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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Miller (AP) v Perth & Kinross Council [2001] ScotCS 292 (14 December 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/292.html Cite as: [2001] ScotCS 292

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[1] In November 1998 the pursuer was employed as a school cleaner by Tayside Contracts. Her duties included cleaning at Milnathort Primary School and at Kinross High School. Her work colleague was Mrs Ruth Andrew in whose car the pursuer was in the habit of travelling to and from work. Their shift at Milnathort Primary School was from about 3.30 pm to 4.30 pm after which they travelled on for a shift of several hours at Kinross High School.

[2] In the afternoon of 20 November 1998 at some time after 4 pm, while the pursuer and Mrs Andrew were working at Milnathort Primary School, Mrs Sally Morton, a friend and relative through marriage of the pursuer, arrived at the school to advise the pursuer that her (the pursuer's) daughter had met with an accident while at work elsewhere. Mrs Morton was driven to the school by her daughter, Mrs Agnes Flannigan, who parked her car at the entrance to the school premises on Bridgefaulds Road. Mrs Morton was at that time seriously affected by a heart condition; she underwent a by-pass operation several weeks later. Her daughter walked with her along the path from that entrance to the door of the school building from where Mrs Morton proceeded alone into that building. Mrs Flannigan then returned to her car. Mrs Morton fairly readily found the pursuer in the school building and passed to her the information about her daughter. The pursuer then offered to walk with Mrs Morton back to her daughter's parked car. They proceeded out of the school building and down the path, up which Mrs Morton had earlier come. Because of Mrs Morton's then state of health, they walked slowly and arm in arm. They conversed as they did so. They parted at the entrance onto Bridgefaulds Road. Almost immediately thereafter the pursuer met with an accident as a result of which she now sues the defenders, as the persons having control of the school premises, for certain loss, injury and damage sustained by her.

[3] Close to the Bridgefaulds Road entrance to the school premises there stood across the path leading from the school building a structure comprising three brick walls. A person proceeding from the school building by the path to Bridgefaulds Road required to pass the end of the innermost of those walls, then turn sharply right and proceed a short distance and finally turn sharply left between the two other walls onto the pavement immediately outside the school premises. These walls had been in existence since before 1987 (when Mr Elder the present headmaster came to the school) and were probably built at the same time as the school (in 1966). Although no measurements of the walls were given in evidence they appear, from certain photographs which were spoken to, each to comprise some eighteen or nineteen courses of common brick surmounted by a coping. They were each at least five feet and probably more than six feet in height. Although there was no clear evidence on the matter, their purpose, I surmise, was to prevent children running directly down the path from the school building onto the pavement and the road beyond and thus into the path of traffic passing along it.

[4] There is a difference in level between the path in the vicinity of the innermost brick wall and the pavement. This is accommodated by an incline in the path over the short distance between the point where a person proceeding to leave the school turns right past the end of the innermost wall and the point where such a person turns left to step out onto the pavement. Again no measurements were put in evidence. In so far as can be discerned from the photographs, the difference in level appears to be in the order of the depth of a common brick (or possibly slightly more) accommodated over a distance of a few feet. It was described in evidence by one witness as a "slight" and by another as a "very slight" incline. I accept the former description. The incline is upwards for a person leaving the school premises and downwards for a person entering them.

[5] The pursuer and Mrs Morton, having walked down the path towards the entrance, turned right and up that incline. They parted just beyond the top of it on a flat or flattish surface which lay just before the opening between the two outermost walls onto the pavement. The pursuer remained on that surface and thus still within the school premises. Mrs Morton walked across the pavement and entered her daughter's car. The pursuer, having wished Mrs Morton farewell, turned to her left to return to the school building. Her first step was with her left foot onto the incline. At that point she lost her footing and fell heavily to the ground, fracturing her left ankle.

[6] The precise mechanism of her loss of footing was not clearly established on the evidence. The pursuer spoke initially of there being "nothing there" under her left foot and later of her left foot "slipping" on the surface of the path. She was wearing flat-soled boots which, so far at least as concerned the soles, had a rubber under-surface. At the material time the path was wet but there was no evidence as to the character of its surfacing material. Whether her left heel lost traction on the slope or the mechanism was otherwise, I am satisfied that a material factor causing her fall was the presence of the downward incline onto which she had just stepped.

[7] An attempt was made at the proof to establish with some precision the time when the pursuer's accident occurred. This was potentially of significance to the nature and extent of the light which was then available. The most reliable starting point for this timing exercise was the ambulance record (the accuracy of which was agreed) which recorded that a relative call was received by the Scottish Ambulance Service at 4.27 pm that afternoon. That call was made from the school building by Mr Elder, he having been alerted to the accident. There was some uncertainty in the evidence as to the person by whom Mr Elder had been so alerted and as to the time between the accident and the telephone call. The pursuer on falling had cried out loudly and, although out of their sight, had been heard by Mrs Morton and by Mrs Flannigan before the latter drove off. Both had come out of the car to render assistance. They found the pursuer lying on her back at or near the foot of the incline. Mr Ireland (the school janitor), Mr Elder and Mrs Andrew were all subsequently at the scene of the accident. Whether Mrs Morton or Mrs Flannigan went into the school to raise the alarm or the pursuer's shouts were heard from within the school and someone came out to investigate, some minutes would inevitably have passed between the occurrence of the accident and the receipt by the Scottish Ambulance Service of the call. On balance I conclude that the accident happened at about 4.20 pm, possibly a minute or two later.

[8] As will subsequently appear, the state of the available light at the time and at the place of the accident is of importance in this case. Again there was no evidence of measurement in equivalent circumstances, albeit Mr Elder had in November 2001 some days before the anniversary of the accident and a few days before the proof revisited the scene of the accident and formed certain impressions of the light conditions then. On 18 November 1998 it had been raining, though not heavily, during the day. Mrs Flannigan in driving her mother by car to the school had used the windscreen wipers at slow speed. She had also used her headlights in the dipped mode. Making the best assessment that I can on the available evidence, I find that, while all natural light had not yet gone from the sky, there was by the time of the accident little such light remaining.

[9] Bridgefaulds Road was provided with public lighting from standards. One such standard was positioned on the far side of that road opposite the school entrance. It is probable that by the time of the accident the light on that standard was illuminated. There was secondary evidence that the lights on the standards in Bridgefaulds Road would have been set to go on at 4.25 pm on that day of the year but that these were light-sensitive so that they would have come on earlier in the event of natural light being relatively poor. The natural light conditions on 18 November 1998 were such as were likely to trigger an early illumination.

[10] The illumination of that standard may have tended to reduce rather than to increase visibility on the incline at the time of the accident since one of the outermost walls would have been likely to obstruct, at least to some extent, light from it and to cast the incline or part of it into shadow. The relatively close physical relationship of the walls would also have tended to restrict the access of any natural light to the incline. Accordingly, the incline at or about the time of the accident was likely to have been darker than more open sections of the path. However, I am unable to accept the pursuer's description of the place where she fell as being "pitch dark". She was herself able to see that her foot had been distorted by her fall. Mrs Flannigan, when she came on the scene, was able to make a similar observation. I find that the area of the slope was at the material time shadowy and poorly lit but not wholly devoid of light.

[11] At an earlier stage in these proceedings the pursuer's case included a ground of action based at common law. That ground was excluded from probation at procedure roll, the pursuer's case thus being restricted to alleged breaches of certain provisions of the Workplace (Health, Safety and Welfare) Regulations 1992. At the hearing on evidence Mr Arthurson for the pursuer intimated that he was insisting only on a case of breach of Regulation 8(1) of those Regulations. That regulation is in the following terms - "Every workplace shall have suitable and sufficient lighting".

[12] It was a matter of express concession by Miss Smart for the defenders that, notwithstanding that the place where the pursuer met with her accident was a place outside the school building and a place at which she was present for the private purpose of escorting Mrs Morton back to her car, it was a "workplace" within the meaning of Regulation 2(1) and accordingly a place to which Regulation 8(1) applied. That was because these Regulations (which were made in furtherance of the Workplace Directive) did not maintain the former distinction between a place of work and a means of access to or egress from such a place and embraced any routes other than those the use of which by the pursuer was effectively forbidden. Mr Arthurson had earlier made reference in this connection to Scott v EDC Pipework Services Ltd 1995 SLT 561, per Lord Marnoch at page 562, and to Banna v Delicato 1999 SLT (Sh. Ct.) 84 and O'Brien v Duke of Argyll's Trustees 1999 SLT (Sh. Ct.) 88.

[13] The only issue before me in relation to the alleged breach of Regulation 8(1) was the construction and application of the expression "shall have suitable and sufficient lighting". Counsel were agreed that Regulation 8(1) had not, so far as they were aware, been discussed in any decided case. Mr Arthurson, under reference to Mains v Uniroyal Engelbert Tyres Ltd 1995 SC 518 (where Section 29(1) of the Factories Act 1961 was discussed) emphasised the imperative indicated by the word "shall"; no question of foreseeability, he submitted, arose. He also cited Thornton v Fisher & Ludlow Ltd [1968] 2 All ER 241 and Davies v Massey Ferguson Perkins Ltd [1986] ICR 580 (in each of which Section 5 of the Factories Act 1961 was discussed and applied). Miss Smart submitted that Regulation 8(1) did not import an absolute duty such that any workplace had to be kept lit so that no accident could occur. The requirement was for "suitable and sufficient lighting", that being a matter of degree turning on the nature of the place and the purpose for which it was being used. The Regulations, which required to be construed in the context of the Directive which they sought to implement, emphasised the importance of natural light. The adequacy in the particular circumstances of natural light was the primary question.

[14] While at least in relation to workplaces first used after 31 December 1992 (not the present case) some preference may be shown in the Directive for natural over artificial light (Annex I paras. 8.1 and 21.2) and this is reflected in Regulation 8(2), no issue, in my view, arises, in the present case over the form of lighting available. The only issue on this aspect of the case is whether that lighting was "suitable and sufficient". That phrase, which appears to have been borrowed from (the now repealed) Section 5 of the Factories Act 1961, must be given a purposive construction,. The relative purpose is that of securing the health, safety and welfare of persons who are at or are passing along the workplace. What lighting is sufficient and suitable will in any case depend on the particular circumstances but, where the workplace is a means of passage out of doors which is available for use, the requirement is for lighting, whether natural or artificial, which will allow persons so passing to proceed safely. During the hours of darkness or when natural light is not sufficient to allow of safe passage, artificial lighting is required which is suitable and sufficient for such passage. This is not a guarantee of safe passage but involves a judgment of what is suitable and sufficient in the circumstances.

[15] In the present case the relative "workplace" did not, in my view, have suitable and sufficient lighting. It was a route by which persons might pass to and from the school building during the hours of darkness or when natural light conditions were poor. It was a place, at least to some extent and at some times, in shadow from direct natural light and from such artificial light as might adventitiously be provided by the public street lighting. It involved an incline, albeit slight, met immediately after turning from one direction to another at about right angles. Such an incline, if unexpectedly met and particularly when sloping downwards, was not unlikely to cause a person to lose his or her footing and thus to sustain injury. Such a risk was increased if the incline was not, during the hours of darkness and when natural light conditions were poor, provided with effective artificial lighting designed to illuminate it. The defenders provided no such lighting. I am satisfied that the defenders, being the persons having control of the school premises, including this workplace, were in breach of Regulation 8(1).

[16] There remains the issue of whether the pursuer's accident and its resultant injuries were caused by that breach. This is a nice question. Miss Smart emphasised the immediacy of the pursuer's loss of footing on her turning to go back to the school building. There was no evidence, she submitted, that the pursuer had looked to see where she was going and had lost her footing because she was unable to see the incline. The presence of further lighting would in these circumstances have made no difference. The accident, as described by the pursuer, could as readily have happened in broad daylight. The situation in this case, she argued, was to be contrasted with situations such as that in Thornton v Fisher & Ludlow Ltd where the plaintiff, having proceeded in the company of other cleaners some distance along a poorly lit roadway, tripped over an obstruction lying on it. She also cited McGinty v London Midland and Scottish Railway Co 1939 S.C. 361, per Lord Mackay at p.372 (a dissenting opinion).

[17] Although the issue is narrow I am satisfied on the balance of probabilities that the defenders' breach of obligation was a material cause of the pursuer's accident. The pursuer gave evidence in examination-in-chief that, as she set off to return to the school building, she could not see the path between the walls on which she was placing her feet, the walls obscuring any light that was then available. She also stated that, when walking out with Mrs Morton, she had not been aware of the (upwards) incline between the walls. She had not been in that place before. In cross-examination she accepted that, as she walked with Mrs Morton along the path towards the walls, she had been able to see where she was going and that she had successfully negotiated the path between the walls. She also accepted that, as she negotiated that part of the path, she could see where she was going.

[18] It was not suggested to the pursuer that she had in fact proceeded along the path in either direction at any time prior to the late afternoon of 20 November 1998. This is consistent with the evidence that she was in the habit of travelling to and from the school by car with Mrs Andrew. As a consequence she would ordinarily pass to and from the school building by a different route, namely, that which led from the school car park. She had traversed the incline just a few moments before her accident but that would have involved her walking slowly up the slope with Mrs Morton in poor lighting conditions as she conversed with her companion. It is not obvious that she was bound on that outward route, albeit able sufficiently to see where she was going, to recognise that the slope presented a significant hazard for her return. Had the path between the walls been appropriately illuminated as she walked up the incline, it is more likely that she would have been aware of the gradient than in fact she was. Even if that is not so, it seems likely that the downward incline would, had it been appropriately illuminated, have been immediately apparent to her as she turned to go back to the school. While that was no doubt at about the same instant that she put out her left foot to take her first step on that return journey, and while it was not as dark as the pursuer maintained in evidence, it seems more likely than not that she would have been able in illuminated conditions to adjust the placement of her foot so as to avoid a fall. There was no evidence to support the suggestion that she was looking elsewhere than in her general direction of travel as she set off. While the point is a narrow one, I am on balance satisfied that the absence of sufficient and suitable lighting at this place was a material cause of the pursuer's accident.

[19] It was not specifically suggested to the pursuer that she was being inattentive or that in some other particular way she failed to take reasonable care for her own safety. It is not, in my view, an inference properly to be drawn from the evidence that she did so fail. In these circumstances the defenders' pleas of sole fault and of contributory negligence by the pursuer must each be repelled.

[20] Damages were agreed in the sum of £31, 500 inclusive of interest to the date of decree. I shall sustain the pursuer's first plea-in-law, repel the defenders' pleas 3 to 6 inclusive and grant decree in the pursuer's favour in the agreed sum.