Pursuer: Fitzpatrick Advocate: Digby Brown LLP

Defender: Waugh, Advocate: DAC Beachcroft Scotland LLP

22 August 2013

Introduction

[1] This proof was set down for four days from Tuesday 13 November 2012. Evidence was led from the pursuer, his wife, his daughter Laura Knight and Mr Boyland, a janitor employed by the defenders and a Union representative on that day. On the morning of the second day, Mrs Waugh, on behalf of the defenders moved to amend the record by the insertion in Answer 4 of the words "In the circumstances it was not reasonably practicable for the defenders to have kept the fire doors steps free of ice." Having heard submissions on that motion, which was opposed by Mr Fitzpatrick, I allowed the amendment and acceded to Mr Fitzpatrick's motion to adjourn the proof to a date to be afterwards fixed in order to allow him to consider answers to that amendment and to investigate whether any additional evidence should be led or witnesses recalled.

[2] The proof continued on 29, 30 and 31 January and 1 February 2013 when further evidence was led on behalf of the pursuer and on behalf of the defenders. The matter was then further continued for submissions which I heard on 14 May 2013.

[3] A joint minute was entered into which inter alia agreed quantum at £30,000 inclusive of interest to 13 November 2012. Thus the only matters in dispute related to liability and, in that connection, whether the pursuer had proved that he sustained an accident in the manner set out on record and, if so, whether the defenders should be held liable for that accident.

The accident

[4] The pursuer is a 61 year old man who for 18 years had worked as a janitor in various schools operated by the defenders. He was at one time a head janitor but asked to be relieved of those duties. He gave evidence that in November 2010 he was a janitor in St Stephen's High School in Port Glasgow and was asked to go to St Francis' Primary School, Port Glasgow on Monday 22 November 2010 to cover for the permanent janitor there, a Mr Cannon. This request was made by one of the defenders' employees, Margaret Swankie, the pursuer's line manager. He set off from his house at St Stephen's High School on that date in what he termed "terrible weather". There was ice and snow on the ground. He could see his breath. It was not snowing but there was very hard ice on the pavements which were slippy. He required to walk on the grass at St Stephen's to get a proper grip. He wore steel cap boots supplied by the school. He arrived at St Francis' Primary School about 7am. Kitchen staff started to arrive about 7:15am and breakfast club at the school started at 8am. School itself started at about 9am. He said that the grounds of St Francis' Primary School were icy in some places. He went to the boiler room of the school in order to obtain salt and the hand operated gritting trolley, which he knew from past experience at that school to be stored there. He described how he then proceeded to salt the paths and playgrounds of the primary school. He thought that he used about 8 bags of salt each of which weighed 25kg. While he knew of no procedure laid down by his employers for this task, he proceeded as he had always done and salted the paved footways and playgrounds, working his way round the school building. This exercise included throwing salt by hand on the steps leading up to the fire escapes which served certain classrooms at the school (the fire steps). His routine was to do the areas which would make it safe for the staff and pupils to come into the school in the morning. His evidence was that he was using a system which he had used for the whole of the 18 years of his employment with the defenders for which he had no formal training or instruction. There was some element of time pressure in this procedure since the pursuer required to have completed salting of the areas which he selected prior to 9am when the school morning started.

[5] After 9 o'clock he salted any other areas not already covered, such as the car park and bin areas. Having finished that exercise, the pursuer went to the janitor's office where he remained until break time at about 10:30am. He said that because of the weather conditions on that day, children in primary 6 and 7 classes were allowed out, but younger children in primary 1 to 5 were kept within the building.

[6] At break time it was the pursuer's duty as janitor to monitor pupils in the playgrounds and to pick up any litter or debris on the ground. For that purpose he took with him a litter pick and a plastic bag. He was standing near a fire escape, which he identified in the photograph which is number 7/4 of process, when his attention was drawn by two girl pupils to a condom which was lying on the top part of that fire escape. He went to retrieve it and picked it up with the litter picker in his right hand. He turned to put the condom in the plastic bag whereupon he slipped and fell against the wall. He said that he hit ice and fell onto the wall landing on his backside. He recalled that he had salted the area earlier that morning, but that it was in the shade and had thus taken longer to thaw. The girls, who had witnessed this, asked him if he wanted help but he refused that since he thought what happened was not too bad. However, his back was too sore for him to do lunchtime monitoring duties. He remained at work and locked up at the close of school that day at 3:30pm. He felt a little bit sore, but he described it as being not too bad. On return to his house, he spoke to his wife and his daughter, Laura Knight. He returned to work on Tuesday 23 November when his back was a bit stiff and worked the whole day. However, during the Tuesday evening his back became increasingly painful and he went to bed at 8:30pm, which was much earlier than his usual bedtime. His daughter came to him and asked him why he was in bed so early. He said to her that he had had an accident. The next morning he described himself to be in agony. He phoned his doctor at 8am and secured an appointment for 10:30am. He subsequently saw a Dr Boyce. He was given a three week sick line and went to St Stephen's to hand it in to the head janitor, Henry Black. He travelled there by taxi. He informed Henry Black that he had slipped on ice at St Francis' School.

[7] He also gave evidence to the effect that he had phoned his line manager Margaret Swankie at Cathcart. He phoned her from St Stephen's and told her that he had slipped on ice the previous Monday, that the general practitioner had said it was sciatica and that he was to be off for three weeks.

[8] He accepted in cross‑examination that an accident ought to be reported so that it could be investigated but that he had not entered this incident in any accident book. He knew there to be an accident book at St Stephen's and at St Francis'. He did not know where the accident book at St Francis' was located. He also accepted that the finding of a condom was something that would be reported to the head teacher at the primary school.

[9] The pursuer's wife gave evidence and stated that in November 2010, she returned from work and found her husband stooped. He told her that he had slipped on ice at school and hurt his back. This was on a Monday or a Tuesday. He did not volunteer that information and she had to ask him. She advised him the next day to go to a doctor and he did so. His daughter, Laura Knight, also gave evidence to the effect that one evening in November 2010 she visited her parents' house and found her father to be in bed at an unusually early hour. He reported to her that he had fallen at school on stairs when picking up a condom.

[10] Mr Jim Boyland was a senior janitor and a Union representative. He had known the pursuer and his family for at least 15 years. He said that the pursuer had come to him on 23 November 2010 in his office at St Stephen's and said that he had had an accident on a set of stairs in icy weather. The pursuer did not tell him where he had slipped or on what. He was concerned about his sickness record in the light of having a sick line for three weeks. He did not, apparently, come formally to report an accident. He was shown a type written "letter" number 6/7 of process which he had prepared as an account of this meeting. He first said that the whole contents were written on 23 November 2010 but then contradicted that when he was asked to read through it and said that some parts were written well after the meeting. He was unclear as to which parts were written contemporaneously or when other parts may have been added. He could not say why he had prepared this document or who he expected to read it. He also said that the weather during the weekend before the pursuer came to see him had been very bad with heavy snow and low temperatures. Mr Boyland was an unimpressive witness and I was not prepared to rely on his evidence except where he was supported by other acceptable evidence. He was wholly unclear about what the pursuer might have told him on 23 November and I did not find the letter to which he spoke of any value.

[11] There was no other supporting evidence led on behalf of the pursuer in relation to the circumstances of this accident.

The defenders' submissions

[12] Ms Waugh submitted that I should not accept the pursuer's evidence for a number of reasons. She submitted that his account of the weather was exaggerated and his evidence was in conflict with the evidence of Noel Dale, a senior meteorological observer with British Weather Services, who had given evidence on behalf of the defenders and whose report was number 7/9 of process. It is dated 22 January 2012, although the correct date is 2013. That evidence concentrated on the 24 hour period of 22 November 2010. Various air temperature ranges are taken from a number of locations around the west of Scotland, the closest of which was said to be Inchinnan. The locations included Glasgow Airport and Glasgow, Bishopton. The air temperature ranged from 1.6 degrees celsius to 8 degrees celsius at Inchinnan, and at Glasgow Bishopton the minimum air temperature was 3 degrees celsius. Mr Dale concluded that, while he could not rule out patches of ice being present at St Francis' school, any notable or lasting ice formation on the ground would have been unlikely. He acknowledged that the weather stations at Inchinnan and Bishopton would have been at a lower level than St Francis' Primary School but there was no evidence as to the exact height above sea level of that school. While the evidence led on behalf of the defenders in respect of the meteorological conditions gives an indication of the minimum and maximum air temperatures at those locations, it only does so for the 22 November 2010 and there was no reliable evidence from Mr Dale or from any other source about the conditions leading up to that date and whether or not there had been snow or freezing temperatures in the days prior to 22 November. I found his evidence of little assistance in assessing the pursuer's evidence.

[13] Ms Waugh also submitted that, in spite of the fact that the pursuer was a janitor of many years' experience, who had been in a supervisory role as head janitor and had been involved in the salting process of schools for many years, he had failed to make any accident report in the accident books which were available, either at St Francis' or St Stephen's High School. There was no satisfactory explanation as to why he had made no formal entry in an accident book. The pursuer accepted that he made no entry or caused no entry to be made in any accident book, explaining that he did not know where such a book was to be located at St Francis. That does not, of course, explain why no entry was made in the accident book of St Stephen's High School of which he knew the location. I consider that the failure to make a formal entry in the accident book can be explained first, by the fact that the pursuer did not think, at least initially, that he had sustained a serious injury and secondly, by his embarrassment that the incident had occurred at all.

[14] Ms Waugh further submitted that the pursuer's evidence was undermined by his attendance with his union representative Mr Boyland to whom the pursuer had gone on 23 November 2010. Ms Waugh criticised the pursuer for not making it clear that he had gone to Mr Boyland because he was worried about his absence record since he had a history of absences through his back problems. While that was a matter of concern to the pursuer, it was also the case that both the pursuer and Mr Boyland gave evidence to the effect that the pursuer had told Mr Boyland about an accident that he said had occurred the day before, although he did not tell him that he had slipped on ice.

[15] Thirdly, Ms Waugh submitted that when he attended the doctor on 24 November 2010, there was no mention of slipping on ice. Reference was made in the course of the pursuer's evidence to the records of the general practitioner which are number 7/1 of process. These are agreed as the equivalent of the evidence that would have been given by the various authors of them by the joint minute. On page 10 of 37 of those records, there is an entry dated 24 November 2010 by the triage nurse at the medical centre to this effect:

"Fell at work and twisted back - pain across lower back and down right leg which 'tightens up'."

[16] It appears from those records that the first record of the pursuer stating that he had slipped on ice is on 31 December 2010 when he saw Dr Jennifer Dooley at the medical centre. The record of that consultation is as follows:

"Back pain since November - lower. Precipitated by slip on ice. Occas pain down leg. Tending physio."

[17] I am not able to place any material weight on the lack of reference to ice in the first entry after the accident. Without knowing what practice the triage nurse adopted in making such notations and whether, in particular, that nurse would record verbatim what was said, or merely a synopsis of what she was told at the time, I am unable to come to any view on the significance of the lack of mention of ice.

[18] Ms Waugh also relied on the evidence of Margaret Swankie who was the defenders' "cluster officer" responsible for schools, nurseries and libraries under the defenders' controls. She was responsible for staff, provision of personal protection equipment, counselling and human relation matters. She was responsible for about 113 staff including 8 or 9 school janitors. She was the pursuer's line manager at the material time. She gave evidence to the effect that the pursuer did not speak to her on 23 November 2010 reporting any incident. She became aware that the pursuer was off work on Monday 29 November when she phoned Henry Black, the senior janitor, in order to arrange for a relief janitor. She was told by Henry Black at that time that the pursuer was off work and Henry Black reported to her that he had seen the pursuer the previous week holding his side. Mrs Swankie reported that Henry Black gave her an account to the effect that the pursuer had told him that he had tripped and that it was his own fault. It was clear from Mrs Swankie's evidence that she had made no RIDDOR report in respect of the pursuer at any time. I was satisfied that, had the pursuer told her that he had had an accident, that she would have submitted such a report. However, her approach to the matter of reporting was that she would not report any incident unless it was being reported to her specifically as an accident. I was not able fully to resolve the conflict between her evidence and that of the pursuer on this matter, but because of the pursuers attitude to reporting in general, I consider it likely that, if he did speak to Mrs Swankie on 23 November, he would not have specifically described what had happened to him the previous day as an accident. As stated below, the pursuer appeared to me to be someone who was embarrassed by the fact that he had slipped and fallen and was diffident and hesitant about raising the matter at the time.

[19] Ms Waugh also referred to the evidence from Mrs Mullen the Head Teacher of St Francis and of Elaine Green the depute Head Teacher to the effect that if the conditions were as bad as portrayed by the pursuer, no pupils would have been allowed out to the playgrounds at mid-morning break . He could not therefore have been correct in his description of the weather conditions that day. Mrs Green said that, had the conditions been such that the pursuer encountered difficulty in getting to school that day, it would be unlikely that pupils would have been allowed out. However, both these witnesses accepted that, in some circumstances, the older pupils would be allowed out but not the younger ones and the break off point would be primary 6 or 7. The pursuer said that this was the situation on 22 November 2010. While I think it probable that there was an element of exaggeration in the pursuer's description of the conditions that day, his evidence does fit in with the sort of situation described by the teachers. Although the weather may not have been as bad as the pursuer recalled it, his memory may have been affected by the extreme weather which apparently occurred after 22 November 2010.

Discussion

[20] I was able to accept as credible and reliable, the evidence of the pursuer, his wife and his daughter. He gave his evidence in a straightforward manner without embellishment and, indeed, when first asked about the conversation with his wife shortly after these events, did not volunteer that he had told his wife that he had slipped on ice. He struck me as a rather diffident individual who would have been embarrassed about a fall and would have been unwilling to attribute blame. Having considered all the evidence that impacts upon the issue of whether or not the pursuer slipped on ice on 22 November 2010, I have concluded that, on balance, that is what occurred. I was able to accept the evidence of the pursuer on this matter and I accept that he reported having slipped on ice to his family shortly thereafter. The fact that some incident must have occurred is supported by the fact that he obtained an appointment at his medical centre with the triage nurse on 24 November 2010. He reported then that he had fallen at work. While there is no mention of ice as the cause of that fall, for the reasons I have given above, I am not able to place any weight on the absence of a reference thereto. The meteorological evidence of Mr Dale does not advance matters for the defenders because it is restricted to the 24 hour period of the 22 November 2010. For these reasons, I have concluded that, on the balance of probabilities, the pursuer's accident occurred as he stated.

Liability

[21] The pursuer's claim is based on a breach of statutory duty in terms of regulations 5 and 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 and under regulation 4 of the Personal Protective Equipment Regulations 1992. I shall deal with regulation 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992 (the 1992 Regulations) first. That regulation provides:

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

[22] Since I have accepted the pursuer's version of events, I have accepted that there was ice present on the top step of the fire escape on which he fell. The step was not therefore kept free from a substance which may cause a person to slip, trip or fall. There was no dispute from the defenders that the fire exit outside the classroom was a traffic route in a workplace.

[23] In that situation, the defenders must be held to be in breach of that statutory duty unless they can demonstrate that it was not reasonably practicable to keep that fire escape free from ice.

Evidence.

[24] The defenders led evidence from Daniel Cannon who had been a janitor at St Francis for 10 years. His line manager was Mrs Swankie. He said that he was given a gritting plan by Mrs Swankie who had come to his office with it. He did not know when that was. The gritting plan is 7/6 of process. However, he did not know what the pink areas on that plan signified and was not told that those areas were supposed to be salted at or before any particular time. The "Information Notes" which are 7/7 of process were on the wall of his office but he had never read them. He had received no training or instruction as to how to go about salting at the school or as to how much salt should be used. He had devised his own system which had not changed over the years he acted as janitor. It was left to him to decide the areas which were to be accorded priority. His system was to salt the paths leading to the main entrance of the school when he arrived at 7am with the spreader and would always do those areas before 9am when the school started. Thereafter he would do the fire exits. He used a salt scoop to spread the salt on the fire steps although no one told him to do that or gave him any instruction. The risk assessment (6/4 of process) was amongst the paperwork on a clipboard in his office. It bears the date 29/10/10. Mrs Swankie had come to him with this and went through it with him but he had not since read through it and had no input into it. Mrs Swankie did not tell him what duties the risk assessment required of him. It appeared that this document was subsequently ignored by him.

[25] Margaret Swankie was, as already stated, the cluster officer who was responsible for the defenders' staff in the schools and other buildings. She was also the line manager of the pursuer and Mr Cannon. She was asked to take the gritting plan and the risk assessment to all the janitors sometime in October 2010 and said that she sat down with them and went through the risk assessment but not the gritting plan. However, she also said that the purpose of sitting down with the janitors with the gritting plan was to get their input into it and to obtain from them the areas which ought to be treated. She said in cross examination that the janitors were in effect doing the gritting plan. When shown the gritting plan in the course of her evidence she said that the yellow areas showed the paths to be cleared before 9am. After 9am the areas to be treated were at the discretion of the head teacher. She did not know if those areas included the fire exits and thought that they would not be unless they were on the footpaths. She did not put the pink highlighted areas on the gritting plan nor did she put the black line on it and did not know what these signified. She thought that perhaps the pink areas ought to be done after 9am. The system was to make a clear path from the entrance to the school to the main door and from the disabled parking spaces before 9am. Thereafter the areas to be treated would be at the discretion of the head teacher.

[26] Donald Gorman was the defenders' Facilities Team Leader who was responsible for the cluster officers, including Mrs Swankie. He spoke to the defenders system of salting at the schools operated by them. According to him, the treatment programme was dictated by time constraints and there was thus a need to prioritise what could be done. There was a need to provide a safe path to the main door of the school and from disabled parking spaces before 9am. After 9 am further treatment was to be agreed with the head teachers of the individual schools. The janitor acted under the direction of the head teacher and they would identify priorities. The playgrounds and fire exits would be done after 9am. In relation to the gritting plan, he said that this was prepared because members of the public were demanding that pavements outside the school should be treated. Those areas were not part of the school's responsibility and it was decided to set out what areas ought to be done before 9am. He said that the gritting plans for individual schools were prepared by the janitors as a result of discussion with the head teachers. This system was agreed with the Education Department and he left it to them to carry it out. The gritting plan went out to the schools and was returned to his department after they had been highlighted. He thought the pursuer would know of the gritting plan and the risk assessment at St Stephen's and would thus know the "idea behind them". In cross examination he said that he did not see why the fire escape steps could not be kept free from ice but it would be difficult to treat them before 9am due to time constraints.

[27] Angus Craig was a director of the salt suppliers Peacocks Ltd who supplied the defenders. He agreed that to salt before the onset of cold weather was more effective than salting "reactively". That was because it took much less salt to prevent ice forming than to melt ice which had already formed. However, he also said that if snow then fell and was turned to water, that water could again freeze if, for example, the temperature fell further overnight. There was thus no guarantee of the effectiveness of "pre-salting". He also said that the use of a scoop would assist in spreading salt evenly and would give more leverage when salting areas such as the fire steps.

[28] Ann Marie Mullen had been the Head Teacher at St Francis' since 2008. She knew the pursuer as a relief janitor at her school and from St Stephen's. In cross examination she said that the fire escapes such as that at which the pursuer fell would serve up to 70 children. She was never told that they could not be kept free of ice and would be concerned if that had been the case. Her view was that they should be given a high degree of priority because they were a safely exit. She had not been at the school on 22 November 2010 and no accident involving the pursuer had been reported to her.

[29] Elaine Green was the depute Head Teacher in 2010. She was not aware that the fire steps could not be kept free of ice and would be concerned and surprised if that was the case.

The defenders' submissions

[30] Ms Waugh referred me to the opinion of Lord Justice Asquith in Edwards v The National Coal Board [1949] 1 KB 704 at 712:

"The construction placed by Lord Atkin on the words 'reasonably practicable', in Coltness Iron Company v Sharp 1937 SC (HL) 68 seems to me, with respect, right. Reasonably practicable is a narrower term than physically possible and seems to me to imply that a computation must be made by the owner in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk, whether in money, time or trouble, is placed in the other and that if it be shown that there is a gross disproportion between them - the risk being insignificant in relation to the sacrifice - the defendant's discharge the onus upon them. Moreover, this computation falls to be made by the owner at the point of time anterior to the accident"

[31] She also referred to Strangely Wincantom Logistics Ltd [2011] CSIH in which Lord Brodie considered the issue of reasonable practicability and how it should be approached. There was agreement between the parties that the formulation adopted by Lord Justice Asquith was the one to which the court should have regard, although Lord Brodie noticed that its correctness appeared to be put in question by Lord Mance in Baker v Quantum Clothing Group Ltd & Others [2011] 1 WLR 1003. He went on:

"Mr Middleton suggested that it was for the employer, here the respondents, to show that he had actually carried out certain exercise prior to any accident giving rise to a claim for breach of the regulation. We do not consider that suggestion to be sound. Rather, as Mr Smith submitted, while the fact that the employer has carried out a risk assessment is of relevance and may assist the court in determining whether the employer had discharged his onus, the balancing exercise is ultimately a forensic one. It is for the court to carry out after the event, not the employer before the event, albeit that the court must put itself in the position of the employer before the event, informed by such evidence as to risk and sacrifice as the court considers relevant."

[32] Ms Waugh argued that the evidence led by the defenders demonstrated that first they had provided the pursuer with rock salt which met the appropriate British standard for de-icing on surfaces such as steps and secondly, they provided him with a mobile gritter. It was, however, accepted by the defenders that such a gritter would not be appropriate for the salting of the step on which the pursuer fell. However, she argued that salting was, to a large extent, a common sense task which required a "dynamic assessment" by the janitor at the location to assess how much salt was required in the circumstances. It could be salted quickly and easily by hand and to have janitors working at weekends or in the evenings introduced a cost implication which, by implication, was unjustified in the circumstances.

Discussion

[33] It is apparent that the defenders' system was that the janitors ought to treat the pathways leading up to the school as a priority and complete that exercise before 9am. Thereafter, areas such as the fire escapes ought to have been treated. As Mr Gorman said, time constraints dictated that it was necessary to concentrate on the pathways leading to the main entrance so that pupils and staff could safely access the building. It was also their system that the janitors and head teacher ought to liaise as to the priorities to be allocated after 9am. It was plain, however, that the system as devised by the defenders was never introduced by them to the extent of informing the pursuer, Mr Cannon or the head teacher Mrs Mullen of it, far less maintained or monitored in any way. The pursuer was unaware of the gritting plan and the priorities accorded by it. He attempted to treat all areas except the bin areas and the car park before 9am. Mr Cannon, although he knew of the gritting plan did not actively follow it. He did not liaise with the Head Teacher about post 9am priorities. His practice, quite independent of the gritting plan, was to treat the fire escape steps after 9am.

[34] Mrs Mullen was never told that the fire steps could not be kept free from ice and would have been concerned if that was the case. It was obvious from her evidence that not only was she unaware that the defenders' system gave her a discretion as to which areas ought to have been treated after 9am but had she known that, she would have accorded them priority since, as she said, they were safety exits.

[35] I have come to the view that the defenders' system, as spoken to by Mr Gorman and Mrs Swankie, was a reasonable one. But it existed only on paper and was never actually put into action. It happened to be carried out by Mr Cannon to the extent of doing the paths to the school before 9am and the fire steps thereafter but he did so without the guidance of the defenders' system. In addition, I have concluded that such a system was one which ought to have been put into action and was necessary and sufficient to prevent a breach of regulation 12(3). I got the impression from the pursuer's evidence that he felt under some degree of pressure because he attempted to treat all areas other than the car parks and bin areas before 9am. That would accord with Mr Gorman's evidence that time constraints dictated that only the paths to the school and the disabled car parks should be treated before 9am and the evidence of Mr Cannon who happened to follow that practice in any event. Had the pursuer known to treat only those areas given priority by the defenders' own system before 9am, he would have had more time to concentrate on the fire steps thereafter and it is therefore likely that he would have taken more care over them. That would have been all the more likely if, as the system dictated, the head teacher had been involved in allocating priority to those areas after 9am. Clearly, had Mrs Mullen known of the system, she would have allocated the fire steps a high degree of priority.

[36] Such a system was reasonably practicable. The defenders devised it and thus must themselves have considered it to be so. Unfortunately, having devised it, they failed to institute or maintain that system.

[37] Further, there was available at St Francis' a scoop which Mr Cannon used to put salt on the fire steps and other areas which could not be done with the spreader. The evidence of Mr Craig, which I accept, demonstrated that a scoop would have allowed the salt to be distributed evenly than by hand and gave more leverage. The defenders' in my view ought to have had a system whereby janitors were instructed to use the scoop which was provided. Had this been done, I consider the pursuer would have used it and it would have increased the chances of ice being melted by the salt over the whole steps.

[38] For these reasons I conclude that the defenders were in breach of regulation 12(3) of the 1992 Regulations.

[39] Mr Fitzpatrick argued that the defenders were in breach of that regulation because they failed to institute a system of "pre-salting". However, I am of the view, first, that such a system would have entailed considerable additional expense in the form of the deployment of janitors in the evenings and secondly such a measure would by no means have eliminated the risk posed by ice. That is for the reasons given by Mr Craig, namely that ice could reform after salting in the event of an overnight reduction in temperature. It seems to me that, in the context of paths and fire steps in schools, it would not have been reasonably practicable to require such a system to be introduced. A system of reactive salting starting at 7am, with the allocated priorities as set out above, would have achieved, in my view, a reasonable balance between the level of risk and the "sacrifice involved in averting that risk". There is therefore no gross disproportion as described by Lord Justice Asquith in Edwards v The National Coal Board, even taking what Ms Waugh described as a "softer approach" implied by Lord Mance in Baker v Quantum Clothing Group Ltd. My view is that the defenders have failed to show that they did all that was reasonably practicable to keep the fire escape free from ice and snow.

[40] In relation to the pursuer's case under regulation 5 of the 1992 Regulations, I agree with Ms Waugh that this regulation does not apply to transient conditions such as ice. I respectfully agree with what is said by Lord Emslie at paragraphs 27 in McEwan v Lothian Buses PLC 2006 CSOH 56 and Lord Malcolm in Munro v Aberdeen City Council 2009 CSOH 129 at paragraphs 17 to 20. Accordingly, I do not find the defenders liable under that regulation.

[41] The pursuer also advanced a case on record under regulation 4 of the Personal Protective Equipment Regulations 1992 (the PPE Regulations). However, as Mr Fitzpatrick submitted, it would only be necessary to examine that case were I to have found for the defenders in the case under regulation 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992. This case was based on the failure to provide the pursuer with safety footwear in the form of metal grips. However, the pursuer said that he was supplied with safety boots but there was no evidence as to what type of soles those boots had or whether metal grips of any kind would have provided better traction than those boots. In addition, as Ms Waugh submitted, the pursuer's expert Mr Greasley set out in his report number 6/10 of process some extracts from a website of a manufacturer of such items which stated that in certain situations such as where there is patchy ice with exposed tarmac, the grips might have to be removed and not be suitable in thawing conditions (see paragraph 4.26 of his report). Had I been against the pursuer in respect of regulation 12(3), I would not have found the defenders liable under the PPE Regulations.

Contributory Negligence

[42] The defenders also contended that in the event of a finding against them, I should find that the pursuer should be found to have contributed to his accident by his own negligence. Mrs Waugh submitted that I should find him 100% responsible under reference to what Lord Emslie decided in McEwan cited above at paragraphs 32 to 33 or, in any event, responsible to some degree. She pointed out that the pursuer had been a janitor for many years, was familiar with the school and had slipped on fire steps he had salted earlier that day which at the time of his accident would have been in full view and he would have been in position to see where any ice remained. I have come to the view that the pursuer should not be held to be responsible for his accident to any extent. In proceeding to apply salt to these premises as he did, he was using his own system without any assistance by way of instruction or training from his employers. He cannot be blamed for proceeding as he did. Because of the way he approached his task, he was placed under some pressure of time. It is understandable, in those circumstances, that some areas which he treated prior to 9am were not treated effectively. I do not consider that he should be held to be responsible for a failure to apply salt, or sufficient salt, to the top step of the fire steps. In addition, he was not told to use a scoop to apply salt to this area and, had been so instructed, I was satisfied that he would have done so and it would have made effective coverage of the area more likely.

[43] Accordingly, I find the defenders to be liable in the sum of £30,000 to the pursuer. In terms of paragraph 4 of the Joint Minute this is inclusive of interest to 13 November 2012 and is net of any liability of the pursuer in respect of recoupable benefits. Interest is also payable up to the date hereof.

[44] The case will be put out by order so that the matter of additional interest, expenses and any other outstanding matters can be dealt with.