By Fergus Colquhoun, Trainee Solicitor
The All-Scotland Personal Injury Court has rejected a claim for damages from a woman who tripped over a stone whilst walking at a National Trust property.
Sheriff McGowan ruled that the Pursuer, Louise McKevitt had failed to prove that the defenders, National Trust for Scotland (NTS), had breached their statutory duty of care in respect of injuries sustained on a visit to Geilston Gardens in Cardross, near Dumbarton.
Geilston comprises a house and around 30 acres of land, of which 12 are currently open to the public (the remainder being turned over to agriculture). Formerly privately owned, it was bequeathed to the NTS and opened in 1998. The gardens are divided into a number of different areas, including a walled garden, an orchard, and a wooded area. Tarmac paths have been laid through the gardens, one of which leads from the orchard, through an archway in a hedge, into the wooded area and thence on to the house. On the left hand side of this path, about 50 metres from the hedge, and at a junction with another path, lies a stone.
The stone measures about 1’8” x 1’6”, and is 8” high. It is thought to weigh about 100kgs, and one witness for the defenders went so far as to describe it as “massive”. The exact provenance and purpose of the stone is unknown, but it had been in situ for some time: at least since 1992 when the gardens were taken over by NTS. It is partly covered in lichen and moss, and on the fateful day was also (like the path) covered with remnants of the recently fallen cherry blossom. The weather was bright and sunny, and the area where the stone lay was dappled in sunlight from the trees above.
The pursuer, a 60-year-old woman, visited Geilston in late May. Whilst walking along the path from the orchard back towards the house, she paused to take a look at her map. Deciding to stay on the current route, she made to continue on her way: almost immediately she tripped and fell over the stone.
It was submitted on behalf of the pursuer that there had been a breach of a statutory duty of care by the NTS: they ought to have known that the 8”-high stone presented a danger to walkers in the gardens, and they ought to have done something about it. Having failed to do so, they were liable to pay damages to the pursuer.
On behalf of the NTS, it was argued that the stone did not constitute a danger, and that even if it did, the danger was an obvious one. In general there is no duty of care to protect people from obvious dangers. It was further argued that the pursuer had not put on record what action she though the defenders should have taken: without this, she could not hope to prove that their inaction was negligent. Finally, it was argued that she had contributed to the accident by failing to take proper care – had she been looking around properly, she would have seen the stone. Any damages should, therefore, be significantly reduced on the basis of contributory negligence.
The Sheriff’s decision
The Sheriff disagreed with the NTS that the stone constituted an “obvious danger” on the basis that the case turned on a factual dispute as to how visible the stone actually was. There was, therefore, a duty of care, and the defenders’ primary argument was rejected.
The Sheriff did, however, agree that whilst the stone itself was not “obvious”, the danger which it posed was fairly remote. The visibility of the stone was affected not only by the lichen and moss covering it, but also the fallen blossom, the lighting conditions (caused by the angle of the sun and the trees above), and the pursuer’s own movements. It may well have been the case that the stone was not very obvious when looked down on from close by, but it would have been noticeable as she approached the area from the orchard. The Sheriff held that the combination of conditions required in order to give rise to the danger of tripping meant that it was not foreseeable:
“The stone only became more difficult to see – and therefore gave rise to a risk of someone falling over it – if all the foregoing conditions existed and if a person was standing so close to it that the main aspect was the top surface.”
The Sheriff agreed with the defenders’ position that, in order to succeed, the pursuer had to prove what precautions the defenders ought to have taken. They had failed to do so. The suggestion by the pursuer that the measures proposed (such as painting the stone, fencing it, or simply removing it) were “common sense” was rejected by the Sheriff.
As a result, the Sheriff held that the defenders had not been negligent, and the pursuer’s case was dismissed.