EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lord Carloway Lord Philip	[2012] CSIH 47 PD/1705/08 OPINION OF THE COURT delivered by LORD CARLOWAY in the reclaiming motion by MRS JANETTE MURPHY AS ATTORNEY TO HER HUSBAND JAMES STEWART MURPHY Pursuer and Reclaimer against EAST AYRSHIRE COUNCIL Defenders and Respondents ____________

Pursuer and Reclaimer: Ellis QC, Pilkington; Lefevre Litigation

Defenders and Reclaimers: Milligan QC; Andersons Solicitors LLP

30 May 2012

The Lord Ordinary's Findings in Fact and Decision

[1] This is a personal injuries action in which the damages, which have been agreed at £7,887, are being sought on behalf of Mr Murphy from the defenders in respect of an accident occurring on 26 September 2005, when he was travelling as a passenger in a minibus taxi. After proof, the Lord Ordinary found that Mr Murphy, who was aged 65 at the material time, suffered from a number of physical disabilities which required him to use a wheelchair for mobility. He had suffered strokes which resulted in him having a very limited ability to speak. His mental capacity, however, was not impaired (see Lord Ordinary's Opinion para [2]).

[2] For two or three years prior to the accident, Mr Murphy had attended the defenders' day centre at Muirkirk, Kilmarnock. He did so twice every week. The defenders arranged transport for Mr Murphy and others to and from the centre. Although the distance is not specified, the journey time could not have been very great, as Mr Murphy lived in the Muirkirk area. Transport was provided by an independent firm, who operated minibus taxis capable of carrying wheelchair bound passengers. The minibuses had a front row of three seats, including that for the driver. There was a second row of three forward facing seats. Behind them, the seats had been removed to make space for two wheelchairs. The wheelchairs could be secured to the floor, but the users were strapped in to the wheelchairs with what the Lord Ordinary describes as "conventional-style" seatbelts.

[3] Two of the defenders' care workers travelled in the minibus. However, the task of securing the wheelchairs to the floor of the minibus and of ensuring that the passengers were strapped in was carried out by the driver (para [4]). The accident occurred when Mr Murphy was being driven home from the day centre. At the time of the accident, there had been five persons in the minibus, viz. the driver, the two care workers, Mr Murphy and another passenger, who was also in a wheelchair. The care workers sat in the front row of seats.

[4] The minibus had required to brake sharply when it had reached a point "a short distance" (para [3]) from Mr Murphy's home. Mr Murphy's seat belt had not been fastened at that time and, as a result, he fell from his wheelchair and was injured. The principal case presented by the pursuer on record (statement of fact 4) was that Mr Murphy's wheelchair had not been strapped to the floor and that the minibus had not been fitted with sufficient seatbelts to fasten him in. Both of these cases were rejected by the Lord Ordinary. On the contrary, he held it proved (para [8]) that, at the start of the journey, the driver had both strapped the wheelchair to the floor and fastened Mr Murphy's seatbelt. He concluded (para [9]), as had been averred by the defenders, that Mr Murphy had unfastened his seatbelt in the course of the journey.

[5] The Lord Ordinary's finding that it had been Mr Murphy himself who had unfastened his own seatbelt did not, however, bring the case to an end. An alternative case had been pled as follows (statement 4):

"Alternatively, esto as averred by the defenders that Mr Murphy unclipped his seatbelt during the journey (which is denied), the first defenders employees failed to monitor Mr Murphy throughout the journey. [The care workers] were both sat in the front of the vehicle with the driver. Their attention was directed outwards to the road instead of towards the disabled persons for whom they were responsible. The first defenders knew, as did [the care workers], that Mr Murphy had unclipped his own seatbelt in the past. Had [the care workers] positioned themselves with Mr Murphy in the rear of the vehicle then the risk of injury due to falling from his wheelchair in the event of an emergency stop would have been avoided".

It was averred that, after the accident, the defenders had instructed care workers to sit "in the rear" and to "travel with disabled persons".

[6] In dealing with this esto case, the Lord Ordinary did find that there had been occasions when, on arrival at his house, Mr Murphy was found by the care workers to have unfastened his own seat belt. One of the care workers had spoken to him about the risk involved in doing this, but it had not been clear whether he had unfastened the belt upon arrival or some time before. However, in 2005, the care worker had recorded "service user loosening seat belt" in the risk assessment material. There had been two other occasions over the years when Mr Murphy had unfastened his belt as the minibus was approaching his house. These had been noticed by the driver, who had stopped to enable the care workers to re-fasten it.

[7] The Lord Ordinary states (para [13]) that he was:

"... not persuaded that any duty was incumbent upon the defenders' employees to monitor or supervise Mr Murphy during the journey in order to ensure that his seat belt remained fastened".

He accepted the defenders' proposition that:

"there was no positive duty incumbent upon their employees to monitor and if necessary enforce the wearing of a seat belt by persons of full age and capacity whom they were accompanying on journeys to and from the day centre".

In doing so, he proceeded upon dicta in Mitchell v Glasgow City Council 2009 SC (HL) 21 and Maloco v Littlewoods Organisation 1987 SC (HL) 37 to the effect that foreseeability of injury, as a result of a person's own actions, was not sufficient to impose liability. Rather, something more, such as an assumption of responsibility, was needed but that, in Mr Murphy's case, there was no basis for holding that the defenders had assumed "a legal responsibility for ensuring that Mr Murphy ... did not travel with his seat belt unfastened". There was no duty in law, on the part of the defenders, to supervise Mr Murphy during every journey or to intervene, against Mr Murphy's will, to fasten his seatbelt.

[8] The Lord Ordinary was not persuaded that the evidence of previous seat-belt unfastening added much to the equation. Given the many journeys which had been undertaken, relative to the times Mr Murphy's seat-belt had been found unfastened, the Lord Ordinary felt unable to hold (para [14]) that it was reasonably foreseeable that Mr Murphy:

"... would unfasten his seatbelt while travelling, so as to expose himself to the risk of injury in the event that the vehicle were to stop suddenly".

He concluded that, on this basis also, he did:

"... not consider that the pursuer has established that a duty to monitor or supervise Mr Murphy was incumbent upon the defenders' employees".

The Lord Ordinary declined to express a view on whether, if a duty had been incumbent upon the defenders, it had been established that a breach of that duty had caused the accident.

Submissions
(a) PURSUER

[9] There are two grounds of appeal. First, it is said that the Lord Ordinary erred in law in holding that there was no duty upon the defenders' employees to monitor and supervise Mr Murphy during the journey to ensure that his seat belt remained fastened. Secondly, it is contended that he erred in holding that there was no evidence that it was reasonably foreseeable that Mr Murphy would unfasten his seatbelt on the journey home.

[10] It was accepted that foreseeability of harm was not enough to impose a duty of care (Mitchell v Glasgow City Council (supra), Lord Hope at paras [25] and [26] following Caparo Industries v Dickman [1990] 2 AC 608, Lord Bridge at pp 617‑618)). However, neither Mitchell nor Maloco v Littlewoods Organisation (supra), which were founded upon by the Lord Ordinary, but had not been cited to him, provided the closest analogy to Mr Murphy's situation. These precedents involved criminal actions by third parties. Regard ought to have been had instead to situations where the pursuer had harmed himself or put himself in danger. A duty could be imposed, even where the pursuer was of sound mind, in that situation albeit in special circumstances (Kirkham v Chief Constable of Manchester Police [1990] 2 QB 283; Barrett v Ministry of Defence [1995] 1 WLR 1217, Beldam LJ at 1225; Reeves v Metropolitan Police [2000] 1 AC 360, Lord Hoffman at 368-369, Lord Jauncey at 375, Lord Hope at 379-380; Calvert v William Hill [2009] Ch 330).

[11] The defenders had assumed control of Mr Murphy, when he commenced his journey, and the defenders were under a general duty to take reasonable care for his safety until they returned him home. The care workers had accepted that they had a supervisory role. There was a general assumption of responsibility to take care of Mr Murphy. The care workers could watch Mr Murphy and could insist on the minibus remaining stationary if the seat belt was undone. Not wearing a seat belt was illegal. It was not an issue involving the free will of the passenger. If foreseeability were established, the risk of harm could easily and cheaply have been avoided (The Wagon Mound No 2 [1967] AC 617, Lord Reid at 642). Given the extent of the defenders' control of, and responsibility for, Mr Murphy, where there was a foreseeable risk of injury, there was a duty to take reasonable care for his safety even in relation to voluntary actions.

[12] The Lord Ordinary effectively found that it was not reasonably foreseeable that Mr Murphy would unfasten his seat belt whilst travelling. However, what needed to be foreseen was not whether Mr Murphy would unfasten his seatbelt on the particular day, but the general type of risk (Hughes v Lord Advocate 1963 SC (HL) 1). The level of likelihood of an event occurring, which was required to engage a duty, could depend upon the expense and difficulty of the steps needed to avoid the risk. In this case, these steps were small and were taken after the accident. Since there had been evidence of Mr Murphy unfastening his seatbelt in the past, the Lord Ordinary was plainly wrong in concluding that the risk was not reasonably foreseeable. He ought not to have ignored the content of the risk assessment.

[13] The Lord Ordinary had not dealt with causation. If the care workers had monitored Mr Murphy, it is likely that the accident would have been avoided. It was not just looking at him that was important, but listening also. If the care workers had been paying attention, and had sat in the second row of seats instead of in the front, it is likely that they would have noticed if the seat belt had been unfastened.

(b) DEFENDERS
[14] The existence of a duty of care, such as might arise from the defenders escorting persons to and from a day centre, did not itself impose a particular duty to protect persons, who possessed full intellectual capacity, from the consequences of a decision to unfasten a seatbelt. In order to establish negligence, a pursuer had to do more than identify precautions which might have been practicable and prevented the accident. Mere foreseeability of harm was not a sufficient foundation for a duty to take care. It required to be just, fair and reasonable to impose the particular duty contended for. It was only in extreme circumstances that a defender could be fixed with a duty to take positive steps to protect a person of full age and capacity from the consequences of his own deliberate and voluntary acts (Mitchell v Glasgow City Council (supra), Barrett v Ministry of Defence (supra)). Such circumstances did not exist in this case. The Lord Ordinary had assumed that there was a general duty incumbent upon the defenders but had held that there was no particular duty. That was a legitimate approach (Mitchell (supra), Lord Hope at para 26).

[15] It was not open to an appellate court to substitute its own view of the matter. It was only if the Lord Ordinary had been "plainly wrong" or there was a lack of material upon which to base his findings that the court could interfere (Piglowska v Piglowski [1999] 1 WLR 1360, Lord Hoffman at 1372; Barber v Somerset County Council [2004] 1 WLR 1089, Lord Rodger at 1096). What was reasonably foreseeable was a matter of fact involving a determination of what was reasonable and probable and not what was a mere risk (Muir v Glasgow Corporation 1943 SC (HL) 3, Lord Thankerton at 8, Lord MacMillan at 10 and Lord Wright at 16; Bolton v Stone [1951] AC 580, Lord Porter at 858, Lord Normand at 861, Lord Oaksey at 863, Lord Reid at 865; and Lord Radcliffe at 868; Whippey v Jones [2009] EWCA Civ 452). The Lord Ordinary's conclusion had not been "plainly wrong". For injury to have occurred, it was not enough for Mr Murphy to have unfastened his seat belt but for a further incident involving sudden stopping to have happened; all in a short five minute journey. The Lord Ordinary had been correct in not placing weight on the risk assessment (Brown v North Lanarkshire Council 2011 SLT 150, Lady Dorrian at paras [25] et seq).

[16] There had been no evidence of when Mr Murphy had unfastened the belt. Accordingly, it could not be said that supervision would, on a balance of probability, have prevented the accident. The pursuer required to desiderate a case whereby, sitting in forward facing seats, the care workers would have heard Mr Murphy unfastening his belt. There was no evidence that this would have happened. What must be being suggested is that they ought to have been constantly turning around to see if he had done so. The Lord Ordinary held that there was no duty to do that. Reeves v Metropolitan Police (supra) was not a fair analogy and involved quite different and special facts. The law was cautious in imposing duties relative to autonomous acts by persons of full capacity (Reeves (supra) Lord Hoffman at 368-369; Lord Jauncey at 375; St George's Healthcare NHS Trust v S [1998] 3 WLR 936, Judge LJ at 950).

Decision

[17] This is a straightforward claim for damages in respect of the injuries which Mr Murphy sustained when travelling in a taxi organised by the defenders to take him home from their day centre. The first question is one of law and is whether the defenders owed Mr Murphy a duty to take reasonable care for his safety in that context. There is little difficulty in answering that question in the affirmative. The defenders undertook to take Mr Murphy, and others, to and from the day centre. Given the mobility problems which Mr Murphy, and no doubt the others, suffered from, the defenders had supplied two care workers to accompany them as they went from the day centre to their homes. It would be somewhat peculiar were it to be held that no duty of care was owed by the defenders' care workers to the persons they were caring for.

[18] That this is so does not require an elaborate legal analysis of the type carried out in Mitchell v Glasgow City Council 2009 SC (HL) 21 when dealing with cases at the margins of the law of reparation. Rather, as Lord Hope put it (para [16]), this is a commonplace situation, akin to that in employer/employee or road traffic cases, where the duty is owed:

"... not simply because loss, injury or damage is reasonably foreseeable. It is because there is a relationship of proximity ... sufficient in law to give rise to a duty of care. The duty is created by the relationship, and the scope of the duty is determined by what in the context of that relationship is reasonably foreseeable. In such cases this is so obvious that there is no need to ask whether it is fair, or whether it is just and reasonable, that the pursuer should recover damages".

[19] The second question is whether the defenders breached their duty to take reasonable care for the safety of the pursuer; or, put another way, whether the particular precaution fell within the scope of the duty. That is determined according to the foresight of the reasonable man; since it is that foresight which governs what is, or is not, reasonable in the circumstances (Muir v Glasgow Corporation 1943 SC (HL) 3, Lord Macmillan at 10). The scope of the duty is to avoid doing, or omitting to do, anything which has, as its reasonable and probable consequence, injury to others. This is a question of fact and, as such, one very much for the court of first instance to resolve in the particular circumstances of the case having heard all the evidence. There is some room for diversity of view (ibid). There are many factors which may be taken into account, including knowledge of the risk, its magnitude and the practicability and effectiveness of any preventative measures.

[20] The Lord Ordinary has perhaps not analysed the legal issue quite in the way outlined above for a "commonplace" situation. He has focussed on whether there was a particular duty to monitor the state of Mr Murphy's seatbelt during the journeys, rather than holding, as is almost self evident from the designation "care worker", that a general duty existed, before then examining whether in the circumstances its scope had been breached. However, the Lord Ordinary has expressly refrained from finding in fact that it was reasonably foreseeable that Mr Murphy "would unfasten his seat belt while travelling" (para [14]). This must be taken as meaning that he has held that it was not so foreseeable. If that finding in fact stands, irrespective of the Lord Ordinary's legal analysis, the pursuer's case must fail.

[21] This then is effectively a reclaiming motion against a finding in fact. It is important not to confuse the test for overturning a finding in fact of this nature with that for the review of a discretionary decision or one relative solely to decisions on the credibility and reliability of witnesses. The appropriate test remains that set out by Lord MacMillan in Thomas v Thomas 1947 SC (HL) 45 (at pp 59-60), viz.:

"The judgment of the trial judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved, or otherwise to have gone plainly wrong".

This test has been repeatedly approved in more recent times (see eg Thomson v Kvaerner Govan 2004 SC (HL) 1, Lord Hope at para [16]; Gerrard v RIE NHS Trust 2005 SC 192, Lord Osborne at para [78]). It is not necessary for the court to find that the trial judge has "gone plainly wrong". That is just one of several situations in which an appeal court may interfere. It can also do so if it considers that the Lord Ordinary has failed to appreciate the "weight or bearing" of facts proved. It is that aspect of the test which is significant here, where there is no challenge to the Lord Ordinary's decisions on credibility and reliability or to the primary facts found in consequence thereof.

[22] The attack on the finding in fact stems from the evidence that Mr Murphy had previously unfastened his safety belt in the course of journeys home. It is said that this, especially given its recording in the risk assessment documentation, demonstrated that it was reasonably foreseeable that he would do it again. However, the Lord Ordinary considered this evidence and concluded that his unfastening of his seat belt was a rare occurrence; essentially in the Bolton v Stone 1951 AC 850 category. He also took into account the entry in the risk assessment documentation and concluded, as he was entitled to do having heard the person making the entry, that it did not demonstrate a particular concern that Mr Murphy was prone to loosening his seat belt. These are all findings of fact which the Lord Ordinary was entitled to reach, having regard to all the evidence adduced before him. In these circumstances, where the risk to be guarded against was found to be so rare, the Lord Ordinary would have been bound to hold that there had been no failure to take reasonable care as a result of a failure to monitor Mr Murphy on an almost constant, or repetitive, basis, in order to guard against such an occurrence.

[23] Even if the occurrence had been more frequent, the Lord Ordinary would still have been entitled to the conclusion that it did not amount to a failure to take such care on the part of the defenders or their care workers that they had not monitored the seatbelt status of a person of full mental capacity. It appears that, in fact, the person who strapped the wheelchairs to the floor and ensured that the seat belts were fastened was the driver of the minibus, who was an employee of the taxi firm. This was not something that the care workers themselves did. There is no reason to place such an obligation upon them or to add a further task of monitoring the state of the seatbelts throughout the journey. The care workers were there, at least in the case of Mr Murphy, to ensure that his lack of mobility was addressed when required. There was no apparent reason why they ought to have guarded against other eventualities unconnected with his mobility and thus outwith the scope of their normal duties.

[24] In addition, the court does not consider that, in any event, the pursuer's esto case on record has been made out. That case was that the defenders' care workers ought to have positioned themselves "with Mr Murphy in the rear of the vehicle". They could not have done so legally and without endangering themselves. The minibus was not equipped to seat passengers next to the wheelchairs in the rear. What is averred as a precaution could not have occurred without physical alterations to the minibus itself. The need for such alternations, or indeed for a simple warning system in the event of a seatbelt not being fastened, is not a case pled on record. During the course of the appeal, the pursuer attempted to alter the position on record by suggesting that the care workers could have sat in the second row of seats and that this would have meant that they were more likely to hear the unfastening of a seatbelt. Alternatively, they could have constantly turned round from that position to see what was happening. However, these are not grounds of fault averred on record, nor does the court consider that, on the evidence outlined by the Lord Ordinary, such steps would have been required as part of the duty to take reasonable care for an adult of full capacity whose wheelchair had been properly strapped to the floor and whose seat belt had been duly fastened at the start of an urban journey of a very short duration.

[25] The court will accordingly refuse the reclaiming motion and adhere to the Lord Ordinary's interlocutor of 17 August 2011.