Fiona Delaney V. Beechwood Nurseries Limited
| Jurisdiction | Scotland |
| Judge | Lord Kingarth |
| Date | 20 February 2004 |
| Court | Court of Session |
| Published date | 20 February 2004 |
| OUTER HOUSE, COURT OF SESSION | |
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| OPINION OF LORD KINGARTH in the cause FIONA DELANEY Pursuer; against BEECHWOOD NURSERIES LTD Defenders: ________________ |
Pursuer: Allardice, Digby Brown
Defenders: Wilson; Simpson & Marwick, W.S.
20 February 2004
[1]On 11 November 1999 the pursuer was working in the course of her employment with the defenders as a nursery assistant at their premises at 34 Dundonald Road, Kilmarnock. She was making her way from the main office on the ground floor to the kitchen, situated in the basement. To do so she was descending an internal staircase. Near to the foot of the stairs she fell onto her right ankle, fracturing the right lateral malleolus. In this action - which came before me for proof - she seeks damages, claiming that her accident was caused by the defenders' fault and negligence at common law and by their breaches of certain of the Workplace (Health, Safety and Welfare) Regulations 1992.
[2]At the end of the proof a number of matters were not seriously in dispute.
[3]The staircase from the ground floor or reception area to the basement initially curved down in a spiral to the left before proceeding straight on to a small landing at the foot. The stairs were carpeted. There was a handrail on the left hand side which effectively extended throughout, although it ended just before the very last step. At the top there was a safety gate - apparently about waist high - designed to stop young children from falling down the stairs. At the foot of the stairs, at the far side of the small landing, was a door which led towards the kitchen. There were two narrow vertical glass panels in that door.
[4]At about 4.45 pm the pursuer was walking down the stairs. She used the handrail as she went down for support. As she was about to step onto a step close to the bottom she misjudged the step and her foot slipped on its edge. She took her full weight on her right ankle on the step below and fell to the ground. She had taken her hand off the handrail just before the accident as she moved forward. She tried to grab at the rail when she fell, but was unable to do so. Although her pleadings describe her as having fallen " approximately three steps from the bottom", her clear evidence was that her foot slipped on the second last step, and this was not (as I understood it) seriously challenged.
[5]There was general agreement as to what sources of lighting were available at the time. There were two main direct sources. There was a light bulb in a shade above the top part of the staircase. This light was on. At the foot of the staircase, above the landing, there was an emergency lighting fitment, consisting of a small diameter tube in a rectangular diffuser fitted flush with the ceiling. It was on at the time of the accident. In addition it seemed generally accepted that light could (and at the material time probably did) penetrate from the reception area at ground floor at least to the top of the stairs and also that some light could (and at the material time probably did) permeate through the glass panels in the door at the foot of the landing from the hall and kitchen area beyond. All the treads of the staircase were covered in carpet, which was dark blue in colour. The pursuer thought that the carpet had earlier been a lighter colour but that it had been replaced in about June 1999, and her evidence on this point was not challenged.
[6]The pursuer's evidence was that the reason she misjudged her footing was that the lighting at the foot of the staircase was poor, and that this, combined with the dark colour of the carpet, made it difficult to see and in particular to make out where the edges of the treads were. Her evidence was said to be supported by the evidence of Mr Philip Glen, a Consulting Engineer instructed on her behalf, and by the evidence of Mrs Natalie Sinclair, who gave evidence of having previously fallen on the same staircase on 24 August 1999. The defenders' position was that on the whole evidence it was not proved that the lighting was poor or that the combined effect of the lighting and the colour of the carpet was such that it made it difficult for people to judge their footing. It was therefore maintained that it had not been proved that the accident occurred for the reasons claimed by the pursuer. Instead it was submitted that it should be inferred that the pursuer had fallen solely because she had failed to take reasonable care to keep a good look out. Support for the defenders' position was sought in the evidence of two nursing assistants who worked at the premises, Roanna Walsh and Mrs Karen Hamilton, and in the evidence of Mr Brian Williams, a Health and Safety Consultant.
[7]On the critical question of the adequacy of the lighting at the foot of the stairs, I have come to the clear view that the lighting was indeed poor, and that this, combined with the very dark colour of the carpet, made it difficult for persons using the stairs to see clearly and to judge where the edges of the treads were - a state of affairs which could reasonably be said to have given rise to a real risk of injury to persons using the stairs.
[8]The pursuer gave her evidence in a clear and straightforward manner. She did not seek to embellish or exaggerate either the circumstances of her fall or her injuries. She spoke convincingly of never having liked the stairs, not only because of the way they turned but also because of the fact that it was so dark. She always tended to use the handrail as a result. She seemed clear as to the state of the lighting on the day of accident. The light-bulb over the top of the staircase was sited less than halfway down. It was fitted with one ordinary 60 watt bulb within a dark shade, and did not give off a particularly bright light. The emergency light at the bottom gave off only very dull light. At an earlier stage she thought this fitting had had a brighter light in it. Lighting from the upstairs reception area did not penetrate through to the bottom of the staircase. She did not ever recall seeing much light coming through the panels in the door at the foot of the stairs. The state of the lighting combined with the "very dark blue" of the carpet made it hard to judge. Overall she gave her evidence in a way which seemed to me to be credible and convincing. Her description of the lighting and her evidence as to the reason for her fall were not directly challenged in cross examination. It was not put to her that the accident had happened for any other reason, and in submission at the end of the proof there was no challenge made to her credibility. In these circumstances I would have been slow not to accept her on these matters (to find her evidence unreliable as I was invited to do) unless she had no support, or there was compelling and clear contrary evidence. In the event - as described below - she had, in my view, impressive support from Mr Glen, and I did not find the evidence which might be thought to be contradictory either clear or compelling.
[9]Mr Glen visited the site for the purposes of an inspection on 21 August 2002. I find on the evidence that at the time of his inspection the sources of light available on the staircase were the same as at the time of the pursuer's accident - if anything the lighting from the light-bulb above the staircase being brighter. The pursuer accompanied Mr Glen, on his visit, and it was her impression that the bulb in question was brighter and the shade a different colour - an impression which I accept she conveyed to Mr Glen, although he had no recollection of having been told this. Although Mr Glen had no specific expertise in relation to lighting and although he was visiting the site apparently to investigate whether there was any problem with the...
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