[2012] CSOH 33



in the cause







Pursuer: Middleton; Russell Jones & Walker

Defender: Davie; Ledingham Chalmers LLP

29 February 2012


[1] In this action the pursuer claims damages for an injury sustained when he slipped on a plank whilst delivering a package to the defender's cottage. The claim is brought under the Occupiers' Liability (Scotland) Act 1960. In his pleadings, the pursuer also advanced a case at common law, but this was not insisted on at proof.

The facts
[2] The pursuer is 72 years old. He retired from the Prison Service some 21 years ago. He has a history of arthritis, causing him occasional pain and discomfort, as a result of which he attended his General Practitioner with some regularity before the accident. At the time of the accident, and for some time before, as a result of an operation to his right knee, he walked with a stick in his left hand. Mr Middleton, who appeared for him, submitted, on the evidence adduced at the proof, that such pain and discomfort did not prevent him doing anything - it was no more than "ongoing low-grade discomfort". I broadly accept that description of his pre-accident condition.

[3] For approximately 6 years leading up to the accident with which this action is concerned, the pursuer worked on a self-employed basis as a courier for DHL. That was a part time job which occupied him for about two hours a day. Parcels would be dropped off at his house and he would then deliver them to the relevant addresses. In December 2008 one of the parcels dropped off at his house was for delivery to the defender at Woodside Farm Cottage, Solsgirth, by Dollar. On 20 December 2008 the pursuer drove out to Woodside Farm Cottage to deliver the parcel. He drove himself to the cottage in his own car (as he always did) and found the surrounds of the cottage to be like a building site. That was, in effect, what it was. The pursuer was having extensive works carried out to her cottage, involving the demolition of a single storey section and its replacement with a two storey extension. The work had begun in October 2008 and was nearing completion. The defender had moved out for the duration of the works and was living in temporary accommodation in Dollar, though she visited the site daily to monitor progress, check her mail and walk her dog which she kept in a kennel there. So close was the work to completion by mid‑December 2008 that the defender started moving her belongings back into the cottage on Boxing Day.

[4] When he arrived at the defender's cottage, the pursuer could not get to the front door because a trench had been dug between it and the road. He went to look round the back. The site around the back was mucky, with some obstructions caused by storage of building materials. Planks had been laid out to walk on. There had been a lot of rain. He went by way of the planks to the back door, knocked, and, on realising that no-one was there, slipped a DHL card through the door, with his telephone number and a message to call him, and left, taking the parcel with him. The next day or the day after that (the precise timing does not matter) he drove back out again to deliver the parcel. It is unclear whether or not he spoke to a builder on that occasion - he averred in his pleadings that he had, but in evidence he was sure that he had not - but the point is not important. After knocking on the door (and possibly leaving another card and message), he again left with the parcel.

[5] The accident occurred on the third occasion on which he visited the cottage to deliver the parcel. I accept the evidence of the pursuer's wife, Agnes Dawson, that this visit was on 20 December 2008, the day before the pursuer went to Accident and Emergency - he thought it was on the same day. Although at one point in his evidence the pursuer suggested that the third visit was "after tea time" on that day, I do not think that that can be right. His description of his movements on that visit did not suggest that he was finding his way in the dark or in the gloom, and indeed later in his evidence he came to accept, as I understood it, that the third visit was before tea time and that it was not dark. Although this was late in December, when it gets dark fairly early, I am satisfied that the visit took place and the accident occurred in daylight at a time when the pursuer's observation and awareness of what he was doing was not adversely affected by poor light.

[6] On his previous visits to the cottage, the pursuer had noticed a dog kennel round the back of the house, though he does not appear to have looked at it closely or appreciated that the defender's dog was being kennelled there during the building works. The pursuer's evidence was that on the evening before the third visit he received a telephone call from someone, a male who he took to be the defender's son, presumably in response to him having left his telephone number on the DHL card jammed in the door of the cottage, and it was arranged that he would leave the parcel in the dog kennel. I will come back to this later. Accordingly, when he visited the cottage the following day, he took the parcel to the back of the house to put it in the kennel. He discovered that the kennel was dirty or wet, and decided instead to put the parcel under an oil storage tank a little way beyond the kennel at the back of the cottage. Having done this, he returned to the back door of the house, put a note through the door saying what he had done, and then from the back door made his way back on to the plank as before to go back to his car. As he transferred his weight onto the plank, on his left foot, he slipped and fell, putting his left hand down to break his fall. According to the pursuer, though his evidence was not very clear, he had his stick in his right hand at this point - although this seems unusual, given that the stick was needed because of a weakness in the right knee, I accept his evidence on this since it fits better with the fact that his left hand was injured in the fall.

[7] The above account of what occurred is taken from the evidence of the pursuer, his wife Agnes, and the defender. They were all credible witnesses and, on the whole, reliable. Only the pursuer could speak to the accident itself. His wife came with him in the car on the day of the accident and could confirm that he returned to the car complaining of having hurt himself in the manner described, as a result of which she drove home (though he gave a different account of this at one point); but she stayed in the car while he was round the back, and could not see the accident from where the car was parked. Neither the defender nor the builders working at the cottage were told of the accident until a claim was intimated to the defender many months later. For that reason there was no inspection on behalf of either party of the locus immediately after the accident, no examination of the plank or planks and, apart from two photographs taken by the pursuer or his wife a couple of days later, no visual record. However, apart from the question of whether he tripped or slipped, what happened is relatively clear.

[8] I should make findings on a number of matters on which the evidence was either disputed or left room for uncertainty. In considering these areas of disputed evidence I should make it clear that, although I found the pursuer to be a credible witness, I was not persuaded that his recollection could always be relied on as accurate. There were instances where he altered his position more than once. Where he differed in detail from what was said by his wife, I was satisfied that his wife's evidence was to be preferred. On other occasions he himself would emphasise that he could not remember all the details which to him seemed minor. In reaching my decision on the specific matters mentioned below, I have considered carefully the extent to which the pursuer's uncorroborated evidence should be accepted.

[9] One matter in issue was the origin of the parcel. This was thought to be relevant to the question of whether the pursuer was an "invitee" (to use the language of some of the older cases). I do not think that it assists on that issue or that that issue is relevant to the question of liability, since I would have thought that the status of a person delivering packages for a courier company such as DHL cannot depend on whether or not the parcel was one that the addressee had asked for, was one which the addressee was expecting (albeit not ordered by her), or was one which was wholly unexpected (perhaps sent as an unexpected present by someone else). Nonetheless, the issue was raised on the evidence and I must make a finding of fact on it in case it should be thought to matter hereafter. The defender thought that the parcel must have been a complimentary gift hamper from Diageo, for whom her late husband had worked. Such a hamper was delivered just before Christmas each year. She never asked for them, though she was not ungrateful - they just came. She could not remember any other parcel having been delivered at that time. The pursuer was sure it was not a Diageo package. Such packages came in a cardboard box, whereas this one was just a parcel wrapped in blue paper. The import of his evidence was that it must have been something that the defender had ordered. I find it difficult to reach any firm view on this, but I think it unlikely that the package contained anything the defender had ordered. Had she ordered something to be delivered, she would surely have asked for it to be delivered to her temporary rented accommodation in Dollar. I therefore find on balance of probabilities that it was not a package ordered by the defender.

[10] There was also an issue about the circumstances in which the pursuer came to leave the package under the oil tank behind the dog kennel at the back of the house. The pursuer said in evidence that he received a telephone call at his house the evening before he made the third visit to the cottage. It was from a male voice, which he guessed must have been from the pursuer's son. During that conversation it was agreed, probably at the pursuer's suggestion, that he would leave the parcel in the kennel. His evidence was not wholly consistent on this. His pleading had been amended at one point to aver that the phone call was initiated by him, but that was plainly wrong since he would not have known who to call. The pursuer's wife heard him receive the call and could say that it related to leaving the parcel in the kennel, but could not say from any first hand knowledge who he was speaking to. The defender gave evidence that she did not recall seeing the pursuer's card through the door - and I am prepared to accept that it may have been mislaid in the disruption of the building and clearing work during the day - and she was insistent that her son, Gavin, would not have gone to the cottage or gone out of his way to help. He was, she said, "not generally helpful". Having heard evidence from her son, who was called on this point only and was insistent that he did not go to the construction site during the works and was disarmingly candid and open about his reluctance to go out of his way to help his mother ("it was not the kind of thing I would do for her"), I accept the defender's evidence on this. The telephone call remains a mystery. It might have been from someone at DHL suggesting what to do with the package, or it might have been from someone else altogether. But that is speculation. I simply find on balance of probability that the telephone call to the pursuer that evening about leaving the package in the kennel was not from the defender or her son or anyone else on her behalf. As I explain below, however, I do not consider that this point is of any importance, since the plank on which the pursuer slipped was not way out the back on the way to the kennel or oil tank (an area to which he might only have gone as a result of the telephone call), but was a plank on which the pursuer would have stepped each time he went to the back door.

[11] The plank was part of a line of planks which had been laid by the builders as a path over the muddy area at the back of the house, no doubt for walking on and also for wheeling building materials. The area was generally muddy because a lot of rain had fallen in the days or weeks leading up to the accident, and there were puddles of standing water on the site. A couple of days after the accident, the pursuer and his wife went back to the cottage to take photographs of the site. They were lodged in process. They told me, and I accept this, that the site shown in the photographs was somewhat tidier than it had been when the accident occurred. That was not because the builders were deliberately attempting to make the site look better than it had been at the time of the accident - they did not know of the accident - but probably just because the work was coming to an end. Nonetheless, the photograph of the back of the house, with lines drawn on it by the pursuer, gave a helpful indication of the position as it must have been. The direct route from the entrance to the site (effectively the garden gate where access to the site was taken from the track on which the pursuer parked his car) to the back door was blocked by building materials which were covered to some extent by an old carpet. It was no doubt possible to walk over them and directly to the back door without much difficulty, but a line of planks had been placed making a pathway almost parallel to the back wall of the house and further out from it. Anyone wishing to approach the back door was, in effect, invited to use the pathway formed by the planks, and then cut in from the planks to the door when opposite it - or at least it would be reasonable for a visitor to consider that they were being so invited. From the line of planks, the route to the back door involved walking over a rough and in places muddy area, and probable crossing over at an easy point the building materials covered by the carpet to which I have referred.

[12] The pursuer described in detail where he went on the third visit, when the accident occurred. He walked along the planks past the back door and continued along on the planks until they came to an end somewhere before the kennel. He looked at the kennel, decided that it was too dirty to leave the package in it, and went on to leave the package under the oil tank beyond. He returned, retracing his steps, joined the line of planks and walked along the planks until opposite the back door. He then stepped from the planks onto the ground and made his way to the back door. Having put a note through the back door to say that he had left the package in a different place from that which had been agreed the night before, he walked back across the ground to the line of planks. As he put his foot onto the relevant plank and transferred his weight onto his left foot on the plank, he slipped and fell to the ground.

[13] This was the only direct evidence as to what occurred. Although some of the hospital notes suggest that he may sometimes have said that he tripped or stumbled, and the pursuer's evidence was far from compelling on this point, on balance of probabilities I accept the pursuer's evidence that he slipped in the manner described. But the fact that he slipped when transferring his weight onto the plank does not necessarily mean that the plank was particularly slippery. The pursuer could not go that far. Neither can I. I do not find that the pursuer slipped because the plank was more slippery than it might ordinarily be expected that a wet plank would be. I deal with this aspect in more detail below.

[14] However, a number of other points arise. On the pursuer's version of events, he had probably stepped on the planks in that area twice already that day before the occasion on which he slipped, once when going to the kennel and once when coming back and diverting to the back door to drop in the note. Whether he stepped on precisely the same plank is irrelevant, since it is not suggested that the particular plank on which he slipped differed in any material respects from the planks adjacent to it. It is possible that he knocked on the door before going up to the kennel to leave the package, in which case that would have added another occasion on that day on which he had left the walkway made by the planks and then rejoined it in approximately the same place. The occasion on which he slipped would, therefore, have been at least the third (and possibly the fourth) occasion on which he stepped on the line of planks in that area on that day. The pursuer gave no indication in his evidence that, on the occasion of the accident, he chose a different route to and from the back door from that which he had used on the two previous visits. On the assumption, which I consider that I am justified in making, that he used much the same route on those previous occasions, the pursuer would have trodden on the planks in that area, on another four occasions before the visit when the accident occurred, going off the planks to get to the front door and getting on again when coming from the front door. That makes seven or eight times in all.

[15] The pursuer described the plank on which he slipped as "greasy". He said that he had noticed that it was greasy when he was on his way to the oil tank with the package. There was no other evidence of this, since the accident was not reported to anyone at the time. It was not clear what he meant by this. He was not, as I understood his evidence, seeking to suggest that there was a deposit of grease on the particular plank. Nor was he seeking to suggest that this plank differed in its "greasiness" from the others. He emphasised that it was an "ordinary plank" and he was not alarmed at the prospect of stepping on to it. I took him to be saying that he noted that all the planks had a wet, greasy or slippery appearance, as untreated wood tends to have when wet. It is, I think, a matter of common knowledge that wet planks can be slippery, but, whether this is so or not, there was no evidence from which I could conclude that this plank, or these planks, was or were more slippery than any other wet planks. Further, in so far as the planks were greasy or slippery, that was clearly visible to the pursuer, so much so that, according to his evidence, he did in fact observe and take note of the fact before he walked on them, but he was not worried about it. I should add, for completeness, that there was no suggestion in evidence that any of the planks were unstable.

[16] Two other points of detail should be noted. First, the defender had a letter box attached to a post on the fence by the gate into the garden. This was shown in a later photograph, but it is accepted that it was there at the time of the accident. It was clear, however, that this was not big enough to take the package, and it can be ignored for present purposes. Secondly, the defender gave evidence that there was a warning notice attached to the scaffolding used by the builders when erecting the extension. As I think she came to accept in cross-examination, I consider that she was mistaken on this point. It is clear that the builders did use scaffolding, and I believe the defender's evidence that there was a notice attached to the scaffolding when it was up. But the photographs taken by the defender showed clearly that when they were taken a couple of days after the accident the scaffolding had been removed. I infer from that that it had been removed some time before the accident. Quite why it should have been removed is unclear, since the photographs showed that, although the extension had been built, the block work on the walls was still exposed - later photographs showed that cement rendering had been added to the block work before the walls were painted, which would have required scaffolding to be put up again. The defender said that the rendering was completed after the new year. I am satisfied that at the time of the incident there was no scaffolding erected on the site. It follows, that there was no warning notice.

Injury to the pursuer

[17] According to the pursuer, when he returned to his car immediately after the accident he did not feel any particular pain. He was driven home by his wife. An hour or so later he began to suffer a lot of pain. He attended A&E at Stirling Royal Infirmary the next day. It is possible that his hand started to swell on the day of the accident but, if it did, the swelling had gone down by the time he attended A&E. He was very tender over the distal radius, the anatomical snuff box and the scaphoid areas. He was X-rayed for a scaphoid fracture, put into plaster, given painkillers and sent home. On attending the fracture clinic on 23 December 2008, it was determined that there was no fracture. He was put into a splint and discharged. The pain did not go away. His hand became extremely painful and he was unable to grip. Eventually it was decided that surgery should be carried out. A trapeziectomy was carried out on 17 June 2010 to remove the trapezium bone and thereby reduce the amount of joint surface rubbing. No tendon coil spacer was inserted to fill the void. Such an operation has a high success rate but in the case of the pursuer has not resulted in any particular relief of symptoms. The operation has left a scar. He continues to experience constant and, at times, disabling pain which affects his daily life. He takes strong painkillers every day. He does not sleep well. He can no longer easily do things that require the use of both hands. His driving is restricted. He used to play the guitar at his local bowling club, and make jewellery to sell at car boot sales, but cannot do any of those things now. He used to garden, and still does but only to a limited extent. His wife ties his tie and buttons up his shirt. She has to cut up his food for him, as a result of which he is generally too embarrassed to go out for meals or other social occasions as they used to do.

Submissions on liability

[18] For the pursuer, Mr Middleton submitted that, despite the fact that she had temporarily moved out of her cottage and given it over to the builders, the defender remained an occupier of the cottage for the purpose of the 1960 Act. She therefore owed a duty to take reasonable care to ensure that people entering onto the premises did not suffer injury or damage as a result of the presence of any danger there. The existence on the site of a wet slippery plank was a danger against which the defender should have taken precautions. The defender failed in this respect - she took no steps to close off access to the premises or to put up any warning sign alerting strangers to the existence of a danger. That was sufficient to establish liability.

[19] For the defender, Ms Davie argued that, having moved off the premises and employed builders to carry out the work to the cottage, the defender was not to be regarded as an occupier at the material time since she no longer retained sufficient control to give her the capacity to act so as to fulfil any duty of care incumbent on her make the premises safe: see per Lord Reed in Gary Gallacher v Kleinwort Benson (Trustees) Limited 2003 SCLR 384 at para.[124]. In any event, she was unaware of any danger presented by the plank and could not reasonably have been aware of it. She was not therefore responsible in law for any such danger; and even if she was legally responsible, she could not in the exercise of reasonable care have been expected to take steps to guard against a danger of which she was unaware. In addition she relied upon the maxim volenti non fit injuria and also argued that, if the defender was liable, the pursuer should be found contributorily negligent.

[20] In the course of submissions I was helpfully referred, on the questions relating to liability, to Cameron et al., Delict, Chapter 17 and Stewart, Reparation: Liability for Delict, Chapter 19, and also to the following authorities:

(a) Dumbreck v Addie & Sons 1929 SC (HL) 51 and M'Glone v British Railways Board 1966 SC (HL) 1 on whether the nature and purpose of the pursuer's presence on the premises may affect the standard of care required of the occupier;

(b) Wheat v E Lacon & Co Limited[1966] AC 552, Pollock v Stead & Simpson Ltd 1980 SLT (Notes) 76, Murray v Edinburgh District Council 1981 SLT 253, Ferguson v Welsh [1987] 1 WLR 1553, Feely v Co-operative Wholesale Society Limited 1990 SLT 547, and Gallacher v Kleinwort Benson (Trustees) Limited (supra), on the question whether the defender was at the material time an occupier of the premises within the meaning of the Act;

(c) Haseldine v CA Daw & Son [1941] 2 KB 343, Duncan v Cammell Laird & Co Ltd [1943] 2 All ER 621, Hughes v Lord Advocate 1963 SC (HL) 31, M'Glone v British Railways Board (supra), Wheat v Lacon (supra), McQueen v Ballater Golf Club 1975 SLT 160, Hosie v Arbroath Football Club 1978 SLT 12, Wallace v City of Glasgow District Council 1985 SLT 23, Ferguson v Welsh (supra), McDyer v The Celtic Football and Athletic Co. Limited 2000 SC 379, Gallacher v Kleinwort Benson (Trustees) Limited (supra), Cochrane v Gaughan 2004 SCLR 1073, Falconer v Edinburgh City Council Longstone Social Club 2003 RepLR 39 and Porter v Scottish Borders Council 2009 RepLR 46, on various aspects of the question of the exercise of reasonable care;

(d) McCaig v Langan 1964 SLT 121 on the defence of volenti non fit injuria; and

(e) McClafferty v British Telecommunications plc 1987 SLT 327 and McMillan v Lord Advocate 1991 SLT 150 on contributory negligence.

I intend no disrespect to the submissions of counsel if I do not refer to all of these authorities in detail.

Discussion on liability
[21] The pursuer's case is brought under the Occupiers' Liability (Scotland) Act 1960. The important provisions, for present purposes, are in s.2 of the Act. Those provisions have effect, in place of the common law rules, for the purpose of determining the duty of care owed by an occupier of premises to others in respect of dangers due to the state of the premises or to anything done or omitted to be done thereon: see s.1(1). The duty, as defined in s.2(1), is to take:

"...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."

S.2(3) goes on to provide that nothing in the Act is to be held to impose on an

occupier any obligation in respect of risks which a person has willingly accepted as his.

[22] The Act therefore lays down two preconditions to the existence of a duty of care owed to a person coming onto the premises. 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 done or left undone there. If those two preconditions are satisfied, the occupier will owe to a person coming onto the premises a duty to take reasonable care to see that he is not injured by reason of the danger. What care is reasonable will depend on all the circumstances.

[23] I am satisfied that the defender was an occupier of the premises despite the fact that she was not living there during the building work. There is no doubt that she was the occupier before building work commenced. At that point she went to live in Dollar for the duration of the works. Nonetheless, she visited the property every day to walk her dog and, in order to get the dog, will have had to walk over the premises to the kennel. There are suggestions in some of the cases to the effect that if control is handed over to contractors, the owner of the property may for the duration no longer have sufficient control to be treated as an occupier. In Gallagher v Kleinwart Benson (Trustees) Limited, at para.[124], Lord Reed said this:

"The 'control' of premiseswhich brings a person within the ambit of section 2(1) of the 1960 Act is such control of the premises as enables that person lawfully to take the steps which are necessary to fulfil the duty of care imposed by that section."

While I accept that the test relates to control (Wheat v Lacon per Lord Denning at p.578C-579A), I have some concerns about a test which may make a person an occupier in respect of some steps which could be taken but not in respect of others - such a distinction seems to me to be more suited to a consideration of what steps an occupier might reasonably be expected to take than to the identification of the occupier himself. But the point is of no great consequence here. The steps which the pursuer says should have been taken in fulfilment of the duty of care imposed on the occupier in this case range from the erection of a fence and the locking of a gate to the putting up of a warning notice on or at the entrance to the premises. For reasons which I explain later, it seems to me that the only realistic candidate steps are connected to the putting up of a notice. The pursuer retained sufficient control of the premises to do that or to require it to be done.

[24] Accordinlgy, I am satisfied that she is to be regarded as an occupier for the purposes of the Act.

[25] However, I am not satisfied either that there was a danger on the premises or that there was any failure by the defender to take reasonable care. Although the points are distinct, they can sensibly be dealt with together.

[26] Despite the longevity of the Act, and the equivalent Act in England, there is little help to be gleaned from the decided cases (or at least those to which I was referred) about what consitutes a danger. The main issue on liability tends to be about the taking of reasonable care. But, as I have said, the points are distinct. Some things - such as moving parts in machinery, a concealed step or cavity, or an unstable foothold - are perhaps obvious dangers, requiring steps to be taken at all times to avoid the risk of injury. But not everything giving rise to an accident is necessarily to be regarded as a danger requiring such precautions, or at least not all the time. There may be a temporal element. A thing with the potential to cause harm may only be a danger at certain times and under certain conditions. A person may trip over a step, but that without more does not mean that the step was a danger requiring precautions to be taken, at least during the day or when the place was well lit. But if the step was hidden, or in an unexpected place, or if it might be foreseen that people would be walking around there in the dark, then it might constitute a danger. Irregularities in the ground may be obvious in daylight, and therefore constitute no danger, but at night the position might be different. If it were otherwise, every staircase and every other obstruction of any kind would constitute a danger against the risks of which there would be a duty to take precautions. That is not the law. All will depend on the facts.

[27] That certain obstructions, if apparent, may not consitute a danger at all in certain conditions was made clear by Diplock LJ in the Court of Appeal in Wheat v E. Lacon & Co. Ltd. [1966] 1 QB 335. In that case, the deceased fell when he descended an unlit staircase from his room in a public house at night. The handrail on the staircase terminated before the bottom of the steps, and, on the judge's findings, this caused or contributed to his fall. In the Court of Appeal, in the context of discussing what measures should have been taken to guard against any such danger, Diplock LJ considered the question of whether the staircase with its foreshortened handrail presented a danger at all. At p.371 he said this:

"... the danger presented by the staircase in the present case, such as it was, was apparent. It was, indeed, as the judge held, non-existent in daylight or when the electric light bulb for which they had installed the necessary fitment was on."

Moving away from the particular circumstances on Wheat v Lacon, that passage tends to suggest that something which is not inherently dangerous in itself, which is in full view of a person likely to come across it, and whose characteristics are all apparent to such a person, is not likely to constitute a danger against which precautions need be taken. The danger is, in those circumstances, "non-existent". Diplock LJ went on, at p.372, to say that

"... The premature termination of the handrail involved risk of injury to a person using it only if four conditions were fulfilled, videlicet: (1) he was unfamiliar with the staircase; (2) he went down it at a time of darkness or semi-darkness; (3) he did not switch on the light; and (4) he did not make sure that his advancing foot was firmly planted at a lower level before transferring his weight to it. All four of these conditions depend upon the voluntary act of the user of the staircase; that all four might be fulfilled was foreseeable as a possibility, but Lord Atkin's aphorism must not mislead us into treating "foreseeability" as a shibboleth distinguishing events against which there is a legal liability to take precautions from events against which no precautions need to be taken. My neighbour does not enlarge my duty to care for his safety by neglecting it himself.

The concluding sentence of that passage (and by inference the whole of it) was cited with approval in the House of Lords by Viscount Dilhorne at [1966] AC 552, 576. As he put it:

"I do not myself consider that this staircase was a dangerous staircase for someone to use who was taking proper care for his own safety."

The fact that a person using the premises might not take sufficient care for his safety cannot make a danger of something that is not otherwise dangerous.

[28] Applying that to the circumstances of the present case, all that happened was that the pursuer slipped on a plank. In so far as it was slippery because it was wet, its slipperiness was obvious for all to see; and, indeed, the pursuer had not only stepped onto it several times over a period of a few days but had even noticed, before stepping onto it, that it looked slippery. There was no hidden danger, nor anything to disguise any hazard from the pursuer. It was not dark. Any risk associated with using it as a pathway was there for all to see. The pursuer could have avoided stepping on to it. In short, there was nothing to make the plank a danger against which the defender should have taken precautions.

[29] But if it did constitute a danger, what precautions should the defender have been expected to take? Mr Middleton suggested that the degree of care required might depend to some extent upon whether the pursuer was invited onto the premises, or at least upon whether his attendance was anticipated by the defender. That depended, he suggested, on whether the defender had ordered the package or (if it was the Christmas gift from Diageo) at least expected it to be delivered. The position was even clearer where the pursuer had left a card and had been invited to leave the package at the back of the house. In such circumstances, he submitted, the defender ought to have told the pursuer to deliver the package to her house in Dollar or have arranged to meet him to take delivery of it herself. Even in a case where the defender did not invite the pursuer onto the premises, or where she was unaware that he or someone else would come onto the premises to deliver something, there should have been a fence and a gate to keep people off the site; or, at the very least, there should have been a notice at the entrance to the site warning of the need to take care when walking around.

[30] While I can accept that the requirement to take reasonable care may be informed by the likelihood of people coming onto the premises and being exposed to the danger, I do not think that that helps the pursuer in the present case. I reject the submission that steps should have been taken to exclude the pursuer, or others, from the site. An occupier is only required to take reasonable care. In addition to the likelihood of people coming onto the premises, what is reasonable will depend upon, among other things, the seriousness of the risk posed by the danger on the premises. The question of what precautions require to be taken requires to be decided in the light of common sense having regard to all the circumstances: M'Glone v British Railways Board, per Lord Pearce at p.17. If the danger was posed by a piece of machinery with moving parts, or was a danger of serious injury or death, then it might well be that the steps required of an occupier would involve putting up some barrier to entry to the site, or fencing off the machinery, even if the danger was easily avoided by the exercise of ordinary care by a person entering on the premises. But, in the present case, not only was the danger easily avoided by the exercise of ordinary care, but the risks, if any, posed by the danger were small. At the worst, a person might trip or slip on a plank or some uneven surface. In such circumstances, it would clearly be sufficient for the occupier to put up a notice warning of the danger and emphasising the need to take care. But, if the hazard is apparent, what would be achieved by such a notice? Here, any danger posed by the plank walkway was obvious. Wet planks may be slippery. A notice is not required to point that out. Such dangers, if they be dangers, send out their own warning. The pursuer observed that the plank looked slippery. What more would a notice have told him? Accordingly, I reject the submission that the defender was required, in the exercise of any duty under the Act to take reasonable care, to exclude people from the site or to put up a notice warning of whatever danger was posed by the plank walkway.

[31] Ms Davie argued, under reference in particular to Ferguson v Welsh (supra), that in the exercise of reasonable care the defender was entitled to rely upon the contractor taking the appropriate steps. I have no reason to believe that the contractor was not competent or conscious of his health and safety obligations, if I may call them such. And I accept that the defender would not be liable for injury caused to one of the contractor's employees by some failure in working practice. How could the defender have any control of that? But the position is different when it comes to steps which required to be taken on this site to protect third parties entering the site from danger. Had it been necessary in the exercise of reasonable care to put up a barrier or a gate, the defender would have been able to ask the contractor to do it, and to check whether it had been done. Similarly if a notice was required, the defender could have asked the contractor to put one up, or do it herself. In both cases, it would have been open to the defender to request the contractor to take the appropriate steps. But it would also have been within her power to check whether the necessary steps had been taken, and to complain if they had not been taken. Whether she could then have done anything if the contractor had failed in his duties is, to my mind, on margin separating liability from non-liability. But the present case is far removed from that margin. In the present case the defender knew or could have known whether appropriate steps had been taken and could have raised the matter with the contractors. So far as concerns putting up a notice, she could have done it herself. That is sufficient in this case to exclude a defence based on the employment of a contractor.

[32] Nonetheless, both because the wet plank did not constitute a danger, and because, even if it did, there was no requirement on the defender to exclude people from the site or give warning of the risks, I hold that the pursuer's claim fails.

[33] Two further points were raised by Ms Davie for the defender. First, she relied upon the pursuer's willing acceptance of whatever risk was presented by the plank to exclude liability, under reference to the maxim volenti non fit injuria. Any risk was obvious and the pursuer decided to take that risk. That defence was specifically preserved by s.2(3) of the Act. Under reference to McCaig v Langan at p.124, Mr Middleton argued that it could not be said that the pursuer willingly consented to take the risk of the defender's negligence. That misses the point. What the pursuer did here was accept the risk of going onto the site as he found it, with the risks which were obvious to anyone who went on. Whether that site had been allowed to get into that condition through negligence or not - and in my view no negligence was involved - is neither here nor there. He consented to undertake the risk inherent in what he saw. It would be quite different if, as in McCaig v Langan, there was some supervening negligence which he could not have anticipated and to which he could not be taken to have consented. Had it been necessary to decide this point, I would have found that this defence was made out.

[34] The other point raised by Ms Davie was contributory negligence. It is difficult for me to deal with this point standing my conclusions of fact and law. I have found in favour of the defender on the basis that she was not negligent, both because the plank did not present a danger to the ordinarily careful person, and because any danger was apparent and did not require to be pointed out. It appears to me to follow from these findings that if, as a matter of law, my decision that the defender was not liable is incorrect, and the defender is liable for the injury caused by the accident notwithstanding that any danger was apparent and avoidable by the exercise of ordinary care, then the pursuer must have been careless, and that carelessness broke the chain of causation or, at least, means that the pursuer was contributorily negligent, and that to the maximum allowed by the law. Had I had to deal with the question of contributory negligence, therefore, I would have held that there was contributory negligence to the extent of 50% as contended for by Ms Davie.


[35] I have already described the injuries suffered by the pursuer and the treatment undergone by him. There was no substantial dispute as to this. Nor was there any real dispute about his present condition which I have described in para.[17] above.

[36] There was, however, some dispute about his condition before the accident; and as to the extent to which his condition after it was caused or significantly contributed to by the accident, or was, at the other extreme, merely a development of the pre‑existing condition which would have occurred in any event within substantially the same period of time. The defender's case, in short, was that the accident caused painful bruising which lasted for a few weeks, but that that died down, the pursuer's continuing difficulties thereafter being a result of the developing arthritis and other problems from which he was already suffering. I heard expert medical evidence from Professor McQueen (for the pursuer) and Mr Ross (for the defender). Both are very experienced surgeons; and they are also experienced medico-legal practitioners. Both accepted that in the fall the pursuer suffered a soft tissue injury to his left wrist. Mr Ross's opinion was that that was the extent of his injury from the fall. That injury would have lasted for about 4 to 6 weeks. The pursuer's ongoing injuries were unrelated to the fall. The pursuer had previous degenerative change to his thumb and, while he did not previously complain of it, that was because he took regular analgesia for other health complaints which masked the symptoms. The accident was likely to have caused only a modest exacerbation of the pre-existing condition which would have required surgery in any event. Professor McQueen also considered that the pursuer had pre-existing osteoarthritis in the carpo-metacarpal joint of his left thumb prior to the accident; that the fall caused an exacerbation of the pre-existing degenerative change at the base of his left thumb. That pre-existing degenerative change had been asymptomatic for a number of years prior to the accident, but was exacerbated by the fall. The continuous pain suffered by the pursuer thereafter, his need for surgery and his subsequent incapacity, all in the way which I have described, resulted from that. Had he not had the fall, it was unlikely that he would have developed further significant symptoms or would have required surgery.

[37] I prefer the evidence on this point of Professor McQueen. The difficulty for the defender's case on this aspect may be simply expressed. While it is clear that the pursuer had had a number of medical problems in the past - having had a discectomy and a laminectomy and suffered from hypertension and high blood pressure amongst other things, was suffering from osteoarthritis, and was taking a lot of analgesic medication for his various ailments - the fact is that before the accident he was coping, and was able to carry on with his various activities which I have mentioned and was able to perform without great difficulty his part time job as a courier. After the accident he was unable to do these things. If, before the accident, he was not in pain, he clearly was after the accident. If, before the accident, the pain which he was suffering was masked to a considerable extent by the various painkillers he was taking, that was not the case after the accident. Why was this? Did the painkillers suddenly cease to be effective? Or did the pain increase significantly? The latter explanation appears the more likely, particularly since Mr Ross could not suggest why painkillers which had previously been effective should suddenly cease to be so. As Professor McQueen said, it is unusual to have pain suddenly arising with no trigger. The likely explanation was that the pain got worse because of the accident. She ruled out carpal tunnel syndrome, and I did not understand Mr Ross to press it seriously. Even if Mr Ross is correct in describing severe basal thumb pain for many years before the accident, masked by the taking of regular analgesia, he gave no explanation of why that analgesia should suddenly have stopped working. Nor, in my opinion, was Mr Ross able to give an acceptable explanation of why the condition from which the pursuer suffered before the accident would have developed as they did had the accident not taken place. In this regard, I accept Professor McQueen's evidence that future symptoms cannot be predicted with confidence from radiology.

[38] At one point Mr Ross appeared to be suggesting that the pursuer now had a greater perception of pain, even though there was no deterioration caused by the accident. I do not consider, on the facts of this case, that we are in that territory. However, that would not in an event provide the defender with an answer. If the effect of the accident was to cause a heightened perception of pain, then in principle that would be sufficient to entitle the pursuer to claim damages based on the consequences of that heightened perception of pain having been caused by the accident. That does not arise here and would obviously depend on the facts of each case.

[39] On the basis of my findings on the medical expert evidence, I accept Mr Middleton's submission that solatium should be assessed on the footing of the pursuer (a) having suffered a soft tissue injury disturbing the carpo-metacarpal joint and aggravating the previously low grade symptoms of arthritis there, (b) having had to undergo surgery, albeit unsuccessful, and (c) suffering on-going symptoms of pain and stiffness which would not have manifested themselves but for the accident. Mr Middleton suggested a basic award of £10,000 as against Mr Davie's figure (on this hypothesis) of £5,000-6,000. Mr Middleton accepted that the pursuer's age might point to an award on the lower end of the scale. Had I found in favour of the pursuer on liability, I would have assessed solatium at £7,000. The addition of interest on one half of that for 3 years at 4% would bring the total figure as at the date of the proof to £7,420.

[40] As regards wage loss, I do not accept that the pursuer would have carried on working at the same rate until the age of 75. He was 69 at the time of the accident and 73 at the date of the proof. Having seen him in the witness box and heard his evidence, I think it unlikely that he would have continued to work much beyond the time of the proof - had he done so, I suspect that the amount of work would have dropped off considerably. I was given figure for his earnings between October 2007 and January 2009. They do not show an entirely consistent picture, but I would assess his earnings in the months immediately preceding the accident at about £370 a month, say £4,500 a year. If I allow three years wage loss in the period leading up to the proof at that rate (without making allowance for any drop in the amount of work over that period), that would give a margin, in my view, to cover any small amounts that he might have earned thereafter. Had I found in favour of the pursuer on liability, therefore, I would therefore have assessed past wage loss at £13,500 (which, with the addition of interest for 3 years at 4% comes to £15,120) while allowing nothing for future wage loss.

[41] Finally, as regards services, Mr Middleton invited me to take a broad brush "composite" approach under ss.8 and 9 of the Administration of Justice Act 1982, and award £3,000 in respect of past services (with interest for 3 years at 4% of £360) and a further £3,000 for future services, making a total of £6,360. I did not understand Ms Davie to have any great complaint about such figures upon the basis of the facts found by me. Accordingly, had I found in favour of the pursuer on liability, I would have made an award in his favour of this amount.

[42] For completeness I should note that on quantum Mr Middleton referred me to the Judicial Studies Board Guidelines (10th Ed) - "Moderate Hand Injury" and "Moderate Injuries to Thumb", to Facts & Figures 2010/11 issued by the Professional Negligence Bar Association, and to two cases to illustrate typical awards for minor hand and thumb injuries, namely Hunt v Strudwick 1992 CLY 1698 (Tunbridge Wells County Court) and Dawson v Tayside Health Board 1998 GWD 1‑52. In addition, Ms Davie referred to Blaney v Post Office 1996 GWD 33-2002 and Hughes v Grampian County Food Group Limited 2006 RepLR 78 as examples of the low ceiling on awards for short lived aggravations of pre-existing symptoms.


[43] For the reasons set out earlier in this Opinion, I shall assoilzie the defender from the conclusions of the Summons.