Julie Harris

On 22 February 2019, Mrs Yvonne Forrest was going to shop at Iceland on Portobello Road, Edinburgh. From the car park, there is a ramp leading towards the shop entrance. It was similar in colour to the surrounding ground surface and was not painted or marked in any way. Its rising edge had no barrier, wall or handrail and she tripped on the edge of the ramp, fracturing her right wrist and knee.

The pursuer’s case was based on a breach of the defenders’ duty in terms of the Occupiers’ Liability (Scotland) Act. Liability was denied and the proof was heard by Sheriff Dickson. Prior to proof, damages were agreed in the sum of £15,000.

Evidence was led from the pursuer, Gordon Morris, consulting engineer and the defenders’ store manager. The defenders objected to the entirety of Gordon Morris’s expert evidence, but the court did not consider the objection to be well-founded and considered that assistance had been derived from his evidence. He had the necessary knowledge and experience to give expert evidence on the matter.

In their submissions, both parties referred to Sheriff McGowan’s decision in McKevitt v National Trust for Scotland. The pursuer submitted that there was a significant difference however in the character of the danger between the ramp in this case on the one hand, and the stone in the grounds of a National Trust property in McKevitt. The defenders however submitted that, in line with McKevitt, the ramp in this case was conspicuous and any harm was not foreseeable. Sheriff Dickson confirmed that each case in terms of the 1960 Act turns on its own facts.

It was accepted in this case that there had been no previous accidents concerning the ramp nor had there been any prior complaints or reports regarding the ramp. The defenders conducted weekly inspections of the car park and had not regarded the ramp as a risk. The Sheriff held however that the lack of previous accidents was only one factor to be considered in assessing whether the ramp constituted a danger. There were a number of other relevant considerations such as the location of the ramp (on approach to a shop entrance), the fact that it was similar in colour to the ground surface and therefore difficult to see, that there were adverts on the adjacent windows likely to distract customers and that the rising edge was not painted or protected in any way by a barrier/wall. The court considered that such modifications would have mitigated the risk and could have been undertaken at relatively low cost.

In all the circumstances, the court held that the rising edge constituted a danger and that omitting to have it painted or protected by a barrier, wall or handrail was a failure to take reasonable care. Contributory negligence of 25 per cent was applied and the pursuer was therefore awarded damages of £11,250.

This case serves as a reminder that all claims brought in terms of the 1960 Act turn on their own facts but that the lack of reported prior accidents is not definitive and that there are many relevant considerations in assessing whether an accident has been caused by a “danger” which could have been avoided.

Julie Harris is a partner and solicitor advocate at Allan McDougall Solicitors