Occupiers Liability claim fails even though court accepts a danger was present
A defender was not in breach of the Occupiers’ Liability (Scotland) Act 1960 even though it had failed to take action in relation to a known obstacle.…
McKevitt v National Trust for Scotland  SC EDIN 20
A defender was not in breach of the Occupiers’ Liability (Scotland) Act 1960 even though it had failed to take action in relation to a known obstacle. The pursuer’s injury had not been foreseeable and the defender had been reasonable in not taking precautions against a negligible risk of injury.
The pursuer, aged 60 years old at the time of the accident, claimed for damages for personal injuries as a result of the defender’s alleged breach of statutory duty under the Occupiers’ Liability (Scotland) Act 1960 (“the Act”). The pursuer was visiting a historic site occupied by the defender. She was an experienced visitor and enjoyed taking photographs of historic homes and gardens. After taking photographs in one garden, the pursuer consulted her map and started to walk over to the site’s main garden. The pursuer arrived at a junction, checked her map, and took a couple of steps before falling over a large stone. She fell heavily on her right hand side and sustained injuries.
Quantum was agreed at £11,000 inclusive of interest and the proof restricted to liability.
In order to succeed in her claim the pursuer had to establish that (i) there was a danger due to the state of the premises; and (ii) that there had been a failure by the defender to take appropriate care. The defender would not owe a duty to the pursuer if the stone had been an obvious danger which the pursuer should have known to avoid.
The pursuer argued that the stone had not been an obvious danger. The pursuer had been looking at the scenery and taking photographs and, as a result, had not been entirely vigilant. However, this was exactly how a first-time visitor would be expected to act and meant that the stone was not as obvious as hindsight might suggest. The defender submitted that the stone must be obvious as the site attracted between 8,000 and 11,500 visitors each year and there had been no other reported accident involving the stone since the site opened in 1998. The defender also submitted that, if the pursuer were successful, the court should make a finding of contributory negligence as high as 75 per cent.
The judge believed the pursuer’s account that she had not seen the stone. The fact that there was a dispute concerning the stone’s visibility meant that it could not be considered to be “obvious”. The stone had been covered in lichen and moss and cherry blossom from a nearby tree which also covered the path.
As there was a risk that a visitor could fail to notice the stone and could trip over it, the judge had to determine what, if any, precautions the defender should have taken to protect its visitors. Under the Act, the defender is expected to take “such care as in all the circumstances of the case is reasonable” having regard to the probability and extent of potential harm.
The judge found that the pursuer’s injury had not been foreseeable. The pursuer had not been able to see the stone due to a variety of factors which all had to come together for the stone not to be visible, including the fact that the pursuer had stopped right next to the stone to check her map. A reasonable occupier would therefore be permitted to treat the risk of injury as negligible.
Following the case of Morton v Dixon 1909 SC, the pursuer had to prove that the defender had either failed to take a precaution which was commonly used by other people in similar circumstances, or that such a precaution was so obviously needed that it would be “folly in anyone to neglect to provide it”. As the pursuer did not present any evidence of precautions that other parties had taken in similar circumstances, her case was founded on the notion that the absence of precautions showed “folly” on the defender’s part.
The judge held that the pursuer had failed to pass the high bar of that test and had failed to prove her case that the defender was required to do more than it had done to satisfy its duty under the Act. The claim failed. If the pursuer had been successful then the judge would have made a 10 per cent reduction in damages for contributory negligence. While the pursuer had not been entirely vigilant, she could not be criticised too harshly for not checking her path more carefully.
This is a welcome decision for occupiers who would find it extremely onerous to protect a visitor from every possible risk. Sheriff McGowan recognised in his judgment that “virtually any feature of land or premises can constitute a potential hazard” and commented that the courts should “focus on the issue as to whether there was a breach of duty in the circumstances of the case” (para. 65). The decision highlights that, even where a defender has accepted that it was aware of a potential obstacle and had taken no action, the decision as to whether it has breached its statutory duty will be made with regard to all the relevant factors of the case.
During the trial, the judge also reminded the parties of the need for fair notice in personal injury claims. This requirement for fair notice extended to evidence concerning precautions which the defender could have taken. If the pursuer had sought to rely on specific evidence of measures which had been taken by third parties in similar circumstances, such evidence would only have been admissible if it had been included in the pursuer’s pleadings.
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