ALAN CAIRNS AGAINST DUNDEE CITY COUNCIL
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 86
PD704/15
OPINION OF LORD WOOLMAN
In the cause
ALAN CAIRNS
Pursuer
against
DUNDEE CITY COUNCIL
Defender
Pursuer: Clarke QC,. Galbraith; Digby Brown LLP
Defender: Smith QC; Clyde & Co LLP
17 May 2017
[1] Black ice is treacherous. It presents a significant hazard to individuals and vehicles. Unfortunately, Alan Cairns found that out. He is now a 59 year old self-employed consultant engineer. He was formerly employed by Haliburton.
[2] Mr Cairns had an accident on Saturday 1 December 2012. He said that the previous evening was icy cold. The morning was very cold too. He had to de-ice his car before driving from his home in Monifeith to go shopping in Dundee. He then drove to Broughty Ferry to visit a local butcher’s shop.
[3] Mr Cairns parked his car on Queen Street and then entered the car park there. He intended to visit the public toilet. As it was occupied he continued on his way through the car park. He is familiar with that area of Broughty Ferry, which is relatively close to his home. He said that on Saturdays, the Queen Street car park is “quite busy” with shoppers.
[4] As he walked through the car park Mr Cairns suddenly lost his footing. His feet went “straight up in the air” as if he was in a comedy film. The consequences were far from comic. He landed heavily on his left rear trouser pocket. He sustained serious injuries that kept him off work for several months and have had long term effects, which he described as “life changing”. Damages are agreed at £125,000 (net of benefits). I therefore need not say anything further about this element of the claim.
[5] As Mr Cairns lay on the ground after the accident he realised that he had slipped on a patch of black ice. He was a careful and helpful witness. He was reluctant to give exact dimensions for the size of the patch. His best estimate was that it was about 10 feet by 10 feet in extent. He was not prepared to estimate its thickness.
[6] Persons nearby came to his assistance. Mr Cairns noticed that they found it difficult to keep their feet. Mrs Melanie Simpson, an ambulance technician, and her paramedic colleague arrived at the scene in response to a 999 call. Even though they both wore footwear with good grips, they found the surface to be slippery.
[7] Two employees of Dundee City Council also gave evidence: (i) Maurice Fleming, one of the two maintenance assistants in the Parking Department; and (ii) his boss, Paul Zarembski, who is the Car Parking Officer. Mr Zarembski described Mr Fleming as “extremely competent and capable”.
[8] Mr Fleming has worked for the Council for 30 years. Mr Zarembski has been in post since 2007. Neither could recall a slipping incident at Queen Street car park prior to Mr Cairns’ accident. They had both heard of occasional incidents in other car parks.
[9] Mr Fleming’s duties in December 2012 involved collecting cash from pay machines and meters, emptying litter bins and carrying out various repair tasks. He worked on weekdays from 6.15am until 2.45pm. He also worked overtime most Sundays from 7am to 1pm. He did not work on Saturdays.
[10] His routine on weekdays was as follows. On his drive to work he would observe the weather conditions. In winter, he checked whether the gritter lorries were out. After he arrived at work his first task was to collect the cash. He followed set routes each day. That meant that he did not visit all 28 of the council’s car parks on a daily basis. He thinks that he visited Queen Street car park each Wednesday.
[11] If Mr Fleming thought it appropriate, he carried out gritting when he collected the money. He exercised his judgement and experience to make the decision. If he did grit the car parks on the route, then after depositing the cash at a secure place, he would go out in his van to grit the other car parks.
[12] There were gritting bins at each car park, two at Queen Street. Mr Fleming also kept gritting salt in his Transit van as a back-up. Although he had a shovel in his van, he would use a scoop to grit the car parks by hand from the bins.
[13] For many years Mr Fleming has kept a daily A4 diary. It contains both “to do” entries and a record of what he has done. He noted in his diary that on Friday 30 November 2012 he picked up two bags of gritting salt from the store and visited Queen Street car park. I found him to be a credible and reliable witness. I accept that he went there between about 9am and 11.30am and that if it had been required, he would have gritted the main driveways and pedestrian parts (but not the individual parking bays).
[14] The claim is based on section 2(1) of the Occupiers’ Liability (Scotland) Act 1960. It provides:
“The care which an occupier of premises is required, by reason of his occupation or control of the premises, to show towards a person entering thereon in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them and for which the occupier is in law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.”
[15] The dispute between the parties is a narrow one. It can be focussed in two questions. First, was it reasonable in all the circumstances for the council not to have a system for ice detection and treatment on Saturdays? Secondly, if they had had such a system, would it have prevented the injuries sustained by Mr Cairns?
[16] The answers to these questions are interwoven. Unless one knows the system that should have been in place, it is impossible to determine causation.
[17] Mr Clarke submits that the absence of any regime or system on Saturdays was a breach of the council’s duty. He contends that a reasonable system would have involved detection and treatment before the local shops opened at 9am or 10am.
[18] If correct, that would mean that the system on Saturdays would have been more stringent than that on weekdays, where Mr Fleming might not have visited Queen Street car park until after 10am. It also fails to acknowledge the resource implications. It is a matter for the local authority to determine when and where to deploy its employees. Mr Clarke’s submission would mean that it would have to provide cover for all 28 car parks each Saturday.
[19] The court is reluctant to trespass into this area, which involves questions of prioritisation and allocation of resources: Grant v Lothian Regional Council 1988 SLT 533, Morton v West Lothian Council 2006 SLT 7, Ryder v Highland Council 2013 SLT 847. I conclude therefore that the pursuer has not made out his case in terms of the 1960 Act.
[20] The question of when the black ice formed in the Queen Street car park is a matter of speculation. I cannot conclude whether it would have been gritted before the accident. It depends on the system implemented. Accordingly, I also hold that Mr Cairns fails on causation.
[21] Since the beginning of this year, there is a warning sign at the entrance to the car park. It states that the ground may not have been gritted in icy conditions. Mr Zarembski explained that he saw a similar sign at his stepdaughter’s school and thought it helpful to erect them at the council’s car parks. Mr Cairns said that if he had seen such a sign, he would have gone another way. Although he was fully restored following a hip replacement in May 2012, at the time of the accident he was more cautious about where he went. In my view, however, the duty of care did not extend to erecting a warning sign. Its content was in effect a statement of the obvious.
[22] I therefore hold that the pursuer has not established his case. Accordingly the claim fails and I shall assoilzie the defenders. In doing so I express my sympathy for the very unfortunate experience suffered by Mr Cairns.