SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLAND AT WICK

Act: Mr Smith

Alt: Miss Baxendale

Wick, 6^th February 2013

The Sheriff, on resuming consideration of the cause, assoilzies the Defenders from the terms of Crave 1 of the writ and, in respect of expenses, appoints parties procurators to lodge written submissions within 14 days of today's date in relation thereto, or to intimate that they wish to be heard upon same whereupon a diet will be fixed .

Findings in Fact:-

• The Pursuer is Patricia Bonham and she resides at 21 Meadow Court, Meadow Lane, Thurso, Caithness KW14 8DD.
• The Defenders are Pentland Housing Association Limited, a Company registered under the Industrial and Provident Societies Act 1956 (No 2449R(S)) and having a place of business at 37-39 Traill Street, Thurso, Caithness, KW14 8EG. The Defenders are a charitable housing association One of the Defender's housing schemes is at Meadow Court,

Thurso. Meadow Court comprises of twenty four flats and common parts,

including a car park.

• The Pursuer is a Tenant of the Defenders and rents the property 21 Meadow Court, Meadow Lane, Thurso, Caithness KW14 8DD from the Defenders.
• The Tenancy Agreement between the Pursuer and the Defenders is lodged as Item 7(1) of Process as is the Defender's Maintenance Policy and Tenant's Handbook.

5. The tenancy agreement apportions a number of obligations on both the tenant and the landlord in relation to common parts.

• Part of the "common parts", referred to in the Tenancy Agreement are the pavement and car parking area in the courtyard at Meadow Court.

7. The common parts around the Meadow Court premises have not been adopted by the local authority.

• The photographs lodged by the Pursuer numbered 1 to 8 of her Second Inventory of Productions were taken by the Pursuer of Meadow Court some time after 23^rd December 2009.
• On the 23^rd December 2009 at around 1am the Pursuer fell on the pavement area near the door to her flat and suffered a trimalleolar fracture subluxation of her right ankle.
• The Pursuer does not know what caused her to fall.

11. The winter of 2009 was severe.

12. The Defenders did not have a winter maintenance policy for the car park and pavement area at Meadow Court and in particular did not grit these areas.

12 The Defenders do not undertake gritting of common parts.

13. In the weeks leading up to the 23rd December 2009 compacted snow and

ice had built up in the pavement and car park areas at Meadow Court.

• The Defenders supplied a grit box for the use of the residents of Meadow Court.
• The tenants and owner occupiers of Meadow Court spread grit from the box which was filled from time to time by the Defenders.
• The quantum of the Pursuer's injury was agreed at Eleven Thousand Pounds (£11,000) inclusive of interest to the date of any Decree.

NOTE.

In this action the Pursuer seeks damages from the Defenders in the agreed sum of £11,000 in respect of an injury sustained by her in a fall on the pavement outside her home on 23^rd December 2009.

The Proof took place at Wick Sheriff on 6^th September 2012 when evidence was concluded. The case was continued for the lodging of written submissions which were before the Court on 12^th October 2012. Having heard further submissions I made avizandum. i.e. took time to consider my decision.

Evidence for the Pursuer came from the Pursuer only. Evidence for the Defenders came from Alan Ian Paul and Kevin Tait, the Defenders' Property Manager and Maintenance Officer respectively.

There can be no doubt that the Pursuer fell outside her home around 1am on 23^rd December 2009 and sustained injury. The weather conditions for some weeks prior to this date had been particularly harsh and there was much compacted snow and ice throughout the immediate area and well beyond. There was considerable compacted ice and snow on the pavement outside the Pursuer's home where she fell.

An essential difficulty for the Pursuer however is that in evidence she stated that she did not know what had happened causing her to fall. She explained that she had gone outside her home to ascertain if a noise she had heard might be her son returning home from a school prom. When outside she used a handrail. Upon realising that her son was not outside the Pursuer turned to go back into her house. She stated that her feet went from under her. She found herself on the ground, injured.

There is further no doubt that the weather conditions the Pursuer met included compacted snow and ice. There were no other witnesses to the Pursuer falling. On the evidence I have not been able to conclude, on the balance of probabilities, that the Pursuer fell because of the prevailing conditions underfoot. I do not think that I can speculate or guess or assume that the snowy and icy conditions were the reason for the fall. I have to base my assessment on the evidence which comes only from the Pursuer which is to the effect that she does not know what caused her to fall. She was led by Mr Smith that it was likely that she had fallen because of the ice and snow but her stated position is that she does not know.

As stated in Gloag and Henderson, 13^th ed at paragraph 26.11 "Once

negligence (if there is negligence) is established, liability depends upon

proof that it caused the damage in issue."

On this factual basis therefore the Pursuer's case fails.

Had I found that the Pursuer had fallen because of the conditions underfoot I would then have had to consider what liability, if any, would have fallen upon the Defenders either by virtue of their contractual duties under the Tenancy agreement or under The Occupiers' Liability (Scotland) Act 1960 or both.

Mr Smith submitted that the Pursuer's case is founded upon the Occupier's Liability (Scotland) Act 1960. Misss Baxendale broke her submissions on the Pursuer's case down into a contractual case based on the Tenancy Agreement and also in terms of the 1960 Act.

As to the Tenancy Agreement and Handbook the Pursuer and Defenders have both rights and liabilities:-

Tenancy Agreement:-

Clause 1.1.2 deals with interpretation including the meaning of

common parts". This would certainly include the parking and paved

area.

Clause 2.5 under the heading "keeping of pets" confirms that the

Defenders are responsible for "the common parts".

Clauses 2.8 and 2.9 confirm that whilst the tenants must take a turn in

keeping the common parts clean and tidy this is under the sanction that if

the tenants do not do so the Defenders can do so themselves and charge

that the Defenders have the right to determine a dispute

between the users of the common parts on any questions of rotas for their

use and/or sharing.

Clause 5.4 obliges the Defenders to carry out inspections at reasonable

intervals and to carry out a diligent inspection of the common parts before

the tenancy begins

Clause 5.8 requires the Defenders to keep in repair inter alia the pathways,

steps or other means of access.

Clause 5.12 states that the Defenders have a right of access to the common

parts at any reasonable time.

As to the Tenants Handbook ....

Section 4 deals with responsibility for "repairs and maintenance".

Paragraph 4.2 at pages 48 - 50 sets out a table listing various items and setting out whether the Defenders or the Tenants are responsible for their maintenance and repair.

On page 49 "estate footpaths, grassed areas and walls" are confirmed to be the responsibility of the Defenders unless they are not owned by them.

On page 50 the same is stated regarding parking areas and paths and steps to entrance doors.

The only exception, and an important one, regarding paths and steps is that cleaning is the responsibility of the tenant.

It was not clear from the evidence as to who in fact owned the area of interest in this case

The Occupiers' Liability (Scotland) Act 1960

Section 1 states...

..."The provisions of the next following Section of this Act shall have effect, in place of the rules of the Common Law, for the purposes of determining the care which a person occupying or having control of land or other premises (in this Act referred to as an "occupier of premises") is required, by reason of such occupation or control, to show towards persons entering on the premises 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 he is in law responsible".

In respect of "control" I was assisted by Mr Smith's reference to...

Feely v Cooperative Wholesale society 1990 SLT page 547...

...quoting Lord Dervaird at page 549...

"Counsel for the Pursuer suggested that "control" in S.1(1) of the Occupiers Liability (Scotland) Act 1960 to be control such as to bring a person within the ambit of the Act, it must be such control as entitles the person having it to take the steps desiderated to make the premises safe. That appears to me to be a reasonable approach to the construction of the section. Unless a person is in a position to do or refrain from doing whatever is statutorily requisite in relation to the state of the premises, I do not consider that he can properly be regarded as having control relevant to the Act".

I conclude that the Defenders were a party having control of the area involved in the accident. The duties incumbent upon the Defenders in terms of the Lease agreement and the Tenants Handbook, as above, together with the evidence of Mr Tait and Mr Paul as to the inspections carried out by the Defenders from time to time, in respect of repair, further support this conclusion.

The reality is that the Defenders did not carry out gritting on any premises and in particular at Meadow Court as spoken to by both witnesses for the Defenders. Indeed the Pursuer did not suggest they did.

As to whether the Defenders were obliged to carry out gritting I conclude they were not. None of the duties imposed upon the Defenders in the Tenancy Agreement and the Handbook, as set out above, include such an obligation.

I do not conclude that such an obligation can be read into Clause 5.8 in the Tenancy agreement which requires the Defenders to keep in repair inter alia the pathways, steps or other means of access.

Spreading grit or otherwise clearing ice and snow would not, in my view, be a "repair".

If I were to be pushed to say who, if anyone, was obliged to carry out this task in terms of the foregoing duties I think it would be more likely the tenants in terms of their duty to clean paths and steps as at page 50 of the Handbook i.e. I would akin clearing ice and snow more to "cleaning" than "repair".

The fact is however that there is no reference at all to clearing ice and snow in what is a detailed Tenancy agreement and Handbook and the Defenders have no responsibility in that regard under those documents.

I consider therefore that the Pursuer's claim also fails in this regard had I concluded she fell because of the weather conditions.

Should I be right or wrong in the foregoing I will now consider whether the Defenders might otherwise be in breach of any duty in terms of the 1960 Act.

Mr Smith in his submissions additionally referred me to sections 2 and 3 of the Act which read...

..." 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 in law is 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."

..." 3(1) where premises are occupied by virtue of a tenancy under which the Landlord is responsible for the maintenance or repair of the premises, it shall be the duty of the Landlord to show towards any persons who or whose property may from time to time be on the premises the same care in respect of dangers arising from any failure on his part in carrying out his responsibility aforesaid as is required by the foregoing provisions of this Act to be shown by an occupier of premises towards persons entering on them."

Mr Smith suggested this is essentially equivalent to the common law duty of "reasonable care" and that there was sufficient evidence before the Court to allow me to come to the view that the Defenders did not act with reasonable care in relation to the condition of the courtyard, car parking and paved area at Meadow Court.

He argued that this was so by virtue of :-

a. the general failure to implement a winter maintenance programme

• Failure to react to the conditions at Meadow Court following on Mr Tait's inspection and.
• Failure to supply sufficient grit for the grit box.

Miss Baxendale argued that it is for the Pursuer to prove what a reasonable system of inspection and maintenance is, quoting Lord Weir in

Gibson -v- Strathclyde Regional Council 1993 SLT p.1243,

..."In this case, the Pursuer's case is based on a duty on the part of the Defenders to carry out a daily inspection of drains in busy city streets such as the one where the Pursuer is said to have met with her accident. If failure to do so is said to have been the cause of her accident there are no averments if such a system was commonly operated by other local authorities in city streets."

...whereby the Inner House held that it was necessary for the Pursuer to prove what a reasonably practical system was.

Miss Baxendale also submitted that the court cannot conclude that the Defenders failed in their duty of reasonable care by failing to provide grit or failing to undertake gritting as there is no evidence that would allow the court to conclude that this was something that was commonly operated by other housing authorities or that such operations were required and that it is not sufficient for the Pursuer to simply state what she would have considered to have been reasonable in all the circumstances.

She further referred to

Syme -v- Scottish Borders Council 2003 SLT 601

and in particular Lord Clarke who stated:-

"where a Pursuer is seeking to recover damages from a public authority, its failure to carry out certain of its functions, which are subject to the constraints of limited financial resources, it is necessary for the Pursuer to aver and prove that the failure in question was negligent by reference to the practice of other authorities in relation to such matters or, alternatively, that it involved a failure to take steps in relation to a particular and obvious danger. An example of the Pursuer leading evidence of what was the practice adopted in other areas, with regards to gritting, as contrasted to what the Defenders themselves had carried out, was to be seen in the case of Taylor -v- Smith. In the present case the Pursuer was not offering to prove anything of that kind. He merely averred that it would have been reasonable, or practicable, to have had the locus gritted prior to the Pursuer's accident. Proof that something was reasonable or practicable would not itself establish that the Defenders had failed in the exercise of their duty of reasonable care. "

While this case related to a public authority it seems to me that the point is well made in relation to the current matter.

The Pursuer does not aver a case raising what the Defenders should have done based on what any other body has done in the past or what might generally be required of them. There is no case as to what other housing associations or any landlords did, if anything, by way of winter maintenance and the like. Equally there is no case as to what Highland Council did in their winter maintenance etc programme. It could reasonably be observed that to obtain that information would have given guidance as to what the body mostly responsible for winter maintenance in the immediate locality did to establish what therefore might be regarded as reasonable if the same duty fell upon the Defenders.

It is not for me to set out therefore what I would regard as a proper winter maintenance programme based on my own assessment.

Had it been therefore that the Pursuer had succeeded to this point her case would now also fail.

I would reiterate that the Pursuer's case fails herein at the first hurdle on the simple factual basis that there is no evidence herein that I could rely on which would allow me to conclude what caused the pursuer to fall.

In view of my factual conclusions herein I do not make any observations on contributory negligence.

As to expenses I have asked parties agents to make written submissions in relation thereto having in mind the Defenders' success herein but being mindful of the Pursuer having the benefit of legal aid. Should either party wish to be heard on expenses I will ask the sheriff Clerk to fix a hearing in relation thereto.