Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION

[2014] CSOH 162

 

PD2383/13

OPINION OF

LORD BOYD OF DUNCANSBY

In the cause

JEAN McNEIL SHEPHERD

Pursuer;

against

TRAVELODGE HOTELS LTD

Defender:

Pursuer:  Allardice;  Thompsons

Defender:  Marney;  Simpson & Marwick

7 November 2014

[1]        The pursuer is Jean Shepherd.  She is 66 years old and lives with her husband in Kirkcaldy.  This is a personal injuries action arising out of a fall at Glencorse Barracks, Milton Bridge, Midlothian.  The pursuer avers that it occurred as a result of picking up diesel on her motor cycle boots at the car park at the Travelodge at Dreghorn Services near Edinburgh.  This rendered her boots slippery and resulted in the fall.  Damages are agreed in the sum of £12,000 inclusive of interest to 7 October 2014.  Accordingly the proof was confined to issues of liability including contributory negligence.

 

Cause of accident
[2]        Mr and Mrs Shepherd are keen motor cyclists.  They are members of the Dunedin Chapter of the Harley Davidson Motor Cycle Club.  On 5 October 2012 they were due to participate in an event called Ride to the Wall.  This was a ride to the National Arboretum in Staffordshire where there would be a service and a wreath would be laid on behalf of the Chapter.  Motor cyclists from around Britain would attend.

[3]        The Chapter was due to congregate at the car park at the Travelodge at Dreghorn Services just off the Edinburgh bypass.  They were due to leave there at 9 am and travel to Glencorse Barracks where they would pick up two serving soldiers sponsored by them and Edinburgh Harley Davidson.  They would then travel down together to Staffordshire.  Between 20 and 25 bikes would be meeting there.  Some of the participants stayed overnight at the Travelodge.

[4]        Another club, the Royal British Legion Motor Cycle Club, was also participating in this event.  They were also congregating at the Travelodge at Dreghorn.  However they were not going to Glencorse and they intended to leave a little earlier at 8.30 am.

[5]        At some point before any of the motor cyclists arrived there was a spillage of diesel in the car park.  There is no evidence as to when it occurred or who was responsible but it is accepted that there was such a spillage.  While there was some question as to its precise extent it appeared to be accepted that it covered a substantial part of the car park.  It had been raining the night before and it could be seen in the wet because of its rainbow effect in the water.

[6]        The intention was that the Chapter would leave Dreghorn at 9 am. According to Mr Shepherd they arrived sometime between 8.30 and 8.45 am.  The pursuer’s evidence was that it was about 8.45 give or take five minutes.  Mrs Shepherd gave evidence that they left about 15 or 20 minutes after 9.  However this evidence did not accord with any other evidence; all the others were clear that they pulled out of the car park at 9.  Accordingly I find Mr Shepherd’s evidence of timings to be more accurate and prefer his evidence that they arrived sometime between 8.30 and 8.45.

[7]        When they arrived Mr Shepherd parked the bike in the car park.  Mrs Shepherd got off first.  She said that when she got off she was not aware of the diesel but almost immediately her husband said, “Watch, it’s slippy” or “Be careful, it’s slippy.”  She said that before then she had not been aware that the surface was slippy.  She then heard someone, she thought the Chapter’s Director, George Maguire, shout, “Be careful, there’s been a diesel spill. It’s slippy.”  According to Mr Shepherd he was not aware of the diesel spill until a little later when they all congregated for a discussion.  Mrs Shepherd said that her husband had parked in the diesel and it was not possible to avoid standing in it.  According to Mr Shepherd they parked at a different part of the car park to that indicated by his wife.  These minor discrepancies are I think immaterial as it is clear that very many of the bikers got diesel on their feet.

[8]        Accordingly I accept, and it was not seriously disputed, that it was difficult to avoid stepping in the diesel.

[9]        The party congregated at a point near to the entrance where Mr Maguire outlined the route they were going to take and there was a general discussion about the day ahead.  Mr and Mrs Shepherd returned to their bike.  There were general warnings from others including Mr Maguire to take it slowly and to be careful because of the diesel.  Before they remounted, both Mr and Mrs Shepherd attempted to clean their boots on the grass.  Mr Shepherd said that so far as his boots were concerned there was no evidence of diesel on them but he did it as a precaution.  The group then left the car park and travelled to Glencorse Barracks.  When they arrived they were greeted by a piper and marshalled up beside the parade ground.  A group photograph was to be taken.  Mrs Shepherd got off her bike and walked a short distance, returned to the bike and then walked back again a distance of some 30 feet or so.  As she did so she slipped and fell sustaining injuries.

[10]      The surface of the ground where she fell was tarmac.  There was evidence that there were a lot of footprints around the area where Mrs Shepherd fell caused by diesel on the boots picked up from the spillage at Dreghorn.  George Maguire, who came across as being otherwise very precise in his evidence, spoke about the ground being “awash with diesel”.  You could see the rainbow effect on the damp ground.  His evidence was supported by all the others who gave evidence and was not seriously disputed.

[11]      Mrs Shepherd was wearing motor cycle boots with rubber soles and a tread.  George Maguire said that after her fall he looked at the soles of her boots and observed diesel on them.  He accepted in cross‑examination that he had not carried out a forensic examination.  He was aware that his own boots were slippery as a result of the diesel.

[12]      There was evidence that diesel is a particular problem for motor cyclists.  The main problem is with bikes falling over as a result of losing grip.  Indeed there was evidence that one of the group, Mr William Hoy, did have an accident with his bike falling over as the group left the car park at Dreghorn.  This was due to the diesel spill.  It is also a problem for pedestrians.  Pauline Day, another member of the Chapter described the surface where the diesel was as being like black ice.  Tracey Stewart, the Hotel Manageress in a statement dated 15 November 2012 described seeing the bikers looking as if they were sliding about.

[13]      Mr Marney submitted that the pursuer had not proved the mechanism of the accident.  If she had accumulated diesel on her boots why did she not slip immediately?  He also submitted that Mrs Shepherd did not give a particularly graphic account and it was not corroborated.  On the other hand it was not disputed that Mrs Shepherd fell at Glencorse Barracks.

[14]      It is not disputed that there was a diesel spill in the car park at the Travelodge.  I am satisfied on the evidence that it was fairly extensive.  I am satisfied that many of the motor cyclists got diesel on their boots, and for that matter, on the wheels of the bikes as demonstrated by Mr Hoy’s accident.  I accept the evidence of Mrs Shepherd that she slipped.  Other than the diesel there appeared to be no other mechanism for her fall; she was on flat tarmac and there was nothing for her to trip over.  I accept the evidence of Mrs Shepherd, Mr Shepherd, William Hoy and George Maguire that there were foot prints from the group of motor cyclists at Glencorse Barracks caused by diesel from the boots.  I accept the evidence of George Maguire that he examined Mrs Shepherd’s boots and saw diesel on them.

[15]      Accordingly I conclude that the pursuer has proved on the balance of probabilities that the accident was caused by diesel picked up by the pursuer on her boots at the defender’s car park causing her to slip on the tarmac at Glencorse Barracks.

[16]      One issue remains and that is whether the slip was caused by the diesel on Mrs Shepherd’s boots or diesel on the ground at Glencorse which had been taken there on the boots of others.  Mr Shepherd said that he was not sure what the mechanism might have been.  However having accepted Mr Maguire’s evidence that  there was diesel on Mrs Shepherd’s boots when he examined them I am satisfied that the hazard arose from the diesel on her boots.

 

The defenders knowledge of the diesel spill
[17]      It is not suggested that the defenders were in any way responsible for the spill or that they should have been aware of the diesel in the car park before the manageress, Tracey Stewart, was told about it.  She gave evidence that she arrived for work at about 6.45 that morning.  She drove to work and parked in the car park close to the entrance to the Travelodge.  She was not aware of any problem at that point.

[18]      Pauline Day gave evidence that she and her husband had been staying overnight in the Travelodge.  She had breakfast in the Little Chef next door.  In order to do so she had to come out of the hotel and walk a short distance to the Little Chef.  At some point, which she put at between 8.15 and 8.30, she became aware of something on the surface of the car park.  She noticed the rainbow effect and that it was slippy, like black ice.  She went into the Travelodge and spoke to someone on reception.  That must have been Tracey Stewart as she was the only one on reception at that time.  She asked her to come outside to have a look. Ms Stewart came out and according to Pauline Day she had noticed that people were not able to walk properly; it was as she put it “slidy”.  According to Mrs Day, Ms Stewart had asked her what to do about it.  Mrs Day was asked if it appeared to her that Ms Stewart did not know what to do and she agreed.  Ms Stewart had gone back into the hotel and she had not seen her again.

[19]      Karen Holmes was the organiser of the Royal British Legion Club who were also meeting at the Travelodge car park.  She said that she arrived on her bike somewhere around 8.05.  She immediately noticed the diesel spill.  At that time only two other bikes from her group had arrived.  She expected about 15.  Instead of driving into the car park she parked near to the entrance.  She then stood at the entrance stopping other bikes coming in.  At some point she asked another member of the group, Andrew Law to take over from her so that she could go into reception to report the spill.  As she did so she met a member of the Dunedin Chapter, apparently male, coming out of the Travelodge.  He told her that he had just reported it.  She did not then go in as she was re-assured that it had been reported.  She said in evidence in chief that the time must have been about 8.15.  In cross‑examination she said a number of times between 8.15 and 8.25.  What is clear is that her group left the car park at 8.30.  She would have gone to her bike to get ready no later than 8.25.  Estimates of time are always difficult but I think it is clear that she would have spoken to the member of the Dunedin Chapter outside the hotel who told her that he had reported the spillage sometime between 8.15 and 8.25.

[20]      Tracey Stewart in her evidence recalled that a motor biker had come in and reported that there was a spillage in the car park.  She had then gone out and looked at the car park and observed the spillage.  She talked to people there.  She was asked what the nature of the conversation was and she said that they were saying that they thought it was diesel.  She did not know the time.  She did not know who it was who had made the report or whether it was a man or woman.

[21]      In her statement given on 15 November 2012 she said she was approached by a gentleman who informed her that there had been a diesel spillage in the car park.  She had immediately gone out to have a look.

[22]      Mr Allardice maintained that the evidence disclosed that there had been not one report but two reports to Ms Stewart.  Moreover as there was no evidence that she had responded to the report made by the man who had come out of the Travelodge and spoken to Karen Holmes it followed that she had failed to act as soon as she might have done.

[23]      I have no reason not to accept Pauline Day’s evidence that she went in to the Travelodge and spoke to Tracey Stewart.  I am also satisfied that Ms Stewart came out with her and spoke to others outside.  Mr Allardice’s contention that there were two reports rests on the conjunction of evidence; Karen Holmes’ evidence that she spoke to a man who said that he had reported it with what is in Tracey Stewart’s statement that the spillage had been reported by a gentleman.  Mr Allardice asks me to accept that Tracey Stewart’s statement is more reliable than her evidence in court as it was only some six weeks after the event.

[24]      There are however difficulties with this submission.  In the first place, there is no direct evidence from the “gentleman” member of the Dunedin Chapter who it is said made the report.  Secondly, Ms Stewart only speaks to one report of a spillage both in her evidence in court and in the statement.  If I am to regard the statement as being more reliable then there is no explanation as to why she might have missed the second report when she made the statement.  Thirdly, she says that after the report by the gentleman she immediately went outside.  Yet Mr Allardice asked me to accept that after the male had made the report she did not come out and effectively did nothing until sometime later.  Fourthly, in any event the time frame for both reports is the same.  Pauline Day said she made the report sometime between 8.15 and 8.30.  The report by the unknown man, if it was made, was between 8.15 and 8.25.

[25]      There are of course discrepancies between the evidence of Pauline Day, that of Karen Holmes and the statement of Tracey Stewart.  One can speculate as to the reason for the discrepancy.  I found both Pauline Day and Karen Holmes to be credible and on the whole reliable.  Karen Stewart’s memory was less reliable but her statement was taken a few weeks after the event.  It is possible that more than one person went to report the spillage but in the event only one, Pauline Day actually spoke to Tracey Stewart.  In any event I am not satisfied that that the evidence necessarily discloses that there were two reports far less that Tracey Stewart had failed to respond to one of them.

[26]      On all of this I conclude that Tracey Stewart was told about the spillage in the car park sometime between 8.15 and 8.25/8.30, in accordance with Pauline Day’s evidence.

 

The defenders’/Tracey Stewart’s response
[27]      The defenders led only one witness Tracey Stewart.  She is presently manageress of the Travelodge at Paisley Road, Glasgow.  In October 2012 she was the manageress of the Travelodge at Dreghorn.  As a witness she came across as slightly brittle and defensive and she tended to laugh or scoff at questions she thought were inept.  She was unsure of some of the detail of when she was told about matters and how she responded.  However I had the impression that she was fundamentally honest in her answers.  I also had the impression of someone who was highly efficient and capable.  I had no doubt that if something required to be done she would ensure that it was done.  When she was asked how it was she could make a phone call and deal with guests at reception at the same time she replied that she was a woman and that she could multi task.  She then went on to tell us how that was possible.

[28]      There was no evidence as to the number of staff in the Travelodge but I had the impression that it was small.  Ms Stewart was the only person on reception though she said that cleaning staff were coming in and she could always get help from one of them in dealing with guests.  They do not have a restaurant so there would be no kitchen or waiting staff.

[29]      Ms Stewart told the court that having come back in from looking at the car park and talking to people outside she first of all logged a job with FSG who are Travelodge’s facilities company.  They deal with maintenance issues throughout the Travelodge estate.  She was not sure if that was done on line or by telephone.  She thought that at that time it was more likely to be by telephone.  The defenders produced a reactive job details sheet from FSG which shows that the job was raised at 08.37.03.  Ms Stewart said she thought that entry would have been logged after she made the phone call but it’s not possible to say how long before.  All that can be said is that assuming the time is accurate it provides a latest time for Ms Stewart to have reported the matter to maintenance.  The job details record, “The car park has a diesel spill and this is a slip hazard.  Please attend and assess the extent of the diesel spillage and report back what is to be done.”

[30]      Ms Stewart said that she made two further phone calls.  One was to Clare Shinton, Travelodge’s health and safety manager and the other to her divisional manager.  These steps were set down by the company in a flow chart.  Clare Shinton advised her to do two things.  The first was to put bags of grit over the drains in order to prevent any diesel entering the drainage system.  Having looked at the drains Ms Stewart came to the conclusion that that was not required as there was no diesel near to any of the drains.  The second matter was to cordon off the car park.  Ms Stewart did this by placing a chair at the entrance to the car park with a notice on it advising that the car park was closed due to a spillage.  She also put a notice up in the hotel by the exit door advising guests of the spillage.  There were cars in the car park belonging to guests.

[31]      It seems that the first thing that Tracey Stewart did was to log the maintenance job with FSG.  Thereafter I was not entirely clear whether she had phoned her divisional manager or Clare Shinton first.  Her position was that she had put the sign up outside “as soon as she was told to do so” and that she had not delayed in doing so.  That matter was not explored further in evidence.  Exactly when the chair and the sign in the car park were put up is not entirely clear.  However the Dunedin Chapter left at 9 am and none of them saw the sign going up.  Tracey Stewart says that she cannot recall if the bikers were still there when she put the sign up.

[32]      Mr Allardice asked Ms Stewart in cross‑examination whether she would have known to block the drains without being instructed to do so.  He asked the same question in relation to putting up the sign to close the car park.  Her answer to both questions was “Yes, probably.”

[33]      That evidence might seem at variance with the clear evidence of Mrs Day that Ms Stewart appeared not to know what to do.  Ms Stewart refuted that suggestion and said she did know what to do and she did it.

[34]      My impression of this evidence was that Ms Stewart was clear that what she had to do was to arrange for the diesel spillage to be cleared up, to report it to health and safety and take their instructions and to report the matter to the divisional manager.  In other words she knew the procedure to follow.  I am less clear that she knew what other actions she should take. In the first place she clearly was less attuned to the dangers of a diesel spill than the bikers who knew from their own experience that diesel poses a particular problem for motor bikes.  Secondly when she was asked if she would have known what to do without being instructed the answer was not an unequivocal yes but a thoughtful response, perhaps with hindsight.

[35]      It was submitted that the evidence showed that the phone calls took upwards of 20 minutes.  My recollection is that in answer to a question about making phone calls from the reception desk and attending to guests she had explained that one could be left on hold for some time and it could take that length of time.  I was not certain that she was saying it did happen in this case.  It is clear however that the calls must have taken some time.

[36]      Tracey Stewart said that maintenance people had arrived at about 10.30 am and had put down sand.  Specialist cleaners attended in the afternoon and had cleaned the spillage.

[37]      I conclude that Tracey Stewart followed the procedures laid down by the company.  She arranged for the spillage to be cleaned.  She took advice from health and safety and followed their instruction.  She informed her divisional manager.  She put a sign up on a chair in the car park advising that it was closed and put up a sign by the exit in the hotel.  This was done sometime after 9 am.

 

Fault
[38]      The pursuer’s case on record narrates three grounds of fault against the defenders.  The first is a breach of section 2 of the Occupiers Liability (Scotland) Act 1960.  The second is a breach of a common law duty of care and the third is vicarious liability for the breach of duty owed by the hotel manageress, Tracey Stewart.  Mr Allardice submitted that the first and second grounds fell to be treated together; if the defenders failed to take reasonable care then they were in breach of their duties under the Act.  Mr Marney did not dispute that approach.

 

Submissions for pursuer
[39]      Mr Allardice submitted that Tracey Stewart was at fault because she had not immediately closed off the car park.  This was what Karen Holmes, a member of the public, had done when she stood at the entrance to stop other bikers going into the car park.  She knew, as she had accepted, that this was something that should be done.  She had seen people “sliding about”.  The closing of the car park was something that was so obviously required that it would be folly in anyone to neglect to provide it; Morton v William Dixon Ltd 1907 SC 807, per Dunedin LP at 809.

[40]      Ms Stewart should have done this by herself going to the entrance of the car park and holding up her hand in a policeman style gesture.  Had she done that Mr Shepherd would have seen her.  He would not have entered the car park and the accident would not have occurred.  When Mr Allardice was asked how Ms Stewart was to report the spillage if she was standing at the entrance stopping traffic he replied that Ms Stewart had told the court that the telephone could be operated from the car park so she could easily have stood at the entrance while she was on the phone reporting the diesel spillage.  Alternatively she could have sent a member of staff to direct traffic away while another member of staff could have made up the sign.

[41]      Having dealt with the vicarious case Mr Allardice turned to the case against the defenders themselves.  He submitted that by compelling the manageress to follow a procedure that involved her in making a number of phone calls that would normally take between 20 and 30 minutes when she should have been doing something immediate and decisive the defenders were in breach of their duty to take reasonable care.  Ms Stewart had accepted that she knew what to do. She should have been allowed to manage.

[42]      In answer to the submissions regarding contributory negligence Mr Allardice submitted that the only matters that were put to Mrs Shepherd impacting on contributory negligence were that she should have used a cloth.  It was suggested to her that she could have gone to the Little Chef for some paper napkins.  There was no case of contributory negligence made out.

 

Submissions for defenders
[43]      Mr Marney submitted that it was not reasonably foreseeable that someone who picked up diesel on their boots at Dreghorn would slip and fall elsewhere; he cited The Wagon Mound [1961] AC 388 and Dawson v Page [2013] SC 432 at 440. In any event Ms Stewart had done everything that was required of her.  There was no record for the submissions that by “compelling” the manageress to follow a procedure the defenders were in breach of their duty of care.  A duty of care should not be imposed in this case as the danger was created by a third party; Maloco v Littlewoods 1987 SC(HL) 37, per Lord Goff at 77, 82 and 83.  The defenders did not cause or permit to be caused a source of danger.  The imposition of a duty of care in the circumstances requires foreseeability of harm, a relationship of proximity and a consideration of whether it is fair, just and reasonable that the law should impose a duty of a given scope upon one party for the benefit of another.  There was no requirement to put out a sign to a danger that is obvious Leonard v Loch Lomond & Trossachs National Park Authority [2014] CSOH 38.

[44]      There was a plea of contributory negligence on record but this was not pressed hard by Mr Marney.  If it was accepted that Mrs Shepherd had attempted to clean her feet at Dreghorn then it was obvious that it had not been done properly.  He asked that I make a finding of contributory negligence in the region of 30%.

 

Decision
Foreseeability
[45]      It is foreseeable that if someone stands in diesel that there is a risk of slipping.  It is also in my opinion foreseeable that if a person stands in diesel they may pick it up on their shoes or boots.  If that happens then I accept that it is foreseeable that they might slip not on the diesel itself but on another smooth surface since the soles of the person’s footwear will not have the same grip.  The fact that the accident may happen some distance from the original spill does not in my opinion matter.

[46]      It would be different however if a person slipped, not as a result of diesel on their shoes, but as a result of a transfer of diesel from one place to another on the feet of other people.  Thus if the cause of Mrs Shepherd’s fall was not diesel on her boots but diesel on the parade ground at Glencorse brought in by other members of the group then I think it would be difficult to say that that was foreseeable.  However I have found that Mrs Shepherd slipped as a result of diesel on the soles of her boots.  Accordingly I am satisfied that the accident was foreseeable.

 

Duty of care
[47]      I am satisfied that there is a duty of care both at common law and in terms of the Occupiers Liability (Scotland) Act 1960.  The defenders are the occupiers of the car park.  There is public access to it.  Although physically separated from the filling station the hotel and Little Chef are part of the Dreghorn Services and advertised as such from the bypass.  In terms of section 2 of the 1960 Act they have a duty to take such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury by reason of any danger.  The danger referred to includes dangers which are due to the state of the premises.

[48]      The diesel spillage was such a danger.  It was recognised as such by Tracey Stewart.  I accept that there was no duty on the defenders to avoid the spillage happening in the first place.  Mr Allardice departed from that part of the case on record.  However once the defenders, through Tracey Stewart, became aware of the presence of the diesel then they were under a duty to take reasonable care for persons entering and using the car park.

[49]      Mr Marney submitted that in fulfilling that duty there was no obligation to warn people of the danger by means of a notice.  I reject that submission.  It is true that the diesel was visible in the wet by means of the distinctive rainbow effect in the water.  But I do not consider that it would be so obvious to a motorist, motor cyclist or pedestrian that there was no need to put up any sign.  The circumstances of this case are very different to those in Leonard v Loch Lomond & Trossachs National Park Authority cited by Mr Marney.  In my opinion there was an obligation on the defenders to have a sign posted at the entrance to the car park either closing the car park or at the very least warning people entering the car park of the danger.  The obligation would also extend to advising people who already had cars in the car park of the danger of slipping on the diesel.  This was in fact what happened.

 

Did Tracey Stewart fail in her duty of care?
[50]      I accept on the evidence that Ms Stewart was informed of the diesel spillage before Mrs Shepherd arrived.  What is not clear is the length of time between the two events.  As I have found Ms Stewart was told sometime between 8.15 and 8.30, though given the evidence of Ms Holmes it is likely that the end point may have been nearer 8.25. Mr and Mrs Shepherd arrived sometime between 8.30 and 8.45.  At the extremes there may have been as much as half an hour between the two events or as little as a few minutes.  I do not think it is possible to be more precise than that range of time.

[51]      Ms Stewart appears to have been aware of people sliding on the diesel.  On that basis it might be argued that she should have acted sooner to close the car park.  However the particular mechanisms for doing that suggested by Mr Allardice in submissions were not put to Ms Stewart in cross‑examination.  Some of them seem to me to have potential problems.

[52]      It was suggested that Ms Stewart could have gone and acted as a traffic policeman stopping traffic coming in.  I reject that submission.  In the first place I do not have any evidence from Ms Stewart as to how practical that suggestion may be but she was the hotel manageress.  She had duties in the hotel.  She had to report the spillage and get it cleaned up.  It was suggested that she could have phoned from the car park.  The evidence was that the hotel phone could be operated from the car park but Ms Stewart was not asked whether she could have made these particular phone calls.  I do not know whether she would have needed to check on telephone numbers.  In any event given her duties in the hotel I do not think it was unreasonable to make the calls from reception.

[53]      It was suggested that she could have sent a member of staff to stop vehicles entering the car park.  On the face of it that might seem a not unreasonable suggestion.  Again it was not put to Ms Stewart.  The only members of staff who were available were cleaners.  One can immediately see that health and safety might have concerns at sending a cleaner out to stop traffic entering a car park.  Without evidence as to the practicality of taking that step I cannot accept it.

[54]      I do not think it unreasonable for Ms Stewart to have sought advice from health and safety before taking further action.  There was no evidence about the incidence of diesel spills in the Travelodge car park but it is difficult to imagine that it is a normal occurrence.  Moreover this was not something that the defenders caused or, on the evidence, expected.  They were reacting to an unexpected event.  With the benefit of hindsight it might have been better for Ms Stewart to have sought advice from health and safety and acted on their instructions first before arranging for the spillage to be cleaned up and reporting the matter to the divisional manager.

[55]      Again however this was not explored with Ms Stewart.  It is in any event made with the benefit of hindsight and it is difficult to say that Ms Stewart was in breach of her duty of care by arranging for the spill to be cleaned up as a priority.

[56]      More importantly however I cannot be satisfied on the balance of probabilities that even if Ms Stewart had spoken to Ms Shinton first and taken her instructions that the car park would have been closed before Mr and Mrs Shepherd arrived.  As I have already found the time frame between Ms Stewart finding out about the spillage and Mr and Mrs Shepherd arriving at the car park may be as little as a few minutes or, at the longest, half an hour.  There was no exploration in the evidence as to how long it took for Ms Stewart to phone Ms Shinton and discuss the problem with her.  Nor was there any exploration as to how long it took her to find the materials to make the signs (two were required – one for the car park and one for the hotel exit), complete them and have them put in place.  Clearly it would have taken a little time and meanwhile Ms Stewart would have been dealing with guests at reception.  I find it impossible to say that it would have been done in time to close the car park before Mr and Mrs Shepherd arrived.

 

Defenders’ duty
[57]      Mr Allardice submitted that by requiring Ms Stewart to follow procedure they prevented Ms Stewart from taking the obvious steps required to stop people using the car park.  Mr Marney submitted that there was no record for this line.  If it was to be followed then there should have been evidence of practice elsewhere in similar circumstances.  My problem is that the first time this came up was in submissions.  At no time was it suggested to Ms Stewart that she was wrong to follow procedures or that the procedures laid down by the defenders in effect precluded her from using her own initiative or, as Mr Allardice put it, to manage.  The closest Mr Allardice got to it was to ask Ms Stewart whether she would have known what to do without the instruction from health and safety.  I have already found that I do not think it was unreasonable for Ms Stewart to have, at the very least, taken advice from health and safety.  Accordingly even if the procedures did not allow the manageress on the ground to take the initiative it cannot be said that it was in this case material.

 

Conclusion
[58]      I shall pronounce decree of absolvitor. I shall reserve the question of expenses.