Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 62
PD640/12	OPINION OF LORD JONES in the cause FIONA BROWN Pursuer; against EAST LOTHIAN COUNCIL Defenders. ________________

Pursuer: Lake, advocate; Digby Brown LLP

Defenders: Davie, advocate; Ledingham Chalmers LLP

26 April 2013

Introduction
[1] The pursuer in this action avers that she is a self-employed fitness instructor, and that she operates a fitness academy. She seeks damages in respect of injuries which she avers she sustained on 20 December 2010, when she was teaching a weekly fitness class at the Town House in Haddington, which she had hired from the defenders. According to her averments, she usually taught the class at the Corn Exchange, also in Haddington. Both premises are owned and occupied by the defenders. The Corn Exchange was unavailable on 20 December. The pursuer had been advised by Ms Cruickshank, an employee of the defenders who was the pursuer's contact in relation to hiring venues, that it had a prior booking. Ms Cruickshank offered the pursuer the Town House as an alternative, and the pursuer was emailed a booking form. The pursuer completed the booking form, and emailed it back. The booking form included a description of the activity for which the hall was being hired. The pursuer further avers that the floor in the hall of the Town House is made of wood, and her averments continue in these terms:

"The floor was undulating in profile across a section. The floor had a gradient of 4% or 1:25. The floor was warped. The pursuer commenced her class and was at the front directing the class in relation to the fitness moves. The pursuer carried out a hop and skip manoeuvre. When the pursuer's left foot landed on the floor the undulation of the floor caused her to lose her balance. She crashed to the ground landing on her left buttock and then onto her right wrist causing her to sustain the loss, injury and damage hereinafter condescended upon. The defender's caretaker came back at about 10.20pm. When the caretaker came back the pursuer explained to her what had happened. She showed the caretaker the floor where she had fallen. The caretaker filled out an accident report on the night of the incident."

[2] It is averred on behalf of the pursuer that her claim in based "on common law" and on breaches of regulation 5 and regulations 12(1) and (2) of the Workplace (Health, Safety and Welfare) Regulations 1992 ("the regulations" or "the workplace regulations").

[3] Regulation 5, so far as is relevant to this case, is in the following terms:

"(1) The workplace ... shall be maintained (including cleaned as appropriate) ... in good repair."

Regulations 12(1) and (2), so far as is relevant, are in these terms:

"(1) Every floor in a workplace ... shall be of a construction such that the floor ... is suitable for the purpose for which it is used.

(2) Without prejudice to the generality of paragraph (1), the requirements in that paragraph shall include requirements that-

(a) the floor ... shall have no hole or slope, or be uneven or slippery so as ... to expose any person to a risk to his health or safety;"

[4] The defenders aver, among other things, that no relevant case is pleaded against them at common law or under the regulations and that, if the pursuer has a relevant claim, the contract between the pursuer and the defenders excluded liability for personal injury.

[5] The case came before me for a hearing on the procedure roll on 23 November 2012, on the pursuer's motion, of consent. Counsel for the defenders sought dismissal of the action, contending that the pursuer's averments are irrelevant and lacking in specification. Counsel for the pursuer argued that the contractual exclusion of liability on which the defenders rely is contrary to the provisions of the Unfair Contract Terms Act 1977 ("the 1977 Act"), and should not be remitted to probation.

The defenders' submissions
Statutory case

[6] Miss Davie, advocate, who appeared for the defenders, opened her submissions with an attack on the pursuer's statutory case. In the circumstances of this case as averred, she argued, the regulations relied on by the pursuer are not applicable. In particular, she contended, the Town House was not a "workplace made available to (the pursuer) as a place of work" within the meaning of the regulations. If it was not, the pursuer did not enjoy the protection of the regulations. Miss Davie cited certain passages from Donaldson v Hays Distribution Services Ltd 2005 1 SC 523 ("Donaldson") and McCully v Farrans Limited [2003] NIQB 6 ("McCully").

Common law case

[7] The defenders have two criticisms of the common law case tabled against them. The first is that, whilst admitting that the parties were in a contractual relationship at the material time, the pursuer fails to aver any basis on which the defenders have breached any contractual obligation to her, and there are no averments identifying: the basis of any delictual relationship between the parties; the scope of any duty owed by the defenders to the pursuer; how any such alleged duty has been breached and how any such alleged breach caused the pursuer's injury. The second criticism is that, if there were a delictual relationship between the parties, the pursuer fails to plead a relevant case in delict. There are no averments, argued Miss Davie, identifying: the location, extent or nature of the undulation in the floor which the pursuer avers caused her to fall; the scope of the defenders' duty to the pursuer at common law; or why this accident could be said to have been reasonably foreseeable. There are insufficient averments, she submitted, relating to causation. The consequence of the lack of specification is that the defenders are unable to ascertain the case made against them as to the state of the floor, in respect of any alleged defect in it, the scope of their alleged duty of care to the pursuer, reasonable foreseeability of harm, or causation. I was referred to Higgins v DHL International (UK) Ltd 2003 SLT 1301 ("Higgins"), Letford v Glasgow City Council 2002 Rep LR 107 ("Letford"), and Clifton v Hays PLC (unreported) Lady Smith 7 January 2004 ("Clifton").

[8] Miss Davie's primary motion was that I should dismiss the action.

The pursuer's submissions
Unfair Contract Terms Act 1977

[9] Mrs Lake opened her argument by referring me to sections 15(2), 16 and 25 of the 1977 Act. So far as is relevant to this case, these provide as follows:

"15 Scope of Part II.

...

(2) Subject to subsection (3) below, sections 16 to 18 of this Act apply to any contract only to the extent that the contract-

...

(d) relates to the liability of an occupier of land to persons entering upon or using that land;

16 Liability for breach of duty.

(1) ...where a term of a contract, or a provision of a notice given to persons generally or to particular persons, purports to exclude or restrict liability for breach of duty arising in the course of any business or from the occupation of any premises used for business purposes of the occupier, that term or provision-

(a) shall be void in any case where such exclusion or restriction is in respect of death or personal injury;

25 Interpretation of Part II.

(1) In this Part of this Act-

...

"business" includes a profession and the activities of any government department or local or public authority;"

[10] Mrs Lake's contention was that it is averred that the defenders were the occupiers of the Town House which the pursuer had hired. The defenders seek to rely on a term of the contract between the parties which purports to exclude liability in respect of personal injury. The pursuer was using the Town House at the material time and the defenders' breach of duty to her arose in the course of their activities as a local authority. Consequently, she argued, the contractual provision on which the defenders seek to rely is void.

Statutory case

[11] Mrs Lake opened her response to Miss Davie's attack on the pursuer's statutory case by drawing my attention to the Approved Code of Practice, published by the Health and Safety Executive, which came into effect on 1 January 1993, and which provides guidance with respect to the provisions of the regulations. Paragraph 16 is in these terms:

"People other than employers also have duties under these Regulations if they have control, to any extent, of a workplace. For example, owners and landlords (of business premises) should ensure that common parts, common facilities, common services and means of access within their control, comply with the Regulations. Their duties are limited to matters which are within their control. For example, an owner who is responsible for the general condition of a lobby, staircase and landings, for shared toilets provided for tenants' use, and for maintaining ventilation plant, should ensure that those parts and plant comply with these Regulations. However, the owner is not responsible under these Regulations for matters outside his control, for example a spillage caused by a tenant or shortcomings in the day-to-day cleaning of sanitary facilities where this is the tenants' responsibility. Tenants should cooperate with each other, and with the landlord, to the extent necessary to ensure that the requirements of the Regulations are fully met."

[12] Mrs Lake argued that pursuer offers to prove that the defenders were both owners and occupiers of the Town House at the time of the accident, and that, therefore, they had the necessary degree of control to owe duties in terms of the regulations. In that regard, I was referred to Bailey v Command Security Services Ltd and another
[2001] All ER (D) 352 ("Bailey") and King v RCO Support Services Ltd and another [2001] ICR 608 ("King"). On the question as to whom the duty to comply with the regulations is owed, Mrs Lake contended that self-employed workers are protected, under reference to McCully and Donaldson. Consequently, she contended, the defenders owed the pursuer duties under the regulations.

Common law case

[13] Mrs Lake submitted that her pleadings on the common law case meet the requirements of chapter 43 of the Rules of the Court of Session and give fair notice of the case against the defenders. She referred me to McFarnon v British Coal Corporation 1988 SLT 242.

Discussion
Statutory case

[14] As Miss Davie pointed out, both regulation 5 and regulation 12 impose strict duties in respect of the workplace. The word "workplace" is defined in regulation 2(1) as:

"any premises or part of premises which are not domestic premises and are made available to any person as a place of work and includes -

(a) any place within the premises to which such person has access while at work; and

(b) any room, lobby, corridor, staircase, road or other place used as a means of access to or egress from that place of work or where facilities are provided for use in connection with the place of work other than a public road."

What is immediately obvious is that, according to the scheme of the regulations, "workplace" and "place of work" are not synonymous. What qualifies a place of work as a workplace is that the former has been "made available to any person" as such. If a place has not been "made available to any person as a place of work", it is not a workplace. If the defenders had made the Town House available to the pursuer "as a place of work" there could be no doubt that it would have been her "workplace" within the meaning of the regulations and that, therefore, she would have enjoyed their protection. The difficulty that arises in this case for the pursuer is that it is not averred that the Town House was made available to her as a place of work, rather than as a place of recreation. In other words, although she avers that she hired the premises from the defenders in order to conduct her fitness class there and that she was, in fact, working as a self-employed person at the material time, it is not averred that the defenders knew that the Town House was going to be her place of work and, consequently, they cannot be said to have made it available to her as a place of work.

[15] The pursuer does aver, however, that the defenders' caretaker completed an accident report on the evening of the alleged accident. Although it is not averred in terms, I regard it as reasonable to infer that the Town House had been made available to the caretaker as a place of work. The Town House was, therefore, a workplace within the meaning of the regulations. The regulations on which the pursuer founds provide that a workplace must meet certain requirements, and she avers that the Town house did not meet these requirements. Consequently, she contends, the defenders were in breach of their statutory duties, and are liable to her in respect of her loss, injury and damage. The question which arises for determination in this case is whether, if the Town House was a workplace because it had been made available to a person other than the pursuer as a place of work (i.e. the caretaker), the pursuer enjoyed the protection of the regulations, because she was, in fact, working there. The answer to that question has implications which go beyond the circumstances of this case.

[16] For some years, there was a school of thought which held that the regulations operated to protect members of the public who were injured whilst present in premises which had been made available to others as a place of work and qualified, therefore, as a workplace. In Banna v Delicato 1999 SLT (Sh Ct) 84 ("Banna"), for example, the pursuer averred that she fell after catching her foot in a bread basket, which was on the floor of the public area of the defender's shop, as she turned to leave after making a purchase. She pleaded a number of cases including a breach of regulation 12(3) of the regulations, which provides that, so far as reasonably practicable, every floor in a workplace and the surface of every traffic route in a workplace shall be kept free from obstructions and from any article or substance which may cause "a person" to slip, trip or fall. The defender sought to have that case dismissed as irrelevant. Sheriff Morrison held that the reference to "a person" in regulation 12(3) must mean "any person", on a view which was expressed in these terms:

"(The protection of regulation 12(3)) could not be restricted to employees or persons working there unless there was a clear indication in the regulations as a whole that such a restriction was intended. I do not find that there is any reason to import such a restriction into the provision. It is not so restricted as are other provisions. Parliament could have specified such a restriction but has not done so."

Accordingly, the case founding on the regulation was remitted to probation.

[17] That approach was followed in three subsequent Sheriff Court cases: O'Brien v Duke of Argyll's Trs 1999 SLT (Sh Ct) 88, another regulation 12(3) case; Mathieson v Aberdeenshire Council 2003 SLT (Sh Ct) 91, in which regulation 13, which had to do with falls in the workplace, was relied on; and Fagg v Tesco Stores Ltd Sh Ct, 9 July 2004, unreported. A different view was taken by Sheriff Ross in Layden v Aldi GmbH & Co KG 2002 SLT (Sh Ct) 71, the Court of Appeal of England and Wales in Ricketts v Torbay Council [2003] EWCA Civ 613 and by Lord Drummond Young in McCondichie v Mains Medical Centre 2004 Rep LR 4. The matter was finally resolved for Scotland in Donaldson, in which the pursuer sought damages for injuries that she averred she sustained when she was crushed between a lorry and a loading bay, when collecting her purchases at a shopping centre. The first defenders were the employers of the driver of the lorry. The second defenders, or alternatively the third defenders, were averred to have been in control of the loading bay. The only case made against them was that they were in breach of the statutory duties imposed on them under regulation 17 of the workplace regulations. The case against the second and third defenders was dismissed by the Lord Ordinary at procedure roll, on the ground that the pursuer had no title to sue them. The pursuer reclaimed. The First Division refused the reclaiming motion, holding that, "on a sound construction of the regulations in the relevant context, they afford no protection to persons present in a workplace as visitors but not as workers." In doing so, the court disapproved the four Sheriff Court decisions referred to above, in which it had been held that certain of the regulations were enacted for the protection of members of the public as well as workers. The court in Donaldson did not, however, have to address the question which arises in this case, and which is identified at paragraph [15] of this opinion, namely whether, if the Town House was a workplace because it had been made available to a person other than the pursuer as a place of work (i.e. the caretaker), the pursuer enjoyed the protection of the regulations, because she was, in fact, working there.

[18] In my view, two features of the regulations point to the Secretary of State's intention as having been that they would operate to protect those workers to whom premises are made available as a place of work (in this case, the caretaker), rather than, more broadly, to any employed or self-employed person who is, in fact, working there (in this case, the pursuer). The first is to be found within the wording of the definition of "workplace". That contains what I shall call the general provision: "any premises or part of premises ... made available to any person as a place of work", and what I shall call the inclusion provision: "any place within the premises to which such person has access while at work". The purpose of the inclusion provision is clear enough. If I am employed to work as an assembler on a production line in a factory, the production line is my workplace because it is part of the factory premises made available to me as a place of work. If, within the factory premises, there is a canteen which I may use during breaks, the canteen is not made available to me as a place of work but it is, nevertheless, a workplace, because it is a place within the factory premises, to which I have access while at work. I am "such person" referred to in the inclusion provision.

[19] In common usage, the phrase "such person" is often employed to refer back to a class of person identified by reference to particular distinguishing features, without having to repeat those distinguishing features. The point may be too obvious to require illustration, but an example is to be found in the opinion of the court in Donaldson. Following the passage which I have quoted in paragraph [17] above, in which the First Division concluded that the regulations afford no protection to persons present in a workplace as visitors but not as workers, the court continued:

"That does not mean that such persons are left unprotected. They continue to have the protection afforded to visitors to premises by the antecedent, and subsisting, law relating to occupiers' liability."

The distinguishing feature of "such persons" as are referred to there is that they are present in a workplace as visitors but not as workers. The only distinguishing feature of "such person" as is referred to in the inclusion provision that can be read out of the general provision is that such person is one to whom premises or part of premises have been made available as a place of work. There is nothing in the wording of regulation 2(1), in my opinion, to suggest an intention that someone, A, who is present in premises which have been made available to another person, B, as a place of work and are, therefore, B's workplace, should enjoy the protection of the regulations for no reason other than that A happens to be at work there.

[20] When regard is had to the second feature, a contrary intention emerges. A number of the regulations require arrangements to be made in the workplace that can only be made if it is known what type of work is to be done there or how it is to be done or what are the physical characteristics of the person or persons who are to do the work, or a combination of any of the three. Regulation 2(3), for example, is in these terms:

"Any requirement that anything done or provided in pursuance of these Regulations shall be suitable shall be construed to include a requirement that it is suitable for any person in respect of whom such thing is so done or provided." (My emphasis)

Regulation 7 provides that a workplace shall be adequately thermally insulated where it is necessary, having regard to the type of work carried out and the physical activity of the persons carrying out the work. In terms of Regulation 11, a suitable seat shall be provided for each person at work in the workplace whose work includes operations of a kind that the work (or a substantial part of it) can or must be done sitting. A seat shall not be suitable for that purpose unless it is suitable for the person for whom it is provided. (My emphasis) Regulation 21(1) requires that suitable and sufficient washing facilities, including showers if required by the nature of the work or for health reasons, shall be provided at readily accessible places. Regulation 24 provides that suitable and sufficient facilities shall be provided for any person at work in the workplace to change clothing in all cases where the person has to wear special clothing for the purpose of work and that person cannot, for reasons of health or propriety, be expected to change in another room. None of these general requirements is qualified by reference to what is practicable or reasonably practicable. The terms of these regulations imply that the duty holder knows that the worker for whose benefit these regulations have been enacted is at work in the workplace, what such person's work entails, and what are the physical characteristics of that person. The duty holder will know or can discover these things if the protected person is a person to whom premises have been made available as a workplace. The duty holder will not know these things if the protected person is any person who happens to be working in the workplace, unbeknown to the duty holder. I hold, therefore, that the work or worker specific regulations are intended exclusively for the protection of persons to whom premises are made available as a place of work.

[21] I am conscious that a number of the regulations, including regulations 5 and 12(2) on which this pursuer founds, are not work or worker specific. They apply to all workplaces, regardless of what work is done there, and without reference to the characteristics of any person at work there. As was noticed by the court in Donaldson, however, within the regulations there is what the First Division described as a "diversity of form". The view of the court was that it is "unlikely that each regulation was intended to set out the scope of its own application, in terms of the persons entitled to rely upon it." Reading that reasoning across to this case, it is unlikely, in my opinion, that the work or worker specific regulations were intended to apply exclusively for the protection of workers to whom the premises have been made available as a place of work, whilst the protection of other regulations was intended to extend to workers to whom premises have not been made available as a place of work.

[22] For the foregoing reasons, I am of opinion that the regulations were enacted for the protection of those workers to whom premises are made available as a place of work. The consequence of the construction that I put on regulation 2(1) is that, on the pursuer's averments, the defenders owed no duty to her in terms of regulations 5 or 12, because it is not averred that the Town House was made available to her as a place of work, rather than as a place of recreation. If the defenders had been made aware that the pursuer wished to hire the Town House in order to work there, they would have had the option of ensuring that the regulations were complied with in respect of her use of it as a place of work, or of declining to hire it to her.

[23] The plaintiff in the McCully case, to which both parties referred me, was self-employed, in a partnership with another. They drove lorries as sub-contractors to another firm. In the course of this sub-contract work, the plaintiff and his partner drove their lorries to various sites to deliver and collect materials. At the time of the accident which gave rise to his claim against the defendant, the plaintiff was at the defendant's premises, collecting for disposal waste cement, which consisted of liquid cement containing some large blocks of cement. The accident happened on about the third day on which he had carried out a collection at the defendant's premises and it was about the third trip which he had done that day. He followed the procedure which he had followed on the previous occasions when he had collected such waste material from the defendant's premises. At the time of the accident, the plaintiff was climbing out of the cab of his lorry on to some boulders, in accordance with the procedure that he had been instructed by the defendant to observe, when he slipped and fell between the lorry and the boulders, thereby injuring himself. The plaintiff alleged that there was some wet cement on the boulders, which accounted at least in part for his slipping. The plaintiff claimed that the defendant was in breach of statutory duty, and relied on regulations 12(1) and 12(2) of the Northern Irish workplace regulations, which were in the same terms as the regulations in force in Scotland and in England and Wales. The judge held that the premises at which the accident happened were a workplace within the meaning of regulation 2(1) and held the defendant to have been in breach of the regulations. In doing so, he found support in Banna and in a passage in Munkman, Employers Liability, 13^th Edition at paragraph 12.07, which was described by the court in Donaldson as "tentative". On my construction of regulation 2(1), however, the plaintiff was entitled to succeed because he was a person to whom the premises had been made available as a place of work.

[24] In Bailey, the claimant was employed by the first defendant and was injured while working as a security guard at premises occupied by the second defendant. The claimant sought damages from the first defendant on the ground that it was in breach of regulation 13 of the regulations, which was concerned with the prevention of falls. The first defendants were held to have owed no duty to comply with the regulation because the warehouse was not under its control. In King, the claimant failed in an action against the owner of his workplace, again because it had insufficient control of the workplace to owe him duties under the regulations. In each case, however, the premises where the accident happened were made available by the respective defendants to the claimant as a place of work. There is no issue about control in this case, and I did not gain any assistance from these decisions.

Common law case

[25] This action is subject to the procedure laid down in chapter 43 of the Rules of Court. Rule 43.2(1) provides that the summons is to be in form 43.2-A, to which is to be annexed "a brief statement containing", among other things, "averments in numbered paragraphs relating only to those facts necessary to establish the claim". As to the legal foundation for the claim, form 43.2-A requires only that there be a statement of whether it is based on fault at common law or on breach of statutory duty, and, if the latter, a statement of the provision of the enactment relied on. (Paragraph 6) In Clifton, also a chapter 43 case, Lady Smith made the following remarks about what the terms of rule 43.2 require:

"[11] Whilst the rules contained in that chapter are designed to simplify written pleadings and avoid complexity where possible, I do not understand anything in those rules as detracting from the principle that defenders are entitled, when presented with a summons, to be able to ascertain without undue difficulty the nature of the case against them. More importantly, I do not understand anything in those rules as detracting from the fundamental principle that a pursuer ought not to raise an action against a defender except in circumstances where he has information upon which he is able to make a relevant case. That is the approach that professional responsibility demands. The new rules are directed towards relieving pursuers of the burden of setting out in the pleadings all the flesh needed to clothe the bare bones of the case but they are still, in my opinion, obliged to set out those bones in the summons. Unless they do so, I cannot see that they are complying with the requirement to state the facts necessary to establish the claim, as set out in Rule of court 43.2."

Miss Davie drew my attention to that passage and argued that the pursuer's pleadings do not set out the bones of the case.

[26] It is important to understand the context of Lady Smith's words. At paragraphs [8] and [10] of her opinion, her Ladyship said this:

"[8] I determined matters by acceding to the second defender's motion that further procedure in the case against them should be by way of debate. I agreed that the pleadings did not contain averments of facts necessary to establish the claim against the second defenders. To succeed in establishing any case against the second defenders, the pursuer requires to prove either that the accident was due to a defect in the state of their premises attributable to a failure by them to take reasonable care or that they were in control of the pursuer's workplace and were in breach of the relevant regulations or that they were in control of the equipment being used by him (or of a person supervising its use or of the way in which it was being used) and were in breach of the relevant regulations. There was no hint in the pleadings, even in the briefest of expressions, of the pursuer offering to prove that there was a defect in the state of the premises or that the second defenders controlled his workplace or any equipment being used by him or the use of which was being supervised by someone in the second defenders' control. Nor was there any suggestion that the second defenders had any control over the way in which the pursuer used any equipment at work. There was, accordingly, no hint or suggestion that any of the particular requirements of the regulations founded on by the pursuer related to matters which were within the control of the second defenders. Since the facts on which the pursuer's case was based were as outlined by Mr Mackay in his submissions, it is not surprising that that is so. Indeed, it would not have been appropriate, in the light of that factual matrix, to suggest either that the accident was due to a defect in the state of the second defender's premises or that it was due to a matter falling under their control.

[10] What emerged in the course of the discussions was that there appeared to be a fundamental misapprehension on the part of the pursuer's legal advisers to the effect that the terms of the rules contained in Chapter 43 of the Rules of Court somehow excused them from making proper enquiry and investigation prior to the raising of an action. It is surprising that they considered it appropriate to raise the action against the second defenders on the basis of the information that they had. They appear to have proceeded on the basis that they would sue the second defenders and wait to see what their reaction was rather than following upon any proper consideration of the question of whether or not they could make a relevant case against them."

In this case, the pursuer offers to prove that her accident was caused by a defect in the defenders' premises. I say more about that in the next paragraph. To that extent, she has set out the bare bones of her case.

[27] In Letford, the pursuer averred that she was injured when she tripped and fell while walking along a pavement. The pursuer averred that there was a defect in the pavement, namely a hole approximately 50 mm in depth, which had been caused by the defenders when they removed a lighting column from its position at the heel of the footway. The Sheriff dismissed the action after debate. Sheriff Principal Bowen recalled the Sheriff's interlocutor and allowed a proof before answer. Miss Davie relied on the following passage from his opinion:

"[3] Whilst the case is straightforward in some respects it is not a typical "tripping" case. In many such cases the pursuer does not offer to prove what the cause of the defect was. What is normally averred is that the defect had been present for some time and that the defenders were at fault in failing to identify and rectify it in the course of a regular system of inspection and maintenance. Such cases generally raise two issues, namely, whether the defect was such as to constitute a hazard, and whether it was one which, by reason of its nature and the duration of its existence, should have been observed and rectified under a proper system of inspection and maintenance."

Miss Davie argued that one would have anticipated that averments of that type would have been made in this case.

[28] In the passage quoted, in my view, the Sheriff Principal was seeking to identify the matters which have to be proved in order to establish liability against a local authority which is responsible for the maintenance of pavements. In this case, by contrast, the pursuer seeks to establish liability against the defenders as occupiers of the Town House. During the course of the debate, I had some discussion with Miss Davie about whether or not an action founded on a breach of duty by an occupier of premises was an action based on fault at common law or on breach of statutory duty. She maintained that it was the latter. The point arose because the pursuer pleads a breach of the defenders' duties to her at common law, but not a breach of their duties in terms of the Occupiers' Liability (Scotland) Act 1960 ("the 1960 Act") and, to that extent, they argue that the action is irrelevant. The matter was not explored in any depth, but I am not persuaded that Miss Davie's analysis is correct. Traditionally, the liability of occupiers has been a doctrine of the common law. What were perceived to be problems arose in Scotland because of the importation of certain rules of the English common law. According to its long title, the purpose of the 1960 Act was "to amend the law of Scotland as to the liability of occupiers and others for injury or damage occasioned to persons or property on any land or other premises by reason of the state of the premises or of anything done or omitted to be done thereon". The Act did not purport to amend any statutory provision, so it must be taken to have been intended to amend the common law. Indeed, section 1 is headed: "Variation of rules of common law as to duty of care owed by occupiers". Section 1(2) expressly preserves the rules of the common law which determine the person on whom, in relation to any premises, a duty to show care towards persons entering thereon is incumbent. The major amendment of the common law which was effected by the Act is to be found in section 2(1), which provides as follows:

"The care which an occupier of premises is required, by reason of his occupation or control of the premises, to show towards a person entering thereon in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them and for which the occupier is in law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger."

In the absence of a fuller debate on the issue, I prefer to say no more about it.

[29] In any event, in my opinion, the point is one of form rather than substance. The pursuer offers to prove that the floor of the Town House was undulating (which I understand to mean having a wavy surface, rising and falling in outline), that it had a gradient of 2.5%, and that it was warped. She avers that the undulation of the floor caused her to lose her balance and fall, whereby she was injured. She explained to the defenders' caretaker what had happened and pointed out where she had fallen. The caretaker filled out an accident report the same night. In my opinion, those averments give the defenders fair notice of what happened to the pursuer and what caused it to happen. It is clear that the pursuer is offering to prove that the state of the floor constituted a danger. The defenders are not disadvantaged by any lack of precision, because it is admitted that the pursuer explained to the defenders' caretaker what had happened and that their caretaker filled out an accident report on the night of the accident.

[30] In support of her argument that the pursuer has failed to aver any basis upon which the defenders ought reasonably to have foreseen that there was any risk of injury to the pursuer in the circumstances of the accident as averred, Miss Davie relied on certain observations of Lady Paton in Higgins. In that case, the pursuer sought damages from his employers for injuries sustained at work, while unloading boxes from a van, and moved for a jury trial. His motion was successfully opposed by the defenders. During the course of her discussion of the issues, Lady Paton identified "the lack of factual averments from which could be drawn any inference of reasonable foreseeability of injury at common law" as a major matter causing her to doubt the suitability of the case for jury trial. (Paragraph [22]) Her Ladyship continued as follows:

"[26] As for the common law case, reasonable foreseeability is often tested by posing the question: Why should the defenders have foreseen that, on the occasion in question, the pursuer would be likely to suffer injury? Put another way, why should the defenders have foreseen that injury to the pursuer was a probability? Factual matters are often averred by a pursuer to provide a basis for answering such questions. For example, there might be averments about similar accidents or injuries suffered by other employees carrying out a similar task in similar circumstances; or averments to the effect that the load was so abnormally heavy that it would be obvious to anyone that a single person could not manually lift the load, unassisted. Without averments of this nature, it is difficult to see how the pursuer could begin to prove the reasonable foreseeability of his suffering injury, without provoking objections from the defenders' counsel on the ground of lack of fair notice.

...

[28] While it is true that the new rules invite a different approach or culture, and consequently what might be termed a more relaxed approach to pleadings and to any objections taken in the course of evidence, nevertheless it seems to me inappropriate and unfair - not only from the point of view of the defenders, but also from the point of view of the judge who has to charge the jury - that a pursuer should be able to lead evidence at large before the jury, about matters which might or might not be relevant, without at least some warning being given to both the defenders and the judge by way of brief factual averments. The matter is a fortiori in a case such as the present, which concerns the lifting of loads, as reasonable foreseeability at common law arguably constitutes a different and more demanding test for the pursuer to satisfy than the requirements imposed by the regulations: cf Lord Macfadyen in Holly City of Edinburgh Council, at 1999 SLT, p 746H-L. See too dicta of Lord Jauncey in Robb v Dundee District Council at p 92: 'Foreseeability falls to be determined from facts and circumstances, and if no such facts and circumstances are averred, foreseeability cannot be established.'"

[31] I am of opinion that these passages do not support Miss Davie's argument. There is no suggestion in Higgins that the pursuer's averments failed to comply with the requirements of chapter 43. On the contrary, it was because they did comply that the case was unsuitable for jury trial. As Lady Paton put it in the concluding paragraph of her opinion:

"[29] For the reasons given above, I am satisfied that there is special cause for withholding this case from a jury. I shall refuse the pursuer's motion for issues and allow a proof. In so doing, I recognise that there is a degree of conflict between, on the one hand, the new personal injuries rules (which encourage and indeed demand brevity in pleadings), and on the other, the formalities and practicalities of a civil jury trial."

[32] During the course of the procedure roll discussion, Miss Davie accepted that, if it is clear what is meant by "undulating", there is sufficient averment of causation. Since I have held that the description of the floor as undulating is sufficient in the circumstances to give the defenders notice of what the pursuer will seek to prove, I need say nothing more on the causation issue.

[33] For the foregoing reasons, I hold that the pursuer has relevantly averred a case against the defenders as occupiers of the Town House.

Unfair Contract Terms Act 1977

[34] For the reasons advanced by Mrs Lake, which did not appear to be the subject of dispute, I hold that the term in the contract between the parties which purports to exclude liability for personal injury is void.

Decision

[34] It follows from the outcome of the foregoing discussion that I shall dismiss the case against the defenders under the workplace regulations as irrelevant, refuse to admit to probation the defenders' averment of contractual exclusion of liability to the pursuer for personal injury and, quoad ultra, allow parties a proof of their respective averments. I shall reserve all questions of expenses.