Act: Dewar, Q.C., Erroch; Drummond Miller, W.S. (Appellant)

Alt: R. Milligan; Ledingham Chalmers (Respondents)

6 June 2007

[1] This is an appeal from a decision of the sheriff at Wick in an action of reparation at the instance of the appellant against the respondent council in relation to

an accident she sustained on cliffs near Thurso on 28 August 2000. The appellant fell over the cliff and sustained very serious injuries. Damages have not yet been investigated to any material extent and the proof which was heard by the sheriff was limited to liability. He subsequently granted decree of absolvitor.

[2] There was little or no dispute of fact, although as will become apparent the appellant before us tendered certain amendments, which we were invited to make to the findings of fact, and the findings in fact and law, as made by the sheriff. The findings in fact and findings in fact and law, as made by the sheriff, were in the following terms:

"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."

[3] Before us the appellant tendered, as we have indicated, certain amendments which were as follows:

"Findings in Fact

1. In No.8, delete the last sentence and substitute therefore:

'As she stood up her personal stereo fell from her lap. She took two or three steps forward on the grass and then bent down to retrieve the personal stereo. As she did so she slipped or otherwise lost her footing and fell to the beach below.'

2. In No.10, delete 'was not undulating but level' and substitute therefore:

'is relatively flat except at the right hand side where it slopes gently toward the cliff edge.'

3. Add to the end of No.11:

'It would have been practicable and relatively inexpensive to have fenced the cliff top in the vicinity of the Sinclair Bench.'

4. Add at the end:

'14. The fencing of the geos and the warning signage at either end of Victoria Walk provided no protection for the Pursuer.'

Findings in Fact and Law

5. In the first, delete 'failed to prove' and substitute therefore 'proved', and substitute 'and' for 'or'.

6. In the second, delete 'failed to prove' and substitute therefore 'proved', and substitute 'the' for 'any' where that word occurs twice."

[4] The sheriff's decision forming part of his note was in the following terms:

"[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 [counsel for the defenders] assertion that the pursuer has not proved the mechanics of the accident.

[63] Mr Gotch [an expert witness for the pursuer] 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 [a witness for the defenders] 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] UKHL 47. In this case the court made reference to the earlier cases of Stevenson against Glasgow Corporation 1908 SC 1034 and Glasgow Corporation against Taylor [1922] 1AC 44. 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 [counsel for the pursuer] 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 SC 1034 and Glasgow Corporation against Taylor [1922] 1AC 44 should not apply.'.

[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 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 do not consider Mr Gotch's approach to be correct and referred to Lord Hoffman in Tomlinson against Congleton Burgh Council [2003] UKHL 47 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."

[5] The parties presented a joint list of authorities, most of which were referred to. They are as follows: Stevenson v Glasgow Corporation 1908 SC 1034; Taylor v Glasgow Corporation 1922 SC (HL) 1; Jones v Great Western Railway Company (1930) TLR 39; Thomas v Thomas 1947 SC (HL) 45; Occupiers' Liability (Scotland) Act 1960; McCluskey v The Lord Advocate, unreported, Court of Session, 21st July 1993; Dawson v Scottish Power 1999 SLT 672; Strachan v The Highland Council, unreported, Dingwall, 11th November 1999; Graham v East of Scotland Water Authority 2002 SCLR 340; Duff v East Dunbartonshire Council, unreported, Court of Session 28th June 2002; Tomlinson v Congleton Borough Council and Another [2003] 3 WLR 750; Thomson v Kvaerner Govan Ltd 2002 SC(HL) 1; Kain v Aberdeen City Council, unreported, Aberdeen, 29th March 2005 and Boyd v Lanarkshire Health Board, unreported, Court of Session, 25th February 2000.

[6] The debate before us turned initially on the question of whether the sheriff was correct in holding that the pursuer had not proved how the accident happened mechanically and secondly on whether the sheriff was entitled, or correct, to favour the defenders' position with regard to the erection of a barrier or fence. The sheriff declined to follow the evidence of a Mr Gotch, who was presented on behalf of the pursuer as an expert. He had not made an examination of the locus prior to his attendance there, along with the sheriff and parties' representatives, at a site inspection immediately prior to the commencement of the proof.

[7] The location of the bench in question was depicted in the photographs produced. It stands on a semi-circular base, or plinth, of concrete situated in an area of mown grass to the seaward side of the path constituting the Victoria Walk at this point. On its seaward side the area of mown grass is fringed by much longer grass, which longer grass and other vegetation continues seawards as the ground then descends very steeply to form the cliff. In evidence, the distance between the seaward edge of the hemi-cyclical plinth and the long grass was given by Mr Gotch as being between 1.4 and 1.8 metres; and by Mr Potts as 7 feet (2.13 metres). While much depends on the precise points being measured, these measurements confirm the impression from the photographs of an area of mown grass some 6 feet (1.82 metres) in broad terms between the plinth and the landward edge of the fringe of long grass. Understandably, no useful measurement was, or could be, given for the distance between the landward side of the long grass and the point at which the terrain began very steeply to descend and to become what might be termed a cliff.

[8] Mr Dewar had to accept that the pursuer's own evidence was very limited as regards the mechanics of the accident. She accepted she could remember nothing after dropping her personal stereo on getting up from the bench and thereafter bending down to pick it up. He had therefore to accept there was no direct evidence as to how the pursuer came to fall from the cliff top to the beach below. His first proposed amended finding in fact sought to address this problem by particular reference to the phrase "she slipped or otherwise lost her footing". That, he said, the sheriff should have found proved by way of inference. There was no evidence or suggestion of any deliberate act by the pursuer that would have caused her to fall over the cliff. He therefore submitted that what he was proposing was an inference properly to be drawn from the other evidence that was before the sheriff.

[9] However, his basic position in submission was that however the accident happened there was no doubt that the pursuer fell down the cliff. (Although in his findings in fact the sheriff does not so find, the sheriff does however accept that position in his note). That being so, it was submitted, if a barrier had been there, at least on the balance of probabilities, it would have prevented the pursuer from falling down the cliff, whatever the more detailed mechanics of how she came so to fall.

[10] He submitted that whatever may be the general position with regard to dangers arising from natural phenomena on land to which people have access, be they rivers, cliffs or the like, the circumstances of this case required the occupier, i.e. the Council, in the exercise of reasonable care, to assess the risk on the special circumstances available and determine that fencing was required. In particular the bench was something of an allurement and people would think they would be safe in using it.

[11] His third position in submission was based on the lack of warning signs and fencing at the locus of the accident, albeit he accepted that there were such signs at each end of the walk and that equally if the appellant's fall was a result of involuntary movement while she was still on the top of the cliff, warning signs would have made no difference. Mr Dewar submission was that the provision of signage at the ends of the walk and the fencing of the geos were not sufficient to satisfy the duty of care on the respondents.

[12] Mr Milligan's basic reply was that in relation to the mechanics of the accident the sheriff was more than entitled upon the evidence, or rather the lack of it, to reach the conclusion that he was unable to determine precisely what had caused the appellant to fall over the cliff. To reach any other conclusion on that specific matter Mr Milligan submitted would have been speculation, as the sheriff had effectively found.

[13] On the more important issue of fencing, Mr Milligan founded on the fact that in general terms the law did not require an occupier of land to take precautions against obvious dangers arising from natural phenomena such as rivers or cliffs in relation to persons who might be present or nearby to those situations. There require to be special circumstances giving rise to a special risk, and in this respect the case of Taylor was a very good example. He submitted that the House of Lords case of Tomlinson added nothing and that insofar as Lord Hutton had made an example with regard to cliff top movements it was obiter and should not be followed. In any event, the substance of that case was that the cause of the accident or injury had not been substantiated on the facts. In any event he submitted that for the appellant to succeed on this point the sheriff had to be shown to be plainly wrong upon the evidence, since it had been essentially a jury question for him as to whether the respondents should have provided fencing at the locus of the accident. That test had not been met by the appellant.

[14] As respects warning signs, counsel pointed out that the sheriff had found that the pursuer was aware of the presence of the cliffs and their dangers. Further, as Mr Dewar had effectively accepted, he submitted that issue of warning signs was of no materiality if, as seemed the most likely scenario, whatever happened the pursuer's fall over the cliff had been a result of an involuntary movement on her part.

[15] In seeking to resolve this matter, which arises out of an accident with tragic consequences, we accept Mr Milligan's submissions that we should not interfere with the sheriff's decision to decline to make findings in fact as to the mechanics of the accident, on the basis of the evidence, or the lack of evidence, that was before him. He was more than entitled to take the view that the evidence such as it was from the pursuer, there being no other eyewitnesses, went no further than that she was present on the seat, that on getting up from it she dropped, and then bent down to pick up her personal stereo and that was the extent of findings in fact he was prepared to make as to the mechanics of the accident. Whether she thereafter set off towards the edge of the cliff voluntarily, being disorientated, or involuntarily slipped, could not be determined. Nor indeed could it be determined whether she had slipped or otherwise come to grief on the slight sloping piece of the ground. We do not therefore accept the proposed amendment to finding in fact 8, which was proffered by counsel for the appellant, with regard to the insertion of the word "slipped". In finding in fact 8, the sheriff found that as the appellant stood up from the bench her personal stereo fell from her lap and that she bent down to retrieve it. We are prepared to accept that some time after the appellant stood up from the bench she fell over the side of the cliff to the beach below. Indeed the sheriff's note proceeds on the basis that she did so. In such circumstances, we are prepared to make a finding in fact to that effect. However, what caused the appellant to fall over the cliff was a mystery to the sheriff. He was legitimately entitled to reach that conclusion. For that reason we are not prepared to accept the whole of the amendment to finding in fact 8 that was proposed on behalf of the appellant. The question of whether the appellant voluntarily walked off the edge of the cliff by reason of becoming disorientated, whether by reason of the lack of light or for other reasons, is at least a possibility, although we accept that there was no basis for suggesting that when the appellant fell over the cliff she was trying to commit suicide.

[16] For the purposes of looking at the appellant's action in its wider context, we are prepared to assume in favour of the appellant that she did involuntarily fall over the cliff. This at once of course disposes of any question that warning signs were relevant to the causation of this accident, but it does focus the question of whether or not in general terms the respondents having assessed the locus should have erected a barrier.

[17] There is no doubt that the general law remains as stated in the somewhat historic cases of Stevenson and Taylor to the effect that in general terms an occupier of land containing natural phenomena such as rivers or cliffs, which present obvious dangers, is not required to take precautions against persons becoming injured by reason of those dangers unless there are special risks such as unusual or unseen sources of danger. We do not consider that the case of Tomlinson adds anything to that position. The safety professional led for the appellant, who contended for the erection of fencing, considered that practice had changed since Stevenson and Taylor. In our view the sheriff was correct in thinking that the law remains as stated in those cases and we consider the sheriff was entitled not to accept his evidence on the provision of fencing. Agreeing with the sheriff we are unable to accept that the combined circumstances of the location of the seat, which would obviously attract people to sit upon it, removed from the edge of the cliff by some distance surrounded by mown grass, which would not in itself pose any danger, do not amount to a special risk or circumstance of special danger requiring the local authority applying its mind to the exercise of reasonable care in this case to take any precautions at this location. The geos are obviously different in as much as at those areas of erosion the path itself passed very close to the cliff face . Apart from questions of the expense of fending it is apparent from the evidence and the sheriff's findings that many people would find fencing at other locations intrusive and objectionable. The question has to be one of degree and common sense. The sheriff, who not only heard the evidence but also inspected the locus was entitled, in our view, to conclude that there were no unusual or special dangers at the locus requiring the occupier to take precautions such as the erection of fencing. In many ways the issue for the sheriff was a jury question in respect of which it has to be shown that the trial judge, i.e. the sheriff, plainly misdirected himself or plainly reached a wrong decision on the facts. We find it quite impossible to assert that in this case.

[18] In these circumstances we consider this appeal must be refused.