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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MacLean v Caledonian Macbrayne Ltd [1999] ScotCS 250 (28 October 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/250.html Cite as: [1999] ScotCS 250

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On 18 May 1995, the pursuer sustained injury while working in the course of his employment with the defenders on a car ferry. He had to climb over a railing which consisted of four horizontal metal rails, supported at intervals by vertical metal posts. The top rail was a little over a metre above the level of the deck. There was no opening or gate in the railing. He slipped and injured his ankle. The Lord Ordinary has held that in failing to provide a gate in the railing, the defenders were in breach of statutory duties under certain regulations, and says that he would have held that the failure to provide a gate also constituted negligence at common law. However, his Lordship was also of opinion that although the defenders ought to have provided a gate, the pursuer's accident was not, in the requisite sense, caused by their failure to do so. He accordingly assoilzied the defenders. The pursuer reclaims.

The Lord Ordinary has accepted that the pursuer completed the stage of swinging each of his legs in succession over the top rail, and had reached the stage of standing on the further side of the railing, facing towards the railing, and holding the top rail with his hands. He accepts that somehow, in the final stage of the process, he lost his footing and twisted his right ankle. He says that he remains uncertain precisely how the pursuer came to fall and twist his ankle, and that whether his foot slipped off the rail onto the deck, or slipped when it made contact with the deck when he stepped down from the rail, is not clear. He adds that it does not seem to him to be essential for the determination of the case that he should be able to come to a positive conclusion about whether the pursuer's foot slipped off the rail, or slipped on the deck.

In relation to the pursuer's grounds of fault, the Lord Ordinary acknowledges that "at first sight it might be thought that there is no very great danger in climbing over a railing about a metre in height which is made up of a number of equally spaced metal rails". He was however persuaded on the evidence that the railing did not afford a safe means of access. The pursuer's expert witness, Captain Thomson, identified a risk of loss of balance on the part of the crew member who had to climb over the railing. The Lord Ordinary says that it became clear in the course of his evidence that what he saw as constituting the danger "was the period when the man, having climbed up a rail or two, had to swing first one then the other leg over the top of the railing with nothing to hold onto other than the top rail, seeking new footholds on the other side of the railing, adjusting his handholds, and manoeuvring his body round to face in the opposite direction as he did so. He perceived a risk of loss of balance or loss of foot or handhold while undertaking that manoeuvre. He did not, on the other hand, see any lack of safety in simply stepping down from the railing onto the deck." The distinction which is thus drawn between the period which constituted the danger and "simply stepping down from the railing onto the deck" lies at the heart of the Lord Ordinary's decision, and of this reclaiming motion.

The Lord Ordinary accepts that there is a sense in which it can be said that the pursuer's accident was caused by the defenders' negligence or breach of statutory duty. "If the defenders had performed the duties incumbent on them, the pursuer would have made his way through the gate.... He would have had no occasion to be stepping down from the railing, and would therefore not have slipped and fallen.... The accident would therefore not have happened if the defenders had performed their duties." However, after expressing the view that the pursuer could succeed "only if his accident was the consequence of the danger which made it the defenders' duty to provide a gate", the Lord Ordinary holds that it was not the consequence of that danger. He notes that if the pursuer had lost his balance or his footing while carrying out "the precarious manoeuvre at the top of the railing" the accident would have been caused by negligence or breach or statutory duty. But he observes that he has held that "in fact he slipped and fell after the perilous stage of the manoeuvre had been completed. He fell while stepping down from the lower rail.....". He describes the stage which the pursuer had reached as one which "Captain Thomson (in my view rightly) accepted, was not a dangerous or risky manoeuvre, and would not by itself have made the provision of a gate necessary". On this basis the Lord Ordinary concluded that although the defenders ought to have provided a gate, the pursuer's accident was not, in the requisite sense, caused by their failure to do so.

The pursuer's grounds of appeal are to the effect that having found in fact inter alia that (1) the pursuer injured himself when climbing over a railing; (2) the failure by the defenders to provide a gate in the railing constituted a breach of statutory duty and negligence; and (3) had such a gate been provided the accident would not have occurred, the Lord Ordinary erred in holding that the breach and negligence did not cause the pursuer's injury. Counsel for the pursuer and reclaimer did not depart from this proposition; but it became clear that the contention that these three findings necessarily entailed a finding of breach and negligence depended on regarding "climbing over a railing" as a single process, which could not realistically be broken down into separate stages, of which one might involve danger while another might not. Failure to provide a safe means of access may result in a pursuer having adopted an unsafe means of access. But if that unsafe means of access contains a number of distinct phases, only one of which involves any lack of safety, counsel did not go so far as to contend that the pursuer would have established the necessary causal connection between failure and injury, if the injury was sustained at a separate earlier or later stage, distinct from the only identified danger. The submission was rather that climbing over a railing was such a short and simple manoeuvre that it could not be sub-divided in this way, and must be regarded, as a whole, as safe or unsafe. Having recognised that it was unsafe, the Lord Ordinary should have held the causal relationship established.

At first sight, it may seem surprising that so simple an operation has been analysed and sub-divided into stages. Even if one acknowledges that it is possible to distinguish between different stages, they are so closely related in time and place that one might expect the movement through the various stages to be seen as continuous, so that it would be inappropriate to sub-divide the movement in phases. But the narrative of Captain Thomson's evidence which is given by the Lord Ordinary draws a distinction between two stages which seems to us to be an understandable one; and the Lord Ordinary's acceptance of that analysis does not seem to us to be one which we could quarrel or disturb in the absence of evidence contradicting it. We would note that counsel for the pursuer argued before the Lord Ordinary that the manoeuvre "should be seen as an undivided whole, since the pursuer's loss of his footing in the final stage may have been the consequence of momentum gathered in the earlier more precarious stage." The point was thus clearly put to the Lord Ordinary. What he says is that that is not how he understood the pursuer's evidence. The pursuer described himself as holding the top rail with both hands as he stepped down. The matter is essentially one of the assessment of evidence. We see no basis upon which we could hold the Lord Ordinary to be in error in rejecting the contention that the manoeuvre should be seen as an undivided whole, and not entitled to take the view that the stage which the pursuer had reached was not a dangerous or risky manoeuvre.

The Lord Ordinary was referred to the case of Banque Bruxelles S.A. v Eagle Star 1997 AC 191 at 213D. He quotes a sentence from the speech of Lord Hoffman at p. 213C to the effect that "normally the law limits liability to those consequences which are attributable to that which made the act wrongful." While we would agree with counsel for the reclaimer that the case is concerned with very different matters, this particular sentence was not really criticised, and does not appear to us to be unsound. Counsel referred us however to Stapley v Gypsum Mines Limited 1953 AC 663, and in particular the speech of Lord Reid at pps. 681-2. A question arose as to whether the death of Stapley was caused (partly) by the fault of one Dale. Lord Reid said that he thought it useful to adopt phrases from Lord Birkenhead's speech in Admiralty Commissioners v Volute (Owners) 1922 1 A.C. 129, and to ask was Dale's fault "so much mixed up with the state of things brought about" by Stapley that "in the ordinary plain common sense of this business" it must be regarded as having contributed to the accident. Lord Reid continues "I can only say that I think it was and that there was no 'sufficient separation of time, place or circumstance' between them to justify its being excluded." Lord Reid's approach is plainly one which will often be helpful; but we do not think that what he says rules out the approach adopted by the Lord Ordinary, on the basis of Captain Thomson's evidence, in the present case.

In these circumstances, we would refuse the reclaiming motion and uphold the Lord Ordinary's granting of absolvitor. That being so, no decision is necessary in relation to contributory negligence. The only aspect of contributory negligence which was in point when the case came before us was an alleged failure on the pursuer's part to place his feet with sufficient care. It was unnecessary for the Lord Ordinary to determine whether, if he had taken more care, the pursuer could have avoided the accident. But he goes on to say that "given the lack of danger in what he was seeking to do when he fell, it would be difficult, in my view, to avoid the conclusion that with more care the pursuer could readily have avoided slipping and falling." In the context of the Lord Ordinary's analysis of the facts, that comment does not appear to us to be open to criticism. A finding that there was a causal connection between the fault and the accident would only have been appropriate upon a different analysis of the facts. It is not for us to embark upon such a different and hypothetical analysis; and without such an analysis, it does not seem to us to be realistic to comment upon the extent (if any) of contributory negligence on the part of the pursuer if he had succeeded in his case against the defenders.

The reclaiming motion is refused.