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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Donald v. McDonald [2006] ScotCS CSOH_42_2 (14 March 2006)
URL: https://www.bailii.org/scot/cases/ScotCS/2006/CSOH_42_2.html
Cite as: [2006] ScotCS CSOH_42_2

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OUTER HOUSE, COURT OF SESSION

 

[2006] CSOH NUMBER43

 

     

 

 

 

 

 

 

 

 

 

 

PD283/05

 

OPINION OF R F MACDONALD, QC

(Sitting as a Temporary Judge)

 

in the cause

 

ANNENEE DONALD

 

Pursuer;

 

against

 

LINDA McDONALD

 

Defender:

 

 

­­­­­­­­­­­­­­­­­________________

 

 

PD283/05

 

Pursuer: Erroch; H B M Sayers

 Defenders: Macpherson, Solicitor-advocate; Simpson & Marwick WS

 

 

 

14 March 2006

 

 

Introduction

 [1] The pursuer, who was then aged 48, fell and fractured her right ankle on a flight of steps outside the defender's house at 1B Ralston Road, Bearsden on the afternoon of Sunday 24 February 2002. She avers that she slipped on a patch of compressed snow on one of the steps and that the accident was caused by the defender's failure to fulfil the duty incumbent on her under section 2(1) of the Occupiers' Liability (Scotland) Act 1960 ("the 1960 Act"). As the action proceeded under the personal injury rules in Chapter 43 of the Rules of Court, the averments contain no specification of how the duty ought to have been fulfilled. The case went to proof on the question of liability only, damages having been agreed by joint minute at the sum of £10,000 inclusive of interest.  

 

Evidence for the pursuer

(i) The pursuer

[2] The evidence of the pursuer was that she had known the defender since they were in their teens as they had worked in the same bank. On the afternoon of Sunday 24 February 2002 she dropped her father off at the defender's house, where she had been on two or three previous occasions. The pursuer then lived at 62 Crawford Drive, Old Drumchapel, Glasgow, which was about ten minutes by car from the defender's house. The pursuer went to the defender's house in a car driven by her husband, Nicholas Donald, in which her parents also travelled. The car arrived at the defender's house in the region of four o'clock or quarter past four. On the Sunday morning it had been dark, damp and cold at the pursuer's house. It was damp because snow had previously fallen. The weather had been bad leading up to that weekend. On the way to the defender's house there were still pieces of slushy snow at the side of the road and the road was wet from previous rain. It was dusky but the street lights were not on. When they arrived at the defender's house her husband parked the car at foot of the drive facing the garage. The area in front of the defender's house is depicted in photograph G of no. 6/6 of process. The pursuer and her father got out of the car. Her father approached the house by walking up the driveway to the left side of the lawn and the pursuer approached the house by walking up the flight of steps and path immediately in front of the door. She went into the house with her father, spoke to the defender and said she would collect her father in an hour.

 [3] On her way up the steps the pursuer had not noticed anything at all on them, but noticed slushy segments on the grass. She could not remember how it felt underfoot when she ascended the stairs. She was wearing black leather ankle boots with a rubber wedge heel about a quarter inch high. When she left her father at the front door she made her way back to the car using the steps. She could not remember where she was looking. She was not aware of it being slippy or anything. As she was coming down she felt herself coming off a step, heard a crack and was lying down two steps further down. She called to her husband and he came from the car. The step on which she slipped was the second step above the first landing and she ended up on the landing. She was towards her right hand side when she slipped on her right heel. She did not see what she had slipped on. That was the last thing on her mind. She just felt her foot snapping, it came over the step and bent back the way. She could not stop herself falling as there were no handrails. She passed out for a minute and then slipped in and out of consciousness. Her husband and mother got her into the car. She did not believe there was any rain falling at the time.

 [4] In cross-examination the pursuer said she could not remember if it was raining at the time of the accident or if it had rained heavily that day. She had not been in the car before the journey to the defender's house. She always approached the house by the steps and never thought anything about it. There was no snow on the driveway. She did not see what she slipped on either on the way up or the way down the steps. There was no visible snow or ice on the stairs. She had always said that. If there had been she would have avoided it. She would agree that the defender might have missed what she fell on. According to her husband she fell on a small impacted piece of slush that had turned to ice. She herself did not see any slush, snow or ice on the steps and was not aware at the time what had caused her to fall. She felt her foot going over the side of the step. Her husband saw her footprint on the slush.

 

(ii) Nicholas Donald  

[5] The pursuer's husband, Nicholas Donald, aged 58, a retired senior fire officer, said that they arrived at the defender's house shortly after 5 pm and that they left about 5.25 pm to go to the hospital. When they arrived it was "the gloaming" and the street lights were on at the time of the accident. In the morning he had been in and out of his garage working. He thought it was snowing. It was certainly damp. On the way to Bearsden it was damp and driech. They were all wearing winter coats. He could not remember whether rain was falling. He thought the ground was wet from the remains of melting snow and sleet. The roads were clear but there were patches of snow or slush at the side. When they arrived at the defender's house he parked nose on to the grass and, after his wife and her father got out, he turned the car round so that its back was facing the grass. His wife went up the stairs and her father went up the lawndriveway. He later saw in the wing mirror of his car his wife coming out of the house. The next thing he was aware of her calling and he got out of the car and found her lying on the steps, on the first landing up from the bottom of the steps. She was very distressed and said that she thought she had broken her ankle. He asked her what had happened. She told him that she had slid or skidded off one of the steps to the one below and then fallen onto the landing. On a step above her he could see a patch of compacted ice or snow, the kind of thing that you would find if you stepped onto snow and it had turned to ice. The uncompacted snow round about it had melted away leaving this shaped patch of ice. The piece of ice or snow was sharp round the edges, he presumed where his wife's foot had slipped across it. It was quite a definite footprint, like the sole of a man's shoe. It was on his wife's right side as she came down, on the fifth step from the bottom, at the front of the step, almost at the nose. A slide mark maybe three inches wide began three inches back from the nose of the step and continued to the front. He thought it had changed the shape of the footprint. He concluded that his wife had stepped on that and skidded off. He did not see anything else on the step that would have caused her to slip. She had landed on a big puddle about 18 inches in diameter in the middle of the landing. He spent not more than five or ten minutes at the steps with his wife.

[6] In cross-examination Mr Donald said that he did not see his wife falling. Something behind him attracted his attention, either her calling or something happening. There was a puddle of water on the third step up (the landing), water on the steps, snow at the side and this piece of ice. It was clear of snow where his car was. He did not remember if there was snow on the driveway leading up to the house. His wife's mother went to the door of the house after the accident but got no reply. He drove his wife to hospital. He phoned the defender's number three times but always got the answering machine. The defender took the pursuer's father home as they were at the hospital till 8.30 or 9 pm. He eventually spoke to the defender a few days or one or two weeks later to say that they were going to claim on their insurance.

 [7] In re-examination he explained that he did not drive right up to the front door as the defender's car was already parked there outside the bay window to the left of the front door. He understood at the time he made the remark to the defender about insurance that his home insurance covered personal injury. The friendship between his wife and the defender had totally dissolved although he said he did not want something like this to affect a long friendship.

 

(iii) Peter Sleith

[8] The pursuer's father, Peter Sleith, aged 78, confirmed the circumstances of their arrival at the defender's house. He said they arrived between 4 and 5 pm. It wasn't light, it was semi-darkness. He couldn't recall if the street lights were on or off when they drove there. It was dull weather, betwixt and between. It had been snowing earlier in the week and what was still lying had turned to slush on the driveway and ground, on pieces of grass here and there. He thought he was first out of the car. He went up the driveway. The steps didn't look too comfortable in the light with no handrails. He decided to go by the driveway rather than taking the chance of tripping or slipping. The driveway was wet but seemed all right. He didn't pay that much attention to the grass on the way up. He was not 100% sure whether it was raining. His daughter went up the steps and he met her at the door. Offhand nothing about the steps gave him concern. He didn't see the grass verges at the side of the steps. After his treatment the defender told him that his daughter had injured herself on the steps.

 

(iv) Richard Tabony

[9] Mr Richard Tabony, a climate consultant with the Meteorological Office for about twenty years, holds a first class honours degree in physics and has an academic as well as a practical interest in climatology. He spoke to his report no. 6/7 of process, which was prepared on the instructions of the pursuers's solicitors. He explained that he had gathered the data in the report from the four named weather stations, three of which were manned. The weather station at Bishopton, which was at a similar altitude to the locus, provided hourly data. Mugdock Park was the nearest weather station to the locus, being 6 km to the north, but it was at the highest altitude. At p 3 of his report he explained the effect of compression on snow in the following terms:

"The compression of snow into ice retards the thawing process. This is because untrodden snow contains a large amount of air or rain water and the thawing process takes place throughout the snow pack. Where the air has been squeezed out of the snow, melting is restricted to the surface only."

He summarised his opinion of the weather conditions as follows:

"At 16 GMT on 24 February 2002 most surfaces at Bearsden were wet. There had been a snow cover earlier in the day and patches of snow or ice will have survived where drifting had occurred or the snow had been trodden into ice. The snow had arrived on 22 February and snow showers continued throughout 23 February."

[10] He also stated that melting of the snow which had fallen was to be expected because temperatures were rising on 24 February. Drifting would be caused by winds. A single footprint would not be enough to compress snow to ice. It would normally take several days for compression to occur, as happened when a normal footpath became more and more slippery to walk on. It was the treading on a patch of snow which squeezed the air out of it. When salt was applied it reduced the freezing point. Grit had no chemical effect but increased the surface friction. In cross-examination he explained that what he had in mind by compression was the snow being continuously compressed by being walked on for a number of days, such as the snow on a public footpath. In re-examination he stated that what he really had in mind was that by 4 pm on 24 February most of the snow would have gone, but you could not be 100% confident that the snow had gone from everywhere: it would have been possible that small isolated patches had survived.

 

Evidence for the defender

(i) The defender

[11] The defender, a lady aged 50 years, stated that on 24 February 2002 the pursuer phoned her at about 1 pm and asked if the massage which had been arranged for her (the pursuer) that afternoon could instead be given to her father. The defender agreed to give a massage to the pursuer's father at about 4 pm, while pointing out that she was not a physiotherapist. She had been out that morning viewing property and the weather was dry. Her painter had come to the house at about 9 am to pick up his ladders and other materials to go to another property. He had parked his vehicle down at the garage and took the materials down the steps in two journeys. There had been what she described as "some flurry" of snow a few days previously but there was no snow lying on 24 February. She had put rocksalt on some snow which was lying a couple of days earlier. She had gone outside at 10.30 am when the gardener arrived and then gone to view property in Bearsden Road at Anniesland Cross. There was slight drizzle and no snow on the roads. When she came out of the property she had viewed it was raining more heavily and she had to use her umbrella. She returned home about 12.30 or 12.45. She went out in her car, which she had parked at her front door, for some groceries at about 2 pm. When she got back in just before 3 o'clock it was not raining. She was in the house until the pursuer arrived slightly late with her father. The pursuer came in with her father, settled him and spoke to the defender's son. She then saw the pursuer out.

[12] Later that day the pursuer's husband phoned to say she'd had an accident. The phone went about 15 minutes after the treatment began and, as was her custom, she did not answer it. 45 minutes after the treatment began it went constantly and she answered it. Mr Donald said they were on their way to hospital or were waiting in hospital. She later received another phone call from him to say that the pursuer had broken her ankle and he requested that she break the news to her father and take him home. She went to look at the steps and could not see where the pursuer had fallen. When she had waved the pursuer away that afternoon the defender pursuer was more than half way down the steps. She saw nothing when she looked at the steps. When Mr Donald phoned at about 9.30 or 10 pm to inform her that the pursuer had broken her ankle he said: "I witnessed it all in the wing mirror of the car." When she asked "What?" he replied: "Her heel coming down on an isolated piece of ice." That statement immediately raised concerns with the defender that the matter might end up in court. In between times her blacksmith had had come up to the house at 7 pm and she had asked him if the steps merited a handrail but he said no because the steps were wide enough. After speaking to subsequent contact with the pursuer and her husband, she stated that when the weather was bad she spread rocksalt. She had it available on the day of the accident but did not apply it to the steps as she did not deem it necessary. She had applied it at least twice previously and had applied it since the pursuer's accident. She was not seeing the pursuer's father in the course of any business, but only as a favour as part of a friendship.

[13] In cross-examination the defender stated that she had known the pursuer for 30 years and they had been fairly close friends. They had seen each other about once a month, and once a week when she moved closer to where she lived. The accident had sullied their relationship. They had had words on the phone in April 2002 and not been in contact since. On the day of the accident she heard about it maybe 40 minutes later and went to look to see where the pursuer could have fallen. She was not then looking for compacted ice patches. There was no slush on the grass. She did not see any patches of snow or slush on the drives that she was aware of. There had been drizzle or rain at 12.30. It had snowed a couple of days before and she had then gritted the steps and drive. She normally gritted the steps at night with rocksalt, which she bought in 15 kilogram bags from Homebase or the Garden Centre. She also used a substance known as Icemelt. Rocksalt was gritty red in colour and guaranteed for 24 hours. The rain just dissolved it. The day before the accident there may have been a flurry of snow which did not lie. She did not put rocksalt down on 23 or 24 February as there was nothing to clear. On the day of the accident she went to look at the path before 5 pm, between 4.45 and 5 pm. She had already been up and down the stairs that day and there had been no problem. It was possible that she never noticed ice or snow on the side of the steps when she walked down them at 10.30 am to greet the gardener. When she checked the steps after the accident she walked down the middle and looked on both sides. The beginning of her day had been when her painter Mr Mackie had got her up when he came for his ladders and materials at about 9 am. He was working on the interior and exterior of her house for four months. She was not aware of it being wet underfoot when she went for groceries. The blacksmith had come with an estimate for gates and railings. As she had by then heard about the pursuer's accident she asked him if he thought a handrail was needed and he said no. When she went to look at the steps after the accident it was not dark. She had dusk to dawn lights wired into the electricity on a sensor system and they had not come on by then.

 

(ii) John Mackie

[14] John Mackie, aged 50, was the defender's painter and decorator. He was told of the accident the day after it occurred when he arrived at the defender's house. The defender told him that the pursuer had fallen on the steps. He remembered saying "How did she manage that?". He learned from the defender a month or so later that the pursuer had fallen on ice or snow on the stair. He thought "How could she fall on ice if there wasn't any ice or snow there at the time?". On the day of the accident he had gone to the defender's house in Bearsden to collect materials as the defender had water penetration in the roof of her property at Loch Lomond. He was there for 9 am. His ladder was at her interior staircase along with his painting materials. It was dry. There was no snow or ice. If there had been he would not have done the job at Loch Lomond as it would have been "too dodgy". He was up and down to the house from his car at the garage four or five times. He descended her steps carrying materials at least four times. He returned to Loch Lomond from Bearsden about 3.30 or 3.45 pm and took all his materials back from the car to the house via the steps. The weather was fine. He noticed no snow or ice on the steps in the morning or the afternoon and had no difficulty with the steps. If there had been any difficulty he could have left his materials in the garage. He left the Bearsden house about fourish, before the pursuer arrived.

[15] In cross-examination Mr Mackie stated that he worked for the defender every now and then and accepted that he considered her a friend. They had socialised together and he had once stayed overnight at her house. He added that most of his clients were his friends. He knew that there were 16 to 18 steps outside the defender's house as he had power-washed them. On that Sunday it was quite a nice day, the weather was dry and it had been an enjoyable experience working outside at Loch Lomond. He thought there had been snow on one day leading up to that weekend. The only reason he had gone out that Sunday was because the forecast was for dry weather. He had worked outside at Loch Lomond cleaning leaves from the gutter. There was no snow lying on the ground at Bearsden and no slush at the side of the road. The ground was not wet. There were no patches of snow or slush under trees and on the lawn. On being shown the Meteorological Office report, he said that the only parts which surprised him were those saying that there were snow and slush in Bearsden on the Sunday. He denied, when the suggestion was put to him, that he had come to court to tell lies for the defender. The defender's house was south facing and you could get snow at the back of her house and nothing at the front. He did not step on slush on her steps that day and he did not see small patches of slush at the side of the steps or on the lawn.

 

The question of fact

[16] The question of fact which I have to decide in light of all the above evidence is whether there was present on the defender's steps on Sunday 24 February 2002 a patch of compressed snow or ice which caused the pursuer to slip and fall. The only witness who spoke to the presence of such a patch was Mr Donald, the pursuer's husband. He provided a detailed, or perhaps it would be more appropriate to say, meticulous description of it. I am not satisfied on the basis of his evidence that there was such a patch. My reasons for reaching that conclusion are as follows. First, I was surprised that he was able to take such a careful mental note of the features of the alleged patch of snow or ice at a time when his wife was lying on the first landing of the steps having just sustained a serious injury and when his priority must have been to get her into the car and to hospital. The description which he gave of the alleged patch resembled the sort of description of an item which is usually given by a scenes of crime officer who has had the opportunity to carry out a calm and careful examination. Secondly, no other witness described the presence of such a patch. The pursuer herself, whose evidence I accept in its entirety, did not see such a patch either on the way up or on the way down the steps. Nor did she describe having felt that she slipped on snow or ice, or indeed on any other slippery substance. The defender and Mr Mackie, whose evidence on this point I accept, did not see any patch of snow or ice on the steps when they walked on them that day. Thirdly, I do not think that the requirement for the presence of compressed snow or ice, as described by Mr Tabony in his evidence, was satisfied. It is clear from his evidence that what is required for compression is repeated treading on the patch of snow over several days. I think it is unlikely that the required repeated treading took place on these steps, despite the variety of workmen who visited the house, particularly in light of the pursuer's evidence that she was towards her right hand side when she slipped. It is well known that people slip and fall on steps even when no slippery substance has been present to cause the accident.

 

Liability

[17] Since I am not satisfied that it was a patch of compressed snow or ice which caused the pursuer to slip and fall her case must fail on the facts. Even if I had been satisfied that she slipped on a patch of compressed snow or ice as described by Mr Donald, I would not have been satisfied that liability had been established. Liability is based on a breach of section 2(1) of the 1960 Act, which provides that the care which an occupier of premises is required 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 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 such danger. When I asked Mr Erroch in his closing submission on behalf of the pursuer how the defender knew or ought to have known of this isolated patch of compressed snow or ice, what she ought to have done about it and when, he was in obvious difficulty in his attempt to provide an answer. He stated that he was not submitting that the defender ought to have known of the patch, but that she ought to have taken reasonable precautions to see that it did not exist. He further stated that the weather conditions were such that she ought to have cleared or gritted her path, including the steps, on the day of the accident for the simple reason that there was visible on her property and in the vicinity hazardous matter in the form of clearly visible patches of snow and slush, which obliged her to clear or grit her path, including the steps. I confess that I cannot follow the logic of that proposition. I do not see why the presence of hazardous matter elsewhere should oblige the defender to clear or grit other hazardous matter of which she was not aware. The pursuer was quite clear that there was no visible snow or ice on the steps. That being so, there is no basis for fastening the defender with knowledge of the presence of something which was not visible to the pursuer and to impose upon her a duty to do something about it. It is necessary to bear in mind that, whatever the exact condition of other surfaces might have been that day, nobody suggested that the steps were covered in snow or ice and obviously deserving of attention. I am satisfied that nothing in the evidence suggests that the defender knew or ought to have known of the patch of snow or ice and that she was therefore not in breach of her duty under section 2(1) of the 1960 Act.

 

[18] Mr Macpherson made what he accepted was a bold submission that there was no duty in law on householders to treat snow or ice on their premises. He submitted that domestic premises were different from business or local authority premises which were open to the public or public roads, which the roads authority had a statutory obligation to treat. Snow and ice were transient and natural dangers and a householder could not fulfil a duty to clear them if he was absent from home, elderly, infirm or without salt or grit. He had been unable to find any reported case where a householder had been held liable for not clearing snow or ice from his premises. As I have held that there was no breach of any duty imposed on the defender under section 2(1) of the 1960 Act, it is unnecessary for me to consider this submission, particularly as it was not dealt with by Mr Erroch in his submission. The point should be left for decision to a case in which it is fully argued and in which it is essential that it be decided. All I would say is that it seems to me that section 2(1) of the 1960 Act applies to all occupiers of premises, including householders, and the question in each case must be whether "such care as in all the circumstances of the case is reasonable" has been exercised by the particular occupier.

 

Decision

[19] For the reasons given above the defender will be assoilzied.

 

Postscript

[20] Before parting with this case there are two points which I would wish to mention. First, I think that all reasonable people would regard it as most regrettable that this action was ever raised. It was brought by one friend against another and has been responsible for damaging or destroying a long friendship. The outcome has been that the pursuer has received nothing. In my opinion the bringing of this action was a most ill-advised course on the part of the pursuer. Secondly, I agree with Mr Macpherson's submission that, had this case proceeded as an ordinary action instead of a personal injuries action under Chapter 43 of the Rules of Court, it would have been impossible for the pursuer to have averred a relevant case of fault against the defender and the action would have been dismissed at procedure roll. There are many cases for which the Chapter 43 procedure is suitable but there are several, and this is one of them, where it is not. The need for detailed pleadings in this case was obvious. The result of this case having proceeded under Chapter 43 procedure is that an irrelevant case has proceeded to proof, with all the consequential expense and waste of court time. I heard a proof in this action without knowing what the pursuer's case was, even at the conclusion of the evidence. The pursuer's counsel was unable to formulate a relevant case even in the course of his closing submission. When I asked Mr Macpherson why a motion had not been enrolled on behalf of the defender at the appropriate time for the case to be appointed to proceed as an ordinary action he was unable to provide any answer. It is my experience that there are cases which should appropriately be appointed to proceed as ordinary actions but in which a motion for the action to be appointed to the ordinary roll is not enrolled on behalf of the defender or defenders. Those acting for a defender or defenders should be alert from the stage of lodging defences to consideration of the question whether a motion should be enrolled for the action to be withdrawn from the Chapter 43 procedure and appointed to proceed as an ordinary action. Such a motion must be enrolled within 28 days of the lodging of defences under Rule of Court 43.5(3)(a).

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