BClaims Personal Injury Blog

In the case of  Murphy v East Ayrshire Council Mr Murphy, who suffered from a number of disabilities, was injured as a result of being thrown from his wheelchair when the minibus in which he was travelling was forced to brake sharply. At the time, he was in the care of Council employees. We have to assume that there was no prospect of a claim based on the actions of the Council’s driver because Mr Murphy pursued his claim on very different grounds.

It was accepted that Mr Murphy was not wearing a seatbelt at the time of the accident.   Mr Murphy’s case was based on the Council having a duty of care to  guard against risks of him not putting his belt on and to prevent him being exposed to risks of which they were, or ought to have been aware.  In particular, they were aware,  from previous trips,  that Mr Murphy would unfasten his seatbelt whilst in transit.  So it was their duty to take reasonably practicable precautions to obviate the risks.

The court in this case held that the law does not impose a duty on a person to protect others from harm which is not caused by his or her wrongful act. Something more, such as an assumption of responsibility is required. In the present case, the court could not identify any basis upon which the Council had assumed a legal responsibility for ensuring that Mr Murphy, a person of full age and capacity, travelled with his seat belt fastened. The fact that Council employees might do what they could to avoid it (such as stopping to refasten the belt if they became aware that Mr Murphy had undone it, or refusing to transport him if he refused to fasten his belt) did not, in the opinion of the court, create a duty in law to supervise him during every journey or, taking the matter a stage further, to intervene against his will to fasten it.

The original decision resulted in a woman losing her claim for damages. She was seriously injured when a toilet on which she was standing to open a window toppled over. The Inner House (Scotland’s civil appeal court) have now reversed the original decision and awarded £15,900 in damages (reduced from £31,800 on the basis that she was 50% to blame).

They held that it was not reasonable to expect the pursuer to have to go and find the janitor to help open the window nor could she be expected to simply leave it shut. As they made clear: ““It was wholly foreseeable that a person, such as the reclaimer, would be anxious to be in a position to ventilate the toilet after she had used it.”

The employers had a duty under regulations to carry out a risk assessment and address how the window might be opened, closed or adjusted. Taken together the employers should have discovered the risk of injury if no window pole was provided. Any suggestion that the window could be left shut ignored a further a duty on the employer regarding ventilation of the area.

The Inner House did however agree that the mere fact that it toppled over was not sufficient to establish that the toilet itself was not in efficient working order. It was being “subjected to a use for which it was never designed or intended” and “An abuse by the employee of equipment for the purpose for which it was never designed does not establish that the equipment was not in an efficient state, or not in efficient working order or not in good repair.”

Householders and occupiers of public premises can rest a little easier after two recent English High Court Judgements have further clarified the law on the extent of an occupier’s duties.   

The case of Kylie Grimes v David Hawkins and Finlaypark Hospital NHS Foundation Trust, involved the claimant sustaining a severe injury when diving into a swimming pool whilst attending a party at a private house.  The case essentially covered 2 issues – was the defendant in breach of Section 2(1) of the Occupier Liability Act 1957 and did the Defender owe a duty of care to the Pursuer.  Whilst there were a number of areas of dispute between the parties such as whether the claimant was permitted to use the pool, did it have lights and what point the claimant dived into the pool, the court took the view that there was no particular duty incumbent on the householder to prohibit adults from diving into an ordinary pool whose dimensions and contours could be clearly seen.  This is even so in circumstances where the householder was holding a party with a group of adults in high spirits who were most likely to use the pool.  The decision may, of course, have been different if the pool had contained a hidden or unexpected hazard.    

In the case of Ruth Geary v J D Weatherspoon Plc the claimant was drinking in Union Rooms owned by the Defendants.  The premises included an open staircase with a sweeping banister on both sides.  On the way out, the claimant decided to slide down the banister and in the process of hoisting herself up onto the banister she fell and sustained a severe injury as a result of falling 4 metres.   Again, the case came down to whether or not the Defendant owed a duty of care to the claimant and, if so, was there a breach of that duty.   The court considered whether a duty of care could apply to an occupier for any obligation in respect of which a risk had been willingly accepted by the visitor.  The Pursuer accepted that sliding down a banister carried a risk of falling off and that she had willingly accepted that risk.  The court, having considered a number of authorities, was clear in its view that a claimant, having voluntarily accepted the risk, could not pose an obligation on the Defendant.  There was a suggestion that the make up of the banister, particularly its height, could have been a factor in the claimant falling off.  The court took the view that, even if there had been something unusual about the make up of the banister, the probability was that this would not have been causative of the accident on the basis that the claimant would have slid down anyway even if the banister had been of a different height.

These cases serve to illustrate that there is no absolute duty on the occupier of the premises to guarantee the safety of those using their property.  Unless there are concealed or hidden dangers lurking which the visitor could reasonably not have been aware of, there is no duty on an occupier to cover each and every eventuality whilst visitors remain on their property.

Another workplace tragedy has been reported on the BBC News website following the collapse and death of a man at Diamond Wheels Technologies in Dundee.

Mr Steven Conway who was just 33 years old collapsed whilst working in a chemical tank and two colleagues who tried to assist him also required medical checks albeit they don’t seem to have suffered any ill-effects.

The Health and Safety Executive have been notified and will no doubt carry out a full investigation. 

Whilst there is no question that we have come a long way since the “X days since accident” signs and it is not clear if Mr Conway had a pre-existing condition, this heartbreaking case of a young man losing his life reminds us that tragedies like this can happen and that proper health and safety management is paramount in the workplace.