A Lord Ordinary has refused a motion to dismiss a personal injury claim brought by a father and son who worked together as window cleaners against the owners of three flats in Montrose after injuries resulting from a fall from a height.
Defendants Nicholas Faulkner and Calum Paton argued that Leigh and Paul Fenwick’s claims were irrelevant and lacked specifics and requested either dismissal of the action or failing that, deletion of certain claims. First defenseman Leon Dundas made no appearance or representation regarding the motion.
The case was heard by Lord Menzies in the Outer Chamber of the Court of Session. Galbraith QC and Solicitor Thorley appeared for the prosecutor, Love QC for the second defender and Davie QC for the third defender.
Duty to repair
On March 13, 2018, the prosecutors were working from residential premises at 22 Union Street, Montrose, after being instructed by the first defender to clean the gutters and wash the windows of his top-floor flat. The apartments of the second and third defenders were located on the lower floors. All three apartments were accessed from a set of stone steps leading to a level balcony, called a platt, with three individual doors. The tray was cantilevered and not supported from below.
During the morning, the pursuers placed a ladder on the flat in order to climb and assess the condition of the gutters. As the first pursuer descended the ladder, the platform collapsed under the pair and knocked them about 15 feet to the ground and suffered serious injuries. The case for the prosecutors was that it would have been reasonable for the defenders to carry out reinforcement or replacement repairs to the platform, and if undertaken it would not have collapsed.
It was claimed by the prosecutors that the dish was common property held in common by the defenders, who were solely and exclusively responsible for its inspection, maintenance and repair. In addition, the second defender had entered into a short-term assured lease in June 2017, the terms of which required him to maintain the structure and exterior of the property in good condition. As for the third defender, it was confirmed that a home report prepared prior to his purchase of the apartment identified the apartment as Repair Category 2.
Counsel for the second defender argued that a common right to the platt was insufficient in law to establish that he was an occupier of the property of the relevant time. Neither the Second Defender nor his wife had ever resided in the apartment and he did not retain possession and control of the apartment. For the third defender, it was argued that the prosecutors had not offered to prove how or why the board collapsed, which did not give the defenders fair notice and would cause insurmountable difficulties for any evidence.
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 allegations of the prosecutor are proved. Of course, this does not mean that actions for damages for negligence can never be decided on relevant points and dismissed after debate on the procedural docket – such an occurrence is relatively common. However, a defender must convince the court that the prosecutors’ case must necessarily fail to achieve this result.
Addressing the arguments of the second defender, he said: “The prosecutors are making assertions about the terms of the lease, and in particular clauses 10 and 13 of it. Evidence of the circumstances under which the lease operated and how the structure and exterior of the property have been maintained and in good condition will be required 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 flat.
He continued: “It is fair to say that the prosecutors’ assertions in this regard are briefly stated and might not have satisfied a court before the advent of the ‘new’ Chapter 43; but this chapter encourages – in fact, demands – brevity. I consider that the prosecutors have sufficient arguments that the second defender is an occupier in terms of Occupiers Liability (Scotland) Act 1960 to allow this aspect of the case to proceed as evidence.
On the specificity arguments, Lord Menzies concluded: “The extent of the culture change which Chapter 43 has brought about can be seen by the fact that inHiggins v DHL International (UK) Limited (2003) Lady Paton could not identify any factual assertion to support the foreseeability, but allowed the case to proceed on evidence anyway. Prosecutors are required by Rule 43.2 of the Rules of Court to attach to the subpoena a brief statement containing assertions in numbered paragraphs relating only to the facts necessary to establish the claim. I have come to the conclusion that they have complied with this requirement and that the issues raised can only be properly resolved after evidence has been presented. »
Lord Menzies therefore authorized an event to take place on the dates already fixed.