Description
The Pursuer's daughter suffered an accident at Kirkcaldy Ice Rink in October 2007 when she was 12 years old. As she left the ice and stepped onto a walkway, her right skate became caught in some netting that was trailing on the ground. She fell and twisted her ankle. The netting was there to protect spectators from high flying ice hockey pucks. The netting was pulled back when not in use for ice hockey matches as it was not required during ordinary skating. The Defenders had a system for securing the end of the netting to keep it clear of the ground or the walkway. Damages were agreed but liability remained in dispute and a proof before answer took place. The Pursuer claimed that the Defenders were liable at common law. An obstruction on the walkway was a clearly foreseeable hazard and the Defenders were negligent in failing to keep the netting safely off the ground. She also claimed that the Defenders had breached their statutory duties as occupiers and controllers of the ice rink in terms Section 2(1) of the Occupiers Liability (Sc) Act 1960. Under Section 2(1), the Defenders had a duty to take reasonable care to see that ice rink users did not suffer injury as a result of dangers due to the state of the premises. The Defenders put forward three lines of defence. They argued that the accident had not happened as the Pursuer alleged. They also argued that the Pursuer's common law case was irrelevant. It was not enough for the Pursuer to establish that the netting had been trailing along the ground in such a way as to cause someone to trip. She had to establish fault on the part of the Defenders by proving how the net came to be on the ground; how long it had been there before the accident; and whether the Defenders should have known that the net was in that position before the accident. Finally, they argued that the Pursuer's statutory case was also irrelevant. The statutory test was not absolute or strict. It was based on taking reasonable care in all the circumstances. The Pursuer had not offered to prove how long the netting had been left trailing before the accident occurred. On that basis, it was not possible for a finding to be made regarding when this should have been noticed and tied up. The Pursuer had suggested other ways that the Defenders could have secured the netting but had not averred that any of these alternatives would have avoided or materially reduced the risk of accidents. The Pursuer had failed to aver or prove essential elements of the legal tests applicable to both the common law and statutory cases. In relation to the common law duties, the Defenders submitted that there had been no evidence of negligence. As regards the statutory duties, the Defenders had led unchallenged evidence proving that they had a system for inspecting the ice rink, including the walkways, every day before the rink was opened to users. They led unchallenged evidence that there were three attendants charged with general security and health and safety duties. These were reasonable precautions. The Pursuer had not averred or attempted to prove that the netting should have been inspected more regularly.It was up to the Pursuer to prove what system the Defenders should have had in place to prevent such an accident. In the absence of those averments, the Defenders would be held to an unknown standard. The Sheriff had to determine whether the Pursuer had made out her common law and/or statutory case.
