Jennifer's article from February 2021 discussed a decision from ASPIC about who had control of premises in an occupiers' liability claim.

Two years on from the first UK Covid Lockdown, Jennifer Thomson considers other decisions issued by the Courts over the last two years and whether these decisions offer clarity or calamity in this area of law. In this article Jennifer considers further decisions from the Scottish Courts issued over the last two years.

Yvonne Forrest v Iceland Foods Ltd [2021] Rep. L.R. 74 was a decision from ASPIC issued in spring 2021. 

Ms Forrest tripped on the raised edge of the entrance ramp outside a branch of the supermarket Iceland as she made her way into the store. The case proceeded to Proof on liability and contributory negligence. Damages were agreed in advance at £15,000.

The Court found the Defender in breach of their duties owed to the Pursuer under section 2(1) of the Occupiers' Liability (Scotland) Act 1960.   The ramp constituted a danger due to the state of the premises under section 2 of the 1960 Act.

Does the decision in Forrest provide clarity or calamity?

The decision provides clarity that the fact there were no previous accidents recorded by or reported to the occupier does not mean necessarily that liability can be successfully defended. ASPIC noted in its decision in this case that, whilst the Defender's witness evidence was that there were no reported accidents at the ramp in the five years before Ms Forrest's accident, this did not mean that no one had tripped over the ramp's edge. No previous accidents are one factor/piece of evidence that Courts will consider when reaching a decision about liability.

The decision also provides clarity that expert witness evidence can be useful in occupiers' liability claims. The pursuer led evidence from a Consulting Engineer at proof. The Sheriff commented that, whilst the precautions identified by the expert “were perhaps matters of common sense” he “found it helpful for a person with his engineering knowledge and experience to confirm what would be appropriate precautions."  It is always worth considering the potential benefits of expert evidence from both the Pursuer and Defender sides of a claim. 

The decision also provides clarity that, where modifications to an accident locus to make it safer could have been done but were not, liability will be more likely to attach to an occupier. This is particularly so where modifications were low cost and easy to do. ASPIC found that a reasonable occupier should have painted or marked the ramp's edge or put a handrail in place to draw people's attention to it. These modifications would have mitigated the risk and could have been undertaken at relatively low cost. 

This decision also provides calamity about contributory negligence, at least from an occupier's viewpoint. The Court deducted 25 percent from Ms Forrest's damages for contributory negligence. Ms Forrest's evidence during Proof was that there were advertising posters in the shop window which she may have been looking at when she tripped over the ramp's edge. In a case where the injured party's evidence was clear that they were not looking where they were going, the deduction for contributory negligence made by the Court was relatively low.

The case of Elizabeth Morag McCann v Dumfries and Galloway Council [2021] SC Edin 36 was a decision also issued by ASPIC in spring 2021. 

Ms McCann fell as she was climbing onboard a boat at the Defender's Outdoor Activity Centre. To climb onboard, she put her foot onto the slip way underneath the water level, lost her balance and fell. She sued the Defender under the Occupiers Liability (Scotland) Act 1960 as they operated the Centre.

The Court found that the Defender was not liable. The Council had done all that was reasonable to prevent injury from the reasonably foreseeable danger of slipping on the slipway.

Does the decision in McCann provide clarity or calamity?

The decision provides clarity that risk assessments are of the utmost importance for occupiers defending this type of claim. Risk assessments must be carried out, regularly reviewed, communicated to staff, and staff must be trained in their contents. In McCann, the Court decided that the risk assessment evidence, together with the other measures the Council had in place including signs, warnings issued to visitors etc, demonstrated that the Council were not in breach of its duties under the 1960 Act.

This decision also provides clarity about the sort of steps are reasonable for an occupier to take to fulfil their duties under the 1960 Act. The Council's staff gave evidence at Proof that they could manually clean the algae off the slipway under the water line using wire brushes, which was time consuming work. The algae would likely re-grow in weeks once cleared. The court decided that, in the circumstances, manual cleaning of the slip way below the water was not a precaution which it was reasonable for Council to take as occupiers.

This decision also provides calamity for claimants. Liability will not always attach to occupiers in slips and trips cases.  As lockdowns eased in 2020 and 2021, many people took part in outdoor activities around and in water such as wild swimming. It is likely that we will see more claims to come involving slips and falls in and around water in clams to come. It will be interesting to see if occupiers argue the doctrine of volenti in relation to such claims in future, and what sort of steps Courts will find that occupiers ought to have reasonably taken. 

For the various questions which arise in the COVID19 era, which Jennifer will address in a future article, it is useful to have the clarity of decisions such as these two cases in the area of occupiers' liability.