McCondichie v. Mains Medical Centre [2003] ScotCS 270 (31 October 2003)

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Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McCondichie v. Mains Medical Centre [2003] ScotCS 270 (31 October 2003)
URL: http://www.bailii.org/scot/cases/ScotCS/2003/270.html
Cite as: [2003] ScotCS 270

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OUTER HOUSE, COURT OF SESSION

A2821/01

OPINION OF LORD DRUMMOND YOUNG

in the cause

FIONA McCONDICHIE

Pursuer;

against

MAINS MEDICAL CENTRE

Defenders:

________________

Pursuer: Allardice; Digby Brown

Defenders: Springham; HBM Sayers

31 October 2003

[1] The defenders are a partnership of general medical practitioners and the partners thereof. They carry on practice from premises at Mains Drive, Erskine, which consist of a surgery and an adjoining car park. In February 2000 the pursuer was a patient of the practice. It is common ground between the parties that on 17 February 2000 the pursuer visited the surgery and, and she was leaving, slipped and fell in the practice car park. As a result she sustained certain injuries. It is common ground that the car park belonged to and was occupied by the defenders. It is also common ground that the weather that morning was cold; some snow had fallen on the previous day, and ice had formed on the ground. The pursuer now claims damages from the defenders on two grounds, liability for negligence under section 2(1) of the Occupiers Liability (Scotland) Act 1960 and breach of the Workplace (Health, Safety and Welfare) Regulations 1992.

Evidence
[2] The pursuer's evidence was that, on 17 February 2000, she had visited the defenders' surgery to obtain a repeat prescription. She arrived by car, she thought at approximately 9.10 am. She drove into the car park and parked there. From her car she made her way across the car park towards a path that led to the surgery; like the car park, the path was owned and occupied by the defenders. The pursuer stated that she tried to walk up the path but could not because it was too icy. Consequently she walked on the grass, where it was easier to walk than on the path. She then continued along a small path to the main door of the surgery. After she had arranged her repeat prescription she left the surgery, and went back the same way towards her car. She stated that she had difficulty walking on the path, which was still icy. She followed it for a distance, and then walked across the grass. From there she walked on to the car park surface to reach her car, which was parked on the other side of the car park. On the way there she slipped and fell. She described the conditions where she fell as "very very icy". The point where she fell was part of the roadway through the middle of the car park, between the areas where cars were normally parked. She presumed that she had slipped on ice. Both of her legs went up in the air, and she fell on her back. Her arm appeared injured; she described it as "strange looking". She went back into the surgery, where a doctor came and looked at her injuries. He said that her arm had been broken, and that she must go to hospital. The pursuer's sister arrived some time later and took her to hospital, where she arrived at approximately 10.30 am.

[3] The pursuer stated that, when she arrived at the defenders' practice, there was no indication that the car park surface had been treated. There was no sign of grit on the ice. When she fell, there was no sign that the surface had been treated in that area. Likewise, the paths had not been treated at that stage; that was why she had to walk on the grass as she went towards her car. She had not noticed what conditions were like when she finally left to go to hospital; she was in too much pain at that stage. She could not recall whether the roads outside the car park had been treated. In cross-examination she was asked whether the paths might have been salted before she walked along them. She replied that they possibly had, but she had not seen it; the paths were very slippery. The practice nurse, however, had said to the pursuer that she and a doctor had been out putting salt and grit down. The pursuer thought that if that was correct the salting and gritting was not adequate. She accepted, however, that if brownish grit had been spread in the car park she might possibly not have noticed it. In cross-examination the pursuer stated that she had walked carefully, and had been wearing flat shoes at the time.

[4] The pursuer's sister, Dr Elizabeth McCondichie, also gave evidence. She stated that she had been telephoned some time after 9 am and was asked to take her sister to hospital. She drove to the defenders' premises, and parked her car in the car park there. Her evidence about the time when she arrived varied, but it seems likely that she must have arrived at the defenders' surgery some time before 10 am. She described conditions around the defenders' building as "very slippy and icy". It had snowed, and the snow had frozen over. She had difficulty in walking, and had observed another man who had had difficulty in walking. She had not seen any indication that the car park surface had been treated, nor any indication that grit had been spread there. The pathways around the surgery building had grit on them. This was dotted on the paths, and was of some help, but it did not cover the whole of the surface of the paths. Dr McCondichie stated that she had not seen any salt, although it had possibly been mixed with the grit that she had seen. If there had been grit on the car park surface she thought that she would have been able to see it, but she was quite sure that she did not see any sign of grit there, at least in the areas that she walked across. In cross-examination she accepted that, if salt had been placed on the ground, she would not necessarily have seen it, and she accepted that it was possible that salt had been placed on the paths. She went into the defenders' medical centre, where she met her sister and took her to hospital. They arrived at the Southern General Hospital at 10.15, and thus must have left the practice at about 10 am.

[5] The defenders also led evidence from Philip Glen, a consulting engineer and partner in Harley Haddow. Mr Glen's experience included work in relation to the health and safety of commercial premises. He accepted in cross-examination that he was not a health and safety consultant as such, but was responsible for producing documentation on the health and safety aspects of construction and the occupancy and use of buildings. The treatment of ice would be included in the health and safety file for a building. Mr Glen stated that he would expect a system for the treatment of icy footpaths and car parks. The defenders' system, as pled on record, was put to him; this involved laying down salt and grit on the paths and car park before the practice opened at 9 am. Mr Glen replied that he had no reason to believe that there was anything wrong with such a system, and that this was a standard way of dealing with ice. Salt is the primary method of melting ice, because a combination of salt and water has a lower freezing point that water. The grit has certain advantages; it tends to hold salt on the surface that is treated, and it is not washed away by the melt; it also improves traction for tyres or feet. Grit alone, however, without salt, will not cause ice to melt; salt is required for that purpose. Roadside bins maintained by local authorities contain a mixture of grit and rock salt. The advantage of rock salt as against table salt is that has a larger ingrained consistency, and hence lies longer on the surface and is not washed away as easily as table salt. It is also possible to control the spread more effectively with a larger ingrained material. Mr Glen did not think that was anything special about the defenders' car park. If grit and salt were applied in sufficient quantities, it could be treated effectively for ice. Mr Glen was asked certain questions about the likely temperature if grit and salt were seen to be effective in certain places. His final position was that, if the grit and salt were effective in places, they were capable of being effective generally. Mr Glen accepted that the application of grit and salt could be effective even if the mixture was not applied to every single part of the area treated. He also accepted that the application of grit and salt reduced the chance of slipping, but did not give a guarantee that no one would slip. Finally, Mr Glen was asked certain questions about the time that it would take to treat the car park. He was unable, however, to say more than that the time taken would depend on the method of spreading.

[6] The defenders led two witnesses, Dr Murray MacPherson, who was one of the doctors practising at the Mains Medical Centre and thus one of the defenders, and Mrs Margaret Adams, who was the practice manager. Dr MacPherson stated that he had been a partner in the practice for just over five years. In February 2000 there were four partners and a number of other staff. On 17 February 2000, Dr MacPherson remembered that the weather was very cold. He believed that it had snowed the day before, and there was a lot of ice on the roads. He had driven to work and had arrived at approximately 8.35 am. His route to work lay in part along the motorway, which had been treated, but the other roads were more slippery and did not appear to have been gritted.

[7] The practice had a system for the treatment of the car park and footpaths if ice had formed. The practice manager, Mrs Adams, was responsible for putting salt on the paths if she thought that they were slippery. She was responsible for bringing the salt to the surgery. So far as the car park was concerned, the first doctor, who was usually Dr MacPherson, would collect grit from a roadside bin maintained by the council and spread that grit on the car park. At that time, there was a roadside bin just around the corner from the surgery, about 150 or 200 yards away. That bin might be used as a source of grit, but sometimes Dr MacPherson brought the grit from sources near his home. On 17 February 2000, Mrs Adams had arrived at the surgery before Dr MacPherson. She had put salt on the paths, but had done nothing to the car park. Dr MacPherson thought that the car park needed to be treated, as it was slippery when he parked his car and walked across it. He said to Mrs Adams that grit was needed to prevent people from being injured. She did not want to take her car to fetch grit, and consequently Dr MacPherson drove to the nearby local authority bin with Mrs Adams. The bin contained ordinary grit and salt placed there by the council. In order to collect the material, Dr MacPherson and Mrs Adams had taken two buckets and two bins, which were about the same size as buckets. They also took a hand shovel to place the grit in the containers. Dr MacPherson stated that they had left to fetch grit within a minute or two of his arriving at the practice. It took them less than five minutes to obtain grit and return to the car park, where Dr MacPherson parked. They then took the buckets and bins out of the car and placed the grit on the car park surface. Dr MacPherson had started at the back of the car park, close to the surgery building, and had used the small shovel to sprinkle the surface with grit. Mrs Adams, as he recalled, had started at the end of the car park adjoining the road. She had taken a bucket of grit and shaken it from side to side, and had used a brush to spread the grit. When Dr MacPherson and Mrs Adams began spreading the grit, there were approximately 10 cars in the car park. Another five or thereby arrived while they were working. Dr MacPherson particularly remembered the arrival of one of his colleagues, Dr Murray, who had skidded as he turned into the car park. As a result of that additional grit was put down near the entrance. The place where the pursuer fell was marked on a photograph, which was shown to Dr MacPherson. He stated that the point where she had fallen was probably within the area where he and Mrs Adams had met as they spread the grit. They had gone over this general area with more grit. He thought that the car park had been gritted by 9.05 am. He had been due to start a surgery at 9 am, and he had been about 10 minutes late in starting. It would have taken him a few minutes to prepare for the surgery, by sorting his bag out and the like.

[8] Mrs Adams, the practice manager, had occupied that position for 10 years. She was responsible for the general administration of the staff and for looking after the surgery. On 17 February 2000 her son had telephoned her before she left for work to say that the roads had not been gritted, and as she drove to work she found that the roads were slippery. She normally started work at 8.20, but that morning she was late in getting to her office. She arrived before 8.30, however; she was aware of that time because that was when the telephones switched over from an automatic system. The procedures followed by the defenders to deal with ice were as follows. As Mrs Adams was normally the first to arrive at work, she would spread ordinary cooking salt on the footpaths. She was responsible for purchasing household cooking salt for placing on the footpaths. If heavier salt were needed, she and Dr MacPherson, who was generally the first doctor to arrive, would go to the local roadside bin belonging to the council, which was situated approximately 100 yards from the surgery. The salt from the council bin was rock salt, and was brownish in colour. Buckets and basins were normally used to collect the grit; these were kept in the cleaners' cupboard in the surgery. A hand shovel was used to fill them. The grit was then spread over the middle of the car park, in areas other than the parking spaces. Sometimes it might also be placed on the footpaths, if table salt were not enough.

[9] On 17 February 2000 Mrs Adams had parked her car in the corner of the car park. She then fetched salt and spread it on the footpaths. That had taken her approximately five minutes. After that she started to open the mail. A nurse then arrived, and stated that she had skidded on the road. Mrs Adams had gone outside to speak to the nurse, and when she returned to the surgery she met Dr MacPherson. He had said to come with him to fetch some grit. She joined him in his car, taking, she thought, two basins and three buckets. She thought that there was also a sack in Dr MacPherson's car, which could be used to carry grit. It took a minute or so to reach the council bin. She thought that both she and Dr MacPherson had filled the containers, which they placed in the back of the car. They then went straight back to the car park. Mrs Adams thought that it had taken them about five minutes or so to fetch the salt. When they got back to the surgery Dr MacPherson parked in the car park, and they started to spread the grit. Mrs Adams obtained a brush from the cleaners' cupboard, and in areas where Dr MacPherson had placed the grit she spread it with a brush, to cover as much ground as possible. She thought that Dr MacPherson had probably started at the back of his car, and had placed some grit near the entrance to the car park. When she started to use the brush she did so in the area near the entrance. Subsequently Mrs Adams had taken basins to spread the grit from those. She remembered that Dr Murray had skidded as he turned into the car park. It had taken perhaps 10 minutes or slightly more to complete the gritting; the time involved was definitely not as much as 20 minutes. They had finished at about 9 am. Dr MacPherson has said that he was about to start a surgery, and he started at 9. Mrs Adams said that she had collected the buckets and brush and washed them. She had then opened the mail. While she was doing that, a member of staff had said that someone had fallen in the car park. That was the first time that she had been aware of the pursuer's accident. Mrs Adams was referred to the photograph that indicated the spot where the pursuer had fallen. She stated that she had definitely gritted all of that area. In cross-examination, she stated that the pursuer had fallen not long after she went back into the surgery. She was quite definite that she had returned to the surgery by then; one of the staff in the surgery had said that someone had fallen in the car park. She also stated that she had a clear recollection of spreading salt on the paths on this occasion, before 8.30 am. It was suggested to Mrs Adams that the accident to the pursuer might have happened before she and Dr MacPherson returned to the surgery. She replied that that would be impossible, because in that event they would have been present when it occurred.

[10] A note had been made in the pursuer's medical records, apparently by Dr Murray, to the effect that the pursuer had slipped on ice in the car park. The note stated "Had been salted but presumably areas not reached". Dr MacPherson was asked about that note. He stated that Dr Murray had seen him and Mrs Adams spreading the grit as he entered the car park and possibly thought that the whole of the car park had not been gritted. He did not know why the entry appeared in the medical records. Mrs Adams made a record of the pursuer's accident, in lieu of an accident report form. This gave a time of 9.15 approximately. She stated that Dr Murray had told her that time; she had thought that the accident had occurred slightly earlier. This record stated

"Mrs McCondichie slipped on a patch of black ice on car park surface. Ice having occurred suddenly an hour or two before because of sudden drop in temperature. The car park had been salted 8.45-9.00 am but still small areas uncovered. Salting carried out by Mrs Adams and Dr MacPherson".

In general, apart from the timing, that note supports the evidence given by Mrs Adams in court.

Occupiers' Liability (Scotland) Act 1960
[11] The first basis upon which the pursuer seeks reparation for her injuries is liability under section 2(1) of the Occupiers' Liability (Scotland) Act 1960 for the negligence of the defenders. For that subsection to apply, the pursuer must establish that the defenders were in occupation of the car park, but that matter was not in dispute. It was common ground between the parties that, for the pursuer to succeed under the subsection, she must establish common-law negligence on the part of the defenders. Her averments of fault may be summarised as follows. The defenders knew on the material date that patients of the practice such as the pursuer would be attending the practice from around 8.30 am onwards. The defenders' premises were dangerous due to the presence of ice underfoot in the car park. That led to an obvious risk that persons in using the car park might slip and fall. In the circumstances, it was said to be the defenders' duty to take reasonable care to treat the car park by laying down salt and grit or otherwise rendering the surfaces safe to walk on before 8.30 am. That involved devising, instituting and maintaining a system for laying down salt and grit in the car park, or otherwise rendering the car park surface safe to walk on. Failing that, the car park should have been closed. The pursuer's case is thus based on a duty to devise and implement a system of gritting and salting of the car park in icy conditions such as occurred on the morning of 17 February 2000.

[12] It is of course necessary for the pursuer to establish how her accident occurred. It is clear in my opinion that the pursuer slipped on ice in the car park as she returned to her car from the surgery, and that she fell and injured herself in consequence. That was clear from her own evidence, which I accept on this matter. The pursuer's evidence was also supported by a report by Professor Gordon Waddell into the pursuer's condition after the accident; that report was incorporated into the evidence by a joint minute concluded between the parties. In that report, Professor Waddell indicated that the injury to the pursuer's wrist was a form of injury typical of a person who had slipped on ice.

[14] From the evidence of Mr Glen I conclude that the use of grit and salt from the local authority bin was a reasonable way of treating the car park for ice; he indicated that doing so was a perfectly acceptable system of treatment. I was satisfied from the evidence of Dr MacPherson and Mrs Adams that they had been reasonably thorough in their efforts to spread the grit and salt across the area of car park. In particular, I am satisfied that they spread grit and salt in the general area where the pursuer fell. There was a discrepancy in the evidence of the two witnesses as to exactly how they set about the task; in particular, Dr MacPherson stated that he started from the end near the surgery and Mrs Adams from the end near the road, whereas Mrs Adams said that Dr MacPherson had placed some grit near the road, and she had spread it with a brush. That discrepancy does not in my opinion affect the general reliability of the evidence of the two witnesses. Counsel for the pursuer also suggested that there was a further discrepancy, in that Mrs Adams stated that she went to fetch a brush to spread the grit, whereas Dr MacPherson did not mention that. Nevertheless, Dr MacPherson did say that Mrs Adams had used a brush to spread the grit, and she must presumably have got it from somewhere. In general, I thought it clear that the two witnesses were speaking to substantially the same actings. Both witnesses were clear that they had spread grit in the general area where the pursuer fell. The fact that the pursuer did fall does not in my opinion indicate that Dr MacPherson and Mrs Adams had not been reasonably thorough; as Mr Glen pointed out, the spreading of grit and salt reduces the risk that persons walking across the area treated will slip; it does not provide a guarantee that no one will slip. Consequently, I am of opinion that the fact of the pursuer's accident must be regarded as neutral on this matter.

[15] In the foregoing circumstances, I conclude that the defenders had a system in place for the treatment of ice in their car park, and that such a system was a reasonable one. I am further satisfied that the system was properly implemented on the morning of 17 February 2000, prior to the pursuer's accident. I am accordingly of opinion that the pursuer's case based on liability under section 2(1) of the Occupiers' Liability (Scotland) Act 1960 has not been established.

Workplace (Health, Safety and Welfare) Regulations 1992
[16] The second ground on which the pursuer sought to establish liability on the part of the defenders was a breach of regulation 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992. This ground raises a significant issue of law. The pursuer was not employed at the defenders' surgery; consequently she made use of the car park merely as a patient of the practice. The critical question that arises in those circumstances is whether she is entitled to rely in a civil claim for damages on a breach of the 1992 Regulations. For reasons that are discussed in detail below, I have reached the conclusion that the pursuer is not entitled to rely on the Regulations; their benefit, so far as civil claims are concerned, is confined to persons who are at work in premises to which the Regulations apply. Consequently this part of the pursuer's claim fails.

[17] The 1992 Regulations were enacted under powers contained in the Health and Safety at Work Act 1974. They were intended to give effect to a directive of the European Council, the Workplace Directive of 30 November 1989. The Workplace Directive is one of a group of six directives adopted by the Council in order to give effect to the general policies contained in the Council directive of 12 June 1989, known as the Framework Directive. In considering the scope of the 1992 Regulations, therefore, it is necessary to have regard to the terms and purposes of the Framework Directive and the Workplace Directive. In a case where United Kingdom legislation is enacted to give effect to a European directive, it is well established that the United Kingdom legislation "must be construed purposively so as to give effect to the results envisaged in the directive": McGhee v Strathclyde Fire Brigade, 2002 SLT 680, at paragraph [8] per Lord Hamilton; Marleasing SA v La Comercial Internacional de Alimentacion SA, [1990] ECR 1-4135. This is an important point; it means in my opinion that the legislative context in which such United Kingdom legislation must be construed includes the relevant European directives. The Workplace (Health, Safety and Welfare) Regulations 1992, and other Regulations enacted in order to implement the six directives that followed the Framework Directive, obviously occupy an area of law that has for many years been the subject of detailed United Kingdom legislation, found principally in the Factories Act 1961, the Offices, Shops and Railway Premises Act 1963 and in subordinate legislation enacted under the Health and Safety at Work etc Act 1974. In considering the Workplace (Health, Safety and Welfare) Regulations 1992, and other Regulations that give effect to European directives, it is not appropriate in my opinion to have regard, in the first instance, to the terms and interpretation of the older United Kingdom legislation. The European-inspired legislation of 1992 and subsequently marks a new start in the regulation of health and safety at work. Moreover, it is a new start that has been prompted by detailed European legislation which, in both its structure and its concepts, is significantly different from the older United Kingdom legislation. The correct approach to the new health and safety legislation is in my opinion that set out by Lord Hamilton in McGhee, supra, at paragraph [9]:

"Although the European provisions envisaged an improvement in existing standards in member states, the task of interpretation is not, in my view, assisted, at least in the first instance, by considering the terms (as domestically interpreted) of previous and now repealed UK health and safety provisions. In English v North Lanarkshire Council, Lord Reed... expressed the view that an approach to interpretation of the regulations which was based on the Factories Act 1961 was 'fundamentally misconceived'.... In my view the proper approach to such regulations is in the first instance to approach them untrammelled by superseded legislation and any interpretation of it. If, however, the result of that approach is to produce a situation in which the health and safety of workers appears to be less well provided for than under earlier equivalent provisions, this may cause the court to reconsider its initial interpretation. But, if on further consideration the initial interpretation continues to appear correct, it will fall to be applied even if a less advantageous system is the consequence. I also agree with Lord Reed's view that... an approach to the interpretation based on the Factories Act is, or at least may be, misleading".

[18] The pursuer founds on regulation 12(3) of the 1992 Regulations, which is in the following terms:

"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".

"Workplace" is defined in regulation 2(1) as "any premises or part of premises which are not domestic premises and are made available to any person as a place of work". The fact that regulation 12(3), and indeed the 1993 Regulations generally, are confined to workplaces is in my opinion of itself an indication that they are intended to benefit a restricted class, namely those who work in the relevant workplace. Regulation 12(3) also refers, however, to any article or substance which may cause "a person" to slip, trip or fall. Potentially, at least, the expression "a person" is capable of applying to anyone at all, including visitors who do not work in the relevant workplace, and counsel for the pursuer founded on this expression to support his argument that the benefit of the regulation extended to such visitors. He also referred to regulation 12(2), which requires that the floor or surface of a traffic route should have no hole or slope, or be uneven or slippery "so as... to expose any person to a risk to his health or safety". In both of these cases, however, the use of the general expression "a person" or "any person" can readily be explained by the linguistic and logical structure of the regulation. In each case, the regulation requires that floors and the surfaces of traffic routes should not present particular categories of risk. A risk, however, is equally a risk to a person employed on the premises and to anyone else who happens to be there. Thus, in defining the nature of the risk, there is no need to refer to anything more than the risk to "a person" or "any person". It does not follow that, if the risk results in physical injury, workers and non-workers are to be treated in the same way; that is a distinct question that relates to the scope of the 1992 Regulations in general rather than the detailed terms of any individual regulation. I am accordingly of opinion that the general impression created by the terms of regulation 12 is that it is intended to operate for the benefit of persons to whom the premises are made available as a place of work, and not to others.

[19] That impression is reinforced by consideration of the remainder of the 1992 Regulations. They are concerned with workplaces, and the references that occur in individual regulations to "a person" or "any person" can readily be explained by the linguistic and logical considerations discussed in the previous paragraph. Moreover, the preamble to the Regulations specifies the particular provisions of the Health and Safety at Work etc Act 1974 under which the Regulations were made. These include section 15(1) and (2) of and paragraphs 1(2), 9 and 10 of Schedule 3 to that Act. Section 15 contains the general power of the Secretary of State to make regulations for the general purposes of the Act and in particular for the purposes mentioned in Schedule 3. Paragraph 1(2) of Schedule 3 refers to the design, construction and other aspects of any plant. It is obvious that plant will normally be used by people at work rather than mere visitors. Paragraph 9 of Schedule 3 refers to "the conditions in which persons work", including the structural condition of premises, means of access to and egress from premises, cleanliness and the like. Paragraph 10 refers to securing the provision of specified welfare facilities "for persons at work". It is noteworthy that the specific provisions of the 1974 Act referred to in the preamble to the Regulations, those contained in Schedule 3, are concerned with the position of persons at work, rather than the public in general or persons who are mere visitors to workplaces. That again is in my opinion a significant pointer to the view that the 1992 Regulations only operate, so far as civil liability is concerned, for the benefit of persons at work.

[20] The Workplace (Health, Safety and Welfare) Regulations 1992 are intended to give effect to the Workplace Directive and, indirectly, to the Framework Directive. Consequently those two directives are part of the legislative context in which the Regulations must be construed. The starting point for the European legislation is the Framework Directive of 12 June 1989. The object of this directive is set out in article 1. Article 1.1 is in the following terms:

"The object of this Directive is to introduce measures to encourage improvements in the safety and health of workers at work".

It is accordingly clear that the Framework Directive was intended to deal with health and safety at work; it was not concerned with the protection of the general public, or persons who were in workplaces as customers, clients, patients and the like. That general object is strongly supported by the recitals to the Framework Directive. These include a reference to article 118a of the Treaty establishing the European Economic Community, which is concerned with "minimum requirements for encouraging improvements, especially in the working environment, to guarantee a better level of protection of the health and safety of workers". There are repeated references to the safety and health of workers. By contrast, there is no reference to members of the public at large or to persons visiting workplaces as customers and the like. One recital specifically refers to the impending Workplace Directive; it refers to "the Commission's intention to submit to the Council in the near future a Directive on the organisation of the safety and health of workers at the workplace". Consequently there is no support in the Framework Directive for any suggestion that the European legislation is intended to apply to the public generally.

[21] The Workplace Directive begins with a series of recitals. These refer to article 118a of the Treaty, and make repeated references to the safety and health of workers. As with the Framework Directive, there is no reference to the public at large, or to customers and the like who happen to visit a workplace. Article 1.1 then provides as follows:

"This Directive... lays down minimum requirements for safety and health at the workplace, as defined in Article 2".

Article 2 is in the following terms:

"For the purposes of this Directive, 'workplace' means the place intended to house workstations on the premises of the undertaking and/or establishment and any other place within the area of the undertaking and/or establishment to which the worker has access in the course of his employment".

Article 2 thus contains a specific reference to workers. Moreover, it is clear from both article 1.1 and article 2 that the directive is intended to regulate workplaces, which are defined in terms that look expressly towards the condition of the workers who make use of those workplaces. In my opinion the natural inference from this choice of wording is that the Workplace Directive is concerned only with the health and safety of workers, and not with the general public or customers and the like who happen to visit a workplace. Article 6 of the Workplace Directive contains a number of general requirements, and annexes I and II contain detailed minimum safety and health requirements for workplaces. Nothing in these suggests that the directive is intended to do more than protect workers. Indeed, article 6 begins with the words "To safeguard the safety and health of workers", and the annexes contain repeated references to the protection of workers. There is accordingly nothing in the provisions of the Workplace Directive to support an argument that it is intended to operate for the benefit of the public generally; instead, all of the indications are that the Directive was conceived only in the interests of workers.

[22] The provisions of the Framework Directive and the Workplace Directive make it clear in my opinion that, as a matter of European law, Member States are not required to extend the protection of national legislation passed to implement those two directives to persons other than workers, or persons employed at the workplace in question. It is, of course, open to a Member State to make its regulations more stringent than is required by the directive: Cullen v North Lanarkshire Council, 1998 SC 451, at 455C per LJC Cullen. Consequently it would be open to the United Kingdom to extend the protection of the 1992 Regulations to persons other than those employed at the workplace in question. If that were to be done, however, it would represent a major extension in the scope of the legislation, going well beyond anything contemplated by the relevant European directives. Any such extension would have very far-reaching consequences. The definition of "workplace" is such that it extends to a very large range of premises. Indeed every, or almost every, commercial enterprise in the country is likely to be affected. Any such enterprise would be fixed with strict liability to any person who entered their premises, at least lawfully, subject only to a defence that all precautions that were reasonably practicable had been taken. That would have very significant consequences for the insurance industry. If such a major extension in legal liability were contemplated, it is almost inconceivable that that would be left to implication from the detailed terms of individual regulations. Instead, it is plainly likely that any such extension would be stated expressly in the relevant United Kingdom legislation. That is especially so in view of the fact that the previous United Kingdom legislation governing the safety of workplaces only gave rise to civil liability towards persons who worked on the premises: Flannigan v British Dyewood Company Limited, 1970 SLT 285; Reid v Galbraith's Stores Limited, 1970 SLT (Notes) 83. As indicated above, I do not regard the provisions of the previous legislation as a guide to the construction of legislation based on the European directives. Nevertheless, it is clear from that legislation that to construe the 1992 Regulations as the pursuer suggests would produce a major change in the law. It is not satisfactory in my opinion that any change of that magnitude should be left to implication. Its consequences for commercial enterprises generally and for the insurance industry in particular are too great.

[23] Counsel for the pursuer presented a detailed analysis of the terms of the Workplace (Health, Safety and Welfare) Regulations 1992, and of certain of the other Regulations passed at about the same time, with a view to demonstrating that the wording of some, at least, of the individual regulations was compatible with liability to visitors as well as persons at work. An example of this was his reference to the expressions "any person" and "a person" used in regulation 12. I intend no disrespect to his extremely thorough analysis when I say that I do not consider this to be a proper way of approaching the question of whether liability has been extended beyond persons at work. In my opinion any such extension involves a major issue of legal policy, and is not something that should be left to implication from the detailed wording of individual regulations. Moreover, in virtually every case where expressions are used that could be construed as extending to mere visitors, or the public generally, the use of such an expression can be explained by the language and logic of the regulation in question. Indeed, counsel's argument assumed what it was seeking to prove, because if the general scope of the Regulations does not extend beyond persons at work there would be no need to qualify expressions such as "a person" or "any person"; they would be confined to persons at work in any event. At most, therefore, the argument might demonstrate that the wording of the individual regulations was consistent with the construction advanced by the pursuer. It does not follow, however, that that is the correct construction.

[24] Counsel for the pursuer also referred me to a number of sheriff court cases in which the scope of regulation 12(3) had been considered; these were Banna v Delicato, 1999 SLT (Sh Ct) 84, O'Brien v Duke of Argyll's Trustees, 1999 SLT (Sh Ct) 88, Miller v Perth and Kinross Council, 2002 Rep LR 22, and Layden v Aldi GmbH & Co KG, 2002 SLT (Sh Ct) 71. In the first two of these cases, sheriffs had held that the words "a person" in regulation 12(3) indicated an intention that civil liability should not be confined to persons at work, but should extend to visitors generally; in the first case liability was extended to a visitor in a shop and in the second case to a visitor in an inn. In the third case the same result was reached following a concession made by the defenders. In the fourth case, however, the sheriff held that the word "person" in regulation 12(3) was confined to persons who were working. I do not think that it is necessary for me to deal with these cases in detail. The first two were based on the precise wording of regulation 12(3). For my own part, I do not think that the wording of that provision is sufficiently clear to bring about a large extension in the legal liability of commercial concerns. I am further of opinion that any suggestion that there is such an extension is negated by the general scheme of the Regulations, by the radical nature of the change in the law that is involved, and by the terms of the European Directives that underlie the 1992 Regulations.

[25] I should also notice two further arguments that were presented by counsel for the pursuer. The first was based on the Merchant Shipping (Dangerous Goods and Marine Pollutants) Regulations 1990, the statutory authority for which included the Health and Safety at Work etc Act 1974. Regulation 3(1) imposes a duty to ensure that, when dangerous goods were handled, stowed or carried on a ship, nothing might create a risk to the health or safety of "any person". In this case, those words referred to any person whatsoever. It did not appear to me that these Regulations were of any assistance in construing the 1992 Regulations. The considerations that might apply on a ship are clearly different from those that might apply in a workplace. In any event, the statutory authority for the legislation is not confined to the Health and Safety at Work etc Act 1974, but is also found in the merchant shipping legislation, in particular the Merchant Shipping Act 1979. The second argument was that, in a criminal case in Inverness Sheriff Court, a plea of guilty had been tendered to a charge of failing to provide, so far as reasonably practicable, traffic routes in a workplace which were suitable for the persons and vehicles using them, as required by regulation 17 of the 1992 Regulations, in circumstances where the person injured was a customer in retail premises. That, it was submitted, indicated a view that the 1992 Regulations could operate for the benefit of mere visitors, as against persons working. In my opinion this case is of no assistance whatsoever, for two reasons. In the first place, it involved a guilty plea; consequently there was no judicial determination of the scope of the Regulations. In the second place, criminal liability attaches to the creation of a risk; it is not necessary that actual injury should follow. It is true that the charge in question libelled injury, but that was not an essential ingredient of the offence. Thus the case has no bearing on whether civil liability exists for injury caused to a mere visitor.

[26] For the reasons stated above, I am of opinion that the pursuer cannot rely on regulation 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992 as a ground of action. If I am wrong in that view, the defenders would be liable to the pursuer subject to the defence that they took all measures that were reasonably practicable. That defence involves a comparison of, on one hand, the risk presented to persons in the position of the pursuer and, on the other hand, the cost to the defenders of taking the necessary precautions to obviate the risk. Generally speaking, precautions must be taken unless the cost, in terms of time, effort and expense, is grossly disproportionate to the risk involved. On the basis of Mr Glen's evidence, I am of opinion that the method used by the defenders to deal with the icy conditions in their car park was a perfectly proper one. The only question is therefore whether they should have been more thorough in what they did, and should have made sure that no icy patches remained. Mr Glen accepted in cross-examination that, using the standard method of salting and gritting icy areas, it did not follow that every part of the car park would be effectively treated. He further accepted that salting and gritting reduce the chance that someone will slip; they do not provide a guarantee that it will not occur. In my opinion those answers are critical, as they indicate that even if all of the precautions that Mr Glen thought could reasonably be taken were taken it was still possible that someone would slip. Moreover, the Code of Practice dealing with the Workplace (Health, Safety and Welfare) Regulations, approved by the Health and Safety Commission, states at paragraph 96 that arrangements should be made to minimise risks from the snow and ice. That might involve gritting, snow clearing and closure of some routes, particularly outside stairs, ladders and walkways on roofs. That provision refers to minimising risks, not eliminating them entirely. In all the circumstances, I am of opinion that the defenders had taken all reasonably practicable steps to make the car park free from ice. I would accordingly have assoilzied the defenders on this ground had I held the 1992 Regulations to be applicable.

Contributory negligence
[27] The defenders have a defence of contributory negligence. This is essentially a matter that depends on the impression that I formed of the pursuer's evidence, as she was the only witness who could speak to what happened at the time of her accident. My opinion was that, at the time of her accident, the pursuer was walking reasonably carefully. In cross-examination, she described herself as walking "normally", and counsel for the defenders suggested that that was not good enough. The pursuer went on, however, to state that she was being careful. In all the circumstances I do not think that there was any contributory negligence.

Damages
[28] In case I am wrong on the question of liability, I must consider the damages that I would have awarded had I found liability to exist. The pursuer's injuries are described in two medical reports by Professor Gordon Waddell, an orthopaedic surgeon. The pursuer slipped and fell, landing on her hands, and felt immediate pain in her left wrist. She was taken to the Accident & Emergency Department of the Southern General Hospital, where it was discovered that she had a Colles' fracture of her wrist. This was manipulated and her wrist was put in plaster. She was given a sling and analgesic medication, and allowed home. Her wrist remained in plaster for approximately six to eight weeks, and she was given a support bandage. She attended physiotherapy for three or four weeks, and then continued exercises on her own. She received analgesic medication. As a result of her injuries the pursuer had difficulty in performing her daily tasks. Her daughter had to help with washing and cooking. The pursuer was unable to drive, and her husband, sister and parents had to drive her. Her difficulties in performing everyday tasks, which included bathing and the like, continued for three or four months after the accident. When the plaster was removed, the pursuer's wrist was weak at first, but gradually it got better. After between one and two years it had largely returned to normal. Nevertheless it was still weak on occasion. In Professor Waddell's first report (dated 2 October 2000) it is stated that the pursuer sustained a displaced Colles' fracture of her left wrist. This was soundly healed, with a slight residual deformity which constituted a minor cosmetic blemish. The pursuer had mobilised well but still had some reasonable restriction in the strength of her left hand and in performing heavy activities with it. She is, however, right-handed. The deformity and appearance would be permanent, but the local symptoms and strength should improve to a greater or lesser extent over a period of between one and two years. There would, however, probably be minor residual symptoms and restriction of very heavy activities; both of these would be permanent. It is unlikely that there would be any other future compluications, such as osteoarthritis, serious deterioration or restriction on employability. In his second report (dated 22 October 2002) Professor Waddell states that there is no scarring, but that there is a mild deformity in the left wrist. The pursuer continues to have a slight restriction of movement, slight weakness, minor symptoms and restriction of heavy physical activities with her left hand. The deformity and the minor symptoms and restriction of strenuous physical activities are likely to be permanent. Future complications remain unlikely.

[29] The pursuer claimed damages under two heads, solatium and services provided by her family. In respect of solatium, I am of opinion that an appropriate award would have been £6,000. Counsel for the pursuer referred me to Ross v Fife Healthcare NHS Trust, 1999 Rep LR 75, where a jury made an award which today would be valued at £9,250 in respect of a Colles' fracture. In that case, however, the pursuer suffered from continual aching and restriction of movement. The award in the present case should in my opinion be significantly less. Counsel for the pursuer also referred me to Kennedy v Lees of Scotland Ltd, 1997 SLT 510, where Lord Gill (as he then was) awarded a sum that today would be valued at £9,500 for a Colles' fracture. In that case, however, the pursuer's injuries were much more serious than in the present case. The pursuer had been left with intractable pain, which would probably be alleviated by an operation for fusion of her wrist. Thereafter she would be subject to permanent limitation of movement. Counsel for the defenders referred me to three English cases involving Colles' fractures, Guthrie v Hampshire CC, Kemp and Kemp on Damages, H4-042, where the award at present-day values was £4,165, Re Brown, 21 April 1992, where the award at present-day values was £5,760, and Lee v Liverpool City Council, Kemp and Kemp on Damages, H4-034, where the award at present-day values was £5,950. The first of these cases was clearly less serious than the present, as the plaintiff had made a rapid recovery. The second and third appeared to me to be at least as serious as the present; indeed, in the second the plaintiff's wrist required to be remanipulated two weeks after the accident, and in the third the plaintiff still required daily assistance three and a half years after the accident. Nevertheless, these cases appear to me to give a good pointer towards an appropriate award of damages in the present case. I would have awarded interest on two-thirds of any award of solatium from the date of the accident, at the rate of 4% per annum. In relation to loss of services, I am of opinion that a relatively modest award would be due. Counsel for the pursuer suggested £750, with interest from a date two months after the accident; counsel for the defenders suggested an award of £250 inclusive of interest. The latter suggestion was based on the submission that services had been provided for approximately two months. On my note of the evidence services were provided for three or four months. Inevitably a fairly broad view has to be taken. In all the circumstances I consider that a figure of £450 would have been appropriate. Interest would have run on that sum from 17 May 2000, two months after the date of the accident.

[30] In all the circumstances, I will sustain the defenders' second and third pleas in law and assoilzie the defenders from the conclusions of the summons.

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McCondichie v. Mains Medical Centre [2003] ScotCS 270 (31 October 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/270.html Cite as: [2003] ScotCS 270