Milkman wins personal injury appeal against operators of Scottish National Portrait Gallery

Andrew Wright, an employee of Graham’s Family Dairy, originally brought the action against the National Galleries of Scotland based on its common law duty to take reasonable care for his safety, as well as its obligations under the Occupiers’ Liability (Scotland) Act 1960.

The appeal was heard in the Sheriff Appeal Court (Civil Division) by Sheriff Principal Stephen, sitting with Sheriff Principal Pyle and Sheriff Principal Turnbull.

Sudden drop

The pursuer was delivering milk to the café located within the gallery in the early hours of the morning of 19 November 2016. He had made this delivery many times before, and used a wheeled cage to move the milk to a fridge located in a rear corridor close to the fire exit.

The method of delivery was altered by the gallery the day before the accident, requiring the pursuer to make his delivery via the front entrance to the gallery on Queen Street rather than being let in through the fire exit.

For this particular delivery, the pursuer’s wheeled cage was half full of milk, allowing him to see ahead of him when pushing it. However, he did not see a step down to the rear corridor where the fridge was located, causing him to fall forward when the cage dropped suddenly down the step. The pursuer suffered injuries to his right hip and wrist as a result of the fall.

The sheriff who heard the case at first instance issued a note assoilzing the defender in February 2019. The issues for proof were liability and contributory negligence, quantum having been agreed.

On appeal, the pursuer submitted that the defender had control of the gallery on the evidence, and therefore had a duty of care to take reasonable care of a person entering the gallery. The defender had accepted having control of the locus. While the defender had an agreement with Heritage Portfolio under which the latter ran the on-site café, they were simply an additional occupier of the café and not its controller.

It was submitted that the sheriff had erred by conflating the concept of “control” with “knowledge”. The corridor in which the accident occurred was a traffic route for pedestrians, and therefore the Workplace (Health, Safety and Welfare) Regulations 1992 applied.

The defender submitted that, while they had a measure of control over the area, it went as far as access to and egress from the building only. Heritage Portfolio had control over the café and kitchen areas. Further, there was no finding from the sheriff that the step was a hazard, or that the pursuer would not have been able to see it.

Nonetheless a visitor

The opinion of the court was delivered by Sheriff Principal Stephen. On whether the defender was an “occupier” of the gallery for the purposes of the 1960 Act, she said: “An occupier is someone who has a sufficient degree of control over premises to place him under a duty of care towards those entering the premises lawfully. Clearly, the gallery, being a public attraction, will have a significant number of visitors to whom the defender owes a duty of care. The pursuer is someone who regularly delivers milk products to the café within the gallery and is nonetheless a visitor to whom the gallery owes a duty to see that he is reasonably safe whilst on the premises.”

On the role of the café’s operator, she said: “The argument deployed by the defender on record and before the sheriff had the objective of deflecting responsibility onto Heritage Portfolio (and Mr Wright’s employers). This appears to have led the sheriff to elevate Heritage Portfolio’s concurrent occupation of the café and kitchen into what appears from his reasoning to be an equal or possibly superior control of and responsibility for the café and kitchen area.”

She continued: “The error as to the nature and extent of the defender’s control of the gallery has impacted on the sheriff’s approach to the defender’s obligation to address foreseeable risks to those making deliveries when the gallery altered the system of access.”

Of the extent of the defender’s obligations to the pursuer, she said: “When the defender altered the access arrangements the requirement to consider how to organise pedestrian routes in a way that is safe was engaged. That does not appear to have happened. At best the arrangement was ad hoc.”

She continued: “Had the defender considered the end place for the pursuer’s delivery they would have realised that either he had to negotiate a step or would require to be escorted to the rear fridge corridor via the west corridor as appears to have happened following the accident.”

Sheriff Principal Stephen concluded: “We consider that the sheriff erred. The conclusion he draws is inconsistent with the facts which point to there being a duty on the defender to take reasonable care for those entering the premises during the hours of darkness to make deliveries including deliveries of dairy produce. The defender had the requisite knowledge as to the end point for the pursuer’s delivery and ought to have considered how the fridge could be accessed safely having regard to its common law duties as informed by the 1992 Regulations.”

For these reasons, the appeal was allowed. Decree was granted in favour of the pursuer in the sum of £1,875 with interest of 8% per annum from 5 February 2019.