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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gilmour v. East Renfrewshire Council [2003] ScotCS 302 (05 December 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/302.html Cite as: [2003] ScotCS 302 |
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OUTER HOUSE, COURT OF SESSION |
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A3174/00
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OPINION OF J GORDON REID, Q.C., F.C.I.ARB SITTING AS A TEMPORARY JUDGE in the cause AILEEN GILMOUR Pursuer; against EAST RENFREWSHIRE COUNCIL Defender:
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Pursuer: Smart; Morton Fraser
Defender: Connal, solicitor-advocate Q.C.; McGrigor Donald
5 December 2003
Introduction
[1] Miss Gilmour seeks damages from her employers, the education authority responsible for Mearns Castle High School, Newton Mearns, Glasgow (the "School") in relation to an accident at the School in 1998. She slipped and fell while walking along a corridor there. I heard evidence on 30 September, 1 and 2 October and submissions on 3 October 2003. Miss Astrid Smart appeared on behalf of the pursuer and Mr Craig Connal, solicitor-advocate Q.C. appeared on behalf of the defenders. At the outset, they informed me that, in the event of liability being established, damages, on the basis of full liability, were agreed at the sum of £55,000, of which £33,000 was attributable to past wage loss. It was also agreed that the question of contributory negligence was still in issue. A Joint Minute of Admissions was subsequently produced reflecting this agreement and further agreement in relation to various productions. [2] Miss Smart led the evidence of the pursuer, John Irvine, Principal Teacher of Technology at the School, Elizabeth Gibson, formerly Assistant Principal and currently Principal Teacher of Mathematics at the School, Joan Lindsay, who taught Chemistry at the School, Kathryn Wood, who taught Geography, Anne Moore from the Learning Support Department, James McGroran, the School's Senior Janitor at the time, Ann Cusak, the School's day cleaner, Philip Glen, a consulting engineer, and Wilma Murray (formerly Dockrell), who also taught Geography at the School. Mr Connal led the evidence of Kenneth Dunsmore, senior deputy head teacher and Alan Percival, a property officer employed by the defenders.Facts
[3] Miss Gilmour is 62 years old. She is a retired teacher. She has taught mathematics full time at several schools since about 1963. In particular, she taught at Mearns Castle High School between 1978 and 1998 when she was in the full time employment of the defenders. She was the Principal Teacher of Mathematics there. The School is a relatively new school. It was built in the 1970s and completed in 1978. In 1998 the School had about 1000 pupils on its Roll. It was Miss Gilmour's workplace for the purposes of the Workplace (Health, Safety and Welfare) Regulations 1992. The School was and is under the control of the Defenders. [4] The School has several entrances. The Main Entrance, is not actually used as the principal entrance. However, at right angles to the Main Entrance, within the School, runs a corridor (the "Main Corridor"). The corridor is in the order of about 40m long; and about 2.5m wide at most points. The School Dining Room lies at one end of the Main Corridor. The Dining Room area includes a serving area, dining area and a cafeteria. A series of doors at the other end of the Main Corridor leads straight through to an area known as the Foyer; to the right to a Base Area and to the left leading to the Science Corridor and another Base Area. The Main Entrance lies about half way along the corridor slightly nearer to the Dining Room end. More or less opposite the Main Entrance are adjacent doors leading from the innermost side of the Main Corridor to the PE Department and the Photocopy Room respectively. To the left of the PE Department viewed as one leaves that Department and enters the Main Corridor and just beyond the Main Entrance area, the Main Corridor slopes downwards in the direction of the Foyer end for a distance of about 9.90m. This sloped part of the Main Corridor is in effect a Ramp. The gradient is about 1 in 10, which is steep for an internal corridor within a building such as a school particularly in a main corridor which is a frequently used traffic route. Although its construction complied with the then current provision in the Buildings Standards (Scotland) Regulations 1990, as amended, such a steep Ramp could not now be built in compliance with the current version of these Regulations in the absence of a relaxation. It would be too steep. The current maximum gradient is 1 in 15; from about 1994 until 1999 it was 1 in 12; when the School was built the maximum was 1 in 10. It is steeper than normal wheelchair ramp access. [5] The Ramp is an unusual feature in a school. The reason for its existence was not explored in evidence. There is a handrail on the wall on each side of the Ramp. The rest of the Main Corridor was flat and relatively level. The Main Corridor was well lit. The Dining Room Area is about 19m from the top of the Ramp, and the first set of doors at the other end of the Main Corridor which lead to areas known as the Foyer, the Courtyard and a Base Area, is about 21m from the top of the Ramp. The areas known as Base Areas are either rooms or parts of corridors with bench seating where pupils are permitted sit and consume food and soft drinks during the morning and lunchtime breaks. [6] The foregoing represents the layout of the relevant parts of the School both before and after Miss Gilmour's accident. It is more accurately depicted in a drawing (an agreed production) No 6/11 of process although I have reservations as to whether the copy provided to me was truly to scale. Notwithstanding the key or legend on this drawing the corridor depicted was referred to in evidence as the Main Corridor. Photographs 6/21 (also an agreed production) taken some days after Miss Gilmour's accident show some of these areas. The Ramp is depicted inter alia in Photograph 4 of 6/21 of process.Flooring
[7] The flooring along the Main Corridor in 1998 consisted of vinyl or linoleum tiles. The tiles were browny pink with white or creamy mottling. They were not non-slip flooring, unlike the Technology Department where John Irvine worked; such non-slip flooring had been installed there in about 1999. The flooring on the Main Corridor including the Ramp had a smooth, shiny surface. The nature of the surface and slope of the Ramp was such that it had a degree of slipperiness which cannot be described as de minimis. There was a real possibility of slipping, falling and suffering injury while walking along the Ramp, particularly while walking down it. There was no clear evidence as to whether the tiled flooring on the Main Corridor was vinyl or linoleum. There was no evidence that it made any difference for the purposes of this action. There was no evidence of the dimensions of the tiles. Towards the edge of the flooring, adjacent to the walls, the tiles were white. The tile flooring was the original flooring installed when the School was built. Other corridors in other parts of the School had similar tiled flooring. In about 2000 the flooring of the Ramp and other areas was changed to a single sheet of vinyl or linoleum material. This was part of an on going replacement programme. No part of the original tiling was lodged as a production or inspected by any expert who gave evidence. [8] Alan Percival, formerly a maintenance officer and currently a property officer, employed by the Defenders, visited the school once or twice each week in his capacity as maintenance officer between about 1993 and earlier this year when he became a property officer. In addition, he visited nine other Schools regularly which he also looked after. He was a time served joiner and had qualifications in the Built Environment, Construction Management and Quantity Surveying. He took a general walk round the School looking for obvious defects. Sometimes he would be given a note from the janitor about various matters thought to require attention. Mr Percival had no concerns about the Ramp. He did not appear to have any ongoing general risk assessment function. [9] It would have been reasonably practicable to have a ribbed rubber sheet type flooring or other non-slip type flooring on the Ramp which would have eliminated the risk of slipping in dry conditions. There are a wide range of products of this nature available in the market.General Routine
[10] There is and was a fifteen minute break in the morning between 10.45 and 11am and a lunch break for just under an hour between about 12.50pm and 13.45pm. There was a difference among the witnesses as to when exactly the lunch break began and ended but the difference was of only a few minutes and is not material. About 600-700 pupils passed through the Dining Room Area each lunchtime either to eat lunch in the Dining Area, buy and eat food or drink at the Cafeteria or purchase food or drink and consume it elsewhere.15 December 1998
[11] On 15 December 1998, however, the lunch was between 12 noon and 1pm because, in the afternoon, the First Year pupils were having their annual Christmas Party in the PE Department Games Hall; the party began at about 1.30pm. On that day, Miss Gilmour was in her Department. The School Bell sounded at about 1pm. She left the Maths Department at about 1.10pm to attend to a matter in the Photocopy Room. In order to reach the Photocopy Room, she walked up the Main Corridor including the Ramp. She did so without incident. She was a frequent visitor to the Photocopy Room and thus (and, no doubt, for other good reasons) frequently walked up and down the Main Corridor including the Ramp. She deposited some material in the Photocopy Room for copying, left the room and went to the PE Department where the party was being held. She then returned to the Photocopy Room. She came out of the Photocopy Room and turned left to go down the Main Corridor. When she left the Photocopy Room at about 1.30pm, she was carrying, in one hand, a bag containing thirty three School jotters. She had her own large hand bag in her other hand.Lunch Routine
[12] The School has no playground as such. Instead it has a number of "social areas" or base areas which are essentially rooms or parts of various corridors within the School where benches have been placed to enable pupils to sit at morning break time and at lunch time. These areas become littered with the remains of food and drink consumed at morning break and over the lunch period; these remains include empty crisp packets, food wrapping, empty plastic bottles, pieces of food and the like. [13] Children who ate packed lunches consumed them either in the Dining Area or at the Base Areas which included the Science Corridor. The activities of children who brought packed lunches into the School and who did not buy extra food or drink in the Dining Room Area are not relevant for present purposes. Pupils, who did not bring in a packed lunch, queued up along the Main Corridor outside the Dining Room Area for lunch. A very large number of pupils used the Dining Room Area to consume and/or purchase food during the lunch period. Sometimes the queues stretched back to the Main Entrance area almost to the top of the Ramp. Some pupils ate lunch in the Dining Room Area. Others ate snacks at the cafeteria there. Some bought food and left the Dining Room Area. Such food included sandwiches, crisps soft drinks and the like. Such food also included hot chipped potatoes, or chips, and pizza. Pupils were not allowed to consume hot food outwith the Dining Room Area but it was difficult to prevent this and it regularly occurred. Pupils were permitted to buy sandwiches and eat them in the Base Areas. They were not supposed to open wrapped packets of sandwiches or eat the contents until they reached the Base Areas. Again it was know that pupils regularly ignored this rule. The result was that there was a real risk of food spillage along the Main Corridor and other corridors in the vicinity of the various Base Areas.Monitoring System
[14] A monitoring system supervised children in the Dining Room Area. A number of teachers regularly had lunch there but had no official supervisory function. Several other teachers had lunch there and were on duty to ensure the orderly distribution and consumption of food within the Dining Room Area and to see to it that the pupils behaved. Their duties are not relevant for present purposes. A monitoring system also existed to supervise the queues into and the pupils as they left the Dining Room Area and walked to the Base Areas or elsewhere, to control any problems that might arise, to prevent opened packets of food and hot food being taken to the Base Areas and to prevent food being consumed in the Main Corridor. The senior Janitor, Mr McGroran, was stationed at or about the top of the Ramp in the Main Corridor for about the first 15-30 minutes of the lunch period. Thereafter, he went on patrol. His main function was to look out for flashpoints i.e. pupils misbehaving. He did not consider he had authority to intervene if he saw a pupil with hot food or an unwrapped sandwich in the Main Corridor. A member of the Senior Management Team stood in the Main Corridor more or less opposite the Photocopy Room or thereabouts. Mr Dunsmore was invariably at the Main Entrance until the queues subsided; thereafter, he popped into the Dining Room Area and then patrolled the corridors. It was known that the monitoring system did not prevent hot food being taken to the Base Areas or being consumed in the Main Corridor. The possibility of such food being so taken or consumed created a real risk of food spillage in the Main Corridor which cannot be described as de minimis. That risk was known to the defenders and it was known that the various systems of controls in operation were not eliminating that risk. [15] It was Miss Gilmour's practice to take lunch within her own Department. If she had occasion to leave her Department over lunch e.g. to go to the Photocopy Room, she would keep an eye on pupils and on the corridors for obstacles such as pens and children's belongings. If she noticed that any part of the corridor was wet she would contact the janitor to come and mop up. She kept a lookout for food spillages but did not walk with her eyes glued to the floor. If she saw litter she would tell pupils to put it in the litter bins; there was a litter bin in each Base Area.Clean-Up Routine
[16] After the 10.45 to 11am morning break, Miss Cusak, the day cleaner, went round the corridors picking up debris and mopping up any spillages. It is not necessary to discuss this aspect of the clean-up system as it is not relevant for present purposes. [17] As soon as the lunchtime bell sounded signifying the end of the lunch period, Mr McGroran, and his two assistants went on litter patrol outside the School Building. There was little evidence of what the pupils did outside the School Building over lunch, but plainly food and drink were consumed there as well as within the Base Areas. Mr McGroran's litter patrol outside the School Building normally took more than one hour. By the time the janitor and his assistants returned inside the building the majority of litter and debris had been removed from the floors. They emptied the litter bins at the Base Areas, and cleaned the Boys' Toilets. The Day cleaner, Miss Cusak, meantime, started cleaning up operations in the Main Corridor a few metres beyond the bottom of the Ramp at or about a point where there was cupboard in which cleaning materials were kept ; this would normally be after 2pm if the lunch period were at its usual time; and she worked her way away from the Ramp along the Corridor towards the doors leading to the Base Areas, the Foyer and the corridor leading to the Science corridor. She cleaned the various Base Areas, and the Girls' Toilets (replacing toilet rolls, hand towels and soap) and eventually worked her way back along the whole length of the Main Corridor up the Ramp to the Dining Room Area. She did not clean the Dining Room Area. That area was presumably cleaned by other staff. Miss Cusak had no detailed recollection of what areas she cleaned on 15 December 1998 and relied on her routine to describe what she said she must have done. Her evidence, which I accept, was that she probably started the cleaning of the Main Corridor below the Ramp at about 1.10pm or 1.15pm and worked moving further away from the Ramp as described above. The Base Areas and corridors used as Base Areas took something in the order of forty five minutes to clean up. On the afternoon of 15 December 1998, she could not have cleaned and did not clean the Ramp before Miss Gilmour's accident. It would have been reasonably practicable for Miss Cusak to commence her cleaning operations by cleaning and sweeping the Ramp first, i.e. by starting at the top of the Ramp instead of in the vicinity of the bottom of the Ramp. This would have been consistent with what Mr Dunsmore understood the system to be. It would have been sensible to give the Ramp priority as Mr Dunsmore envisaged. Had this been done, then on 15 December 1998 it is likely that Miss Cusak would have spotted and removed the offending chipped potato (referred to below) and cleaned the underlying surface of the Ramp before 1.30pm. [18] There was no document produced setting forth the School's Policy or System or School Rules relating to the monitoring of pupils over the lunch period, the clean up routine or indeed what foodstuff pupils were entitled to take out of the Dining Room area and consume elsewhere. There were, however, regular reminders at morning Assembly about the prohibition on taking food from the Dining Room Area. [19] I should also record that there was some evidence about a walkie talkie system introduced among certain staff but this had nothing to do with Miss Gilmour's accident and I draw no inference one way or the other from such evidence.The Accident
[20] After leaving the Photocopy Room as described above, Miss Gilmour turned left along the Main Corridor, past the Main Entrance Area and proceeded to walk down the Ramp. There was no one else on the Ramp and the Main Corridor was quiet. She was not in a hurry and was walking normally. She proceeded down the right hand half but not at the right hand edge of the Ramp. She was carrying two bags and so did not hold on to the handrail. She was looking ahead rather than down towards the floor. This is natural when walking down a sloped surface such as the Ramp. She was not in any sense patrolling the Main Corridor or keeping a particular lookout for food spillages. She was under no duty to do so. Her right foot slipped when she was about two thirds of the way down the Ramp. She lost her balance. She was unable to grab the handrail and unable to regain her balance. Her right knee twisted awkwardly. She did not fall flat on her back but rather slid or slithered and crumpled onto the floor. In the course of her fall, her right shoe came off. She was wearing low court shoes with a low heel. There was nothing unusual about her footwear. [21] Mrs Lindsay witnessed the accident. She had been in the Photocopy Room. She came out of the Photocopy Room and turned left towards the Ramp. She was a few feet behind Miss Gilmour. Mrs Lindsay had reached the top of the Ramp when Miss Gilmour slipped. Mrs Lindsay and subsequently John Irvine came to Miss Gilmour's aid. She was put in a chair and taken, eventually, to hospital. While assisting Miss Gilmour, Mrs Lindsay observed a partly squashed chipped potato a little further down the Ramp from where Miss Gilmour came to rest. Miss Gilmour's right shoe came to rest even further down the Ramp. Mrs Lindsay also noticed a white streak on the sole of Miss Gilmour' right shoe. The source of that white streak was probably the chipped potato. What became of the shoe and the chipped potato was not disclosed in the evidence. I infer that the chipped potato had been cooked or heated and had formed part of a packet of chips sold to a pupil in the Dining Room Area that lunchtime. The chipped potato must have been discarded accidentally or deliberately by a pupil during the lunch period that day. While it may not be established beyond all reasonable doubt on the evidence that Miss Gilmour stood on the chipped potato or part of it immediately prior to slipping the balance of probability is that she did so. Miss Gilmour did not notice the chipped potato immediately before or after the accident. Such a chipped potato, whether in original or any other condition (e.g. squashed in whole or in part) would be difficult to spot on the flooring in the Main Corridor and in particular the Ramp because of the colour of and pattern on the surface of the tiled flooring. Miss Gilmour did not notice the chip immediately before her accident. However, in the circumstances I do not consider that she can be blamed to any extent for that. She was walking normally, was not in a hurry and was not distracted by anything immediately before her accident. I hold that she was taking reasonable care for her own safety in the circumstances.Previous Accidents
[22] A number incidents of slipping on the Main Corridor flooring had occurred prior to Miss Gilmour's accidents. None of these was officially reported as nobody appears to have been injured. Miss Gilmour's evidence was essentially that teachers often slipped on the flat surface of the corridors but this was not reported because they were not injured. From the evidence it is plain that a number of members of staff, including Miss Gilmour, Mr Irvine, Mrs Gibson Mrs Lindsay, Kathryn Ward and Mrs Moore were wary of the floor surface on the Ramp at least until it was replaced in about 2000. Before the new head teacher took up his appointment in 2001, there was a general lack of interest in health and safety issues. There was no encouragement to report health and safety concerns particularly where accidents did not result in injury.Post Accident
[23] Miss Gilmour was unable to return to work and has since retired. She returned to the School with a surveyor in 2001 when a plan was prepared, and with Mr Glen on 19 August 2003 when he examined the Ramp and the flooring which by then had been replaced. The new flooring was sheet linoleum. There was no longer any flooring within the School which was the same as the flooring which covered the Main Corridor including the Ramp in 1998. Other changes that have incurred since the accident include the placing of large mats at outdoor entrances, and a notice at each of these entrances stating Caution! Possible Slippery Surfaces. The mats and notices were related to and an attempt to deal with the collection of water at the entrances to the School in wet weather and to warn those entering the School of possible slippy surfaces. These have no bearing on the issues in the present action.Submissions
[24] Miss Smart submitted that the following critical findings were justified on the evidence (i) the Ramp was steep (Irvine, Lindsay and, Miss Gilmour); (ii) the surface was shiny and smooth (photographs 6/21), (iii) the Ramp was slippy (Irvine, Ward, and Lindsay); (iv) the cause of Miss Gilmour's accident was the interaction of three factors, namely (a) the presence of the chip on the Ramp, (b) the slope of the Ramp and (c) the general slipperiness of the floor, (v) on the day of the accident the Ramp had not been cleaned between the end of the lunch and 1.30pm when the accident occurred (Cusak); (vi) the chip was present on the Ramp between some point before the end of lunch and the time of the accident; (vii) no one was designated as being responsible for patrolling the ramp, (viii) it was known that hot food was purchased in the Dining Room Area and taken out back along the main corridor contrary to the School Rules; (ix) the monitoring system was known not to prevent food spillage in the corridor; (x) these various facts and circumstances indicated that priority should have been given to the cleaning of the Ramp immediately after the lunch period ended; this could but was not done especially as it was known that the system for monitoring the removal of food from the Dining Room Area was not wholly effective (xi) a different type of flooring should have been laid on the ramp such as a ribbed rubber flooring. [25] As to the various cases pled on Record, she emphasised the statutory cases. She referred me to the Framework Directive, the Workplace Directive EC89/654 and to Regulations 2, 5 and 12 of the Workplace (Health, Safety and Welfare) Regulations 1992. She submitted that the pursuer was within her workplace when the accident happened. Regulation 5 was directed to risks from the structure, layout and state of cleanliness of the workplace. It was not appropriate to seek assistance on interpretation from the Factories Acts which had been revoked. Instead, the aims of the Workplace Directive should be considered. She referred me to English v North Lanarkshire Council 1999 SCLR 310, at 319B-E for the proposition that looking to earlier legislation as a guide to interpreting to the 1992 Regulations was of no assistance; Gallacher v Kleinwort Benson (Trs) Ltd and Ors 2003 SCLR 384, for the proposition that Regulation 5 imposed strict liability, and that therefore evidence about reasonable precautions or prior accidents or the absence of any are irrelevant; Butler Grampian University Hospital NHS Trust 2002 SCLR 985, for the proposition that the reference to maintained and efficient state in Regulation 5(1) related to keeping the workplace in an efficient state as regards health and safety; McLaughlin v East and Midlothian NHS Trust 2001 SLT 387, which also confirmed the applicability of strict liability, and McNaughton v Michelin Tyre plc 2001 SLT (Shff. Ct.) 67 which placed an unnecessary gloss on the proper interpretation of Regulation 5. She submitted that the pursuer's workplace was unsafe because there was a real risk of injury due to the slope of the Ramp, the slippery floor and the presence of the chip. It can therefore be concluded that the accident was foreseeable as there was a real risk that the combination of these circumstances would result in injury to an employee. [26] As to Regulation 12, Miss Smart submitted that Regulation 12(1) imposed a general requirement that the route be suitable; Regulation 12(1) & (2) imposed a continuing requirement that the constructional state of the floor should be suitable for persons walking on it. Together 12(1) & (2) imposed a continuing requirement that there is no real risk of someone using the route, slipping and suffering injury. In assessing suitability, the purpose to which the floor was being put was relevant as were the known hazards such as food spillage and the characteristics of the employees and their capabilities e.g. what they wore and what they were normally doing. She analysed McGhee v Strathclyde Fire Brigade 2002 SLT 680 which considered Regulation 12 in some detail. She submitted under reference to paragraphs 10 and 11 of that decision that slippery incorporated the question of risk and from a common sense point of view, the phrase to expose any person to a risk to his health and safety was redundant quoad the word slippery. She added that the question here was whether the risk presented by the sloping and slippery Ramp was anything more than remote. Mr Glen, she submitted, said the floor was unsuitable because of the background of food contamination. According to the witnesses the slope created such a risk. In relation to Regulation 12(3) she submitted that there was a clear prima facie breach and the defenders had pled no case averring why it was not reasonably practicable to prevent the chip being present on the floor. The onus being on the defenders, they did not establish such a case in the evidence. On the evidence there was no reason why Miss Cusak could not have been instructed to clean the ramp first. Reference was also made to Anderson v LHB 1996 SCLR 1068 at 1069. Finally, as to the common law case, Miss Smart submitted that the steepness of the Ramp, its slipperiness and the known risk of foodstuff being deposited at any point along the length of the corridor constituted circumstances from which it can be concluded that there ought to have been prioritisation i.e. instruction to clean the ramp first and enforcement of such instruction. As a separate argument she submitted that the circumstances justified a ribbed floor surface over the Ramp. [27] In reply on contributory negligence and causation, Miss Smart submitted that there was no element of contributory negligence. Miss Gilmour had looked down from time to time. Other witnesses in the vicinity at the time had not spotted the chip before the accident. The slope encouraged one to look horizontally rather than down; the pattern of the flooring made the chip difficult to spot. The alternative causation theory was not put to any witness. The true issue was whether the hazard had an effect on the efficient state of the workplace so far as safety is concerned; the use of the word efficient in the regulations meant that liability was not automatic; efficiency should be viewed objectively to determine whether it could be said there was a risk arising. Here, the circumstances were an "accident waiting to happen". If there had to be a history of accidents the first person to suffer injury would never recover. Employers must look at matters prospectively and assess risks. Here the evidence was that there had been a poor health and safety culture with no encouragement to report accidents or improve safety. In those circumstances it would be odd if the absence of reported accidents told against a pursuer. [28] Mr Connal made three initial broad submissions, namely (i) there was nothing wrong with the structure of the Ramp, (ii) there was nothing wrong with the floor covering, and (iii) everything practical was done to prevent food spillage on the floor. He renewed an objection the line of evidence made in the course of the proof. He objected to any contention that unsuitability fell to be determined or influenced be the presence of water on the floor. There was no record for such an argument and there was no causal connection in the evidence between any wetness and the pursuer's injuries. He also drew my attention to certain parts of the pleadings, in relation to which no case was now being made. [29] On the evidence, he submitted that (iv) I could conclude that it had not been proved that the pursuer stood on the chip; she could have slipped and her foot subsequently come into contact with the chip, (v) the floor had been problem free for over twenty years; there were no previous reported accidents; the ramp was in a satisfactory condition; Mr Glen supported this view; the change in the Building Regulations was not relevant; injury through slipping on the Ramp was not foreseeable; the result of all this was that the Main Corridor was a safe traffic route; (vi) the rules in place at the time and the system of supervision and cleaning up were sufficient; the evidence disclosed that a substantial effort was made to prevent food being removed from the Dining Room Area; (vii) there was little evidence about what food was dropped in the Main Corridor, (viii) there was no reason to give the ramp priority because it had never been a problem area (ix) reasonable steps were taken to prevent injury. [30] Mr Connal made the following submissions with particular reference to the statutory cases advanced:- (i) if Regulation 5 of the 1992 introduced absolute liability, then all the other regulations were otiose; regulation 5 therefore did not introduce strict or absolute liability; it should be construed in the context of the regulations as a whole and not in a manner which gave no content to the other regulations; (ii) regulation 5 was a sweeping up regulation where efficiency was at the heart of the case and where no other regulation applies; if regulations 12(1) & (2) were complied with then it would be difficult to argue that the workplace and the floor were not in an efficient state; (iii) Butler did not discuss what efficient meant, (iv) Regulation 12(1) & (2) should be read together; neither the floor nor the surface was such as to expose any person to risk; it was of suitable construction; he supported Lord Hamilton's Opinion in McGhee and submitted that risk involves an element of foreseeability; (iv) in relation to Regulation 12(3) he submitted that the question of onus on the issue of reasonable practicability was less important at this stage; reasonable practicability should be considered without the benefit of hindsight. [31] In relation to contributory negligence, he submitted that the pursuer was at fault. It was obviously her duty to look where she was going; the evidence was that the Ramp was a danger of some sort. It was part of her normal duties as a teacher to keep a lookout for hazards. She gave evidence about this. A substantial finding of contributory negligence should be therefore be made. [32] Mr Connal also referred me to Morrow v Enterprise Sheet Metal Works (Aberdeen) Ltd 1986 SC 96 for its consideration of reasonable foreseeability and contributory negligence, and Porter v Strathclyde Regional Council 1991 SLT 446 in relation to causation and contributory negligence (448L and 447J). He submitted that some of the reasoning in McGhee, cited by Miss Smart was helpful to the defenders. He drew my attention to paragraph 6 page 682C-D, 683I, 684B-C and paragraph 21. The level of risk that had to be in existence in order to establish a breach of Regulation 12(1) & (2) is a real risk as defined by Lord Hamilton. He submitted that actual decision in McGhee was wrong having regard to the reasoning contained within it. The Ramp cannot be categorised as a real risk as it had been used by thousands of people over the years without incident.Discussion
Witnesses
[33] It would almost be an injustice to Miss Gilmour merely to describe her, as I do, as wholly credible and reliable. Her evidence was clear and precise and given with a calm and positive dignity, which one might expect from a lady who has performed a most important role in society as a teacher throughout her adult life. As for the other witnesses, I found them all to be generally credible and reliable.Flooring
[34] I have found that the nature of the surface and slope of the Ramp was such that there was a real possibility or risk of slipping, falling and suffering injury while walking along it, particularly while walking down the Ramp; the risk is greater when walking down the Ramp because it is easier to slip walking down a slope than on a level surface. The reason is the force generated between shoe and a sloping surface is greater, because of the body's momentum, than the force generated on a level surface so greater friction is required to prevent slipping. This was explained by Mr Glen. [35] The burden of the evidence, which I accept, was to the effect that the Ramp was steeper than the norm, had a smooth shiny surface and required an extra degree of care when walking normally up or down it. This explains, in part, the presence of the handrails along the walls adjacent to the Ramp and their absence along the walls adjacent to the rest of the Main Corridor. The very presence of the handrails indicates that there is a degree of risk about walking up or down the Ramp which is not present elsewhere along the Main Corridor. The handrails might negate that risk if one was walking along one side of the corridor but the width of the corridor was such that one could readily walk down the middle or even partly on one side without being able to grasp a handrail. Miss Gilmour was carrying a bag in each hand and she was not criticised for doing that or for not walking down one side of the Ramp so as to be within reach of a handrail. Nor was she criticised for failing to hold on to the handrail while walking down the Ramp. [36] Miss Gilmour said the Ramp was sometimes slippy and spoke of having to take great care when walking up or down it. Mr Irvine described the surface of the Ramp as too slippy. Mrs Gibson slipped on the same type of flooring (as the Ramp had in 1998) elsewhere in the School on a couple of occasions. She said she always tried to be careful when on the Ramp. Mrs Lindsay said the surface of the flooring could be slippery even when dry, and one had to be cautious. Kathryn Ward said that she thought the Main Corridor was quite slippery and difficult to walk down. She had slipped coming down the Ramp in 1999 or 2000 before the flooring was replaced. She was unable to grab the handrail. She thought the flooring was dry on that occasion. She recollected general staff room chat about the Ramp being slippery. [37] The janitor, Mr McGroran, said the Ramp was a very steep gradient, and he used the handrail although it was of no great concern to him; he had a bad ankle. Anne Moore was a learning support teacher. She was also a teachers' Union healthy an safety representative. She said the floor surface was quite slippy even when not wet; wetness was also a problem. Her enquiries as Union representative revealed that this was a general view held by teaching and non teaching staff. She also stated that there was a general lack of interest in health and safety issues before the new head teacher took up his appointment in 2001. There was no encouragement to report health and safety concerns and no sharing of information on health and safety issues. She prepared an annual health and safety report. She did not herself report the Ramp because there was no appropriate part in her Annual Report form in which to do so. From this considerable body of evidence I take it that these witnesses are in effect saying that they had to take greater care than they would normally expect to take when walking along a floor that was not slippery. The evidence of Anne Moore and that fact that nobody seems to have been seriously injured before Miss Gilmour's accident perhaps explain why the condition of the Ramp was apparently not officially drawn to the attention of those within the defender authority who had ultimate responsibility for health and safety issues at the School. Finally, I should record that (i) Mr Glen expressed the view based on his examination of photographs that the flooring in 1998 on the Ramp looked extremely smooth; (ii) Wilma Murray, who taught geography, slipped walking up the Ramp; on that occasion the weather was wet. She did not report her accident; she was not injured; (iii) Mr Percival had no concerns about the safety of the Ramp, although he agreed that it was unusual; no accident having been reported to him he had not considered the Ramp generally from a health and safety angle; Mr Dunsmore, too, had no concerns about the Ramp; (iv) Miss Cusak did not find the Ramp particularly slippy; however, her evidence must be seen in the context of her duties, which is a different context from a member of staff walking along the Ramp as a means of walking from A to B; Miss Cusak would be proceeding slowly along Main Corridor sweeping or cleaning up; a similar comment may be made in relation to the janitor's evidence on this aspect of the case; the Ramp was of no great concern to him but he did describe it as having a very steep gradient. [38] There was evidence that the Main Corridor floor surface became slippery (leaving aside the question whether it was a slippery surface anyway) in wet weather. Moisture trailed in by pupils and staff on their feet created a wet slippery surface. I have made no factual findings about this as Mr Connal objected to this line of evidence at the first available opportunity. I allowed the evidence to proceed subject to competency and relevancy. However, I consider the objection to be well founded and I sustain it. The case has nothing to do with the condition of the floor surface in wet weather. There is no evidence that any part of the Main Corridor floor was wet on the day of Miss Gilmour's accident. There is no evidence and no pleadings to suggest that the propensity of the flooring to be come slippery or more slippery in wet weather contributed to the accident. If I am wrong to sustain the objection I would have found as fact on the evidence that the floor surface became even more slippery in wet weather, but that this had no causative effect in relation to Miss Gilmour's accident. The evidence about the placing of large mats at School entrances and the notices supports this finding and explain their presence. However, these have nothing to do with Miss Gilmour's accident; these post accident precautions have no bearing on the question of the liability of the defenders.Lunch routine
[39] Evidence on this topic was given by a number of witnesses. There was no real dispute of substance on the facts which I have found.Monitoring System
[40] Although the evidence demonstrated that there was a monitoring system in place, it was plain that it did not eliminate the risk of inter alia hot food being removed from the Dining Room Area and the consequent risk of spillage en route to the Base areas.Clean-up routine
[41] There was a conflict in evidence between Miss Cusak and Mr Dunsmore as to the order in which cleaning up operations took place. My factual findings reflect Miss Cusak's evidence (she was not cross-examined), which I preferred because she gave clear evidence about what she actually did day in, day out, whereas MrDunsmore gave evidence of what he understood the routine was or should be. Mr Dunsmore thought that the Main Corridor was cleaned in its entirety first. He said that the Head Teacher was insistent that the Main Corridor be kept as clean as possible. This would have resulted in the Ramp area being given priority. There was no evidence that Miss Cusak was informed that the whole of the Main Corridor (which would have included the Ramp) was to be cleaned first. The significance of Mr Dunsmore's evidence is that, (i) it indicates that at some stage it must have been thought that it was important to clean the Main Corridor first; (ii) the clean up system was not operating as Mr Dunsmore, a member of the Senior Management team, envisaged; and (iii) it would have been reasonably practicable to clean the Main Corridor or at least the Ramp first; this would have resulted in the Main Corridor or at least the Ramp being cleaned before the Base Areas and other corridors. This would obviously have been sensible as, on the evidence, the risk of slipping on the Ramp was greater than elsewhere in the Main Corridor. It plainly would have taken little time to check and clean the Ramp before proceeding down the Main Corridor to the Base Areas. [42] In the light of the evidence, I am unable to accept Mr Connal's third, sixth, seventh, eighth and ninth submissions. Even if it is correct that everything practicable was done to prevent food spillage on the floor, that cannot be said of the clean-up operation. It is plain, on the evidence, that it would have been reasonably practicable to give priority to the cleaning of the Ramp. That is what Mr Dunsmore envisaged.The Accident
[43] There was little dispute as to the circumstances of the accident, which Mrs Lindsay witnessed. Her account of what happened was consistent with the pursuer's account and I have accepted their evidence. I have rejected Mr Connal's submission that it has not been proved that Miss Gilmour stood on the chipped potato and that her foot could have subsequently come into contact with the chip. Even if Mr Connal's submission is correct, the defenders do not necessarily escape liability because I have found on the evidence that the nature of the flooring on the Ramp and its slope, in combination created a real risk of a person such as Miss Gilmour slipping, falling and suffering injury, and that this risk contributed to the accident. The nature of the flooring and the slope combined to create a foreseeable possibility of injury. In the circumstances of this case, I do not criticise Mr Connal for not taking up his theory in cross-examination. He no doubt took the view that he had no record for this line, the argument could be made on the evidence already given in chief, there was nothing to be gained by putting the theory, and that there would be no unfairness to the pursuer or Mrs Lindsay by refraining from doing so having regard to the terms of their evidence. [44] In the present case the state and condition of the flooring on the Ramp, and the slope of the Ramp combined to create a foreseeable possibility of injury. Miss Gilmour was exposed to a real risk of injury which materially contributed to her injuries. It therefore does not matter whether she slipped on the chipped potato. The presence of the chipped potato created a similar risk and increased the pre-existing risk. [45] Insofar as Mr Glen expressed any view which might suggest that there was no such possibility or risk, I reject it and prefer the evidence of Miss Gilmour, Mr Irvine, Mrs Lindsay, Mrs Gibson, Kathryn Ward and Mrs Moore. On this aspect of the case the issue is a factual one. The experience which Mr Glen can bring to bear in slipping and tripping cases can no doubt be helpful in many cases. But on this point, the issue is not one which falls to be determined exclusively by expert evidence. There is a consistent body of evidence given by sensible, intelligent witnesses who gave clear evidence from which it may reasonably be concluded that the flooring on the Ramp created a risk of injury which is not fanciful or remote. Mr Glen did not inspect the flooring in use in 1998 at the Ramp or elsewhere within the School. However, my overall impression of Mr Glen's evidence was that his conclusion was that he considered that the Ramp to constitute a risk to the health and safety of employees of the defenders, and indeed to pupils, because of a combination of factors, namely the slope, the smoothness and the risk of food spillage. Absent the risk of food contamination he considered the risk of slipping to be small and one which he regarded as acceptable; the view that such a risk is acceptable I find difficult to reconcile with the 1992 Regulations and the evidence of the witnesses who slipped on the Ramp in dry conditions. An isolated incident of slipping might be acceptable and an inference of carelessness on the part of the person slipping might arise. However, the position here was somewhat different; there is a significant body of evidence in this case which I find to be reliable and credible which shows that a number of individuals have slipped on the Ramp in dry conditions over the years. That seems to me to demonstrate that the risk of slipping on the Ramp in dry conditions, even if small, is nevertheless unacceptable. It is the type of risk which must be eliminated in order to comply with Regulation 5 of the 1992 Regulations. I consider this in more detail below. To the extent that Mr Glen's views are inconsistent with this conclusion, I reject them because in my view they do not properly take into account the body of evidence to which I have referred. In fairness to Mr Glen, I do not think he was asked to consider matters in the light of the totality of evidence of slipping in dry conditions on the Ramp over the years. [46] In the light of the evidence, I am unable to accept Mr Connal's first, second, fourth and fifth submissions, although I do accept that there were no previous accidents reported. The change in the Building regulations is a pointer to the fact that the Ramp's gradient is at least of questionable suitability. It is something that should be taken into account in the continuous process of the review of health and safety issues within the School in order to secure a continuing state of efficiency from the point of view of safety (see below). There was no evidence that this was considered.Previous Accidents
[47] There was no evidence that Miss Gilmour, Mr Irvine, Mrs Gibson, Mrs Lindsay, or Mrs Moore made their concerns known to any health and safety representative or any member of the School's Senior Management Team. A history of previous accidents is not a condition precedent to liability in this type of case. However, the importance of the evidence of these witnesses is that it demonstrates clearly that the Ramp was slippery to an extent which cannot be dismissed as de minimis. This was a real risk which existed independently of any added risks created over the lunch period.Post Accident
[48] Evidence of precautions introduced after an accident is sometimes used to demonstrate what should have been done in the exercise of reasonable care or in fulfilment of a statutory duty before the accident. In this case, the evidence of post accident precautions was, in my view, of no assistance to either party. The change of flooring, the introduction of mats at the entrance and the placing of notices were all unconnected with Miss Gilmour's accident.Law
[49] Miss Smart advanced three statutory cases. I consider each in turn.Regulation 5 of the 1992 Regulations.
[50] There was no dispute that these regulations applied to the School. I accept the submission that this regulation, which implemented the Workplace Directive, imposes an absolute duty on employers. It provides inter alia that The workplace .....shall be maintained (including cleaned as appropriate) in an efficient state, in efficient working order and in good repair. As a matter of language, such a duty is imposed. In Gallacher the pursuer fell from the roof of a building when a scaffolding handrail gave way. He sued a variety of defenders who had an interest in the building and the main contractor engaged to carry out renovation work there. The pursuer was an employee of a potential sub contractor, and was estimating the extent of certain work. He pled a case based upon regulation 5 against several defenders. A proof before answer was allowed in relation to some of the defenders. I agree with Lord Reed's view in Gallacher [para 43] that it is necessary to take account of the European law dimension in the interpretation and application of such regulations; and that it should not be assumed that any approach adopted under the Factories Acts continues to apply. Lord Hamilton expressed a similar view in McGhee [paragraph 9]. The implementation of the Workplace Directive emphasises that the whole climate of health and safety has changed significantly in recent years. Earlier case law on employers' liability must now be considered with this in mind and be viewed with great care, lest one blindly applies the hoops, hurdles and other stumbling blocks placed in front of a pursuer with a genuine claim by Parliament and the Courts in a less enlightened era when the health and safety of employees were regarded as less important than they are today. [51] In considering a case under regulation 5 against the third defenders, Lord Reed observed that the regulations are concerned with the condition of premises which are used as a workplace and that the requirement imposed by regulation 5 is absolute [paragraph 85]. Lord Hardie reached the same view in McLaughlin [paragraph 6]. I reject Mr Connal's submissions on regulation 5. They are not warranted by the language of the regulation and the authorities, which I accept, are against him. The issue is whether at the time of Miss Gilmour's accident the part of the Ramp on which she slipped complied with regulation 5. It is not necessary to resolve any overlap which might exist between Regulation 5 and Regulation 12 or any other regulation. It is however, common in personal injury litigation for a set of circumstances to fall within the scope of several parts of the same Regulations or even within the scope of several different sets of regulations. Overlapping regulations are not unusual. [52] The question is whether the Ramp was maintained in an efficient state, in efficient working order and in good repair. What do these words mean? In Butler an outpatient assistant sought damages from her employer after bearing the weight of a disabled patient who fell while being assisted by the pursuer and another in a toilet cubicle. The argument was that the cubicle was unsuitable for wheelchair bound patients; therefore the workplace had not been maintained in an efficient state. Lord Macfadyen, in construing regulation 5, relied upon the preamble to the Workplace Directive, and stated that the purpose of the Regulations was to secure a continuing state of efficiency. The averment of circumstances supporting the conclusion that at the time of the accident the workplace was not efficient from the point of view of safety, was relevant [paragraph 15]. I respectfully agree. Here, I have already found it established that the nature of the flooring on and the slope of the Ramp created a real risk of slipping falling and suffering injury. The presence of the chipped potato increased that risk. Miss Gilmour slipped as a result of the nature and slope of the Ramp and the presence of the chipped potato; if I am wrong to conclude that she stood on the chipped potato, then Miss Gilmour slipped because of the nature of the flooring and the slope of the Ramp. In either event, these are circumstances which the support the conclusion that at the time of the accident, the relevant part of Miss Gilmour's workplace was not efficient from the point of view of safety. In these circumstances the test of causation is satisfied. Miss Gilmour was blameless and there was nothing abnormal about her footwear. In these circumstances, regulation 5(1) has been infringed and liability on the part of the defenders is established. [53] I should also record that I agree with Miss Smart's submission that Mcnaughton places an unnecessary gloss on Regulation 5. There, the pursuer walked into a bracket in the production area of the factory where he worked; a shelf, which the bracket had supported had been removed leaving the bracket in a hazardous place. The sheriff assoilzied the defenders after proof. For reasons which are not clear, the sheriff expressed the view that inefficiency in the context of regulation 5 required evidence of malfunctioning the consequence of which rendered the workplace less healthy or safe than it ought to be [page 71]. There is no warrant for such a gloss in the regulations or in the underlying Directive. No authority cited to me supports it directly or indirectly. The bracket was accepted as creating a hazard. It is difficult to see how it could be concluded that the pursuer's workplace in that case could be regarded as being in an efficient state and condition from the point of view of safety; the employer had left a hazardous object in an exposed position and had thus plainly failed to secure that the pursuer's workplace was in a continuing state of efficiency from the point of view of safety.Regulation 12(1)(2)(a)
[54] This regulation requires every floor in a workplace to be suitable for the purpose for which it is used; in particular, regulation 12(2)(a) provides that the floor or surface of the traffic route shall have no ...slope, or be uneven or slippery, so as, in each case, to expose any person to a risk to his health or safety. It is plain that the Ramp was a traffic route for the purposes of this regulation. The regulation is considered in McGhee. A firefighter slipped on the terrazzo tiled floor in the fire station where he was working while on his way to the muster room. He sued his employers. The floor was cleaned and polished every second day which happened to include the day of the accident. The case was that where the pursuer fell, the floor was worn and not of non-slip material; and had on it the residue of cleaning and polishing material; this made the floor slippery. Lord Hamilton expressed the view that in relation to slipperiness, Regulation 12(1) as read with 12(2) envisaged a floor that might as to its construction, be slippery with one or other of two consequences, namely, first so as to expose any person to a risk to his health or safety, and secondly, so as not so to expose any person. I question, with respect, whether this analysis is entirely correct. If a floor is slippery, then ex hypothesi, there is a risk that a person will slip, and suffer injury. I find it difficult to understand how a floor which is slippery as to its construction could not expose a person walking on it to a risk to his health and safety. In my view the phrase so as ... to expose any person to a risk to his health or safety is explanatory of the word slippery and does not envisage a floor being slippery but creating no risk to health and safety. Alternatively, it may simply be redundant quoad the word slippery. As a matter of common experience a slippery floor creates a risk of slipping; that is what slippery means; that risk is a risk to health or safety; by risk I mean a risk which is not de minimis otherwise there is no risk which the law recognises; if there is no such risk then the floor cannot be slippery. The fact that a person slips does not necessarily mean that a floor is slippery. It usually does but a person may slip because for example he is running, wearing inappropriate footwear or takes an unusually long step (minimising the friction normally present between floor and the sole of his shoe) or because there is some substance adhering to the sole of his shoe, or perhaps because his shoe laces are undone. I do however agree with Lord Hamilton's view that regulation 12(1) as read with 12(2) imposes a requirement that the constructional state of the floor immediately prior to the pursuer's accident be suitable in the sense of there being at that time no real risk of a person using it as a means of passage ... slipping and thereby sustaining injury. By real risk I mean, as I think does Lord Hamilton a risk which is more than something remote, fanciful or de minimis. This I would equate with a foreseeable possibility of injury as described by Lord Macfadyen in Anderson at page 1069. [55] Applying the foregoing analysis to the facts demonstrates that Miss Gilmour was exposed to a real risk of injury. Having regard to my factual findings, I am unable to accept Mr Connal's submissions in relation to this statutory case. The slope of the Ramp and the nature of the flooring combined to create a degree of slipperiness that exposed any person using it to a real risk of injury. Having regard to the width of the corridor I do not consider that the presence of handrails attached to the walls beside the Ramp negates the risk to which, among others, Miss Gilmour was exposed (cf. regulation 12(4)). The nature of the flooring on and the slope of the Ramp materially contributed to Miss Gilmour slipping, falling and suffering injury. The test of causation is therefore satisfied. In these circumstances, regulation 12(1) as read with 12(2) of the 1992 Regulations has been infringed and liability on the part of the defenders has been established.Regulation 12(3)
[56] The regulation provides that So far as reasonably practicable, every floor in a workplace and the surface of every traffic route in a workplace shall be kept free from obstructions and from any article or substance which may cause a person to slip, trip or fall. This regulation was also considered in McGhee. Lord Hamilton concluded that a similar measure of foreseeability was built into this regulation as is built into regulation 12(1) as read with 12(2). Thus, a pursuer had to prove that immediately before his accident there was on the floor a substance which presented a real risk that someone might slip. [57] Applying the foregoing analysis to the facts, it is plain that there was present on the Ramp immediately before Miss Gilmour's accident an article or substance, (namely a chipped potato) which presented a real risk that someone might stand on it, slip, fall and suffer injury. The Ramp was part of the floor in Miss Gilmour's workplace and was a traffic route. Plainly, the presence of a chipped potato on the surface of the floor might cause a person to slip. That is what I have held, on the evidence, happened. The presence of the chipped potato on which she stood caused or materially contributed to Miss Gilmour slipping, falling and suffering injury. The test of causation is therefore satisfied. In these circumstances, regulation 12(3) of the 1992 Regulations has been infringed unless the phrase so far as reasonably practicable enables the defenders to escape liability. In my view, it does not. [58] What practical measures could reasonably have been taken to keep the Ramp surface free from such things as chipped potatoes and the like? There was already in place a system which monitored pupils as they left the Dining Room Area and made their way back along the Main Corridor to the Base Areas. There was also in place a clean-up routine. However, the Ramp came towards the end of the various clean-up operations. The evidence disclosed no apparent reason for this. Indeed, Mr Dunsmore thought the Ramp was cleaned at the outset of Miss Cusak's routine. This would have been the sensible course to take and it plainly would have been reasonably practicable to do so. Had Miss Cusak cleaned and swept the Ramp at the outset of her routine on 15 December 1998, then it is likely that she would have spotted and removed the offending chipped potato and cleaned the underlying surface. In these circumstances, it was reasonably practicable for the defenders to keep the surface of the Ramp free from articles or substances which might reasonably cause a person such as Miss Gilmour to slip. [59] In my view, the onus of proof of reasonably practicability lies on a defender under this regulation. This general principle was established decades ago under the Factories Acts legislation. It would be surprising if the Workplace Directive and the 1992 Regulations intended to make it more difficult to establish liability than under the earlier statutory regime. In Anderson, Lord Macfadyen acknowledged as sound the submission that the onus of proving a defence based on reasonable practicability lay on the defender (at page 1069) in relation to a claim based upon regulation 4(1) the Manual Handling Operations Regulations 1992 SI 1992/2793. The structure of the statutory language in that case is sufficiently similar to make Lord Macfadyen's reasoning relevant to the present case. I agree with his reasoning on this point in Anderson and apply it to the present case. I reject Mr Connal's submission that the question of onus is less important at this stage, although I accept that it may not be necessary for a defender to lead evidence on the question of reasonable practicability; the court could, in theory at least, conclude that the onus had been discharged by reference to the evidence of a pursuer and his witnesses. In my opinion, however, it has not been established, on the whole evidence in this case, that it would not have been reasonably practicable to keep the Ramp surface free from any article or substance such as a chipped potato. The evidence establishes that a minor change in Miss Cusak's actual routine would have enabled Miss Cusak to remove it very shortly after the end of the lunch period, and before Miss Gilmour's accident. In these circumstances, regulation 12(3) has been infringed and liability is established. [60] Mr Connal submitted that the actual decision in McGhee was wrong. At first blush, the result in the pursuer's favour seems a little surprising in view of Lord Hamilton's serious misgivings as to the quality of the evidence. However, the decision demonstrates the high standard required by regulations 12(1)-(3). Lord Hamilton found that the floor was highly polished and that in a newly polished state there was a real but relatively low risk that someone might slip on it; that state of the floor led the pursuer to slip; the pursuer was not criticised even although his shoes did not have as good a grip as they might have had; given these findings, I consider, for what it is worth, that the decision in McGhee was correct. It seems to me that the facts and circumstances relating to Miss Gilmour's claim are much stronger than those in McGhee.Common law Case
[61] As I have already held that Miss Gilmour's statutory cases succeed I can deal with her case at common law briefly. Ultimately, the common law case rested on the proposition that the cleaning of the ramp ought to have been given priority in the circumstances or that the surface ought to have been of the non slip variety such as a ribbed floor surface. In my view, this case too succeeds but only just. The evidence of a poor health and safety culture at the time of Miss Gilmour's accident is relevant. It is plain that over the years a number of persons have slipped while walking on the Ramp. However, there was no system or encouragement to report such accidents unless the person slipping required medical treatment. Had a better health and safety culture been in place, the history of staff slipping while walking on the Ramp would have become known to those within the defenders having responsibility for the safety of staff and the environment in which they worked. Had the history of staff slipping been so known as it ought to have been, it would have been appreciated that the Ramp was a part of the School at which an accident was waiting to happen with possibly significant consequences. In these circumstances, the defenders cannot deploy their lack of knowledge where that is attributable to the poor health and safety culture present within the School over at least a number of years leading up to Miss Gilmour's accident. The defenders ought to have appreciated that the nature and slope of the flooring constituted a material risk of injury which was increased by the possibility of food spillage. In these circumstances, giving priority to cleaning the Ramp was a minor adjustment to the existing clean-up routine which could readily and should have been instructed and enforced. It may have been devised, but it does not seem to have been instituted. And if it was instituted, it was, having regard to Miss Cusak's evidence, not maintained or enforced. Alternatively, or in addition, it would have been reasonably practicable to replace the Ramp flooring with a ribbed sheet type flooring or other non-slip flooring. Had these precautions, or either of them been taken it is unlikely that Miss Gilmour would have been injured. In these circumstances, liability at common law is also established.Contributory Negligence.
[62] I have already found that Miss Gilmour was walking normally. It was but faintly put to her indirectly that she was partly to blame. I do not criticise Mr Connal for this as there was limited scope for effective cross-examination having regard to the clarity of Miss Gilmour's evidence and the other evidence in the case. The main source of criticism was that, as she regarded it as her duty to keep a lookout for spillages on the floor as she went about her business within the School, she was therefore careless in failing to spot the chipped potato. This line, of course, proceeds on the basis that she stood on the chipped potato, slipped and fell. In my view, there is no substance in this argument and it falls to be rejected. Miss Gilmour was walking normally; she was not in a hurry; she cannot be criticised for carrying two bags or for failing hold on to the hand rail; the colour of the tiles made a chipped potato difficult to spot, particularly when walking down a slope as one would tend to look horizontally, beyond the Ramp rather than down towards its surface. As Miss Gilmour said in cross-examination, employees walking from one area of the School to another should be able to do so safely, without having to keep looking down towards the floor all the time. [63] If am wrong to conclude that she was not at fault. I would have assessed her contribution as being minimal and no greater than 10%.Other Matters
[64] In Morrow, cited by Mr Connal in relation to inter alia contributory negligence, the pursuer slipped on a pile of cardboard sheets. He sued both his employers for breach of statutory duty and the main contractors on site for placing the sheets in a pile. The defenders were assoilzied and the Second Division refused a reclaiming motion. The statutory case failed because of a somewhat narrow view of what constituted the pursuer's place of work. However the Court considered whether the place of work was safe, which was a question of fact (102). The Court decided this issue against the pursuer by reference to (i) whether the possibility of the presence of the sheets was reasonably foreseeable and (ii) and whether it was reasonably foreseeable that they would cause injury to persons working there. I should say that, with the greatest respect, I do not find the reasoning leading to the conclusion in the case particularly compelling. It is plain from Lord Dunpark's Opinion that he considered the onus to rest with the defenders (107). As for contributory negligence the Court dealt with this briefly and broadly and I derive little assistance from the observations made (at 104) although I do note that the pursuer appeared to accept that it was not necessary for him to walk on the pile of cardboard sheets. By contrast, it was necessary for Miss Gilmour to walk down the Ramp. [65] In Porter, also cited by Mr Connal, a nursery assistant slipped on a piece of food. Her case was that there was no proper system for cleaning up the nursery floor and that the children were inadequately supervised. Before the Second Division, the only issues discussed were causation and contributory negligence. I was referred to this case because the pursuer stood on food and slipped. However the circumstances were materially different and I do not derive any assistance from the finding of 50% contributory negligence by the Lord Ordinary with which the Second Division declined to interfere. For my own part, on the facts disclosed in the report, such a finding seems to me, with the greatest respect, to be manifestly excessive as the pursuer was carrying a fractious baby at the time. I note that in the Opinion of the Court it is recorded that the pursuer gave evidence that she was on her guard looking for items of food upon which she trod (447J). I do not see why that should be held against her. It is within common experience that a person carrying a baby in the environment of a children's nursery must devote the bulk of her attention to the baby under her charge and secondly to the whereabouts of the other children. An employee, in such circumstances, is surely entitled to expect that a system will be in place which guards against the notorious dangers of spillage of food when young children, especially in a group, are eating. Likewise, I do not see why it should be held against Miss Gilmour that she said it was part of her duties to keep a lookout for hazards. Indeed, it may be said that if someone in Miss Gilmour's position did not spot the chipped potato it is even less likely that anyone else, who did not place that extra burden on themselves, would have spotted the chipped potato before slipping on it. These circumstances, far from enabling a finding of contributory negligence to be made tend to negate the making of any such finding.Summary
2. The nature of the surface of the flooring on the Ramp and its unusually steep slope combined to create a real risk of injury to persons such as Miss Gilmour walking along the Ramp. The presence of the chipped potato created a similar risk and increased the pre-existing risk. The chipped potato was an article or substance which might cause a person such as Miss Gilmour to slip while walking along the Ramp.
3. Miss Gilmour's injuries were caused or materially contributed to by (i) the nature of the surface of the Ramp and its slope, and (ii) the presence of the chipped potato.
4. The Ramp was part of her workplace. By reason of the state and condition of the Ramp on the day of Miss Gilmour's accident, it was not maintained in an efficient state from the point of view of safety within the meaning of regulation 5 of the Workplace (Health, Safety and Welfare) Regulations 1992.
5. On the day of Miss Gilmour's accident, the surface of the Ramp was unsuitable for the purpose for which it was used, namely as a traffic route; it was slippery and exposed Miss Gilmour to a risk to her health and safety contrary to regulation 12(1) as read with 12(2(a) of the 1992 Regulations;
6. Between the Lunch period, during which the chipped potato was discarded, and the time when Miss Gilmour slipped, fell and suffered injury, the surface of the Ramp was not kept free from any article or substance which might cause a person such as Miss Gilmour to slip or fall contrary to regulation 12(3) of the 1992 Regulations.
7. The defenders have failed to establish the statutory defence of reasonable practicability under regulation 12(3).
8. The risk created by the nature of the surface and the slope of the Ramp, and the risk of food spillage thereon were risks which the defenders ought reasonably to have foreseen and guarded against. It would have been reasonably practicable to do so by installing a non slip type of flooring on the Ramp and/or by instituting a system of giving priority to the cleaning of the Ramp and enforcing that system. The defenders failed to do so. Had they done so, Miss Gilmour would probably not have been injured.
9. Miss Gilmour was not to blame to any extent for her injuries. There is therefore no element of contributory negligence on her part.
10. The defenders are accordingly liable to make reparation to Miss Gilmour for her injuries caused through their breach of statutory duty and common law fault.
11. Damages have been agreed by the parties at the sum of £55,000. It is also agreed that interest at 8% per year should run on that sum from 3/10/03 until payment.
Result
[67] I shall therefore sustain the first plea-in-law for the pursuer, repel the second, third, fourth, fifth and sixth pleas-in-law for the defenders and pronounce decree in the sum of FIFTY FIVE THOUSAND POUNDS (£55,000) Sterling, with interest thereon at the rate of eight per cent a year from 3rd October 2003 until payment. I shall reserve, meantime, all questions of expenses.
