Catherine Foley Mcgee And Others V. Rjk Building Services Limited
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young |
| Neutral Citation | [2013] CSOH 10 |
| Court | Court of Session |
| Published date | 18 January 2013 |
| Year | 2013 |
| Date | 18 January 2013 |
| Docket Number | PD3087/10 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 10 | |
| PD3087/10 | OPINION OF LORD DRUMMOND YOUNG in the cause CATHERINE FOLEY McGEE and OTHERS Pursuers; against RJK BUILDING SERVICES LIMITED Defenders: ________________ |
Pursuers: Bain QC; McCaffery; Bonnar & Company
Defenders: Haldane QC; Waugh; HBM Sayers
18 January 2013
[1] On 18 July 2009 the late Peter McGee died in Glasgow Royal Infirmary following an accident suffered in his home two days previously, on 16 July 2009. The first pursuer, Catherine McGee, is his executrix dative, and also sues as an individual. The remaining pursuers are members of his family. The third and fourth pursuers, Susan Todd and Catherine MacInnes, are his daughters. Catherine MacInnes also sues as fifth pursuer on behalf of her daughter, Sophie MacInnes, who was nine years old at the time of her grandfather's death. The sixth pursuer is Declan Todd, the son of Susan Todd, who was 17 at the date of his grandfather's death. The deceased's son, Peter McGee, sues as seventh pursuer in his own right and as eighth and ninth pursuer on behalf of his daughters, Beth McGee and Leah McGee, who were respectively aged 10 and 13 at the date of their grandfather's death. The deceased lived with his wife in a house at 22 Mosesfield Street, Glasgow; they had lived there for about 36 years.
[2] In April 2008 the defenders, who are a company which carries out building and small contract works, were instructed by Glasgow City Council to erect bilateral internal handrails within the staircase in the deceased's house at 22 Mosesfield Street. The staircase comprised 13 steps. The handrails were installed on 5 May 2008. The defenders accept that the manner in which they were installed was negligent; I return to this matter below at paragraph [5].
The deceased's accident
[3] On 17 July 2009 the deceased and his wife attended a bingo evening at the Morven Public House in Springburn. This was a regular social event for them, and the deceased acted as one of the bingo callers. The deceased and his wife returned home after 11 pm and thereafter he and his wife went to bed. Their bedroom was on the first floor of the house. At about 2.30 am the following morning the deceased got up, and shortly thereafter he fell downstairs. His wife found him at the bottom of the stairs. The handrail fixed by the defenders had come away entirely from the wall. Mrs McGee immediately telephoned her son Peter, who lived nearby. Peter McGee arrived at the house about five minutes after that. By then the deceased was sitting on a chair in the living room. Mrs McGee told Peter McGee that his father had fallen downstairs, and he noticed that the handrail had come off the wall and that a photograph in a frame approximately 600 mm square had fallen to the ground and smashed. Mr McGee was a qualified first aider, and he examined his father and asked questions to discover whether he had any injuries. He asked his father what had happened. The deceased replied that he had gone downstairs for a glass of water. When he got to the top of the stairs he had put his hand on the banister and started down, and the next thing that he knew was that he was on the ground at the bottom of the stairs. The deceased said that he had felt the banister coming away from the wall. Mr McGee then touched the area of the deceased's ribs and his father screamed. Mr McGee immediately realised that the situation was serious and that an ambulance had to be called. He called an ambulance, the call being timed at 3.06. Mr McGee estimated that the call would have been made about 10 or 15 minutes after he arrived at his parents' house. On that basis I estimate that the time of the deceased's accident was at about 2:30 am. Mr McGee was asked in cross-examination and re-examination about his father's consumption of alcohol the previous evening. He stated that he could not smell drink on his father's breath, and that he had no impression that he had been drinking; the way he spoke was "very lucid". I should note that I found Mr McGee to be a wholly reliable witness and I have no hesitation in accepting his account of what his father said regarding the accident.
[4] The deceased was taken to Glasgow Royal infirmary in the ambulance, and both Mrs McGee and Mr Peter McGee went there as well. At Glasgow Royal Infirmary an account was taken from the deceased of what had happened on two occasions (6/4 of process, pages 38 and 41). On the first occasion, at 7 am, it was recorded that the deceased had said that he woke from sleep to go to the toilet. Somehow he had not made it there and had fallen down 13 stairs. He did not remember falling. His wife had woken and found him standing at the bottom of the stairs. He had pulled off the banister. On the second occasion, later the same day, it was recorded that the deceased had fallen down 13 stairs while trying to go to the toilet at about 2 am. His wife had woken up due to the noise and found the deceased standing at the bottom of the stairs. It was further recorded that the deceased had drunk 5 pints of Guinness, stopping drinking at around 11 pm. These accounts differ slightly from the account given by Mr Peter McGee of what the deceased said. On this matter I prefer Mr McGee's account. He gave an account, which appeared to me to be wholly credible and reliable, of what his father had said to him very shortly after his accident. Mr McGee was obviously concerned to know exactly what had happened to his father. The doctors who examined the deceased, by contrast, were rather concerned to obtain sufficient information to treat his injuries. From that perspective, what mattered was that he had fallen down 13 stairs; what he was doing at the time is plainly less material. Moreover, Mr McGee gave evidence that it was his parents' normal practice to obtain drinking water from the tap in the kitchen, which was supplied from the water main, and not from the tap in the bathroom, where the water came from a rather antiquated tank within the house. That would explain why he had tried to descend the stairs and had fallen down them.
Expert evidence
[5] For the pursuers, expert evidence as to the cause of the deceased's accident was led from Dr Stirling Howieson. Dr Howieson is a Chartered Architect and Chartered Engineer, with extensive academic and professional qualifications and lengthy professional experience. He had been instructed to visit the deceased's house and to prepare a report on his findings following an examination of the locus of the accident. In the course of his visit he took photographs of the locus, which were helpful in understanding what had happened. Following his visit he had prepared a report (no 6/6 of process). Dr Howieson's immediate reaction had been one of surprise that the handrail was attached to the plasterboard wall using small spiral fixings. He considered that this was "wholly inadequate" method of fixing the handrail. The type of screws were used were appropriate for such items as mirrors or pictures, but not for a handrail.
[6] In his report Dr Howieson indicated that several factors had combined in such a way that the handrail came loose from the wall. First, the wall was constructed of plasterboard fixed to brickwork using plaster adhesive "dabs". The plasterboard had no mechanical fixings and was simply glued to the wall using plaster "dot and dabs" of approximately 100 mm diameter. Crucially, there were no timber battens available to take the screw fixings that would support the wall plate. The employees of the defenders who fitted the handrail used metal self drill plasterboard fixings approximately 26 mm in length. 16 of these were screwed into the plasterboard along the entire length of the handrail. Of these fixings, three were located in plaster dabs. The sturdiness of the handrail was thus entirely reliant on the friction hold generated between the metal screws and the plasterboard. This was completely inadequate. In his evidence, Dr Howieson expressed the opinion that, because the wrong type of fixing had been used, it was almost inevitable that the handrail would collapse. Every time that weight was placed on the handrail the sharp spiral edges of the fixings dug into the soft exposed edge of the plasterboard, and he would have predicted that any handrail fixed in this way would come away from the wall. At this point I should record that the defenders accepted that the method of fixing was inadequate.
[7] Dr Howieson further considered whether the method of fixing adopted by the defenders' employees complied with the relevant British Standard, BS 6399 Part 1 1996 (Loading for Buildings - Code of Practice). This British Standard specifies (Parts 10 and 12 and Table 4) that a domestic handrail should be able to resist a uniformly distributed load of 0.36 kN per linear metre and a point load of 0.25 kN. Dr Howieson was unable to find any relevant data, and accordingly he set up a test rig to replicate the fixing method that had been used. In the test rig he used a 1200 mm length of handrail, which was fixed to an area of plasterboard 12.7 mm thick; the area of plasterboard measured approximately 500 x 1800 mm. The length of handrail was fixed using five metal fixings. The dimensions and positions were designed to replicate the conditions on site. The loading on the handrail in use would be both vertical and horizontal, and Dr Howieson considered that the resultant line of thrust should be considered as a combination of these loading conditions; consequently he tested the handrail at an angle of 45°. Dr Howieson also carried out a final test which involved loading the handrail after it had been pre-stressed by intermittent loading over 100 cycles with a 5 kg weight. This was an attempt to mimic the probability that repeated loading of the handrail would result in the sharp edges of the fixings' biting into the relatively soft gypsum plasterboard edges, thus progressively...
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