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OUTER HOUSE, COURT OF SESSION
[2009] CSOH 6
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PD113/08
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OPINION OF LADY
DORRIAN
in the cause
JANICE BURGESS
Pursuer;
against
NAPIER
UNIVERSITY
Defender:
________________
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Pursuer:
Allardice; Thompsons
Defender: McGregor;
HBM Sayers
20 January 2009
[1] The
pursuer invigilated an examination at Napier
University, Merchiston Campus on 16 August 2006. As she left the room after the exam, she
tripped and fell against a wall injuring herself. She claimed damages for solatium, loss of
wages, disadvantage on the labour market and services under both
sections 8 and 9 of the Administration of Justice Act 1982. In her pleadings the pursuer avers that she
tripped on a waste paper basket which had been left lying on the floor.
[2] It
was a matter of agreement that the room in which the exam took place measured
by about 20 feet by 16 feet, that the pursuer had been in the room
for about two hours prior to the accident and that the waste bin had a height
and circumference of about 12 inches each.
The door opened from left to right into the room. The invigilator's desk was directly to the
far right hand side as one entered the room.
A short distance behind the door, against the wall, were about five
chairs stacked on top of one another. Roughly
in line with them and slightly further into the room were five desks also
stacked up. The position of the desks
and chairs would have affected the view of someone sitting at the invigilators
desk and looking back towards the door. It
would also have affected the route which had to be taken from the door to the
invigilator's desk.
[3] The
exam finished at about eleven. The
pursuer gathered together her paperwork, the students' answer books and some
additional documentation. The whole bundle
eventually measured about eighteen inches long and about six inches deep. Placing this on her left arm and putting her
bag over her left shoulder, she headed towards the door. She had to move out further into the room to
negotiate the stacked tables and chairs since there was not room to go between
them. She was walking diagonally over
from the corner of the stacked tables to the door handle, in the far corner of
the room, and "the next thing I was sliding down the wall". She said "I thought I must have tripped and I
passed out". When she came to it was ten past eleven. Asked if she realised what had happened she
said "No. As I was sliding down the wall
I was thinking oh I must have tripped".
[4] She
concluded that she must have tripped over the basket, which was completely
flat, as if a steamroller had gone over it.
She had not seen the bin when she entered the room. Asked where it would have been she said
behind the door, indicating on a photograph that the basket would have been at
the edge of the door at the place where the lock mechanism is. The bin would normally be part of the
furniture in the room but she would expect it to be kept under the desk.
[5] She
thought that she had passed out but had not been unconscious. When she came to she was against the wall but
sitting with her legs to the side. She
felt sick. Her knee was sore and she
concluded that it must have hit the bin.
She eventually managed to get up and go over to the teacher's desk where
she sat to recover herself. At that point,
a patrolling invigilator, Mrs Margaret Hart came in and help was obtained. The pursuer said "we saw the bin and we did
laugh because it was totally flat like a steamroller had gone over it".
[6] The
pursuer's husband came and after obtaining an emergency appointment at the GP
she was sent to St John's Hospital
where a fracture of the greater tuberosity of the right shoulder was diagnosed. She also had a sore neck and a sore knee. The problems with her knee had resolved after
about six weeks. Her neck still aches
about once a month. She was given
painkillers and a sling and used this for a few months. She was off work until about December or
January. She still doesn't have quite
the same strength or dexterity in her right arm as she had previously, which
restricted her ability to do certain chores.
After the accident she was not totally able to look after herself and
her husband had to help her, nor could she do all the household chores as she
usually did, and she spoke to services being required over a period of a couple
of months.
[7] She
continues to work as an invigilator for about ninety days per year. She thought invigilators could carry on well
into their seventies and she would carry on doing it whilst she could. She enjoys it and the money is useful. She is occasionally asked by Napier
University to do reception work for
holiday relief and does so from time to time.
In about October 2006 she was offered a permanent job as a
receptionist but did not take it up because of this litigation.
[8] In 2008
the deputy head at George Heriot's had asked if she would like to become
chief invigilator but she was unable to do that job because of the lifting
which was involved. Otherwise, she would
have taken the job and would have continued it as long as she was able. She had taken the post of deputy chief
invigilator but was not continuing since the rate of pay is the same as that
for an ordinary invigilator.
[9] The
pursuer's earnings can be seen from her P60s, 6/5 of process showing £1,906.85
for 2006 and £1,417.75 for 2007.
The figure for the latter period was lower because it covered the period
of absence from work. For 2008
(6/11) she earned £766.94 which she said related solely to earnings from
Heriot's for May 2008. She was
shown a document (6/7) purporting to show the earnings of the chief
invigilator for the 2007 period in the sum of £1,976.84.
[10] In cross-examination it was put to her that the bin was in
clear view to anyone who was looking where they were going. She refused to accept this, but eventually
conceded that if she had not been carrying anything she would probably have
seen it. She had patrolled the room
once, during which period she had collected the unused papers. She set out the room for five participants,
although only two turned up. She had
been back and forth from the students' desks to the invigilator's desk a couple
of times when setting the room up. She
had her back to the door during this and there was no reason for her to have
seen the bin. She had gone again to the
desk of each student when they entered the room to check their matriculation
cards. She could not recall where the
students sat.
[11] The bin must have been there when she went into the room but
she didn't notice it. She gave evidence
about what she recalled regarding outdoor clothing or bags brought in by the
students. (I shall return to this later). She did not remember going to the door to
speak to Margaret Hart. If Mrs Hart
came in it would be before the students came in so as not to disturb them. She would not have come all the way in and
would just have stuck her head in and signalled to the pursuer.
[12] The boy finished the exam first and she remembered specifically
that he indicated that he was finished by gesturing with his hands. She could not remember where he was sitting. The girl left at 10.55. The pursuer remembered collecting the paper
from the girl's desk. She recalled a
conversation with the girl who spoke to indicate that she was finished, saying
"that's it". The pursuer pointed out
that there was still time and at the end asked the girl how she felt she had
done.
[13] She agreed that when she tripped or fell she had no idea what
caused it. She then gave evidence of
being aware of the presence of the bin as she was sliding down the wall, then she
was aware of it at the point of falling.
She said she could not get her foot on the ground because there was
something stopping it, which must have been the bin.
[14] The wages of an invigilator will depend on how many exams they
cover and it will not be the same each year.
She would be fit to be a receptionist.
She was able to golf but her swing was not the same as it had been. Her handicap had previously been 18 and
was now 20.
[15] Mrs Christine Binnie, Deputy Head at Heriot's gave
evidence that Mrs Burgess had been an invigilator for about 3 years
and had become Deputy Chief Invigilator last year. She had declined the post of Chief
Invigilator because of the lifting which was involved. Invigilators can work until they are 70. She was shown a time-sheet for the Chief
Invigilator for 2008 (6/10) from which the fees which would have been paid
to the Chief Invigilator may be calculated, namely £1,927.40. She understood Mrs Burgess would have
been paid £1,000 for the same period.
[16] Mrs Margaret Hart was the patrolling invigilator on the
day of the pursuer's accident. Her job
was to patrol all the rooms and ascertain whether invigilators required a
comfort break and to check whether anyone had been caught cheating. She went round the rooms to check whether a
break was required and spoke to Mrs Burgess when she did so. Later that morning she was checking the premises
and saw through the glass panel papers scattered on the floor, as if someone
had dropped them. She found Mrs Burgess
at the invigilator's desk looking as if she had just come out of a faint. She said she had had a fall. Mrs Hart said how on earth did you fall
and she said "I tripped over the bin" (which Mrs Hart saw was all
flattened) and "I was carrying my papers".
In cross examination she said that she had gone into the room about an
hour into the exam, just inside the door of the room, and Mrs Burgess had
come over to her from the teacher's desk.
[17] David Burgess collected his wife and took her to the GP
and then to the hospital. She said that
she had tripped over the waste paper bin and rugby tackled the wall. She was incapacitated by her injury until
about December when she began to improve.
Driving was out of the question until some time in January. Dressing and undressing was a struggle until
November. It took about a year to
improve to her present extent. She was
unable to dry herself after showering or to cut her food for some time. Because of the accident he had had to do household
chores which he would not normally do such as washing, ironing and hanging up
clothes.
[18] Miss McQueen spoke to the contents of her reports
indicating that the pursuer had suffered an undisplaced fracture of the right
greater tuberosity and soft tissue injury to her knee. She continued to have some difficulties
associated with the shoulder, mainly in lifting or manipulating large objects. Any neck problems she has are related to
degenerative changes. She confirmed that
in her opinion it had been reasonable for the pursuer to refuse to take the
Chief Invigilator's job, the issue being lifting and carrying of heavy boxes
and lifting them above head height. That
continues to be a restriction for her.
[19] Sean Hughes, an Assistant Health and Safety Adviser at Napier
spoke on the telephone to the pursuer shortly after the accident. The pursuer said that when it happened she
did not have an idea what caused it. Afterwards
she got up, looked round and saw the bucket.
She made a connection between her fall and the bucket at that point.
Submissions for pursuer
[20 Mr Allardice
referred to the pleadings in which it was admitted that the pursuer was working
in the course of her employment on the day in question and that an accident had
occurred. The issue was what had been
the cause of the accident. The only
person present was the pursuer and the circumstantial evidence supported her
contention. She did not at first know
what had caused her to fall but as she was sliding down the wall she made a
connection with it being the bin. This
was supported by the condition of the bin.
Something caused her to lose her footing and fall and one must search
for the most likely explanation. The
pursuer's evidence of not being able to get her right foot down was part of her
explanation of piecing the matter together.
The circumstances of the accident were pieced togetherby her immediately
afterwards. The pursuer had to satisfy
the court that it was an article which resulted in the fall, but the exact mechanism
did not need to be proved. She was
carrying a bundle of papers which she said obscured her view of where the bin
was.
[21] Counsel submitted that the pursuer was confused in her evidence
in cross examination. He conceded that
she said different things at different stages and said at times she remembered
things when she clearly did not, but submitted that she had not come to court
to tell lies. She was trying to be
helpful and was at points not seeming to understand the questions put to her. The pursuer had gone back to work as soon as
she realistically could have done. She
has not allowed it to interfere with her life anymore than necessary. It was clear that she had a genuine belief
that she had tripped over the bin.
[22] Turning to the law, counsel relied only on the statutory case under
regulation 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992 which provides
that:
"so far as is 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".
The statutory defence of reasonable
practicability had not been relied on, the question being whether the bin
qualified as an obstruction or an article for the purposes of
section 12(3). Conceding that the
bin was not an obstruction, counsel submitted that it was an article for the
purposes of the regulation. He submitted
that if the court was satisfied that the bin caused the accident, the breach of
the regulations was made out.
[23] On the issue of contributory negligence, counsel submitted that
there should be no finding of contributory negligence. The pursuer was simply going about her
legitimate business doing nothing wrong so there should be no finding of
contributory negligence. She was not
aware of the presence of the bin and there is no reason she necessarily should
have been. It was obscured behind the
door as she came in. He conceded that
she was almost bound to have walked past it when she came in, but her view from
the desk would have been obscured by the items piled up in the room. She might well have had the opportunity to
see the bin but there was no suggestion that her attention should have been
drawn to it for any reason. Walking
normally one does not stare at one's feet and her focus was directed towards
leaving the room. She had to exercise
reasonable care but that did not require her to look at her feet. The fact is that she was carrying something
which partially obscured her vision forwards and down and on that basis there
should be no contributory negligence.
[24] Turning to the question of damages, counsel referred to the
JSB Guidelines 9th Edition in respect of shoulder injuries
suggesting that this fell into the "serious" category and was within a range of £8,100
to £12,250 with the figure of £10,000 being suggested as appropriate. Three-quarters of that should be attributed
to the past for the purposes of interest.
[25] So far as loss of earnings are concerned, past loss of earnings
fell into two categories: the initial
period of absence; and the work in May 2008 when she was earning as a
Deputy Chief Invigilator but would otherwise have been the Chief Invigilator. In the first period the loss was broadly
about £480. For the second period
productions 6/7, 6/10 and 6/11 suggested that the loss (which also
became the annual future loss) was £1,161.
Counsel submitted that interest at 8% should apply to the first
item should fall from the end of August 2006 and on the second item from
the end of May 2008.
[26] So far as future loss is concerned, this could be assessed in a
variety of ways. The job of invigilator
is carried out frequently by retired persons such as the pursuer and there are
many other circumstances applying which for a job which involves casual work on
odd occasions to suggest that a lump sum might be appropriate. Equally a multiplier/multiplicand might be
appropriate. The pursuer is now 62
and might have been able to carry on as Chief Invigilator to the age of 70. An appropriate multiplier from Table 12
was 7. Past services for each of
sections 8 and 9 should be £1,100. Interest on that should be
applied at the rate of 4% from the date of the accident. For the future he suggested a total lump sum of £500. The pursuer had already been affected by disadvantage
on the labour in having to turn down the job of Chief Invigilator. An appropriate sum for this was in the region
of £5,000.
Submissions for defenders
[27] Counsel conceded that the wastepaper
basket was an "article" for the purposes of Regulation 12(3) and that no
issue of reasonable practicability arose.
If the pursuer established that she tripped on the wastepaper basket there
was a breach of the Regulation. The two
issues arising were -
·
had
the pursuer established the essential facts of her case?
·
if
so, does contributory negligence arise?
[28] The defenders
submitted that the pursuer has not established that she tripped over the
wastepaper basket. She is the only witness
who can speak to the accident and it is necessary to focus upon her credibility
and reliability. Her recollection of
events leading up to and including the accident were unreliable. Her initial account of the accident was brief
and vague and thereafter inconsistent. Certain
descriptions she gave were incredible. She
intentionally avoided answering the questions put to her at the start of
cross-examination and at other times provided answers that were inconsistent
with earlier responses. She is an intelligent
woman who clearly understood that she was being asked to describe in detail how
the accident happened and she could not have been confused by such a request. Counsel then contrasted the various accounts
the pursuer had given at different stages of her evidence. In her initial evidence she indicated that
she could not remember why she fell and her answers under cross-examination
effectively supported that position. There
is no dispute that the pursuer fell. There
is no dispute that the wastepaper basket was in a flattened state after the
pursuer's fall. However, these two
factors alone do not provide a sufficient basis to establish on the balance of
probabilities that the pursuer tripped over the wastepaper basket and fell. She has failed to prove her factual case.
[29] Esto it
is established that she did trip over the wastepaper basket, she contributed to
her accident by her failure to keep a proper lookout and to look where she was
putting her feet. These duties stem from
the basic duty that the pursuer should take reasonable care for her safety. That duty was no less and might even be
higher in the circumstances where her general visibility (to the left hand
side) may have been impeded by a large envelope file and also stacked desks and
chairs. It was submitted that in those
circumstances contributory negligence on the part of the pursuer amounts
to 50%.
[30] As to damages,
there was no dispute as to the nature of the injury sustained by the pursuer or
that it was reasonable for her to reject the offer of the position of chief
invigilator in 2007. Solatium should
be valued at £8,500 with two thirds of that sum attributable to the past, producing
interest of £528.
[31] The pursuer's
estimate of past wage loss for the initial period was accepted.
[32] The evidence
as to the difference, if any, between the wages that the pursuer may have
earned as a chief invigilator at Heriot's and the earnings that she has in fact
achieved was incomplete. Mrs Binnie
concluded from 6/10 of process that the chief invigilator had been paid £1,927.40
for the period from 23 April 2008 until 5 June 2008, but there was no
indication whether this sum was gross or net of income tax and national
insurance. The pursuer's earnings were
during May only and her P60 showed that she was paid £766.94 net. Production 6/7 purports to show the
timesheet for the chief invigilator for 2008 but was neither agreed by
parties nor spoken to by the author thereof and had no evidential value. Mrs Binne's calculations were based on
that and it gives no indication of whether the figures are what would actually
be received by the Chief Invigilator. It
is worth noting that in the same exercise Mrs Binnie had understood that
the pay for the pursuer for the period would have been about £1,000.
[33] The most
appropriate approach is to focus on the month of May, for which the pursuer earned £767
net. Extrapolating from the chief
invigilator's timesheet for the month of May produces a gross figure of £1,366. Deducting 23% as representing tax and
national insurance produces a net sum of £1,052. Compared with the £767 actually earned
by the pursuer this indicates a difference of £285.
[34] Counsel did
not argue for a lump sum approach but submitted that the multiplier should be
reduced to take account of possibility of earlier retiral and also to reflect
the fact that as a deputy chief invigilator additional payments were available
in the event that the duties of the chief invigilator had to be taken up. A reduced multiplier of 5 was appropriate,
producing a loss of £1,425.
[35] As to
disadvantage on the labour market, the pursuer's evidence is that she is able
to manage her role as an invigilator and this continues. There is no evidence that the pursuer is keen
to leave invigilating to look for alternative employment. On the contrary, invigilating suits her
lifestyle. Accordingly there was no
disadvantage on the labour market.
[36] In relation to
services a lump sum of £500 inclusive of interest was appropriate with a
sum of £150 to reflect the loss of a proportion of her golf club
membership fee.
[37] During
submissions reference was made to Simmons v British Steel plc 2002 SLT 711, McGhee v Strathclyde Fire
Brigade 2002 SLT 680, Robinson
v Midland Bank 2000
WL 1675148, Anderson v Newnham College of Further Education (2003)
ICR 212, Burgess v Plymouth City Council (2006)
ICR 579, Sylvia Williamson
v GP Papers (unreported on this
point), Lord Cullen, 19 February 1993 Stenhouse v Kirkcaldy
District Council (unreported) Lord Clyde 26 October 1995, Preston v Grampian Health Board (27 November
1987), Maloney v Peterborough
City Council (Kemp & Kemp at G2-011) and Duthie v McFish 2001 SLT 833.
Decision
[38] The pursuer has not persuaded me that the accident happened as
set out on record. She has not persuaded
me that she fell because of the presence of an article on the floor. In particular, she has not persuaded me that
she fell because of the presence of the waste paper bin. The pursuer was the only person present when
she fell. It is true that she suggested
to Mrs Hart, immediately after the accident, that she had fallen over the
bin and repeated this to others thereafter.
However, that suggestion all flows from the pursuer herself and her
reconstruction of what she thought must have happened. It stems largely from the fact that she
noticed afterwards that the bin was "flattened", which was equally consistent
with having simply fallen onto it.
[39] The real problem which I encountered in this case was with the
reliability, and to some extent, the credibility, of the pursuer. In examination in chief her position was
relatively simple. She had found herself
"rugby tackling" the wall and as she did so she recalled thinking "oh I must
have tripped". At that stage she had no
idea what might have caused her to trip.
She had not seen the bin before this, and when she saw it later, in its
flattened state, she deduced that she must have tripped over it. She specifically said that after the fall she
was sitting against the wall with her feet to the side. This accords with what she told Sean Hughes.
[40] However, in cross-examination, her position became gradually
more elaborate, to the point of being frankly unbelievable. She claimed that as she was falling she was
aware that the bin was being trailed along with her. As she was sliding down the wall she was
aware it was between her feet. Then she
said that she only became aware that it was between her feet after she had
fallen. This whole passage of evidence
was contrary to the evidence which she had given in chief and I accepted none
of it.
[41] At one point she even appeared to indicate that she remembered
tripping over the bin, but when asked if this is really what she meant she said
that it was only afterwards that she thought about the bin. Her account then became more elaborate and
now included an awareness, at about the point of falling, that she could not
get her foot to the ground - "it must have been the bin stopping my foot
going onto the floor. I remember
something stopping my right foot coming down to stabilise myself." For reasons
already given, I did not accept this evidence.
She claimed that had she had more space she would have been able to
prevent herself falling but such a contention was impossible to reconcile with
her evidence about her foot being obstructed and of the speed with which the
event unfolded.
[42] There were other matters which gave me concern about the
pursuer's reliability. I would not have
expected her to remember every detail of what happened that day, nor even all
the detail surrounding the period of invigilation. However, repeatedly during her evidence she
claimed to recall one insignificant detail - for example, that the boy
signalled to her that he was finished; without recalling other detail which
might have been expected to go along with such a memory, such as where the boy
was sitting. I would not have expected
her to have the second without the first of these; equally, I find it difficult
to accept that she truly had the first without recalling the second. (There were only two students in the whole
room). I also found it curious that she
claimed she could specifically recall that neither of the students used the
bin, when she hadn't seen the bin.
[43] Repeatedly in her evidence she reported as fact something which
she was assuming because of usual practice and it became difficult to sort out
which was remembered fact and which was based on practice. To give an example, there was a fairly
lengthy passage of cross examination designed to test what she could remember
about the layout of the room, whether the students used the bin, where she put
the papers and so on. One issue related
to whether the students - one male and one female - had any items of
outdoor clothing or bags with them. If
they did, the practice is not to allow these to be placed beside the desks but
to be put at the front or back of the room.
I would not have expected the pursuer to recall these details and I
would not have thought it a criticism of her if she had not been able to. However, in the course of her evidence "yes
the boy had a jacket" became, "no, I don't know that"; yes the girl "would have
had a bag" became yes she "did have" and "I don't remember her having to take
the bag to the back but it is a practice I would follow" became that she specifically
recalled asking them to put their belongings at the back. This is one, I accept fairly trivial, example
but there were many others of this type and taken together they gave me doubts
about the pursuer's reliability. A
similar issue arose about whether Mrs Hart, the patrolling invigilator,
had entered the room during the exam.
[44] Finally, I also had concerns about what struck me at the time
as a marked reluctance openly and frankly to answer a series of questions at
the start of cross examination about the visibility or otherwise of the bin to
a person looking where they were going as they left the room. The same question had to be repeated four
times before a direct answer was given. This
struck me as slightly evasive. I did not
accept the submission of her counsel that she seemed not to understand what was
being put to her in cross examination.
[45] I should say that I did not take any account of a record in the
GP notes that the pursuer reported falling against a cabinet at work. She denied making such a report and I think
it highly unlikely that she did so. Entries
of this type in medical records are notoriously unreliable. I should also make it clear that I am not
suggesting that the pursuer is deliberately fabricating or that she came to the
court with the intention of telling other than the truth. However, having persuaded herself that she
must have fallen over the bin, there was a tendency for her evidence to be
tailored towards that solution and I found that over all I simply could not accept
her evidence.
[46] Had I been able to accept the pursuer's evidence I would
nevertheless have concluded that she was also to some extent to blame for the
accident. The bundle which she was
carrying was not a large one, and from at least the edge of the piled-up desks
to the door the bin must, on her hypothesis, have been in her path and should
have been obvious to anyone paying attention to where they were going. Allowing for the fact that it would not have
been obvious from the invigilator's desk and that perhaps there would have been
no reason for her to notice it when setting up the room, I would have made a
finding of contributory negligence of 40%.
[47] On the issue of solatium I consider that the estimate placed on
this by the pursuer's counsel was excessive and had I found in the pursuer's
favour I would have made an award of £8,500 with interest on two thirds of
that sum for the past. I would have made
an award of past wage loss for the initial absence in the sum of £480 with
interest at 8% from the end of August 2006. As to the period of May 2008 I consider
that the defenders' criticisms of the documentation relied on by the purser
were valid and I would have made an award of £285 with interest at 8%
from the end of May 2008. The multiplicand
for future loss would accordingly have been £285. For the multiplier I would have applied a
multiplier of 7. However, I do not
think the pursuer has actually shown any disadvantage on the labour market. As to services, on any view of the evidence
these were for a very limited period of time and of a limited nature. I would have made an award of £750 under
each section inclusive of interest, with no award for the future. These figures
would have then been reduced to reflect contributory negligence.
[48] In the result I will grant decree of absolvitor.
