The Appeal Court have issued a decision this week in the case of John Dawson v Ruth Page. My colleague, Claire Anderson, reported on the Lord Ordinary's decision in this case. Mr Dawson was a delivery driver, who was delivering a package to Ruth Page's house. An extension was being constructed at the house. Ruth Page had moved out of the property while the extension was being built, though visited regularly. The garden was affected by the building works; there was a trench blocking access to the front door and building materials in the garden on the route of access to the back door. Mr Dawson had visited the property on numerous occasions to attempt delivery of the parcel and had accessed the back door of the property by walking over planks of wood which were laid out. On the third occasion he visited, he slipped on one of those planks which was wet. As Claire reported previously, the judge held that there was "no relevant danger" and so Ruth Page could not be liable under the Occupiers Liability (Scotland) Act 1960. Mr Dawson appealed against that decision.

The appeal judges have issued their opinions, agreeing with the original decision; stating that "there was no hidden danger, nor anything to disguise the hazard from the pursuer". The Appeal Court considered whether or not Mrs Page should have excluded people from the premises and decided that there was not sufficient evidence to justify a finding that there ought to have been a complete exclusion of people from the premises.

The appropriate question to be asked in cases of this type is whether or not the defender showed reasonable care. Similar to the test for common law negligence, the test of reasonable care under the Occupiers Liability (Scotland) Act 1960 involves thinking of the nature of the alleged danger, and of what the defendant ought to foresee may happen to anyone as a result of that danger. Considering the question in light of the nature and the likely use of the plank walkway in this case, the Appeal Court agreed with the original decision that Mrs Page was not liable. The use that was being made of the walkway did not mean it constituted a danger.

We would always recommend that owners and occupiers are proactive in considering what dangers there may be on premises under their control, and that they record their considerations. This decision sets out that the common sense approach to identifying potential dangers and acting to reduce or eliminate them is usually sufficient for an occupier to avoid liability.