Retired civil servant who tripped on ramp outside Edinburgh supermarket wins over £11,000 in damages
An Edinburgh pensioner who tripped over a ramp outside a supermarket has succeeded in obtaining over £11,000 in damages after a sheriff in the All-Scotland Sheriff Personal Injury Court found that the supermarket acted contrary to the Occupiers’ Liability (Scotland) Act 1960 in not marking a potential trip hazard outside the store.
Yvonne Forrest, a 73-year-old retired civil servant, suffered two serious fractures after the accident on the premises of Iceland Foods Ltd on Portobello Road. She argued that the defenders were in breach of section 2 of the 1960 Act as they had taken no action to address an obvious danger on their premises.
The case was heard by Sheriff Christopher Dickson. The pursuer was represented by Harris and the defender by Hennessy, solicitor advocate.
Same colour as the ground
The defenders’ premises, including a retail building and a car park, were located on the corner of Piershill Terrace and Northfield Broadway, Edinburgh. At the end of the car park closest to the store entrance, there was a shallow ramp about 3 metres in length with an exposed rising edge that protruded from the surface of the car park at about 20 centimetres in height at its highest point. The rising edge was not painted or marked, nor did it feature a barrier or handrail.
On the morning of 22 February 2019, the pursuer entered the car park on foot to make her way to the entrance. At this time the windows of the retail building displayed advertising posters. The pursuer, while looking at the posters, unknowingly walked towards the ramp and tripped on the rising edge. She was later admitted to hospital with fractures to her right wrist and left knee, both of which required surgery and left her with post-traumatic arthritis.
The pursuer’s evidence was that the ramp was difficult to see as it was the same colour as the rest of the car park. She had visited the store on two previous occasions and accepted that she had probably successfully negotiated the ramp then but believed that the accident was not her fault and that with sufficient warnings in place she would not have tripped.
Evidence was also given by an expert, Mr Morris, who stated he considered the ramp to be a trip hazard, and by Mr Hollinsworth, the store manager of the premises, who said that the pursuer’s accident had been the only one involving the ramp in the six years he had worked at the store.
It was submitted for the pursuer that the defenders had failed in their duty to exercise reasonable care to a person entering the occupied premises as per the 1960 Act. At the very least, the simple expedient of painting the exposed rising edge was a precaution they ought to have taken. On the balance of probabilities, but for the absence of precautions the accident would not have happened.
The defenders submitted that there was no cogent reason why the pursuer had not seen the ramp, and that the evidence of Mr Hollinsworth ought to be taken as credible and reliable. In the event that liability was established, the court should find that contributory negligence on the pursuer’s part was significant as she had not been paying due care and attention. Quantum was agreed by both parties to be £15,000 on a full liability basis, with the defenders arguing for contributory negligence to be assessed at 50%.
Modest cost to paint
In his decision, Sheriff Dickson said of the evidence presented by the pursuer: “I had no difficulty in accepting the pursuer’s evidence. Her evidence was in short compass and she gave her evidence in a straightforward manner. I considered that she was, at all times, doing her best to tell the truth. She was clear that she did not see the ramp and volunteered that she may have been looking at the advertising posters or looking straight ahead.”
He continued: “I considered that the pursuer’s evidence was internally consistent and also entirely consistent with her account that was recorded in the accident report form by Mr Hollinsworth shortly after the accident. Whilst this could not corroborate her evidence, I considered that this was a de recenti statement which enhanced the pursuer’s credibility and I had no difficulty in finding that she had tripped on the rising edge at the point where she said it had occurred.”
Addressing whether the ramp was a trip hazard, outlining factors including the ramp’s similarity in colour with the car park and its positioning near the advertising posters, he said: “Having taken account of [these factors], together with the regular inspections of the external areas of the store conducted by Mr Hollinsworth, the defenders knew, or ought reasonably to have known, that the rising edge was a danger due to the state of the premises for the purposes of section 2 of the 1960 Act.”
He continued: “The painting or marking of the rising edge could have easily been completed at extremely modest cost. I also consider that the positioning of a barrier, wall or handrail along the length of the rising edge could have been achieved at a relatively modest cost.”
Evaluating whether there was contributory negligence on the pursuer’s part, Sheriff Dickson said: “The pursuer accepted that she was either looking at the advertising posters in the window of the retail building or looking straight ahead, when she tripped. In either scenario the pursuer was not looking where she was walking when she tripped over the rising edge. In the circumstances she has fallen below the standard of a reasonable person and her damages therefore fall to be reduced.”
For these reasons, Sheriff Dickson found the defenders had acted contrary to section 2 of the 1960 Act and assessed contributory negligence at 25%. Accordingly, he found the defenders liable to make reparation to the pursuer in the sum of £11,250.
© Scottish Legal News Ltd 2021