SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT WICK
Case No. A75/03
| | | JUDGEMENT of Sheriff David O. Sutherland |
| | | in the cause |
| | | JACQUELINE LAURA FEGAN residing at 6 Lord Thurso Court, Thurso, Caithness |
| | | Pursuer |
| | | against |
| | | THE HIGHLAND COUNCIL The Local Authority for the said district under the Local Government (Scotland) Act 1973, having its principal office at Market Square, Wick, Caithness |
| | | Defenders |
Act: Mr Erroch
Alt: Mr Milligan
WICK, 3rd February 2006
The Sheriff, having resumed consideration, repels the pursuer's pleas-in-law Nos. 1, 2 and 4 and upholds the defenders' pleas-in-law 5 and 6; Grants decree of absolvitor in favour of the defenders with expenses as taxed; Allows an account thereof to be given in and remits same, when lodged, to the Auditor of Court to tax and to report.
Sheriff
Finds-in-Fact
1. The defenders are the occupiers of Victoria Walk, the benches adjacent to the walk and the ground up to the cliff tops.
2. Victoria Walk is bounded on one side by steep cliffs.
3. The defenders knew that the cliffs were dangerous. They were aware of two previous accidents, neither of which had been near the present locus. The pursuer knew of the closeness of the cliffs to the Sinclair bench and the dangers of the cliffs.
4. The pursuer, prior to sustaining her injury, had never walked along the length of Victoria Walk or sat on any of the benches situated there. She had walked along the beach below the cliffs and knew of their danger. She had heard that there had been accidents on the cliffs before.
5. She spent the 27th August 2000 in the company of Kay Watt and Ally Balderick. She was joined in the evening by Trudy Watt. During the course of the day she consumed several measures of vodka but had not consumed any alcohol after 8.00pm.
6. At between 10.30pm and 10.45pm she left her house with her dog and her friend's dog for a walk, travelling through Thurso and arriving at Victoria Walk at approximately 11.30pm.
7. She moved a few steps from Victoria Walk onto the Sir Teollemache Sinclair Memorial Bench, where she sat for some time smoking two cigarettes and listening to music on her personal stereo.
8. When she stood up to leave, the pursuer moved from the bench onto mown grass surrounding the plinth. As she stood up her personal stereo fell from her lap and she bent down to retrieve it.
9. The distance from the plinth of the Sinclair seat to the long grass is between 1.4 and 1.8 metres. The defenders allowed long grass to grow near the cliffs as a deterrent to people going too close to the edge of the cliffs. The Sinclair Memorial Bench is closer to the cliff edge than any other bench adjacent to Victoria Walk.
10. The area of mown grass around the Sinclair Memorial Bench while not of lawn-like quality was not undulating but level.
11. Sections of Victoria Walk had been fenced by the defenders' statutory predecessors. These fences are maintained by the defenders. Such fencing was erected at more dangerous parts of Victoria Walk where the walkway passed very close to the cliff edge at geos which are narrow and deep clefts in the cliff face excavated by marine erosion along a line of structural weakness. There was no fencing near the Sinclair Memorial Bench.
12. Victoria Walk, which runs some two kilometres from Thurso, is close to a children's swing park and caravan park.
13. When the defenders erected fencing at the geos they received complaints from the members of the public who were against fencing the cliffs thereby spoiling their openness.
Finds in fact & law
The Pursuer has failed to prove that the accident was caused by the fault or negligence of the Defender.
The Pursuer has failed to prove that the accident was caused by any failure by the Defender to fulfil any duties incumbent upon it under the Occupiers Liability (Scotland) Act 1960.
Note
Evidence
[1] I first heard from Peter Gotch, a health and safety consultant with Jacobs UK Limited trading as Jacobs Baptie. Mr Gotch held a BSc in Engineering, Production and Economics together with a post graduate diploma in Safety and Hygiene. He is a Fellow of the Institution of Occupational Safety and Health and a member of the International Institute of Risk and Safety Management. He is a registered safety practitioner. Between 1979 and 1981 he worked as an inspector for the Health and Safety Executive. He had investigated 30 fatal accidents and hundreds of non-fatal accidents.
[2] He prepared a report for court and in preparing that he had before him the adjusted record, dated 30th March 2004, a number of statements from the pursuer, drawings of the locus, a statement by T J Buchanan, 20 photographs of the locus, and a video of the locus. He had not visited the locus in preparation of the report, although he had discussed the matter with Miss Angela Roberts, his assistant, who is a member of the Institution of Occupational Safety and Health.
[3] He was satisfied that on the basis of the information he received he was able to provide the court with his professional opinion.
[4] He described how Victoria Walk, Thurso, is approximately two kilometres long and varies in width from one to two metres. There are two street lights at the promenade end of the walk at least some fifty metres from the locus. He considered that it was unlikely to have any significant impact on the level of visibility at the time of the accident.
[5] He reckoned that the drop from the cliff was always in excess of 25 feet and reckoned that it was consistently about 65 feet. He described to the court what are known as geos - a narrow and deep cleft in the cliff face excavated by marine erosion along a line of structural weakness. At these places he had noticed wooden posts and rail-fencing erected.
[6] He described how along the walk were situated six seats, the sixth being the Sir Teollemache Sinclair seat which looked out over the cliff. He described how the seat was situated some 2.35 metres from the cliff on the left hand side, 3.45 metres at the front of the seat and 1.4 metres on the right hand side. He described the area round the seat as mown grass, relatively flat except at the right hand side where it sloped gently towards the cliff edge. He indicated that the measurements were to where the mown grass ended and longer grass began. He was not able to indicate how much further it was from the start of the long grass to the cliff edge.
[7] In giving his opinion Mr Gotch accepted that there were different risks in country situations as compared with urban locations in that there were less people around, locals who knew the risks and fewer hostelries.
[8] He spoke in his report at appendix 75 of A Visitors' Safety in the Countryside paper. This was an organisation which he had found on the internet and gave what he described as a risk control matrix.
[9] He considered the present locus towards the right hand side of the top band in that it was close to being a mainstream town or city. In addition, children, visitors and lots of people going to and from licensed premises.
[10] According to Mr Gotch, the matrix suggested a need for moderate intervention and it was his view that the Sinclair bench was not safe where it was located and that steps had to be taken to prevent injury.
[11] He indicated that the practice of local authorities had moved on since many of the cases referred to had been decided and he suggested that there should be fencing around the cliff top at the front of the bench and that the bench should be moved back to a minimum of 3 metres from the cliff edge. He felt that there was a potential for walking off the plinth onto the grass, slipping and stumbling forward over the cliff.
[12] He accepted that he was not aware of the mechanics of the present accident and that he had never heard of anyone slipping or tripping while sitting on a bench. Nonetheless it was his view that there should be safety measures taken regarding the locus.
[13] I then heard from the pursuer, Jacqueline Fegan, aged 40, a housewife with two children aged 19 and 9. She described how on 27th August 2000 she had been at her friend Kay Watt's house in Scotcalder, some 7 miles from Thurso with her daughter for the weekend. A mutual friend had been there with her four children and she had travelled back down south on the lunch-time train. The pursuer, Miss Watt and her partner had then gone to the pursuer's house where they had spent the afternoon having a meal at about 5.00pm and consuming several vodkas during the course of the day.
[14] They had visited Miss Watt's daughter's new house before returning to her own house at approximately 8.00pm. Miss Watt, who had consumed rather more alcohol than the others, had retired to bed and Mr Balderick and the pursuer had sat in the lounge watching television.
[15] At approximately 10.45pm the pursuer decided to go out for a walk with her dog and Miss Watt's dog and had travelled through Thurso arriving at Victoria Walk at about 11.30pm. Although she was aware of Victoria Walk and knew of the dangers inherent in the Walk, nonetheless she had never actually walked along Victoria Walk before. She had known that there were cliffs where she sat down and she knew that there had been accidents on the Walk before. Although she indicated that she had never been at Victoria Walk before she indicated that she had not realised that there had been a bench at the locus since 1950 and had thought that it had only recently been placed there. This was, she said, because she had not noticed the seat there before.
[16] She remembered sitting in the middle of the bench more to the right hand side but this she was not sure of and accepted that she was simply presuming that she had been sitting towards the right. She indicated that she knew that there was a drop beyond the long grass and the wild flowers and had merely sat on the bench smoking a couple of cigarettes and listening to her personal stereo. Her personal stereo had been in her inside pocket and she had taken it out to change the tape.
[17] She described how she got up to leave the bench and her personal stereo fell from her lap. She had bent to retrieve the stereo and she could remember no more. She then indicated that the stereo had landed beside the mown grass and that she had taken two or three steps before bending down to pick it up. She said she did not remember picking it up and could not remember bending her knees.
[18] In cross-examination she conceded that she had no recollection of how the accident had happened.
[19] I then heard from Michael Potts, aged 75, retired horticulturist, who had been employed as the Western Supervisor for the Leisure and Recreation Department of Caithness District Council from 1989 to 1995. He had been responsible for Victoria Walk maintenance and had visited the area twice per month.
[20] He described how he had to repair vandalism to benches and fences and also arranged for the grass to be cut every fortnight.
[21] He indicated that in preparation for the present case he had measured the shortest distance from the corner of the bench which he reckoned was some 7 feet from the plinth to where the mown grass stopped. Again he did not give any indication as to how far it was from the long grass to the cliff edge.
[22] He described how fences had been erected after someone had been killed on Victoria Walk but stated that neither that fatal accident or the accident relating to a Mr Cameron had occurred near the present locus. Fencing had been erected at inlets (geos) where the walkway was very close to the cliffs.
[23] I then heard from Mr Tom Buchanan, aged 69, a Supervisor with the Leisure and Recreation Department, Caithness District Council, 1986 to 1989.
[24] Mr Buchanan described how he put up fences on Victoria Walk where he considered it to be most dangerous, namely where the path went closest to the cliff edge. He confirmed that fences had therefore been put up at what had already been described as geos.
[25] He said that he did not consider fencing in the whole walkway. He described how the walkway was very picturesque and fencing it would have spoiled the appearance. In addition he did not consider that it was necessary.
[26] Mr Buchanan described how the mown grass was relatively flat and that it had been a deliberate action to allow the long grass to grow at the edge so that his staff would not have any risk when mowing to the edge of a cliff.
[27] He described how fencing had been put up at the most dangerous places and that if fencing had been put up at the present locus it would have destroyed the pleasure of sitting looking at the view for a lot of people. He felt that it was dangerous to put up low fencing and that people had said that they did not want to sit at a bench and see a fence. They wanted the open view from the cliff tops.
[28] He described how Victoria Walk was a recreational facility for people to enjoy the view and that he had had no concerns regarding the siting of the benches and in particular the Sinclair bench.
[29] I then heard from Miss Kay Watt, aged 43, hotel housekeeper, who spoke of being with the pursuer on the day of her accident. She described how the pursuer had been visiting her over the weekend and that they had returned to the pursuer's house at lunch-time where they had consumed several vodkas and had eaten a meal at approximately 5.00pm. They had then gone to view her daughter's new house and on their return to the house she had gone to bed as she had been feeling a bit worse for wear.
[30] She described how she first heard of the accident when the police arrived at 7.30am the next morning and she saw her friend at the Dunbar Hospital in Thurso shortly thereafter. She saw her one hour later in Wick Hospital but had not been told by the pursuer of what had happened.
[31] Later she was told by the pursuer that the last thing that the pursuer could remember was bending down to pick up her Walkman.
[32] I next heard from Alistair Balderick, aged 43, quarryman, who described how he had known the pursuer for some 30 years and how he had been in her presence on the day of the accident. He had spoken to consuming vodka in her house and having a meal at approximately 5.00pm. He explained how the pursuer had been perfectly sober as she had not had as much to drink as he or Miss Watt.
[33] He described how he was first aware of the accident when the police came to his work the next morning and he spoke of visiting the pursuer in hospital in Glasgow where she had described how she had sat on the bench and had dropped her hi-fi. She indicated to Mr Balderick that that was the last thing she could remember.
[34] Finally I heard from Trudi Watt, aged 25, care assistant, who described how on 27th August she had been working in a nursing home in Thurso. She described how the pursuer had come to her new house with her mother and had left about 8 p.m. She had indicated that no-one had been drunk, although her father had probably had a little too much to drink.
[35] She had first heard of the accident the next day from her parents and had described how her then boyfriend had lived near Victoria Walk.
[36] She described how she had gone for a walk on the beach a couple of days after the accident and she had seen marks where the pursuer had fallen. She described how the grass was different in that part and it had been as though it had been flattened. She described a swath about two feet wide and said that she had seen this from some 200 yards.
[37] She further advised the court that she understood from the pursuer that she had been out for a walk with her dogs and had tripped.
[38] She also advised the court that she had received a voice-mail from the pursuer on her mobile phone asking if she wanted to go for a walk but had not picked up the voice-mail until Monday morning. She had told the police regarding this but she did not think that the police had listened to the voice-mail.
Submissions for the Pursuer
[39] Mr Erroch stated that the facts were in relatively short compass. He urged me to hold that the pursuer was credible and reliable. Her position was that she simply could not remember her fall. There was no suggestion she was drunk and had not drunk anything since returning from her friend's house at 8.00pm.
[40] He referred me to Jacobs Baptie report and particularly the measurements of 1.4 metres and 1.8 metres from the plinth to the long grass before the cliff edge. He reminded me that the ground was uneven and that this impacted on the risk.
[41] He maintained that there was a sufficiency from the pursuer's evidence and that of Hector Polson (see joint minute No. 29 of process). He also urged me to accept the evidence of Trudy Watt in relation to her seeing this swath of grass which she said was different from the rest of the grass on the cliff. All this evidence pointed to the fact that the pursuer did stumble from the east-most side of the bench.
[42] He advised me that liability attached to the defenders by their occupation of the ground and their failure to provide the necessary fencing. He indicated that he was not relying on the lighting defect because of what Mr Gotch had said in his evidence. He referred me to No. 5/5 of process, namely the copy Disposition in favour of the Defenders' predecessors.
[43] He referred me to the 1960 Occupiers Liability (Scotland) Act, Section 2(1) and while he accepted there was no strict liability but merely reasonable care incumbent upon the defenders, nonetheless he urged me to accept that the defenders were liable in terms of the evidence before the court.
[44] He accepted that there was no duty to protect someone entering onto the property from natural and obvious hazards but he maintained that there are exceptions to the general rule.
[45] Mr Erroch then led me through well recognised authorities but argued that times had moved on and in particular he suggested that what was said in Stevenson against Glasgow Corporation 1908 Session Cases 1034 might no longer apply in that the Tay, Ness and Clyde are now fenced.
[46] He referred me to Tomlinson against Congleton Burgh Council 2004 1AC 46, which while following the principles of Stevenson against Glasgow Corporation did accept that there might be exceptional cases and he referred me to Lord Hutton at page 90, paragraph 65, where Lord Hutton states "Therefore I consider that the risk of the plaintiff striking his head on the bottom of the lake was not one against which the defendants might reasonably have been expected to offer him some protection and accordingly they are not liable to him because they owed him no duty. I would add that there might be exceptional circumstances where the principle stated in Stevenson against Glasgow Corporation 1908 SC1034 and Glasgow Corporation against Taylor 1922 1AC44 should not apply and where a claimant might be able to establish that the risk arising from some natural feature on the land was such that the occupier might reasonably be expected to offer him some protection against it, e.g. where there was a very narrow and slippery path with a camber beside the edge of a cliff from which a number of persons had fallen, but the present case is not such a case and for the reasons which I have given I consider that the appeal should be allowed."
[47] Mr Erroch stated that because there had been two previous accidents at Victoria Walk, the defenders were on notice.
[48] Finally Mr Erroch referred me to Taylor against Glasgow Corporation as above, and particularly Lord Shaw at page 11. Mr Erroch maintained that in the present case the Sinclair bench was an object of attachment and allurement allowing me to consider this an exceptional case and on the basis of that and what he had earlier stated asked me to find in favour of the pursuer.
Submissions for the Defenders
[49] For the defenders Mr Milligan indicated that the pursuer had failed to prove her case on record. She had failed on the principal ground in that she had not established the mechanism of the accident.
[50] Secondly, there was no duty on the defenders to protect against natural and obvious dangers and the cliff top was such a danger.
[51] Thirdly, even if he was wrong in the above, and there was a duty to provide some protection, the defenders had done enough.
[52] With regard to the mechanism of the accident, Mr Milligan argued that the pursuer stated on record "While bending down she slipped". Mr Milligan said he had no quarrel regarding the pursuer's credibility and would make no attack on that but he maintained that her reliability was inevitably in question. When examining her evidence he said the net effect was that she had no recollection of the mechanism of the accident and how it was caused and therefore her case must fail. He referred me to McCluskey against The Lord Advocate, unreported, Court of Session 21st July 1993 and particularly page 25 where it was said "Further if the Forestry Commission was in breach of its duty to take reasonable care for the safety of the pursuer I am not satisfied that the breach caused or contributed to the accident. The pursuer stated quite frankly that she did not know what caused her to fall. She could have slipped or tripped or simply lost her balance and I do not consider that she had established that it was the dangerous condition of the fishermen's path which caused the accident." Similarly he referred me to Graham against East of Scotland Water Authority 2002 SCLR 340.
[53] Mr Milligan maintained that if we did not know the mechanism we could not decide on negligence or contributory negligence. He accepted that one could have pre-traumatic amnesia but when the pursuer's evidence at its highest was that she lost her footing then in law this was not sufficient.
[54] As to whether there was any duty incumbent upon the defenders Mr Milligan referred me to the case of Tomlinson in which it showed the House of Lords deprecating local councils' attitude in such matters, e.g. emptying paddling pools. This present case was not a question of it being a trap for children. The pursuer well knew that the cliff was there and the bench was no more of an allurement than the path was and he asked me to repel the pursuer's argument in this regard. In support of this he referred me to Duff against East Dumbartonshire Council, unreported, Inner House Court of Session 28th June 2002, and Strachan against Highland Council, unreported, 11th November 1999, Dingwall Sheriff Court.
[55] Even, Mr Milligan argued, if there had been a duty to provide some protection the defenders had provided this. There had to be a balance between providing a recreational activity and guarding against reasonably foreseeable risks.
[56] Mr Milligan maintained that there had been complaints even about the limited fencing which the council had employed. This was a substantial bench with a plinth and the defenders did not accept that the ground was uneven.
[57] The risks which were to be guarded against must be reasonably foreseeable. The pursuer says that this is an unusual case but the bench had been there for some 50 years without incident or complaint. The earlier incidents referred to by Mr Erroch were some considerable distance away from the present locus and were totally irrelevant. For the pursuer to succeed in her argument she must overcome the basic principle and show how particularly unusual this case was and there had been absolutely nothing to suggest that that was the case.
[58] Mr Milligan said that he could not make submissions on contributory negligence because the pursuer had not given notice or led evidence as to what the pursuer had done.
[59] In all the circumstances he asked me to repel the pursuer's pleas-in-law and sustain his first, fifth and sixth plea.
Decision
[60] In this action the pursuer seeks damages from the defenders, a local authority, for injury sustained by her when she slipped and fell from cliffs at Victoria Walk, Thurso.
[61] In the amended record the pursuer avers that she sat on a bench, she dropped her personal stereo, which landed on the grass between the concrete surrounding the bench and the cliff top and towards the right hand side of the bench. While bending down to pick up her personal stereo, she slipped and fell over the cliff.
[62] In evidence, however, the pursuer spoke of bending down to pick up her personal stereo but could not remember anything further. While her credibility was not a matter of challenge by the defenders I accept Mr Milligan's assertion that the pursuer has not proved the mechanics of the accident.
[63] Mr Gotch spoke to a distance of 1.4 metres from the concrete plinth on the right hand side of the bench to the long grass. This was from measurements taken by one of his assistants. Mr Potts spoke of the same being 7 foot, which he had measured himself. Neither person, however, was able to say how far it was from the beginning of the long grass to the cliff edge.
[64] I am not satisfied that the pursuer has proved on the balance of probability what caused her to fall from the cliffs. On record she avers that when bending down to pick up her personal stereo she slipped and fell over the cliffs. That is not what she said in evidence. She recalls bending down to pick up her stereo but no more than that. I do not consider that the pursuer has proved the mechanism of how the accident occurred and accordingly her action must fail. I am fortified in my view by dicta of Lord Emslie in Graham against East of Scotland Water Authority 2002 SCLR 340 at page 345, paragraph 20, and also Sheriff Harris in Kain against Aberdeen City Council, unreported, Aberdeen Sheriff Court 29th March 2005.
[65] Secondly, I do not consider that there is a duty on the defenders to protect the pursuer against natural and obvious dangers. I consider it self evident that the cliffs at Victoria Walk are a natural and obvious danger, see Tomlinson against Congleton Burgh Council and another 2003, UKHL47. In this case the court made reference to the earlier cases of Stevenson against Glasgow Corporation 1908 SC1034 and Glasgow Corporation against Taylor 1922 1AC44. These cases all affirm the position that you cannot "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.".
[66] The basic premise of Mr Gotch's evidence was that practice had moved on since in particular these two cases involving Glasgow Corporation and that there was now a duty on councils to fence cliffs such as in the present case. I did not accept Mr Gotch's evidence on this and consider that the pursuer was well aware of the dangers of the present cliffs when she chose to sit down on the Sinclair bench.
[67] Mr Erroch asked me to distinguish the authorities and rely on what Lord Hutton said at page 91 of Tomlinson, namely "I would add that there might be exceptional cases where the principle stated in Stevenson against Glasgow Corporation 1908 SC1034 and Glasgow Corporation against Taylor 1922 1AC44 should not apply.".
This, in my view, is not such an exceptional case.
[68] Finally, even were there a duty on the defenders to provide protection (and I do not believe that there is) the defenders have fulfilled such a duty by signage and fencing at the geos. Clearly there is a balance which must be reached between providing a recreational facility such as this Walk and guarding against reasonably foreseeable risks.
[69] The defenders, who face complaints from the public regarding any fencing, did fence areas where there were obvious dangers. The expense of fencing the whole cliffs is rightly one which would concern the defenders. The public voiced its opposition to fencing and the Sinclair bench had been in situ for 50 years without incident or complaint. I did not consider Mr Gotch's approach to be correct and referred to Lord Hoffman in Tomlinson against Congleton Burgh Council 2003 UKHL47 at page 85, paragraph 47.
[70] For the above reasons, the pursuer having failed to establish her case, the defenders are entitled to be absolved.
[71] Mr Milligan stated that he was unable because of the limitations in the pursuer's case to address me on contributory negligence. Nonetheless he wished me to consider it.
[72] Because the evidence did not establish the mechanics and cause of the pursuer's fall, it is not possible to assess contributory negligence if any on the part of the pursuer.
[73] I do not see any reason to depart from the normal rule of expenses following success and accordingly I award expenses against the pursuer in favour of the defenders.
[74] I will certify that the case is one where counsel should be sanctioned.