Arbroath man loses appeal against finding that local authority was not responsible for unlit stairwell accident

About this case:

• Citation:
  [2023] SAC (Civ) 15
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Marysia Lewis

Craig Hill argued in his case before the Sheriff Appeal Court that the sheriff had erred in attaching substantial weight to hospital records in the context of assessing his credibility and reliability when the author of those records had not been called to give evidence. The respondent and original defender, Angus Council, had denied being in breach of their statutory duties to the appellant under the Housing (Scotland) Act 2001 and Occupiers’ Liability (Scotland) Act 1960.

The appeal was heard by Sheriff Principal Marysia Lewis. Digby Brown LLP appeared for the appellant and Ledingham Chalmers LLP for the respondents.

Too much weight

At the time of the accident in spring 2019, the pursuer lived in a top floor flat in a block of six flats. The communal stairwell was illuminated by lights operated on a timer, which he and two of his neighbours had previously reported as defective. Despite this, no remedial work was undertaken by the respondent. On his way to work early one morning, the appellant lost his footing and fell down the staircase as he could not see where he was placing his feet.

The respondents disputed liability, contending that there had been no prior reports of defective lighting and that the appellant had materially contributed to his accident. A two-day diet of proof was assigned on the matter of liability, during which evidence was from the appellant and three of his neighbours. It was found by the sheriff that the appellant had not proved on the balance of probabilities that the accident happened as averred on record.

In assessing the witnesses, the sheriff considered that one of them, Mr Frier, did not shine any light on the circumstances of the accident, while a second, Ms Mathers, was not reliable due to inconsistencies in her evidence. While the sheriff did not doubt that an accident had happened, the inconsistencies between the appellant’s evidence and the content of the records of the Minor Injuries and Illness Unit in Arbroath led her to the conclusion that the respondent was not liable for the accident.

On appeal, the appellant submitted that the sheriff had attached too much weight to the hospital records, the veracity of which were not agreed. She had failed to take into account that his evidence was not impugned in cross examination and that the evidence of the two witnesses she had deemed credible and reliable substantially supported his evidence on the mechanics of the accident.

Care and diligence

In her decision, Sheriff Principal Lewis said of the evidence considered by the sheriff: “The discussions which the pursuer had with his neighbours were brief and unspecific as to date, time, precise location and cause. Neither examination in chief or cross examination elicited anything more relevant. It is not surprising that the sheriff considered that the evidence of the neighbours, although credible and reliable, could not assist in ascertain the cause of the accident. There is no contradiction in reaching such a conclusion based on the evidence. She has not erred in her assessment of this chapter of the evidence.”

She continued: “In reaching her decision she compared his evidence with other sources of evidence available to her including the medial records and against the pleadings on record. I reject the contentions that the sheriff failed to take into account that the evidence of the pursuer was not impugned in cross-examination and that she failed to consider the evidence as a whole. She undertook her task with care and diligence.”

Turning to the sheriff’s use of the hospital records, Sheriff Principal Lewis said: “The pursuer was challenged in cross examination on the basis that he has given an explanation as to the cause of his injury to the nurse which was inconsistent with his pleadings and with his evidence. In other words, the detail given by the pursuer appeared to be inconsistent with the contents of medical records produced by the pursuer. Having disclosed the records to the defenders, they are entitled to put the inconsistencies to the pursuer with a view to testing his credibility or reliability and to refer him to the terms of the records.”

She concluded: “There is no reason to depart from the conclusions reached by the sheriff on her proper consideration of the evidence led. The sheriff has not erred in her evaluation of the evidence, in her assessment of credibility and reliability, and in her reasoning. Her conclusion accords with the evidence which she found to be credible and reliable. She has not left out of account any matters of relevance or had regard to matters which are irrelevant. She has not gone plainly wrong.”

The appeal was therefore refused.