Accident Claims News
A Slippery Issue
Apr 9, 2013
Cases under the Occupiers Liability (Scotland) Act 1960 do not come to proof often, and there are relatively few Scottish judgements covering the issues it raises. In the recent opinion of John Dawson –v- Ruth Page [2013] CSIH 24, the Inner House provided some guidance, reminding us of the difficulties of pursuing cases under the 1960 Act.
Mr Dawson sustained injuries when delivering a parcel to the defender’s home as part of his work as a DHL deliver agent. The house was undergoing a major refurbishment, and the garden area surrounding it was in effect a building site. There was no access to the front door, but there was access to the back door by way of scaffolding boards laid over the muddy ground. Ms Page, the occupier of the house, had moved out for the duration of the work. Mr Dawson had attempted to deliver the parcel twice, and on the third occasion left it under an oil storage tank next to the back door. As he made his way onto the planks leading from the back door, he slipped and fell on wet planks. Mr Dawson raised an action seeking damages from Ms Page under section 2(1) of the Occupiers Liability (Scotland) Act 1960. The action was unsuccessful after Proof, and Mr Dawson appealed to the Inner House.
The appeal had 2 main grounds, namely that the Court were wrong in deciding that the wet planks did not constitute a danger within the meaning of the Act, and that there was no duty upon the defender to either exclude people from that danger, or erect warning notices. While the Inner House felt that there was some merit in the first aspect of the appeal (although they declined to discuss this issue in any great detail), they did not agree that there was a duty in this case to exclude or provide specific warning notices for an obvious hazard. The appeal was unsuccessful.
What does this case tell us? Lord McGhie, in delivering the opinion of the court, pointed out that each case will be decided upon careful consideration of their facts. In doing so, he indicated obiter dicta that establishing the nature of the danger in the premises, and the occupier’s reasonable degree of care towards it should be considered together. Thereafter, 2 issues can be raised from his analysis of the section 2(1) of the 1960 Act. Firstly, he reminds us that the duty is one of reasonable care, and no higher, and secondly that the risk of injury needs to be foreseeable –
“The fundamental aim was to restore a broad test of reasonableness. The purpose of sec 2(1), as is stated by sec 1(1), is to establish the degree of care to be shown by an occupier. We do not consider that the descriptive provisions of sec 2(1) fall to be read as intended to effect a radical change to the concept of fault in so far as affecting occupiers. The familiar concept of reasonable foreseeability clearly underlies fault in this context.”
The case also serves notice that a pursuer needs to be precise in his allegations of the breach of duties by the occupier. In discussing the issue of foreseeability, Lord McGhie specifically commented that Mr Dawson was trying to argue a broad case –
“We do not accept that there is any principle that, because it is possible to identify a wide risk and give it a broad label which covers the accident in question, that accident will necessarily be regarded as foreseeable. Where a walkway has been provided, it is dangers arising from use of that walkway which must be addressed: not the dangers to people walking in other parts of the site.”
While there may be a danger present on the premises of which the defender is the occupier, the issue will remain whether the occupier need have taken any reasonable steps that would have avoided injury due to that danger. The court felt that the provision of the plank walkway was exercise of reasonable care by Ms Page, and as such Mr Dawson failed in his case.
Great care needs to be taken in advancing a claim under the 1960 Act. While it codified that rather broad pre-existing common law, it still remains a broadly drafted piece of legislation. This case shows that you cannot overstate the duty of reasonable care upon an occupier. But there still is a duty on an occupier. If there is a danger with a foreseeable risk of injury, the occupier will still need to take reasonable steps to prevent that injury. This case underlines that importance of carefully reviewing that facts of each individual case, and analysing the reasonable steps that the occupier could have taken.