Sandra Theresa Mccrindle V. Gala Casinos Ltd
| Jurisdiction | Scotland |
| Judge | Lord McEwan |
| Neutral Citation | [2007] CSOH 35 |
| Date | 16 February 2007 |
| Docket Number | PD1519/04 |
| Court | Court of Session |
| Published date | 16 February 2007 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH 35 | |
| PD1519/04 | OPINION OF LORD McEWAN in the cause SANDRA THERESA McCRINDLE Pursuer; against GALA CASINOS LTD Defenders: ________________ |
Pursuer: McCaffrey; Digby Brown
Defenders: Higgins; Simpson & Marwick
16 February 2007
[1] On 6 July 2002 Mrs McCrindle, then aged 50 went with her husband to the Gala Casino in Edinburgh. She went there late at night. The building is quite famous for its 1930s architecture. It is at the western extremity of Edinburgh. It has had many lives and is now a Casino. Mr McCrindle watched blackjack being played and enjoyed some drinks with his wife. They left some hours later to go home. As Mrs McCrindle went down the outside steps of the Casino to her taxi she fell. In this action she has now sued the Casino. The pursuer gave evidence about what happened on the night as did her husband Ronald. She also led evidence from her son Daniel and daughter Vanessa which was largely to do with damages. Dr Moore and Dr McQueen gave further medical evidence. All of this latter chapter is superseded by the agreement in the Joint Minute No 20 of process. The only other evidence led was on the merits. Mr Watson an Architect gave evidence about the stairs. There was also lodged for the pursuer a report by another expert witness Mr Glen who is a consulting engineer. He did not testify. The defenders led evidence from Helen Ellis an employee of the defenders of longstanding, and Mr John Spencely an eminent architect. As will emerge the whole case turned on measurements and geometry and a conflict between the experts.
[2] It is of some importance to notice what the pursuer avers on record. She describes the semi-circular outside steps (seen in the photographs No 7/8 of process) and their measurement as to width and height. She avers that she was descending at the middle and lost her footing as she was about to put her right foot down on to the second step. I mention this detail as it became important as the proof proceeded.
[3] A number of authorities were referred to viz. Cole v Weir Pumps 1995 S.L.T.(Notes) 12, McGlone v British Railways Board 1966 S.C.(H.L.) 1, McMillan v Lord Advocate 1991 S.L.T. 150, Martin v Greater Glasgow Health Board 1977 S.L.T.(Notes) 66, Reid v Greater Glasgow Health Board 1976 S.L.T.(Notes) 33, Scott v Glasgow District Council 1994 G.W.D. 28, 1715 and Titchener v British Railways Board 1984 S.C.(H.L.) 34.
[4] For the pursuer Mr McCaffery presented a written submission to the court which he read out. There are 93 paragraphs in the document which merely rehearse the evidence. Elsewhere I have made my findings in fact and for the present I need not say any more about the document.
[5] Beyond that counsel referred me to section 2(1) of the Occupiers Liability (Scotland) Act. There were three important factors, the duty of care, the control which the defenders had over the premises and their negligence. It was important to ask why the defenders had put a handrail up after the accident. He asked me to accept the evidence of the witness Watson about the geometry, the facts all in relation to the lighting. The stairs in their entirety were a hazard. The premises were often used at night and the defenders must have been aware that alcohol was sold on the premises. He referred me to four cases, McGlone, Reid, Cole and Scott. If the pursuer was at fault to any extent it was minimal.
[6] Counsel maintained that the Buildings Standards (Scotland) Regulations 1981 applied to the Casino. Beyond that bald assertion he did not attempt to show what regulation applied and why. The record, pages 4/5, does not mention any particular regulation, and no specific point is made about it in the written submission. Counsel ended by reminding me of the terms of the joint minute, No 20 of process, about quantum.
[7] For the defenders Miss Higgins did not present a written submission and her argument may be summarised in this way. The pursuer's children should be accepted as credible. However, the pursuer was not a reliable witness. She had given three different versions of the accident. She must have been familiar with the steps as she had been often to the casino. When she left she had had four alcoholic drinks (gin and tonic). The shoes she wore had no back strap. If she had thought the steps were unsafe why did she not hold on to her husband. She only sued once the handrail was erected. It was not credible that she would have used any handrail. The husband described the steps as "frightening", but the photographs contradicted that. It could not have been his opinion at the time of the accident or else he would have assisted his wife. Helen Ellis should be accepted as credible and reliable. Annie Fisher mentioned in the evidence was not called as she was on a list objected to by the pursuer.
[8] Counsel then dealt with the three expert witnesses. She said I should not accept Glen's report, No 6/2 of process, at all. By choice he was not called as a witness and the other witness, Watson, had neither spoken to or met Glen. She invited me to reject Mr Watson. He was not objective and was merely an advocate of the pursuer's case. He lacked experience, was not familiar with the many regulations and could not say what applied beyond best practice. He did not investigate the history of the building, was unaware that there were several accesses to it including one for the disabled. He made no night visit. On detail he relied on Glen's figures which were not specific. His method of measuring was not in accordance with acceptable standards. His opinion was dependant on an incorrect factual basis. He had assumed the pursuer stepped down from the top step (the platt). That was not in accordance with the evidence. His evidence about lighting again contradicted the pursuer. Watson relied in a vague way on the Disability Discrimination Act 1995 but with no clear statement as to how it applied. It was not clear that he knew the building had many other accesses including one for the disabled. He was not objective and wanted to find blame. The real flaw in his evidence was to say it was not necessary to find where the pursuer fell.
[9] Spencely was, on the other hand, an impressive and experienced witness. He measured with accuracy in the correct place. He was familiar with the relevant Regulations but even he could not say which applied, due to the difficulty of knowing when the alterations were done. He visited by day and by night and was in a better position to give an opinion on the proved facts. He should be accepted on the best practice agreement. The tolerance variation he found was within acceptable limits.
[10] I now move to what I find in fact either as agreed or not seriously disputed. It will assist if I give a brief description of the Casino and the steps, which I find established without any argument in the evidence. They are well seen in the photographs (6/4 for the pursuer and 7/2 for the defenders). The building is white in colour and at the entrance in question there are four steps up from a tarmac car parking area. Standing at ground level (tarmac) there are three up steps and a fourth is on the tiled platt or landing towards the door. Going down the fourth landing is the tarmac. The steps are not steep. The total height of the steps is about 600 mm. The steps follow a shallow outward curve and consist of a series of red coloured slabs butted together to form a curve and grouted where they join. In the evidence where they join was called the facet. The steps rest upon risers and at the top give way to a black and white tiled area leading to a revolving entrance door and a push door. The handrail mentioned is seen in the centre of the arc and runs from the back edge of the top step to the tarmac. It was erected after the accident to the pursuer. There are a number of other photographs of the Casino inside and out, by day and by night in the defenders' report, No 7/8 of process.
[11] I find the technical description of the stairs to be as follows. The "tread" of a step is its whole horizontal surface from front to back edge. The "riser" is the vertical slat on which the step rests. Going downwards, if the front edge of the step butts exactly with the riser that is known as an "open rise". More normally the front of the tread will project beyond the riser thus overlapping the back edge of the step below. This overlap is called a "nosing" (a "dead" area going down). This nosing projects vertically down to the step below and from that point forwards to the front edge of the step below is called the "going". The going is the effective part of a step on which a foot will land. General Building Standards illustrate this in No 6/8 of process. All four steps having nosing, perhaps best seen in 6/4 of process.
[12] I now move to the areas of dispute. I have given a description of the steps and the technical terms used to define it. The photographs show what is obvious - that the tread is greater than the going. Since the nosing projects there is more on which to place one's foot when going up than when coming down. The pursuer's case in law is that, according to her expert, each descending going is different and unexpectedly so, i.e. a matter of geometry. That has to be contrasted with her own evidence which tends to suggest that walking without any support she caught her foot on a facet or nosing. It is also of importance to remember that the pursuer in evidence made no complaint about the lighting, or about being unable to see the edge of the steps.
[13] The way the evidence was led now leads me to address what ultimately this case is not (my emphasis) about. There is a complete lack of any detailed acceptable evidence about the history of the steps. It is wholly unclear if they were ever altered or repaired far less when. The experts have assumed that they would have been altered and there is some unreliable hearsay evidence that...
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