Diane Raybould, 59, who has medical problems and requires a walking aid, raised an action for damages for personal injury against T & N Gilmartin, who had been contracted by Fife Council to install new street lighting in Anstruther. 

Ms Raybould was injured as she crossed an excavation on the pavement directly outside her front door on West Forth Street.

The resident and her husband had left the property via the back door to walk their dog but when they returned the back gate was closed so they had to walk to the front of the property.

There were a number of orange plastic barriers on the carriageway between Ms Raybould and the trench at the front door and she was “nervous” about crossing the building site, but her husband picked up the dog and moved two barriers apart before entering the house.

Ms Raybould asked a workman to put a ramp down for her but he “shrugged his shoulders and walked away”, and as she tried to take her first step her foot sank down and she fell, striking her head on a wall.

She sued the company over its alleged “breach of their common law duty to take reasonable care” by failing to provide safe access to her front door.

Footway bridging boards providing access to residents’ properties were put in place following her accident, but the defenders’ position was that there were no works which caused or contributed to the pursuer losing her footing and she “simply stumbled and fell”, but in any event she had a “duty to take reasonable care for her own safety”.

A sheriff in the All Scotland Personal Injury Court had ruled that the maxim “volenti non fit injuria” applied, in other words Ms Raybould was aware of but “accepted the risk” of crossing the trench when there were no footway boards provided, which was a “complete defence” to the action.

However, the Sheriff Appeal Court ruled that the sheriff erred in considering the maxim when there was no plea in law to that effect, and that in so doing he must have accepted that T & N Gilmartin had breached its duty of care, and further that the findings in fact supported Ms Raybould’s argument on causation, namely that the company’ failure to provide a proper means of crossing the pavement was the “proximate cause” of the accident.

Allowing the appeal, Sheriff Principal Mhairi Stephen QC, sitting with Appeal Sheriff Nikola Stewart and Appeal Sheriff William Holligan, ruled that the personal injury court sheriff erred in law, but held that Ms Raybould’s conduct “contributed equally” to that of T & N Gilmartin in causing her injury, meaning the damages awarded were reduced by 50%.

Delivering the opinion of the court, Sheriff Principal Stephen said: “As a matter of law before the sheriff could consider, far less apply, the maxim of volenti non fit injuria he must have accepted that the defenders owed a duty of care to the pursuer and that they had failed to take reasonable steps to comply or had breached that duty. The sheriff misdirected himself on volenti which he considered to be the key issue in the case. The views expressed by the sheriff as to causation, briefly stated, appear to be inextricably linked with his opinion that volenti is the key question and applies here…

“On our analysis of the facts it was not only reasonable but fair and just that the defenders owed such a duty of care to the pursuer. It is open to us to conclude, as we do, that the defenders had breached that duty by failing to provide the simple and utilitarian measure of a foot board to bridge the excavation. A reasonable contractor would have had regard to the fact that the occupants of the property and other visitors would require to access the properties on West Forth Street and that this straightforward measure would facilitate safe access. The DFT (Department for Transport) ‘Code of Practice’ points to this being accepted good practice. Therefore we are of the view that the defenders were in breach of the duty to provide safe access to householders on West Forth Street at the relevant time due to the absence of walk boards or foot boards.”

“Accordingly,” she added, “as there was no real evaluation by the sheriff broad or otherwise on the question of causation and as there were no submissions on causation it is open to us to answer the question: whether the pursuer’s actions or response to the hazard can be categorised as being so unreasonable that the defenders’ failure to take reasonable steps to provide a safe access by way of a foot board ceased to be the cause of her accident?

“In our opinion the facts and circumstances do not disclose the requisite high degree of unreasonableness required to establish that the pursuer’s actions constitute a new or intervening event which broke the chain of causation. It follows that we are of the view that the sheriff, in so far as he considered causation without being addressed by parties, wrongly categorised the pursuer’s actions as reaching such a high degree of unreasonableness. Accordingly, we consider that the facts and circumstances point to the defenders’ failure to take reasonable steps to provide a proper means of access by way of a walk board or ramp to be the real and proximate cause of the pursuer’s accident.”