Inner House allows proof in personal injury action against wine bar regular whose actions may have caused woman’s death

About this case:

• Citation:
  [2024] CSIH 32
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lady Dorrian

Roderick Finlayson, Ingrid Merrettig and Stephan Martenka, the family of the late Katrin Martenka, sought compensation from her employer Alban Wine Ltd and Andrew Johnstone, who was also a shareholder in the first respondent. The case against the first respondent was settled prior to the appeal, but the lord ordinary dismissed the case against the second respondent after finding no duty of care applied.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, together with Lord Malcolm and Lord Pentland. Conway, solicitor advocate, appeared for the reclaimers and Henessey, solicitor advocate, for the second respondent.

Unusual facts

On 26 September 2020, the deceased and a friend were socialising in the Green Room wine bar in Edinburgh operated by the first respondent. They started up a conversation with the second respondent, a regular at the bar. The wine bar had an outside area on the plat with tables and chairs, with a wooden shelf fixed to the railing above some concrete steps intended to be used as a drinks tray. The second respondent, but not the deceased, would have known that the tray was not intended to sit on.

At around 1am, the deceased and the second respondent went outside to smoke. At this time all the outside lighting in the bar had been turned off. The reclaimers contended that the second respondent raised himself onto the shelf before making space such as to accommodate the deceased. When she sat back onto the shelf, it immediately gave way and she sustained a fatal injury falling to the concrete steps below it.

Proof before answer was fixed in respect of the action against the first respondent, however that claim was settled before the outset of the reclaiming motion. The reclaimers maintained that the second respondent had a duty to take reasonable care to avoid acts he could reasonably foresee would cause injury, especially given his familiarity with the premises.

The lord ordinary considered that the reclaimers had averred the second respondent had invited the deceased to join him on the shelf. However, he took the view that this was a novel situation not sufficient to establish a duty of care even when coupled with knowledge of the danger, drawing a comparison with a person who followed another pedestrian over a road and was hit by a car.

Counsel for the reclaimers argued that the lord ordinary erred in applying the tripartite test from Caparo v Dickman (1990) and in considering that the present case was novel. While the facts were unusual, this was a standard personal injury case of foreseeable physical damage. For the second respondent it was submitted that the lord ordinary was correct to apply Caparo.

Not bound to fail

Delivering the opinion of the court, Lady Dorrian observed: “This case may be somewhat unusual on its facts, but it is not complex in terms of legal analysis. It is a relatively straightforward claim for damages for personal injury based on an alleged positive, but negligent act, which created a foreseeable risk of injury to the deceased, which injury eventuated. There may be formidable obstacles in the reclaimers’ path in terms of proving the claim, but that was not the test for the decision of the Lord Ordinary nor is it for this court.”

She continued: “It seems likely that the matter has become unduly obfuscated, or complicated, by a lack of focus in the pleadings in identifying the true nature of the case against the second respondent. The pleadings are replete with averment of evidence, calls for further averment of evidence, averments of beliefs of third parties and other matters which appear to be of, at best, peripheral relevance. The confusion created by the pleadings cannot have been assisted during the debate before the Lord Ordinary by reference to Caparo.”

Assessing whether there was enough to the reclaimers’ case, Lady Dorrian said: “The example of crossing the road appears to be a very clear case of a free and voluntary assumption of risk in the full awareness of the degree and nature of that risk, and no possibility of a lack of understanding of the dangerous character of the situation. The case against the second respondent may yet perish on such a rock, after proof, but that matter cannot be determined in the absence of evidence.”

She concluded: “The test, at this stage of proceedings, is whether, on the averments, the reclaimers’ case against the second respondent is bound to fail. Only in rare and exceptional cases will it be appropriate to dismiss a personal injury action on relevancy grounds. This is not such a case.”

The reclaiming motion was therefore allowed and the case against the second respondent remitted to proof.