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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 143
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OPINION OF LORD
BRACADALE
in the cause
AGNES BUCKLEY WILSON
Pursuer;
against
GLASGOW
CITY COUNCIL
Defender:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
Miss Smart; Brodies W.S. (for
Quinn Martin and Langan, Solicitors, Glasgow)
Defender: Hofford;
Simpson and Marwick
9 August 2007
Introduction
[1] On 4 May 1999 the pursuer, who was 57 years
of age at the time, sustained injuries as a result of fall. These included a head injury and a compound
fracture to the neck of the left humerus.
In her action against the defenders quantum
was agreed and the proof before me proceeded on liability. At the time of her accident the pursuer lived
in a multi-storey block in the Drygate area of Glasgow
to the north of Duke Street. There were three blocks: number 24, known as Gibson
Heights; number 36, known as Lister Heights; and number 48, known as Simpson Heights. At the time of the accident the pursuer lived
with her husband, from whom she had separated by the time of the proof, at Gibson
Heights. They had a lock-up garage underneath Lister
Heights. Access to the garages was by an external stairway
leading from a paved area in front of Lister
Heights to the area below where the
lock-up garages were located. Both the
flat occupied by the pursuer and her husband and the lock-up were rented from
the defenders. At the time of her
accident the pursuer was employed as a nursing assistant at Gartnavel
Hospital. In the evening of 4 May 1999 she left her home to get her car from
the lock-up in order to drive to her work for a night shift. Her route on foot to the lock-up took her
from Gibson Heights
eastwards along Drygate to the paved area in front of Lister
Heights where the set of stairs led
to the area of the lock-ups below.
[2] The
pursuer's case on record is that she fell on the stairs. She avers that several steps on the last
flight, near to the bottom of the flight, were loose. The loose steps wobbled and moved underfoot
when a person stood on them. As the
pursuer walked down the steps, she lost her footing on a loose step and fell.
Did
the pursuer fall on the stairs?
[3] The first issue to be
addressed is whether the pursuer has proved that she fell on the stairs. The evidence, including that of the
photographs, indicated that the stairs ran from top to bottom in three flights
of steps with two landings. On one side
of the stairs there was a wall with a hand rail attached to it and on the other
side an iron railing. Between the top of
the stairs and the road (Drygate) there was an open paved area. A row of bollards separated the north side of
the paved area from the pavement of Drygate.
On the east side of the paved area there was a flower bed. The pursuer's own account in her evidence was
that she could remember getting to the top of the stairs and the next thing she
remembered was wakening up in the Accident and Emergency Department of Glasgow
Royal Infirmary. She did not know what
had happened to her. She did not
remember speaking to the ambulance crew or who was around her when the
ambulance came. She had been told that
her husband had accompanied her in the ambulance.
[4] Two
eyewitnesses gave evidence in which they claimed to have seen the pursuer
fall. They were James Saunders and
his former wife Maureen Saunders.
At the time of the proof Mr Saunders was 62 years of age. He had lived in Drygate for ten or eleven
years from 1995 onwards. He had been a
tenant of the defenders in Gibson Heights
and rented a lock-up below Lister Heights. Access to the lock-up was by the same set of
stairs used by the pursuer to access her lock-up. About a year after moving in, as a result of a
request for a change, he was allocated a new lock-up at 31 Drygate.
[5]
Mr Saunders said that around 7:40
or 7:50pm on 4 May 1999 he was
standing at the top of the stairs facing the shops. He was in the corner between the bollards and
the flower bed, which meant that he was opposite the top of the stairs. He and his wife were waiting for a taxi in
order to go out for a meal. He saw
Agnes Wilson, the pursuer, walking down the hill and nodded to her. He stepped back to let her pass. She then went down the stairs. By this time Mr Saunders was facing
towards the steps and he heard the pursuer scream. She had fallen at the bottom of the stairs. He had a good view down the stairs. The pursuer was near enough the bottom of the
stairs when she fell and started screaming.
He could not say precisely which step she had fallen on but she was near
the bottom when she took the tumble. She
was in the area of the third step from the bottom. He said that she definitely did not trip and
tumble down the stairs from top to bottom.
He described her as having fallen from right to left, forward and to the
left hand side. She was lying on the
ground screaming and there was blood coming from the left hand side of her
head. His wife and a young woman who had
come on the scene went down to where the pursuer was. Two men came from the bottom. The pursuer was on her hands and knees and
started crawling up the stairs. She may
have been helped up and she got near to the top. He himself went down and came back up. Around
this time the Saunders' taxi arrived and they left. When Mr Saunders last saw the pursuer
she was at the top of the stairs leaning against the wall.
[6] Mr Saunders
said that he did not know the pursuer beyond knowing her by sight as someone
who came into the flats and to whom he nodded.
He said that after the accident he had been mistaken for the husband of
the pursuer and people had asked him how his wife was. He did not know the pursuer's husband but two
or three weeks after the accident he found out where the Wilsons'
flat was and he called to see how the pursuer was keeping. He told the pursuer's husband that he had
been there when the pursuer fell down the stairs. He also told the pursuer's husband that he
himself had reported the state of disrepair of these stairs a couple of years
before. He gave them his name and
address.
[7] Sometime
later the pursuer came to his door and asked him if he would be a witness in
her claim. She asked him if he would
mind if she gave her solicitor his name and address and he agreed. He had subsequently made a statement to the
solicitor, he thought in 2000.
[8] Maureen Saunders
was aged 60 years at the time of the proof. She explained that in May 1999 she was
living separately from her husband but because he had a friend coming from Canada
she was joining them for a meal. She met
Mr Saunders at his house and they went down to get a taxi. She met a woman called Betty and her daughter
to whom she spoke. She saw the pursuer,
whom she did not know at the time, walking past them to go to the stairs. The pursuer nodded to Mr Saunders and
the other woman. She went down the
stairs. At this time Mrs Saunders,
who had been facing the top of the stairs, turned away and continued to talk to
the other woman. When she looked round
again she saw that the pursuer had fallen on to the bottom part of the
stairs. She was unable to say
whereabouts on the stairs she had fallen but it was not from the top. She landed at the bottom. Mrs Saunders went down the stairs and
the pursuer was lying on the ground beyond the bottom step. She was not answering properly. There was blood on her head. The pursuer was shouting for her husband, she
was trying to get up all the time and people were telling her to stay where she
was. She was determined to get up. While the pursuer was not totally
unconscious, she did not seem fully aware.
Her eyes were rolling. As the
Saunders got into their taxi, the pursuer was coming up the stairs with help.
[9] David Lees
came on the scene after the pursuer's accident and saw her propped up against
the wall at the top of the stairs. He
was unable to give any further assistance on the accident.
[10] Dennis Wilson was the husband of the pursuer. About ten minutes or so after the pursuer had
left to go to work he received a phone call advising him that she had had an
accident. He went down and found her
sitting on the ground at the kerb of the flower bed at the start of the
railings with two or three other people.
She was injured. She was moaning
about her shoulder.
[11] The evidence of the pursuer and Mr and Mrs Saunders
requires to be examined in the light of a number of contradictory pieces of
evidence as to where the pursuer fell.
It is necessary to examine a number of productions in order to see what
light they cast on the circumstances in which the accident occurred. Production 7/1 page 204 is a copy
of the Scottish Ambulance Service report form for Agnes Wilson. It is recorded that the call was received at
1958 hours on 4 May 1999
and that treatment commenced at 2008 hours. The ambulance left the scene at
2020 hours. It is recorded that the
pursuer was alert and was not knocked out.
She had sustained a head injury.
Her pupils were reacting and she was recorded as scoring 15 on the
Glasgow Coma Scale, which is the maximum score.
Under the heading "comments" the following is noted: "Patient tripped on slabs causing her to fall
and sustain injury to L arm and large haematoma to L frontal area of head. Not K.O.d."
Richard Doyle, who was the paramedic who attended, gave
evidence. He said that from the form he
was able to say that when they attended the patient was fully alert and was not
knocked out. The information under the
comments section would have been received either from the patient or somebody
who was with the patient. He was unable
to say which. The patient would normally
be the first source of information. In
cross-examination he agreed that the fact that the pupil was responding
normally did not exclude head injury. He
said that his primary focus would be on the injured party and if she was unable
to give information his colleague would seek to obtain information from other
persons at the scene. In evidence the
pursuer said that she did not recall speaking to the ambulance crew.
[12] The next document of significance is the record from the
Glasgow Royal Infirmary Accident and Emergency Department (production 7/1
page 88). Under the heading
"initial assessment" the following is recorded "fell going up stairs - put L
hand out to save herself. Pain elbow to
shoulder. Hit head off kerb, graze and
haematoma L eye. Zero loss of
consciousness. GCS 15. No neck pain but collared by ambulance
crew." Audrey Wood who completed
that entry gave evidence. She was a
sister in accident and emergency with eighteen years service. From her notes she was able to say that the
ambulance crew would have given her a briefing in the form of an oral
handover. She said that she would take a
history from the patient and that it was important that the patient gave the
history herself.
[13] In the clinical notes of the Accident and Emergency Department
notes the first entry is by Dr Allison who saw the pursuer at 9pm and noted that she had "tripped up
stairs". On 5 May 1999 there is an entry by Dr Britliff
recording that the patient had no headache/nausea/vomiting and had a clear
recall of events.
[14] With respect to the entries "fell going up stairs" and "tripped
up stairs" the pursuer said that she did not know who had given that
information. It might have been herself
because she was not sure exactly where she had fallen. However, as she was going to work at the time
she would have been going downstairs and would have had no reason to go back up
again.
[15] The pursuer was discharged from the Glasgow Royal Infirmary on 6 May 1999 and in the discharge
letter Ms J McMillan, Specialist Registrar, stated, "This lady was
admitted as an emergency under the care of Mr Kinninmonth after a fall
going up stairs when she sustained a fracture of her left neck humerus and a
closed head injury."
[16] The pursuer returned to the Accident and Emergency Department
of Glasgow Royal Infirmary on 10 May
1999 where it is noted that she "fell over on 4 May 1999." She was suffering from headache and feeling
dizzy. She was detained overnight for
observations. In the notes of 11 May 1999 it is noted by
Dr Allison that the pursuer was admitted on 4 May 1999 "following head injury in fall LOC for
few seconds."
[17] The next document of interest is a letter (production 7/1
page 134) from the West of Scotland Regional Epilepsy Service Institute of
Neurological Sciences at the Southern General Hospital, Glasgow, dated
1 November 1999 when the pursuer was seen by a consultant neurologist who
noted that in "May of this year she tripped over a paving stone and fell."
[18] On 24 June 1999 solicitors Quinn, Martin and Langan wrote
on behalf of the pursuer to Glasgow City Council (production 7/17) stating
the following:
"We would advise
that with regard to the circumstances of the accident that our client caught
her foot on the pavement as she was walking along the pavement, the pavement
was very uneven and she was thrown off balance.
She cannot remember much thereafter but remembers when she awakened that
she was in a great deal of pain. She
noticed when she awakened that she was beside a wall and believes that when
falling she may have come into contact with the wall."
When the terms of this letter were
put to the pursuer she said that she did not have a lot of memory of the
accident herself. She may have given
that account to the solicitor. She said
that she may have thought that that was how she had fallen until she was told
otherwise. Later she found out that
there were witnesses.
[19] The next document is a Glasgow City Council Incident Report
Form (production 7/6) apparently completed and signed by the pursuer and
dated 9 August 1999. In it she gave the following description of
how the incident occurred:
"I was on my way
to my employment at Gartnavel Royal
Hospital. I caught my foot on uneven pavement and
fell."
The names Tracey Thompson and
James Saunders are given as witnesses.
The pursuer said that the text was not in her handwriting although she
had signed the form.
[20] The next document is the occupational health service record
(production 6/10) for the pursuer.
There is an entry dated 16/12/99
in the following terms:
"Phoned SNM Anne Marie McGill
asking for update on above member of staff (Agnes C. Wilson). Had bad fall (fell down stairs) - awaiting
serious of investigation/results [sic]. SNHK in touch and will refer to OHS when
necessary."
[21] The next document is a letter from K Egbujo, housing
officer, to the claims assistant in the court section of Glasgow City Council
dated 22 December 1999
(production 7/20). It is in the
following terms:
"With reference
to your memorandum of 6 December 1999 concerning the above named, I would
advise that on Monday, 20 December 1999 I met with Mrs Wilson
(accompanied by her brother) at 36 Drygate, in order to ascertain the exact
locus of the accident as it was unclear from the photographs which I received
from your office on 17 December 1999.
Mrs Wilson
showed me the area but was unsure of the exact location where she sustained the
accident.
I confirm that
on inspection by myself and Mr James Neil, the local concierge
officer, there was no damage to the surface area/pavement other than the small
section circled (by me) in the enclosed photograph. I have on 21 December 1999 raised a report for those grounds
to be reinstated. I must point out that
there is no indication of when and how this small section of ground was
damaged."
In relation to this meeting the
pursuer said that she did go to the site with the Housing Officer, Ms Egbujo. She said that she had pointed out the general
area where she fell. She said that she
had been unable to be specific as to where she had fallen.
There is a further entry dated 9 February 2000 in the
Occupational Health Service continuation sheet in relation to the pursuer. The entry begins "May 1999 fell over
flagstone and KO'd four minutes."
[22] On 2 March 2001
Quinn, Martin and Langan wrote to Glasgow City Council in the following terms:
"We refer to
previous correspondence in connection with the above and write to advise you
that we have now carried out further inquiries as a result of which we are able
to specify the circumstances surrounding our client's accident more fully.
It would appear
that on 4 May 1999 our client was seen by witnesses on the staircase that
leads from the Drygate down to the lock-ups both by James Saunders and by
Tracey Thompson falling at the loose steps which James Saunders had
previous complained to David Kelly the housing officer for Drygate on
various occasions in the two years prior to the accident.
Mr Saunders
is fairly clear in his statement to us that our client fell on the second level
of steps down near enough the third or fourth step from the bottom of this
level which coincides with the steps that he had been complaining about. We are advised that Tracey Thompson was
driving up the hill towards her house at 24 Drygate when she saw
Mrs Wilson falling at the locus stipulated.
We understand
that a number of persons there assisted our client who was in extreme pain and
that our client's husband came to her assistance and that our client was then
taken to hospital."
The pursuer said that she was not
sure when she had first told the solicitor that she had been told that she had
fallen on the stair. She thought that it
had been earlier than 2001.
[23] I found the evidence of both Mr and Mrs Saunders about the
circumstances of the pursuer's fall to be credible and reliable evidence. They scarcely knew the pursuer and had no
reason to make up a story for her. At
the time of the accident they were separated from each other. The description of the direction of the fall
given by Mr Saunders is consistent with the injuries which were sustained
to the pursuer's left side. It is
unfortunate that they had left the scene before the ambulance arrived. The result was that no one who had witnessed
the fall was present when the ambulance arrived and an inaccurate account of
what happened was introduced and recorded at a very early stage. This was reinforced in later entries. When the ambulance arrived the pursuer was at
the top of the stairs in a very distressed state and considerable pain. She may have suffered brief loss of
consciousness. She may have suffered
some loss of memory. There is reference
to that in a letter dated 2 November
2000 written by Mr Kinnimouth, Consultant Orthopaedic Surgeon
who noted that the pursuer had suffered a head injury which had given her some
memory problems (production 7/1 page 153). I found the pursuer to be a confused and
nervous witness. I conclude that someone
else gave the ambulance crew the account of what happened. I note that in the Accident and Emergency
Department reference is made to the stairs.
I conclude that the reference to "upstairs" arose out of confused
information given by the pursuer to Audrey Watt. The medical staff who dealt with the pursuer
would be more concerned with her treatment than with the precise mechanism of
her fall.
[24] Although in her evidence Ms Egbujo's position was that the
pursuer was adamant that she had fallen on the paving stones at the top of the
stairway, I accept the evidence of the pursuer that she could only describe the
general area where she fell. The terms
of Ms Egbujo's note of the meeting tends to confirm that: "Mrs Wilson showed me the area but was
unsure of the exact location where she
sustained the accident."
[25] The initial account of the accident presented by the pursuer's
solicitors on her instructions is completely different from that pled on
record. It was not until 2001 that the
version pled on record was intimated to the defenders. While this is unfortunate I do not conclude
that it fatally undermines the pursuer's case.
I conclude that for some reason the Saunders' account did not come to
the attention of the solicitors until much later than the initial intimation of
the claim, which must have been based on the pursuer's own confused account of
how she fell.
[26] Accordingly, despite the conflicting entries in the various
documents noted above, which can in my view be explained by the pursuer's
confusion as to what happened to her, on the basis of the evidence which I do
accept, I am prepared to hold on a balance of probabilities that the pursuer
fell on the bottom flight of the stairs.
Did
pursuer fall on a loose step?
[27] The Pursuer said that she
was aware that half-way up the stairs, in the middle flight of steps, there
were one or two steps which moved when you stepped on them and gave a
"jerk". The stairs were moving; the step
was wobbly. She said that sometimes one
could lose one's balance. She said that
one would need to be careful. She said that the step was still like that at the
date of the proof.
[28] Dennis Wilson, the husband of the pursuer, said that he
used the stairs as little as possible because of the state of the stairs. He described there being a hollow or "wobbly"
sound in certain of the stairs in the bottom flight. From the bottom one, two, three or four up
there was a loose one and he also described three steps up the middle flight as
being loose. He said that sometime after
the accident, two or three years after the accident someone had said that they
had repaired the stairs. When he went
down it did not look a great job and they still did not look solid. They might have been better but there was
still movement. Before the accident he
knew that there was movement. He always
noticed it and went down the steps carefully.
He took his time and held the handrail.
[29] When it was put to him in cross-examination that there was
nothing wrong with the stairs at the time of the accident Mr Wilson said
that there was something wrong. There
was a wobble. The steps made a noise
when a person walked on them. The steps
moved and there was a difference between a step that moved and one that did not
move. He compared it to putting
something on a wee stone. The movement
was not as much as two to three inches (as was suggested by Mr Saunders); it was perhaps an inch, more or less. He said that if you went down carefully at a
moderate pace you could avoid an accident.
[30] Alexander Christie was the brother of the pursuer. He also lived in the flats at the
Drygate. He had attended at the hospital
but was not told any details about the accident. He said that later the pursuer could not
remember what had happened. He attended
the meeting at the site with Mrs Wilson and Ms Egbujo, the Housing
Officer. They were looking at the paved
area near the wall. He recalled thinking
to himself that, given the injuries which she had sustained, it was unlikely
that the pursuer had tripped over a paving slab.
[31] Later, although he was not able to say when, his sister told
him that she had been told that she had fallen on the steps. He then went and walked up and down the
stairs. There was movement on the
stairs. There was movement in the bottom
flight on the left hand side and in the middle flight. He described them as not being safe to walk
on and anything could happen. He
described the bottom flight as having movement on the left hand side near the
gable wall. He said that the cement had
come out and had caused a movement in the slabs. The steps should have been tighter against
the wall from the beginning. They could
move a good half inch. He referred to
the photographs in 16/2 and 16/4 and 16/5 of production 7/16. As it happened, Mr Christie was employed
in roofing and slating and did work including plastering, granite work and
chimney heads. He therefore had some
relevant experience. He himself would
have put a piece of slate underneath and made up a mixture of granite, sand,
cement and "polybond". He said that sand
and cement on its own would not be enough.
It would continue to move until something was done right.
[32] David Lees said that he had used the stairs all the time
and thought that there were one or two slack steps. He described it as feeling a slight movement.
[33] Mr Saunders said that the stairs had always been bad and
were always wobbly. Nothing was done
during the period when he had the lock-up below. He said that going down the stairs there was
a wobble from right to left. He described
the steps at the bottom as being "real bad".
He said that you had to watch or you would lose your balance and
fall. He said that the wobbly steps in
1999 were in the bottom flight of steps, he thought about the third or fourth
steps and there were three steps wobbling.
He said that if one stood on the step it would go over by two to three
inches to the left hand side. He said
that they had been in that condition between 1996 and 1999. He said that he had reported the steps in
1995 or 1996. He reported the matter to
the concierge who explained to him that they were responsible for the flats and
anything outwith the flats was the responsibility of the Council to whom he
should report the faults. He reported
the faulty steps to David Kelly who was the housing officer. Mr Saunders telephoned
David Kelly. Mr Kelly came to
the house and Mr Saunders took him down and showed him the loose steps
towards the bottom of the stairway. He
was accompanied by Adam Smith. When
he showed the steps to Mr Kelly he laughed and said that there was no
money for house improvements never mind improvements on the stairs. Mr Saunders was concerned because he
suffered from osteoporosis. He asked
David Kelly for a change of lock-up and received one after six to nine
months. He said that he wanted away in
case he fell on the stairs.
[34] When he was asked if anything was done to repair the steps he
said that one day he saw a truck and two workmen with a bucket of sand and
cement. They threw it near the steps and
brushed it. They used a watering can and
put water on top of the sand and cement.
The workmen had said "this is one of the tricks of the trade". He thought that this was in 1996 or 1997,
sometime after the visit of David Kelly.
[35] Adam Smith had been a friend of Mr Saunders for forty
years. Around 1996 or 1997 he had gone
to the house of Mr Saunders as they had arranged to go and see a sick
friend. While he was there a man from
the District Council came to the door.
The man had a piece of paper which was something to do with a fire
alarm. Mr Saunders and the man had
a discussion and then the three of them left the house together. On the way to get Mr Saunders' car they
went down a flight of steps. There were
three very badly dislodged steps on the stairs and Mr Saunders pointed
these out to the Council Officer. He
said that it was an accident waiting to happen.
He said that he had tripped himself a few times. Mr Saunders had heart problems and
brittle bone disease. The Council
Officer had said something along the lines of "leave it with me. I'll see to it. I'll get it fixed". Mr Saunders said that he wanted a change
of lock-up so that he did not have to go down these stairs. Mr Smith described the stairs as wobbly
and loose.
[36] By the time of the proof, David Kelly was a self-employed
shop keeper in the take-away food business.
Formerly, he had been employed by Glasgow City Council for fourteen
years until he left in December 1996.
He was employed as a Housing Officer and his duties were to manage the
housing stock; move people; check voids and generally manage the
estate. His area of responsibility
covered the Drygate. He was occasionally
involved in repairs if someone reported a fault to him. Once per month there was a walkabout with the
Tenants' Association and representatives of the City Building Department and
possibly caretakers. In
cross-examination he said that the arrangements for repairs were that they
responded to reports and whatever was come across in the course of the
walkabout inspections.
[37] Mr Kelly did not recall any complaints about stairs. He was not aware of the name
James Saunders. He did not recall
any visit to Mr Saunders' house. He
did not recall going down the stairs with Mr Saunders. He explained that it was a long time
ago. If Mr Saunders took him on his
own to the stairs he should have gone back to the office and picked up a line
to report the fault, in which case there would be a paper trail. He did recall vaguely smoke alarms being
installed in 1995. When it was put to
him that he had laughed and made the remark about the shortage of money, he
said that it did not sound like him. He
said that he was aware of a period in the 1990s where there was a financial
freeze and they were not spending money on repairs. There was no money to do internal repairs in
houses. He thought that it was unlikely
that he would have made the remark in relation to a dangerous fault. He agreed that he could have been busy at the
end of his employment. It was possible
that there was no line due to an oversight.
[38] In re-examination when he was asked whether if a complaint was
put in the practice was to put a line in he said that it depended because there
were various ways in which a complaint could be made. There was so many different ways. He said that if the complaint came to him the
chances would be that he would put something through. In relation to the money freeze he said that
it should not have had an effect on repairs to the stairs, but added, "Who can
say?"
[39] In 1999 Kathie Egbujo was the Housing Officer responsible
for the Drygate. She succeeded David
Kelly. Her responsibilities included the
environment in the areas outwith the houses.
She said that there were no complaints ever made by anyone in relation
to the steps. She said that she could
say that with confidence because she had trawled through the system and there
were no complaints in a number of years.
If there had been a complaint it would have been recorded. She was in the area just about every
day. She referred to the monthly
walkabouts involving the housing officer, residents, sometimes the police and
sometimes the Roads Department and members of the Council in the course of
which they looked for any problems. In
addition she herself would do daily walkabouts.
She said that she used these stairs many times as it was a route in
getting from one part of Drygate to another.
She never saw any problems with the stairs. Where problems were discovered she would get
the relevant department to deal with it.
Stairs would be the responsibility of the Roads Department or Building
and Works Department. She said that
because the tenants in Drygate were predominantly elderly people who had lived
there for a long time, they were quite demanding and wanted things dealt
with. The tenants group never complained
about the state of the stairs.
[40] Following the accident to the pursuer Ms Ebujo met her in
order to inspect the place where the accident occurred. She had a site meeting on 20 December 1999. The purpose of the meeting was to establish
exactly where the incident had happened;
to clarify with the pursuer what had happened and to point out any
defect in the ground within that area in order that it could be resolved. She was accompanied by the pursuer, the
pursuer's brother and one of the concierges.
Upon Production 7/25 the witness circled the area where the pursuer
said she had fallen. She said that she
believed that she had tripped in that area.
If she fell there she would not have fallen down the stairs. There was a possible hazard there. There was slight uneven bit of ground. The stairs were not mentioned at all at that
stage. Accordingly the witness did not
inspect the stairs.
[41] She was referred to production 7/22 which is dated 31 July 2001 and said that this
was the first time that the stairs had been raised as an issue so far as she
was concerned. At that stage she went
and looked at the steps. She spoke to
the pursuer who said that she had possibly fallen on the second step from the
bottom. There were no loose steps at the
bottom. She checked the steps which were
not hazardous in any way. There was a
slight movement in the middle section and she raised a repair line to have that
repaired just in case. Her further
report was Production 7/23, dated 14 August
2001. She agreed in
cross-examination that she had not mentioned the slab in her letter dated 22 December 1999 (Production 7/20). She said that she clearly remembered the
pursuer saying that she had fallen in this area at the top of the stairs and
showed the witness the area where the slab was.
She agreed that when she said that there were no complaints about the
stairs that meant that there were no recorded complaints, no line had been raised
and no job request made.
[42] Owen O'Malley was a concierge employed by the City
Council. He recalled that there was one
wobbly step that moved if you stood on it.
He said that that was reported but was not sure how it was
reported. So far as repairs were
concerned he thought they had been re-cemented.
The concierges were not told when work was being done. He further described the wobble as a
"forward/back" movement. If the person
did not know it was there the person would get a fright and could lose their
footing. The stairs were never sealed
off to prevent people from going down.
In cross-examination he was unable to say whether the wobbly step that
he described was before or after 1999.
In re-examination he said that the crumbling cement in the photographs
was similar to what it was like in 1999.
[43] Having reviewed the evidence in relation to loose steps on the
stairs I find it proved that at the time of the pursuer's accident there were
loose steps in the bottom flight of the stairway. In particular I have regard to the body of evidence
given by Mr Wilson, Mr Christie, Mr Lees, Mr Saunders and
Mr Smith. Taken together, it seems
to me that it is established that there were loose steps in the bottom flight
at the material time. While I consider
that Mr Saunders' estimate of a movement of two to three inches of
movement is an over-estimate, there is ample evidence of movement sufficient to
create an obvious hazard for persons using the stairs.
[44] In relation to the evidence of Ms Ebujo it is, of course,
unfortunate that she was misled at the site meeting as to the area where the
fall occurred and consequently did not examine the steps in December 1999. To the extent that her evidence differs from
that of the other witnesses I am inclined to rely on the body of evidence
provided by them. She seemed to me to be
somewhat over confident in her assertion that there were no faults in the
stairs. I noted that despite her
assertion that the pursuer had been adamant that the fall had occurred at a
particular spot, that evidence was not consistent with what she recorded in her
memo at the time, as noted above. In
addition, in her evidence Ms Ebujo stated that the circle which she marked
on the photograph indicated the spot where the pursuer claimed to have fallen,
whereas in her report of the meeting (production 7/20) she recorded that
the circle represented the damaged area noted by herself.
[45] As already indicated, I am satisfied on the evidence that the
pursuer fell on the bottom flight of steps.
I am satisfied that at the time there were loose steps, or at least one
loose step, in the bottom flight. Taking
into account all the evidence, including the evidence of Mr Saunders as to
the effect of the fault being a movement from right to left, his description of
the pursuer falling to her left and the concentration of her injuries being on
the left hand side of her body, I infer that the pursuer fell on a loose step
in the bottom flight of steps and am satisfied on a balance of probabilities
that she did so. I note that no other
reason, apart from a defective step, emerged in the evidence to explain why she
fell.
Whether
the defenders knew or ought to have known of the defect
[46] I accept the evidence from
Mr Saunders and Mr Smith that Mr Saunders did draw to the
attention of Mr Kelly that there were loose steps on the stairs in the
bottom flight. The meeting took place
about the end of 1995. Not surprisingly,
Mr Kelly was unable to remember the meeting at such a long remove. The remark attributed to him by Mr Saunders
has a ring of truth, particularly in the light of Mr Kelly's own evidence
that there was a period when there was no money for repairs. For whatever reason it appears that Mr Kelly
failed to report the fault and no paper trail reflecting a repair exists.
[47] In my opinion the condition of the steps in the bottom flight
as described in the evidence constituted an obvious hazard to persons using the
stairway. Although I considered Mr Saunders'
estimate of movement of 2 - 3 inches to be an over-estimate, the totality of the
evidence in relation to the condition of the steps allows me to infer that they
did constitute an obvious hazard which arose from a state of disrepair which
had existed for some time.
[48] I accept that the defenders did have in place a system of
inspection, which if operated properly would have satisfied their admitted
obligations in relation to the areas outside the houses such as the
stairway. It seems to me that there were
weaknesses in the system for reporting faults.
There seemed to be many ways in which a fault could be reported and
there did not seem to be any adequate system for checking whether a repair had
been carried out. I conclude that the
loose steps on the stairway ought to have been picked up in the course of the
inspections.
[49] In these circumstances I am satisfied that the defenders knew
or ought to have known that there was a defect which constituted a hazard to
persons using the stairway and it was reasonably foreseeable that a person
using the stairs, such as the pursuer, would fall and sustain injuries. I am satisfied that the pursuer has succeeded
in proving the liability of the defenders.
Contributory
negligence
[50] Mr Hofford submitted
that if, contrary to his primary submission, I found liability established, the
pursuer had failed to take reasonable care of her own safety and that failure
had materially contributed to the accident.
Accordingly, I should make a reduction under the Law Reform (Contributory
Negligence) Act 1945 section 1.
Miss Smart submitted that the question of contributory negligence
had not been put to the pursuer. Nor had
it been suggested to the pursuer how it was possible to go down the stairs
without standing on a step and causing it to wobble.
[51] In the light of the pursuer's complete inability to give
evidence as to how she fell, criticism of failure to put contributory
negligence to her in terms seems to me to be a somewhat technical approach and
I reject it. It seems to me that I
should approach the question of contributory negligence by looking at the
evidence as a whole and decide whether the plea of contributory negligence is
made out. As noted above the pursuer
herself was aware that there were hazardous steps on the stairs although she
thought that they were in the middle flight.
She spoke of the need to be careful or one could lose one's
balance. Her husband said that he always
went down the steps carefully, took his time and held the handrail. That approach seemed to me to be reflected in
the evidence of other witnesses.
[52] I conclude that a person such as the pursuer using these stairs
did require to take reasonable care of her own safety. I am satisfied that some reduction should be
made for contributory negligence. Mr Hofford
contended that I should allow 50%.
I consider that that percentage is too high and that the appropriate
figure is 25%.
Decision
[53] In the joint minute it was
agreed that the quantum of damages on
full liability, including interest to 20 March
2007 was agreed in the sum of ฃ145,000. For the reasons set out above I shall sustain
the pursuer's first plea-in-law and the defenders' fifth plea-in-law and
pronounce decree in the sum agreed less 25% for contributory negligence.
