[2012] CSOH 105



in the cause







Pursuer: Y Waugh, Advocate; Digby Brown LLP

Defender: C Murray, Advocate; Simpson & Marwick

15 June 2012

[1] Miss Brown had an accident on Friday 26 June 2009. It occurred as she was leaving the Lakeland shop in Edinburgh. As she descended the steps leading out of the shop she lost her footing and fell. As a result she suffered various injuries, including extensive bruising to her right side and several fractured ribs.

[2] At the time of the accident Miss Brown was almost 78. She is now almost 81. In this action, she seeks compensation from Lakeland. She contends that it was at fault in two respects. First, by not installing a handrail at the steps. Secondly, by not having better signage to inform customers that there is another entrance with a ramp and a handrail.

[3] The action is brought under the Occupiers' Liability (Scotland) Act 1960. Damages have been agreed at £5,000. The only issue between the parties is that of liability.

The Lakeland Shop
[4] The Lakeland shop is located at the corner of Hanover Street and George Street. It opened in July 2002. It is part of a Grade A listed building erected in 1809. For many years the premises were used as insurance company offices.

[5] The shop extends over the ground and basement floors. It has two entrances. The main entrance is on Hanover Street. It consists of eight steps. Five steps lead from the pavement to a landing. There are three steps above. Persons with mobility problems or who might otherwise have difficulty using that entrance can gain access at the other shop entrance on George Street. It has a ramp and a handrail.

[6] Mrs Tracey Downs has been the manager of the Lakeland shop in Edinburgh since it first opened. The first shop was located further along George Street. Mrs Downs gave general evidence about Lakeland's business. It was established 47 years ago in the Lake District to sell freezer bags to farmers. It has since expanded to a significant extent. It now has 49 stores and a significant online business.

[7] The Edinburgh shop is the fifth busiest store in the company. It employs twenty two staff, nine of whom are aged between 55 and 70. A great many of their customers are middle‑aged and elderly.

[8] Mrs Downs said that the shop currently has about 4,000 customers per week. The busiest period is at Christmas, when there might be as many as 10,000 customers per week. Those figures derive from the cash receipts and only include purchasers, not browsers. Prior to a refit in 2010, a "magic eye" tracked the number of persons entering the shop. In the period before June 2009, about 6,000 individuals came into the shop in a quiet week.

[9] When staffing levels permit, a member of staff is positioned at the top of the steps at the Hanover Street entrance. She is there for a variety of purposes: to prevent shoplifting, to welcome customers and to direct them to where they can find particular products. If appropriate, she also informs them of the George Street entrance. Such advice is given to elderly persons with walking sticks and parents with baby buggies. Even after receiving such advice, some customers choose to come up the steps at Hanover Street. Sometimes they say that although they are aware of the other entrance, they prefer not to go round the corner.

[10] Mrs Downs accepted that customers were less familiar with the George Street entrance. There are, however, a number of ways in which it is drawn to customers' attention.

[11] First, the entrance is marked with a Lakeland sign outside. Secondly, the shop's web site refers to the fact that the George Street entrance has handrails and ramps. Thirdly, after Miss Brown's accident, a notice was placed at the Hanover Street entrance stating that access with a ramp was available around the corner. Currently, Lakeland is seeking permission to place a brass plaque with similar wording on the wall at the foot of the Hanover Street steps. Fourthly, there are automatic glass doors on the inside of the George Street. The doors are near to the checkouts. Many customers within the shop would become aware of the doors opening and closing and of persons either entering or exiting through them.

[12] Mrs Downs stated that many more customers now enter from George Street. That is because they have become aware of the entrance there since Princes Street has been closed for tram works. As a result of the bus stops having been relocated to George Street, there is more "footfall" on that side. Princes Street was first closed prior to Miss Brown's accident.

[13] The shop maintains an accident register. There has been one other accident on the Hanover Street steps. An inebriated man fell going up the steps after lunch one day. The register does not contain any other entry for an accident on those steps, either before or after Miss Brown's accident.

Miss Brown
[14] Miss Brown worked at the Dominion Cinema in Edinburgh for 42 years. For the last 20 years she was the manager. She retired about 20 years ago when she was 62. She still acts as the company secretary for the business which operates the cinema.

[15] Miss Brown attended her GP surgery about dizzy spells on a number of occasions prior to the accident. On 27 March 2007 she told Dr Ann Currie that she had had two weeks of intermittent dizziness. The provisional diagnosis was viral labyrinthitis and she was prescribed medication. On 5 May 2009 Miss Brown saw Dr Alison Woods and reported intermittent dizziness for the last two years, which had become worse recently. She saw Dr Woods again on 26 May when it is recorded that she was still continuing with medication. In an entry four days after the accident (30 June 2009) there is another reference to labyrinthitis.

[16] When asked about these entries, Miss Brown stated that her dizziness gradually improved and eventually it cleared up. If she felt dizzy, she would not go out. She said that prior to the accident, she felt much better and was able to go out again. She did not normally use a walking stick. But she had used one when there was snow and ice on the ground one winter.

[17] Miss Brown has been a Lakeland customer for many years. Initially, she purchased goods by mail order. She started visiting the first Edinburgh shop and continued to be a customer when the present shop opened in 2002. Miss Brown estimated that she visited the shop about three to five times a year particularly in the lead up to Christmas.

The Accident
Miss Brown's Testimony
[18] The incident occurred on a lovely summer's day. In the morning, Miss Brown went to her friend's home in Blackhall to have her hair done. That was significant because Miss Brown explained that when she felt unwell, her friend came to her house to do her hair. After the hair appointment, Miss Brown took a bus into town for a coffee with a friend.

[19] She then took another bus along George Street to the stop opposite the Assembly Rooms. Her destination was Marks and Spencer on Princes Street. After leaving the bus, she walked over the pedestrian crossing at the statue of George IV. When she reached the south side of George Street, she turned the corner into Hanover Street.

[20] Miss Brown crossed from the west to the east side of Hanover Street at the lights. As she did so, the main entrance of the Lakeland shop lay directly ahead of her. She remembered that she needed some freezer bags. Accordingly she went into the shop, where she remained for about 20 minutes.

[21] As she left the shop, Miss Brown was carrying her handbag and a small plastic bag containing the freezer bags. She carried them both in one hand. She descended the first flight of three steps and reached the landing. At about the top of the lower flight of steps, the sole of her left shoe became stuck. She lost her balance. She toppled toward the right and hit her back on the corner of the wall. She ended up on the pavement at the foot of the steps.

[22] People came to help her, in particular a male member of the public. A female employee then came and assisted her into the shop. Inside she sat in an armchair to compose herself. Although Miss Brown wanted to return home quickly, she stayed to help the assistant complete an accident report form. She felt pain and told the assistant that "she would feel it tomorrow". Afterwards, she took a bus home.

[23] Prior to the accident, Miss Brown thought that the Lakeland shop only possessed one entrance: the one on Hanover Street. She did not always find it easy to negotiate the steps there. Sometimes she put her fingers into the carvings on the wooden doors to help her with her balance. She was unaware that there was another entrance on George Street. Since the accident, she has continued to visit Lakeland and always uses that entrance.

Other Accounts Given by Miss Brown
[24] Miss Brown has given slightly different accounts of the incident on other occasions. The closed record states that it was her right foot that was stuck. In a precognition provided to the health and safety expert instructed on her behalf, she states that she "simply lost her balance" (Report of Bill Cassells para. 2.1.3). She also told him that it was her right foot that was stuck.

[25] In December 2011 Miss Brown saw Professor Lawrie, a medical expert instructed on behalf of Lakeland:

"Ms Brown told me that on the 26th June 2009 she had been coming out of the Lakeland Shop at the corner of George Street and Hanover Street in Edinburgh, when she fell down the stairs, because there was no handrail. She told me that she had felt something 'go' in her right foot before falling and that she had damaged five ribs when hitting her back whilst falling, ending up on the pavement in the street. (Report para. 2.1)"

[26] Miss Brown was asked in court why she had mentioned her right foot and had not referred to the presence of chewing gum. She replied that she had no proof of chewing gum on her feet and that both feet had been affected. She said that something did "go", because she got stuck.

Joanne Miller
[27] Joanne Miller was the Lakeland employee who assisted Miss Brown on the day of the accident. Miss Miller is 24 and has worked in the shop since she left school aged 16. She completed the brief accident report form. She confirmed that Miss Brown told her that she had "lost balance on step bumped back on corner of wall" and that these were Miss Brown's own words about what had happened.

[28] Two months later a claim was intimated on behalf of Miss Brown. At that stage Miss Miller was on holiday. The insurers contacted her and asked for further details about the incident. Miss Miller replied by email with a lengthier version of the event. It was then transcribed by hand and is now attached to the accident report form.

[29] Miss Miller said in evidence that someone told her that a person had tripped on the steps. She thinks that she found Miss Brown in one of the chairs by the fireplace, but could not recall if she took her there. She asked Miss Brown several times when completing the form if she was injured or in pain. Miss Brown "was insistent that she was absolutely fine apart from giving herself a fright". She also said that she had winded herself and bumped her back. She just wanted to go home.

[30] Miss Miller said that Miss Brown appeared fine to her. She walked over from the chair to a table beside the checkout tills without assistance. Miss Miller had no concerns about Miss Brown going home herself.

[31] In her email completed two months after the accident, Miss Miller stated

"Also as I was filling out the accident report I mentioned to her that we had another entrance with a ramp at George Street and she said that she probably should have used that in the first place and left by that entrance."

Credibility and Reliability
[32] I found both Miss Brown and Miss Miller to be credible witnesses. However if there had been any important conflict in their testimony, I would have preferred the evidence of Miss Miller. In my view her evidence was more reliable, because it squared with the account she had set down in writing at the time. I took into account that Miss Brown had been involved in a very upsetting event. In my opinion it was natural that she should not necessarily have been focussing on all aspects of the events as they occurred.

[33] However, I reject the suggestion that Miss Brown knew about the George Street entrance and chose not to use it on the day of the accident. In my view, her account that she understood it to be a goods entrance accords with what she may have said to Miss Miller.

[34] But in the circumstances of this case, it is my view that reliability is not an issue. Rather, the question is whether or not Lakeland was at fault.

The Law
[35] The law is not in doubt. Whether or not Lakeland has breached its statutory obligation turns on whether it was negligent. The matter has recently been restated in Murphy v East Ayrshire Council [2012] CSIH 47:

"[19] The second question is whether the defenders breached their duty to take reasonable care for the safety of the pursuer; or, put another way, whether the particular precaution fell within the scope of the duty. That is determined according to the foresight of the reasonable man; since it is that foresight which governs what is, or is not, reasonable in the circumstances (Muir v Glasgow Corporation 1943 SC (HL) 3, Lord Macmillan at 10). The scope of the duty is to avoid doing, or omitting to do, anything which has, as its reasonable and probable consequence, injury to others. This is a question of fact and, as such, one very much for the court of first instance to resolve in the particular circumstances of the case having heard all the evidence. There is some room for diversity of view (ibid). There are many factors which may be taken into account, including knowledge of the risk, its magnitude and the practicability and effectiveness of any preventative measures.

[36] The first factor is the knowledge of the risk. All steps and stairs may be said to present a degree of risk. But in this case there was uncontested fact. Apart from one exceptional case, no one else had fallen on these steps. That has been the case both prior and subsequent to the accident. There has been no history of accidents among perhaps three million persons who have visited the shop over the ten years of its existence. That fact is particularly striking when one considers the relatively elderly composition of the customer base.

[37] Secondly, in relation to magnitude, if anyone does fall, they will not fall far. In this case Mrs Brown fell four or perhaps five steps.

[38] Thirdly, in relation to practicability, Lakeland had already established a disabled access on George Street. It complied in all respects with the relevant legislation. They had also taken steps to bring its existence to the notice of its customers. In relation to effectiveness, there was no evidence that if a handrail had been present, it would have prevented Miss Brown's accident. Mr Cassells indicated, however, that it was the best and most practicable solution.

[39] It is not a statutory requirement for there to be a handrail at the Hanover Street entrance. It is unclear whether the planning authority would have permitted a handrail to be installed. Lakeland had to make three applications before it received permission to modify its George Street entrance.

[40] I heard expert evidence from two architects, Mr Willis and Mr Lightbody. Between them they produced a number of photographs of the entrances to various listed buildings in Central Edinburgh, including Jenners, the Dome, and the Royal Society. All of them had Grade A listing. Some had handrails, others had not. The Royal Scottish Academy is an illustrative example. A handrail was installed on the east and west of the main portico facing Princes Street in late 2011. It does not, however, have handrails along its main frontage.

[41] In my view, there was not much difference in the views of the two expert architects. Both agreed that it was only if an application was made that one could know whether or not permission would be granted. Mr Willis inclined to the view that it would, while Mr Lightbody was firmly of the view that it would not. I do not need to come to a concluded view on this point.

[42] In my view, taking into account all these factors, Lakeland was not under a duty to install a handrail at the Hanover Street entrance. Accordingly, it was not negligent. I shall therefore grant decree of absolvitor in favour of Lakeland.