Sheriff McGowan’s decision in Taylor Neilson Barratt v Spice Lounge (Scotland) Ltd considers what a pursuer must do to establish liability under the Occupiers’ Liability (Scotland) Act 1960 and to what extent they will be liable for their own poor judgment.

Background and Facts

The pursuer was a 17-year-old woman who fell and seriously injured her arm and jaw when walking along a private roadway at the back of the defender’s restaurant at night. The route was intended to provide access for restaurant deliveries. She could have walked along the public pavement which was well lit. Her route was, however, a known shortcut for pedestrians. The pursuer claimed that a combination of the road being uneven and inadequately lit rendered the route dangerous.

Decision

Sheriff McGowan concluded that the pursuer lost her footing because the roadway was uneven. In doing so he rejected the defender’s argument that the pursuer’s case must fail because she could not say precisely how or why she had fallen. The Sheriff took into account that it was a sudden and unexpected event and one in which the pursuer was seriously injured. Although the pursuer and her witnesses could not say what had caused her to fall, the Sheriff was willing to arrive at an inferential decision. He relied upon the fact that the pursuer had hit the ground face-first and that the ground was very uneven where she fell. He commented that a pursuer need only prove the crucial facts on the balance of probabilities and that to take the defender’s approach would mean that every case in which a pursuer was knocked unconscious or suffered amnesia would necessarily fail.

A comparison can be drawn with the case of Leonard v Loch Lomond and Trossachs National Park Authority [2015]CSIH 44. In that case the claim was unsuccessful because the pursuer could not prove why he had fallen. The difference between the cases is that in Leonard there were a number of likely causes for the accident and the established facts did not allow an inference as to which one was most likely. By contrast, in the present case, the Sheriff was willing to conclude that the most likely cause was the uneven ground.

However, the fact that the pursuer had fallen on uneven ground was not sufficient to establish the presence of a danger. Sheriff McGowan referred to Dawson v Page [2012] CSOH 33, which provides that a route is only dangerous if it contains a feature that is unexpected, obscured or otherwise not reasonably anticipated by users. Lighting will only be necessary if use at night is foreseeable.

The Sheriff rejected the pursuer’s and her mother’s evidence that the roadway was “pitch black”. He preferred the evidence of two eyewitnesses, who commented that although the path was dark there was a lamppost at the top of the street providing light; that they were generally aware of the ground beneath them; and that they did not have any problems walking down the roadway themselves. Accordingly, there was no danger on the roadway and there was no duty on the defender to provide additional lighting.

Although the pursuer’s case failed Sheriff McGowan commented that the time advantage of using the shortcut was “negligible” and the fact that there was an alternative and safer route nearby was important. It was also significant that, on the pursuer’s evidence, the route was dark and potential hazards would be obscured. He concluded that had the pursuer established liability, he would have reduced the damages awarded by 70%.

Conclusion

This decision highlights the hurdles a pursuer must overcome to succeed in occupiers’ liability cases; the bare fact that an accident has occurred because of the state of the premises is not enough. Sheriff McGowan’s assessment of contributory negligence at such a high level will also be useful in future cases.

However, there is a cautionary message to be taken from this decision. The Sheriff does not rule out the possibility that had the lighting been inadequate then the defender would have been obliged to provide more. This was a route that was not intended for pedestrians; it was clearly signed for deliveries only and there was an alternative, well lit and smooth route that would not have taken much longer to use. Despite all of that, a duty to provide adequate lighting would have been imposed because it was foreseeable that pedestrians would use the route at night. Landowners and occupiers should be aware that such use of their land can give rise to a positive obligation to secure the safety of users. In the present case the duty may have been avoided by clear signage forbidding pedestrian use.