The recent case of Louise McKevitt v National Trust for Scotland  SC Edin 20 demonstrates the difficulties Pursuers can face in proving their case under the Occupiers Liability (Scotland) Act 1960 even when it’s accepted a danger was present.
The case came before Sheriff Kenneth McGowan in the All-Scotland Personal Injury Court in Edinburgh and related to a claim for damages made by the Pursuer following an accident at Geilston Gardens in Dumbarton. The Defenders were sued as the Occupiers of the premises.
Geilston was a formerly privately owned house and land comprising of about 30 acres, 12 of which were open to the public. In one part of the gardens there was a tarmac path which passed from an orchard through an archway in a hedge and led towards the main house over a wooded area. This path was described as being reasonably straight and level. On the left-hand side of the path there was a large piece of stone which was about 51 cm x 43 cm x 20 cm and weighed about 100 kg. The providence of the stone was unknown. It might have been “a louping-on stone” being a step to make it easier to climb onto a horse, or an old boundary marker. In any event it appeared to have been in situ for a long time with parts of the stone covered in lichen and moss.
The Pursuer was a Scientist in the pharmaceutical industry and was a member of the National Trust. She was an experienced visitor and enjoyed visiting historic homes and gardens.
On 31 May 2014 she arrived at Geilston about lunchtime. The weather was bright, sunny and warm and she was wearing polarised sunglasses. The Pursuer purchased a ticket to visit the house and was provided with a map of the grounds.
She entered the grounds and visited various garden areas. She then decided, having consulted her map, to visit the main garden and made her way through the archway in the hedge along the tarmac path in question. She stopped part way along the path to consult the map but did not notice the stone. She took one or two steps forward and immediately fell over the stone, landing heavily on her right side and sustaining injuries.
Quantum was agreed, restricting the Proof to the question of liability only.
The Pursuer based her claim on the Occupiers Liability (Scotland) Act 1960 offering to establish firstly, that there was a danger due to the state of the premises and secondly that the Defenders had failed to take appropriate care.
The Pursuer accepted an occupier owed no duty to protect persons against obvious dangers. However, if the danger posed by a permanent feature, whether natural or man-made, was unusual, unseen, concealed or in some way special then as a general statement a Pursuer would succeed.
The Pursuer submitted that in the present case the stone constituted a danger, was not obvious to the Pursuer, was unusual and to an extent concealed due the presence of lichen, moss and cherry blossom leaves as well as dappled sunlight. The Defenders had failed to remove or otherwise deal in some way with the stone, thereby diminishing the risk posed. Any argument re contributory negligence was disputed on the basis that if the stone was not an obvious danger then the Pursuer was not careless in not seeing it.
The Defenders on the other hand did not dispute the accident circumstances, but in the first instance invited the Court to hold the stone did not constitute a danger and that if it did it was obvious and no steps were required to be taken by the Defenders to guard against any risk created by it.
In their submissions the Defenders pointed to the fact that there were no averments or evidence about what the Defenders should have done, that the stone in question had been there for a long time, at the very least since 1998, that the original purpose of the stone was unknown and that it was likely it was of some historical significance. The Defenders also pointed to the fact that on average eight thousand to ten thousand people visited Geilston each year. There had been no reported accidents since Geilston was opened to the public and the majority of these visitors would have gone past that stone.
As to whether or not the stone caused an obvious danger, Sheriff McGowan concluded that to be categorised as “obvious” there were two aspects of “obviousness” which had to be considered, first the feature in question must be physically obvious and that secondly it must be obvious it presented a danger.
In this particular case, Sheriff McGowan was not convinced the stone was an obvious danger, particularly as there was a factual dispute as to how visible the stone was and as such the Defenders’ primary argument ie, the stone was obvious and thus no further steps needed to be taken, was rejected.
However, when turning to the question of what precautions, if any, should have been taken by the Defenders, their arguments were ultimately successful.
Sheriff McGowan stated that the standard of care under the Act was that of the reasonable prudent man and referred to the wording of Section 2.
Sheriff McGowan considered first the issue of foreseeability. He accepted that there was the presence of lichen and moss as well as cherry blossom over the stone making the stone less obvious, particularly to someone standing close by. He pointed however to the very conditions described by the Pursuer as bringing the issue of foreseeability into sharp focus.
The Pursuer spoke specifically to having stopped on the path and then taking only a couple of steps before falling. This suggested that she’d stopped close to the stone, possibly just short of it. Sheriff McGowan held that the stone was visible on approach but that that visibility lessened the closer you got to the stone. As such, in his view, the risk of harm in this particular case was not foreseeable because the risk of harm only presented itself when all of the conditions listed by the Pursuer existed and a person was standing so close to it that the main aspect was the top surface.
Sheriff McGowan also considered the fact that thousands of visitors visited the premises every year and it was reasonable to infer that many of these visitors would have walked along the path in question, past the stone. There was no record of anyone tripping over the stone before or since the Pursuer’s accident.
He also considered the burden that would have been placed on the Defenders in putting in place precautions. Whilst he accepted there was no specific evidence about the cost and/or difficulty associated with precautions, Sheriff McGowan did give some weight to the social value of the premises. Geilston was a historical garden and such places have all sorts of features. Visitors may derive pleasure from seeing old artefacts even if the provenance is uncertain and the presence of lichen covered stone may be regarded as an attractive feature on an otherwise straight tarmac path.
Finally, Sheriff McGowan considered the issue of common practice, holding that the test for the Pursuer was to satisfy the Court that the precautions which had been omitted were so obviously wanting that it would have been negligent to not provide them. The Pursuer had led little evidence about the systems in place elsewhere and the Defenders objected to evidence led by the Pursuer in this regard on the basis there were no averments. In any event, Sheriff McGowan held it was a high test with the Pursuer requiring to show not just what could have been done but what should have been done.
Considering all aspects of the case, Sheriff McGowan held the Pursuer had not proved that the duty of reasonable care incumbent on the Defenders required them to do any more than they did and granted Decree of Absolvitor in favour of the Defenders.
On the issue of contributory negligence Sheriff McGowan indicated that whilst some criticism could be levelled at the Pursuer for not more carefully checking her route, she could not be strongly criticised and had he had to determine the issue, he would have made a 10% deduction to the award of damages.