Scottish Sheriff Court Decisions

SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

 

[2017] SC GLA 1

PD241/13

NOTE

 

by

 

SHERIFF A Y ANWAR

 

in the cause

 

DAVID RULE

PURSUER

 

against

 

HAZELHAW PROPERTIES LIMITED

DEFENDER

 

and

 

SCOTTISH POWER UK PLC

THIRD PARTY

Summary

[1]        In this personal injuries action, the pursuer seeks damages as an individual and as executor-nominate of the deceased, his wife, Sallyann Low or Rule.

[2]        Mrs Rule was employed as an operations director with Glasgow City Council, working within “The Lighthouse”, Mitchell Lane, Glasgow (“the premises”).  Immediately adjacent to the rear of the premises lies a service yard, containing an electricity substation and a set of external gates, at the end of an underpass tunnel.  A trench of around 30 metres in length had been excavated in the ground from the external gates, through the underpass tunnel and into the service yard.  The trench houses cables, pipes and ducts for the substation.  The trench was not backfilled and resurfaced.  It was covered by a line of steel plates.  The pursuer avers that on 17 May 2010, Mrs Rule exited the rear door of the premises and walked across the service yard, along the line of trench.  There was a substantial gap between the plates.  One of the plates covering the trench tipped, causing her to fall.  She suffered a significant injury to her right leg and developed deep vein thrombosis.  Mrs Rule subsequently suffered a fatal pulmonary embolism on 18 June 2010. 

[3]        The relevant averments relating to the circumstances of the incident, and in particular in relation to the trench and the plates covering the same, are set out in Article 4 of Condescendence as follows:

“The pursuer believes and avers that the trench had been dug in or around 1994 to provide service cables or pipes for an electrical substation located in the service yard.  The trench was for the majority of its length not backed filled and resurfaced.  Covering the majority of the trench was a line of steel plates.  In photographs produced by the first time by Scottish Power in late July 2015 (and despite this action being extant since 2013), the plates in place at the time are noted to be materially different from the plates which have hereinbefore formed the basis of the parties’ contentions.  In particular, the plates in place at the material time had a petered surface.  The plates in place at the material time were not heavy.  They could be moved by one man.  There was no means to secure the plates over the trench and they were not secured.  At one point there is shown a substantial gap between the two plates.  …the line of plates contained two ‘doglegs’, or turns at an angle.  One of those doglegs (hereinafter “the dogleg”) was located in the service yard just before the beginning of the underpass tunnel.  When vehicles, particularly, heavy goods vehicles, entered and exited the service yard they cause movement in the line of steel plates.  They caused the concrete around the edges of the plates to become worn and loose.  They caused the plates to become dislodged.  In or around 2005 or 2005, work had been undertaken to try to prevent the plates moving.  In particular, brackets were fitted under the covers.  Over time they became loose again.  By 2009 several of them were again loose at around the area of the substantial gap.  At the material time the deceased was walking over the service yard and passed the dogleg.  …she fell because one of the plates covering the trench tipped”.

 

[4]        The defender is the heritable proprietor of the service yard.  The pursuer’s claim against the defender is based upon an alleged breach of the defender’s duties under section 2(1) of the Occupier’s Liability (Scotland) Act 1960 (“the 1960 Act”) and Regulations 5 and 12(1), (2), (3) and (4) of the Workplace (Health, Safety and Welfare) Regulations 1992. 

[5]        The electricity substation is operated by the third party.  The defender avers that in terms of a Lease between its predecessor in title and the third party, the substation (referred to within the Lease as ‘the site’) had been let to the third party with rights of access over the ‘access strip’ (described in the Lease as a ‘cable and wayleave access’) for a period of 60 years from 19 May 1994.  The access strip corresponds almost exactly with the area over which the steel plates were situated.  The relevant terms of the Lease are as follows:

Clause Fourth             “The Site will be constructed by the Landlords and completed to the Tenants’ reasonable satisfaction and the exterior thereof will, if required by the Tenants acting reasonably and save as aftermentioned, thereafter be maintained, repaired or renewed by the Landlords for the duration of the Lease, all to the Tenants’ reasonable satisfaction . . . .

 

Clause Fifth                The Site will be used by the Tenants in connection with their electricity undertaking only and they shall maintain the plant, equipment and all associated items to be installed by them therein in good order and condition throughout the currency of this Lease all to the reasonable satisfaction of the Landlords and the Tenants shall not, save in emergency, damage all or any part of the Premises[1] in any way save with the prior approval of the Landlords and subject always to such reasonable conditions as to reinstatement as the Landlords may impose.

[…]

 

Clause Seventh           The Tenants shall subject (except in emergency) to such rules and regulations as the Landlords acting reasonably may impose from time to time have a right of access to the Site at all times, between the hours of 8.30am and 6.30pm excluding Saturdays and Sundays and at all other times subject to reasonable notice and the Landlord’s prior approval (expect in case of emergency) for all necessary purposes over the strip of ground [the access strip] . . . together with a right to lay and maintain and when necessary, inspect and renew cables, pipes, ducts and other works therein but subject always to their obligation to make good any damage caused in the exercise of such rights . . . . the Landlords shall provide the Tenants with a key to override the entry phone system and so provide access to the Site on all such occasions as they may legitimately gain access in terms hereof in order to exercise their rights herein specified . . . . .

 

Clause Eighth             The Tenants and their officers and servants alone shall have free ish and entry to the Site at all times and no person not duly authorised by them shall enter the said Site . . .

[…]

 

Clause Tenth              The Tenants shall make good to the Landlords any loss, damage or injury which the Landlords or their servants may suffer and shall indemnify the Landlords against any claims which may be made against them by third parties and which in either case arise out of the Tenants’ operations but excepting claims to the extent that they arise out of or as a result of negligence on the part of the Landlords or their servants.”

 

[6]        The relevant averments by the defender in relation to the third party are set out in Answers 4 as follows:

“The Lease envisaged that the third party would install its own plant equipment and items within the service yard.  Reference is made to clause fourth.  It did so.  The third party is obliged to maintain the plant equipment and items installed at the subjects (clause fourth).  It has done so and continues to do so.  In order to obtemper that obligation, the third party would necessarily require regular access to the service yard and in particular the equipment there installed.  The third party enjoys access rights in relation to the service yard (clause seventh).  In particular, it enjoys the right to lay, maintain and renew cables, pipes, ducts and other items within the service yard (clause seventh).  The Lease records the right as an ‘access and cable wayleave’.  The third party’s ‘access and cable wayleave’ right is however only to be exercised over a strip of ground running from the entrance to the service yard through the service yard and up to the substation.  That area is shown on the plan forming part of the Lease (“the access strip”).  The access strip corresponds almost exactly with the area over which the plates condescended upon by the pursuer are situated.  The third party is obliged, in terms of clause seventh, to ‘make good any damage caused in the exercise of [the access and cable wayleave right]’.  At all material times, the third party made use of its access rights in relation to the subjects and its ‘access and cable wayleave’ rights at the access strip.  In particular, the third party has installed and runs a series of cables, pipes and ducts (‘equipment’) under the access strip.  As such the third party’s equipment is situated directly beneath the steel plates condescended upon by the pursuer.  The installation of the third party’s equipment would necessarily have involved excavation works at the access strip.  Maintenance and repair works pertaining to the third party’s equipment situated below ground would also necessarily involve excavation works at the access strip.  Such excavation works are of the type which would be liable to create the trench condescended upon by the pursuer.  Excavations carried out at the access strip on or after the installation of the plates condescended upon by the pursuer would also likely have resulted in the dislodging, removal, disturbance or reinstallation of one or more of the plates condescended upon by the pursuer.  The third party has attended and accessed the service yard. . . . . as part of its repair and maintenance programmes, the third party has carried out excavations at the access strip from time to time.  In particular, the third party carried out an excavation in or around March 2002.  At that time, one or more of the steel plates condescended upon by the pursuer had become dislodged.  One plate in particular had become embedded in one of the third party’s cables.  This had caused a fault which affected the third party’s plant and equipment.  Engineers engaged and instructed by the third party attended at the service yard in March 2002.  At that time they attended to maintenance and repairs in connection with that fault.  Excavations and earth works in the service yard were required and carried out as part of these repairs.  The third party’s ability to carry out those works could only be lawfully exercised at the access strip where the plates are situated.  In view of all the matters hereinbefore condescended upon believed and averred that the third party’s employees or those under the third party’s instruction and control removed and then reinstalled one or more of the plates condescended upon by the pursuer.  In the event that they did not do so, one or more of the plates would have remained dislodged as reported to the third party. The third party either interfered with the situation of the plates within the service yard or left the scene dislodged despite the danger having been drawn to its attention . . . . . in view of (i) the third party’s rights over the access strip under the Lease: (ii) its general interest in and requirement to install, access, maintain and repair the equipment housed thereunder and (iii) its frequent attendance at the service yard, believed and averred that the presence of the trench and the situation and condition of the plates in the service yard arose from the acts or omissions of the third party.  On the hypothesis of fact that the deceased was walking over the area where the trench had been dug and put her foot into a gap in the checker plates, the defender reasonably believes and avers that the situation of the offending plate is likely to have arisen from the acts or omissions of the third party, its employees or those under the third party’s instruction and control.”

 

[7]        The defender avers that the third party is an occupier within the meaning of the 1960 Act; “by virtue of its rights under the Lease, the third party enjoys rights of possession and control over a portion of the premises and also the access strip and equipment situated thereunder.  It had the right and means to take effective steps to protect people in the position of the deceased from dangers caused by the third party’s operations at the premises.  It failed to do so”. Further, the defender avers that it enjoys the benefit of an indemnity granted by the third party in terms of clause tenth of the Lease.

[8]        This matter called before me for a diet of debate in respect of the third party’s preliminary pleas.  The pursuer was not represented.  Mr McKenzie, counsel, appeared on behalf of the third party.  Mr Hanretty QC and Mr Manson, counsel, appeared on behalf of the defender.

 

Third party’s submissions

[9]        On behalf of the third party, Counsel submitted that the defender’s averments anent the third party were in two strands, namely, (1) that the third party breached its duties to the deceased under the 1960 Act and (2) that its actions triggered an indemnity in terms of a Lease between the defender and the third party.  It was submitted that both cases were founded on a speculation, namely, that in 2002 the third party interfered with the steel plates at the locus of the accident.  It was submitted that there was no proper factual basis to link the third party’s works in 2002 to the accident in 2010. 

[10]      Counsel submitted that the defender, crucially, did not aver positively that the third party had in fact dug the trench; the defender avers that the Lease “envisaged” that the third party would install its own plant, equipment and items within the service yard.  He submitted that both clauses fourth and fifth of the Lease referred to “the Site”, being defined as the substation only. He submitted that the obligation upon the third party to “maintain the plant, equipment and all associated items to be installed by them therein in good order and condition throughout the currency of this Lease and to the reasonable satisfaction of the landlords” was limited to the use of the Site.  By contrast, the requirement that the tenant shall not “save in emergency, damage all or any part of the Premises in any way save with the prior approval of the landlords…” extended to the larger area, including the service yard.  Clause seventh was restricted to the tenant’s requirement to “make good any damage caused in the exercise of the rights of ‘access and cable wayleave’”.  Clause tenth, which set out the tenants’ indemnity, it was submitted, was restricted to indemnifying the landlords against any “claims which may be made against them by third parties and which in either case arise out of the tenants’ operations”.  The term “operations” was not defined.  Counsel submitted that it was reasonable to infer that “operations” related to the operation of the substation and the exercise of the right to lay, maintain and inspect cables only.  On that basis, it was argued that it was not correct to suggest that the Lease envisaged “that the third party would install its own plant, equipment and items within the service yard”.  The Lease in fact envisaged that the third party would install its own plant, equipment and items within the substation.  Moreover, he submitted that it was averred by the defender that “the third party is obliged to maintain the plant, equipment and items installed at the subjects” however, again, it was submitted on behalf of the third party that clause fourth related to the substation only.  The only obligation in the Lease owed by the third party in relation to any area outwith the substation was to “make good damage caused in the exercise of its rights”.  Nothing in the Lease obliged the third party to maintain anything.  It was its right to do so.  Insofar as the defender had averred that “the third party is obliged, in terms of clause seventh, to “[make] good any damage caused in the exercise of [the access and cable wayleave right]”, that averment was not supported by the terms of the Lease and this, it was submitted, impacted upon the duties said to be owed by the third party. 

[11]      Counsel further submitted that the question was whether the third party, by virtue of working on cables in the trench, left the plate that tipped and caused the deceased to fall, in a dangerous condition.  If the third party’s work had nothing to do with the locus of the accident, it must follow that it must be exonerated and the indemnity cannot operate.  However, he submitted, the defender does not aver that the third party’s works were at the locus of the deceased’s accident.  The defender cannot say one way or another; if the third party had worked upon a steel plate which was not the steel plate which had tipped, then the third party has no responsibility at all.  He submitted that the pleadings required to be looked at with suspicion and the inferences in relation to what was believed and averred to be the case, had to be scrutinised.  The defender was hoping that something would turn up at proof to allow it to establish liability against the third party.  He referred to the comments of Lord Justice-Clerk Thomson in Brown v Redpath Brown & Co Ltd 1963 SLT 219 at page 222.  He submitted that it could not be assumed that the locus of the accident was the same as that which was worked on by the third party.  He submitted that it was not the case that the third party was expecting too much from the defender’s pleadings.  It was not merely a pleading point; for there to be an inquiry into the facts, the central issue required to be properly focused.

[12]      Further, it was submitted that the defenders had failed to make a relevant or specific case that the third party owed a duty of care to the deceased.  It was submitted that there was no proximity, either in time or of relationship.  It was submitted that the defenders had failed to aver how, if any such duty existed in 2002, it remained the case in 2010.  The question, counsel submitted, was whether the deceased was so closely and directly affected by the third party’s acts that the third party ought reasonably to have had her in their contemplation as being so affected when the third party directed its mind to its acts or omissions.  It was submitted that the third party’s actions, in relation to any works carried out on or around the trench in 2002, eight years before the accident, were more than thrice the limitation period and could not give rise to a duty incumbent upon the third party.  With reference to Cusine & Paisley Servitude and Rights of Way, paragraphs 1.71 and 12.130 and Cooper v Strathclyde Regional Council an unreported decision of Lord Clyde dated 13 July 1993, he submitted that the dominant proprietor in a servitude of access with a right to maintain the route of access, does not owe duties under the 1960 Act for a failure to carry out maintenance.  Insofar as any claim is based upon the 1960 Act, it was submitted that the defender did not make sufficient averments of control on the part of the third party.  The nature of the third party’s rights, of access and wayleave, did not give rise to the type of possession or control required by the act.  With reference to Gloag & Henderson, the Law of Scotland, 13th Edition, page 657 and Murdoch v A & R Scott 1956 SC 309, Counsel submitted that the duty on an occupier was to give effective protection from danger by removal, notice, fencing or forbidding entry into the premises.  The defender had failed to aver what precautions, in the exercise of reasonable care, the third party could and should have taken.  The defender had failed to aver on what basis the third party was in sufficient control and possession in 2010, at the material time, to give rise to duties under the 1960 Act.  The defender’s case anent the third party was bound to fail.

 

Submissions on behalf of the defender

[13]      Mr Hanretty QC submitted that the third party’s criticisms of the defender’s averments appeared to be directed towards identifying whether there existed a duty of care as between the third party and the pursuer.  The defender offered to prove that the third party was an occupier in terms of section 2(1) of the 1960 Act.  He submitted that it was quite wrong for the parties to an action of this nature to take what he referred to as “grossly technical points” in a case which was otherwise “crying out” for a proof. 

[14]      Senior counsel explained that the defender’s case against the third party had nothing to do with the creation of a duty of care at common law.  The defenders’ case was predicated upon a duty arising under the 1960 Act.  He submitted that the issue of proximity was irrelevant; the real question was whether the third party was an occupier; if the issue of proximity was relevant, a trespasser entering on to land could never claim he was owed a duty of care by an occupier.  However, he submitted, it is clear that a trespasser is indeed owed duties of care under the 1960 Act. The question is simply whether the 1960 Act applies or not.  He submitted that in response to a question from the bench, Counsel for the defender appeared to accept that had the incident occurred in 2002, the third party may have owed a duty of care to the pursuer.  That being the case, the relevant question then is when would such a duty cease to exist?  Senior counsel submitted that that matter was governed by the Prescription and Limitation (Scotland) Act 1973. 

[15]      Turning to the averments anent the 1960 Act, senior counsel referred to Gloag & Henderson at page 657.  He submitted that no liability arose merely through ownership of premises.  Liability arose as a result of occupation of premises.  It was irrelevant to discuss proximity in this context.  A duty exists, if the requirements of the Act are met.  Questions of occupation, possession and control are all matters of fact.  He questioned whether it was really the case that the deceased was owed no duty of care by the third party.  If that was the case, it did not sit well with the concession that a duty may have existed in 2002. 

[16]      Senior counsel submitted that the real question was whether the third party is an occupier.  The third party accepts that it carried out work at the locus in 2002 and that the trench was not backfilled.  Which plate in particular was affected is a matter for proof.  He submitted that it simply could not be the case that the third party is not aware of the case made against it.  It is clear that the case against it relates to the work carried out on the trench.  There may be a passage of time which makes it difficult for them to investigate, however, that of itself does not mean that the defender’s averments are lacking in specification. 

[17]      Referring to the Lease, senior counsel submitted that clause second obliged the landlords to complete the construction of the substation to the tenants’ reasonable satisfaction and moreover that the exterior would thereafter be maintained, repaired or renewed by the landlords, all to the tenants’ reasonable satisfaction.  In terms of clause seventh, the tenants have a right of access to the site at all times between 8.30 am and 6.30 pm and in cases of emergency, the third party has absolute rights of access.  The third party felt able to work in and around the trench in 2002 because they had an absolute right to do so.  Being able to access the premises and work on the premises is “control”.  Whilst they were working, the third party would have been in control of the access strip and would be in a position to stop others from accessing it.  In terms of clause seventh, the landlords are required to provide a key to the third party to allow them to override the entry phone system.  This is the mechanism by which the third party exercises control.

[18]      He submitted that whether the degree of possession or control exercised by the third party made it an occupier is a question of fact.  The court could not form a view, without hearing evidence, that the third party is not an occupier standing the fact that (a) it has a key to go in and out of the site (b) it can gain access to the trench and dig it up (c) it has free ish and entry to the site (d) the only means to gain access to the site is over the access strip.  He submitted that this was not a case where one is dealing with an independent contractor; there is a continuing Lease and the third party continue to enjoy the right today, to gain access to the site.  Senior counsel submitted that looking at matters broadly, there were sufficient averments to warrant an inquiry into the facts.

[19]      In relation to the issue of the indemnity, senior counsel explained that it was plain on any reading that clause tenth was an indemnity.  The question was whether the accident arose as a result of “the tenants’ operations”.  These again, he submitted, are matters of fact.  He submitted that the operations could not be confined to the operation of the substation.  Without cables, there would be no substation.  Insofar as it was the third party’s position that its obligation extended only to making good what was already there, without any obligation to improve the position, senior counsel submitted that if the third party had removed and replaced plates, the third party owed a duty to ensure that it had complied with its duties as an occupier of the premises to take such care as was reasonable in the circumstances which included leaving the situation in a safe condition.   

 

Further submissions

[20]       Counsel for the defender responded that the only duty which the third party had in relation to the trench was “to make good any damage” caused.  The defender did not aver that the third party was responsible for excavating the trench.   If that were the case, then this would be a matter for proof.  Instead, the defender does not know what the third party did in 2002.  The defender avers that the third party either interfered with the plates or left them dislodged.  It is only if the defender is able to positively aver how the third party failed to make good the damage that this matter should proceed to proof. Counsel accepted that whether the third party was in possession and control of the premises was a matter of fact.  However, the type of possession and control that is required to make the third party an occupier is quite specific.  As stated in Gloag & Henderson at page 657, it is the degree of possession and control which confers upon a person “the right and means in the circumstances, of taking effective steps to protect the visitor from the particular danger whether by removal, notice, fencing, or forbidding entry to the premises”.  Nothing of what is stated in Gloag & Henderson was, in his submission, triggered in the defender’s pleadings. 

[21]      In response, Senior Counsel submitted that it is relevant to consider whether the purported lack of specification concerns a matter within the knowledge of the complaining party.  The circumstances in which the trench came to be, the nature of the works carried out in 2002, the condition in which the trench and the plates were left by the third party after the works in 2002, were all matters which were clearly within the third party’s knowledge. 

 

Discussion

[22]      The third party seeks dismissal of the action, on the basis that the defender’s pleadings, insofar as directed against the third party, are irrelevant and lacking in specification. 

[23]      Parties were agreed that the correct test of relevancy is whether, on a ‘fair reading’ of the defender’s averments, assuming that all of the defender’s averments are proved, the case against the third party is bound to fail (Jamieson v Jamieson 1952 SC (HL) 44; Mitchell v Glasgow City Council 2009 SC (HL) 21; Wilson v Norwich Fire Insurance Society 1999 SLT 1139). 

[24]      Turning to the question of specification, it is trite to note that the primary purpose of written pleadings is to set out for the opposing party and for the court the essential facts which the pleader seeks to prove.  That process should enable the court to ascertain, with precision, the question which the parties wish to be decided by the court.

[25]      I was referred to MacPhail, Sheriff Court Practice (3^rd ed) paragraphs 9.28 and 9.29 for the following propositions, namely (a) that a plea of lack of specification finds its proper application in a case where the defender does not know the case against him and objects to be taken by surprise at the proof (MacDonald v Glasgow Western Hospitals 1954 SC 453 per Lord President Cooper at p465); (b) a complaint of lack of fair notice is justifiable only if it is likely to result in material prejudice to the defender (Avery v Hew Park School for Boys 1949 SLT (Notes) 6); (c) it is relevant to consider whether the purported lack of specification concerns a matter within the knowledge of the complaining party (Gunn v McAdam & Sons 1949 SC 31).

[26]      As observed by Lord Guest in McMenemy v James Dougal & Sons Ltd 1960 SLT (Notes) 84, “the record should not be subjected to the careful and meticulous scrutiny devoted to a conveyancing deed.  The matter must be looked at broadly with a view to ascertaining whether the defenders have been given fair notice of the case which the pursuer intends to prove”.  What amounts to sufficient specification will depend entirely upon the particular circumstances of each case.

[27]      As I understood the third party’s submissions, the criticisms of the defender’s pleadings were, broadly three-fold, namely:  (a) that there was no proper factual basis upon which it could be inferred that (i) the third party had dug the trench or (ii) the third party’s works at the premises in 2002 could be linked to the deceased’s accident in 2010; (b) that the defender did not relevantly aver the basis of any duty of care owed by the third party to the deceased; and (c) that the defender did not relevantly aver the basis upon which the third party was said to be in breach of any such duty of care. 

The inferences the defender invites the court to make

[28]      In relation to the first argument, what averments does the defender make? The defender avers that the steel plates were in place prior to the defender’s ownership of the premises and that they were not installed by the defender.  It avers that the trench was not created by it. The defender avers that the Lease envisaged that the third party would install its own plant, equipment and items within the service yard.  In particular, the defender avers that:

“the third party has installed and runs a series of cables, pipes and ducts (“equipment”) under the access strip.  As such, the third party’s equipment is situated directly beneath the steel plates condescended upon by the pursuer.  The installation of the third party’s equipment would necessarily have involved excavation works at the access strip.  Maintenance and repair works pertaining to the third party’s equipment situated below the ground would also necessarily involve excavation works at the access strip.  Such excavation works are of the type which would be liable to create the trench condescended upon by the pursuer.  Excavations carried out at the access strip on or after the installation of the plates condescended upon by the pursuer would also likely have resulted in the dislodging, removal, disturbance or re-installation of one or more of the plates condescended upon by the pursuer.”

 

[29]      The defender avers that “[i]n view of (i) the third party’s rights over the access strip under the Lease; (ii) its general interest in and requirement to install, access, maintain and repair the equipment housed thereunder and (iii) its frequent attendance at the service yard, believed and averred that the presence of the trench and the situation and condition of the plates in the service yard arose from the acts or omissions of the third party”.

[30]      The defender sets out the relevant terms of the Lease, which include an obligation upon the landlord to construct the Site (being the substation) to the third party’s reasonable satisfaction.  There is no such obligation upon the landlord to create a trench in the service yard.  The Lease is silent in relation to the construction of a trench.  In terms of clause seventh of the Lease, the third party enjoys a “right to lay, maintain and, when necessary, inspect and renew cables, pipes, ducts and other works” in relation to the access strip.  That right is stated as being subject to the third party “making good any damage caused in the exercise of such rights”.

[31]      The third party admits that it runs a series of cables, pipes and ducts under the access strip.  The third party avers that “the third party holds no records describing who installed the trench (or the cables, pipes and ducts within it) in the service yard.  The third party has been unable to trace any witness to speak to its installation.  The third party believes and avers that the trench was constructed, and the checker plates installed, at the same time and by the same party as the substation.”

[32]      The defender’s averment of belief relates to a material fact which may be within the third party’s knowledge.  As noted by Lord Justice Clerk Thomson in Brown v Redpath Brown & Co 1963 SLT 219 at p222 “[t]he use of the formula ‘believed and averred’ is frequent and convenient in our pleading, but its appropriate function is to aver an inference which the user seeks to draw from certain facts; and they are generally facts which are not and cannot be known to him”.  While the averment of belief in this case may be clumsily expressed, referring as it does to the ‘presence of the trench’ being attributable to the acts or omissions of the third party, its import is perfectly clear.  The defender has set out the facts known to, or ascertained by it, namely, that the third party has, in terms of the Lease, installed equipment under the access strip, directly beneath the steel plates condescended upon by the pursuer, and that installation of this equipment would necessarily have involved excavation works of the type which would be liable to create a trench.  There would appear to be no obligation upon the landlord to create a trench.  The digging of a trench would appear to have been necessary for the third party to exercise its right “to lay cables, ducts and pipes”.

[33]      The third party admits that the equipment in the trench belongs to it. The third party does not in fact deny that it created the trench, but rather avers that it believes that the trench was created by the same party who created the substation. The third party refers to clause fifth of the Lease and avers that “on the defender’s hypothesis of fact that the installation, maintenance and repair of the third party’s equipment would necessarily have involved excavation of the trench, which is denied, said installation, maintenance and repair would have been carried out with the landlord’s prior approval and subject to the landlord’s reasonable conditions as to reinstatement”. The terms of clause fifth of the Lease do not, in my judgment, sit well with the terms of clause seventh, which on one interpretation confers upon the third party the right to lay cables, pipes, ducts, etc., at the access strip, subject only to the condition that any damage caused in doing so (such as the digging of a trench) is made good by the third party.  It cannot, in my view, be said that the inference which the defender invites the court to make, namely that the Lease envisaged that the third party would create the trench, is an unreasonable one.

[34]      It must be borne in mind that the equipment consists of electrical cables serving an electricity sub-station.  While the third party avers that it holds no records describing who installed the trench and has been unable to trace any witness to speak to its installation (all of which are matters for proof), the third party does not aver whether it would be its normal practice to allow or require a landlord to dig a trench of the correct dimensions and depth to safely house electrical equipment, and thereafter to carry out any reinstatement works to that trench in and around such equipment.  That is a material fact which is within the third party’s knowledge.

[35]      In my judgment, it cannot, without an inquiry into the facts, be said at this stage, that the inference which the defender invites the court to make (based upon the facts averred by it), namely that the third party was responsible for creating the trench and placing the steel plates upon it, is an unreasonable one.  Accordingly, I do not accept that the averment of belief by the defender is irrelevant or lacking in specification.

[36]      Separately, counsel for the third party submitted that the absence of any averments linking the third party’s works in 2002 to the locus of the accident in 2010, was fatal to the defender’s case against the third party.  It was submitted that the defender failed to aver where on the 30 metre trench, the works carried out by the third party in 2002, took place. 

[37]      The defender avers that the third party carried out an excavation in or around March 2002.  It avers that at that time “one or more of the steel plates condescended upon by the pursuer had become dislodged.  One plate in particular had become embedded in one of the third party’s cables.  This caused a fault which affected the third party’s plant and equipment.  Engineers engaged and instructed by the third party attended at the service yard in March 2002.  At that time they attended to maintenance and repairs in connection with that fault.  Excavations and earth works in the service yard were required and carried out as part of those repairs.  In view of all the matters hereinbefore condescended upon, believed and averred that the third party’s employees or those under the third party’s instruction and control removed and then re-installed one or more of the plates condescended upon by the pursuer.  In the event that they did not do so, one or more of the plates would have remained dislodged as reported to the third party.  The third party either interfered with the situation of the plates within the service yard or left the same dislodged despite the danger having been drawn to its attention”.  The defender then avers “on the hypothesis of fact that the deceased was walking over the area where the trench had been dug and put her foot into a gap in the checker plates, the defender reasonably believes and avers that the situation of the offending plate is likely to have arisen from the acts or omissions of the third party”. 

[38]      Again, in my judgment, it cannot, without an inquiry into the facts, be said at this stage, that the inference which the defender invites the court to make (based upon the facts averred by it), namely that the third party’s acts or omissions in 2002, are directly linked to the locus of the pursuer’s accident, is an unreasonable one.  I do not accept that the averments of belief, or the factual averments upon which they are based, are irrelevant or lacking in specification.

[39]      The defender has averred, and offers to prove, that the third party carried out excavation and earth works at the access strip, being the locus of the accident, in 2002.  The defender invites the court to make the inference that such works would have involved the removal and re-instatement of one or more of the plates condescended upon by the pursuer.  Plainly, work on equipment situated within a trench, covered by steel plates, is likely to involve the removal of those plates, particularly where it is alleged that one of those plates had become dislodged. The defender offers to prove that the third party either interfered with the plates or failed to properly re-instate them.  Once again, the averment of belief is in respect of a matter which is within the third party’s knowledge.  The third party admits that works were carried out by it in 2002.   There exists CCTV footage which purports to show the precise locus of Mrs Rule’s accident.  Considering matters broadly, on a fair reading of the defender’s averments, taking account of the matters which are within the third party’s knowledge, the defender’s pleadings give the third party fair notice of the case against it.

Averments anent a duty of care in terms of the 1960 Act

[40]      The second argument advanced on behalf of the third party is that the defender has failed to relevantly aver a duty of care owed by the third party to the pursuer, in terms of the 1960 Act. 

[41]      It is instructive to note the preconditions for the existence of a duty of care owed to a person entering premises, in terms of the Act.  As explained by Lord Glennie in Dawson v Page [2012] CSOH 33, first, the person alleged to owe the duty must be an “occupier” of the premises.  Secondly, there must be a danger on or at the premises which is due to the state of the premises or something which is done or left undone there.  If those two preconditions are satisfied, the occupier will owe to a person coming onto premises a duty to take reasonable care to see that he is not injured by reason of the danger.  I did not understand there to be any dispute between the parties in relation to the second precondition.

[42]      An “occupier” is defined in the Act as “a person occupying or having control of land or other premises” (section 1(1) of the Act). A person has “control” if he is entitled to take the steps required by the statute to make the land or other premises safe (per Lord Dervaird in Feely v Co-operative Wholesale Society Ltd 1990 SLT 547 at p549) or, in other words, if he “has the right and means in the circumstances of taking the effective steps to protect the visitor from the particular danger” (Gloag & Henderson at para 27.04).  The issue of whether a person has sufficient possession or control to be an occupier “is one of fact and degree in light of the circumstances of the particular case” (Thomson Delictual Liability, 5^th edition, at para 10.9); it is a “matter of fact in each case” (Stewart, Reparation at A388/1).

[43]      The provisions of the 1960 Act replace the common law rules (except for the purposes of identifying an “occupier”; section 1(2)).  The extent of an occupier’s duty of care is set out in section 2(1) of the Act as “such care as in all the circumstances of the case is reasonable”.  The degree of care required from any occupier “is deducible from and referable to the particular facts of the case” (Gloag & Henderson, para 27.04). 

[44]      Counsel for the third party submitted that the starting point in determining how a duty of care arises is Lord Atkin’s speech in Donogue v Stevenson 1931 SC (HL) 31.  The relevant question for the court was whether  Mrs Rule was ‘so closely and directly affected’ by their act that the third party ‘ought reasonably to have had her in their contemplation as being so affected’ when the third party directed its mind to the acts and omissions called into question.  Counsel referred to a number of authorities to develop his submission that there were insufficient averments in relation to the proximity of the relationship between the deceased and the third party. 

[45]      None of the authorities referred to dealt with a duty of care under the 1960 Act (Stansbis v Troman [1948] KB 48; Avery v Hew Park School for Boys 1949 SLT 6; McMeneny v James Dougall & Sons Ltd 1960 SLT 84; Gunn v McAdam & Sons 1949 SLT 31; Mitchell v Glasgow City Council 2009 SC (HL) 21).  I note that counsel did not refer me to any authority which supported his submission that a duty of care in terms of the 1960 Act could not be established without averments of proximity, whether in terms of relationship or time.  Assuming that the third party was an occupier in 2002, at the time the works at the locus were carried out, and assuming that the accident had occurred in 2002, I enquired with counsel whether he accepted that a sufficient degree of proximity would have existed between the pursuer and the third party to give rise to a duty of care.  He conceded that it may.  I asked counsel if that were the case, when, in his submission, the duty of care would cease to exist because of a lack of proximity between the parties.  He was unable to say when a line in the sand would be drawn.   

[46]      Section 1(1) of the 1960 Act is clear in its terms.  The 1960 Act replaces the common law rules for the purposes of determining the duty of care which an occupier owes to persons entering on the premises.  A duty exists by virtue of the status of a party as ‘an occupier’.  There is no requirement that the harm complained of be reasonably foreseeable.  There is no requirement that the parties be in a relationship of proximity.   Such tests are an unnecessary gloss on the clear language used in section 1(1) of the 1960 Act. 

[47]      Of course, occupiers owe a duty to take such care as is reasonable in all of the circumstances of the case.  Those circumstances may include factors such as “the nature of the danger, the occupier’s knowledge of the danger, the extent of the injury or harm, the probability of the injury or harm arising, the age of the person injured, whether or not the pursuer was permitted on to the premises and the cost of eliminating the danger” (Thomson, Delictual Liability at para 10.11).  In this case, the passage of time between any works carried out by the third party at the locus and the date of the accident may also be part of the circumstances to be considered by the court, in relation to the extent of any duty of care.  However, in my judgment, that passage of time is not determinative of whether a duty of care exists under section 1(1) of the Act.

[48]      It was submitted on behalf of the third party, that the third party could not be regarded as an occupier for the purposes of the 1960 Act by virtue only of its status as a dominant proprietor exercising a right of access. 

[49]      I was referred to Cusine & Paisley, Servitudes and Rights of Way paras 1.71 and 12.130.  I note that the passage I was referred to at paragraph 1.71 is headed ‘Extent of possession varies from servitude to servitude’.  The authors note;

“. . .there is some degree of use or possession in relation to positive servitudes, but this varies from one servitude to another.  The use or possession entailed by a servitude of pasturage may be more invasive than that in a servitude right of way.  In some cases, the possession may be almost exclusive and practically exclude even the servient proprietor.  Thus, where a servitude of drainage or dam permits the dominant proprietor to place on the servient tenement a structure such as a dam, drain or septic tank, there is no real possibility that the servient proprietor can personally exercise even shared possession of the actual site while the structure is in place, although one might postulate that his right of possession may be evidenced by restricted acts such as visits to the site of the structure to ensure that the obligations of the dominant proprietor are complied with.  It is therefore possible that in relation to some servitudes, such as those which permit maintenance of a dam or septic tank and those which permit invasive occupation of the servient tenement (such as pasturage), the dominant proprietor will be regarded as the “person occupying or having control” of the servient tenement for the purposes of the provisions of the Occupiers Liability (Scotland) Act 1960.”

 

[50]      The authors make similar comments at paragraph 12.30.  I do not regard the comments made in either of these paragraphs as supporting the proposition that a dominant proprietor in a servitude right of access can never be regarded as having the requisite possession and control to qualify as an occupier for the purposes of the 1960 Act.  Much will depend upon the facts and circumstances of each case, including the nature of the servitude right and the manner in which it is exercised.

[51]      Counsel also referred to the unreported opinion of Lord Clyde in Cooper v Strathclyde Regional Council and Others dated 13 July 1993.  That case concerned an action for damages by a post woman who had sustained injuries after she travelled over a pothole while riding her bicycle.  The action was raised against inter alia private individuals who had enjoyed a right of access over the road containing the pothole.  The pursuer averred that the right of access was created by prescription.  The pursuer averred that the private individuals had a duty to maintain the road, by virtue of their right of access.  Lord Clyde noted that the pursuers did not aver that the defenders had control over the road.  He noted that there were no express averments that the defenders were even entitled to repair the road.  He found that the connection between the alleged right of access and the alleged duty to maintain it had not been explained.  In the present case, in my judgment, the connection between the right of access enjoyed by the third party and the duty to maintain it has been adequately explained in the defender’s averments. 

[52]      The defender avers and offers to prove that in exercise of its “cable and wayleave access” right in terms of the Lease, the third party has laid cables, pipes and ducts in the access strip; that it has the right to maintain and when necessary renew such cables, pipes and ducts; that in doing so, it is obliged to make good any damage caused; that it has attended and accessed the service yard frequently; that it has carried out excavations at the access strip from time to time; and that it carried out works at the access strip in 2002. The defender refers to and incorporates the terms of the Lease in its pleadings, which provide, at clause seventh in particular, that the third party may exercise the right of access at particular times, but has an unrestricted right of access during an emergency; that the landlord is obliged to provide the third party with a key to override the entry phone system allowing entry to the Site; and the Lease provides at clause ninth that the third party has the right to affix warning notices to the interior or exterior of the substation in whatever way they deem necessary.  The third party has the right, at the present time, to carry out works on the access strip to maintain and if necessary renew its apparatus.  In doing so, it can be reasonably inferred, as senior counsel suggested, that it may also be in a position to prevent persons from using the access strip, if necessary.  It cannot thus, in my judgment, be said that the case against the third party is irrelevant or bound to fail; there requires to be an inquiry into the facts before it can be determined whether the right of access exercised by the third party falls into the class of servitude rights in relation to which the dominant proprietor is regarded as an ‘occupier’ for the purposes of the 1960 Act.  The question of whether the third party has sufficient possession or control to be an occupier “is one of fact and degree in light of the circumstances of the particular case”.  In my judgment, the defender’s averments are sufficient to warrant an inquiry into those facts and circumstances.

The defender’s averments anent an alleged breach of any duty of care

[53]      I agree with counsel for the third party that the defender has not explicitly set out in detailed averments what precautions, in the exercise of reasonable care, the third party could and should have taken.  However, viewing the defender’s pleadings broadly, I am unable to conclude that the defender’s pleadings fail to give the third party fair notice of the case against it.

[54]      Viewing the defender’s pleadings broadly, it is clear that the defender avers and offers to prove that the presence of the trench (which all parties appear to accept was not backfilled and resurfaced) and the condition of the plates arose from the acts or omissions of the third party.  The defender offers to prove that “the situation of the offending plate” arose from the acts or omissions of the third party.  The defender offers to prove that “the third party either interfered with the situation of the plates within the service yard or left the same dislodged despite the dangers having been drawn to its attention”.  Plainly, it would have been desirable for the defender to thereafter expressly aver that the trench ought to have been backfilled and re-surfaced or the plates ought to have been safely placed upon the trench, however, as a matter of common sense, on a fair reading of the defender’s pleadings, that much is clear. 

The defender’s averments anent an alleged breach of indemnity

[55]      In terms of clause tenth of the Lease, the third party is obliged to “make good” to the defender any “loss, damage or injury” suffered by the defender and to indemnify the defender against any claims which may be made against it arising out of the third party’s “operations”.  The term “operations” is not defined in the Lease.  The defender avers and offers to prove that Mrs Rule’s accident arose out of the third party’s operations.  While again, the defender does not expressly set out what those operations consist of, viewing matters broadly, it is plain that the defender invites the court to conclude that if established by evidence, the existence of the trench, the installation of the third party’s apparatus therein, the presence of the plates, the exercise of the third party’s right of access and the works carried out at the access strip, are all part of the third party’s “operations”.  It cannot be said at this stage that all or any of these factors, if established by the evidence, are not capable of constituting the third party’s “operations” in terms of clause tenth of the Lease.  It is plain that the third party has fair notice of the case made against it in terms of clause tenth of the Lease.

[56]      Accordingly, while I accept that the third party has raised questions of law in relation to the defender’s pleadings, these ought, in my judgment, to be properly addressed after there has been an inquiry into the facts.  This case, it would appear to me, falls into the category of cases where “it cannot be said in advance of the leading of evidence whether the facts averred are sufficient to support the legal conclusion which the [defender] requires for success” (Moore v Stephen & Sons 1954 SLT 331 at page 335).

 

Decision

[57]      Accordingly, I shall allow a proof before answer, reserving all preliminary pleas.  I shall assign a hearing before me to enable parties to address me on the issue of the expenses of the debate and in relation to further procedure.