Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 71
PD890/11	OPINION OF LORD GLENNIE in the cause ERIC GLENNIE Pursuer; against UNIVERSITY COURT OF THE UNIVERSITY OF ABERDEEN Defenders: ________________

Pursuer: Gardiner; Lefevre Litigation

Defenders: Watson, Sol Ad; Simpson & Marwick WS

10 May 2013

Introduction

[1] On Sunday 11 May 2008 at about 11:15 am the pursuer was playing tennis on a tennis court owned by the defenders and rented out to the King's College Tennis Club of which he was a member. He was knocking up with Rachel Middleton, who was then about 14. Miss Middleton hit a cross court shot to the pursuer's backhand side. The pursuer, who plays right-handed, moved to his left and was preparing to play a backhand when his left foot slipped from under him. He fell to the ground. It was immediately apparent that he had broken his ankle. He was in severe pain. He was taken to hospital by ambulance.

[2] The pursuer was on crutches for many weeks. His ankle recovered well. He is able to walk. He went back to work. He even tried playing tennis again, but his left ankle became sore and he gave up. But he explained that there had been knock-on effects, both physically and mentally. He found it difficult to cope at work and eventually took early retirement on grounds of ill-health.

[3] In this action, the pursuer sues the defenders as owners and occupiers of the tennis court on which he fell. He says that his fall was caused by the presence of moss on the court, so as to render the court unsafe for play. His case against the defenders is advanced under the Occupiers' Liability (Scotland) Act 1960; and also on the basis of their vicarious liability for the negligent failures by their employees in carrying out their inspections of the court and in declaring it fit for play. He sues for £200,000. But I have not had to go into the evidence on quantum. Quantum (in the event of a finding of liability) has been agreed at £8,500, inclusive of interest to 23 April 2013.

[4] This case turns entirely on the facts. It involves no disputed issue of law. The defenders admit that they were occupiers of the tennis court and that they owed duties under the Act. So the separate issue of vicarious liability does not arise. The defenders accept that if there was moss on the playing area of the court - by which I mean both the area within the lines of the court and the run-off areas behind the baseline and to each side (except for the parts so close to the edges that they would not normally be used when playing tennis) - in sufficient quantity and density to cause a player to slip, and if the pursuer did hurt himself by slipping on moss of that quantity and/or density, then they are liable. If moss had been present on the playing area to that degree, then it would have presented a danger, ought to have been identified by regular competent inspections of the court and should have been removed, pending which the court should have been closed. However, they dispute the pursuer's account of the presence of moss on the playing area and of him slipping on it.

The evidence

[5] The court in question is one of four owned by the defenders at the Kings Pavilion site in Aberdeen, just to the north of University Road and to the south and west of King's College Chapel. It is separated from the other three courts by a pathway running north off University Road. For that reason it is referred to, or at least was referred to in evidence, as "the Single Court". It is aligned north-south. The surface of the court is Astroturf, which (in lay terms) comprises a carpet made up of synthetic blades of artificial grass with an infill of fine silica sand, the purpose of which is in part to keep the carpet in position and in part to keep the blades of the artificial grass pointing upright. The sand typically comes to within 1-2 mm of the tips of the blades of artificial grass. The court itself is of standard dimensions. It is 78' long and 36' wide. From the net to the service line is a distance of 21', and from the service line to the baseline is 18'. From the centreline to the inner tramline is 13'6", and from the inner tramline to the sideline is 4'6". There is a run-off area at each end of about 16' in length, while the run-off area at the sides is about 9' wide. The whole tennis court is surrounded by a wire perimeter fence, with an open vista through the fence on the east side and northern end. There is a small club house behind the court at the northern end, outside the wire fence. Along the west side and southern end, the court is enclosed by a high wall. This wall creates a shaded area at times at the south end of the court, and also along the western edge where the shading is exacerbated by the presence of trees growing just outside the wall and overhanging the run-off area at the west side of the court. At the time of the accident, the pursuer was at the south end of the court, playing towards the club house.

[6] The pursuer had taken up tennis some 3 to 4 years before joining the Club. He attended coaching 2-3 times a week. He was trying to improve as a player. He said that he went to the court that day at about 1 pm, having dropped off his youngest son, then aged eight, for tennis coaching on the other three courts. There is no dispute that he was wrong about the time, since the written records show that the accident itself happened just before 11:45 am. He said that the day was bright, dry and fresh, but there was other evidence, notably from Colin Beveridge, a supervisor with responsibility for the courts, to the effect that there had been light rain that morning. Mr Gardiner, who appeared for the pursuer, asked me to accept Mr Beveridge's evidence on this point. I am prepared to do so. The pursuer was wearing shorts and a T-shirt, and on his feet he wore tennis shoes with a contoured sole (for better grip), suitable for playing on Astroturf.

[7] According to the pursuer, he went on to the Single Court and practised his service on his own for about 15 to 20 minutes. He would serve a number of balls from one end and then retrieve them and serve from the other end. He was then joined by Mrs Joan Middleton and her daughter Rachel, who asked if they could knock up with him. He agreed and, according to him, the accident happened when he was knocking up with them both. It is accepted that the pursuer was wrong about this; only Rachel Middleton joined him for a knock up, while Joan Middleton went to the clubhouse at the north end of the court, and was standing there talking to another member (Sandy Scott Wilson) at the time of the accident. The pursuer described how he was standing about one metre behind the baseline in the centre of the court, ready to receive Rachel Middleton's shot. Rachel Middleton hit a ball to his backhand side. He moved to his left and slightly back and swivelled so as to push off on his left foot, with his right foot moving towards the ball as he began to play the shot. He thought it was probably going to be a topspin backhand, which (so he thought) might have caused him to push off more strongly on his left foot than if he had been about to play a sliced backhand. In any event, as he pushed down on his left foot, his foot slipped and he fell. His ankle was broken. The precise mechanism of the break is uncertain, but he may have caught an edge as he slipped and his ankle "turned over".

[8] This account broadly coincides with the evidence given by Rachel Middleton, who confirmed that she hit a crosscourt shot to his backhand side and that he fell when he was attempting to return it on his backhand. She said that she was surprised that he went for it, since she thought that her shot was rather wild and clearly going wide, but on balance I consider that the ball probably landed in the court and was there to be hit.

[9] Joan Middleton was standing with her back to play and did not see what had happened. She was talking to Sandy Scott Wilson, a senior member of the Club, who was on the steps of the clubhouse facing down the court. He described an altogether different movement by the pursuer, swivelling to his right and reaching for an overhead shot before suddenly falling as though he had twisted his ankle. However, he was some 90 feet or more away from the incident and, on this issue, I prefer the pursuer's account, which is to a large extent supported by that of Rachel Middleton.

[10] I am, however, less confident that the pursuer is to be relied upon in his evidence as to precisely where he was on the court. He described being behind the baseline and ending up, after his fall, in a position about a metre and a half behind the baseline and about two thirds of the way between the centreline and the tramlines on the left-hand (ie west) side of the court. However, other evidence was to the effect that he was on or just in front of the baseline, ie between the baseline and the service court. That he was probably on or in front of the baseline was Rachel Middleton's recollection, and also that of her mother, Joan Middleton, and Sandy Scott Wilson, both of whom ran to see if he was all right. Lynne Hendry, who was working at the time as a sports attendant under Colin Beveridge, her supervisor, saw the pursuer lying on the ground just after the accident and went over to help him. She described him as lying on the ground at about the baseline. In addition, the pursuer's partner, Claire Lutwyche, told the court that after the accident the pursuer had told her that he had fallen on the west side of the court between the service line and the baseline. On that basis, when she went a week later to take some photographs of the surface of the court, she inspected the whole area both in front of the baseline as well as the area behind it. Taking all this evidence into account, I am satisfied on balance of probabilities that the pursuer probably fell on or just in front of the baseline. However I accept his evidence that he was perhaps two thirds of the way between the centreline and the inner tramline. That would put him about 9' to the left (west) of the centreline.

[11] The uncertainty as to the exact place where the pursuer slipped and fell is, of course, a problem when it comes to identifying whether there was moss on the court in a place which caused him to slip. The pursuer gave evidence that he must have slipped on a patch of moss. That is what he inferred, though he did not see his foot land on a patch of moss nor the precise mechanism of the skid. He did not say this to anyone who attended him while he was lying or sitting on the court before the ambulance arrived, but his evidence that he believed that he slipped on moss is consistent with what he said soon after the accident, both to the medical staff who treated him and to his partner, Claire Lutwyche.

[12] The pursuer's evidence about the moss that he says he saw on the court was put by Mr Gardiner to a succession of defence witnesses. It was to this effect. After he fell and when he sat up, he saw "moss in front of him and underneath him". He could see patches of moss in an area 18'' or so in front of him. Those patches were of different sizes, but two or three of them were as big as 12'' in diameter. The moss was green and yellow in colour. It was "on top of the sand, rooted into the sand, and it came up to the top of the blades of the Astroturf". It was "at the same level as the top of the blades of the Astroturf".

[13] On the pursuer's account, while he was waiting for the ambulance to arrive, he shifted his position, because he was uncomfortable, and moved over to the wall to the west of the court so he could lean against that wall. That would have involved him moving 18' or more across the court from the position at which he fell. None of the other witnesses spoke to him having moved at all, or at least not by more than a few inches. Lynne Hendry, who went off briefly to get one of the official report forms but, apart from that, stayed with him all the time until the ambulance arrived, contradicted his evidence about him having moved to lean against the wall. I prefer her evidence on this point. It seems to me unlikely in the extreme that, while in agony from a broken ankle, the pursuer would have been able to move that considerable distance without the resulting pain and commotion imprinting itself on the minds of others who were there.

[14] Because she had been told by the pursuer that he had slipped on moss, Ms Lutwyche went to the court the following week, when delivering their son for tennis practice, and took photographs of the surface of the court. Unfortunately these photographs were not produced in evidence. But in her evidence Ms Lutwyche described the moss in this way (and I take this from Mr Gardiner's summary of her evidence which, again, he put to the defenders' witnesses). She said that she examined the south end of the court a week after the accident, in the same general vicinity as the pursuer described. Within the court she saw patches of green moss. The patches were of different sizes, some the size of a one penny piece, some the size of a 10 pence piece and some the size of three 10 pence pieces together (ie about 3''). In places the patches of moss were "slightly raised above the ground" and "sitting on top of the Astroturf", "raised above the level of the Astroturf".

[15] It is of note that Ms Lutwyche did not describe patches as big as 12'' in diameter. To that extent her account did not support that of the pursuer. It is also of note that the pursuer's account did not support her evidence that the patches of moss were, in places, above the level of the Astroturf.

[16] The pursuer himself went back to the court while still on crutches about eight weeks after the accident, and returned about four weeks after that when he had no need to use crutches. On the second occasion he himself took photographs, five of which were lodged in process. I infer that those which were lodged were selected to provide the best evidence of the existence of moss on relevant parts of the court. Photograph 1 was of a part of the court surface which the pursuer said, and I accept (though there is nothing on the photograph to indicate that), was near to the area where he fell. It showed a mottled court surface. The pursuer said that the dark patches were moss. Photograph 2 showed an area just behind the baseline, which included a large dark patch which the pursuer said was moss. However, evidence from others, particularly from Colin Beveridge and David Blamire (an expert in tennis court construction who was called to give evidence by the pursuer), made it clear that this was in fact an imprint or scuff mark made by a tennis shoe in the surface of the court. Photograph 3 was of an area close to the south or west wall, and although it showed what may have been moss close to the wall this was clearly not in a position where the pursuer was likely to have fallen. The same could be said about Photograph 6, which again showed moss very close to the wall. Photograph 5 showed an area of the court from just forward of the baseline stretching back to the south wall. This was used to try to identify roughly where, on his evidence, the pursuer fell, but it showed dark patches, presumably indicating the presence of moss or other algae, only very close to the wall and well away from anywhere where a player might be expected to run or place his foot. The pursuer did not think that he had taken Photograph 4, and this photograph was not relied upon.

[17] It is appropriate here to make two brief comments about the photographs. The first is that they did not show patches of moss as large or dense as those described either by the pursuer or by Ms Lutwyche. That does not mean to say that there were no such patches, since the photographs showed only small areas of the court. However, on the assumption that the photographs were taken of places where the pursuer might have fallen and/or were selected to show some of the worst examples of moss on the court in potentially relevant areas, the absence of any photographs showing moss of the extent and density described by the pursuer and Ms Lutwyche is telling. The second comment is this. The pursuer took Photograph 2 in order to show what he said, and presumably believed, was a large patch of moss. In fact it is agreed, on the basis of the other evidence, that what is shown in that photograph is not moss but an imprint or scuff mark from a tennis shoe. That, so it seems to me, casts doubt upon the pursuer's ability to differentiate between moss and other marks on the court, and causes me to hesitate before accepting his account of the existence of moss on the court unless that account is supported by other evidence.

[18] Although the pursuer gave evidence that before the accident he was aware of a couple of people having slipped on the surface, and he described having seen someone "nearly do the splits", that did not cause him to have any concerns about the surface when he went on to the court that day. Nor did he adduce any evidence from other court users of the existence of moss on the court. Not a single witness apart from Ms Lutwyche supported his account of there having been a significant amount of moss on relevant areas of the court.

[19] Joan Middleton explained that leaves would sometimes fall from the trees at the west side of the court, in an area between the sideline and the wall. A player would perhaps have to be a bit more cautious there because of that, in case he slipped on the leaves. However, she emphasised that Astroturf could itself be a slippery surface, particularly if it was raining, whether because it became quite heavy with sand in such conditions or simply because the artificial grass was itself slippery when wet. She did not mention moss on the court and said that when she went over to see if the pursuer was all right she did not notice anything which might have caused him to fall.

[20] Rachel Middleton, who was knocking up with the pursuer when the accident happened, said that she was not aware of any problem with the playing surface, never saw moss or foliage or anything which might have caused him to fall, and would happily have played on the court (as she did).

[21] Robert Pringle was president of the Club at the time, though he was not present at the time of the accident. He was not aware of any problem with the court before the accident. He explained that the sand helped keep the fibres (ie the artificial blades of grass) sticking up - if they get bent over, the sand stays on top of the court and there is a greater risk of slipping. In those circumstances the sand acts like a surface of ball bearings. He commented, as did others, that tennis courts are inherently slippery - he would warn people if the weather increased the risk of slipping, for example if the court was wet or had just been sanded. Referring to the west side of the court under the trees, he said that there had been a problem historically of honeydew falling from the trees and creating favourable conditions for moss to grow, but that had been dealt with by the University - they cleaned it on a regular basis and the problem was at its worst in the summer months - and it had seemed to get better after 1980 or thereabouts. He said that there was always a certain amount of moss there. This area of the court is, of course, not relevant to the accident suffered by the pursuer, since it is in the area between the sideline and the wall, some distance from where the pursuer fell. Mr Pringle said that he checked the court every month, and when he checked it in April before going on holiday it had seemed alright. However, this was just a visual check from the side of the court and not too much reliance should be placed on it.

[22] Sandy Scott Wilson had no concerns about the playing surface of the court. The Single Court was his favourite court and was the court favoured by the good players at the time. It was regularly swept by members when they arrived, particularly if there were leaves or puddles on it, though not specifically to clear moss. They would be happy to play on the court. He too confirmed that an Astroturf court was always a bit slippery, usually less so than grass but it depended on the weather. It was put to him that the pursuer had seen patches of green moss of about 12" in diameter. Mr Scott Wilson said that he had been kneeling on the court beside the pursuer for a while, and he did not see anything like that - the court was fine where he was. He made the point (which was made also by Mr Blamire) that the pursuer had fallen in an area where players are constantly playing shots (whether serving or running to hit the ball from in front of or behind the baseline) and this would tend to abrade the court and keep it free of moss or algae. He accepted that there was a lot of moss very close to the wall, but they did not bother too much about this because no one ran there when playing a shot. Later that year he and Mr Pringle spent some time looking at the court and saw small amounts of moss, but they had to bend down to see it and did not think that it was a problem. It was not absolutely clear from this passage in his evidence whether Mr Scott Wilson was accepting that there was any moss actually on the playing area, but the tenor of his evidence was clear: the only significant amounts of moss were close to the wall, and if there was any moss on the tennis court itself, or the run out areas forming part of the general playing area, the quantity was so small that it was not a problem.

[23] Evidence was led from a number of people involved in the administration and upkeep of the tennis courts. I have already mentioned Lynne Hendry. She did not see the accident but saw the pursuer lying on the ground just after it happened. Having checked that he was all right, she went back to the pavilion to get her supervisor, Colin Beveridge, and an Accident Report Form which she took out to the court and completed with the assistance of the pursuer. She noted the time of the accident as 11:45 am. Her description of the accident was taken from the pursuer; he "slipped on the court surface, falling to the ground and going on his ankle". He did not tell her what he had slipped on. She stayed with the pursuer until he left in the ambulance. While there, she did not see anything which could have caused him to slip. She was with the pursuer for 15-20 minutes and if there had been anything noticeable she would have noticed it - she would have been looking for dangers. She explained that the court was checked every morning, and if there had been moss on the playing surface of the court and run out areas the court would not have been opened.

[24] Colin Beveridge was at the material time a supervisor based at the King's Pavilion and the Butchart Recreation Centre. He explained that the court would be inspected every morning before opening. On weekdays the court opened at 7 am, and he would carry out his checks between 6:30 and 7 am. On Sunday the court was opened at 9:30 am and he would carry out his inspection from about 8:30 am. He would walk around the court and pick up anything which was lying about. He said that if it was wet or icy he would "have a wee run", to check the court for grip; but he immediately went on to say that he would in fact have "a wee run" every day out of habit, to get a feel for the surface, to see if it was slippery. If it was slippery he would call ground staff, or if it was just something like leaves on the court he would pick them up himself. His inspection covered the whole perimeter of the court and the surface of the playing area (including the run-out areas). He or the ground staff would remove any debris from the court and he would keep the court closed until that was done. He had completed a Daily Health and Safety Inspection Sheet. He had ticked the box indicating that on the All Weather Area, which included the tennis courts, rubbish had been picked up and the surface was safe for play. He also referred to a Weekly Health and Safety Inspection Sheet on which he had ticked the box showing that on the All Weather Area at the material time the surface was safe and the fencing in place. There was a weekly inspection on Monday 12 May 2008 but this did not reveal any problem with the playing surface. He did not see the accident on 11 May, but when Lynne Hendry told him about it he went out to the court. He saw the pursuer lying beside the baseline slightly to the left of the centreline. He checked the court again and everything seemed fine. After the accident he filled in a Departmental Reporting Form. The copy in process appeared to have been made late in July 2008. Mr Beveridge explained that he had filled one in earlier (on the day of the accident) but it must have got lost and he was asked to fill out another form later. On that form he recorded having done a safety check on the court before it was due to open and had found it to be safe to play tennis. There had been a light shower but the court was playable. He also recorded that after the accident the court was still "okay to play and the Club played on".

[25] Mr Beveridge looked at the photographs taken by the pursuer. He did not think that the dark specks were moss, or dead moss - he thought they were just part of the texture of the Astroturf - but he accepted that there was some moss close to the wall. Under reference to a small green spot near the wall on Photograph 6, he said that he could not say whether or not that was moss, but if it was, and if it had been on the playing surface, then he would have had the court closed until it was removed. The pursuer's evidence about the moss he had seen on the court while waiting for the ambulance (as summarised in para [12] above) was put to him for comment. He agreed that if there had been moss like that, it should have been noticed during any competent inspection. He would have noticed it straight away if it had been there. Such moss, on a wet court, gave rise to the risk of a player slipping. In such circumstances, the court should not be used. But he rejected the suggestion that the moss had been there and he had simply missed it. He was confident that he had carried out a competent inspection and the moss had not been there. The evidence of Ms Lutwyche about the moss which she had observed one week later (as summarised in para [14] above) was also put to him for comment. Had there been moss like that on the court, that too would have been noticed during any competent inspection. It would have given rise to a risk of a player slipping. But again, he rejected the suggestion that the moss had been there and he had simply missed it. That was not correct.

[26] Kenny Gunnyeon was employed by the defenders in 2008 as Assistant Operation Manager, working under Jane Thomson. He was not present when the accident took place, since he did not work on a Sunday. However, Jane Thomson asked him to inspect the court as part of her investigation into the accident. He completed a Departmental Reporting Form on the 17 July 2008. That would have been about the date on which he inspected the surface of the playing area. He would have carried out a visual inspection of the whole area of the court, not just the marked playing area. In the Departmental Reporting Form he noted that he inspected the surface of the court and found it to be in a "playable condition, with no cause to believe it posed an undue risk to users". He noted that he asked Derek Nesbitt, the Grounds Foreman, for his opinion, and Mr Nesbitt agreed with him. He also noted that he had since then requested an inspection by a specialist contractor to ensure that there was no underlying problem.

[27] He was asked to comment about the description of the moss given both by the pursuer and by Ms Lutwyche. His evidence was that, had it been there, he would have noticed moss such as they described, which would have made the court dangerous and unplayable. It was not possible that he could simply have missed it. He also thought it unlikely that the moss could have been there at the time of the accident in May but not when he inspected the court in July. There was in fact no suggestion that any special measures had been taken between May and July to remove excessive moss from the playing area of the court. It follows that the condition of the court in July was unlikely to have been better than the condition of the court in May.

[28] Derek Nesbitt was, as I have said, the Grounds Foreman. He explained that the Grounds Department carried out daily, weekly and monthly maintenance. The court was swept daily with an elongated brush with hard bristles to break up the sand and any compacted areas, so as to make the surface more permeable. They brushed over the whole area, including the run back area at the back and sides of the court. Mr Nesbitt accepted in cross-examination that the brushing might not be done every day, but it was certainly done more than once a week, perhaps every second day. Every week they would carry out a similar exercise. They would also add a touch of silica sand where necessary. On this weekly inspection they would also check the nets, the fences and the trees, and other aspects of the court surroundings. The surface of the court would have been treated in about April with either a moss killer or equivalent. They would usually carry out this treatment only once a year, but if there was a problem they would go back over it again later in the season.

[29] Mr Nesbitt was referred to a Departmental Reporting Form which he completed in August 2008. His evidence was that he had filled in an original form in May and had been asked to do that again in August when the original could not be found. He confirmed on that Form that he inspected the court after the accident and found it to be free of any "trip hazard" and to have adequate sand infill. In effect, therefore, he confirmed the evidence given by Kenny Gunnyeon, who had referred to him being of the same mind. Mr Nesbitt was asked to comment on the account of the moss given by the pursuer and by Ms Lutwyche. He confirmed that if the moss had been there as described by them it should and would have been noticed. Moss of that size and density would have given rise to a risk of slipping if it was wet and in such circumstances the court should not have been used. But it was not possible that the moss had been there as described by them and he had simply missed it.

[30] The last witness of fact called by the defenders was Jane Thomson. She was at the time employed by the defenders as Operations Manager, and had overall responsibility for her colleagues in matters concerned with the inspection and maintenance of the courts. She confirmed that the courts were inspected every 24 hours, though she was routinely involved only in the monthly checks. Under reference to a Monthly Health and Safety Inspection Form, she confirmed that she inspected the All Weather Area on 30 April 2008, noting that it was "OK", though the fence around the Single Court needed attention. Her inspection involved walking around the whole area of the surface as well as checking the nets and fences. It was more in the way of "general housekeeping", but she was concerned to ensure that the court was safe and litter free. It only took about 5-10 minutes to go round the whole of the tennis court complex. She would be looking out for moss because it was well known that it could make the court slippery.

[31] Ms Thomson was not working on the Sunday of the accident, but was made aware of it the next day when she returned to work. She next inspected the All Weather Surface on 5 June 2008. By then she was aware that there had been an accident, but she did not make extra checks as a result, because they all assumed that this was simply a sporting accident and nothing to do with the court. On the Safety Inspection Form for that day she again noted that the surface was "OK" with the same reservation about the fence. On the Accident Report Form completed by Lynne Hendry, Ms Thomson noted that Colin Beveridge had inspected the surface and found it appropriate for playing. She said that she must have spoken to Colin about this. She had no concerns about the continued use of the court. She also made a note on the Departmental Reporting Form completed by Kenny Gunnyeon to the effect that on 17 July 2008 the contractor mentioned by Mr Gunnyeon was on site and, having inspected the court, had confirmed that it was in a playable condition. The contractor was Replay Maintenance, which was the trading name of Ecosse Sports Ltd. She was there for part of the time when the contractor was inspecting the court, and he confirmed to her that it was in playable condition. That was her opinion as well.

[32] As in the case of other witnesses, she was asked for her comments on the description of the moss on the court given both by the pursuer and by Ms Lutwyche. Her opinion too was that moss of that description should and would definitely have been noticed on a competent inspection, because of the risk of it being slippery when wet. Had the moss been there in the quantity and/or density described, the court should not have been used. But there was no moss on the playing area (i.e. the marked court and run-off areas). It was not possible that she had simply missed it. Nor was it possible that there had been moss of that type there on the day of the accident but not during her inspection in July.

[33] It seems clear that the person from Replay Maintenance who inspected the court on 17 July was David Blamire, a director. He was called as an expert witness by the pursuer. He had no direct recollection of having inspected the court in July 2008, but if someone from his company had come, it would have been him. He did recall giving a quote for "rejuvenating" the court in 2009/2010. The court was in fact rejuvenated then. Mr Blamire had been a keen tennis player for some 40 years. He gave evidence about the Astroturf surface. He also spoke about the problem with moss. It is always a problem. It grows in damp conditions, particularly in shady areas. Once it gets established, it is very difficult to get rid of and it will spread. Routine maintenance to try to alleviate the problem includes static brushing, i.e. brushing with a hard brush which agitates the sand infill and helps prevent the moss getting established. Moss killers were also useful but only work when the moss has established itself. The key to controlling moss was "little and often".

[34] He said that there were two main problems with moss. First, if it grows it forms a green covering and can be slippery. It reduces the friction between the tennis shoe and the court. This is particularly so of moss growing on the surface, but if the moss is in the sand, just below the level of the top of the artificial blades of grass, then it may still be slippery, particularly when it is wet. Secondly, it tends to choke the surface and, over time, reduces its porosity. Typically moss will become established around the perimeter of a court. Abrasion caused by the action of a tennis shoe sliding or impacting on the court will tend to keep the moss at bay on the playing surface.

[35] In respect of the rejuvenation of the court in 2009/2010, Mr Blamire said that the court needed rejuvenation for three main reasons: first, because there was moss within the surface of the court, particularly around the perimeter; second, because the court was starting to lose some of its porosity because of contaminants in it; and third because those contaminants were making the surface hard. With the aid of photographs of the overall court area, he confirmed that when he inspected the court he found moss along the west and south walls, extending to about a foot and a half from the wall, with some smaller spots of various sizes extending towards the court itself. But the moss was very sparse towards the baseline. He confirmed that he saw some spots of moss about the size of a coin within the playing area of the court, but this would have been about 6-9' behind the baseline. The coin sized spots of moss were very isolated and were unlikely to have given rise to any problem even if wet, because they would be too small to have any significant effect on the friction between the tennis shoe and the court. There might be other problems making the court slippery, for example light rain.

[36] He looked at the photographs taken by the pursuer. One problem with the photographs, he said, was that the scale was uncertain, and it was not clear when they were taken and where on the court they were. Photograph 1 showed a coin sized spot of moss. Photograph 2 did not show anything relevant. The large dark patch was not moss - it was the indent of a shoe. He commented that he would be hard pressed to see moss on that the size of photograph. Photograph 3 showed a growth of dark moss by the wall, but nothing more. Given the age of the court he would expect moss around the perimeter, with possibly some encroachment on the playing area; but he saw many courts where this was the case and he would have no problem with playing on courts in that condition. He agreed that if there had been moss of the size and density spoken to by the pursuer, that could have been a hazard; but if it had been as dense as that he might have expected to see signs of it on the photographs. If there had been a competent inspection, he would have expected moss of that description to have been noticed.

[37] He was also asked about the description of the moss spoken to by Claire Lutwyche. He thought the larger areas of moss described by her could potentially make the court unsafe, but he did not find it easy to fathom why there would be raised patches of moss in a heavily abraded area frequented by players - the patches of moss close to the walls existed because they were not regularly abraded by people running in that area. A competent inspector would have been expected to notice such moss if it existed. Some of the photographs, he thought, showed some black marks in the pile of the carpet (ie on the sand infill below the tip of the artificial grass) which might be dead moss. From the photographs lodged in process he was unable to say whether the manufacturers' guidelines for maintenance of a court such as this had been followed. If the black marks were in fact dead moss, he would assume that the moss had been killed off by the application of a moss killer.

[38] However, even with the exercise of best endeavours and the best maintenance regime in the world, the fight against moss in Scotland with Scottish weather was a losing battle. He said that his own club courts had moss on them. You can kill off the moss when there is green growth but you cannot kill the spores. His opinion was that if the established moss was confined to areas within about 2' from the side and end walls, then the court was playable. If there was a bloom of green moss in the playing area, that was potentially very slippery. The black remains of dead moss was, however, "a difficult one to call". Black dead moss is not as slippery. He thought that the court was playable with small coin sized remains of black moss. If you had to close the courts because of coin sized pieces of black moss on the playing area, you would probably have to close every court in Scotland. It would be a brave man to close a court for that reason when there were a lot of people wanting to play. It would be different if there was green moss on the playing area, but he very much doubted that there would be any green moss except around the perimeter. He confirmed that the area on which the pursuer said he fell was an area which was regularly used in normal play, where even spots of black moss were sparse.

[39] Mr Blamire confirmed that there were a number of reasons why an Astroturf court might be slippery. It was not only when it was damp that this happened. Sometimes the sand would come up onto the surface of the court and then it would be like playing on a surface of mini ball bearings. Some element of sliding was desirable on a tennis court, and some courts would want you to over-sand them so that it would facilitate sliding.

Discussion

[40] I found the witnesses all to be credible. I am satisfied that they were doing their best to assist the court. I found the witnesses other than the pursuer and Ms Lutwyche generally reliable. That is not to say that they could not have been mistaken. There is, as was pointed out, a danger that, in carrying out a routine inspection on a daily basis, and completing a tick box form to record the results of such inspection, things can be missed. Familiarity and routine might lead to someone simply not noticing that things were getting gradually and, as seen from one day to the next, almost imperceptibly worse. But I am satisfied that those whose job it was to inspect the court did so conscientiously and competently. In particular I am satisfied that if the patches of moss on the court at the time of the accident were of the size and density described either by the pursuer or by Ms Lutwyche, then they would have been noticed when the court was inspected. I specifically have in mind the inspections carried out by Colin Beveridge and Derek Nesbitt. If the patches of moss had been missed one day, they would have been picked up on another day. I am also satisfied that Lynne Hendry, who was with the pursuer for almost the whole time until the ambulance arrived, would have noticed the moss if it was of the size and density spoken to by the pursuer. Indeed it strikes me as odd that, if while the pursuer sat there waiting for the ambulance he noted the moss on the surface of the court under and in front of him, he did not say anything to Lynne Hendry about it.

[41] Although I am prepared to accept that the pursuer and Ms Lutwyche were doing their best to tell the truth about the moss which they saw on the day of the accident and a week later, I cannot accept that their evidence on this is reliable. Their respective accounts of the moss which they observed contradicted each other. I might have been able to give more weight to the account given by Ms Lutwyche if it had been supported by the photographs which she took, but these were not produced. As to the pursuer's photographs, these did not seem to me to support his case at all. Indeed, the photograph which, on analysis, clearly showed an imprint or scuff mark from a tennis shoe, undermined his oral evidence that he had seen moss on the court; he had taken that photograph to show a patch of moss on the court near where he fell but it was not in fact a photograph of moss. I have already pointed out errors or inaccuracies in the pursuer's account of events: the time of the accident; who he was playing with; where he fell; and whether or not he moved to the side of the court to lean against the wall after he fell. But the problem with his evidence, and the evidence of Ms Lutwyche, lies deeper than that. The problem is that it is to my mind inconceivable that, if there had been moss on the playing area of the extent and density which they described, it would not have been noticed and dealt with by those responsible for inspecting and maintaining the court; and it would also been picked up by other players. There would have been a perceived problem on the court, and the court would have had to be closed while the problem was dealt with. But there was no evidence that any of this happened. Indeed, the evidence was that the court continued to be played on without interruption.

[42] The pursuer might have been able to establish the existence of moss of this extent and density if he could have said that it was unlikely that he would have slipped but for the existence of some such factor. The problem with that, however, is that, as a number of witnesses said, tennis courts are by their nature slippery. An Astroturf court is no exception. Some are more slippery than others. The degree of slipperiness will vary according to factors such as the weather and, in the case of an Astroturf court, the extent to which the sand has been scuffed up above the surface. The mere fact that the pursuer slipped does not indicate that there was anything untoward about the surface of the court. Nor does it indicate that there must have been moss on the court where he fell. In order to prove his case he would have to establish that he slipped on a patch of moss which was of a size and density such as to cause it to pose a danger. He has not established that there was moss in the area where he fell, still less that he slipped on it.

[43] This analysis does not lead me to conclude that either the pursuer or Ms Lutwyche were being untruthful or deliberately exaggerating the extent and density of the moss which they say they observed. I am prepared to accept that they may have gone over the incident in their minds and come to believe that the only explanation for the accident was the existence of something on the court which caused the pursuer to slip. As I have said, I do not think that this is a proper way of approaching the matter, since tennis courts of all different types, and an Astroturf surface is no exception, are by their nature slippery to some extent. Accidents do happen without fault on the part of the occupiers of a tennis court. However, if they came to believe that there must have been something about the court which made the pursuer slip and break his ankle, and if they then observed moss around the edges of the court, they may well have come to believe that it was moss of this extent and density which caused the fall.

[44] Nonetheless, I find that the pursuer has failed to prove his case that he did in fact slip on a patch of moss. It follows that the question of whether the defenders failed to exercise reasonable care does not arise. But, lest there be any doubt, I am satisfied that they took all reasonable care to ensure that the surface of the court was safe.

Disposal

[45] For these reasons the pursuer's claim must fail. I shall grant decree of absolvitor.