On 4th April 2018 the All-Scotland Personal Injury Court at Edinburgh published their decision in the case of Louise McKevitt v The National Trust for Scotland.
The case provides a useful overview of when liability may or may not attach to the occupier of an outdoor space, in this case Geilston Garden in Cardross.
Geilston was once a privately owned house with extensive gardens. The gardens comprise about 30 acres of which 12 acres are open to the public. The gardens are of some historic interest.
The case concerned the presence of a louping-on stone (stone to assist mounting a horse) which was present on the tarmacked path. The stone was large being approximately 51cm long, 43cm wide and 20cm high and weighed approximately 100kg. The stone was of some vintage and had been in situ for some time. Various parts of the stone were covered in lichen and moss.
The Pursuer was utilising a map to negotiate her way around Geilston Gardens. It was a bright sunny day and owing to the presence of trees surrounding the path was dappled in sunlight. The pursuer proceeded along the tarmacked path and stopped within a few paces of the louping-on stone. She stopped in order to consult her map. By all accounts she did not notice the presence of the stone. After consulting the map she attempted to proceed forwards again and almost immediately tripped over the stone landing heavily sustaining injury.
The legal background for cases such as this is the Occupiers Liability (Scotland) Act 1960. This act effectively codified the existing common law. In short in order to establish liability the pursuer would have to show (1) that there was a danger due to the state of the premises and (2) there had been a failure by the occupier to take appropriate measures to eliminate or minimise the risk of that danger.
Generally, an occupier owes no duty to protect individuals entering onto their land against obvious dangers. However if there is a danger posed by a permanent feature be it natural or man-made which was unusual, unseen or concealed in some particular special way then generally speaking the occupier would require to take steps to protect against that risk. However the mere issue of obviousness would on its own not be sufficient as the court will ultimately take account of all the relevant facts and circumstances.
The Pursuer’s case was that the stone was not immediately obvious, and as a result it was dangerous and the National Trust ought to have removed it, fenced it off or had attention drawn to it by signage. These were cheap and easy steps. It was argued that the Pursuer’s conduct whilst proceeding through the gardens was normal for a first-time visitor. She was reviewing her map and observing the beauty of the gardens surrounding her. Her conduct was normal and foreseeable.
The Defender’s Case
The Defender’s position was simply that the stone did not constitute a danger. Indeed if it did constitute a danger it was one that was obvious and consequently no steps required to be taken by them to guard against the risk created by it.
- The stone had been there for a very long time since at the very least 1998 and probably longer.
- Its purpose was ultimately unknown.
- The path had been in place for at least the same period of time.
- It is likely that the stone was of historical significance.
- About 8,000 to 10,000 people visited Geilston Gardens each year and there had been no other reported accidents
- The Defender had taken no additional measures in respect of the stone following the pursuer’s accident.
- The Pursuer had ample opportunity before reaching the stone to have noticed it after proceeding onto the path. If she had been looking around properly she would have seen it.
- The magnitude of risk posed by the stone was not significant.
1. Was the stone an obvious danger?
An occupier of premises does not have to take steps such as fencing or signage to draw attention to obvious dangers.
Sheriff McGowan determined that the stone in the present case did not quite fit the category of “obvious dangers” in previous cases, e.g. a lake in a quarry, a reservoir or a stony mountain path.
He considered that an obvious danger would be a danger that was physically obvious, i.e. apparent from the senses that “it is what it is” and also that it presents a danger.
2. Given the stone was not an obvious danger, what precautions did the Defender require to take (if any)?
Ultimately, any feature of land or premises can constitute a potential hazard therefore it was necessary to focus on the particular circumstances of the case as to whether there had been a breach of duty.
Sheriff McGowan provided a reminder that the standard of care is that of the reasonably prudent man, i.e. “such care as in all the circumstances of the case is reasonable”. Whether something constitutes a danger is not a binary issue to be determined in isolation. The extent of danger posed and the reasonable precautions should be dealt with together. In short, the greater the danger the greater the necessary precautions.
The question to be addressed:
- How likely was it that the stone would cause injury to a person?
Sheriff McGowan accepted that the location and size of the stone meant that there was some risk of injury. However, was the risk great enough to be foreseeable? Would the reasonable occupier immediately before the pursuer’s accident foresee a risk of injury?
Sheriff McGowan considered that in normal circumstances the stone would be readily visible.
In his view the stone only became less visible when a very specific set of circumstances collided; remnants of cherry blossom and lichen camouflaging the stone, dappled sunlight obscuring the stone and the Pursuer’s position before the accident (almost upon the stone).
The mere fact all these circumstances required to collide, ultimately, made the risk posed by the stone, a low one. Or a risk that was not foreseeable to a reasonable occupier. This position was enhanced by the fact that despite high visitor numbers, there were no other reported accidents involving the stone.
The risk of tripping over the stone was very low as a matter of probability which in turn would not trigger the defender’s obligations to take extensive precautions to protect against such a negligible risk. This may change if there was potential for very serious injury (magnitude of risk), however, whilst the pursuer’s injuries were not insignificant the level of injury caused by a trip was at the lower end of the scale.
Therefore, no precautions were required to be taken by the defender, and consequently there was no breach of duty.
Ultimately, just because someone has suffered injury due to a feature of premises does not necessarily mean that the premises themselves were unsafe. Similarly, the absence of any other accidents does not necessarily mean that the Defenders is not in breach of duty. Each case would require considered on the facts.
The foregoing provides a useful reminder of the difficulties for a pursuer proving a case under the Occupiers Liability (Scotland) Act 1960.
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