Inner House case concerning a clerical assistant at Kirkriggs School in Glasgow who injured herself when she fell from a toilet bowl whilst trying to open a window.
An extra division of the Inner House allowed a reclaiming motion and Ms Wallace was granted damages of £31,800 reduced by 50% in respect of contributory negligence.
The decision turned on the Workplace (Health, Safety and Welfare) Regulations 1992 and in particular on Regulation 15(1) which says:
"No window, skylight or ventilator which is capable of being opened shall be likely to be opened, closed or adjusted in the manner which exposes any person performing such operation to a risk to his health or safety."
The extra division of the Inner House found that regulation 15 (1) required the Council to address the question of how the window might be opened, closed or adjusted. If the Council had carried out a proper risk assessment in relation to the opening of the window they would have discovered the risk of injury to persons of Ms Wallace's height (5'1”) if no window pole was provided in the toilets or, at least, made very readily accessible at all times nearby.
Lord Tyre had suggested that Ms Wallace should simply have refrained [1] from seeking to open the window. However, in the Inner House, it was considered that this was to ignore the significance of the duty on the Council [2] with regard to the ventilation of areas such as the toilet. It appeared that the only source of ventilation of the cubicle was to be obtained by opening the window. The Court found that:
“A proper risk assessment would have pointed out the risk of someone, like [Ms Wallace], when no window pole was available, seeking to open the window for ventilation purposes either by standing and stretching, which itself could have caused injury, or, alternatively, attempting to reach the window by standing on what appears to have been the sole means of doing so, namely the toilet bowl, which itself would have been dangerous.”
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[1] Having held that it was not reasonable, in the circumstances, to expect her to seek out a taller member of staff to open the window given that she had used the toilet.
[2] Under Regulation 20(1) and (2) of the 1992 Regulations.
