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OUTER HOUSE, COURT OF SESSION
[2008] CSOH NUMBER8
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PD2254/06
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OPINION OF LORD BRACADALE
in the cause
WILLIAM LEES
Pursuer;
against
NORTH
LANARKSHIRE COUNCIL
Defender:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
D I Mackay, QC; R Milligan; Bonnar & Company
Defenders: Marney;
Ledingham Chalmers, LLP
16
January 2008
Introduction
[1] The pursuer raised an action for damages against the defenders
for injuries which he sustained as a result of falling on a footpath, for the
maintenance of which the defenders were responsible. Proof proceeded before me
on the question of liability only. I was
advised that, if the defenders were found liable, a proof on quantum would be
required.
[2] At the time of his accident the pursuer lived with his wife at
12 Blairholm Drive,
Bellshill, Lanarkshire. On
Sunday13 February 2005 he
sustained an injury to his ankle when he fell on the footpath in Blairholm
Drive. It
is not in dispute that the pursuer, who was a bus driver, had a day off work
and shortly before 9 o'clock left
his house to go and buy items from a nearby shop. In his pleadings the pursuer
avers that:
"He realised
that he had forgotten something and retraced his steps. As he reached the area of pavement about 20
feet from his house, he fell in a heavily deteriorated area of pavement,
suffering the injuries later described.
He lost his footing in a hole at the edge of the pavement. He did not slip on ice. The pavement was not icy. At the accident locus the paving surface had deteriorated, causing the level of the
pavement to subside to substantially below the kerb."
The issues
[3] The issues which were focussed in the proof were: whether the
pursuer fell due to a defect in the footpath; whether at the date of the
accident there was a defect present which amounted to a hazard to safety; if
there was such a defect whether the defenders' system of inspection should have
identified and remedied the defect in time to prevent the accident; and, if I
found the defenders liable, whether there was contributory negligence.
Whether the pursuer fell due to a
defect in the footpath
[4]
In evidence the pursuer said
that when he left his house, it was a cold, dampish day but it was bright and
sunny. He was wearing trainers. He walked some distance along the pavement
from his house when he realised that he had forgotten his money. He turned to go back to the house and
fell. He said that he fell because at
this point on the footpath the kerb was higher than the path by 3-4
inches. The tarmacadam surface of the
path was worn away leaving a gravel surface.
He would not have fallen if the path had been level tarmacadam. He said that the condition of the footpath
where he fell was exactly as seen in photograph 13 of
Production 6/14, which had been taken in April 2005.
[5]
In cross-examination he described in more detail how he fell. He said that he had turned and started
walking back when he fell. After taking
about one step he put his foot on the kerb such that the edge of his foot was
on the edge of the kerb and he went over onto the pavement.
[6] After the accident the pursuer crawled to the gate of his
house where he was met by his wife and a neighbour, Elizabeth McDermott, who
said that she had seen him falling. Mrs
Lees called for an ambulance.
[7] Mrs Elizabeth McDermott gave evidence. She said that she was a neighbour who had
lived at 53 Blairholm Drive
for 17 years. She knew the pursuer and
his wife, as she put it, "to say hello to".
She herself was going to the shop and at the corner she saw the pursuer
walking towards the corner on the opposite side of Blairholm
Drive. He
turned, took a few steps and fell. She
said that he tripped and described how his ankle had gone from under him. Under reference to the photographs she
described the area where the pursuer had fallen as being between the graffiti
and the opening of the driveway. She
described the condition of the pavement in that area as being in a bad state
with loose material.
[8] Elizabeth Lees was the wife of the pursuer and worked as a
cashier in Morrisons. She described how
her husband had left the house in the morning to go to the shop and from the
kitchen window she saw him on his hands and knees at the gate. She shouted at him to get up and he said that
he could not do so, and thought that he had broken his leg. He looked as if he was in agony. He was unable to pull himself up at the
gate. She was kneeling down beside him
in her pyjamas. Mrs McDermott told
her to phone an ambulance which she did.
[9] Mr MacKayMackay QC, who appeared on behalf of the
pursuer, invited me to accept the evidence of the pursuer and Mrs McDermott as
to the circumstances of the pursuer's fall.
[10] Mr MarleyMarney, on behalf of the defenders, submitted
that the pursuer had failed to prove the mechanism of his injury. Mr MarleyMarney attacked the
reliability of both these witnesses, and, to some extent, the credibility of
the pursuer. He suggested that the
pursuer was vague and imprecise in his description of the accident and had
given different accounts in the course of his evidence. Further , Mr MarleyMarney submitted that
the pursuer had given many different accounts in the course of his
pleadings. The original letter (Production
17/10) intimating the claim referred to "a trip". The summons referred to "a fall". Ultimately, the pleadings were amended to
refer to "lost footing".
[11] I formed the impression from the way that both the pursuer and
Mrs McDermott gave their evidence that each was endeavouring to tell the
truth. In relation to the first two
criticisms advanced by Mr MarleyMarney I noted that the pursuer had not been
asked in any great detail about the precise circumstances of the accident in
examination-in-chief and attempted to give more detail in
cross-examination. He seemed to me to be
a witness who had some difficulty in communication. As to the development of the pleadings, I am
not inclined to take too much from that.
That may simply reflect closer examination of pursuer as the case
developed and the refinement of pleadings by counsel.
[12] There was, however, a chapter of evidence which potentially
constituted a much more formidable threat to the credibility and reliability of
the pursuer, on which Mr MarleyMarney founded strongly. A considerable part of the proof was taken up
with evidence as to the weather conditions in Bellshill at the time of the
accident and whether the pursuer himself had on a number of occasions from a
point shortly after the accident, and thereafter, stated that he had slipped on
ice. If it was accepted that he had made
such statements they would constitute prior inconsistent statements when tested
against his evidence and would be likely to have a very significant effect on the
credibility and reliability of the pursuer.
It is, therefore, necessary to examine this chapter of evidence in
detail.
[13] The pursuer's evidence was that there was no ice or frost on the
ground at the time. He noticed this when
he crawled along to his gate. Mrs
McDermott said that there was no
indication of snow or ice. She herself
suffered from arthritis and took care not to go out when it was icy or
snowy. Had the weather been like that,
she would not have gone to the shop that morning. Elizabeth Lees did not think it was icy or
cold. She had been in her pyjamas and
did not feel the need to go in and put any more clothes on. It was a sunny day and she did not see any
frost on the lawn or on the footpath or on the fences and gate. She did accept in cross-examination that her
attention was directed to her husband after the fall and that she was not
interested in the weather at the time.
She accepted that it was possible that the temperature was at or about
freezing point.
[14] The defenders led the evidence of Iain Farquhar who was a highly
experienced retired meteorologist. He
prepared a report (Production 7/11) expressing an opinion as to the weather
conditions in Blairholm Drive
around 9 am in the morning of 13 February
2005. He did so under
reference to data available from weather stations at Motherwell (Strathclyde
Park) and Wishaw. He concluded that all roads and pavements out
in the open would have been generally wet, or at best, damp, with patches of
black ice. In evidence he said that it
would be likely that in Blairholm Drive
90% of the surface would have no black ice and 10% or less would have patches
of black ice. There would have been
stretches of road and pavement not affected by black ice. He said that there may not have been much
hoar frost on the lawns in front of the buildings and that he would not expect
to see frost on the vertical wooden fences.
It did not surprise him that the witnesses had not seen any sign of
frost or ice. It did not surprise him
that Mrs McDermott had not encountered any ice. People could walk in Blairholm
Drive that morning and not encounter black ice.
[15] Within minutes of the call to the ambulance service Robert
Cummings, a paramedic, arrived alone in a rapid response vehicle. He attended to the pursuer and, a few minutes
later, was joined by the ambulance crew, one of whom was David McDonald. On the patient report form completed by Mr
McDonald (Production 7/10) under the history section is recorded "fall, patient
slipped on ice, went over on left ankle".
[16] At hospital the pursuer was seen first by a Senior House Officer
in the Accident and Emergency Department and subsequently by a Senior House
Officer in orthopaedics. In the medical
notes Dr Scollon in Accident and Emergency recorded: "Slipped on ice this
morning and fell", while Dr Cooney in Orthopaedics noted: "Slipped on ice at 9am this morning". Similar descriptions are noted at various
points later in the medical notes.
[17] The initial position adopted by Mr MacDonald and each of the
doctors was that he would have received that information from the pursuer. However, it is necessary to have regard to
the whole of the evidence of each of them together with the evidence of the
pursuer, Mrs McDermott, Mrs Lees and Mr Cummings.
[18] The pursuer denied that he said that he had slipped on ice. When the ambulance arrived he was in a lot of
pain and was unable to carry on a normal conversation. He told the paramedic that he had gone over
his ankle and fallen. Mrs McDermott said
that when the paramedic arrived, he said to the pursuer "Did you slip on ice,
big man?" The pursuer was in pain and
she herself had said to the paramedic "There's no ice". She said that the ambulance crew had asked
the pursuer some questions and he had grunted.
She thought it was a grunt of pain and that he was not able to carry on
a coherent conversation. Mrs Lees also
said that when the paramedic came, he said "What's the matter big man, did you
slip on ice?". Her husband had said that
he did not know what happened. She never
heard him say that he slipped on ice.
She heard the paramedic say to the ambulance crew "He has broken his
leg. He slipped on ice." The pursuer himself was incoherent and was in
agony. She answered the questions about
his personal details for him.
[19] On his patient report form Robert Cummings recorded that the
patient had fallen and may have broken his ankle. He made no reference to the patient slipping
on ice. He could not recall the weather
conditions but he did know that it was cold.
Mr Cummings agreed that he could have said "Did you slip on the ice big
man?" and confirmed that it was probably the sort of thing that he would have
been likely to say. He said that he
would not have mentioned ice if there had not been ice. With reference to the entry in
Mr McDonald's report form, Mr Cummings said that he may well have
been the source of that information. He
said that he may well have said to the ambulance crew, "I think he slipped on
ice and maybe broken his ankle", or something along those lines.
[20] Mr MacDonald had no recollection of the event or the weather
conditions. According to the form he was
at the scene for 8-10 minutes and found that the patient was alert and not
confused. He had a full score on the Glasgow
Coma Scale. Mr MacDonald thought
that he had probably received the information about the patient slipping on the
ice from the patient himself. However,
he went on to state that potential sources of information about slipping on the
ice were the patient, Mr Cummings, or any witnesses or neighbours. He said that there would have been
interaction between himself and Mr Cumming. Normally, when the paramedic had arrived
before the ambulance the paramedic would give the ambulance technician a short
history of what had happened and it would be in accordance with practice if
Mr Cumming had told him that the pursuer had slipped on ice.
[21] Dr Derek Scollon, who treated the pursuer in the Accident
and Emergency Department at Monklands
Hospital, explained that when a
patient attended at Accident and Emergency the reception staff would get some
details about the patient and these would be entered into a computer. A card containing these details was printed
off and comprised part of the medical records (production 6/3). The doctor would then see the patient, take a
history from the patient and conduct an examination. He explained that taking a history was
important because it would indicate the areas of examination and give clues as
to any injury which may be underlying.
In Accident and Emergency the taking of the history was very focussed on
the complaint which had brought the patient in.
It was important to know how the patient came by the injury because that
might indicate other injuries about which no complaint may have been made. In the case of a fall the important thing was
to establish that the patient had not fallen from a height. The precise
mechanism of the fall, whether the patient had slipped, tripped or gone over
his ankle, did not matter for the purpose of his examination at that
stage.
[22] Dr Scollon had no recollection of examining the pursuer. From the notes he was able to say that he saw
the pursuer at 10am and gave him
morphine at 10.05am. The orthopaedic S.H.O. had given further morphine
at 11am. Dr Scollon noted "slipped on ice this morning
and fell. Injured left ankle. Unable to weight bear." He said that the source of the information
about slipping on ice would have been the patient. Occasionally, he would be forced to get information
from another source, such as a relative, or the ambulance crew, or their
patient report form. He would normally
note the source of that information. In
cross-examination he agreed that the pursuer would have been in great pain
which could affect the taking of the history.
He conceded that it was possible that his note was the product of a
combination of information from the patient himself that he had fallen and the
doctor's own observation from the ambulance report that the pursuer had slipped
on ice.
[23] Dr Alan Cooney was the senior house officer in orthopaedics who
accepted the referral of the pursuer from the Accident and Emergency
Department. He noted that the pursuer
"slipped on ice at 9.00am this
morning". He had no recollection of
compiling the notes in relation to the pursuer and required to rely on his
notes and normal practice. He would
write the notes as soon as he finished treating the patient. He, too, stressed the importance of taking an
accurate history from a patient in order to ascertain what had happened. There would be occasions when a patient
would be unable to give a history, and the history would require to be taken
from witnesses or documents which had accompanied the patient. If the information was taken from another
source he would routinely record that that is what had happened.
[24] He noted that the pursuer had been given morphine at 10.05 and
he himself gave a further dose of morphine which would make the pursuer drowsy
and sleepy, together with a painkiller which affected the memory. This was in order to allow him to manipulate
the ankle which would be an unpleasant experience. If he felt that morphine had affected the ability
of a patient to respond, he would normally note something along the lines of
"patient unable to give history under effect of morphine."
[25] In cross-examination Dr Cooney said that he would have received
a telephone call from the doctor in the accident and emergency, with whom he
would have discussed the case. He would
also have received the notes from that doctor which included the entry "slipped
on ice this morning and fell". He would
normally look at these notes before going to see the patient. He agreed that it would be difficult to take
an in-depth history from a patient who was in extreme pain. The accuracy of history would not matter in
this case in relation to his management of the patient. For the purposes of treatment, it would make little
difference if the pursuer had slipped on the ice or had tripped.
[26] There was no evidence as to how later entries in the medical
records referring to the pursuer slipping on ice came to be made. It is, however, noteworthy that the entry on
page 90 of the hospital records (Production 6/3) referring to slipping on
ice was made one month after the letter from the pursuer's solicitor to the
defenders intimating the claim was sent on 6 June 2005.
In that letter reference was made to pursuer having "tripped on a
deteriorated area of footway".
[27] In his evidence the pursuer denied telling the doctors that he
had slipped on ice. At the hospital he
was in a lot of pain and was not able to carry on a conversation. He
could not remember anything that had happened after he left the Accident and
Emergency Department.
[28] Elizabeth Lees said that she gave the details of the pursuer at
the reception desk in the Accident and Emergency Department. At this time the pursuer was on a trolley and
was incoherent. After giving details she
went to the waiting room before being called into the treatment room. A doctor and a nurse were with her husband
who had been given morphine and while she was there they gave him more
morphine. The morphine lifted the pain
but he was not lucid and unable to converse.
She put that down to the morphine.
After ten to fifteen minutes he was taken to the X-ray room and she
returned to the waiting room. Later, in
the afternoon, she saw him in the ward where he was heavily medicated and not
able to have a sensible conversation. It
was not until the following afternoon that he was able to converse.
[29] When I consider the whole of the evidence relating to the
attendance of the ambulance staff I infer that the first reference to slipping
on ice came from Mr Cummings. Both Mrs
MacDermott and Mrs Lees spoke to a remark made by him in which there was
reference to the pursuer slipping on ice.
He candidly accepted that it was the sort of thing that he would be
likely to say. Further, I infer that the
source of the entry referring to slipping on ice in the patient report form
completed by Mr MacDonald was Mr Cumming and not the pursuer. I accept the evidence of the pursuer,
supported by Mrs MacDermott and Mrs Lees, that the pursuer did not tell the
ambulance staff that he had slipped on ice.
The pursuer was clearly in considerable pain when he arrived at
hospital. The precise mechanism of the
fall was not, in the circumstances of this case, an important consideration for
the doctors. It seems to me that it may
well be the case that the entry in the ambulance patient report form found its
way into the medical records and was repeated in them on a number of occasions,
even after the letter of claim was sent to the defenders. When I have regard to the evidence as a
whole, I am not persuaded that the pursuer told the ambulance or medical staff
that he slipped on ice. Accordingly, I
do not consider that these entries constitute prior inconsistent statements and
that the attack on the credibility and reliability of the pursuer fails.
[30] I considered that Mrs MacDermott was a credible and reliable
witness who gave her evidence in a straightforward way. She said that the Lees had not tried to
influence her and that she was the sort of person who would not be easily
influenced. My impression of her would
tend to confirm that. She did not strike
me as the kind of person who would allow herself to be influenced to tailor her
evidence to fit a particular line. Her
evidence supported the evidence of the pursuer.
[31] I find on the balance of probabilities that the pursuer did fall
on that part of the footpath that had deteriorated such that the kerb was
higher than the surface of the path, the tarmacadam wearing surface having worn
away. I find that he fell due to a
defect in the footpath and would not have fallen but for that defect.
Whether there was a dangerous defect at the date of the accident and
whether the defenders' system of inspection should have remedied such a defect
[32] According to both Mrs MacDermott and Mrs Lees the footpath had
been in a bad state of disrepair for some time before the accident. Some weeks after the pursuer was released
from hospital Mrs Lees took photographs of the damaged area where the pursuer
indicated that he had fallen. In April
2005 John McBride who worked for the pursuer's solicitors took a number of
further photographs, guided by the pursuer.
In an effort to demonstrate the depth of the surface below the kerb he
had taken certain photographs showing a 10p piece and a ruler resting against
the kerb.
[33] Patrick McGowan, who was employed by the defenders as a roads
inspector, was called as a witness for the pursuer. He explained the way in which the defenders
carried out roads safety inspections. In
areas such as housing schemes driven inspections were used to examine the
carriageway and the footpath. The
inspectors drove in a van at about 20-25 mph and noted any defects. Sometimes it was not possible to see the
defects of the pavement because of parked cars.
They did not get out and walk in such areas. This type of inspection was carried out
annually. Mr McGowan carried out a
safety inspection of Blairholm Drive
on 23 January 2004. The next inspection should have been carried
out by at least 23 January 2005. In the event, it was not carried out until 24 March 2005. There was a further inspection on 6 April 2005. Mr McGowan was unable to give any explanation
as to why there had been no inspection by 23 January 2005.
[34] In June 2005, after the claim was intimated, Mr McGowan carried
out a further inspection in the course of which he walked along the pavement in
Blairholm Drive and found
an area of damaged footpath. The damage,
which was between Nos.2 and 14 Blairholm Drive,
was about half a metre to one metre wide.
The top surface wearing coat had worn away leaving an uneven surface at
a level below the kerb. He did not
measure the depth of the hazard but considered it to be a safety hazard. In addition, the loss of surface constituted
a danger and a hazard. Under reference
to the photographs taken in April he confirmed that they reflected what he had
seen in June. He noted that the defect
had not been seen during the inspections in March and April and conceded that
they should have been.
[35] Michael Duffy was led as an expert witness by the pursuer. He had a degree in civil engineering and was
a member of various relevant engineering bodies. He had considerable experience in the field
of highway maintenance and had been employed by Strathclyde Regional Council in
that department for 22 years. Under
reference to the Code of Practice for Maintenance Management (production 6/8)
and the defenders' Guidelines for Recording and Monitoring Road and Footways
Safety Inspections (production 6/17), Mr Duffy agreed with the evidence of
Mr McGowan that the defect in the photographs was a dangerous defect.
[36] In cross-examination Mr McGowan said that it was possible that
weather conditions and vehicles parked on the footpath could have caused the
surface to deteriorate between February and June. However, Mr Duffy's
evidence was that there would be no material difference in the state of the
footpath between 13 February and 12 April when the photographs were
taken. Although he accepted in cross-examination
that there were factors which would affect the rate of deterioration including:
the use by pedestrians of the footpath; vehicles driving onto and parking on
the footpath; and wintry weather conditions, he considered that it would take a
number of years to achieve such gross deterioration in the course of which the
wearing course had been removed completely and the base course had started to
deteriorate. He said that it was highly
likely that a danger present in April would have been present eight weeks
before. Further, he considered that the
defect would have been in a similar condition in January when the annual safety
inspection was due.
[37] Mr Duffy was critical of a drive-by inspection conducted at
20-25 mph which he considered to be an excessive speed to carry out a
realistic drive-by inspection. Such an
inspection should be conducted at no more than 10 mph. He also criticised the practice, admitted by
Mr McGowan, of ignoring what could not be seen because of parked cars. The purpose of the inspection was to find any
safety defects and a drive-by that drove past parked cars was inadequate. The inspector should either have stopped and
examined the footway or noted it with a view to returning and checking
later. He would have expected the
dangerous defect in Blairholm Drive
to have been identified in the course of a competently conducted drive-by
inspection. If a competently carried out
inspection had been held in January 2005 the dangerous defect would have been
identified.
[38] In relation to the breach of duty of care Mr MackayMackay submitted that
the evidence demonstrated that the defect was present in January and February
2005. He relied on the evidence of the
pursuer and Mrs McDermott, Mrs Lees, Mr Duffy and Mr McGowan. He submitted that on 13 February 2005 the surface of the footway
was in a dangerous condition and a competent inspection in January 2005 would
have identified the defect and led to a repair before 13 February. If there had been a level tarmac surface the
pursuer would not have fallen. A local
authority exercising reasonable care in January 2005 should have implemented
the safety policies regarding footpaths consistent with the Code of
Practice. If they had implemented their
own policy of inspections and if a competent inspection had been carried out in
January 2005 the accident would not have happened.
[39] Mr MarleyMarney suggested that Mr Duffy's
evidence should not be relied upon in relation to whether the dangerous defect
would have existed in January and February 2005. He submitted that the pursuer had failed to
prove that there was an actionable defect at the time when the inspection
should have been carried out or at the time of the accident.
[40] From my review of the evidence, I infer that a dangerous defect
did exist at the time of the accident and in January 2005 when an inspection
should have been carried out. It follows
that it must also have existed in March and April when further inspections were
carried out but failed to discover the defect.
I conclude that a competently carried out inspection would have detected
the defect and the defect would have been remedied in time to prevent the
accident. I conclude that the defect
amounted to a reasonably foreseeable hazard to safety. Since I have already found that the pursuer
fell due to the defect on the footpath, I find on a balance of probabilities
that he has proved that the defenders are liable.
Contributory negligence
[41] Both counsel recognised
that the question of contributory negligence was very much a matter for my
discretion and that not much assistance could be gained from other cases. Mr MarleyMarney submitted that if
I did hold that the pursuer had proved his case I should make an allowance of
75% for contributory negligence.
Mr MackayMackay submitted that there should be no
finding of contributory negligence but that if I did make a finding it should
not be greater than 20%.
[42] In my opinion Mr MarleyMarney was well founded in submitting that a
substantial element of contributory negligence should be allowed in this
case. As Mr MarleyMarney pointed out, the
pursuer had an obligation to take care of his own safety. The accident happened in the street in which
he lived, near his home. He was well
aware of the condition of the pavement and had walked along it many times. He could easily have walked around the
roughened area as there was plenty of room.
Taking a broad approach I consider that the appropriate figure for
contributory negligence is 40%.
[43] As I have found the defenders liable there will now require to
be a proof on quantum. I shall reserve
the question of expenses.
