An Accident Is Not Proof Of A Danger; No Occupiers' Liability For Fall On Private Road

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...