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SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2024] CSIH 32
PD490/22
Lord Justice Clerk
Lord Malcolm
Lord Pentland
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in the Reclaiming Motion
by
(1) RODERICK FINLAYSON, (2) INGRID SIEGLINDE MERRETTIG and
(2) STEPHAN MARTENKA
Pursuers and Reclaimers
against
(1) ALBAN WINE LIMITED and (2) ANDREW SCOTT JOHNSTONE
Defenders and Respondents
Reclaimers: Conway, sol adv; Conway Accident Law Practice
Respondents: Clyde & Co, LLP
Second Respondent: Hennessy, sol adv; Keoghs Scotland LLP
______________________
9 October 2024
Introduction
[1]
On 26 September 2020, Katrin Martenka died following an accident occurring at the
Green Room wine bar in Edinburgh, on 24 September 2020, when a non-load bearing
wooden structure, intended to be used as a drinks tray, is said to have collapsed under the
combined weight of herself and the second respondent, Mr Andrew Johnstone. The
2
deceased's partner, her mother and brother seek compensation from the operators of the
wine bar, the first respondent, and also from the second respondent. Proof before answer
was fixed in respect of the action as directed against the first respondent, although we were
advised at the outset of the reclaiming motion that the claim against the first respondent had
now been settled. The Lord Ordinary dismissed the action as directed against the second
respondent, following debate on the Procedure Roll on the pleas of the second respondent.
That decision is challenged in this reclaiming motion.
The reclaimers' pleadings
[2]
The reclaimers aver that the wine bar had an outside area on the plat with tables and
chairs. The occupier, using steel struts and hinges had fixed a wooden shelf to the railing, in
such a way that it extended over the gap above the staircase leading to the basement area. It
could be folded down when not in use. The shelf was intended to be used as a drinks tray,
and was not intended for sitting on, which would be dangerous, all of which was known to
the second respondent.
[3]
On the evening of 23 September 2020, the deceased and a friend were socialising in
the Green Room. They started up a conversation with the second respondent, who was a
shareholder of the first respondent and a frequent visitor to the bar. The deceased had also
visited the bar in the past, but was not familiar with the layout of the plat, incorporating the
tray.
[4]
At around 1am, the deceased and the second respondent went outside to smoke. It
was dark at that time and the outside lighting had been extinguished. The reclaimers
contend that the second respondent raised himself up onto the shelf, sat there for around a
minute before moving along the shelf in the direction of the entrance door "to leave a space
3
such as to accommodate" the deceased. The deceased hitched herself up onto the shelf one
leg at a time. As she sat back, the shelf immediately gave way, and she fell onto the concrete
steps, suffering a fatal injury. The second respondent was able to prevent himself from
falling backwards over the drop.
[5]
The reclaimers maintain that the second respondent had a duty to take reasonable
care to avoid acts or omissions which he could reasonably foresee might cause injury. The
deceased was proximate to him in time and space. From his general familiarity with the
premises he knew or should have known that the shelf outside was not meant for sitting
upon, that it was suspended over a drop and that sitting on it was dangerous. By his actions
he invited the deceased onto a trap. He should not have sat on the shelf, nor should he have
invited the deceased to join him, either explicitly or implicitly. He should have foreseen that
the deceased might follow his example. He also had a duty to prevent or at least discourage
the deceased from joining him on the shelf. He created the risk of the accident which
eventuated. He invited her from a place of safety into a place of danger, which should have
been known to him, but could not have been obvious to her, having regard to the state of
lighting and other factors.
[6]
At debate the second respondent criticised the reclaimers' pleadings on the basis that
it was not made clear how far the assertions therein were based on inference. Further, it was
maintained that there were no relevant averments from which a duty of care on the part of
the second respondent could be derived.
The Lord Ordinary's decision
[7]
The Lord Ordinary considered that the reclaimers' averments, taken pro veritate, and
reasonably construed, amounted to the averment of an invitation by the second respondent
4
to the deceased to join him on the shelf. He also accepted that the averments were sufficient
for the purposes of establishing the foreseeability of injury arising from such an act on the
part of the second respondent. In his view, however, this was not sufficient to establish the
existence of a duty of care, even when coupled with knowledge of the danger. Comparisons
could be drawn with, for example, a scenario where one pedestrian follows another over the
road and is hit by a car. Even if the first pedestrian shouted "Follow me!" no duty would
arise. These were circumstances of obvious danger, where no duty would arise, unless in
the case of some particular averment of proximity, such as parent and child.
[8]
In the event of a danger that was not obvious, there would require to be averments of
special knowledge of the danger, which was absent, or of circumstances averred which
could amount to an assurance to the deceased that the shelf was safe, which the deceased
could rely upon. An argument that the second respondent had "made matters worse" was
rejected on the basis that the circumstances were not akin to a situation such as a botched
rescue attempt which ended up depriving a drowning man of his last chance of survival.
The deceased was not unable to do anything about the situation, she retained the
opportunity to assess the situation for herself and decide whether or not to follow
Mr Johnstone's example.
[9]
The Lord Ordinary applied the tripartite test in Caparo v Dickman [1990] 2 AC 605.
Only foreseeability had been addressed in the averments, and this alone was insufficient to
establish a duty of care. No relationship between the deceased and second respondent was
averred, the only proximity being in terms of space and time. Imposing a duty of care in the
present circumstances would risk opening the floodgates. A person who placed himself at
risk was entitled to expect that he would not be held liable to a third party who followed his
5
example, unless he had assumed responsibility for their safety. The second respondent had
not created the source of danger.
Submissions for the reclaimers
[10]
The Lord Ordinary erred in applying Caparo. The present case was not novel and no
issue of public policy arose. Following Robinson v Chief Constable of West Yorkshire Police
[2018] AC 736 (Lord Reed at para 27), the Lord Ordinary ought to have compared the
circumstances of the present case with the decided cases and existing common law to
determine whether there was an established category of negligence within which they
would fit. The facts were unusual, but no novel proposition in law arose (Bourhill v Young
1941 SC 395, Lord Aitchison at 437). This was a standard personal injury case where death
had resulted. It could be accommodated within existing principles. It was a case of
foreseeable physical damage caused by a positive act.
[11]
A prior or special relationship between the parties was not necessary. The deceased
was, in law, the second respondent's neighbour. His invitation to her to sit on the shelf was
a positive act and it was reasonably foreseeable that his carelessness in issuing it might cause
the deceased physical injury (Donoghue v Stevenson 1932 SC (HL) 31). He had caused or
contributed to the damage which ensued.
[12]
An inquiry into the facts was necessary to determine the nature and extent of the
danger. Only then, given the deceased had fallen in hours of darkness, could it be said
whether the hazard was obvious. The Lord Ordinary appeared to rely on the volenti
defence, the requirements for which were stringent, and could only be determined after
proof.
6
Submissions for the second respondent
[13]
The Lord Ordinary was correct to apply Caparo. There was no directly analogous
precedent. His conclusions in relation to the tripartite test, applied to the present
circumstances, were correct. It was not the case that the Lord Ordinary concluded that there
was sufficient for foreseeability.
[14]
Esto the facts of the present case could be accommodated by existing principles, the
second respondent still did not owe a duty of care. The averments did not establish
foreseeability in that they did not disclose the necessary knowledge on the part of the second
respondent (Donoghue v Stevenson, Lord Atkin at 44). There was no particular knowledge
averred which would have alerted him to the existence of danger, ie inherent weakness in
design/construction of the shelf. The only averments of proximity were physical and
foreseeability of harm alone could not create proximity (Caparo, Lord Jauncey of Tullichettle
at 655).
[15]
Both duties contended for concern liability for omissions. The first, that the second
respondent should have avoided sitting on the shelf or inviting the deceased to join him,
when properly analysed, was an omission. There was no positive action which created the
danger or made it worse. The danger pre-existed. The second respondent was akin to a
bystander at the time the deceased sat on the shelf. She made an autonomous decision
informed by the same knowledge as the second respondent. The second, that he should
have prevented or discouraged her from joining him, was a pure omission (Mitchell,
Lord Hope of Craighead at paras 14-16; Lord Scott of Foscote at para 39).
[16]
There was no factual basis for the assertion that the deceased would not have
suffered injury and death but for the second respondent's invitation. She voluntarily sat on
the shelf. She may well have chosen to do so alone.
7
Analysis and decision
[17]
This case may be somewhat unusual on its facts, but it is not complex in terms of
legal analysis. It is a relatively straightforward claim for damages for personal injury based
on an alleged positive, but negligent act, which created a foreseeable risk of injury to the
deceased, which injury eventuated. There may be formidable obstacles in the reclaimers'
path in terms of proving the claim, but that was not the test for the decision of the Lord
Ordinary nor is it for this court. It seems likely that the matter has become unduly
obfuscated, or complicated, by a lack of focus in the pleadings in identifying the true nature
of the case against the second respondent. The pleadings are replete with averment of
evidence, calls for further averment of evidence (a point which had even formed the second
respondent's first argument before the Lord Ordinary), averments of beliefs of third parties
and other matters which appear to be of, at best, peripheral relevance. The confusion
created by the pleadings cannot have been assisted during the debate before the Lord
Ordinary by reference to Caparo. A focus on that case, rather than Robinson, appears to have
led the Lord Ordinary into error.
[18]
It was submitted for the second respondent that the Lord Ordinary had not
concluded that there was enough in the pleadings to raise a relevant case of foreseeability. It
is difficult to accept that, having regard to the Lord Ordinary's comment that he rejected the
submission that the invitation, "coupled with knowledge" was sufficient to establish a duty
of care, and that his reasons for doing so related to the second and third parts of the Caparo
test, not foreseeability. In any event, in our view the averments of the reclaimers do contain
sufficient in terms of foreseeability, in terms of the nature and degree of the risk, the second
respondent's knowledge thereof, and the invitation. Having accepted that the averments
were such that they might relevantly be construed as indicating a positive act by the second
8
respondent, and assuming that he concluded, as is the case, that there was enough in the
pleadings from which reasonable foreseeability of injury might be demonstrated, the Lord
Ordinary nevertheless dismissed the claim on the basis of Caparo.
[19]
However, this case is not presented as one involving novel legal issues. It is not even
based on mere omission; or assumption of responsibility. And whilst there was an
argument advanced that the second respondent "made matters worse", repeated before this
court, this is clearly not a case where such an issue arises: the Lord Ordinary was right to
consider that any attempt to equiparate the case with failed rescue cases or the like was not
tenable. At heart the case is presented on the basis that the second respondent had a duty to
take reasonable care to avoid acts or omissions which he could reasonably foresee might
cause injury to persons who might be affected by those acts or omissions. It is advanced on
entirely traditional grounds which are, or should be, well understood. In these
circumstances the tripartite test in Caparo has no place.
[20]
Nor do the examples given by the Lord Ordinary advance matters. The example of
crossing the road appears to be a very clear case of a free and voluntary assumption of risk
in the full awareness of the degree and nature of that risk, and no possibility of a lack of
understanding of the dangerous character of the situation. The case against the second
respondent may yet perish on such a rock, after proof, but that matter cannot be determined
in the absence of evidence. The test, at this stage of proceedings, is whether, on the
averments, the reclaimers' case against the second respondent is bound to fail. Only in rare
and exceptional cases will it be appropriate to dismiss a personal injury action on relevancy
grounds (Miller v South Scotland Electricity Board 1958 SC (HL) 20). This is not such a case.
9
The reclaiming motion must succeed, and the case be remitted for proof.
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