Occupiers’ liability for injury: case law

Wet floor

A recent example of the application of s.2 of the 1960 Act, where the Scottish court considered the relevance of Health and Safety Executive guidance, is Lowe v Cairnstar Ltd (2020). The case concerned a customer (L) who slipped on a nightclub toilet floor and fractured her ankle. She claimed compensation from the owners and occupiers of the nightclub in common law and under s.2 of the Occupiers’ Liability (Scotland) Act 1960.

L claimed that she had fallen because of water or other liquid on the floor which made it slippery and that the occupiers had been in breach of their duties by failing to install flooring which met the recommended slip resistance considered by the Health and Safety Executive to provide a safe floor environment when wet.

The occupiers disputed that the floor had been wet and stated that they undertook a reasonable system of inspection of the toilets. L’s brother, who had been present in the nightclub at the time, stated that L had been drinking but was not intoxicated and that he had seen mud and water on the floor when he went into the toilet after the incident.

A health and safety consultant gave evidence that the risk of slipping on the toilet floor when it was dry was low, but when wet it represented a high risk. The location of the floor meant that it was likely to get wet or contaminated and the level of slip resistance would not have been likely to provide a safe floor environment at the date of the incident.

The nightclub occupiers maintained that they had a spillage policy, so that any spillages in the nightclub were cleaned quickly. They claimed the toilets were regularly checked and the checks were logged. They also gave evidence that the floor was dry when L fell.

The Scottish court found in favour of L and awarded her £12,000 compensation. It made the following points:

• The floor was wet. The evidence did not suggest that L was so intoxicated that she could not give reliable evidence.

• L’s expert witness had a high degree of expertise and experience in the area of measuring the slip resistance of flooring. He was entirely credible and reliable and his evidence should be accepted.

• The evidence of the owners was unsatisfactory and their witnesses were unreliable. There was no reliable evidence that the toilet had been inspected before L fell.

• The occupiers had been in breach of their duty of care as occupiers by failing to install flooring which met the recommended slip resistance. The levels of slip resistance did not provide a safe environment when the floor was wet, which it was likely to be because of its location.

• The occupiers’ own risk assessment had identified slipping on wet tiled flooring as a hazard and had assessed the risk as high.

• The floor, when wet, was a danger of which the occupiers were aware. The tiles did not comply with Health and Safety Executive recommendations and represented a high risk of slipping when wet.

• Any system of inspections could have discharged the occupiers’ duty of care.

• L’s contributory negligence was assessed at 25%. The floor was wet with enough water or liquid to be seen by persons using the toilet and L should have seen it. She had failed to take reasonable care for her own safety.

In another recent Scottish case, Anderson v Imrie and Another (2016), the eight-year-old pursuer’s (claimant) mother had arranged with the wife of a farmer for him to go to the farm to play with the farmer’s five-year-old son. The pursuer tried to get through a gate across a doorway to a stable, which was attached to the stable by a chain, or perhaps a rope, at the top right-hand corner. It was not connected in any way at the other end. The pursuer stood on one of the rails of the gate and reached up to detach or loosen the chain. As he did so, the gate toppled back crushing him beneath it. He struck his head against a concrete surface. The Scottish court found that it was right to hold that the pursuer was partly to blame for the accident. Although he was only eight years old at the time, he would have been aware that he should comply with the instructions given by the farmer’s wife not to enter this area. He would also have had sufficient understanding to realise that it was dangerous to climb onto and interfere with the heavy gate by detaching it from the barrier. He should be found 25% to blame for the accident.

In the Scottish case of C v City of Edinburgh Council (2018), the claimant was injured when a sign fell from the wall of a primary school and struck her on the head. She suffered a serious laceration and a frozen shoulder. She claimed compensation from the local education authority under the Occupiers’ Liability (Scotland) Act 1960. Her claim succeeded. The defendant had failed to take reasonable care for the safety of visitors to the school. If the sign had been inspected before the incident, defect would have been noted and the sign removed or secured. Screws holding the sign were rusted and the board was wet and water-damaged. Compensation of £45,752 was awarded.

In Cairns v Dundee City Council (2017), a Scottish court rejected a claim under the Occupiers’ Liability (Scotland) Act 1960 by a pedestrian who was injured when he slipped on black ice in a public car park. The incident occurred on a Saturday. DCC’s maintenance assistant worked on weekdays, but did not work on Saturday. He did not visit all of DCC’s car parks daily and he exercised experience and judgment as to whether gritting was necessary. The claimant argued that the absence of an ice detection and treatment regime was a breach of DCC’s duty. The Scottish court dismissed the claim. It ruled that the time at which the black ice formed was a matter of speculation and it could not be said whether it would have been gritted before the accident. The duty of care did not extend to erecting a warning sign.

In the recent case of McKevitt v National Trust for Scotland (2018), M was injured when she fell over a stone in the garden grounds of a National Trust for Scotland site. The stone was to the side of a path, parts of which were covered in lichen and moss. M was looking at a map when she fell. She argued that the stone was a danger for the purposes of the Occupiers’ Liability (Scotland) Act 1960. It was unusual and partly concealed. NTS knew about the state of the path and had failed to deal with the stone. She claimed compensation for her injuries. The claim was dismissed. The Scottish court ruled that the stone was not an obvious danger and NTS was not obliged to take precautions. M had not proved that NTS’ duty of reasonable care required it to do more than it had done. The risk of harm was not foreseeable. The standard of reasonable care did not require that steps be taken to guard against something which was a remote possibility.