| OUTER HOUSE, COURT OF SESSION [2006] CSOH 68 |
| PD388/05 | OPINION OF LORD TURNBULL in the cause PETER ALASTAIR STRUTHERS‑WRIGHT Pursuer; against NEVIS RANGE DEVELOPMENT COMPANY PLC Defenders: ________________ |
Pursuer: Hardman; Russel & Aitken
Defenders: Ross; McClure Naismith
4 May 2006
Introduction
[1] The pursuer in this action is Peter Alastair Struthers-Wright. The defenders are the Nevis Range Development Company PLC, a company incorporated under the Companies Acts and whose registered office is at Edinburgh Quay, 133 Fountain Bridge, Edinburgh. The defenders provide skiing services at Aonach Mor near Fort William.
[2] The pursuer seeks an award of damages against the defenders in light of injuries suffered by him whilst skiing at Aonach Mor on Wednesday 20 March 2002. The case called before me for proof on Tuesday 7 March 2006. Mr Hardman appeared as Counsel for the pursuer and Mr Ross appeared as Counsel for the defenders. I heard evidence on that and the following two days. Submissions were presented on Friday 10 March.
[3] At the commencement of the proof, I was given information about a development in the assessment of the pursuer's injuries which had only just come to the attention of his Counsel. In light of this, Mr Hardman invited me in terms of Rule of Court 36.1(b) to order that the proof on liability be separated from proof on quantum and to restrict the current issue at proof to liability. Mr Ross consented to this motion. In these circumstances, I granted the motion made.
[4] Mr Hardman led the evidence of the pursuer and his wife, Gale Struthers‑Wright. Mr Ross led evidence from Ms Marian Austin, the defenders' Managing Director, Tony Cardwell, the defenders' Ski Patrol Manager, David Sutherland, a Snow Boarding Instructor employed by the defenders, Paul Roe, a further member of the Ski Patrol, and Bruce Crawford, the Chief Executive of Snowsport Scotland.
The Nevis Range Facility
[5] The defenders provide skiing and snow boarding services at what they call the Nevis Range, at Aonach Mor near Fort William. The services include tuition, hire of equipment, a range of different ski lifts and tows and the presence of a Ski Patrol to provide advice and medical assistance.
[6] The main ski area is situated on the north west slope of Aonach Mor and is referred to as The Goose. Access is provided to this area from the car park below by what is called a mountain gondola. Customers who wish to use the facilities purchase tickets from a kiosk in the car park area. From the top station of the gondola customers can access a range of ski runs, tows and chairlifts within The Goose area.
[7] A second ski area, known as The Back Corries, is located on the north east slope of the mountain. Access to the Back Corries is obtained from the summit plateau of Aonach Mor. Skiers (or snow boarders) may reach the summit plateau by taking a combination of ski tows or lifts within The Goose area to the tow called the Summit Button Tow. Using this tow the skier accesses the plateau itself. The Summit Button Tow was referred to in evidence as "The Summit Tow". The top of the Summit Tow is at a height of some 4,000 feet.
[8] From the top of the Summit Tow there are ski runs which are broadly parallel with the tow. One could ski up and down these using the Summit Tow. In addition, there are runs, heading from the top of the Summit Tow, which would take a skier back into The Goose area.
[9] The defenders commenced operations at Aonach Mor in 1989 with facilities in The Goose area. About two or three years later they added the facilities in the Back Corries.
[10] All of the ski runs within both The Goose and the Back Corries are given names and their locations and routes are represented on literature provided by the defenders. The ski runs are also graded in ascending order of difficulty from green to blue to red and to black. In 2002, the runs within the Back Corries were all graded as either red or black runs. The defenders' production number 7/57 of process was accepted by the parties as being the version of their leaflet describing their facilities which was in use in 2002. It contained a representation of the ski areas with the various runs marked and named. Next to the representation of the ski areas there is text headed up: "A Friendly Welcome To The Nevis Range!" There are three paragraphs of text below this heading. The second paragraph is in the following terms:
"Opening up the Back Corries with the Braveheart Chair has expanded the skiable area considerably, providing intermediate and experienced skiers and boarders with an off-piste expanse, unrivalled in Scotland! Entry points are marked on the map, you are advised to consult Ski Patrol to verify snow conditions and avalanche risks, look out for the piste signage or call into the ski patrol hut at the top of the Summit lift."
At the edge of the ski map on this leaflet is a text box within which the grading of the runs is explained. Green is described as easy, blue intermediate, red difficult and black very difficult.
The Summit
[11] The eastern edge of the summit plateau is bordered by a ridge. If one exited the summit tow and walked directly ahead one would be walking to the east. Within quite a short distance one would come to a steep cliff edge beyond which was an area used by climbers. Beyond the top of the Summit Tow the defenders had erected a fence to try and discourage people from heading off in that direction. Following the cliff edge or ridge in a northerly direction, one would come to a point known as Climbers Coll. From this point on, the ridge curves round to form a basin with the area below known as The Back Corries.
[12] From the Climbers Coll onwards, the ridge provides access for skiers into the Back Corries. There are a number of runs within the Back Corries, some of which are accessed from this part of the ridge. This part of the ridge, as it runs around the summit edge, is known as the Lemming Ridge. Once into the Back Corries, skiers can use the facility of a chairlift called the Braveheart Chair to allow them to ski up and down a portion of the slope and can make their way back by other runs to The Goose area.
[13] From the area of the Lemming Ridge, there are a number of marked and recognised ski runs into the Back Corries. The first of these commences at a point just to the north of Climbers Coll and is called Chancer. The next run commences about two hundred metres further on around the curve of the ridge and is called Back Track. When snow is lying on the summit plateau the shape and precise location of the edge can change. As snow builds up and is blown across the plateau by wind, the snow at the edge can create an overhang known as a cornice. The entry point from the ridge to each of the Chancer and Back Track runs is marked by a pole bearing a sign with the name of the run. These poles are simply placed into the snow and can be moved as and when necessary. The snow at the entry point is cut away so that at that point there is no overhang and the skier can move straight onto the face of the slope. The entry at the Chancer run is steeper than that at the Back Track run. In 2002, the Chancer run was graded as a black run whereas the Back Track run was graded red.
The Chancer Run
[14] The Chancer run is sign posted from the top of the Summit Tow. The route to the run is marked by a line of poles permanently sunk into the rock. The line of poles runs broadly parallel to the cliff edge in the area used by climbers. The purpose of these poles is to act as both a route and a sort of boundary line. As one made one's way down this route to the Chancer run, the cliff would be off to one's right. Taking this route, the start of the Chancer run was about five hundred yards from the top of the Summit Tow. The line of poles was depicted on production number 7/56 of process, a copy ordnance survey map.
The Back Track Run
[15] The Back Track run is also sign posted from the top of the Summit Tow. The recognised route is firstly along what is called the Switch run. The Switch run is one of the runs that goes from the top of the Summit Tow back to the main, or Goose, ski area. Taking this run, the Lemming Ridge would be some distance off to the skier's right hand side.
[16] The left hand edge of the Switch run is bordered by a snow fence. The snow fence runs in a direction which is broadly parallel with the Lemming Ridge until a point roughly level with the entrance to the Back Track run where the fence turns off to the left in the direction of the Goose area. On the way down the Switch run there are two further snow fences roughly parallel with each other which run across the plateau at an angle of about forty five degrees towards the Lemming Ridge. Their purpose is to create a channel or route across to the entrance to the Back Track run.
At the end of the line of the two fences, there is a permanent tower about four or five metres high. It is used as an anchor point for snow grooming machines. The tower is located about twenty metres from the entrance to the Back Track run.
Information Signs
[17] Information about weather conditions is available to skiers in various ways at various points around the defenders' facility. On 20 March 2002 certain signs were located around the area of the summit. There was a white board with marker pen writing on it at the exit from the Summit Tow. On the morning of 20 March 2002 it said:
"Back open, caution poor visibility, avalanche debris, cornices".
In the area of the cliff edge used by climbers, the defenders had placed warning signs at intervals running from a point roughly in line with the top of the Summit Tow to about Climbers Coll. These signs comprised yellow boards attached to poles. On each board there was a black triangular sign depicting a person falling headfirst down a mountainside. Below the sign there appeared the word "DANGER!", also in black. An example of such a sign appeared in photograph 3 within production number 7/52 of process. These signs were located roughly in a line to the right of the line of the poles marking the route to the Chancer run. On the last of the line of poles, about ten metres from the entrance to the Chancer run, there was one of the yellow danger signs. At the entrance to the run itself there was a further pole with a sign bearing the name of the run. This last pole was merely placed into the snow and accordingly moveable as necessary.
[18] There was a sign for the start of the Switch run indicating that it led to other runs, including the Back Track run. At each of the two fences forming the route across to the Back Track run there were signs indicating that the route to the Back Track run was to the right and that the route to The Goose area was to the left. On the tower at the end of the fences there was a further danger sign of the sort located along the climbers cliff. At the entrance to the Back Track run, there was a pole placed into the snow bearing the name of the run.
Ski Patrol
[19] The defenders provided a Ski Patrol facility at the Nevis Range. On 20 March 2002 there were four members of the Ski Patrol on duty. They were based at a hut near to the top exit of the Summit Tow. It was the duty of the Ski Patrol to check the skiing areas each day before the facility was opened to the public. In the Back Corries, the Ski Patrol would ensure that the slopes were free from any obvious dangers. At the entrances to the runs they would clear away any danger and ensure that the cornice was broken back to firm snow. It was their duty to assess whether conditions were suitable for the runs to be open. The white board at the top of the Summit Run was filled out by members of the Ski Patrol.
The Pursuer's Accident
[20] Mr Struthers-Wright was 39 years old by the date of the proof. He had been married for 18 years. He had substantial experience of skiing, having started at the age of five. He was a proficient recreational skier and although he did ski black runs, he preferred to ski red or blue runs.
[21] He gave evidence that on 20 March 2002 he arrived at the Nevis Range facility at about 9.30am with the intention of skiing in the Back Corries area, if it was open. This was what he usually did as the snow was good in that area. He had substantial experience of skiing at Aonach Mor. Within the previous two or three months he had skied there two or three times and he had skied in the Back Corries on the Wednesday of the previous week.
[22] Having taken the gondola from the car park to the start of the main skiing area, the pursuer took what was called the Quad Chairlift and skied from the top of it to a point further across the slope where he accessed a ski tow called the Goose T-Bar. From the top of this tow, he accessed the Summit Tow which took him to the summit plateau. All of these facilities were represented on production number 7/64 of process, which was a large-scale representation of the Ski Runs and facilities provided by the defenders. Mr Struthers-Wright arrived at the summit plateau at about 10.45 am at which time he described the weather as being reasonable with bits of sunshine and bits of cloud. It was overcast but the visibility was good. His plan had been to go across the summit area to the start of the Back Track run and then make his way down this run into the Back Corries. Once there he intended to ski up and down the area of the Braveheart Chairlift.
[23] The pursuer had skied down the Back Track run numerous times before and, as one would expect, it was clear that he was familiar with the summit area. He was familiar with the signs at the top of the Summit Tow and with the snow fence forming the boundary of the Switch run. He was familiar with the directional signs on the fences down the Switch run indicating the left and right routes for respectively the main area and the Back Track run. He described this as the "decision point" where you had to make up your mind which way you would go.
[24] The pursuer explained that he left the area of the Summit Tow heading for the Back Track run. He was moving slowly down a gentle slope in a skating action pushing himself with his ski poles. He was proceeding at about walking pace. He explained he was following tracks in the snow left by previous skiers who, he said, "had obviously gone to the Back Corries". After having gone no more than about fifty to sixty yards, and within two to three minutes of leaving the Summit Tow, the weather changed and cloud descended. The pursuer said that he could still see a distance of about fifty to sixty yards, although it was difficult to tell because there was no context to look against. By this, I understood him to mean that it was difficult to distinguish the cloud from the snow.
[25] Despite the change in the weather conditions, the pursuer continued on his way. He explained his decision in two ways. Firstly, he said that as he was already heading down hill towards the Back Corries, to turn around would mean him having to go uphill. Secondly, as he explained it, he decided "to continue to follow the tracks heading to the sign". By this he meant the signs at the fences already described at which one would go left to the main area or right to the Back Track run. The pursuer continued by explaining that he did not find the signs and within a couple of minutes or so of the cloud coming down he felt himself fall and then sliding down the snow.
[26] It transpired that the pursuer had fallen through, or over, the cornice at a point about twenty feet to the north of the entrance to the Chancer run. He suffered significant injures in the fall, including a four-part proximal fracture to the left humerus and a three-part proximal fracture to the right humerus.
[27] He was rescued and evacuated by members of the Ski Patrol. His skis had come off on impact with the slope and the point from which he had fallen was identified by where they were later found. The skis were lying about ten feet apart, one above the other, at a point about twenty feet to the right of the entrance to the Chancer Run as one looked up at it from below. Accordingly, it was deduced that he had fallen from the edge at a point just past the entrance to the Chancer Run as the ridge continues round towards the entrance to the Back Track Run.
[28] Mr Struthers-Wright said that he had a clear recollection up to the point of falling but had no recollection of the fall itself or of the impact with the slope. At no stage did he describe himself as suddenly realising he was at the edge, or of losing control of his skis on the snow. When asked by Mr Hardman why it was that he fell off the edge if he could see fifty yards ahead of himself he said:
"Had there been continuous markers I would have continued to follow those. I was following the tracks. My assumption was that they had been heading to the main area. They must have turned round and headed for Chancer. That is all I can think of".
The pursuer's criticism in evidence was that there should have been some kind of line of markers between the Summit Tow and the entrance to the Back Track run. Additionally, there ought to have been warning signs along the ridge so that someone in his position would not be able to get to the edge without appreciating where they were.
[29] In both evidence in chief and cross-examination, the pursuer was referred to the contents of production number 7/54 of process. This was a document headed Scottish Ski Patrol Injury Report Form. This type of document was filled out by the Ski Patrol to record the circumstances and detail of any accidents which occurred. In the section of the form headed "History/Examination/Treatment", the following appears in hand writing:
"SKIING ALONG RIDGE, FELL INTO BACK CORRIE OFF CORNICE, BACKS OF SKIS HITTING FIRST THEN TUMBLED FORWARD.
15MG CYCLIMORPH @12.45, ENTONOX".
The pursuer denied giving this account to any member of the Ski Patrol. He said that he told the Ski Patrol he had been aiming for Back Track and went over the cornice.
[30] Although having no recollection of the actual fall or the impact, in a letter written by him in February 2003, the pursuer claimed that he fell a height of some thirty feet vertically before hitting the slope below the edge and then tumbling a further distance down the slope - production number 7/61 of process. The same assertion appears in the Record. The pursuer claimed on a number of occasions in evidence that he had been given this information by the Ski Patrol. The same account of the fall appears in other documents, for example, production number 6/1 of process, a medical report prepared for the pursuer by Mr Gordon McLeod, a Consultant Orthopaedic Surgeon.
[31] In re-examination, and for the first time, the pursuer mentioned that as he made his way across the plateau, he had in fact seen a black sign on a pole saying "Chancer". He said that he was about ten feet away from this sign when he saw it and that it was only about five to ten feet after seeing this sign that he fell. He recognised in this passage of his evidence that it must have been the sign showing the entrance to the Chancer Run which he was describing. His explanation for not reacting to this sign was that he thought it must have been a direction sign for someone who wanted to go up the hill and ski down this run.
[32] The pursuer led no further evidence concerning the circumstances of his accident. Although his wife gave evidence, her testimony was restricted to repeating an account given to her by the pursuer a few days later. In this conversation he said that he could not understand how he came to be so close to either the Chancer run or the edge of the plateau.
The Defenders' Evidence
The Pursuer's Rescue
[33] The evidence led for the defenders disclosed that David Sutherland had heard the pursuer shouting for help whilst he was riding up the Braveheart Chairlift. Having passed a message on, he climbed up the slope and located Mr Struthers-Wright. In due course, he was joined by two members of the Ski Patrol, Mr Cardwell and Mr Roe. The pursuer was transferred to the medical centre at the top of the gondola in the Goose area and thereafter by ambulance to hospital.
[34] Although neither members of the Ski Patrol could remember what account the pursuer had given to them, each explained that the information in the Ski Patrol Injury Report (production number 7/54) would have come from Mr Struthers-Wright. All those who attended upon him denied saying to Mr Struthers-Wright that he had fallen a distance of twenty to thirty feet.
Warning Signs
[35] The defenders' Managing Director Ms Austin, Mr Cardwell and Mr Roe, all gave evidence to the effect that they had on a number of occasions given thought to the question of whether any form of warning sign should be placed around the area of the Lemming Ridge. Their evidence was all broadly to the same effect. In the first place, they sought to draw a distinction between the cliff area used by climbers and the area of the Lemming Ridge. Warning signs were placed along the former area, as it was impossible to ski there, whereas skiers entered the Back Corries from points all along the Lemming Ridge. Subject to ability, it was entirely appropriate to do so. In the view of these witnesses, it would be inappropriate to use the danger signs along the Lemming Ridge as this would suggest that the area was not for skiing. By the same token there would be a risk that the effect of the signs at the climbers' cliff would then be diluted. Poles, such as formed the route to the Chancer run, created a risk of drawing skiers to them and a risk of skiers using them to ski in and out of. Poles tended to indicate a route rather than a hazard. Warning signs of some other sort had limitations. Snow and ice covered them making them unreadable. The wind at the summit could be very strong and signs which were not permanently sunk into the surface rock could easily blow away. This might constitute a danger to other skiers. The use of permanent signs sunk into the rock raised conservation and environmental issues. As the location of the edge varied according to snow conditions, signs might have to be located in different places on different days. If skiers came to expect there to be signs advising them that they were nearing the edge, an added danger would be present should one or more of the signs blow away or not be visible. Finally, there was a question of consistency. If risks of this sort were to be warned of, then that would have to be done throughout the facility.
[36] Fencing or netting along the ridge had also been ruled out as impractical, in that it would be unlikely to withstand the weather, and inappropriate in that they would not want to fence off an area which skiers used. Fencing would create a further hazard in that snow tended to accumulate on the lee side of the fence. This might have the effect of adding to the build-up of cornices at the edge.
[37] Finally these witnesses confirmed that apart from Mr Struthers-Wright, no-one else had ever claimed to have inadvertently skied off the edge of the plateau.
Pursuer's Submissions
[38] This action was brought in terms of the procedure set out in Chapter 43 of the Rules of Court. The case pled on Record by the pursuer, in Statement 4 of condescendence, contained four grounds of fault made against the defenders. They were as follows:
1. Had the defenders closed the Summit area and Back Corries due to the possibility of deteriorating visibility at the Summit area, the pursuer would not have gone there, and the accident would not have occurred.
2. Had the defenders put marker poles or some other indicators at the edge of the cliff, the pursuer would not have fallen through/over the cornice and the accident would not have occurred.
3. Had the defenders clearly marked the route from the top of the Summit Tow to the entrance to the Back Track run, the pursuer would not have fallen through/over the edge of the unmarked cornice edge and the accident would not have occurred.
4. Had the Piste Map of the Ski Area provided by the defenders depicted a more accurate representation of the summit area and the relative positions of the runs/routes, the pursuer would not have fallen through/over the unmarked cornice edge and the accident would not have occurred.
The first sentence in Statement 6 of condescendence set out that: "This claim is based on common law." At the commencement of submissions for the pursuer, Mr Hardman moved to amend Statement 6 so as to read: "This claim is based on breach of the Occupiers' Liability (Scotland) Act 1960". No objection was taken to this proposal. I allowed the amendment and the submissions were presented in this context. Submissions on the pursuer's behalf were restricted to the second ground of fault outlined above.
[39] Mr Hardman referred me to Section 2(1) of the Occupiers' Liability (Scotland) Act 1960 which is in the following terms:
"Extent of occupier's duty to show care
2(1) 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".
His submission was that there were two issues for consideration in this case:
1. What was the danger in this case?
2. Did the defenders show such care as in all the circumstances of the case was reasonable to see that the pursuer would not suffer injury or damage by reason of such danger?
In seeking to identify what the "danger" was in this case Mr Hardman submitted that it was not the fact of there being a steep drop, for which the defenders could not in law be responsible. The danger, he said, was the failure of the pursuer in poor visibility to appreciate that he was at or approaching the edge. This danger was caused by an omission on the part of the defenders, namely their failure to put signs in place along the ridge warning the pursuer that he was close to the edge.
[40] Mr Hardman asked me to accept the pursuer's evidence that the accident happened as described by him. In particular, that he was making his way by a normal route to the Back Track run, at slightly faster than walking pace, when cloud descended to the extent that he could not differentiate the ridge from the cloud.
[41] In addressing the question of whether the defenders displayed such care as was reasonable to see that the pursuer did not suffer injury or damage by reason of the danger he identified, Mr Hardman submitted that certain factors were relevant:
1. The pursuer was a paying guest of the defenders when this accident occurred. He said that the defenders sought to encourage skiers to go into this area and accordingly submitted that a higher standard of care was incumbent on the defenders in relation to the pursuer than would be the case with people to whom no encouragement was offered.
2. The risk of an unwary individual falling over the edge was known to the defenders.
3. The risk of injury to someone taken unaware was a risk of serious injury.
4. The evidence demonstrated that it was feasible to place warning signs along the ridge.
5. The pursuer was making his way to a skiing area at the time rather than skiing down a run.
Mr Hardman referred to the evidence of the defenders risk assessment form which demonstrated that they had given consideration to the risk posed. He submitted that on the evidence the defenders had not given proper consideration to the need for warning signs and the way in which they could be utilised. He reminded me that the entrance signs for the Chancer and Back Track runs were moveable and placed into the snow at appropriate points. He submitted that it would have been equally feasible for the defenders to have placed warning signs daily between the area of the Chancer run and the area of the Back Track run. Accordingly, he submitted that the question of what constituted taking reasonable care was a question of fact to be decided in the particular circumstances of any given case. In the present case, he submitted that the defenders could be seen to have failed in their duty.
Defenders' Submissions
[42] Mr Ross for the defenders referred me to the terms of Sections 1 and 2 of the Occupiers' Liability (Scotland) Act 1960. He accepted that the defenders were to be seen as the occupiers of the land for the purposes of the act. He accepted that there was no question of the defenders having restricted, modified or excluded any of their obligations. He referred me to paragraph 32.14 of The Law of Scotland by Gloag and Henderson and to the following reported decisions:
1. Stevenson v The Corporation of The City of Glasgow 1908 SC 1034
2. Graham v East of Scotland Water Authority 2002 SCLR 340
3. Tomlinson v Congleton Borough Council & Another 2004 1A.C 46
[43] Mr Ross commenced with an analysis of the evidence. He said in this regard that the pursuer's evidence lacked both credibility and reliability. He attacked the pursuer's evidence on visibility. The pursuer had said that he could not see the edge. He pointed out that the evidence from all of the other witnesses who skied was that visibility of fifty metres or so ought to be sufficient to permit safe skiing. He referred to the evidence of David Sutherland, Paul Roe and Tony Cardwell. Taken together, these witnesses had made their way across the summit plateau to the edge both before and after the pursuer's accident. None of them had encountered any difficulty. All had been able to see the edge without difficulty and two had skied around the ridge without difficulty.
[44] He submitted that I should accept the evidence of the Ski Patrollers as to the way in which the Injury Report production number 7/54 would have been compiled. He submitted I should be satisfied that the pursuer was the source of the information within that report. Accordingly, he asked me to find that it constituted a contemporaneous account which contradicted the evidence given in Court by the pursuer.
[45] Mr Ross invited me to disbelieve the evidence given by the pursuer and to hold that the accident was caused by his own fault. In this context, he referred to the pursuer's evidence. He suggested that the pursuer was familiar not only with the plateau but also with the safe route down the Switch run to the Back Track run. He referred to the pursuer's account of following tracks left by other unknown skiers. On this account, the pursuer made an unwarranted assumption as to where these tracks were heading. He also referred to the pursuer's evidence of seeing the sign for the entrance to the Chancer run and his failure to react to this. All of this, he said, combined to present a picture of a skier who was not paying sufficient attention to where he was going and of failing to take proper care for his own safety.
[46] Alternatively, Mr Ross invited me to conclude that the pursuer's evidence did not provide a sufficiently credible or reliable account of what occurred to enable a proper assessment of whether the defenders had discharged their duty to take such care as in all the circumstances was reasonable. On this basis, he invited me to hold that the pursuer had failed in the onus of establishing what had happened and why, and to find against the pursuer.
[47] Upon the premise that the evidence did disclose a reliable account of what occurred, Mr Ross submitted that the question to be addressed was, did the accident occur as a consequence of a danger which was 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. In this regard he referred to Tomlinson v Congleton Borough Council & Another and to Lord Hoffman's comments at paragraph 27 where he said:
"Mr Tomlinson was a person of full capacity who voluntarily and without any pressure or inducement engaged in an activity which had inherent risk. The risk was that he might not execute his dive properly and so sustain injury. Likewise, a person who goes mountaineering incurs the risk that he might stumble or misjudge where to put his weight. In neither case can the risk be attributed to the state of the premises. Otherwise any premises can be said to be dangerous to someone who chooses to use them for some dangerous activity. In the present case, Mr Tomlinson knew the lake well and even if he had not, the judge's finding was that it contained no dangers which one would not have expected. So the only risk arose out of what he chose to do and not out of the state of the premises".
In the same vein, he referred to the comments of Lord Hutton at paragraph 59 where he said:
"Stevenson v Glasgow Corporation and Hastie v Edinburgh Magistrates (which were not concerned with trespassers) were decided almost a century ago and the judgements are couched in old fashioned language, but I consider that they express a principle which is still valid today, namely, that it is contrary to common sense, and therefore not sound law, to expect an occupier to provide protection against an obvious danger on his land arising from a natural feature such as a lake or a cliff and to impose a duty on him to do so".
Accordingly, Mr Ross submitted that if Mr Struthers-Wright had fallen or skied off the ridge, this was not something which could be said to have happened due to the state of the premises. Accordingly, the defenders should be assoilzied. He said that the submission for the pursuer that the danger arose out of an omission to place warning signs was a circular argument of the sort presented in Tomlinson and addressed by Lord Hoffman at paragraph 28 where he said:
"Mr Braithwaite was inclined to accept the difficulty of establishing that the risk was due to the state of the premises. He therefore contended that it was due to "things done or omitted to be done on the premises ..."
"In my opinion "things done or omitted to be done" means activities or the lack of precautions which cause risk, like allowing speedboats among the swimmers. It is a mere circularity to say that a failure to stop people getting into the water was an omission which gave rise to a duty to take steps to stop people from getting into the water".
[48] Mr Ross went on to submit that in any event it could be seen that the defenders had taken what constituted reasonable care to see that a skier would not suffer injury in the circumstances under consideration. In this regard he submitted that a number of matters were relevant, for example:
1. That skiers were undertaking an activity with an inherent level of risk and had a duty to exercise appropriate care for their own safety.
2. The runs accessed from the summit edge were for experienced skiers only.
3. It was obvious from all the defenders literature that there was a steep slope in this area.
4. The pursuer was in any event familiar with the area.
5. Safe routes to both the Chancer run and the Back Track run were marked.
6. The white board at the top of the Summit Tow gave advice about conditions.
7. No other accidents of this sort had ever been reported.
He submitted that the evidence disclosed that the signs suggested by the pursuer would be ineffective, unduly burdensome and would be capable of introducing further risk should skiers come to expect them. In this context, he submitted that a balance had to be struck. Many people came to ski this area because of its features. It was a wilderness area. Accordingly, he said, even if injury is foreseeable, it may still in all the circumstances be reasonable to do nothing about it. Upon this basis, also, he submitted that I should assoilzie the defenders.
Discussion
Factual Matters
[49] The pursuer in this case was clearly an experienced skier. He knew the Nevis Range facilities well having skied there many times. In particular, he knew the summit area and the Back Corries well. He had crossed the summit to access the Back Track run numerous times. He had a good understanding of the location of all of the runs in and around the summit area. He was well aware of the presence of the Lemming Ridge and its location in relation to the Summit Tow and the other runs. Only the week before he had skied in that very area. On that occasion, he had taken some rather spectacular photographs which were lodged as productions numbered 6/6, 6/7 and 6/8 of process. These were taken at the edge of the ridge just up from the entrance to the Back Track run and showed the view looking up and round the basin back to the area of the Chancer run. In two of these photographs, figures, probably snow boarders, could be seen on the edge and coming down the slope in the area near to the Chancer run. It was clear that the slope was very steep in that area. The pursuer stated in evidence that he had never skied down the Chancer run and had never been at the part of the summit where the entrance to the Chancer run is located.
[50] I accepted the pursuer's evidence that he was intending to ski down the Back Track run and that the weather conditions deteriorated soon after his arrival at the summit. It is clear from the evidence of David Sutherland, who found his skis, that the pursuer fell over or through the cornice near to the entrance to the Chancer run. The pursuer himself saw the entrance sign for this run immediately before his fall. The circumstances in which he got to that part of the summit were the subject of competing submissions.
[51] Although on Record it is averred at Statement 4(h) that "Visibility was reduced to considerably less than fifty yards", the pursuer's own account did not mirror this. As set out above, his evidence was that he could see about fifty to sixty yards. In these conditions, it was his evidence that he could not distinguish between the snow and the cloud. There was other evidence available as to what effect this level of visibility would have on a skier. Ms Austin, who was 49, and currently the defenders' Managing Director, had been involved in teaching skiing for over twenty years. She had taught in New Zealand, Switzerland, France and other Scottish resorts. Mr Cardwell, who was 62, had been the defenders' Ski Patrol Manager for sixteen years and had been skiing since his twenties. The evidence of both of these witnesses was that in visibility of that range, one ought to be able to ski quite reasonably, although it might not be very pleasant. Mr Cardwell himself had no difficulty in making his way around when he went to assist the pursuer. Mr Roe, who was 48, had been a Ski Patroller at the Nevis Range for ten years and had been skiing for twenty-seven years. His evidence was that as he made his way over from the Ski Patrol hut in the direction of the Chancer run, the visibility was about fifty metres. He had no difficulty whatsoever in making his way across, seeing the edge or making his way around the edge.
[52] I found the evidence of these witnesses on this issue to be consistent and compelling. Their experience was obviously extensive. No effort was made in cross‑examination to suggest that they were incorrect or unreliable in this matter. Accordingly, I was persuaded that in visibility of the kind described by the pursuer, he ought to have been able to see sufficiently well to make his way safely across the summit.
[53] Since the pursuer did not intend skiing down the Chancer run yet ended up falling over the edge near to it, I had to consider how he came to find himself at that part of the summit. In the pursuer's evidence he explained a number of times that on leaving the area of the Summit Tow he followed some tracks in the snow left by earlier skiers. He assumed that these tracks were heading in the direction of the Back Track run. He deduced that they must in fact have turned and headed for the Chancer run.
[54] On the pursuer's behalf, Mr Hardman sought to submit that the pursuer believed that following other tracks was quite a normal way to traverse the summit and that the pursuer did not consider that there was a particular route to the Back Track run. It was clear from the evidence that an individual skier could make his way in any direction he or she chose. Equally, many skiers and snow boarders chose to ski straight off the ridge at points in between the marked runs. In doing so they might well determine their own route from the Summit Tow to their chosen point of access. However, I did not accept Mr Hardman's submission on this matter. The recognised route to the Back Track run was clearly marked as being along the Switch run to the twin fences described earlier, and then along the channel so created, passing the tower, and to the ridge at this point. The pursuer was clearly well aware of this. In evidence in chief, he described the location of the relevant direction signs and referred to the sign at the fence as the "decision point sign". In cross-examination he described his normal route to the Back Track run as taking him along the side of the fence at the Switch run. In describing his route across the summit on the day of the accident at one point he said that he thought the tracks he was following were heading for the signs at the fences but that he did not find them.
[55] I was satisfied that the pursuer was well aware of what was the recognised and signed route from the Summit Tow to the Back Track run. This route would have kept a skier well away from the plateau edge until the very entrance to the run. What was clear, accordingly, was that the pursuer chose not to follow what he knew to be the designated, and his normal route.
[56] His evidence was that instead of following what he knew to be the designated route, marked by features with which he was familiar, the pursuer chose to follow some tracks in the snow about which he made an assumption. Although the visibility was poor, he claimed that he continued to proceed in this fashion rather than go back to the Summit Tow. His explanation for this was that he would have to go uphill to do so. Despite this, at other points in his testimony, he was at pains to explain that in making his way across the summit he was not skiing as properly understood. Instead, he was moving in a skating action propelled by his ski poles along a gentle slope.
[57] I did not find the pursuer's evidence as to how he came to be at the plateau edge to be credible. In the first place, there seemed to me to be no reason why he could not have returned to the safety of the Summit Tow area if visibility was concerning him. Secondly, I did not accept that an experienced skier who was familiar with the geography of the summit, who was familiar not only with the various routes provided but with the features along such routes, would decide to follow the tracks of unknown skiers upon the assumption that they had gone to the same location as was his own intention. A skier in the pursuer's position would not need to be guided by tracks. He would know the way to go. Thirdly, I did not accept that a skier with the experience and knowledge set out above would continue to follow such tracks despite not seeing any of the expected features of the anticipated route. Fourthly, I did not accept that an experienced skier with knowledge of the Aonach More summit would simply continue to follow unknown tracks if he or she had concerns about the level of available visibility.
[58] The pursuer's evidence about seeing the entrance sign for the Chancer run further undermined his credibility. On his account, he ought to have been nowhere near this part of the summit. If he thought that he was heading for the entrance to the Back Track run, this sign ought to have alerted him. On his account, he had never been to this part of the plateau before. His explanation for taking no action on seeing this sign was that he thought this must have been a direction sign for someone who wanted to go up the hill and ski down this run. The pursuer's demeanour was uncomfortable at this stage of his evidence. This explanation appeared to me to make no sense. There was no evidence that anyone could or would approach the Chancer run in an uphill direction. It was impossible from the other evidence as to the geography of the area to understand how skiers would do this.
[59] For these reasons, I rejected the evidence given by the pursuer as to how he came to be in the region of the Chancer run. Having rejected his own explanation I was still left with the evidence that he had in fact made his way from the Summit Tow to the area of the Chancer run. Standing the pursuer's familiarity with the area, the logical inference to draw was that he did so by choice.
[60] This inference was reinforced in my judgement by the contents of production number 7/54 of process, the Ski Patrol Injury Report. This report was in the handwriting of a member of the Ski Patrol called Deesa Evans. By the time of the proof she had returned to her native New Zealand. Both Mr Cardwell and Mr Roe gave evidence to the effect that in terms of their procedures, the information in this document would be taken from the injured party. Mr Roe explained that the form was completed by Ms Evans in the medical centre at the top station of the gondola, although he was not present at the time. Mr Struthers-Wright of course denied that he had given this account.
[61] I gave careful consideration as to the weight which I should give to this production. The absence of its author was a factor which made it difficult to conclude that it accurately reflected an account given by the pursuer. However, the combination of a number of factors persuaded me that it did:
1. The evidence of the Ski Patrol procedures. The form concludes with the printed words "Description of Incident (Casualty's Words)". In handwriting, the words "as above" appear. Although there is also a space for casualty's signature, the pursuer's injuries were such as to prevent this.
2. The amplification of this evidence by Mr Roe who explained that no‑one else saw what happened and the only first hand account could come from the pursuer.
3. The other content of the form. The top of the form records the pursuer's name and age. It records his address as "Shiel Col Cottage, Findogask, Madderty". It gives his telephone number. At the bottom of the report, a variety of information is recorded as to the pursuer's skiing ability and experience, including the fact that he has not previously sustained a snow sport injury. All of this information must have come directly from the pursuer. No contrary suggestion was made. Accordingly, this is consistent with the application of the Ski Patrol procedures.
[62] The account which appears in this document is:
"SKIING ALONG RIDGE, FELL INTO BACK CORRIE OFF CORNICE".
If account is taken of this explanation, it is consistent with an intention to ski round from the Chancer run to the Back Track run. As it happens, this route would have taken the pursuer along the very part of the summit shown in the photographs which he took the week before.
[63] The location of the pursuer's fall is also consistent with this explanation. He did fall off the ridge at a point which would be just past the entrance to the Chancer run if heading in the direction of the Back Track run.
[64] It follows, on this analysis, that the pursuer would have been aware of the fact that he was at the edge. The explanation for his fall may be that he lapsed in concentration in an area with which he was unfamiliar or that the cornice gave way under him. There may be other explanations. However, none proceed upon the premise that he was disoriented and did not appreciate how near he was to the edge.
[65] Accordingly, and for the reasons set out above, in my opinion, the pursuer has failed to establish the underlying factual basis for the case presented. Accordingly, I would assoilzie the defenders.
Legal Issues
[66] The Occupiers' Liability (Scotland) Act 1960 provides as follows:
"Extent of occupier's duty to show care
2(1) 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".
It is, however, clear that the duty imposed upon an occupier does not extend to providing protection against obvious and natural features of the landscape. As Lord Kinnear said in Stevenson v Corporation of Glasgow 1908 SC. 1034 @ 1042:
"... a person going upon property, even by invitation, express or implied, is expected to use reasonable care for his own safety. He is to look out for all the ordinary risks that are necessarily incident to the kind of property that he is going upon, but, on the other hand, it is held that he is not to be exposed to any unusual danger known to the proprietor, and not known to people who may come upon premises with which they are not familiar. If that be the law, it seems to me clear enough that it imposes no duty upon the owners of public parks to fence every stream of water or every pond which may happen to be found in a public garden".
In Dumbreck v Addie & Sons' Collieries 1928 SC, Lord President Clyde, drawing on Stevenson, put it this way:
"It is important in this connection to observe the distinction which has long been recognised between (1) sources of danger arising from physical features of the ground, whether natural or artificial - such as a precipice or an excavation, natural water of an artificial pond; and (2) sources of danger arising from mechanical and similar contrivances - such as the haulage system in the present case. The former are presumed from their own character to constitute obvious and usual dangers against which people, be they adults or children, must protect themselves."
[67] Both of these cases were founded upon by Lord Emslie in the case of Graham v East of Scotland Water Authority 2002 SCLR 340, when holding that there was no duty imposed upon an occupier of land to fence the edge of a reservoir. In explaining this opinion his Lordship said:
"In my opinion, the danger alleged here by the pursuer falls within the intended scope of the authorities concerning obvious dangers on land, against which no duty to fence is incumbent on an occupier."
[68] That the older cases still provide an authoritative statement of the law is clear from the speeches of their Lordships in the case of Tomlinson v Congleton Borough Council & Another 2004 1AC 46, which examined the extent of any duty imposed upon occupiers of land by virtue of either the Occupiers' Liability Act 1957 or the Occupiers' Liability Act 1984. The passage at paragraph 59 in the speech of Lord Hutton referred to by Mr Ross is a perfect example. The same point is made by Lord Hoffman at paragraph 45 where he says:
"I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang gliding or swim or dive in ponds or lakes, that is their affair. Of course the landowner may for his own reasons wish to prohibit such activities. He may think that they are a danger or inconvenience to himself or others. Or he may take a paternalistic view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so."
The absence of any duty upon an occupier to provide protection against obvious and natural features of the landscape clearly means that there is no duty to fence off such features as streams or cliff edges. Mr Hardman did not seek to suggest otherwise. By the same logic, there can be no duty in law to provide warning signs or notices drawing attention to the danger of such features.
[69] On behalf of the pursuer, Mr Hardman sought to categorise the danger as something other than the natural feature of the landscape. The danger, he said, was the failure of the pursuer in poor visibility to appreciate that he was at or approaching the edge. This was something which the defenders ought to have anticipated. This danger was caused by an omission on the part of the defenders, namely their failure to put signs in place along the ridge warning the pursuer that he was close to the edge.
[70] In my opinion, Mr Ross was right to describe this as a circular argument. The danger which arose from making one's way along the summit plateau was that one might fall off the edge. This danger existed whatever the weather conditions, although it might be a greater danger in some conditions. Signs would be warning of the danger of falling over the cliff. The presence of such a danger would be obvious to all who made use of that area for any purpose, be it skiing, hillwalking or mountaineering. The statute makes reference to, firstly, "dangers which are due to the state of the premises" and, secondly, to "dangers which are due to anything done or omitted to be done on them". If the first of these does not impose a duty to provide protection against natural features then it would be illogical to suggest that failure to place warning signs about such a natural feature could constitute a danger arising out of something done or omitted to be done on the same premises.
[71] Accordingly, regardless of my findings as to the factual basis of the case, I was satisfied that there was no legal duty imposed upon the defenders of the sort advanced on behalf of the pursuer. For this reason also I would assoilzie the defenders.
Reasonable Care
[72] In the event that the defenders did owe a duty of care to the pursuer arising out of his use of the skiing facilities in the region of the Lemming Ridge, it would be a duty to take such care as in all the circumstances of the case was reasonable to see that he did not suffer injury or damage by reason of that danger.
[73] The defenders' witnesses agreed with Counsel for the pursuer that it would be feasible to place signs of some sort along the ridge. However, I agree with the submissions made by Mr Ross that the assessment of any such duty would require a balance to be struck. It was correct, as he said, to acknowledge that this was an area used only by experienced skiers. It was also correct to acknowledge that all of the defenders' literature and advice made it clear that there was a steep slope in the area of the Lemming Ridge. A safe route to the Back Track run was provided. The white board at the exit from the Summit Tow provided information about the conditions on the summit and edge. There were a number of issues as to the effectiveness of warning signs placed in the snow. In particular, if skiers came to expect them, then an added danger would be introduced should such a sign be hidden by snow or blown away. In this context it was correct to weigh this danger against the fact that there had never before or since been an accident of the type complained about by the pursuer. It was also correct, in my view, to bear in mind the natural beauty and attractiveness of the wilderness site.
[74] Had I been required to decide whether the steps taken by the defenders to ensure safety in the region of the summit plateau met the test of such care as in all the circumstances of the case was reasonable to see that a skier did not suffer injury or damage, I would have been satisfied that they did.
[75] In particular, in my view, to place warning signs at regular intervals along the summit ridge would have a significant impact upon the natural beauty and character of the landscape. To have taken this step would have constituted a disproportionate response to the risk said to exist.
[76] It follows that upon this basis I would also have assoilzied the defenders.
Decision
[77] For the reasons set out above, I will assoilzie the defenders from the conclusions of the Summons. Parties wished me to put the case out By Order upon reaching my decision in order that further procedure could be addressed.