Linda Mary Gillie V. Scottish Borders Council
| Jurisdiction | Scotland |
| Judge | Lord Boyd of Duncansby |
| Neutral Citation | [2013] CSOH 76 |
| Docket Number | PD836/12 |
| Date | 17 May 2013 |
| Court | Court of Session |
| Published date | 17 May 2013 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 76 | |
| PD836/12 | OPINION OF LORD BOYD OF DUNCANSBY in the cause LINDA MARY GILLIE Pursuer; against SCOTTISH BORDERS COUNCIL Defenders: ________________ |
Pursuer: Hajducki, QC; Heaney; Allan McDougall
Defender: Cowan, Solicitor Advocate; Simpson & Marwick
17 May 2013
[1] The pursuer is Mrs Linda Gillie. For the past 13 years she has been employed by Scottish Borders Council, the defenders, as a janitor at Galashiels Academy. On 12 May 2009 she fell on the stairs in the school. She was taken to hospital having sustained injuries in the fall. She was off work for some time and unable to resume her full pre-accident duties until October 2010. The pursuer claims that the accident occurred as a result of the defenders' breach of regulation 12(3) of the Workplace (Health, Safety & Welfare) Regulations 1992. The parties agreed damages of £16,000 to the date of proof. Accordingly the proof proceeded on the issue of liability alone.
[2] There is a long history, some may say tradition, of sixth form pupils playing pranks on their last day in school. The court heard evidence that this affected schools in the area of the defenders including Galashiels Academy. It may also occur in other parts of Scotland. The day is known as "prank day" or "muck up day". In Galashiels Academy it took place on the last day in which the sixth form students were in school before they went on study leave.
[3] In the years before Mrs Gillie's accident there was evidence that pranks included the throwing of a variety of food stuffs including eggs, spaghetti sauce, yogurt and flour at the outside windows, putting washing up liquid down toilets, placing cellophane on toilet seats and smearing black shoe polish on toilet seats, throwing water balloons, using supersoakers, moving lockers against doorways so that people could not get out, putting sardines and dirty nappies in lockers, placing fish in the library and setting off the fire alarm. It was also suggested that on one occasion a tyre had been thrown down a stairwell.
[4] In May 2009 the last day for sixth form pupils before examine leave was 13 May 2009. However on that day a school trip for sixth formers had been arranged to M & D'S theme park. Accordingly their last day in the school building was 12 May 2009.
[5] At around 10.30am the pursuer was distributing a newsletter around each of the classrooms. She started on the third floor of the main building. There she met one of the science teachers, Miss Hall, who told her that Vaseline had been smeared on door handles and condoms had also been placed over handles. The pursuer said that she would clean it up. A little later her attention was also drawn to Vaseline on the banister on the stairs going down from the first to the ground floor. The pursuer started to wipe the banister at the top of the stairs. As she did so her foot slipped and she fell four or five steps hitting a wall on the landing and causing her injury. Yvonne Smith, an additional needs assistant, heard the pursuer fall. She summoned help and the pursuer was assisted to a chair. Yvonne Smith checked the soles of the pursuer's shoes and found what she described as a petroleum based substance.
[6] The defenders accept the evidence that the pursuer slipped on Vaseline on the stairs. They also accept that in all probability it got there as a result of an act by sixth formers at the school as part of a prank. It was not clear whether the Vaseline was put on the stair deliberately or was spilled or dropped on the stair while being put on the banister. Mr Cowan, for the defenders, submitted that it was to be hoped that it was not deliberate but whether or not it was did not matter. The defenders accepted that on the evidence the pursuer slipped on Vaseline on the stairs which got there as a result of actions by a sixth form pupil or pupils at the school.
[7] The pursuer contends that the defenders are in breach of article 12(3) of the Workplace, Health and Safety at Work Regulations 1992/2004 which states:
"So far as is reasonably practicable, every floor in a workplace shall be kept free from obstructions and from any article or substance which may cause a person to slip, trip or fall."
[8] The defenders accept that the school is a workplace and the stair a traffic route. They further accept that prima facie there is a breach of the article insofar as there was a substance on the stair which might cause a person to slip. The defenders contend however that they are not liable to the pursuer as it was not reasonably practicable to keep the stair free from substances placed on the stair as part of a prank. They further accept that the onus is on them to demonstrate that it was not reasonably practicable.
[9] There was a broad area of agreement between the parties as to what is meant by "reasonably practicable" and the exercise to be undertaken by the court in assessing whether that defence had been made out. I was referred to a number of authorities, viz: Edwards v National Coal Board 1949 KB 704 per Tucker LJ at page 710 and Asquith LJ at page 712; Marshall v Gotham & Co Ltd 1954 AC 360 per Lord Reid at pages 372, 373; Mains v Uniroyal Englebert Tyres Ltd 1995 SC 518 per Lord Sutherland at pages 528, 530 and 531; Baker v Quantum Clothing Group Ltd 2011 UKSC 17 per Lord Mance at pages 1042-1045, paras.81-84 and Lord Dyson at pages 1058, 1059, paras.128 and 129; and Strange v Wincanton Logistics Ltd 2011 CSIH 65A and the Opinion of the Court given by Lord Eassie at paragraph 24.
[10] From these citations I take the following proposition. First, as conceded by the defenders in this case it is for the defenders to establish that it was not reasonably practicable to keep the stair free from the substance upon which the pursuer slipped; Lord Sutherland in Mains v Uniroyal Englebert Tyres Ltd at page 531. Secondly, the assessment of what is reasonably practicable involves a balancing exercise putting on one side the degree or quantum of risk against the sacrifice in terms of loss of money, time or trouble, per Asquith LJ in Edwards page 712. Lord Mance's comments in Baker, although obiter are also helpful:
"the criteria relevant to reasonable practicability must on any view largely reflect the criteria of the common law duty to take care. Both require consideration of the nature, gravity and imminence of the risk and its consequences, as well as the nature and proportionality of the steps by which it might be addressed, and the balancing of one against the other" (para. 82).
Thirdly, in the assessment of what is reasonably practicable it is relevant to consider whether or not the incidence and nature of the risk was reasonably foreseeable; Lord Sutherland in Mains at page 528 and Lord Dyson in Baker, para.128, page 1059. Fourthly, the assessment of what is reasonably practicable is ultimately a forensic one to be assessed by the court at a point immediately before the accident; Lord Eassie in Strange at para.24 and Lord Oaksey in Marshall at page 370 quoting with approval Jenkins LJ in the Court of Appeal.
[11] The pursuer's case rests on the fact that the accident took place on what was in effect a prank day. Mr Hajducki, for the pursuer, submitted that the defenders anticipated that something might happen on that day and reasonable precautions could have been taken to address the risks that that day posed. He submitted that it would have been an easy matter for the defenders to keep the stair free from substances on this one "long anticipated day".
[12] It appears from this submission that the pursuer accepts that the reasonable foreseeability of the risk is central to the issue in this case. Accordingly it is necessary to look in more detail at the nature of the risk and the steps taken by the...
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