Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 136
PD1705/08	OPINION OF LORD TYRE in the cause JANETTE MURPHY Pursuer; against EAST AYRSHIRE COUNCIL Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: Pilkington; Lefevre Litigation

Defender: M McGregor; Andersons LLP

17 August 2011

Introduction

[1] In this action the pursuer sues under authority conferred upon her by a power of attorney granted by her husband, James Stewart Murphy. She seeks reparation for loss and injury sustained by Mr Murphy as a consequence of an accident which occurred on 26 September 2005. Quantum of damages was agreed at £7,887 inclusive of interest to the date of proof. The proof which I heard was accordingly restricted to the question of liability. An alternative claim of contributory negligence was not insisted upon by the defenders.

[2] At the time of the accident with which this action is concerned, Mr Murphy (who did not give evidence) was aged 65 and suffered from various disabilities. His right leg had been amputated below the knee in 2003 and he required to use an electric wheelchair for mobility. He had suffered strokes in 1993 and 2005 which left him with dense right-sided hemiparesis and a very limited ability to communicate by speech. He had not, however, sustained any impairment of his mental capacity. On two days each week he attended the Muirkirk Day Centre, operated by the defenders, and had been doing so for about two or three years. On these occasions he was transported in his wheelchair to and from the day centre in a minibus owned and operated by Glaisnock Taxis, accompanied by day care workers who were employees of the defenders.

[3] The accident occurred as Mr Murphy was being driven home from the day centre during the afternoon of 26 September 2005. Five people were in the minibus at the time: the driver, Peter Cairney; two employees of the defenders, namely Julie Ward, a senior day care worker and Sharon Hume, a day care worker; and two wheelchair passengers, namely Mr Murphy and a Mrs Helen Dempster. As the minibus was being driven along Henderson Drive, Muirkirk, a short distance from Mr Murphy's house, a car emerged unexpectedly from a side road causing the minibus driver to brake sharply to a stop. Mr Murphy was ejected from his wheelchair as a consequence of the sharp braking manoeuvre and was found lying on the floor of the minibus. The day care workers, who had been sitting in the front seats of the minibus beside the driver, put Mr Murphy back into his wheelchair and he was taken home. As a consequence of the accident he suffered a right leg stump fracture, a laceration to his left ear, and general abrasions to his arms and legs.

Configuration of the minibus

[4] According to the evidence, which I accept, of Mr Philip Hartfield, the owner of Glaisnock Taxis, and of the driver, Mr Cairney, the minibus in which Mr Murphy was being transported was one of two identically configured vehicles owned by the company at that time. The seating consisted of a front row of three seats (including the driver's seat) and a second row of three forward-facing seats. All other seats had been removed to provide room for wheelchairs. Access to the vehicle for wheelchairs was by a tail lift. Inside the vehicle, each wheelchair was secured to the floor in a forward-facing position by three webbing attachments. Wheelchair passengers were themselves secured in place by conventional-style seat belts. When transporting more than one wheelchair passenger it was normal practice to position one of them further forward than the other in order to leave space to pass between them. The tasks of securing each wheelchair to the floor of the minibus and of fastening the seat belt of the wheelchair passenger were carried out by the minibus driver.

[5] In accepting the evidence of Mr Hartfield and Mr Cairney in this regard, it follows that I am rejecting contrary evidence of Mrs Dempster, the other wheelchair passenger in the minibus, who is registered blind and gave her evidence on commission prior to the proof. According to Mrs Dempster, who professed to have a memory "as clear as day" of the day of the accident, the minibus in which she and Mr Murphy were being transported home had no wheelchair clamp or seat belt available for Mr Murphy. She also claimed to have overheard a conversation between Ms Ward and Ms Hume agreeing that Mr Murphy would be taken in the minibus despite the absence of any wheelchair clamp or seat belt for him. This is not the only matter upon which Mrs Dempster's evidence differs sharply from that of witnesses who gave evidence in court. I did not have the benefit of being present when Mrs Dempster gave her evidence, but on this point at least I am bound to reject her evidence as unreliable. I see no reason to doubt the description given by Mr Hartfield and by Mr Cairney of the configuration of a minibus of which they were owner and driver respectively. There was also unchallenged evidence of Ms Ward and Mr Cairney that after the accident Mr Murphy's wheelchair remained secured to the minibus floor. If it is correct (as I find) that the minibus did have webbing and a seat belt for Mr Murphy's wheelchair, it follows that Mrs Dempster's evidence regarding the alleged conversation between the day care workers must also be rejected. It is fair to note that counsel for the pursuer did not suggest in his submissions that I should find in fact that no webbing or seat belt had been available in the vehicle for Mr Murphy.

The cause of the accident

[6] One matter which seems clear is that the injury to Mr Murphy occurred because he was not wearing a seat belt when Mr Cairney braked to avoid a collision. It has not been suggested that there was any defect in the seat belt provided in the minibus for Mr Murphy's use. It must, therefore, follow either that his seat belt was not fastened prior to commencement of the journey from the day centre to his home or that it was unfastened at some time during the journey. On the latter scenario, it is not suggested by the pursuer that the unfastening could have been done by anyone other than Mr Murphy himself.

[7] Counsel for the pursuer invited me to find in fact that the pursuer's seat belt had not been attached at the start of the journey. He invited me to accept the evidence of Mrs Dempster that Mr Murphy's seat belt had not been fastened during the return journey. He pointed out that Ms Ward stated that she did not see Mr Cairney fastening Mr Murphy's seat belt because she and Ms Hume had gone to lock up the day centre. Ms Hume's evidence that she recalled seeing Mr Cairney fastening the seat belt should therefore be rejected. Mr Cairney had said that he did fasten the seat belt but could not remember who, if anyone, was present while he did so.

[8] It is worth observing that all of the witnesses who gave evidence at the proof were led by the pursuer. Mr Cairney and Ms Hume were quite clear in their evidence in chief not only that Mr Cairney had secured Mr Murphy's wheelchair to the vehicle but also that he had fastened Mr Murphy's seat belt. Neither was challenged on this. I accept their evidence. It is entirely plausible that while the two day care workers were engaged in locking up the day centre, one saw Mr Cairney's belt being fastened while the other did not. Having rejected Mrs Dempster as unreliable on the availability of a clamp and seat belt for Mr Murphy, I have no real difficulty in rejecting her on whether or not the belt was fastened.

[9] I turn then to the pursuer's alternative factual case, namely that Mr Murphy unfastened his seat belt during the journey. Having rejected the only possible alternative explanation, I find as a matter of fact that this is what did happen, and I shall consider the submissions of parties on that basis. Before I do, it is necessary to narrate certain evidence relevant to the issue of foreseeability. A number of witnesses described previous occasions when, on arrival at his house, Mr Murphy was found to have unfastened his own seat belt. Ms Ward had noticed this on odd occasions and had spoken to him about it but could not say whether he had unfastened it before or at the time of arrival. In February 2005 she had prepared a risk assessment regarding Mr Murphy in which "service user loosening seat belt" had been identified as one of 18 potential hazards. Ms Hume had noticed once after the minibus had stopped at Mr Murphy's house that his belt was unfastened and had explained the risks to him. Mrs Connie Sykes, who prior to a promotion had job-shared with Ms Hume, was not aware of any occasion when Mr Murphy had unfastened his belt while travelling. Mr Cairney had noted occasions when he discovered on arrival at the day centre or home that Mr Murphy had unfastened his belt but did not know whether he had done it while travelling. Mr Hartfield, who had also transported Mr Murphy in the past, recalled at least two occasions when Mr Murphy had unfastened his belt as they approached his house. On those occasions he had stopped the minibus to allow the day care workers to re-fasten it.

Submissions for the pursuer

[10] I was invited by counsel for the pursuer to find that the witnesses employed by the defenders had downplayed the extent to which they were aware of Mr Murphy unfastening his seat belt while in transit. In Ms Ward's risk assessment she had identified this as a "possible" hazard whose potential severity was categorised as "fatal", which was not likely to be the case if the belt was only unfastened after the minibus had stopped. Ms Ward and Ms Hume, it was submitted, had also sought to downplay the extent of Mr Murphy's injuries and Ms Ward had further attempted to depart from her risk assessment regarding Mr Murphy's communication difficulties. I should accordingly not find these witnesses to have been credible. It was the defenders' duty to guard against risks and prevent exposure to risks of which they were or ought to have been aware. On the evidence, and with particular reference to the terms of Ms Ward's risk assessment, they were aware that there was a risk that Mr Murphy would unfasten his seat belt while in transit, and that this could have serious consequences. It was their duty to take reasonably practicable precautions to obviate the risk. It would have been reasonably practicable to monitor Mr Murphy by having a day care worker sitting in the back of the minibus to supervise him. Following the accident, the defenders had altered their practice and now at least one carer travels in the back. If this practice had been adopted previously, the accident would not have happened.

Submissions for the defenders

[11] On behalf of the defenders it was submitted, firstly, that the defenders' employees had been under no duty to monitor Mr Murphy during the journey in case he attempted to unfasten his seat belt. There was no evidence of Mr Murphy having a mental deficit or behavioural problems. As Ms Hume had observed in evidence, he was capable of making informed choices and decisions. The fact that the defenders' employees and others had in the past warned Mr Murphy of the risks of undoing his belt while travelling did not create a positive duty to monitor him thereafter, still less to attempt to prevent him from unfastening the belt if he chose to do so. The situation was no different from that of a passenger in a taxi whose driver is under no duty to monitor and enforce seat belt use by his passengers. Secondly, it was submitted that even if a duty to monitor Mr Murphy did exist, the pursuer had failed to prove that breach of it had caused the accident. There was no evidence as to when Mr Murphy unfastened his seat belt. If the duty was to carry out reasonable monitoring then it had not been proved that the unfastening would have been noticed prior to the accident. Even if the duty was so extreme as to require Mr Murphy's hands to be observed all of the time, the accident could still have occurred.

[12] I should add for the sake of completeness that in the pursuer's pleadings and initially in the submissions by counsel for the pursuer it was asserted that if the defenders' employees had positioned themselves in the rear of the minibus, the risk of injury to Mr Murphy due to falling from his wheelchair would have been "significantly reduced". Counsel for the defenders criticised this formulation as being insufficient in law to establish liability, under reference to certain well-known authorities including Fairchild v Glenhaven Funeral Services [2003] 1 AC 32. In response to this criticism, counsel for the pursuer sought to amend his formulation from "significantly reduced" to "avoided". This was not opposed and I allowed the amendment to be made. My opinion proceeds on the basis of this amended assertion.

Discussion

[13] I am not persuaded that any duty was incumbent upon the defenders' employees to monitor or supervise Mr Murphy during the journey in order to ensure that his seat belt remained fastened. Approaching the matter at a general level, I accept the defenders' submission that there was no positive duty incumbent upon their employees to monitor and if necessary enforce the wearing of a seat belt by persons of full age and capacity whom they were accompanying on journeys to and from the day centre. The general rule that the law does not normally impose liability for pure omissions was reaffirmed by the House of Lords in Mitchell v Glasgow City Council 2009 SC (HL) 22, under reference to earlier authorities including in particular Maloco v Littlewoods Organisation Ltd 1987 SC (HL) 37. As Lord Hope of Craighead observed in Mitchell at paragraph 15, foreseeability of harm is not of itself enough for the imposition of a duty of care. The law does not normally impose a duty on a person to protect others from harm which is not caused by his or her wrongful act. Something more, such as an assumption of responsibility, is required. In the present case I can identify no basis upon which the defenders assumed a legal responsibility for ensuring that Mr Murphy, a person of full age and capacity, did not travel with his seat belt unfastened. The fact that they and the minibus driver might do what they could to avoid it, such as stopping to re-fasten the belt if they became aware that Mr Murphy had undone it, or (as Ms Ward suggested in evidence) refusing to transport him if he refused to fasten his belt, did not in my opinion create a duty in law to supervise him during every journey or - taking the matter a stage further - to intervene against his will to fasten it.

[14] Even if I am wrong in my view that the defenders were under no general duty to supervise and enforce the wearing of a seat belt by a person of full age and capacity, I would not have been satisfied that a duty to monitor arose in the particular circumstances of the present case. There is very little clear evidence of Mr Murphy having previously unfastened his seat belt during his journeys as opposed to unfastening it on arrival at his destination. I have summarised the evidence on this matter above, and I accept each of the witnesses as credible and reliable in this regard. The only witness who spoke to having been aware of Mr Murphy undoing his belt prior to arrival was Mr Hartfield to whom this had happened "at least twice" as he neared Mr Murphy's house. Given the number of journeys that Mr Murphy had made to and from the day centre, I am quite unable to hold, on the basis of this evidence, that it was reasonably foreseeable by the defenders' employees who were accompanying him home on the day of the accident that he would unfasten his seat belt while travelling, so as to expose himself to the risk of injury in the event that the vehicle were to stop suddenly. I attach little weight to the risk assessment form which seems to have been prepared as a standard form and does not in my view demonstrate any particular concern on the part of Ms Ward that Mr Murphy was prone to loosening his seat belt. For this second and separate reason I do not consider that the pursuer has established that a duty to monitor or supervise Mr Murphy was incumbent upon the defenders' employees.

[15] In the light of the views which I have expressed, it is unnecessary for me to express a view on the defenders' second submission that even if a duty to monitor Mr Murphy had been incumbent upon the defenders' employees, it was not proved that a breach of duty had caused the accident. It will be recalled that the pursuer's contention was that an employee ought to have been sitting in the back of the vehicle near Mr Murphy. On that hypothetical factual scenario it is much less likely that it would not have been known how long before the collision Mr Murphy had unfastened the belt. The issue of causation would therefore have required to be dealt with against a scenario different from that with which I am dealing. I therefore express no view on this submission.

Disposal

[16] For the reasons set out above I shall grant decree of absolvitor, reserving all questions of expenses.