Stephen Mckeown V. Inverclyde Council An Authority Constituted In Terms Of The Local Government (scotland) Act 1994 Having Its Registered Hq At Municipal Buildings, Gree
| Jurisdiction | Scotland |
| Judge | Lord Burns |
| Neutral Citation | [2013] CSOH 141 |
| Court | Court of Session |
| Published date | 22 August 2013 |
| Year | 2013 |
| Date | 22 August 2013 |
| Docket Number | PD2225/11 |
| OUTER HOUSE, COURT OF SESSION | |
| [2013] CSOH 141 | |
| PD2225/11 | OPINION OF LORD BURNS in the cause STEPHEN McKEOWN Pursuer; against INVERCLYDE COUNCIL An authority constituted in terms of the Local Government etc (Scotland) Act 1994 having its headquarters at Municipal Buildings, Clyde Square, Greenock. Defenders: ________________ |
Pursuer: Fitzpatrick Advocate: Digby Brown LLP
Defender: Waugh, Advocate: DAC Beachcroft Scotland LLP
22 August 2013
Introduction
[1] This proof was set down for four days from Tuesday 13 November 2012. Evidence was led from the pursuer, his wife, his daughter Laura Knight and Mr Boyland, a janitor employed by the defenders and a Union representative on that day. On the morning of the second day, Mrs Waugh, on behalf of the defenders moved to amend the record by the insertion in Answer 4 of the words "In the circumstances it was not reasonably practicable for the defenders to have kept the fire doors steps free of ice." Having heard submissions on that motion, which was opposed by Mr Fitzpatrick, I allowed the amendment and acceded to Mr Fitzpatrick's motion to adjourn the proof to a date to be afterwards fixed in order to allow him to consider answers to that amendment and to investigate whether any additional evidence should be led or witnesses recalled.
[2] The proof continued on 29, 30 and 31 January and 1 February 2013 when further evidence was led on behalf of the pursuer and on behalf of the defenders. The matter was then further continued for submissions which I heard on 14 May 2013.
[3] A joint minute was entered into which inter alia agreed quantum at £30,000 inclusive of interest to 13 November 2012. Thus the only matters in dispute related to liability and, in that connection, whether the pursuer had proved that he sustained an accident in the manner set out on record and, if so, whether the defenders should be held liable for that accident.
The accident
[4] The pursuer is a 61 year old man who for 18 years had worked as a janitor in various schools operated by the defenders. He was at one time a head janitor but asked to be relieved of those duties. He gave evidence that in November 2010 he was a janitor in St Stephen's High School in Port Glasgow and was asked to go to St Francis' Primary School, Port Glasgow on Monday 22 November 2010 to cover for the permanent janitor there, a Mr Cannon. This request was made by one of the defenders' employees, Margaret Swankie, the pursuer's line manager. He set off from his house at St Stephen's High School on that date in what he termed "terrible weather". There was ice and snow on the ground. He could see his breath. It was not snowing but there was very hard ice on the pavements which were slippy. He required to walk on the grass at St Stephen's to get a proper grip. He wore steel cap boots supplied by the school. He arrived at St Francis' Primary School about 7am. Kitchen staff started to arrive about 7:15am and breakfast club at the school started at 8am. School itself started at about 9am. He said that the grounds of St Francis' Primary School were icy in some places. He went to the boiler room of the school in order to obtain salt and the hand operated gritting trolley, which he knew from past experience at that school to be stored there. He described how he then proceeded to salt the paths and playgrounds of the primary school. He thought that he used about 8 bags of salt each of which weighed 25kg. While he knew of no procedure laid down by his employers for this task, he proceeded as he had always done and salted the paved footways and playgrounds, working his way round the school building. This exercise included throwing salt by hand on the steps leading up to the fire escapes which served certain classrooms at the school (the fire steps). His routine was to do the areas which would make it safe for the staff and pupils to come into the school in the morning. His evidence was that he was using a system which he had used for the whole of the 18 years of his employment with the defenders for which he had no formal training or instruction. There was some element of time pressure in this procedure since the pursuer required to have completed salting of the areas which he selected prior to 9am when the school morning started.
[5] After 9 o'clock he salted any other areas not already covered, such as the car park and bin areas. Having finished that exercise, the pursuer went to the janitor's office where he remained until break time at about 10:30am. He said that because of the weather conditions on that day, children in primary 6 and 7 classes were allowed out, but younger children in primary 1 to 5 were kept within the building.
[6] At break time it was the pursuer's duty as janitor to monitor pupils in the playgrounds and to pick up any litter or debris on the ground. For that purpose he took with him a litter pick and a plastic bag. He was standing near a fire escape, which he identified in the photograph which is number 7/4 of process, when his attention was drawn by two girl pupils to a condom which was lying on the top part of that fire escape. He went to retrieve it and picked it up with the litter picker in his right hand. He turned to put the condom in the plastic bag whereupon he slipped and fell against the wall. He said that he hit ice and fell onto the wall landing on his backside. He recalled that he had salted the area earlier that morning, but that it was in the shade and had thus taken longer to thaw. The girls, who had witnessed this, asked him if he wanted help but he refused that since he thought what happened was not too bad. However, his back was too sore for him to do lunchtime monitoring duties. He remained at work and locked up at the close of school that day at 3:30pm. He felt a little bit sore, but he described it as being not too bad. On return to his house, he spoke to his wife and his daughter, Laura Knight. He returned to work on Tuesday 23 November when his back was a bit stiff and worked the whole day. However, during the Tuesday evening his back became increasingly painful and he went to bed at 8:30pm, which was much earlier than his usual bedtime. His daughter came to him and asked him why he was in bed so early. He said to her that he had had an accident. The next morning he described himself to be in agony. He phoned his doctor at 8am and secured an appointment for 10:30am. He subsequently saw a Dr Boyce. He was given a three week sick line and went to St Stephen's to hand it in to the head janitor, Henry Black. He travelled there by taxi. He informed Henry Black that he had slipped on ice at St Francis' School.
[7] He also gave evidence to the effect that he had phoned his line manager Margaret Swankie at Cathcart. He phoned her from St Stephen's and told her that he had slipped on ice the previous Monday, that the general practitioner had said it was sciatica and that he was to be off for three weeks.
[8] He accepted in cross‑examination that an accident ought to be reported so that it could be investigated but that he had not entered this incident in any accident book. He knew there to be an accident book at St Stephen's and at St Francis'. He did not know where the accident book at St Francis' was located. He also accepted that the finding of a condom was something that would be reported to the head teacher at the primary school.
[9] The pursuer's wife gave evidence and stated that in November 2010, she returned from work and found her husband stooped. He told her that he had slipped on ice at school and hurt his back. This was on a Monday or a Tuesday. He did not volunteer that information and she had to ask him. She advised him the next day to go to a doctor and he did so. His daughter, Laura Knight, also gave evidence to the effect that one evening in November 2010 she visited her parents' house and found her father to be in bed at an unusually early hour. He reported to her that he had fallen at school on stairs when picking up a condom.
[10] Mr Jim Boyland was a senior janitor and a Union representative. He had known the pursuer and his family for at least 15 years. He said that the pursuer had come to him on 23 November 2010 in his office at St Stephen's and said that he had had an accident on a set of stairs in icy weather. The pursuer did not tell him where he had slipped or on what. He was concerned about his sickness record in the light of having a sick line for three weeks. He did not, apparently, come formally to report an accident. He was shown a type written "letter" number 6/7 of process which he had prepared as an account of this meeting. He first said that the whole contents were written on 23 November 2010 but then contradicted that when he was asked to read through it and said that some parts were written well after the meeting. He was unclear as to which parts were written contemporaneously or when other parts may have been added. He could not say why he had prepared this document or who he expected to read it. He also said that the weather during the weekend before the pursuer came to see him had been very bad with heavy snow and low temperatures. Mr Boyland was an unimpressive witness and I was not prepared to rely on his evidence except where he was supported by other acceptable evidence. He was wholly unclear about what the pursuer might have told him on 23 November and I did not find the letter to which he spoke of any value.
[11] There was no other supporting evidence led on behalf of the pursuer in relation to the circumstances of this accident.
The defenders' submissions
[12] Ms Waugh submitted that I should not accept the pursuer's evidence for a number of reasons. She submitted that his account of the weather was exaggerated and his evidence was in conflict with the evidence of Noel Dale, a senior meteorological observer with British Weather Services, who had given evidence on behalf of the defenders and whose...
To continue reading
Request your trial
-
Jenna Sharp Against The Scottish Ministers
...witnesses indicated that the effectiveness of gritting salt would be minimal or of no effect in rain. [72] In McKeown v Inverclyde Council 2013 SLT 937 the Lord Ordinary (Burns) held that the local authority was under no duty to institute a system of “pre-salting” at a school, partly becaus......
-
Elizabeth Gilchrist Against Asda Stores Limited
...assessment simply to be devised as it must thereafter be implemented. She referred to the case of Steven McKeown v Inverclyde Council 2013 CSOH 141. [20] In her submissions about the application of law to the circumstances, counsel argued that as a general proposition, when anyone is requir......