Outer House case concerning a claim made under the Occupiers’ Liability (Scotland) Act 1960 (and concurrent common law duties of care) and the Workplace (Health, Safety and Welfare) Regulations 1992 (in particular regulations 5 and 17) following injuries caused as the result of a seagull attack.

Background
Ms Kelly worked at the Ladyburn Business Centre in Greenock which was owned and operated by Riverside (who accepted that they were also in the position of an employer). Whilst leaving the premises to buy her lunch she was attacked by a seagull which swooped at her with its wings outstretched causing her to stumble and fall on steps outside the centre.

Decision
After hearing the evidence, the court dismissed the claim finding that it had not been established on the balance of probabilities that the seagull which attacked Ms Kelly had come from the centre. Even if it could have been shown that the seagull had come from the centre, the temporary judge found that the claim  would nonetheless have failed.

Occupiers’ liability
With regard to occupiers’ liability (both at common law and under the 1960 Act) it was found that the incident was not reasonably foreseeable as Ms Kelly had been unable to show that complaints of analogous incidents had been made to Riverside prior to her accident.

Workplace (Health, Safety and Welfare) Regulations 1992
With regard to the Workplace Regulations, regulation 5 was found to relate to maintenance rather than construction of the premises and Mr Kelly’s contention that the property should have been protected by measures such as spiking, meshing and netting were matters of construction. An argument that the seagull nests should have been regularly removed also failed as such acts were found to be control measures rather than maintenance.

Regulation 17(1) of the 1992 Regulations obliges an employer to organise the workplace “in such a way that pedestrians and vehicles can circulate in a safe manner”. However Ms Kelly’s case under that provision also failed, the temporary judge finding:

“The pursuer has failed to tie in the attacking bird to the roof of the LBC. That is of course a different and antecedent point in this case, but it is also an important one in the context of consideration of regulation 17. It is simply, in my view, not feasible to consider the behaviour of wild creatures such as herring gulls and lesser black-backed gulls in the context of a regulation such as regulation 17(1) which addresses the organisation of a workplace. This is especially so when knowledge of an actual problem has not successfully been imputed to persons such as the defenders in this case.”

The full judgement is available from Scottish Courts here.

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Outer House case in which Mrs Gillie, a janitor at Galashiels Academy, sought damages after slipping on Vaseline on the school stairs and sustaining injuries. Mrs Gillie claimed that the accident had occurred as a result of the Council’s breach of 12(3) of the Workplace (Health, Safety & Welfare) Regulations 1992 (which requires that floors and traffic routes in workplaces are kept free from obstructions or substances which may cause a person to slip, trip or fall).

The Council accepted that in all probability the Vaseline had got on the stairs as the result of a prank by sixth formers at the school on what had become a traditional “prank day” on the pupils’ last day at school before study leave. However, the Council argued that they were not liable to Mrs Gillie as it was not reasonably practicable for them to keep the stair free from substances put there as part of a prank.

After considering the authorities on what was reasonably practicable, Lord Boyd noted the following:

1. it was for the Council to establish that it was not reasonably practicable to keep the stair free from the substance upon which Mrs Gillie slipped;
2. the assessment of what is reasonably practicable involves a balancing exercise putting on one side the degree or quantum of risk against the sacrifice in terms of loss of money, time or trouble; and
3. in the assessment of what is reasonably practicable it is relevant to consider whether or not the incidence and nature of the risk was reasonably foreseeable.

Lord Boyd found in favour of the Council. Although the placing or dropping of Vaseline on the stairs risks serious injury, the foreseeability of such an event occurring, as opposed to any other “prank”, was very low indeed. Against that, the time and resources that would have been required to eliminate that risk over and above the measures that the Council had already taken[1], was disproportionate to the risk. Accordingly, in all the circumstances, Lord Boyd was satisfied that it was not reasonably practicable for the Council to ensure that the stair was kept free of Vaseline.

The full judgement is available from Scottish Courts here.

Inner House case concerning a clerical assistant at Kirkriggs School in Glasgow who injured herself when she fell from a toilet bowl whilst trying to open a window.

An extra division of the Inner House allowed a reclaiming motion and Ms Wallace was granted damages of £31,800 reduced by 50% in respect of contributory negligence.

The decision turned on the Workplace (Health, Safety and Welfare) Regulations 1992 and in particular on Regulation 15(1) which says:

“No window, skylight or ventilator which is capable of being opened shall be likely to be opened, closed or adjusted in the manner which exposes any person performing such operation to a risk to his health or safety.”

The extra division of the Inner House found that regulation 15 (1) required the Council to address the question of how the window might be opened, closed or adjusted. If the Council had carried out a proper risk assessment in relation to the opening of the window they would have discovered the risk of injury to persons of Ms Wallace’s height (5’1”) if no window pole was provided in the toilets or, at least, made very readily accessible at all times nearby.

Lord Tyre had suggested that Ms Wallace should simply have refrained[1] from seeking to open the window.  However, in the Inner House, it was considered that this was to ignore the significance of the duty on the Council[2]  with regard to the ventilation of areas such as the toilet. It appeared that the only source of ventilation of the cubicle was to be obtained by opening the window.  The Court found that:

“A proper risk assessment would have pointed out the risk of someone, like [Ms Wallace], when no window pole was available, seeking to open the window for ventilation purposes either by standing and stretching, which itself could have caused injury, or, alternatively, attempting to reach the window by standing on what appears to have been the sole means of doing so, namely the toilet bowl, which itself would have been dangerous.

The full judgement is available from Scottish Courts here.