Case law update: Davie v Powerteam Electrical Services (UK) Ltd and Another [2023] CSOH 94

A man who was rendered tetraplegic after falling from a portable cabin roof has lost his occupiers’ liability case in the Court of Session.

The pursuer, Mr Davie, suffered the catastrophic injuries after he had gained access to a temporary construction site operated by the first defender, under contract by the second defender.

The case came before Lord Young on the joint motion of both defenders, who were seeking dismissal of the action.

The court heard that the accident occurred in the early hours of 29 September 2017 in Charlotte Street, Aberdeen, when the pursuer was 28 years old. He had been socialising the previous evening with friends in a pub and had been drinking alcohol. On his way home, he came across the temporary construction site. There were two portable cabins, one positioned on top of the other, with access to the top one being provided by a metal stairway and guardrail. The pursuer found that the gate was not closed over the entrance to the stairway, resulting in the stairway being openly accessible. The pursuer wanted a quiet place to sit and think and he decided that the roof of the upper portable cabin was a good place to do so. Unfortunately, when descending from the roof, he lost his footing and fell 18 feet to the ground. He sustained a C4/C5 unstable fracture, resulting in tetraplegia.

Senior counsel for the pursuer acknowledged that the case stood or fell by reference to the Occupiers’ Liability (Scotland) Act 1960 alone. In terms of the specific ground of fault, it was averred that the defenders ought to have had an effective barrier preventing access being taken to the stairway. It was further averred that the first defender ought to have known that the site constituted an attraction and allurement to members of the public; that it was known that licensed premises were in the vicinity; and that the stairway and guardrail provided a ready “climbing frame” and means of access to the roof of the portable cabin.

The court was deciding the motion to dismiss before any evidence had been led. In his judgment, Lord Young noted that “this is one of those rare and exceptional cases in which an action for personal injuries falls to be dismissed… I have ultimately come to the view that there is nothing to be gained from the leading of evidence in this case and that the pursuer’s claim is bound to fail.”

In reaching his decision, Lord Young stated that “The fall from the roof was not caused by the state of the roof itself such as by a slippery surface or part of the roof surface giving way. There was no defect in the roof itself. The relevance of this is that the defenders’ own actions have not created a danger on the roof. Nor has there been an omission such as a failure to maintain or inspect the state of the portacabin roof, which has created a danger.”

He continued, “It is also of some relevance that the specific duty founded upon by the pursuer, namely to prevent access to the stairway, is neutral in relation to the risk of falling from the roof. So, for example, the presence of a suitable barrier around the edge of a roof will minimise the risk of a person falling from the roof, but a barrier at the stairway entrance does not alter the risk of falling once the person is on the roof.”

Lord Young also observed that the pursuer had made no statements of previous incidents at the construction site involving members of the public gaining access to the roof of the portable cabin nor of the defenders having experienced particular issues with members of the public accessing the portable cabin area in general. There were no statements of similar incidents within the construction industry on other sites. For these reasons and others, the case fell to be dismissed.