McDyer v The Celtic Football and Athletic Company Ltd (No.1)
| Jurisdiction | Scotland |
| Judgment Date | 03 March 2000 |
| Docket Number | No 40 |
| Date | 03 March 2000 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION
Lord Macfadyen
Reparation—Negligence—Occupiers' liability—Res ipsa loquitur—Relevancy—Pursuer averring injury caused by wood falling from stadium canopy inaccessible to public when weather was calm and that wood had been used in works on canopy shortly before accident—Pursuer suing occupiers of stadium on basis of their exclusive management and control—Occupiers blaming independent contractors for canopy works—Whether relevant case for application of res ipsa loquitur—Whether contractors' involvement undermined relevancy of pursuer's case—Whether pursuer required to aver specific breaches of duty
Reparation—Strict liability—Occupiers' liability—Relevancy—Pursuer averring injury caused by wood falling from stadium canopy—Pursuer suing occupiers of stadium without averring specific case of fault—Whether occupiers' liability strict—Occupiers' Liability (Scotland) Act 1960 (8 & 9 Eliz II, cap 30), sec 2(1)1
The pursuer was injured by a piece of wood which fell from the stadium canopy while he was waiting at Celtic Park for the opening of the European Special Olympic Games. He sued the first defenders as the occupiers of the stadium and the second defenders who were responsible for the staging of the games and founded on sec 2 of the Occupiers' Liability (Scotland) Act 1960 but made no averments as to the cause of the wood falling or as to the specific fault of either defender. The pursuer relied upon the principle of res ipsa loquitur. At procedure roll the Lord Ordinary (Macfadyen) dismissed the action. The pursuer reclaimed and while the cause was in dependence before the Inner House, he amended in order to aver that wood was not a material which ordinarily formed any part of the canopy, which was inaccessible to the public; that wood had been used in temporary works connected with the opening ceremony of the games; that the works had been undertaken shortly before the accident and could not have been carried out unless by or with the first defenders' concurrence and subject to any safety precautions which they might have imposed; and that the weather was calm and there was no wind when the accident occurred. The pursuer also introduced a case against both defenders on the basis that liability at common law for the accident was strict. The defenders argued that, notwithstanding the amendment, the cases against them were irrelevant.
Held (1) that as the pursuer's averments added by way of amendment tended to exclude both wear and tear and violent weather as possible causes of the wood falling, the further averments could justify a finding of negligence on someone's part for the wood falling (p 384H–385A); (2) that the additional averments, when taken with the averments that the first defenders were the
occupiers of the stadium and had exclusive management and control over it, that the canopy was inaccessible to the public and that temporary works could not have been undertaken without the first defenders' concurrence, were sufficient to bring the principle of res ipsa loquitur into operation (p 385B–C); (3) that the first defenders' averments, which gave no explanation for the wood falling but referred to the involvement of independent contractors instructed by the second defenders to erect the temporary works, did not and could not undermine the relevancy of the pursuer's case based on res ipsa loquitur (p 386A–B); (4) that, consistent with the fact thatres ipsa loquitur applies in situations where the pursuer does not know the cause of the accident, it was not necessary for the pursuer to condescend on particular negligence or breach of duty on the part of the defenders (p 386E–F); and (5) that the law relating to the liability of the defenders to the pursuer was to be found in sec 2(1) of the 1960 Act and accordingly the pursuer's averments relating to strict liability were irrelevant (p 390I–391B); and reclaiming motionallowed in part.Devine v Colvilles LtdSC 1969 SC (HL) 67 applied.
Colin McDyer brought an action of reparation for damages in the Court of Session against The Celtic Football and Athletic Company Limited, The European Summer Special Olympic Games 1990 (Strathclyde) Limited and Zurich Insurance Company in respect of an accident which he sustained at Celtic Park on 21 July 1990.
The cause called before the Lord Ordinary (Macfadyen) in the procedure roll on, inter alia, the defenders' pleas to the relevancy of the action.
At advising, on 18 July 1997, the Lord Ordinary dismissed the action;seeMcDyer v The Celtic Football and Athletic Co Ltd 1999 SLT 2.
The pursuer reclaimed.
Cases referred to:
Bowden v Rudman 1964 (4) SA 686 (N)
Campbell v KennedyUNK (1864) 3 M 121
Cleghorn v TaylorUNK (1856) 18 D 664
Devine v Colvilles LtdSC 1969 SC (HL) 67
Gray v Dunlop 1954 SLT (Sh Ct) 75
Jamieson v JamiesonSC 1952 SC (HL) 44
Laurent v Lord AdvocateUNK (1869) 7 M 607
McQueen v The Glasgow Garden Festival (1988) Ltd 1995 SLT 211
Milne v TownsendUNK (1892) 19 R 830
Murray v City of Edinburgh District Council 1981 SLT 253
RHM Bakeries (Scotland) Ltd v Strathclyde Regional CouncilSC 1985 SC (HL) 17
Scott v London and St Katherine's Docks CoENR (1865) 3 H & C 596
Wallace v City of Glasgow District Council 1985 SLT 23
Textbooks, etc referred to:
Bankton, Institute, I, 4, 31–32
Hume, Lectures, vol 3, ch 16
P G Stein, “The Actio de effusis vel dejectis and the concept of quasi-delict in Scots law” (1955) 4 ICLQ 356
The cause called before the First Division, comprising the Lord President (Rodger), Lord Cameron of Lochbroom and Lord Nimmo Smith for a hearing.
At advising, on 3 March 2000, the opinion of the court was delivered by the Lord President (Rodger).
Opinion of the Court—The pursuer, Mr Colin McDyer, has reclaimed against the interlocutor of the Lord Ordinary dated 18 July 1997, dismissing the action. While the case was in the Inner House, the court allowed the pursuer's pleadings to be amended in certain material respects.
The action concerns an alleged incident which occurred on 21 July 1990 when the pursuer attended the Opening Ceremony of the European Special Olympics at Celtic Park in Glasgow. According to his averments in art 2 of condescendence, the pursuer and his family made their way towards the west terrace and joined other spectators sitting on a perimeter wall around the track. In the record as amended in the Inner House the pursuer makes the following averments about the incident, those added by amendment being in italics: “At about 1.20 pm a piece of timber fell onto the pursuer's right hand. The piece of timber fell from part of the premises at or near the point where a banner was attached to the edge of the stadium canopy overhead of the pursuer. Wood is not a material which ordinarily formed any part of the stadium canopy. Wood had been used in temporary works connected with the Opening Ceremony. The works, which included attaching banners, had been undertaken shortly before the Opening Ceremony. The weather was calm. There was no wind which could have dislodged a securely fixed piece of timber. The canopy was inaccessible to the public. The pursuer fell to the ground. As a result of the said accident the pursuer has sustained loss, injury and damage.”
The pursuer's case is made against three defenders, first, The Celtic Football and Athletic Company Limited (“Celtic”), secondly, European Summer Special Olympic Games 1990 (Strathclyde) Limited (“European”), and, thirdly, Zurich Insurance Company. For present purposes the involvement of the third defenders can be set on one side. The pursuer's case is directed in the first place against Celtic as occupiers of Celtic Park and the averments of fault against Celtic are set out in art 3 of condescendence. In art 4 the pursuer sets out his averments of fault against European on an estobasis—the hypothesis being that Celtic are correct in alleging that European, rather than Celtic, had control of the premises at the time of the accident.
The averments of fault against Celtic in art 3 are in these terms, the amendments being again set out in italics: “The said accident was caused by the first defenders' breach of statutory duty under and in terms of the Occupiers” Liability (Scotland) Act 1960, section 2. The first defenders were the occupiers of the said stadium. The first defenders had exclusive management and control over the said premises.The said temporary works could not have been undertaken unless by or with the concurrence of the first defenders and subject to any safety precautions they might have taken or imposed. Under and in terms of the said Act it was the first defenders' duty to take reasonable care for the safety of the pursuer within the said premises. It was the first defenders' duty to take reasonable care to ensure that the pursuer was not placed in danger due to the state of the premises. The first defenders owed a duty to persons such as the pursuer entering the premises to take reasonable care to see that such persons were not exposed to danger by virtue of the state of the premises or anything done or omitted to be done on them. It was their duty to take reasonable care to ensure that timber did not fall from any part of the premises onto persons such as the pursuer entering the premises. It was their duty to take reasonable care in the operation, inspection and maintenance of the premises. Timber does not fall from premises operated, inspected and maintained with reasonable care. Accordingly the accident was caused by the breach of statutory duty, fault and negligence, of the first defenders. But for their breach of duty the accident would not have occurred. The first defenders are called upon to explain how the piece of timber fell from the premises on to the pursuer without negligence on their part. Their failure to do so will be founded upon. In any event the first defenders are strictly liable to the...
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