Linda Black V. C.b. Richard Ellis Management Services Ltd
| Jurisdiction | Scotland |
| Judge | Sheriff W. Holligan |
| Court | Sheriff Court |
| Docket Number | A1231/04 |
| Date | 17 January 2006 |
| Published date | 21 February 2006 |
| Case Reference Number: | A1231/04 |
in causa
PURSUER LINDA BLACK, residing at 60 Garvock Hill, Dunfermline, Fife KY12 7UU
against
DEFENDERS C B RICHARD ELLIS MANAGEMENT SERVICES LTD, a company incorporated under the Companies Acts and having its registered office at St Martin's Court, 10 Paternoster Row, London EC4M 7HP and having a place of business at Mercat Shopping Centre, High Street, Kirkcaldy, Fife KY1 1NJ
ACT: Mr Conway; ALT: Miss Bennett.
KIRKCALDY 17 January 2006. The Sheriff, having resumed consideration of the cause, FINDS IN FACT:-
1. The Pursuer resides at 60 Garvock Hill, Dunfermline. She is aged 47. The Defenders are a company incorporated under the Companies Acts and have a place of business at Mercat Shopping Centre, High Street, Kirkcaldy ("the Mercat Centre").
2. The Mercat Centre is a shopping centre of approximately 440,000 square feet of which approximately 190,000 square feet comprises retail space. It is approximately 37 years old. There are approximately 47 retail units within the Mercat Centre. The retail units are on the ground floor. The Mercat Centre has a flat roof. Number 5/2 of process are photographs of certain views within the Mercat Centre.
3. The retail units are served by walkways used by members of the public. The retail units and walkways are all under cover. Marks and Spencers is one of the retail units. The walkway outside Marks and Spencer's is laid with marble tiles ("the tiles"). On 3 February 2004 ("the relevant date") the surface of the tiles, when dry, had a low potential for slipping. The surface of the tiles had a dangerous or high potential for slipping when wet. The Defenders knew the floor was slippery when wet. The Mercat Centre is a busy retail shopping centre. It is used by members of the public. In one part of the Mercat Centre the passageway was treated with material to reduce the risk of slippage on the floor.
4. On the relevant date the Defenders were occupiers of the Mercat Centre within the meaning of the Occupiers Liability (Scotland) Act 1960. On the relevant date the Defenders employed security officers who worked shifts at the Mercat Centre. Number 6/2 of process sets out the duties of a security officer. The duties include, but are not limited to, identifying and reporting potential hazards and, if possible, removing them. The number of security officers working at the Mercat Centre varied during the week. One of the duties of a security officer was to patrol the Mercat Centre. It takes approximately five to ten minutes to walk from one end of the Mercat Centre to the other. Hazards on tiles are common. They can be spillages or water.
5. On the relevant date the Defenders had a system for dealing with spillages and other hazards present on the tiles. If a security officer patrolling the Mercat Centre noticed such a hazard on the tiles, he would use his radio and call for cleaning staff to attend. The Defenders used the services of independent cleaning contractors in the Mercat Centre. There were cleaners present in the passageways and also elsewhere in the Mercat Centre. The security officer would stand by the hazard until the cleaner arrived. The security officer might place barriers or other warning signs around the hazard. The security officers knew to keep a careful lookout for hazards in wet weather. Cleaners were under instructions to clean up any hazards on the tiles which they noticed when in the passageway area.
6. To the knowledge of the Defenders the roof of the Mercat Centre leaks. It has leaked for at least the last seven years. The leaks arise because of deficiencies in the roof, wind blowing water through the guttering underneath the roof line or coming in via the air-conditioning system on the roof. The leaks have led to water getting onto the tiles below.
7. Prior to the relevant date there had not been a leak from the roof in the place where the Pursuer suffered the accident referred to below. In places where there were leaks from the roof, the Defenders placed buckets on the tiles or in the ceiling void above. Where buckets were placed on the tiles they were surrounded by barriers. The Defenders had instructed inspection of and repairs to be carried out on the roof from time to time.
8. On the relevant date the Pursuer visited the Mercat Centre. She was familiar with the Mercat Centre and had visited it regularly. On the relevant date the weather was overcast. It had been raining the day before. The Pursuer intended to visit Marks and Spencer and TK Maxx.
9. On exiting Marks and Spencer the Pursuer slipped. Her right foot went out and she fell on her left side. She suffered injury to her right ankle. She slipped on a puddle of water which lay upon the tiles. The puddle of water was approximately the size of an A4 piece of paper ("the puddle"). Her trousers were wet from the puddle. The Pursuer did not see the puddle before she fell. It is difficult to see water present on the tiles. It is not known how long the puddle had been present on the floor.
10. After she fell the Pursuer was attended by three members of the public. One of the members of the public spoke to one of the security officers and stated that the Pursuer had fallen because of the presence of water on the tiles. The Pursuer spoke briefly to the manager of the Mercat Centre, Steven Roberts, and then to a security guard, Mr Nicol. She gave her personal details to Mr Nicol. A security officer, William Steven, prepared an incident report form from information given to him by Mr Nicol and the supervisor, James Dryburgh. 6/1 is a copy of the typed version of the incident report written by Mr Steven. During his patrol of the area where the Pursuer fell, Mr James Dryburgh did not notice any water.
11. Immediately after the incident the Pursuer felt pain. She also felt embarrassment. She was sick. She went to hospital later the same day. The amount of the Pursuer's loss as at 16 August 2005 is agreed in the sum of £2,888.08.
12. After the Pursuer's fall, the area where the Pursuer fell was surrounded by barriers behind which buckets were placed. Steven Roberts caused investigations to identify the source of ingress of the water onto the tiles. The water was found to come from the roof via the air-conditioning system. It was rain water.
FINDS IN FACT AND IN LAW that the Pursuer, having suffered injury through the breach of statutory duty of the Defenders as condescended upon is entitled to reparation.
THEREFORE sustains the 2nd and 3rd pleas-in-law for the Pursuer and repels the Defenders' pleas-in-law; DECERNS against the Defenders for payment to the Pursuer of the sum of TWO THOUSAND EIGHT HUNDRED AND EIGHTY EIGHT POUNDS AND EIGHT PENCE (£2,888.08) STERLING with interest thereon at the rate of eight per cent per annum from 16 August 2005 until payment; RESERVES all questions of expenses and APPONTS parties to be heard thereon on Thursday, 2 February 2005 at 10.00 am within the Sheriff Court House, Whytescauseway, Kirkcaldy.
NOTE
This is an action of reparation in which the Pursuer seeks damages from the Defenders for an injury suffered by her on 3 February 2004.
The witnesses for the Pursuer were the Pursuer herself, her husband David Black, Marie Tillier and Lenford Greasley. The witnesses for the Defenders were William Steven, Steven Roberts and James Dryburgh.
I found all the witnesses to be largely credible and reliable. Indeed, with the exception of one small issue, there is no significant dispute between the parties as to the relevant facts. The real issue, it seems to me, is the legal conclusion which arises from the facts.
This action concerns an accident which took place at the Mercat Centre, Kirkcaldy. Mr Roberts is the manager of the Mercat Centre and has been for the last seven years. William Steven is a security officer employed by the Defenders who works at the Mercat Centre. James Dryburgh is a recently retired security officer, formerly employed by the Defenders as a supervisor. There was no issue taken that, on the relevant date, namely 3 February 2004, the Mercat Centre was managed by the Defenders and that they were occupiers for the purposes of the Occupiers Liability (Scotland) Act 1960 ("the 1960 Act").
From the evidence of the Defenders' witnesses the following is established.
The Mercat Centre is approximately 37 years old. There are approximately 47 retail units. The Centre comprises 440,000 square feet of which 190,000 square feet comprise retail space. It is a major retail centre attended by many members of the public. The centre is covered by a flat roof. Access to the shops is gained by public areas or passageways. The area immediately outside Marks and Spencer is covered by marble tiles.
The Defenders employ security officers. The number of security officers on duty varies throughout the week. In general, the busier the day, such as a Saturday, the more security officers will be on duty. Their duties include undertaking foot patrols throughout the centre. The evidence of Mr Steven and Mr Dryburgh establishes that, in general, it takes between five to ten minutes to walk from one end of the centre to the other. The security officers have a number of duties, more particularly set out in 6/2 of process. For present purposes it is only necessary for me to say that it includes the identifying and reporting of potential hazards. The security officers are issued with radios. The practice at the relevant time was that, if a security officer found a hazard, such as a spillage on the floor, he would then radio the control room for a cleaner to attend, unless there was a cleaner in the immediate vicinity. The security officer would then stay with the hazard until the cleaner arrived. I understand from the evidence that there was also a practice of erecting barriers around the hazard with warning signs. I assume this could...
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