Scotland's highest civil court again endorses a more expansive approach to the consideration of legal duties arising under the Occupiers' Liability (Scotland) Act 1960.

Davie v Powerteam Electrical Services (UK) Limited and Another [2023] CSOH 94.

The pursuer sustained a catastrophic injury when aged 28 after climbing onto the roof of an elevated portacabin at a temporary construction site and falling 18 feet when descending an external metal stairway. The pursuer when returning home from the pub had entered the site through an open gate, using the stairway to reach the landing of the portacabin before standing on a guardrail to access its roof.

The construction site was under the control of the first defender. The pursuer argued that the first defender ought to have had an effective barrier (e.g. a secured or locked gate) preventing access to the stairway and the failure to install represented a breach of the 1960 Act. The first defender denied there was a duty to act; it was not reasonably foreseeable that an adult would climb up to the portacabin. They asked the court to dismiss the pursuer's case because he presented no factual basis from which to establish foreseeability.

Lord Young agreed with the defence submission that the pursuer's claim was bound to fail. In so doing, he favoured a synthesised rather than staged approach. He rejected the submission that the Act should be addressed by asking first 'what danger arises from the premises' and thereafter considering whether the occupier has shown a reasonable degree of care in regard to it. To establish a duty to act, the pursuer first had to establish that the risk of injury averred was reasonably foreseeable to the occupier.

The pursuer's case was bound to fail because he did not set out a basis from which the first defender ought to have foreseen that risk on site. There were no averments of previous incidents involving adult members of the public gaining access at this site or others, or of falls from portacabin roofs more widely within the construction industry. Further, the first defender had not created a danger on the roof, the danger of falling was created solely by the pursuer climbing on to it.

This decision supports a shift away from a mechanical approach to claims made against occupiers to a more expansive one. If followed, it is a change which is helpful to defenders. Whilst the onus has always rested on the pursuer to prove fault, arguably, the staged approach made that easier. The focus often fell on the risk which did present at the material time and how it should have been controlled. With the importance of foreseeability now reaffirmed, that initial focus moves from a consideration of what danger did arise to what dangers a reasonable occupier should have anticipated. Within that second approach, there is more for a pursuer to do if they are to succeed.

Contributors

Gemma Nicholson

Senior Associate