In the case of Morag Lawson v the Broomfield Holiday Park, Dingwall Sheriff Court, 13 July 2007, the Pursuer raised an action for damages in respect of injury she sustained when she tripped over a speed bump on the roadway leading to the holiday park. The accident occurred at night and there was no pavement she could have walked on.
The Pursuer’s case was based on Common Law and the Occupiers’ Liability (Scotland) Act 1960. She claimed the Defenders had failed to demonstrate reasonable care for her safety as the speed bump represented a hazard which presented a reasonably foreseeable risk of injury to pedestrians. She also claimed the lighting was inadequate and insufficient for pedestrians to see where they were walking, and that there was insufficient warning of the hazard itself. Although the word ‘slow’ was painted on the hump, this was on the side which was facing away from her. In any event, she claimed the lettering was worn, barely visible and not visible at all in low lighting.
The Sheriff found that liability had been established against the Defender. He preferred the Pursuer’s evidence on almost every issue. However, this was due in no small part to credibility issues in relation to the Defenders’ main witness, the tenant and operator of the holiday park. He gave evidence that photographs he had taken after repainting the ‘slow’ sign some weeks after the accident showed the hump in the same condition as it had been at the time of the accident. The Sheriff had no hesitation in finding that this witness had deliberately misled the Court and this had a grave effect on the amount of credit which could be placed on his evidence regarding other issues such as the adequacy of the lighting.
It was held that the lighting was inadequate and that there were a number of reasonable precautions which the Defender could have taken, such as illuminating the speed bump, erecting warning signs or painting the bump in bright colours to alert pedestrians to its presence.
The Court did, however, make a finding of 20% contributory negligence. In coming to this view, the Court had regard to three significant factors:
- The Pursuer was aware of two speed bumps on the roadway as she had passed over them earlier when she and her husband drove into the site;
- Although her route was initially illuminated by light from the reception building she ought to have taken more care for her safety in the knowledge that there were speed bumps there;
- It would have been reasonable in the circumstances for her to have carried a torch or even returned to her camper van to collect a torch.
The Pursuer submitted there should be no finding of contributory negligence as she was not well acquainted with the site, she had not previously passed over the bump on foot and could not reasonably have been expected to remember it, or its location, simply through passing over it as a passenger in a camper van.
Although the finding of contributory negligence may have provided some small consolation to the Defenders, this case serves as a warning to consider fully the credibility and reliability of important witnesses before making the decision to proceed to Proof.
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Louise Hay
(Information posted in October 2007and may not have been updated at time of reading).