Scotland: Authorities on occupiers’ liability considered in recent slip claim

A recent decision in the All Scotland Personal Injury Court has considered and restated the application of occupiers’ liability to claims in Scotland. Considering the appropriate authorities, Sheriff Fife reiterated that whilst the standard of care is to take reasonable care in all the circumstances to prevent injury or damage from reasonably foreseeable dangers, issues of occupiers’ liability remain very much fact specific.

McCann v Dumfries and Galloway Council [2021] SC EDIN 36

It is therefore important, when faced with such a claim, that all the background facts and circumstances are effectively investigated to determine whether liability is likely to attach. Our expert teams are available to assist in the investigation of these incidents, providing clear and effective guidance on the possible defence of subsequent claims.

Background

The pursuer was employed as a teacher and accompanied a group of her pupils to the Carlingwark Outdoor Centre for a residential trip including water sports on a nearby loch. These water sports started from a slipway constructed on several concrete sections. Some of the concrete sections were submerged by the waterline of the loch and were known to be very slippery underfoot.

The defenders had a Safe System of Work in place for water sports on the loch which involved pressure washing of the slipway to remove algae which had developed. However, such pressure washing was unable to remove algae located below the waterline.

On the date of the accident, the instructor had provided safety briefing to the children, warning them that the slipway was slippery, particularly below the waterline, referring to a recent slip involving one of the instructors themselves. Signs were also attached to nearby trees warning of the slipping risk.

The pursuer slipped when she inadvertently stepped below the waterline on a slipway whilst attempting to board one of the boats. She sustained an injury and sought damages from the defender.

Outcome

It was accepted that there was algae on the slipway below the waterline, that the defenders knew of the risk of slipping below the waterline, and that the risk was reasonably foreseeable.

However, the risk had been assessed as low on the basis that a person would not slip on the slipway above the waterline and anyone who did slip below the waterline would not fall far. Consideration was also made of preventative measures. The defender had attempted to remove the algae, but their attempts were time-consuming and only effective for a very short period. It was accepted manual cleaning to remove the algae was not a reasonable precaution.

Instead the defenders had erected warning signs and provided verbal warnings during safety briefings. This was deemed reasonable. It was held that “there was no hidden danger in the particular circumstances of this case. The pursuer could have avoided stepping into the water below the waterline by the exercise of ordinary care”.

Taking all the factors into account Sheriff Fife was of the view that the pursuer had not established negligence on the part of the occupiers and granted decree of absolvitor.

What can we learn?

• Sheriff Fife reiterated some of the factors to be considered in case such as this under reference to Murphy v East Ayrshire Council [2012] CSIH 47. In circumstances such as these, factors include the defender’s knowledge of the risk, its magnitude and the practicability and effectiveness of any preventative measures.
• As we have stated previously, with the gradual easing of lockdown measures,  local authorities or private companies who are unable to provide or continue with their usual maintenance regimes during the pandemic may find that incidents involving alleged personal injury increase upon the return of visitors. It is therefore imperative that all relevant risk assessments are kept updated, as well as preventative measures carried out where possible.