As lockdowns ease across the UK, many people are now taking the opportunity to get out and enjoy the variety of outdoor activities on offer, from the recent trend of stand-up paddle boarding to classic Munro bagging. Whilst covid-19 safety measures will be at the forefront of business owners' minds, identifying and mitigating the risk of injury caused by other dangers remains important.
A recent decision by the All-Scotland Sheriff Personal Injury Court in Elizabeth Morag McCann v Dumfries and Galloway Council [2021] SC EDIN 36 serves as a reminder of the ongoing risk of legal claims against occupiers under the Occupiers' Liability (Scotland) Act 1960. The Act obliges occupiers to take such care as is reasonable in all the circumstances to prevent injury or damage from reasonably foreseeable dangers.
1 The facts of the case
The pursuer was a teacher accompanying school children on a trip to the Carlingwark Outdoor Centre to take part in watersports activities. After the children had boarded their 'funboats', the pursuer was invited to join a member of the Centre's staff on the rescue boat, from which she could supervise the children. As she boarded the boat from a slipway, she briefly placed one of her feet below the waterline, causing her to slip and injure herself. She brought a claim against the Council who operated the Outdoor Centre, alleging that they had not taken such care as was reasonable to prevent injury from falling on the slipway.
The staff at the Outdoor Centre were aware of how slippery the part of the slipway below the waterline was, which was made worse by the presence of algae on the surface of the slipway. They took steps to combat the risk of injury including undertaking annual pressure washing, erecting signs to warn of the hazard and warning visitors not to step on the slipway below the waterline. However, the annual pressure washing didn't happen as planned in the spring of 2016 due to the higher level of water in the loch. As a result, by the time of the accident (on 19 April 2016) the slipway had not been pressure washed in over a year. The pursuer therefore argued that the defender could have done more to prevent her accident.
2 The decision
The court held that the defender had done all that was reasonable to prevent injury from the reasonably foreseeable danger of slipping on the slipway. In reaching this decision, the court took into account the measures the defender had put in place, namely erecting signs and warning visitors not to step on the part of the slipway below the waterline. In response to the pursuer's argument that they should have pressure washed the slipway more regularly, the court accepted the defender's evidence that pressure washing had no effect on the slipway surface below the waterline and therefore would not have prevented the accident. The court also accepted the evidence that staff could remove the algae with wire brushes, which they did following the accident. However, this took around five hours to do and was 'very hard work'. In addition, the algae usually grew back within a matter of weeks. The court found that, in the circumstances, manual cleaning below the water was not a precaution which the defender required to take.
3 Comments/ Take away
Whilst the pursuer was ultimately unsuccessful, this case is a reminder to business owners of the importance of carrying out and implementing regular risk assessments, which should be continually reviewed. It also highlights the benefits of ensuring that employees are fully aware of all such risk assessment and are trained to implement them effectively. Doing so will not only reduce the risk of injury but may also enable occupiers to successfully defend any claim raised in the event of injury occurring.
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Trainee Solicitor
