SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT ABERDEEN

A2138/02

Act:

Alt

ABERDEEN, 20 November 2007.

Having resumed consideration of the cause, the sheriff found the following facts proved.

(1) The pursuer is a 62 year old retired shop assistant who resides at 68 Thistle Drive, Portlethen, Aberdeenshire. The defender is a local authority having their administrative headquarters at Woodhill House, Westburn Road, Aberdeen. As local authority they are owners and occupiers of the public park known as Burnside Park, Portlethen.

(2) On 31^st December 1999, the pursuer left her home and went by car to visit her long time friend, Mrs Veronica Muir intending to bring in the New Year in the company of her friend.

(3) The pursuer arrived at her friend's house at 7 Devenick Drive, Portlethen at about 9 pm. She shared some wine with Mrs Veronica Muir and her husband, Alexander Muir and a number of other visitors to the Muir household, including a Mrs Linda Graham.

(4) The pursuer spent the rest of that evening in the Muir household. Glasses were recharged to toast the New Year, thereafter some of the group went to visit other friends in the neighbourhood.

(5) At about 2 am the pursuer and Linda Graham decided to visit the home of Mr and Mrs Smith, Claymore Avenue, Portlethen to wish them a Happy New Year. The Smith's house lies on the other side of Burnside Park from the Muir's house. The two ladies decided to take the most direct route which is across the Park.

(6) Burnside Park is a large grass covered open space at the east most end of which is situated a children's playground. The grassed area is intersected by various footpaths. Along the southern boundary of the Park runs a stream. The northern bank of the stream has been largely planted with shrubbery. Three bridges have been constructed by the local authority to provide access for members of the public from the residential housing which lies to the south of the park and the stream. The Muir household at 7 Devenick Drive is only a short distance south of the east most bridge.

(7) The bridges are of substantial construction consisting of steel H-beams laid on concrete abutments and other associated steel work and wood to provide strong sides and handrails, and a firm base for a walkway of wooden planks. The bridges are not of equal width, the central bridge is wide enough to accommodate three to four persons walking abreast while the bridges on each side are essentially single track.

(8) The shrubbery planted on the northern end of the banks of the stream extended up to the mouth of the bridges except on the northeast corner of the north end of the east most bridge.

(9) Chespale fencing had been erected by the defenders between the shrubbery and the footpath north of, and parallel to, the stream. The end post of this fencing was closely adjacent to the handrail post of each bridge. At the northeast corner of the east most bridge the vertical strips constituting the main part of the fencing were frequently missing.

(10) The removal of parts of the chespale fencing at that east most bridge closest to the play park had been a common occurrence for some years and was believed by local residents to be caused by children seeking access to the water, or otherwise using the wooden palings.

(11) The pursuer was well familiar with Burnside Park having used it from time to time when visiting friends. Her own house is about 10 minutes walk from the park. When using the park she usually entered by the central (wider) bridge. At approximately 2 am of 1^st January, the pursuer and Linda Graham took the most direct route from the Muir's house in Devenick Drive to the Smith's house in Claymore Avenue. That route required them to cross the east most bridge in a northerly direction and then turn to the right for a short distance and then join another footpath leading to approximately the Smith's house on their left. As the pursuer crossed the bridge in a northerly direction she did not notice the condition of the chespale fence at the northeast corner.

(12) The pursuer and Linda Graham drank some more wine in the Smith's house and remained there for about two hours. They then set out to return to Devenick Drive by the same route which they had used to travel from that house.

(13) As they approached the east most bridge from the east on the pathway next to the stream they were walking arm in arm. They unlinked arms as they drew close to the bridge. Linda Graham proceeded onto the bridge. The pursuer was to the left of Linda Graham.

(14) The pursuer reached out with her left hand to grasp the handrail of what she thought was the north most end of the bridge. She stumbled to her left as her outstretched left arm did not contact the east handrail of the bridge. As she stumbled to her left her foot was caught by the bottom wire of the depleted fence. That catch accentuated her state of imbalance and she fell and tumbled down the bank into the stream.

(15) The pursuer had mistaken the location of the bridge and had reached for a handrail well before she had reached the bridge structure.

(16) The presence of the lower wire of the chespale fence interfered with the attempt by the pursuer to regain her balance and caused her to fall.

(17) The defenders had erected chespale fencing along the side of the path between the path and the shrubbery planted on the top of the bank of the burn shortly after shrubbery had been planted. Chespale fencing is created by vertical juxtaposition of thin strips of wood. The strips are held vertically in position by loops of unbroken wire towards the top and bottom of each strip. Such fencing is usually stored in roles and used for temporary delineation of areas from which it is desired to keep pedestrians or animals.

(18) The chespale fence was not intended to be a protective fence to stop pedestrians from falling into the burn: it was a delineating fence beyond which pedestrians are invited not to proceed.

(19) Over a period of some years the defenders had used such chespale fencing to protect growing shrubs from having their development impaired by passers-by walking on, over or through the young plants.

(20) At that northeast corner of the bridge which was nearest the play park there had, over a period of years, been persistent vandalisation of the fencing and removal of the vertical strips. Repairs were effected from time to time but that route appears to have been the preferred means of access to the stream for the local children.

(21) By 1^st January 2000 there was a gap about three to four feet in the line of strips of wood leading to the end of the bridge. That gap had been present for several months.

(22) Beyond the line of the fence the bank of the burn sloped gently to the shoulder and then dropped about four feet to the bed of the burn.

(23) The pursuer sustained injury as a result of her said fall. In addition to bruising of head, arms and body she was later found to have sustained a fracture of the cervical spine requiring subsequent fusion and bone graft. She continues to suffer pain and discomfort and has required to cease employment. She has agreed with the defenders that the sum of £35,000 inclusive of interest to 30^th August 2006 is a reasonable estimate for the loss, injury and damage she sustained.

(24) The pursuer failed to take reasonable care for her own safety. Her initial loss of balance was caused by her failure to keep a proper lookout where she was going and retain control of her movements. Her failure contributed significantly to the accident.

(25) The pursuer was eventually extracted from the stream by her friends and taken by ambulance to Aberdeen Royal Infirmary and examined by the doctor on duty in the Accident & Emergency Department there.

(26) The hospital records disclose that the pursuer replied to that doctor who asked her how much she had had to drink by saying "I lost count after the fourteenth vodka".

(27) Some months after the accident the defenders redesigned the approaches to the bridge so as to guide users onto the bridges by a route which does not bring them so close to the edge of the bank.

(28) There was no direct lighting on the north end of the east most bridge. The presence of the top and bottom wires of the chespale fencing were not observed by the pursuer.

Accordingly, Finds in Fact and Law that:-

1. The defenders, as owners and occupiers of Burnside Park in terms of The Occupiers Liability (Scotland) Act 1960, had a duty to take reasonable care for the safety of persons using the park such as the pursuer;

2. the defenders did not have a duty to fence off the bank of the stream so as to prevent the inadvertent walking or falling off the bank into the stream;

3. having introduced a fence along the top of the bank the defenders had a duty to maintain that fence so that the fence did not create or contribute to a cause of injury to persons using the park. The defenders failed to take reasonable care to maintain the fence in a condition which did not constitute a danger to persons on the adjacent pathway;

4. it was reasonably foreseeable that the existence of a single wire a few inches off the ground close to the edge of the bank could be a source of danger to persons approaching the edge of the bank;

5. the pursuer failed to take reasonable care for her own safety and that a reasonable assessment of the extent of her contributory negligence is 80%.

Accordingly upholds the pursuer's pleas-in-law, repels the defenders' 3^rd, 4^th, 5^th and seventh pleas-in-law, upholds the defenders' 6^th plea-in-law and therefore grants decree for the sum of £35,000 with interest at the rate of 8% from 1^st September 2006 under deduction of 80% thereof and allows parties to be heard on expenses on 4^th December 2007 at 9.30 am.

NOTE:-

At about 4 am in the first morning of the new millennium, Mrs Helen Trueman was lying on her back in the bed of a stream. She had attained that position having fallen down a river bank adjacent to a bridge which she had intended to cross. Unfortunately, she misapprehended the location of the bridge, approached the bank, tripped over part of a fence and tumbled into the burn.

She raised an action against the local authority relying on Sections 1 and 2 of The Occupiers Liability (Scotland) Act 1960 seeking reparation for the loss, injury and damage sustained as a result of the failure of the owners and occupiers of Burnside Park namely Aberdeenshire Council to take reasonable care to see that persons entering and using the park would not suffer injury by reason of "the state thereof or to anything done or omitted to be done on them".

There were two significant aspects to this proof. The first was the causation of the tumble and the second was the extent of the duty on the local authority. The pursuer was obviously the main witness to the tumble. The evidence of the pursuer was not greatly helpful to the case on record. Her account was confused and on occasion self contradictory. It is easy to understand that the shock effect of falling into a stream on the 1^st January and becoming unconscious could well have affected her recollection. I did not believe her assertion that she was quite clear how it happened. There is no basis for her evidence that part of the bridge was missing. It is clear from all of the rest of the evidence that there was no part of the bridge missing. What is a clear inference in my view is that she completed mistook where she was in relation to the bridge. She explains that she knew that the wood forming the base of the walkway was, in her words, "higilty pigilty" and that is why she reached out for the handrail. She admits she had not seen the handrail but thought there was one on the bridge. She expected there to be something to hold onto. Had she been on the bridge that action was clearly reasonable and appropriate. However, she was not on the bridge. She was still five or six feet short of the bridge. Having reached out and to her left she stumbled then to her left.

The evidence of Mr Alexander Muir, one of her rescuers from the stream was that he had thought that she had stumbled on the pathway. While that is correct her stumble was not caused to any extent by the condition of the pathway. Her stumble probably occurred at the place on the pathway where a change of pace and change of direction by pedestrians intending to use the bridge would be likely to take place. When she sought to recover her balance her sideways movement of her left foot to the left caused her foot to come into contact with the bottom wire of what had been chespale fencing. That made the recovery of balance. the initial loss of which was entirely due to her own fault very unlikely.

The pursuer led in evidence five of the witnesses with whom she had spent the night celebrating the millennium.

Linda Graham had been walking back from the Smith's house to the Muir's house with Helen Trueman arm in arm. As they approached the bridge they unlinked arms and Linda Graham went first across the bridge. Linda Graham was suddenly aware of the absence of the pursuer and shouted for her but got no reply. The evidence of what happened thereafter is confused and contradictory. In any event, the attention of Mr Alexander Muir who had been out walking his dog was attracted. He went up to the bridge and found there Mrs Trueman in the water. Further help was summoned and Mr Muir and probably Mr Smith assisted her up the bank. An ambulance which had been called then took her to the hospital. At the hospital the medical notes record that she was treated in the A&E by a Dr Alison Green. Dr Green was called to give evidence and her view after examination was that she had found that Mrs Trueman medically fit to go home but she was unsteady on her feet. The medical staff thought that she was too drunk to be trusted with her own safety and she was kept in. Dr Green was adamant that the account that she wrote in the notes had been written as the patient was speaking to her. Dr Green records that when asked how much she had had to drink the pursuer replied "I lost count after the fourteenth vodka".

This evidence somewhat contradicts the evidence from all the other witnesses, who gave evidence about the level of consumption of alcohol by the pursuer on that night. In view of the discrepancies in the evidence of these witnesses on other matters the unanimity in their evidence that the pursuer had only drunk three glasses of wine was striking. I preferred the evidence of the contemporaneous note of the doctor. That does not necessarily mean that the statement to the doctor was true but the fact that it was made in these terms is of significance when considering the pursuer's account of her loss of balance. There was nothing in the state of the defenders' premises which caused the pursuer to lose balance initially.

The next element in the consideration of causation is the significance of the run of wire three or four inches above the ground running for five feet between the end of the bridge and what had become the end of the chespale fence.

The defenders had erected chespale fencing at the side of the footpath which ran parallel to the burn to prevent pedestrians from encroaching onto the planted area between the path and the burn. The provision of a supply of three foot long sticks had apparently proved to be an irresistible lure for the children of the area and the fence was frequently vandalised by the removal of the vertical sticks. The removal also facilitated the children's access to the waters of the burn. The defenders sought to treat the fence as an inadequate protective fence. In my view that approach is misconceived. It is based on the proposition that the defenders had a duty to fence the edge of the burn and had attempted to do so in this inadequate way. In advancing that argument the pursuer relied mainly on the evidence of Mr Stuart Paton, a chartered engineer with 30 years experience in the highway construction industry. Mr Paton had been instructed to examine the site and report. The defenders sought to dismiss his evidence completely as he had obviously examined the wrong bridge. While there is force in that submission in that he clearly did identify the wrong bridge, that would not be sufficient to dismiss his evidence entirely.

The principal area of his expertise seems to be on highway maintenance and Mr Paton appeared to make a number of assumptions the validity of which is at least questionable. I have not been inclined to accept the proposition that the duty imposed on a roads authority in terms of the Roads (Scotland) Act is the proper basis for assessing the duties of care which exists in relation to any pathway through a public park. Reference was made to publications relating to highway structures and maintenance and while that evidence was interesting it seemed to me that it was not relevant to the issue in this case. His evidence that chespale fencing should provide guidance to the limits of the pathway and should support a person leaning on it otherwise it has no purpose was not persuasive. I had an impression that connotations of the word "barrier" were not fully understood and that "barrier" will generate a different word picture pending upon the context in which the term is used. A piece of tape can be regarded as a barrier in one sense, and the same word can be used to describe an Armco barrier along a roadside bend. The word has different meanings depending on the context. I preferred the evidence of Mr Kennedy and Mr Rose as to the purpose and function of chespale fencing. Accordingly, the argument based on the assumption that the defenders had recognised a liability and sought to meet it by the erection of a chespale fence is not sound.

The bank was, of course, a potential hazard. The shoulder was short and the drop was steep and the bottom hazardous. The fence, however, was not designed to be a safety fence to protect intruders from harm or the unwary from overstepping the line of the bank. On the evidence of the local authority officials which I accept this was a delineating fence the purpose of which was to indicate a line over which the public are invited not to cross. While it may have a protective effect especially for small children that was not its primary purpose or function.

However, the defenders introduced this delineating feature which had been reduced at the time of the accident to possibly two strands of wire, one several inches above the ground. That in my view was a source of danger and as a matter of fact did interfere with the pursuer's attempt to recover her balance and in effect created a trip. It thus contributed to the degree of loss of balance which resulted in the tumble into the stream.

Although some argument and evidence was adduced to show that there was an obligation on the defenders to fence off the bank of the stream, I did not understand latterly that counsel for the pursuer was seriously challenging the proposition that there is no obligation on the occupier of land to fence off natural features of the land even though they are perceived to be dangerous. I was referred to a long line of authority to the effect that there is no duty on an occupier to fence off against obvious dangers on land arising from any natural features or well established, permanent and familiar features of landscape. See F Morrison v London, Midland and Scottish Railways 1928 SL2 647; Stevenson v Glasgow Corporation 1908 SC 134; Graham v East of Scotland Water Authority 2002 GWD 5 - 141. It seems to me that that line of authority is persuasive. A bridge which has been constructed in that position for many years is tantamount to a natural feature. It is well known to all who regularly and frequently use the Park and is an obvious means of access for visitors to the park.

The fence, however, is in essence a temporary fence albeit it had been maintained in use for some years and at that location its condition varied with the assiduity of the repair team and the activity of the vandals. It was repaired from time to time but in the three to four months prior to this accident it had been in a dilapidated condition. The danger presented to the pursuer in this case is not the danger of falling off a bank of an obvious stream but the presence of a part of a dilapidated fence which in a crucial five feet before the bridge parapet was missing its vertical spars and the line of which was constituted only by two parallel strands of wire which would be scarcely visible that night. It would seem to me to be fair, just and reasonable to impose upon an occupier a duty to so maintain a structure which they have introduced alongside a footpath that it does not in itself constitute a danger by virtue of any of its characteristics. In this case the existence of the lower cross wire did constitute a trap positioned as it was where it could catch the foot of a pedestrian who strayed from the pathway towards the bank. I accept the evidence that it had been in that dilapidated condition for some months.

The pursuer therefore has passed the test of causation to some extent and has established the existence of a duty in the particular circumstances. There remains the issue of the extent of contributory negligence.

The primary reason for the pursuer stumbling is because she wholly misapprehended where she was relative to the bridge. Having leaned out to grasp a non existent handrail she stumbled to her left. There was nothing to suggest that the initial overbalancing was an irrecoverable loss and the balance of probabilities favours the view that she would step to the left with her left foot in order to recover her balance but her left foot then came in contact with the wire. I take into account the fact that she had lost the support of her friend who had been linked to her on her right and that the consumption of alcohol and the time of the morning would have had some effect on her nimbleness of foot. Had there been no wire at all she might still have failed to gather her balance and fallen down the bank. Her contribution to the accident is very high. I would assess it at 80%.