The law in relation to occupiers liability is different north and south of the border. In Scotland, the Occupiers' Liability (Scotland) Act 1960 ("the Act") concerns the duty of care owed by an occupier of a premises to those that enter the premises. An occupier will normally be the one in control of the premises and in brief terms, an occupier has a duty to take reasonable care to ensure that a person will not suffer injury or damage by reason of any danger on the premises. What is "reasonable" in the circumstances will depend on the facts and circumstances of each case.
One such case is Karla Hodgson v Castle Hill Housing Association Ltd in which the pursuer suffered injury when she fell down a flight of stairs.
The pursuer was descending a set of stairs on her way home at around 8pm. There were 6 concrete steps with a handrail which ended at the second last step. There was no dedicated light for the stairs, only a streetlight 4 metres away which only lit the top and part of the second top step. The remaining stairs were in darkness. The pursuer began her descent down the stairs, taking one at a time, and upon reaching the end of the handrail, assumed she was at the bottom. However, this was not the case, and as a result, she lost her balance and fell down the remaining step.
The defenders denied liability on the basis that they routinely conducted visits to the area. No residents had raised issues or complaints about the stairs nor did the property officers see the lighting to be a danger. The defenders' primary position was that no liability should attach and if it did any award should be reduced by 40% to 50% for contributory negligence on the part of the pursuer.
Ultimately the Sheriff preferred the evidence of the pursuer and liability attached.
The Sheriff concluded that"a reasonable occupier in the position of the defenders would have installed a dedicated light for the stairs." It was held that the defenders did not take reasonable care to see that the pursuer did not suffer injury or damage as a result of the danger caused by the inadequate lighting and as a result were in breach of s2 of the Act.
In coming to the decision, particular focus was placed on the following points:
- the evidence confirming that there was no dedicated lighting for the stairs which was reinforced by witness evidence from the Property Services Officer confirming knowledge of the lack of lighting;
- the expert evidence brought by the pursuer which highlighted the illumination provided by the streetlight was below the British Standards and was not sufficient to light up the stairs; and
- the limitations of the handrail which did not span the whole set of stairs in combination with the lack of lighting which created a false impression that the bottom of the stairs had been reached.
The Sheriff rejected the defenders' argument on contributory negligence. Again, accepting the evidence of the pursuer that she had taken care going down the stairs he held that no reduction for contributory negligence should be made.
The pursuer was awarded the full sum of £17,000 which had been agreed between the parties.
Generally, occupiers' liability cases will turn on their own facts. In this case the sheriff was persuaded on the evidence heard that the lack of suitable lighting had been the cause of the pursuer's fall. In relation to contributory negligence, it was noted that the onus of proof was on the defenders to prove that the pursuer’s actions fell below the standard of a reasonable person in the position of the pursuer. They had failed to do so in this case. They led no evidence of their own on this point and the sheriff accepted the pursuer's position that she had taken reasonable care therefore no deduction was made.
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