Mr Colin Syme V. East Lothian Council
| Jurisdiction | Scotland |
| Judge | Sheriff P.J. Braid |
| Court | Sheriff Court |
| Date | 14 November 2011 |
| Docket Number | PD24/10 |
| Published date | 15 November 2011 |
| SHERIFFDOM OF LOTHIAN AND BORDERS AT HADDINGTON Court Ref: PD24/10 | |
| Judgment by SHERIFF PETER J BRAID In the cause MR COLIN SYME, residing at 107 High Street, Tranent, East Lothian Pursuer against EAST LOTHIAN COUNCIL, having a place of business at John Muir House, Haddington, East Lothian EH41 3HA Defender ________________ |
Haddington, 14 November 2011
Act: O'Carroll
Alt: McNaughtan
The Sheriff, having resumed consideration of the cause, refuses the defenders' motion to dismiss the action; grants the pursuer's motion for a proof to be assigned on a date afterwards to be fixed; assigns Monday 5 December 2011 at Sheriff Court House, Court Street, Haddington as a hearing on further procedure and on expenses.
NOTE:
Introduction
| 1 | In this action, which is a personal injuries action as defined in, and governed by, Chapter 36 of the Sheriff Court Ordinary Cause Rules 1993, the pursuer sues the defender, a local authority, for damages of £100,000 in respect of injuries said to have been sustained in an accident on 6 July 2007. |
| 2 | The initial writ was lodged on 1 July 2010, shortly before the expiry of the triennium. I deal with the pleadings more extensively below but at this stage, suffice to say that the pursuer avers that he was injured when his foot caught in a drain on a footway owned by the defenders, from which the cover was missing. His case, stated briefly, is that the defenders, as occupiers of the footway, ought to have inspected the footway and that, had they done so, the accident would not have occurred. The defenders admit that they owed certain duties to the pursuer but deny that they were the occupiers of the footway or that they had any duty of inspection. |
| 3 | Although there is nothing intrinsically complicated about the facts of the accident, and although it is now some fifteen months since the action was raised, no proof has yet taken place, nor indeed been assigned. Rather, the case called before me for debate on 7 October 2011. |
| 4 | Since the Chapter 36 rules make no provision for debates, but provide for a truncated style of pleading with no pleas in law, it is, I think, necessary to say something of how the debate came to be fixed, and what the purpose of it is. In January 2011, the pursuers lodged a record along with a motion for a proof to be assigned for the date previously allocated provisionally in the timetable issued to the parties. That motion was opposed and a debate was fixed for 13 May 2011. That debate was subsequently discharged to enable amendment procedure at the instance of the pursuer to be followed through. At the conclusion of that procedure, a further debate was fixed for 19 August 2011. Shortly before that debate the pursuer lodged another minute of amendment and the case called before me (for the first time) on 18 August 2011. Not without some hesitation, I allowed the minute of amendment to be received and answered, and discharged the debate set down for the next day. Following that amendment procedure, the case next called on 3 October 2011, when the defenders renewed their motion for a debate, founding upon their "revised paper apart" in which they stated that they opposed the fixing of a proof on the grounds stated therein. The essence of the defender's position was that certain averments should not be admitted to probation as being irrelevant, and that following deletion of those averments, there remained no relevant averments of common law fault. The action should therefore be dismissed. |
| 5 | In an ideal world, I would have dealt summarily with the question of further procedure on 3 October, by deciding on that date whether the pursuer's averments were adequately specific to allow inquiry or not. However, I noted that previous debates had been allowed and that the defenders' position was that notwithstanding the amendments the previous defects in the pursuer's pleadings had not been cured. There was in any event insufficient time to argue the matter fully on that date. Further, it is unclear how chapter 36 is intended to operate where a court refuses to grant a motion by a pursuer to fix a proof on grounds of lack of specification. I therefore fixed a further debate. However the fact that a further debate was set down and duly took place should not in my view detract from the true nature of the issue before me which is whether the pursuer's averments are sufficient allow him to proceed to proof having regard to the provisions of Chapter 36 of the rules. That said, it was not suggested to me that the power to dismiss an action as irrelevant has been removed provided that the test in Jamieson v Jamieson 1952 AC 925 is satisfied, that is, if the action would be bound to fail, although the conceptual basis for doing so in the absence of pleas in law, or a specific power of dismissal, was not explored before me. I therefore do proceed on the basis that if I were to conclude that the action is bound to fail, I would be entitled, or even bound, to dismiss it. |
The debate
| 6 | Against that somewhat lengthy preamble, I now turn to the debate of 7 October. The pursuer was represented by Mr O'Carroll, Advocate and the defenders by Mr McNaughtan, Advocate. |
Defenders' submissions
| 7 | In line with the revised paper apart, Mr McNaughtan invited me to dismiss the action. The first branch of his submission was that the pursuer had pled no relevant breach of statutory duty. In amplification of this submission, he argued, first, that the Roads (Scotland) Act 1984 had no application since the footway in question has not been adopted. (In the event, this was not disputed by the pursuer, and I find it unnecessary to refer to the 1984 Act in any detail). |
| 8 | Next, Mr McNaughton argued that the pursuer's averments were not relevant to establish that the defenders were the occupiers of McNeil Path in terms of the Occupiers' Liability (Scotland) Act 1960 ("the 1960 Act"). Ownership did not create the necessary degree of occupation and control necessary for there to be occupation. It was not sufficient to aver, as the pursuer did, simply that the defenders were the occupiers. That averment was irrelevant in the absence of any specification as to what actual occupation or control was exercised. The footpath was not a council headquarters, sports centre or even the common close of council housing. In terms of section 1 of the 1960 Act, an occupier was a person occupying or having control of land or other premises. Although section 2 of the Act had effect in place of the common law rules, section 1(2) made clear that the common law rules still applied in determining who should be regarded as an occupier. That was illustrated by Murray v Edinburgh District Council 1981 SLT 253, in which it was also held that a person was only in occupation or control of premises for the purposes of the 1960 Act if he was in a position to say who shall and who shall not come on to the premises. So, in that case, a landlord could not be said to be in occupation of premises which were tenanted to the pursuer. In the later case of Gallagher v Kleinwort Benson 2003 SCLR 384, Lord Reed had conducted a detailed analysis of what had to be pled to establish that defenders were occupiers of property. One of the issues in that case was who were the occupiers of the flat roof of a Victorian building, the pursuer having sued various parties under the 1960 Act. One of those parties was the proprietor of the basement and ground floor of the building who had a right in common to the roof. However, the case against that party was held to be irrelevant. After reviewing the authorities cited to him, Lord Reed concluded that ownership of premises did not of itself render the owner an occupier of the premises (subject to possible exceptional circumstances). Rather, the status of occupier was normally dependent on some degree of physical control. That generally meant occupational control. An occupier's liability was based upon his capacity to act so as to make the premises safe. Lord Reed noted that conspicuously absent from the pursuer's pleadings was any averment that the first defenders had physical control to any degree of the roof. He therefore concluded that the averments against the proprietor of the basement and ground floor were irrelevant, so far as based upon the 1960 Act. |
| 9 | In Gallagher, Lord Reed had also considered what was meant by "control" of premises for the purposes of the 1960 Act. At page 416, he stated: "The 'control' of premises which brings a person within the ambit of section 2(1) of the 1960 Act is such control of the premises as enables that person lawfully to take the steps which are necessary to fulfil the duty of care imposed by that section." So, he also held as irrelevant, averments that the eighth defenders in that case, who were subtenants of two offices within the building including the office from which entry was obtained to the roof, were occupiers. |
| 10 | Applying Lord Reed's analysis to the present case, the pursuer had made no averments that the defenders had actual physical control of the locus. Accordingly, there was no relevant case and the occupier's liability case fell to be dismissed. |
| 11 | Mr McNaughtan then turned his attention to the pursuer's common law case. Although the road was not a public road which the defenders had any duty to maintain, the body of case law which considered a local authority's duties in relation to gritting of roads and pavements, and inspection for defects, could be "read across" in order to ascertain what duties might be incumbent upon the defenders here. Mr McNaughtan referred to the following cases: Gordon v Inverness Town Council 1957 SLT (Notes) 48; Grant v Lothian Regional Council 1988 SLT 533; Gibson v Strathclyde Regional Council 1993 SLT 1243; and Syme v Scottish Borders Council 2003 SLT 601. |
| 12 | Mr... |
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