Woman fails in personal injury damages claim after falling over stone at Scottish estate



Sheriff Kenneth McGowan
Sheriff Kenneth McGowan

A woman who fell over a large stone while walking in the grounds of a Scottish estate has had her action for damages dismissed.

The All-Scotland Sheriff Personal Injury Court ruled that the pursuer, Louise McKevitt, failed to prove that the defenders, the National Trust for Scotland, breached their statutory duty of care, after she was injured during a visit to Geilston Garden in Dumbarton.

Accident

Sheriff Kenneth McGowan heard that the pursuer, 60, a scientist in the pharmaceutical industry, enjoyed visiting historic homes and gardens and was a keen photographer.

On 31 May 2014 she visited Geilston and was walking along a tarmac path to the main house and garden when she arrived at a junction with a grass path and stopped to consult her map, before deciding to continue towards the house.

The court was told that the area was in dappled sunlight – a mixture of bright sunlight and shade from the trees.

The pursuer did not notice the stone, which was about 51cm long, 43cm wide, and 20cm high.

In addition to lichen and moss, the stone and the path had the remnants of cherry blossom lying on them, which created a degree of camouflage.

Then, she took one or two steps forward and immediately fell over the stone, landing heavily onto her right side and sustaining certain injuries.

Occupiers’ liability

The legal basis for the claim was the Occupiers Liability (Scotland) Act 1960, section 2 of which provides that two matters require to be established, namely that there was a danger due to the state of the premises, and that there was a failure to take appropriate care.

On behalf of the pursuer it was submitted that the stone constituted a “danger” as it was not obvious since it was, to an extent, a “concealed feature”.

It was argued that the defenders failed to remove or otherwise deal with it in some way in order to “diminish the risk” it presented.

However, the defenders’ position was that the stone did not constitute a danger; or if it did, it was “obvious” and no steps required to be taken by the occupiers to guard against any risk created by it.

It was pointed out that the stone, which likely had some historical significance, had been there for a long time and that some 8,000 to 10,000 people visited Geilston each year, with no reported accident since the grounds had been open to the public.

The defenders argued that there was “ample time” for the pursuer to see the stone and that she would have seen it if she had been looking around properly.

In any event, it was submitted, there were no averments or evidence about what he defenders could or should have done.

No breach of statutory duty

The sheriff absolved the defenders after ruling that the trust was not liable for the accident.

In a written judgment, Sheriff McGowan said: “The pursuer said that she did not see the stone. I accepted that evidence. But it seems to me that I cannot say that she failed to see it as she approached the junction because it was in some way obscured. It may simply have been that she was not paying much attention to what lay further ahead. The stone is a different colour to the tarmac surface of the path and has light spots of lichen on the face which would have been pointing towards a person approaching from the hedge archway. In my view, the stone would have been noticeable to a path user approaching from that direction paying reasonable attention to what was ahead of them.”

The sheriff also dealt with a preliminary issue which arose, relating to whether evidence about what precautions could have been taken where there were no averments on record to that effect.

He said: “In my view, where the case is one of alleged negligent omission, it is for the pursuer to prove what steps should have been taken: that is a key part of showing negligence and it is for the pursuer to prove such…Applying that approach to the present case, I am inclined to the view that where evidence is to be led showing that a specific precaution was taken in other like situations (whether by the defenders themselves or other occupiers of like premises), that fact (that specific precautions were ordinarily taken in like circumstances elsewhere) needs to be averred as a matter of fair notice.”

The pursuer’s case failed after the court ruled in favour of the defender on the issue of causation.

Sheriff McGowan concluded: “The question as to whether allowing a stone of this size and colour to remain where it had apparently been located for a long time created a tripping hazard which the defenders should have taken further steps to guard against is a matter for the court to consider in all the circumstances. For the reasons set out above, the pursuer has not proved that the duty of reasonable care incumbent on the defenders required them to do more than they did. It follows that the pursuer’s case must fail.”

Copyright © Scottish Legal News Ltd 2018



Other judgments by Sheriff Kenneth McGowan