Risk assessments are needed to protect the public as well as employees

  • Insight

06 March 2018

A local authority’s failure to risk assess and maintain a large sign in a primary school playground has been found to be a failure to provide a safe environment and a breach of the Occupiers Liability (Scotland) Act 1960.

The sign blew off the wall and injured a parent and damages of over £40,000 were payable as a result of the injury suffered.

The 1960 Act imposes a duty on those who occupy property to take reasonable care to avoid injury or danger to those coming onto or into their premises. Section 2 says that the occupier must show towards anyone entering the property “in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them… such care as in all the circumstances of the case (was) reasonable to see that (the party) will not suffer an injury or damage by reason of such danger”. A failure to do so could be a breach of duty which may give rise to an action for damages.
 
The extent to which an occupier needs to assess the risks there may be for members of the public was the question addressed by Sheriff Mackie in the recent All Scotland Personal Injury Court in C v City of Edinburgh Council 2018 SLT (Sh Ct) 34.

Facts and alleged loss

In December 2013, a mother was taking her daughter to school at South Morningside Primary School in Edinburgh. As they crossed the playground, a large sign which had been attached to an external wall was blown off from the wall and hit the pursuer in the head. The sign was made of heavy plastic with a metal frame and a plywood backing board. The mother was knocked to the ground and may have momentarily lost consciousness as a result of the impact. She had to undergo surgical exploration and closure of the wound and was left with a noticeable scar, which had made her self-conscious.

During the course of the evidence, it became clear that the screws fastening the sign to the wall were rusted thin and the backing board showed signs of water damage. The janitor of the school gave evidence to the effect that he would perform a brief visual inspection of the school grounds each day but would not undertake any detailed examination of the sign. He would not undertake any physical “shoogle” test which would have indicated the deterioration of the sign. No risk assessment had been carried out on the school grounds. A previous survey of the school grounds made no reference to the sign at all.

Nature of liability – the law

The injured mother’s case was that the defenders had breached their duty of care by failing to carry out any risk assessment of the school grounds or undertaking a regular inspection regime of the sign. There was reference to the regulations which protect employees, such as the Workplace (Health and Safety and Welfare) Regulations 1992 and Work at Height Regulations 2005 where appropriate risk assessments are to be undertaken. These Regulations were not directly applicable as the mother was not an employee of the school, but the argument was made that it was striking that no such risk assessments had taken place, given the local authority’s duties to its employees. The local authority’s position was that the Occupiers Liability (S) Act 1960 did not impose any requirement for a formal risk assessment.
 
Sheriff Mackie was unimpressed by the local authority’s submissions. She took the view that the 1960 Act clearly imposes a duty to take reasonable measures to avoid risk. Even if a risk assessment does not have to be carried out in the exact style and format required by the Regulations, it was clearly reasonable to have a requirement for a risk assessment to be carried out to identify any risks which need dealt with: you cannot make an area safer until you understand what the dangers are. This follows and builds upon the reasoning in the previous case of Kennedy v Mackenzie [2017] CSOH 118.

In the present case, it was clear that no risk assessment had been carried out in the primary school grounds. The survey of the grounds carried out earlier in the year made no reference to the sign. Sheriff Mackie was not willing to accept the local authority’s submission that as the survey did not mention the sign, it was deemed to be safe. It was noted that other apparatus had been specifically referred to as safe within the survey. The evidence was that since its erection, no-one had given the sign any thought at all. Given this lack of risk assessment or of regular inspection and maintenance, Sheriff Mackie found that the defenders were liable in terms of the 1960 Act.

Damages

The quantification of loss in this case was largely straightforward. However, it did raise issues of the extent to which, if any, damages could be paid for the effect on the mother’s career progression as a result of the effect the incident had on her child who had witnessed it. It was said that, as a result of the traumatic sight, her daughter had developed separation anxiety and there was expert evidence led (and accepted) on this. As a result of her daughter’s separation anxiety, her mother had chosen to delay the progression of her career in order to look after her daughter. 

Sheriff Mackie expressed significant admiration for the pursuer both in terms of the determination with which she had so far pursued her career and in the decision to put her daughter’s needs first. However, she found there was no authority before the court which allowed a pursuer to sue for loss in respect of a relative’s injury and therefore no damages could be paid for this part of the claim.

Conclusions

For organisations with large numbers of properties, the requirement to carry out risk assessments across their whole estate is clearly an onerous one and will take time and money. However, individuals are entitled to expect reasonable standards of safety when entering a property and it is clear from this case that in order to ensure such standards monitoring and assessment regimes must be in place.

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