Scotland: Store liable for trip injury caused by rising edge of ramp

A recent liability claim in Scotland has provided a timely reminder to retail premises of their obligations to their customers in respect of trip hazards. As the lifting of lockdown measures continue, owners and occupiers will need ensure that their premises remain safe for visitors, particularly as additional hazards may have been created by a lack of maintenance or attentiveness due to lockdown measures.

Forrest v Iceland Foods [2021] SC EDI 27

In this claim, the pursuer had tripped on a rising edge of a ramp as she approached the store from the car park. There was nothing to highlight the ramp or draw customers’ attention towards it. The Sheriff found that the defender knew or ought reasonably to have known that the rising edge was a danger pursuant to section 2 of the Occupiers’ Liability (Scotland) Act 1960 (“OLA”), and it had not taken care as reasonable in the circumstances to ensure that the pursuer was not harmed.

Background

The pursuer brought a claim under the OLA after she tripped over the exposed rising edge of a shallow ramp situated in the defender’s car park. She sustained fractures to her right wrist and left knee.

The ramp in question ran from the surface of the car park and very gradually inclined towards the store. One side of the ramp was bounded by a wall, the other had an exposed rising edge that protruded from the surface of the car park. At its highest point it was approximately 200mm in height. The ramp was not painted or highlighted. However, in the 6 years or so that the ramp been in situ, there had been no reported accidents. Weekly checks of the car park had been undertaken with the rising edge had never considered a risk.

Although the pursuer had last visited the store around one year prior to the accident, she had successfully negotiated the ramp on her previous visits.

On the day of the accident, the pursuer stated there were advertising posters in the windows of the store to attract customers’ attention, and she may have been looking at these but could not be certain.

Evidence

The pursuer submitted that from her direction of travel the ramp was difficult to see as it was the same colour as the car park. She believed that had the rising edge been highlighted or a handrail or wall in place at the edge she would not have tripped.

The pursuer’s expert, a chartered engineer, opined that the cheapest way to avoid the risk the edge of the ramp posed was to use concrete paint to paint the rising edge yellow and black. In the alternative, a more effective measure would have been to install a balustrade or a small upstand wall along the length of the ramp.

The store manager explained that any slip or trip hazards would be documented and fixed straight away. He did not consider the ramp to be a tripping hazard. There were no faults with the ramp and nothing had been done to change its appearance following the pursuer’s accident.

The defender submitted that the there was no cogent reason why the pursuer had not seen the ramp. She knew it was there because she had seen it twice before.

Judgment

The Sheriff had “no difficulty in accepting” the pursuer’s evidence; she was clear she had not seen the ramp and had tripped on the rising edge. The Sheriff found that the colour similarity made it more difficult to see the rising edge, and the lower edge was less noticeable than the higher part.

The defender knew or ought reasonably to have known that the rising edge was a danger pursuant to s2 OLA 1960. The defender’s failure to mark the edge, or position an appropriate barrier meant that the defender had not taken care that was reasonable in all the circumstances. It would have been apparent to an ordinary reasonable occupier that harm could be caused by the failure.

Therefore, but for the defender’s failure the pursuer would not have been injured.

The pursuer was therefore successful on the issue of primary liability, although she was found to be 25% contributory negligent.

What can we learn?

• The lack of previously reported incidents was not fatal to the claim. The Sheriff pointed out that whilst there was no history of reported accidents in the last five years this did not mean that nobody had tripped over the rising edge.
• The defender submitted that the court did not need specialist input to determine whether something was a trip hazard. However, the Sheriff stated he did derive assistance from the expert evidence provided by the pursuer regarding approximate measurements and site visits to a tanning shop and hotel with a similar style ramp. Whilst the precautions identified by the expert “were perhaps matters of common sense” the Sheriff stated he “found it helpful for a person with his engineering knowledge and experience to confirm what would be appropriate precautions”.
• The Sheriff acknowledged that both parties had referred to the case of McKevitt v National Trust for Scotland [2018] SC EDIN 20 but he was clear that “each case under the 1960 Act turns on its own facts” and therefore it was not necessary to conduct a detailed analysis of this case.