Man made tetraplegic after falling from portacabin roof loses occupiers’ liability case in Outer House

About this case:

• Citation:
  [2023] CSOH 94
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Young

Pursuer John Davie suffered the injuries after he had gained access to a temporary construction site operated by Powerteam Electric Services Ltd, under contract by Vinci Energies UK Holding Ltd. He averred that the defenders ought to have known that the site, due to its proximity to a pub, constituted an attraction and allurement to members of the public.

The case was heard by Lord Young in the Outer House of the Court of Session. J Brodie KC and C Oliver, advocate, appeared for the pursuer and L Shand KC for the defenders.

Not a danger in themselves

The accident happened in the early hours of 29 September 2017 when the pursuer, then aged 28, was walking down Charlotte Street in Aberdeen on his way home having been out drinking alcohol with friends. He came across a temporary construction site in the control of the first defenders at which there were two portacabins stacked on top of each other, access to the top one being provided by a metal stairway.

When the pursuer got to the portacabins, he found that the gate was not closed over the entrance to the stairway with the consequence that the stairway was openly accessible. The pursuer wanted a quiet place to sit and think, and he decided that the roof of the upper portacabin was a good place to do so. Unfortunately, when he tried to descend from the roof, he lost his footing and fell 18 feet to the road, suffering an unstable fracture that resulted in tetraplegia.

It was acknowledged at proof that the pursuer’s case fell to be decided solely by reference to the Occupiers’ Liability (Scotland) Act 1960. He averred that the first defender ought to have known that the site constituted an attraction and allurement to members of the public; that it was known that licensed premises were in the locality; and that the stairway and guardrail provided a ready climbing frame and means of access to the roof of the portacabin.

Senior counsel for the defenders submitted that, if premises did not present a danger in themselves, the misuse of those premises by the pursuer could not render them dangerous for the purposes of the 1960 Act. In respect of the second defender, the case against them was irrelevant as there was no averment that they were occupiers of the site.

Heart breaking injuries

In his decision, Lord Young began: “In my opinion, this is one of those rare and exceptional cases in which an action for personal injuries falls to be dismissed. Senior counsel for the pursuer was correct to point out that all of the occupiers’ liability cases which were under discussion at the debate were determined only after evidence was led.”

He continued: “Given the heart breaking injuries suffered by the pursuer, there is a strong temptation simply to allow a proof before answer restricted to liability. However, I have ultimately come to the view that there is nothing to be gained from the leading of evidence in this case and that the pursuer’s claim is bound to fail even if he proves all of his averments.”

Analysing whether the premises were dangerous in and of themselves, Lord Young said: “The fall from the roof was not caused by the state of the roof itself such as by a slippery surface or part of the roof surface giving way. There was no defect in the roof itself. The relevance of this is that the defenders’ own actions have not created a danger on the roof. Nor has there been an omission such as a failure to maintain or inspect the state of the portacabin roof, which has created a danger.”

He went on to say: “It is also of some relevance that the specific duty founded upon by the pursuer, namely to prevent access to the stairway, is neutral in relation to the risk of falling from the roof. So, for example, the presence of a suitable barrier around the edge of a roof will minimise the risk of a person falling from the roof, but a barrier at the stairway entrance does not alter the risk of falling once the person is on the roof.”

Lord Young concluded: “If the roof of the portacabins was an allurement for adult members of the public, I would expect that the pursuer would be able to make averments of incidents when others were enticed to climb upon the portacabins in the 10 month period since the works commenced, or at least, averments of similar incidents within the construction industry on other sites. I do not understand why a temporary construction falls to be considered more of an allurement than a permanent one.”

For these reasons, and others relating to the scope of the defenders’ duties, the case fell to be dismissed.