Cowan v The Hopetoun House Preservation Trust & Ors

Factual and Procedural Background

On 5 September 2008, the Plaintiff suffered a serious ankle fracture after falling into a ha-ha ditch at the grounds of Company A during a guided nocturnal bat walk. The Plaintiff was returning to the car park in darkness, unaware of the ha-ha's presence. The ha-ha was a historic and permanent landscape feature dating from the eighteenth century, consisting of a concealed vertical drop of up to five feet. The Plaintiff had attended the walk with his young grandson, was instructed to bring a torch, and was recovering from recent surgery. The walk was led by an employee of the Defendant, a countryside ranger, who gave a safety briefing and directions. However, the Plaintiff did not hear the directions given at the end of the walk due to attending to his grandson. The Plaintiff claimed the Defendants breached their duty of care under common law and the Occupiers Liability (Scotland) Act 1960 by failing to ensure safe exit from the premises in the dark. The Defendants contended the ha-ha was a well-known, obvious feature presenting no unusual danger and denied liability. The case proceeded to proof on liability, with damages agreed at £35,000.

Legal Issues Presented

1. Whether the Plaintiff proved that the accident occurred as averred by him.
2. Whether the ha-ha constituted a natural and obvious danger exempting the Defendants from a duty of care.
3. If a duty of care existed, whether the precautions taken by the Defendants' employee were adequate.
4. If inadequate, what reasonable steps the Defendants ought to have taken.
5. Whether the Plaintiff was contributorily negligent.

Arguments of the Parties

Plaintiff's Arguments

• The Defendants owed a duty of care to visitors leaving the premises in darkness due to the latent danger posed by the ha-ha.
• The ha-ha was an unusual, concealed danger presenting a foreseeable risk of serious injury to unfamiliar visitors.
• Under the Occupiers Liability (Scotland) Act 1960, the ha-ha constituted a danger requiring precautionary measures.
• The Defendants should have taken steps such as fencing, signage, illumination, escorting visitors, or giving clear, specific directions identifying the ha-ha.
• Had proper instructions been given, the accident could have been avoided.

Defendants' Arguments

• The Defendants acknowledged a duty of care but disputed its scope and breach.
• The ha-ha was a permanent, well-known, and obvious feature, not concealed or unusual, and thus did not attract a duty to fence or take special precautions.
• Visitors were instructed to remain on marked paths; the lawn was not a designated route, and walking on it was discouraged.
• Fencing, lighting, or escorting the group would be disproportionate, impractical, and detrimental to the walk's amenity.
• The directions given by the ranger were adequate; the Plaintiff’s failure to follow them was careless and excessive.
• If breach was found, contributory negligence of the Plaintiff should be assessed at 80%.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Stevenson v Glasgow Corporation (1908 SC 1034)	Occupier's duty excludes obvious natural dangers unless special risks exist.	Referenced as establishing that occupiers are not required to fence against obvious dangers unless unusual or unseen risks arise.
Taylor v Glasgow Corporation (1922 SC (HL) 1)	Similar principle regarding occupiers' duty towards natural features presenting obvious dangers.	Supported the principle limiting occupiers' duty in relation to natural and obvious hazards.
Graham v East of Scotland Water Authority (2002 Rep. LR 58)	Permanent, familiar landscape features do not impose a duty to fence absent unusual or special dangers.	Applied to distinguish the ha-ha as unlike reservoirs or riverbanks; ha-ha was considered unusual and concealed.
Fegan v Highland Council (2007 SC 723)	Restatement of the law on occupiers' duty regarding obvious natural dangers.	Reaffirmed that occupiers owe no duty to fence obvious natural hazards unless special or unusual risks exist; court found ha-ha did not fall within obvious dangers exemption.

Court's Reasoning and Analysis

The court accepted the Plaintiff’s account of the accident on the balance of probabilities, finding that he was unaware of the ha-ha and did not hear directions given by the ranger due to attending to his grandson. The ha-ha, while a permanent and historic feature, was distinguished from natural features like riverbanks or cliffs because it was a concealed, unusual hazard, especially in darkness. The court noted the rarity of public access to the premises at night, reducing the weight of absence of prior accidents. The ha-ha was found to constitute a danger due to the state of the premises under the 1960 Act and a foreseeable risk under common law, given that visitors might carelessly stray from paths.

Regarding precautions, the court held that fencing or lighting the ha-ha would be unreasonable and disproportionate in the context of an annual night event. Escorting the entire group back to the car park was also deemed impractical and detrimental to the event’s amenity. The appropriate duty was to provide clear, unambiguous directions to all visitors, specifically identifying the ha-ha and warning against leaving the paths. The court found that the directions were given only after the group had entered the ranger’s centre and that the Plaintiff did not receive them, constituting negligence on the part of the Defendants’ employee, for whose acts the Defendants are liable.

The Plaintiff was found contributorily negligent for leaving the path in darkness and failing to keep a proper lookout, given the clear instruction not to leave the paths. The court assessed contributory negligence at 75%.

Holding and Implications

The court held the Defendants liable for the Plaintiff’s accident but reduced damages by 75% for contributory negligence. The Plaintiff was awarded damages accordingly, with the question of expenses reserved.

The decision clarifies that occupiers owe a duty of care in respect of concealed and unusual hazards on their premises, even if permanent and historic, especially where visitors are present in unusual circumstances such as night events. However, the duty does not extend to unreasonable physical alterations like fencing or lighting in every case; clear communication and supervision may suffice. The ruling does not establish new precedent but applies existing principles to the particular facts of the case.