Act: Milligan, Q.C.; Russell Jones & Walker

Alt: Stuart; Edinburgh City Council Legal Services Division

26 August 2011

Introduction
[1] The reclaimer was formerly employed by the respondents as a clerical assistant at Kirkriggs School, Glasgow. She is now retired. On 13 June 2007 while still employed by the respondents at the said school, the reclaimer had an accident while working there. She had occasion to use the ladies' staff toilets which were situated next to the staff room. Those toilets were used by more than twenty females employed in the school. There was a window in the cubicle used by the reclaimer, which was positioned directly over the toilet bowl within the cubicle. The window was situated directly above the cistern unit and was at a height of approximately 7 feet from the floor of the toilet.

[2] The reclaimer is 5'1" in height. She could not reach the window. The window had a window hook or ring which would have allowed it to be open by means of a window pole. There was no window pole available in the said toilets. Apart from employing a window pole, there was no other means of opening the window except manually. The window was closed when the reclaimer entered the toilet cubicle. After having used the toilet, the reclaimer wished to open the window in order to ventilate the cubicle. In the absence of a window pole, and having regard to her height, the reclaimer stood on the toilet bowl to reach the window to open it. Upon the pursuer seeking to open the window in that manner, the toilet bowl toppled sideways.

[3] The Lord Ordinary, Lord Tyre, who heard the proof, found that the reclaimer must have placed her right foot on the left hand side of the bowl as she endeavoured to pull the window pole ring with her finger to open the window. The Lord Ordinary held that it would not have been reasonable, in the circumstances, to expect the reclaimer, having used the toilet then to seek out another taller member of staff to open the window for her. He also held that the only other cubicle available for the reclaimer's use had a window situated virtually in the same position, and at the same height, as the window in the cubicle where the accident occurred. The Lord Ordinary at paragraph 6, page 4 of his opinion appears to have accepted that there was a window pole in the school janitor's office. He records that the reclaimer and four other colleagues, all of whom had worked in the school for many years, gave evidence that they had no knowledge of the existence of such a pole and believed that none had been available until after the reclaimer's accident. The Lord Ordinary held that, on occasions, the janitor would be away from his office for some time and during such periods his office would have been locked. He accepted that no steps were taken to advise or remind staff using the ladies' toilet of the availability of the pole to open the toilet window. The reclaimer stated in her evidence that prior to the accident, she had often stood on the toilet bowl to open the window and four of her colleagues gave evidence that they, too, had stood on the toilet bowl to open the window. The four colleagues in question were around 5'1" to 5'3" in height and were unable to reach the metal ring on the window while standing on the floor.

[4] As a result of her accident, the reclaimer sustained injury to her left heel which required medical and surgical treatment. Having heard evidence about the injuries sustained and the sequelae of these, the Lord Ordinary assessed damages, inclusive of interest, at £31,800. No challenge has been taken to that sum by the reclaimer. The Lord Ordinary, however, held that, had liability been established, the damages, calculated on a full liability basis, should be reduced by fifty percent to take account of the reclaimer's contributory negligence.

The reclaimers' case before the Lord Ordinary
[5] Before the Lord Ordinary the reclaimer alleged breaches of statutory duties on the part of the respondents to establish liability against them for her accident (she had pled a common law case but that was not pursued). In the event the Lord Ordinary held that she had failed to establish any of these cases and he assoilzied the respondents.

[6] The reclaimer relied, before the Lord Ordinary, in the first place, on a breach of Regulation 15 of the Workplace (Health, Safety and Welfare) Regulations 1992 ("the Workplace Regulations"). Regulation 15(1) is to the following effect:

"No window, skylight or ventilator which is capable of being opened shall be likely to be opened, closed or adjusted in the manner which exposes any person performing such operation to a risk to his health or safety."

It was accepted, on the part of the respondents, that standing on the toilet bowl was a manner of performing the operation of opening the window and that it exposed the pursuer to a risk to her safety. The Lord Ordinary, at page eleven of his opinion, opined that therefore the critical issue was "whether it was likely that the window would be opened in this manner". Having considered certain authorities, his Lordship reached the conclusion, at page thirteen of his opinion, that he could not hold that it was likely that the window in the cubicle would be opened by persons who stood on the toilet bowl to reach it. He, accordingly, held that there was no breach of statutory duty by the respondents under Regulation 15.

[7] The reclaimer, before the Lord Ordinary, relied also on Regulation 5(1) of the Workplace Regulations which provides that:

"The workplace and the equipment, devices and systems to which this regulation apply shall be maintained (including cleaned as appropriate) in an efficient state, in an efficient working order and in good repair".

The Lord Ordinary held that the facts did not support a case of failure by the respondents in the maintenance of the workplace, equipment, devices and systems to which the regulations apply.

[8] Regulation 20 of the Workplace Regulations was also prayed in aid by the reclaimer before the Lord Ordinary. It requires suitable and sufficient sanitary conveniences to be provided at readily accessible places. Under Regulation 20(2) sanitary conveniences are not suitable "unless ... the rooms containing them are adequately ventilated and lit". The reclaimer maintained that the absence of a window pole in the cubicle meant that the maintenance of ventilation in the toilet was impossible so that the room was not adequately ventilated. The Lord Ordinary held, on the facts, that there had been no breach of Regulation 20 and that, in any event, no causal link existed between any such alleged breach and the injuries sustained by the reclaimer had been made out.

[9] The last basis upon which the reclaimer sought to fix liability upon the respondents for her accident, before the Lord Ordinary, was that they had been in breach of Regulation 3 of the Management of Health and Safety at Work Regulations 1999 (the 1999 Regulations). Regulation 3(1) provides:

"Every employer shall make a suitable and sufficient assessment of -

(a) the risks to health and safety of his employees to which they are exposed while they are at work".

The reclaimer contended that the respondents had failed to make a suitable and sufficient risk assessment in relation to the operation of opening of the window. The Lord Ordinary noted at paragraph 22 of his opinion that the factual basis for the submission, as he understood it, was the defenders' failure, in response to a Specification of Documents, to produce a relevant risk assessment. His Lordship continued:

"I do not consider this to be a sufficient basis for me to find in fact that there had been no risk assessment."

He went on to say:

"In any event, I am not satisfied that a suitable and sufficient risk assessment would have disclosed the risk of persons standing on the toilet to open the window. Given the alternatives which I have found to be available to persons unable to reach the metal ring, and the absence of evidence of actual knowledge by the defenders that staff were standing on the toilet (and it is worth recalling that the frequency of this occurring remained unclear), I accept the defenders' contention that no breach of Regulation 3 has been established".

[10] It a noteworthy feature of this case that the Lord Ordinary in his opinion makes no mention at all of the evidence of a witness, Charles Boyd, led on behalf of the respondents. This witness was examined, cross-examined and re-examined. The transcript of his evidence, with which we were provided, clearly indicates that he spoke to matters which were relevant to the issues in the case. He described himself as a health and safety manager employed by the respondents and claimed some expertise and experience in relation to risk assessment. Not only did the Lord Ordinary fail to review the evidence of this witness at all, in his opinion, but the court does not have his views as to the credibility and/or reliability of the witness. This is a matter to which we will require to return.

The reclaimer's present case

[11] In the reclaimer's note of argument, lodged in support of her reclaiming motion, her position as to the basis of liability on the part of the respondents for her accident, changed, in part, from her position before the Lord Ordinary. Before the Lord Ordinary her position with regard to Regulation 5(1) of the Workplace Regulations was that the provision of a window with a metal ring but with no window pole was an unsafe system, the consequence of which was that the workplace equipment was not maintained in an efficient state.

[12] In the note of argument in support of the reclaiming motion, her argument based on Regulation 5 was reformulated. In the event no objection was taken by counsel for the respondents to a reformulated argument being advanced under reference to Regulation 5. The reclaimer continued to maintain her case based on Regulation 15(1) of the Workplace Regulations and Regulation 3 of the 1999 Regulations. She did not advance a case on breach of Regulation 20 of the Workplace Regulations, as such, although reference to its provisions was made.

[13] The reclaimer's argument based on Regulation 5 of the Workplace Regulations was, as we understood it, as follows. Regulation 2 defines "workplace" thus:

"subject to para (2), any premises or part of premises which are not domestic premises and are made available to any person as a place of work, and includes -

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

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

On behalf of the reclaimer it was argued that the toilet was part of the premises to which the reclaimer had access while at work. It was, accordingly, part of the "workplace" in terms of the Regulations. The obligation to maintain the workplace in efficient working order and in good repair, having regard to the provisions of Regulation 5(1) was an obligation on the employer regardless of whether or not any fault or defect in the workplace was known or even knowable. Reference was made to Millar v Galashiels Gas Co 1949 SC(HL) 31, Boyle v Kodak [1961] 1 WLR 661 Stark v the Post Office [2000] ICR 101, Hyslop v Lynx Express Parcels 2003 SLT 785 and McLaughlin v East and Midlothian NHS Trust 2001 SLT 387. The fact that the toilet bowl had toppled established a breach of Regulation 5(1).

[14] A separate argument was that the toilet bowl was "equipment" to which the Regulation applies. Regulation 5(3)(a) provides that:

"The equipment, devices and systems to which this Regulation applies are -

(a) equipment and devices a fault in which is liable to result in a failure to comply with any of these regulations."

Senior counsel for the reclaimer combined reference to that wording of the provisions with a reference to Regulation 20(1) and (2)(a) quoted above. A toilet bowl which toppled in the circumstances of the present case, it was contended, was "equipment which had not been properly maintained" and in which there was a fault for the purposes of Regulation 5. In support of the contention that the toilet was part of the workplace for the purposes of the regulations, senior counsel referred to Harrison v RB Tennent Ltd 1992 SLT 1060. In that case a worker was injured when he was descending from the top of boxes 5'6" high, where he had been working, attaching sling hooks to lugs on the boxes. He had fallen through a damaged board, twisted and fallen backwards, causing a mechanical low back strain. The Lord Ordinary at page 2 said that:

"On the evidence which I accept, I have no hesitation in holding that the pursuer's place of work was the top of the boxes at which point he had to stand in order to secure the crane hooks to each of the boxes. At the conclusion of that job, as was well known to the defenders, the only means of returning to ground level was to move down from the top of the last box onto the bogey platform and from there to the ground. Accordingly the bogey platform to which the pursuer made his way at the time of the accident was the only egress available to him."

Having regard to the evidence in the case his Lordship continued:

"I have no hesitation in finding that the defenders were in breach of their statutory duty to provide a safe means of egress from the pursuer's place of work and that by reason of such breach, the pursuer sustained injury".

The definition of "workplace" in Regulation 2(1) of the Workplace Regulations has been quoted above. The Regulations sought to give effect to Council Directive 89/654/EEC(OJL393,30.12.89p.1). Article 2 of the Directive provides:

"For the purposes of this Directive, 'workplace' means the place intended to house workstations on the premises of the undertaking and/or establishment and any other place within the area of the undertaking and/or establishment to which the worker has access in the course of his employment."

Counsel for the respondents sought to argue that the toilet accommodation did not fall within the definition of "workplace" for the purposes of Article 5 of the Regulations. He did so by arguing that that accommodation was not part of the premises where the reclaimer carried out her work nor was it a means of access or egress thereto or therefrom. The case of Harrison was concerned with the defective nature of the means of access and egress to a place where the employee was clearly required to work.

[15] We disagree with the respondents' approach to this question. Having regard to the definition of "workplace" in the Regulations and the underlying Directive, we are satisfied that the toilet accommodation where the accident occurred was a "workplace" for the purposes of Regulation 5. The respondents had, in our opinion, however, a more secure basis for attacking the reclaimer's case based on Regulation 5 and that was that there were simply no facts in this case to suggest that the toilet area or the window in it were not maintained "in an efficient state, in efficient working order and in good repair". Even if one approaches the matter on the second, and more narrow, basis upon which the reclaimer founded this part of her case, namely the toilet bowl was "equipment" for the purposes of Regulation 5, the fact is that there was no evidence that it was not subject to a suitable system of maintenance. The fact that it toppled when it was being subjected to a use for which it was never designed or intended, namely being employed as a means to open a window, does not, in our opinion, provide evidence that it was anything other than a properly maintained toilet bowl, if used for its proper designated purpose. For that reason the authorities relied upon by the reclaimer to the effect that, if a defect in the workplace, and the equipment devices and systems, to which the regulations apply, emerges, there is no need to establish that this is because of any fault of the employer or that there was any notice of that fault, are beside the point. An abuse by the employee of equipment for the purpose for which it was never designed does not establish that the equipment was not in an efficient state, or not in efficient working order or not in good repair. We accordingly conclude that the reclaimer's case based on Regulation 5 fails.

[16] As regards the reclaimer's case based on Regulation 3 of the 1999 Regulations, taken together with Regulation 15 of the Workplace Regulations, the reclaimer has to rely on the evidence of Mr Charles Boyd, to which we have previously referred. Counsel for the respondents urged us to disregard this evidence, in the first place because the Lord Ordinary had not dealt with it in his opinion and secondly, because it was said to be open, in any event, to certain criticisms. The situation in the first respect, is in our experience, novel. It is quite true, as we have previously noted, that the Lord Ordinary simply made no mention of this witness' evidence at all in his opinion. We are left, therefore, without any assistance as to the witness' credibility and reliability, based on the Lord Ordinary's advantage of hearing and seeing the witness. The witness was, however, led by the respondents and was cross-examined and re-examined. He appears to have had some unchallenged expertise and experience in relation to matters at issue in the proof. He certainly was not stamped with the seal of incredibility or unreliability by the judge who heard and saw him give evidence. The evidence is part of the case. We consider that we are entitled, therefore, to have regard to it and to make of it what we can.

[17] The witness advised the court that he was employed as a health and safety manager for Land and Environment Services within the respondents' operation His job, he said, involved looking at establishing and maintaining a health and safety management system for Land and Environmental Services which itself was an organisation of about 4,800 employees. He had held his current position for ten years. At a later stage, in his examination in chief, he advised the court that he had a diploma in occupational safety and health. He advised the court, however, that his job did not extend to the schools for which the respondents were responsible, The respondents' counsel, however, proceeded to examine this witness on the basis that he had expertise in the area of risk assessment. The witness had been to the school to examine the toilet area shortly before the proof. Counsel for the respondents put the following question to the witness:

"Now, in circumstances if it is assumed that the Council had no reason to know that Mrs Wallace or any others were standing on a toilet for that or for any other purpose, in your experience as health and safety manager is that a risk that you would assess?"

The answer to that question was:

"Unless I was informed that this was a regular occurrence, I would not assess the risk because the risk I would be looking at would be the opening of the window. The opening of a window is covered by another piece of legislation which is the Workplace Health, Safety and Welfare Regulations, which says that any window which an employer has that any employee should wish to open (a) should be working and (b) should present no health and safety hazard to the employee who is operating the window and, further, in the approved Code of Practice of these Regulations it suggests that circumstances where the window opening mechanism is outwith the reach of the employee, a device such as a window pole should be provided and if I was going and looking at that and you would ask how the windows opened and somebody would say, "with a window pole" I wouldn't even consider there was a risk there."

A fair reading, in our opinion, of that piece of evidence is that the witness considered that if no window pole had been provided, there would be a risk that a person who could not reach the window, because of their height, might take steps to open the window in some other unsatisfactory manner. That is, we believe, confirmed by what the witness said in cross-examination when the following question was put to him:

"If you were told there wasn't a pole available to open the windows in the ladies' lavatory at Kirkriggs School, what would you say to that?"

The witness' reply to that question was as transcribed:

"I would suggest that if there wasn't a pole available to open the windows, then that was in ... the approved Code of Practice was not being adhered to and ...".

The Lord Ordinary intervened by referring to the witness' use of the words "approved Code of Practice" and in response to the Lord Ordinary's intervention, the witness said:

"The regulations - I think it is Regulation 15 of the Workplace Regulations - says that the windows should ... the opening and the closing of the window should occur without any health and safety implications to the person who carried that out, and it is recognised in the regulations that people have different sizes and the windows have different height."

The witness then continued:

"And it's suggested within the approved Code of Practice, which is, if you like, as a guidance, that in such cases a window pole be provided, so, if a window pole was not provided, we would not be in compliance with that, and if the window was opened, then the risk may be that somebody would wish to stand on the toilet to go up, although I would suggest that that is the sort of situation where that would be brought to the attention of the management saying, 'I can't open a window. I don't want to stand at that toilet seat' or whatever. Again, in the absence of that, yes there should be a window pole."

It was then asked of the witness in cross-examination:

"It is the kind of thing, if someone can't reach a window and there is no pole that they might try to find some way to open it?"

The witness' reply was: "They might, yes". A further question was then put to the witness in cross-examination: "And in your view, is it a safe operation for someone to be requiring to open a window and not have a window pole suitable to open it?" The witness, in reply, as transcribed, said:

"The available ... they ought to have the availability. What the reg. ... what the Code of Practice is, it's got to be available, so if there's no pole available, then that wouldn't comply".

Later on in cross-examination the witness said, once again, if there was no window pole available the appropriate code of practice would not have been adhered to. Counsel for the reclaimer in cross-examination put it to Mr Boyd:

"If there was knowledge that there was no window pole available and that the window was being opened, would that be enough that a risk assessment should be ...?".

The reply was:

"It would depend on . Whoever was carrying out the assessment would have to have knowledge of that. It wouldn't be a significant risk so far as the number of people using it, but if there was knowledge of that taking place, I would expect that an experienced manager or safety person who'd been trained in risk assessment to assess that risk and find it unacceptable."

Mr Boyd was asked:

"And so far as you were aware was there a risk assessment in relation to opening the window as at June 2007?"

The reply to that question was:

"I did not ask the question, was there a risk assessment there. I was asked for my opinion on should there be one, so whether ... I don't know whether there was one or there wasn't one at that time."

Mr Boyd was then asked:

"And on the basis that a pole was not available, should there have been a risk assessment".

He replied:

"On the basis that the pole was not available to open the window and there was knowledge that, if you like, the seat was being used or the toilet was being used to access then I would say that that should have been assessed."

[18] Addressing the issue of an alleged breach of Regulation 3 of the 1999 Regulations, the Lord Ordinary seemed to consider that even though the reclaimer had sought by a specification of documents to recover any such risk assessment from the respondents and had failed to do so, that was an insufficient basis for holding that there had been no risk assessment and therefore this part of the reclaimer's claim had not been proved. It might be thought that it was incumbent on the respondents to produce any risk assessment if it existed and, if they did not, that was a reasonable basis for drawing the inference that no such assessment had been carried out. Be that as it may, it emerged, in the hearing before this court, that the respondents' agents had, by letter of 25 February 2010, written to the reclaimer's solicitor, under reference to the reclaimer's specification of documents, and informed them that there was no risk assessment in relation to the use of the toilet bowl for opening the window. We consider it unsatisfactory that the respondents, when faced with a case based on breach of Regulation 3, proceeded on the basis that they did before the Lord Ordinary, namely not admitting, as they knew, that no risk assessment had been carried out.

[19] There was no evidence that a window pole had ever been available in the ladies' toilet. There was evidence, which the Lord Ordinary accepted that there was a window pole in the janitor's office. The Lord Ordinary, however held that its presence "was not widely advertised". He did accept that the janitor spent time away from his room doing other duties around the school and its grounds and that the door to his office would be locked during such times. The Lord Ordinary accepted that it would not have been reasonable to expect the reclaimer, having used the toilet, then to seek out another taller member of staff to open the window for her. As he put it:

"She might have had a long and fruitless search, by which time the purpose of opening the window, i.e. to ventilate prior to use by the next person, might well have been defeated".

He did, however, consider that it would have been practicable for the reclaimer, prior to using the toilet, to seek the assistance of the janitor, notwithstanding his finding that the janitor was often away from his office for considerable period of time. It is difficult for us to see the distinction, apparently drawn by the Lord Ordinary, between the reclaimer seeking help of a taller member of staff and seeking the help of the janitor which might have resulted in exactly the same situation of a "long and fruitless search, by which time the purpose of opening the window i.e. to ventilate prior to it use by the next person might well have been defeated". We, accordingly, reach the view that it was not reasonable to expect the reclaimer to go searching for the janitor to obtain access to his office to find therein the window pole. The Lord Ordinary, in fact, held that there were two safe courses of action that the reclaimer could have followed. The first was simply not to try to open the window. The second was to seeks the assistance of the janitor. He came to the conclusion, at paragraph 22 of his opinion that, because of these alternative available courses of action and the absence of evidence of actual knowledge by the respondents that members of staff were standing on the toilet bowl to open the window, there was no breach of Regulation 3. We consider that the Lord Ordinary's reasoning in these respects was unsound. In the first place, as already touched upon, we consider that the Lord Ordinary's view of the reasonable practicability of the reclaimer searching out the janitor to get access to his office to obtain the window pole was misconceived for the reasons we have already given. In addition we consider that the alternative course of action suggested by the Lord Ordinary namely for the reclaimer simply to leave the window closed was both unreasonable and unrealistic. It was wholly foreseeable that a person, such as the reclaimer, would be anxious to be in a position to ventilate the toilet after she had used it. It is clear, in our view, from the evidence of Mr Boyd, that had a proper risk assessment been carried out the absence of an available window pole, standing the height of the window, would have exposed a significant risk of a person, such as the reclaimer, seeking to open it in an unsafe manner either by stretching or by using the toilet bowl to stand upon. In our opinion there was a breach of Regulation 3 of the 1999 Regulations, particularly having regard to the requirements of Regulation 15 of the Workplace Regulations. The significance of such a breach was explained by Smith LJ, with whom the other members of the Court of Appeal agreed in Allison v London Underground Ltd [2008] ICR 719 at page 736 paragraph 57 where her Ladyship was to the following effect:

"How is the court to approach the question of what the employer ought to have known about the risks inherent in his own operations? In my view, what he ought to have known is (or should be) closely linked with the risk assessment which he is obliged to carry out under Regulation 3 of the 1999 Regulations. That requires the employer to carry out a suitable and sufficient risk assessment for the purposes of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions. What the employer ought to have known will be what he would have known if he had carried out a suitable and sufficient risk assessment. Plainly, a suitable and sufficient risk assessment will identify those risks in respect of which the employee needs training. Such a risk assessment will provide the basis not only for the training which the employer must give but also for other aspects of his duty, such as, for example, whether the place of work is safe or whether work equipment is suitable". [Emphasis added].

Her Ladyship then at paragraph 58 continued:

"Risk assessments are meant to be an exercise by which the employer examines and evaluates all the risks entailed in his operations and take steps to remove or minimise those risks. They should be a blue print for action".

Again in Griffiths v Vauxhall Motors Ltd [2003] EWCA Civ 412 Clarke LJ, as he then was, in giving judgment, with which the other members of the Court of Appeal agreed said at paragraph 39:

"The whole point of a proper risk assessment is that an investigation is carried out in order to identify whether the particular operation gives rise to any risk to safety and, if so, what is the extent of that risk, which of course includes the extent of any risk of injury, and what can and should be done to minimise or eradicate the risk."

His Lordship went on to say if such an assessment had been carried out in the case before him it was "much more likely than not that it would have identified the risk of injury, albeit of a comparatively low order".

Decision
[20] The provisions of Regulation 15(1) of the Workplace Regulations which we have set out above, in our judgment, required the respondents to address the question as to how the window in question might be opened, closed or adjusted. Had they carried out a proper risk assessment in relation to that question, then standing the height of the window from the ground, and its situation, and following the evidence of Mr Boyd, they would have, in our judgement, discovered the risk of injury to persons of the height of the reclaimer if no window pole was provided, in situ in the toilets or, at least, very readily accessible at all times nearby. To suggest, as the Lord Ordinary did, that the reclaimer should simply have refrained from seeking to open the window for the purposes of ventilating the toilet area after use ignores the significance of the duty on the respondents under Regulation 20(1) and (2) with regard to the ventilation of such areas. It appears that the only source of ventilation of the cubicle was to be obtained by opening the window. A proper risk assessment would have pointed out the risk of someone, like the reclaimer, when no window pole was available, seeking to open the window for ventilation purposes either by standing and stretching, which itself could have caused injury, or, alternatively, attempting to reach the window by standing on what appears to have been the sole means of doing so, namely the toilet bowl, which itself would have been dangerous.

[21] For the foregoing reasons, we consider that the reclaimer's case based on Regulation 3 of the 1999 Regulations, taken together with Regulation 15 of the Workplace Regulations, has been established and that the respondents are liable to her for the injuries resulting from her accident.

[22] As to contributory negligence, we are, however, in full agreement with the Lord Ordinary. As he said at paragraph 24 of his opinion, this was not a case of momentary inattention or inadvertence. It was a deliberate act by the reclaimer, which she acknowledged in her evidence to have been dangerous, and which she had done on an unspecified number of previous occasions. It appears to us that a reduction of any award to the reclaimer by fifty percent, as the Lord Ordinary suggested, is wholly appropriate.

[23] As previously noted, the reclaimer did not seek to disturb the quantification of damages by the Lord Ordinary on a full liability basis at £31,800. We shall, therefore, allow the reclaiming motion by recalling the Lord Ordinary's interlocutor and granting decree in favour of the reclaimer for payment to her by the respondents of £15,900.

[24] Before leaving this case, we would wish to stress that it illustrates the importance of judges of first instance, as triers of the facts, providing a summary of the evidence given by witnesses who speak to matters which are clearly pertinent to the issues to be determined in the case, and to indicate their views as to the credibility and reliability of the evidence in question.