors that were ambiguous and incomplete.  In addition, the defenders had not taken any steps to satisfy themselves that the work had been properly done.  If the accident had occurred in England the defenders would have been liable under section 2(4)(b) of the Occupiers Liability Act 1957 which provides:

“where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.”

There was no reason why the position should be any different in Scotland despite the fact that there was no similar provision in the 1960 Act.

3.16      Further, the defenders would have been liable on the principle of vicarious liability if the incompetent repair had been carried out by one of their own employees.  It was hard to see why they should escape liability just because they had used an independent contractor.  In this connection the pursuer referred to the case of Woodland v Essex C.C. [2014] A.C.537 where Baroness Hale said on the final page:

“Such arguments scarcely apply in today's world where large organisations may well outsource their responsibilities to much poorer and un- or under-insured contractors.”

3.17      The defenders referred to the case of McGlone v British Railways Board 1966 S.C. (HL) 1 for the classic statement on occupiers’ liability.  There, Lord Guest at page 15 stressed that the duty was not to ensure “the entrant’s” safety but only to show reasonable care, what being reasonable being dependent on all the circumstances of the case.  Lord Pearce at page 17 said that if a person had used sufficient care before the accident, he did not become negligent because in retrospect one saw that he could easily have done even better.

3.18      The defenders referred to the case of Wallace v Glasgow District Council 1985 S.L.T. 23 where at page 25 it was said:

“In our view these terms [of section 2(1)] clearly set out that the standard of care is one of reasonable care in all the circumstances and desiderates that the danger is something which arises from the state of the premises or from something which the occupier did or failed to do. There is no suggestion that the duty simply arises from the fact of “occupancy” and clearly, on the standard of reasonable care in all the circumstances, the pursuer has to aver and prove that the danger was one of which the occupier knew or ought to have been aware, and why, and what steps were open to the occupier but not taken by him to remove the danger before the accident occurred.”

3.19      The defenders contended that as soon as they were made aware of a problem with the globe, they took the step of instructing competent contractors to carry out a repair.  The defenders had no reasonable way of knowing, before the pursuer had her accident, that a hole had been left behind by the contractors.  They submitted that the defenders had taken all the reasonable care they could have done.  The defenders had fulfilled any duties that they owed the pursuer, as occupiers or at common law, by the timely instruction of competent contractors.

            Contributory Negligence

3.20      The pursuer submitted that there was no justification for a finding of contributory negligence.  The pursuer had been taking a shortcut for which she could not be criticised and the danger was not obvious to her.  In effect the pursuer submitted that in the absence of any reason to suspect that anything was amiss there was no reason for the pursuer to take any special precautions for her own safety.  Reference was made to the case of Williams v Devon County Council [2003] EWCA CIV 365 where Latham L J said:

“Whilst it is easy to say that she should have looked where she was going, that ignores the everyday realities of her working environment.  In the absence of any reason for her to suspect that something might have been left across her access to the hall, we consider that she was entitled to assume the hall had been cleared properly.  To say that she should have nonetheless looked to see whether or not something might have been left across the doorway was a counsel of perfection which should not have resulted in the finding of contributory negligence.”

3.21      The defenders maintained that there should be a finding of contributory negligence on the basis that the pursuer took a shortcut rather than sticking to the designated pathways, that the defenders had no means of knowing or controlling where the employees of Shetland Islands Council might walk and that the pursuer had conceded that if she had stuck to the pathways her accident would not have happened.

            General

3.22      Both parties drew my attention to cases which I have not referred to here on the basis that I did not find them to be particularly helpful.  Similarly, both parties made submissions which I have not referred to on the basis that they were either not particularly relevant or not in any way persuasive.  However, I assure parties that I did read with care and interest all that was said in the written submissions.

4.         Discussion and Decision

            The Workplace (Health, Safety and Welfare) Regulations 1992

4.1       The defenders let the Core House to the pursuer’s employers.  They knew the purpose for which it was let to them.  They let out individual units as residential accommodation to tenants who, to their knowledge, required social support.  They knew that that support was provided by the pursuer’s employer.  It is a reasonable inference that they knew that that employer was not a natural person and that the support could only be provided through employees such as the pursuer.  It is a reasonable inference that they knew that employees such as the pursuer could only provide support for their tenants by visiting those tenants in their own homes.  It is a reasonable inference that they knew that employees such as the pursuer could only visit the tenants in their own homes if they could get access to those homes.  It is a reasonable inference that they knew that the courtyard was a means of access for that purpose.  I am in no doubt that in these circumstances, whatever the position with regard to the Core House, the courtyard which formed part of the development was provided by the defenders to employees of Shetland Islands Council, such as the pursuer, as a place of work.

4.2       The defenders provided the place of work in order that their tenants could benefit from the social support available to them through employees of the council such as the pursuer.  The position would have been different if the defenders had let the development to the council who had, in turn, let out the individual residential units to persons to whom they then provided social care.  In such a situation it would have been the council, not the defenders, who would have provided the place of work to employees such as the pursuer.

4.3       This case is distinguishable from the case of Brown v East Lothian Council where it was held that the premises in question were not a workplace on the basis that the defenders did not know that the premises which they had hired to the pursuer were going to be used by the pursuer as her place of work rather than as a place of recreation.  The courtyard where the accident occurred was thus a workplace within the meaning of the regulations.

4.4       I am satisfied that the premises are not excluded from being a workplace by virtue of being domestic premises.  Whatever the status of the premises in relation to the defenders’ tenants, they could not, in my view, be described as domestic premises in relation to the pursuer whilst she was there in the course of her employment.  These were premises where she was expected to work on a consistent and regular basis. The position of the pursuer falls to be distinguished from that of a policeman or a pizza delivery person who might incidentally have occasion to visit the premises in the course of their employment without any knowledge or expectation on the part of the defenders.  In respect of such persons the defenders would not have provided the premises as a workplace.

4.5       I now turn to the question whether or not that part of the courtyard where the accident occurred was part of a traffic route within the pursuer’s workplace.  It is true that there were pathways set out within the courtyard but there was no evidence that any indication was given anywhere within the courtyard, or that any instruction was given, that there was a prohibition against walking upon any part of the courtyard that was not a pathway.  It was entirely foreseeable that the area where the accident occurred would be used as a shortcut, as in fact it was.  It is within ordinary human knowledge and experience that people will avail themselves of shortcuts, especially where there is no prohibition against their use.

4.6       There was nothing inherently dangerous about using the shortcut.  What made it dangerous was the presence of the hole that was not designed to be there and whose existence was neither obvious nor highlighted.  If everything had been as it should have been with the water feature in place I cannot envisage that anyone would have taken exception to the pursuer’s use of the shortcut on the grounds of a risk to her safety.  Anyone having a need to move from one residential unit to another within the development was at liberty for that purpose to use any part of the courtyard that was free from obvious obstruction.  There was unchallenged evidence from the pursuer that persons using the courtyard generally did not stick to the pathways.  I am satisfied that in these circumstances the place where the accident happened, at the time when it happened, was part of a traffic route within the workplace even though the solum of the water feature could not have been part of a traffic route if the feature had been in place as it should have been.  I do not see that there is any distinction to be drawn between this case and the case of Caerphilly County Burgh Council v Button on account of whether or not the person upon whom the obligation lay was the employer of the claimant.

4.7       The duty under the 1992 regulations is owed by the person having control of the workplace.  The defenders maintain that it was the pursuer’s employers rather than themselves who had control of the place where the accident happened.  This, they said, was evidenced by the fact that it was the pursuer’s employers who rendered the place safe after the accident by instructing another of their employees to fill the hole with sand.  It seems to me that the defenders’ argument on this point is misconceived.  The pursuer’s employers took steps to make the place safe but that does not mean that they had control of the workplace in the sense required by the regulations.  The actions of the pursuer’s employers were of a kind that might have been expected of any party who, knowing that there had been an accident, was in a position to instruct that temporary emergency measures be taken to remove the danger.  Just because the pursuer’s employers acted as they did, that did not put them in control of the workplace, nor does the fact that they acted as they did amount to evidence that they had any control of the workplace before the accident.

4.8       The defenders were the owners of the property which was the workplace.  They were the landlords of it.  There was evidence that the development was a joint venture involving, inter alia, the defenders and Shetland Islands Council.  But there was no suggestion in the evidence that anyone other than the defenders had the right to the final say as to how the courtyard was to be laid out or as to what landscaping features it might have or what decorative objects might be laid out upon it for the benefit of their tenants or otherwise.  It is consistent with this that it was the defenders who instructed the independent contractors to render the water feature safe upon the problem having been reported to them by Shetland Islands Council.

4.9       There was no suggestion in the evidence that anyone other than the defenders, as owners of the courtyard, had the right to determine who might be allowed to use it as an access or for any other purpose.  The defenders, in my view, had the right to prohibit the use of the decorative areas of the courtyard, such as the locus where the accident happened, as a traffic route.  They did not do so.  It was reasonably foreseeable that persons such as the pursuer would use the shortcut that she did as a traffic route in the course of her known employment within the development.  The defenders clearly believed that it was necessary to render the damaged water feature safe.  That can only have been because they anticipated that someone might come into contact with it.  The only way that a person could have come into contact with the water feature was if that person came to be in close proximity to it, such as in the course of using that area of the courtyard as a traffic route.

4.10      It is a reasonable inference from the evidence that it was the defenders who possessed the rights that I have described.  In my view it is the possession of those rights which gave the defenders the control of the courtyard, including the use made of it as a traffic route, in the sense required by the regulations.   The control which the defenders had over the workplace was in connection with the carrying on of their undertaking to provide accommodation to persons having social care needs that were to be serviced by Shetland Islands Council.  That satisfies the test set out in regulation 4(3) of the 1992 regulations.

4.11      With that control came the responsibility under regulation 4(2) to ensure that the courtyard, and its layout and everything upon it satisfied the requirements of regulation 12(2)(a), those requirements being requirements relating to the matter which was in the control of the defenders.  In this respect the defenders’ argument on the basis of the case of King v RCO Supports Services Ltd & Another is misconceived because the critical issue for the application of the regulations is not the use made of the workplace but whether or not, in terms of regulation 4(2)(c), the requirements of regulation 12(2)(a) related to a matter within the control of the defenders.  The defenders were in control of the maintenance of the courtyard and whether or not there was a hole in the traffic route forming part of the workplace.  The regulations, therefore, apply.

4.12      For completeness I should say that the defenders pointed out that regulation 12 of the 1992 regulations does not use the word “ensure”.  That is true but there is no point to be made of that because the duty is imposed by regulation 4(2) which does use the word “ensure”.

4.13      The use of the word “ensure” denotes strict liability, as was decided in the case of McMillan v Wimpey Offshore Engineers and Constructors Ltd.  The defenders cannot escape liability by pleading that they entrusted a specific piece of work to an independent contractor.  No doubt an independent contractor might owe a duty of care to the defenders in carrying out the task entrusted to them but that does not serve to relieve the defenders of the duty to ensure compliance with the regulations for the safety of those for whom the premises were a workplace.  The contractors were acting on the instructions of the defenders.  They were the defenders’ agents.  The defenders are liable for the failures of the contractors as if the failures were their own.  The defenders failed to ensure that the contractors carried out the task so as to ensure compliance with the regulation.  That amounts to a failure on the part of the defenders to ensure compliance with the regulation.

4.14      I do not accept the defenders’ contention that the defect which arose as a result of the damage to the water feature in this case was transient.  The existence of the hole cannot be equated to, say, a puddle of water that might evaporate or drain away without human intervention.  The hole was there to stay unless and until someone took action to fill it in.  In any event, it is a mandatory requirement of regulation 12(2)(a) of the 1992 regulations that a traffic route shall have no hole.

4.15      For all of the foregoing reasons I am satisfied that the pursuer has proved a case under regulations 4(2) and 12(2)(a) of the 1992 regulations.

            The Occupiers Liability (Scotland) Act 1960

4.16      I am also satisfied that the pursuer’s case under the 1960 Act is made out.  The defenders, by virtue of their status as Landlord of the development and by virtue of the fact that they retained control over the courtyard as more fully explained in the preceding paragraphs, were the occupiers of the courtyard.  They thus had the duty imposed by section 2(1) of the Act.  That duty was to exercise reasonable care.  In my view they did not do so.

4.17      The defenders knew that the water feature had been damaged.  On the evidence, the defenders contented themselves by instructing contractors to “make it safe”.  In short, they trusted the contractors to do what was necessary.  I have noted the terms of section 2(4)(b) of the Occupiers Liability Act 1957 referred to by the pursuer but I am reluctant to read into the Occupiers Liability (Scotland) Act 1960, a later Act it has to be noted, a provision which is not there.  And so I think that it is neither here nor there whether or not the defenders themselves made an inspection to determine what might be required in order to make the situation safe, though they did not; or whether or not they required the contractors to report back to them on what work was required or what work was actually carried out, which they did not; or whether or not they inspected the locus after the contractors had done their work, which they did not.  The contractors were the agents of the defenders.  In my view, the defenders are liable for the actions of their agents as if those actions were their own or, more precisely, those of their own employees.  There is some support for this view in what Lady Hale said in the case of Woodland v Essex C.C., although it is not exactly in point.  But, in any event, I was not persuaded by anything said by the defenders in their submissions that there is any basis for holding that the defenders can escape liability on account of having entrusted the work to independent contractors, whether they were regarded as being generally reliable or not.

4.18      It is a reasonable inference from the evidence that the defenders’ agents must have known about the existence of the hole.  In my view, it was reasonably foreseeable that due to the weather conditions the presence of any hole in the ground would not be obvious.  It was reasonably foreseeable that a pedestrian such as the pursuer might choose to take a short cut which would bring her into contact with the hole.  The obvious precautions which the defenders ought to have taken, directly or through their agents, were to cover the hole or fence it off and to give warning by erection of a sign or placement of a warning cone or the like, as in fact was done after the accident.  The defenders did none of these things.  The precautions that I have mentioned did not need the benefit of hindsight to make them obvious and so this was not a situation such as was postulated in the case of McGlone v British Railways Board.  Rather, this is a case that meets the test set out in the case of Wallace v Glasgow District Council referred to in paragraph 3.18 hereof.

4.19      For all of the foregoing reasons I am satisfied that the defenders are liable to the pursuer under the 1960 Act.

            The Common Law

4.20      The pursuer in her written submissions asks that I find that she has suffered loss, injury and damage “as a result of the defenders’ fault and negligence, et separatim breach of statutory duty”.  This must be a reference, inter alia, to her common law case.  However, the pursuer’s submissions make no further reference to the common law case and she says nothing on the basis of which I could hold that the case at common law has been made out.  I have to take it that the pursuer does not insist upon that case and I make no further reference to it.

            Contributory Negligence

4.21      In my view, no deduction falls to be made for contributory negligence.  The pursuer was taking a shortcut.  This was not inherently dangerous.  It was dangerous only because of the existence of a hole which should not have been there.  Whether or not the pursuer ought to have known, or remembered, that the water feature was once there, there was no reason for her to think that its removal had left a hole in the ground.  The existence of the hole was not obvious to the pursuer thus she had no reason to take care for her own safety on account of it.  This echoes the case of Williams v Devon County Council referred to by the pursuer.

5.         Further Procedure

5.1       This judgment follows upon a restricted proof concerned only with the question of liability.  There will need to be further procedure to determine the level of damages, if any.  I have fixed a hearing to determine what that further procedure should be.

6.         Expenses

6.1       I have also reserved the question of expenses for discussion at the next calling of the case.