in the cause







Pursuer: McBrearty; Beveridge & Kellas, W.S.

Defenders: U Doherty; HBM Sayers

1 February 2002

[1]The pursuer in this action is the widow of the late John Graham, who was drowned in Glencorse Reservoir, near Penicuik, on the night of 11-12 April 1997. Under reference to Section 2(1) of the Occupiers Liability (Scotland) Act 1960, she seeks damages from the defenders in respect of the death of the deceased, maintaining that the edge of the reservoir should have been fenced at the point where the deceased is believed to have fallen into the water. When the case came before me on procedure roll on the defenders' first plea-in-law, counsel invited me to dismiss the action as irrelevant. The pursuer's position in response was that I should allow the proof before answer which had been on offer for some time.

[2]On Record, the pursuer avers that on the night in question the deceased, who was admittedly in an intoxicated state, was driven home to Kirkton Farm by his son. Their route took them along the access road by the side of Glencorse Reservoir, which was frequented not only by local farmers like the deceased but also by numerous tourists. The road was used at night as well as by day. Between the road and the reservoir there was a grass verge about one metre wide, and beyond that a stone wall of varying height. For much of the length of the reservoir, this wall was 750-1050mm high, with a solid bank on the reservoir side. However, for a distance of some 70 metres near the entrance to Kirkton Farm, the height of the wall was reduced to around 300mm, and there was a drop of 1.7 metres down to the water. At page 8C/D it is averred that "A danger was presented as a result of the low level of the wall in close proximity to the road, combined with the direct drop into the reservoir. Said danger was even greater for those requiring to use the road at night". Similar averments appear in Condescendence 3 at page 13D/E.

[3]Against that background, the pursuer alleges that the defenders knew or ought to have known inter alia that the situation at the locus "... was one which gave rise to a risk of injury to persons entering upon their land, particularly at night", and that it was accordingly their duty to provide a safety barrier along the 70 metre stretch where the wall height was reduced. There is, however, no averment that any similar accident had ever occurred before, despite the frequent use of the road by tourists and locals alike, nor is it suggested that the defenders had ever received a complaint alleging danger at the locus.

[4]The essential features of the locus as described by the pursuer are admitted by the defenders, subject to the averment at page 12D that "Any danger presented by the reduced height of the wall and the reservoir was obvious". The defenders also aver, at page 11A/C, that the wall varied in height because it followed the natural contours of the edge of the reservoir. Although the defenders' averments to the latter effect are not expressly admitted by the pursuer in her pleadings, I did not understand there to be any material dispute between the parties in this area.

[5]As regards the accident itself, the pursuer's averments cannot be described as extensive. As the deceased's son stopped the car at the farm gate, it is said, the deceased left the vehicle and walked along the access road. He then "... lost his footing, fell into Glencorse reservoir and drowned". The water where the deceased drowned is averred to have been approximately 4 feet deep. In the course of the debate these averments were augmented by the addition of the following passage contained in a Minute of Amendment tendered for the pursuer at the Bar:

"The deceased had left the vehicle driven by his son at a point on the road adjacent to the section of the wall where its height reduced to 300mm. The deceased's body was found in the water adjacent to the section of the wall where its height reduced to 300mm. Had the deceased fallen over the wall at the point where it was between 750 and 1050mm high, the deceased would have fallen onto (sic) the bank of the reservoir and not into the reservoir itself. In the circumstances, it is believed and averred that the deceased fell into the reservoir at a point where the height of the wall had reduced to 300mm".

[6]In developing her submission that the action was irrelevant and should be dismissed, counsel for the defenders advanced two principal arguments. In the first place she maintained, by reference to a number of well-known authorities, that occupiers of land owed no duty to erect fences for the protection of visitors against permanent and obvious features of the environment. This rule applied to natural features such as cliffs, rivers and lochs, but it also applied to man-made or artificial features like railway embankments, ornamental ponds and canals. The rationale here was that individuals could be expected to look after their own safety in relation to permanent and familiar features of the landscape, and it was only where dangers were unusual, unfamiliar or concealed that different considerations applied.

[7]In Hastie v Magistrates of Edinburgh 1907 S.C. 1102, the Inner House affirmed this rule, and dismissed as irrelevant the pursuer's claim for damages in respect of the drowning of his child in an artificial pond in a city park. Stevenson v Glasgow Corporation 1908 S.C. 1034 was a similar case where the defenders were held to be under no duty to fence the River Kelvin into which the pursuer's young child had fallen and been drowned. Thereafter, the same approach was strongly endorsed by the House of Lords in Taylor v Glasgow Corporation 1922 S.C. (H.L.) 1, and by the Inner House in Dumbreck v Robert Addie & Sons (Collieries) Ltd 1928 S.C. 547. More recently, in Duff v East Dunbartonshire Council and Others 1999 G.W.D. 22-1077, Lady Cosgrove again applied the established general rule, holding that a pursuer who fell down a steep embankment on to a rocky river-bank adjacent to a car park had no relevant claim. That decision was later followed by the Sheriff Principal of Grampian Highland and Islands in Strachan v Highland Council 1999 G.W.D. 38-1863, where the pursuer fell over a cliff after passing through a gap in a fence.

[8]What was important about these decisions, in counsel's submission, was that they limited an occupier's duty of care to dangers which were unfamiliar, unseen or unknown, and at the same time positively affirmed that the imposition of a duty to fence off permanent, obvious and familiar features of the environment, whatever degree of danger they might present, could not be contemplated. In some of the cases, moreover, the Court's observations concerned locations where the presence of children was foreseeable, and could therefore be said to apply with even greater force in relation to adults.

[9]In the present case, counsel argued, there was nothing in the pursuer's averments about the reservoir, or the wall along its edge, to deprive the defenders of the protection of the established rule. In particular, it was not suggested that the alleged danger was unusual or concealed, or unfamiliar to an adult like the deceased who lived and worked in the immediate vicinity. On the contrary, the pursuer's averments positively confirmed that the alleged danger arose from permanent, obvious and familiar features of the local environment. In such circumstances, the defenders were under no duty to erect fencing, and the action should be dismissed as irrelevant.

[10]Turning to her second argument, counsel maintained that, notwithstanding the Minute of Amendment tendered during the debate, the pursuer still had no relevant averments to show how or on what surface the deceased allegedly lost his footing, or to indicate any causal connection between the death of the deceased and the alleged danger founded on. For all the pleadings disclosed, the deceased might have been on the metalled road surface at the material time, or on the verge, or even on top of the wall. The case was fundamentally irrelevant on that ground also.

[11]In reply, counsel for the pursuer contended that the case was relevant to go to inquiry, and reminded me of the observation by Lord Keith of Avonholm in Miller v S.S.E.B. 1958 S.C. (H.L.) 20, at page 33, to the effect that in claims of damages for alleged negligence "... it can only be in rare and exceptional cases that an action can be disposed of on relevancy". In counsel's submission, the present case was distinguishable from those on which the defenders relied, especially in view of the fact that both the reservoir, and the configuration of the wall at the locus, were artificial rather than natural features of the landscape. He fairly acknowledged that drawing a rigid distinction between natural and artificial features faced certain difficulties, principally from the fact that the Inner House in Hastie, Stevenson and Dumbreck, and the House of Lords in Taylor, had treated artificial features as falling within the general rule. However, he maintained that the ambit of an occupier's duty required to be considered afresh in the circumstances of each particular case, and that judicial observations in the earlier cases had to be read in the context of their own individual facts. Moreover, in his submission, the Lord President's dicta in Dumbreck - a case relating to machinery - were obiter, and in modern conditions his Lordship's reference to excavations as imposing no duty of care could not be given literal effect. The best guide, counsel suggested, was Lord McLaren's observation in Stevenson, at page 1039, to the effect that "... any special danger" at the locus might require to be guarded against.

[12]In the present case, according to counsel, the pursuer had averred enough to take the case out of the scope of the general rule. Particular stress was laid on the juxtaposition of the reservoir, the reduced wall height at the locus and the direct drop from there to the water. All of these features of the landscape at that point were man-made and (unlike the artificial features discussed in some of the earlier cases) were not there for amenity purposes. The defenders, in short, had brought a "special danger" on to their land, and it could not be said, as a matter of relevancy, that they were under no duty to take reasonable steps to protect the public against it.

[13]For completeness, I should record that in this context counsel argued that the intoxicated state of the deceased on the night of his death was not material and should be left out of account. In his submission, the defenders' duty arose as a direct result of the dangerous features present at the locus, and not from considerations which were merely personal or transient. In the same vein, no reliance was placed by counsel on the erection of general warning notices by the defenders at either end of the reservoir, or on the defenders' decision to erect fencing at the locus subsequent to the death of the deceased.

[14]As regards the defenders' second argument, counsel for the pursuer submitted that his Minute of Amendment sufficiently clarified the locus of the accident, and that his averments at page 8D/E gave adequate notice of how the deceased ended up in the reservoir. It was not necessary, he said, for the pursuer to go further and spell out the precise chain of events by reference to which the nature and extent of the defenders' duty of care fell to be determined.

[15]In a brief third speech, counsel for the defender reminded me, in relation to her first argument, that it had never been suggested that canals and their banks required to be fenced, notwithstanding the proximity of a towpath where people regularly walked or cycled. A fortiori, she submitted, in a case like the present which involved nothing more than a long-established reservoir and a stone wall, there could be no question of a duty to fence being incumbent on the defenders.

[16]As regards the absence of averments as to how the accident happened, counsel stressed that her argument was directed, not to foreseeability, but to causation and the relevancy of the pursuer's case in that connection. In simple terms, the pursuer had failed to aver how (if at all) the defenders' alleged failure in duty had played a part in what happened. The pursuer's amendment sought to identify the locus by inference from where the deceased's body was later found in the water, but it remained entirely unexplained, on the pursuer's pleadings, how and why the deceased had lost his footing and ended up in the reservoir. In particular, where was he when he lost his footing? What caused him to do so? How did he end up in the water after that?

[17]In my judgement the two principal issues canvassed during the debate must be considered against the general background disclosed by the pursuer's own averments. In particular, (i) the road along the side of the reservoir was quite heavily used during the day, and was also used at night; (ii) nevertheless, it is not suggested that anyone else had ever sustained an accident at or near the locus, nor that the defenders had ever received a complaint about lack of safety at that point; and (iii) the deceased himself lived at Kirkton Farm, and must therefore be taken to have been generally familiar with the topography at the locus.

[18]Against that general background, I have reached the conclusion that the defenders' submissions are to be preferred, and that the action must be dismissed as irrelevant. 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 in law incumbent on an occupier. It may be said, of course, that the reservoir and the wall along its edge were man-made and in that sense artificial, but in my view what really matters is that by the date of the accident these were well-established, permanent and familiar features of the landscape. It is to be expected that the banks of any stretch of open water will vary in their height and configuration, and that the height and line of any wall along such banks will not be uniform. I am therefore unable to accept - at least without a history of accidents or complaints - that the danger alleged by the pursuers can properly be classified as unusual, unseen, unfamiliar or otherwise so special as to warrant the imposition on the defenders of a duty to erect fencing for the protection of the public at large. The defenders' position here is, it seems to me, stronger than that of the occupiers of a canal, a railway embankment or a jetty on the shore, and no less strong than that of the occupiers of ponds, river-banks and cliffs who are under no duty to fence them notwithstanding the foreseeable possibility of danger to the careless or unwary.

[19]I agree with counsel for the pursuer that the abstract concept of "obviousness" is not per se a satisfactory test in this area of the law. It is, however, relevant to note that in the earlier authorities that term has generally been used to denote features of the environment which are permanent, ordinary and familiar. Natural landscape features plainly fall into that category, and in my opinion the same applies to long-standing artificial features which are neither concealed nor unusual, nor involve exposure to any special or unfamiliar hazard. It is well settled that an occupier must fence off dangers falling within the latter category, for example the industrial machinery discussed in Dumbreck or the poisonous plants discussed in Taylor. But I think it goes too far to suggest that such a duty applies to the combination of permanent, ordinary and familiar features of the landscape on which the pursuer relies in the present action. I therefore sustain the defenders' first argument and hold that the pursuer's averments are fundamentally irrelevant on this ground.

[20]Turning now to the defenders' second argument, I am also persuaded that the pursuer's averments are irrelevant, in that they give no hint of the way in which the danger alleged on Record is supposed to have caused the accident. The position might have been different if, for example, the pursuer had been able to aver positively that the deceased inadvertently walked off the road at the point where the wall was low, and tripped over it and into the water. But she does not do so. All that she avers is that the deceased "... lost his footing", without attempting to say on what surface or in what circumstances this came about. The absence of positive averment on these matters may well reflect the pursuer's evidential difficulty in recreating the last movements of the deceased before he died, but in my view the pursuer is not entitled to further inquiry if the most she can do is ask the Court to speculate whether, and if so how, the death of the deceased was causally linked to the alleged danger complained of. This is, as I see it, a straightforward matter of causation, and not of foreseeability, and I hold the pursuer's pleadings to be irrelevant on this ground also.

[21]For the foregoing reasons, I sustain the defenders' first plea-in-law and dismiss the action.