Lord Ordinary refuses motion to dismiss personal injury action by father and son window cleaners

About this case:

• Citation:
  2022 CSOH 62
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Menzies

Defenders Nicholas Faulkner and Calum Paton argued that the averments of Leigh and Paul Fenwick were irrelevant and lacking in specification and sought either dismissal of the action or failing that deletion of certain averments. The first defender, Leon Dundas, made no appearance or representations regarding the motion.

The case was heard by Lord Menzies in the Outer House of the Court of Session. Galbraith QC and Thorley, advocate, appeared for the pursuer, Love QC for the second defender and Davie QC for the third defender.

Repair obligations

On 13 March 2018 the pursuers were working at residential premises at 22 Union Street, Montrose, having been instructed by the first defender to clean out the guttering and wash the windows of his top floor flat. The flats of the second and third defenders were located on the floors below. All three flats were accessible from a set of stone steps leading to a level balcony area, referred to as a platt, with three individual doors. The platt was cantilevered and unsupported from below.

In the course of the morning, the pursuers placed a ladder on the platt in order to climb up and assess the state of the guttering. As the first pursuer was descending the ladder, the platt collapsed beneath the pair and caused them to fall approximately 15 feet to the ground and sustain severe injuries. The pursuers’ case was that it would have been reasonable for the defenders to have carried out strengthening repairs or replacement of the platt, and had this been undertaken it would not have collapsed.

It was averred by the pursuers that the platt was common property jointly owned by the defenders, who were solely and exclusively responsible for its inspection, maintenance, and repair. Further, the second defender had entered into a short assured tenancy in June 2017, the terms of which obliged him to keep in repair the structure and exterior of the property. With regard to the third defender it was averred that a Home Report prepared prior to his purchasing of the flat had identified the platt as being a Repair Category 2.

Counsel for the second defender submitted that a right in common to the platt was insufficient in law to establish that he was an occupier of the property of the material time. Neither the second defender nor his wife had ever resided in the flat and he did not retain a right to possession and control of the platt. For the third defender it was submitted that the pursuers had not offered to prove how or why the platt had collapsed, which did not give fair notice to the defenders and would cause insuperable difficulties at any proof.

Change in culture

In his decision, Lord Menzies observed: “It has long been established that an action will not be dismissed as irrelevant unless it must necessarily fail even if all the pursuer’s averments are proved. Of course, that does not mean that actions for damages for negligence can never be disposed of on points of relevancy and dismissed after debate on the procedural roll - such an event is a relatively regular occurrence. However, a defender must persuade the court that the pursuers’ case must necessarily fail to achieve this outcome.”

Addressing the arguments of the second defender, he said: “The pursuers make averments about the terms of the lease, and in particular clauses 10 and 13 thereof. It will be necessary for evidence to be led as to the circumstances in which the lease operated and how the structure and exterior of the property was kept maintained and in proper repair, before a definitive answer can be given to the question whether the second defender was an occupier for the purposes of the 1960 Act, and if so, what was the extent of his obligation to those on the platt.”

He continued: “It is fair to say that the pursuers’ averments in this respect are briefly stated and might not have satisfied a court before the advent of the ‘new’ chapter 43; but that chapter encourages - indeed, requires - brevity. I consider that the pursuers have sufficient averments about the second defender being an occupier in terms of the Occupiers’ Liability (Scotland) Act 1960 to enable this aspect of the case to proceed to proof.”

On the arguments on specificity, Lord Menzies concluded: “The extent of the change in culture which chapter 43 has brought about may be seen by the fact that inHiggins v DHL International (UK) Limited (2003) Lady Paton could not identify any factual averments to support foreseeability, but still allowed the case to proceed to proof. The pursuers are required by Rule of Court 43.2 to annex to the summons a brief statement containing averments in numbered paragraphs relating only to those facts necessary to establish the claim. I have reached the conclusion that they have complied with this requirement, and that the issues raised can only be properly resolved after evidence has been led.”

Lord Menzies therefore allowed a proof to proceed on the already appointed dates.