On 19 December 2023, Lord Young issued his opinion in Jon William Davie v Powerteam Electrical Services (UK) Limited and Vinci Energies UK Holding Limited.
The case concerned the Occupiers’ Liability (Scotland) Act 1960 and raises timely questions of how far site occupiers must go to mitigate obvious risks and what is required to dismiss a personal injury action without hearing evidence.
The facts
On 28 September 2017, Jon Davie, who was 28 at the time, had been out with friends. On his way home, he entered a temporary construction site that contained two portacabins stacked on top of each other. The upper cabin was accessible by a metal staircase.
The gate across the stairway entrance was open. This allowed Mr Davie to climb the stairs and use the guardrail surrounding the landing to climb onto the top portacabin’s roof to “sit and think”. Upon his descent from the roof, Mr Davie lost his footing and fell 18 feet to the ground sustaining a spinal fracture leaving him with severe paralysis.
The law
Section 2(1) of the Occupiers’ Liability (Scotland) Act 1960 states that an occupier of premises has a duty of care towards any individual entering upon their premises. An occupier is a person or body occupying or having control of land or other premises.
The occupier must take reasonable care to ensure that individuals do not suffer injury or damage by reason of any danger, inherent in the premises themselves, or caused by a deliberate action or omission on the part of the occupier.
What is reasonable will depend on the circumstances of each case. Generally, the occupier will owe a duty of care if he/she reasonably could have foreseen that harm would be caused to a person on the property because of the occupier’s act or omission.
The decision
This was a rare case where a personal injury action was dismissed without hearing any evidence. Lord Young held that despite the severity of Mr Davie’s injuries, his case was bound to fail.
The central question was whether the injury was reasonably foreseeable given the state of the premises. The Court answered in the negative because:
- there was no history of similar incidents at the site, or portacabin roof accidents more generally which would have put the occupier (who was the defender in the court action) on alert. It was hard to conclude that the guardrail constituted an “allurement” or “climbing frame” without a history of others using it in that manner;
- the open gate did not create the danger, it simply provided access to the stairway. Mr Davie’s unreasonable use of the stairway guardrail to climb onto the roof was the true cause of his injury;
- Mr Davie was an adult without special vulnerabilities;
- Mr Davie was not invited onto the site and climbed onto the roof freely.
The Court also reaffirmed that a site occupier is under no duty to erect barriers or fencing where the danger is “clear and obvious” to others – even where perimeter security could be installed easily and at a low cost. The focus is not on what site occupiers could do, but on whether it is reasonable to expect them to take precautionary measures.
Key takeaways
- The severity of an individual’s injury does not make them automatically entitled to damages. It must be proven that (1) there was a foreseeable risk of danger and (2) that the occupier failed to employ safety measures to protect against that danger.
- When determining whether a danger is reasonably foreseeable, the court will look at what the reasonable person would do in the circumstances and whether there have been similar incidents in the past.
- There is no obligation for occupiers to take remedial steps where dangers are “clear and obvious” to others.
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