Woman injured in fall wins damages after appealing against sheriff’s ‘volenti non fit injuria’ ruling

A sheriff in the All Scotland Personal Injury Court had ruled that the maxim “volenti non fit injuria” applied, in other words the pursuer was aware of but “accepted the risk” of crossing the trench when there were no footway boards provided, which was a “complete defence” to the action.

However, the Sheriff Appeal Court ruled that the sheriff erred in considering the maxim when there was no plea in law to that effect, and that in so doing he must have accepted that the defenders had breached there duty of care, and further that the findings in fact supported the pursuer’s argument on causation, namely that the defenders’ failure to provide a proper means of crossing the pavement was the “proximate cause” of the accident.

Damages claim

Sheriff Principal Mhairi Stephen QC, sitting with Appeal Sheriff Nikola Stewart and Appeal Sheriff William Holligan, heard that the pursuer Diane Raybould, 59, who requires a walking aid, raised an action for damages for personal injury against the defenders T & N Gilmartin, who had been contracted by Fife Council to install new street lighting on West Forth Street, Anstruther, where she lives with her husband, daughters and other family members. 

On 3 February 2015 when returning home with her husband after walking their dog she fell when crossing an excavation on the pavement directly outside her front door.

They had left the property via the back door but when they returned the back gate was closed so they had to walk to the front of the property.

There were a number of orange plastic barriers on the carriageway between the pursuer and the trench at the front door and she was “nervous” about crossing the building site, but her husband picked up the dog and moved two barriers apart before entering the house.

The purser asked a workman to put a ramp down for her but he “shrugged his shoulders and walked away”, and as she tried to take her first step her foot sank down and she fell, striking her head on a wall.

She sued the defenders over their alleged “breach of their common law duty to take reasonable care” for the pursuer by failing to provide safe access to her front door.

Footway bridging boards providing access to residents’ properties were put in place following her accident, but the defenders’ position was that there were no works which caused or contributed to the pursuer losing her footing and she “simply stumbled and fell”, but in any event she had a “duty to take reasonable care for her own safety”.

‘Volenti non fit injuria’

Following a proof in March 2018 the sheriff have an extempore judgment in which he assoilzied the defenders, having concluded that volenti applied and the pursuer had not established causation, on the basis that any breach of duty on the part of the defenders was not the proximate cause of the fall, but the pursuer’s own attempt to cross unaided knowing that no assistance was to be forthcoming.

On appeal counsel for the appellant submitted that in the circumstances of the case volenti could not apply, and further that no notice having been given by the defenders that either volenti or voluntary assumption of risk would be argued and no submissions having been made to the sheriff by either party led to an outcome which was “unfair” not only to the pursuer but to both parties.

It was argued that must exist a duty of care which has been breached before volenti can apply, and here the defenders accepted they owed a duty of care to the pursuer but claim they fulfilled that duty by providing barriers and in any event the accident did not happen as suggested by the pursuer.

However, there was “ample evidence” that a duty of care existed and that duty had been breached due to the “hazardous state” of the pavement works and the “lack of a suitable ramp or board”. 

Counsel for the respondent submitted that even if the appellant’s submissions on volenti were correct the sheriff was entitled to find as he did and assoilzie the defenders based on the evidence led at proof.

It was also argued that the sheriff was entitled to decide on an esto basis that any breach of duty was not the proximate cause of the accident, and therefore even if the sheriff may have indulged in a “frolic of his own” on volenti that did not matter.

‘Duty of care breached’

Allowing the appeal, the court ruled that the sheriff erred in law, but held that the pursuer’s conduct “contributed equally” to that of the defenders in causing her injury, meaning the damages awarded were reduced by 50%.

Delivering the opinion of the court, Sheriff Principal Stephen said: “As a matter of law before the sheriff could consider, far less apply, the maxim of volenti non fit injuria he must have accepted that the defenders owed a duty of care to the pursuer and that they had failed to take reasonable steps to comply or had breached that duty. The sheriff misdirected himself on volenti which he considered to be the key issue in the case. The views expressed by the sheriff as to causation, briefly stated, appear to be inextricably linked with his opinion that volenti is the key question and applies here…

“On our analysis of the facts it was not only reasonable but fair and just that the defenders owed such a duty of care to the pursuer. It is open to us to conclude, as we do, that the defenders had breached that duty by failing to provide the simple and utilitarian measure of a foot board to bridge the excavation. A reasonable contractor would have had regard to the fact that the occupants of the property and other visitors would require to access the properties on West Forth Street and that this straightforward measure would facilitate safe access. The DFT (Department for Transport) ‘Code of Practice’ points to this being accepted good practice. Therefore we are of the view that the defenders were in breach of the duty to provide safe access to householders on West Forth Street at the relevant time due to the absence of walk boards or foot boards.”

“Accordingly,” she added, “as there was no real evaluation by the sheriff broad or otherwise on the question of causation and as there were no submissions on causation it is open to us to answer the question: whether the pursuer’s actions or response to the hazard can be categorised as being so unreasonable that the defenders’ failure to take reasonable steps to provide a safe access by way of a foot board ceased to be the cause of her accident? 

“In our opinion the facts and circumstances do not disclose the requisite high degree of unreasonableness required to establish that the pursuer’s actions constitute a new or intervening event which broke the chain of causation. It follows that we are of the view that the sheriff, in so far as he considered causation without being addressed by parties, wrongly categorised the pursuer’s actions as reaching such a high degree of unreasonableness. Accordingly, we consider that the facts and circumstances point to the defenders’ failure to take reasonable steps to provide a proper means of access by way of a walk board or ramp to be the real and proximate cause of the pursuer’s accident.”