JON WILLIAM DAVIE AGAINST POWERTEAM ELECTRICAL SERVICES (UK) LTD AND ANOTHER

Factual and Procedural Background

The Plaintiff, aged 28 at the time, sustained catastrophic injuries on 29 September 2017 after falling approximately 18 feet from the roof of an upper portacabin located within a temporary construction site in The City. The site was controlled by the first Defendant and concerned electrical substation works commenced in November 2016. The Plaintiff had been socialising and consuming alcohol prior to the incident. He accessed the construction site pedestrian route, which passed two stacked portacabins, and climbed a metal stairway leading to a landing and then onto the roof of the upper portacabin using a guardrail. The stairway was accessible because a gate intended to restrict access was not closed. After sitting on the roof, the Plaintiff fell while descending, resulting in a C4/C5 unstable fracture and tetraplegia.

The Plaintiff brought an action for damages for personal injuries under common law and the Occupiers' Liability (Scotland) Act 1960, although counsel later acknowledged the case depended solely on the 1960 Act. The Plaintiff alleged that the Defendants failed to provide an effective barrier preventing access to the stairway and that the site was an allurement to the public, particularly given nearby licensed premises and the nature of the stairway and guardrail as a "climbing frame." The pleadings incorporated parts of Health & Safety Executive guidance (HSG151, 2009).

The Defendants sought dismissal of the action on the basis that the Plaintiff’s claim was not sustainable.

Legal Issues Presented

1. Whether the Defendants, as occupiers under the Occupiers' Liability (Scotland) Act 1960, owed a duty of care to the Plaintiff to prevent access to the stairway leading to the portacabin roof.
2. Whether the risk of injury from the Plaintiff climbing onto the roof was reasonably foreseeable to the Defendants.
3. Whether the absence of a secured barrier at the stairway entrance constituted a breach of the Defendants' statutory duty of care.
4. The applicability and scope of the "allurement" concept in occupiers' liability cases involving adults.
5. The relevance and application of Health & Safety Executive guidance to the Defendants’ duty under the 1960 Act.
6. Whether the action should be dismissed at debate as bound to fail, without leading evidence.

Arguments of the Parties

Defendants' Arguments

• The 1960 Act requires a linear approach focusing on whether a relevant danger arises from the premises themselves; the stairway and portacabin did not constitute such a danger.
• The duty under section 2(1) of the 1960 Act is objective and requires consideration of the age and knowledge of likely entrants; more precautions may be needed for children but not for an adult Plaintiff.
• The Plaintiff’s deliberate actions and adult status meant the danger was obvious, negating a duty to fence off the stairway or portacabin roof.
• Failure to secure the gate, while possibly an easy precaution, does not amount to a breach of duty since the occupier is not required to prevent deliberate intrusions.
• The Health & Safety Executive guidance cited by the Plaintiff was general and largely irrelevant to the specific facts of this case.
• There were no prior incidents or evidence that the site was an allurement to the public, especially adults.
• The Plaintiff’s case was bound to fail even if all averments were proven, warranting dismissal without proof.
• The second Defendant was not an occupier of the site, making the case against it irrelevant.

Plaintiff's Arguments

• The Plaintiff renewed an offer to lead proof before answer, emphasizing the rarity of dismissing occupiers’ liability claims without evidence.
• Relied on authorities that actions of reparation under the 1960 Act are generally questions of fact requiring evidence.
• Rejected the Defendants' linear approach to danger, arguing Scots law adopts a synthesised approach to occupiers’ liability.
• Averred that the construction site was an allurement to the public and that it was reasonably foreseeable that persons could access the roof via the stairway and guardrail.
• Argued that securing the gate would have prevented the accident and that the temporary nature of the portacabin made it a particular allurement.
• The Plaintiff’s alcohol consumption was mentioned to demonstrate foreseeability that intoxicated persons might access the site, not to suggest a higher duty.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court acknowledged the rarity of dismissing occupiers’ liability claims at debate without leading evidence but found this case exceptional. It rejected the Defendants' proposed strict linear approach to the 1960 Act, favouring a synthesised approach consistent with the Inner House’s view in Dawson v Page. The Court observed that the injury was not caused by any defect or danger inherent in the roof or portacabin itself, but by the Plaintiff’s voluntary and deliberate act of climbing onto the roof using the stairway and guardrail, which were not defective or dangerous in themselves.

The absence of prior incidents or knowledge by the Defendants of public access to the portacabin roof was significant. The Court found no reasonable basis for the Defendants to have foreseen that an adult member of the public would climb onto the roof and thus no duty arose to secure a barrier at the stairway entrance. The Court emphasised that the duty of care does not extend to preventing deliberate and obvious dangerous conduct by an adult trespasser.

The Court considered the Plaintiff’s description of the site as an "allurement" but noted that such characterisations generally relate to children and that no evidence was averred or presented to show the site attracted adults to climb the portacabin. The temporary nature of the portacabin did not increase the risk or duty.

References to the Health & Safety Executive guidance were of limited assistance as the document was general and did not address the foreseeability of adult trespassers climbing onto portacabin roofs in this context.

The Court concluded that even if all averments were proven, the Plaintiff’s claim was bound to fail because no duty of care extended to preventing his deliberate access and activity. Consequently, there was no benefit in leading evidence, and the action was dismissed at debate.

Holding and Implications

The Court SUSTAINED the first pleas-in-law for each Defendant and DISMISSED the action for damages for personal injuries.

The direct effect of this decision is the termination of the Plaintiff’s claim against both Defendants. No expenses were addressed and are reserved for future determination if parties cannot agree. The Court did not establish new precedent but applied existing principles of occupiers’ liability, particularly regarding the scope of duty to adult trespassers and the foreseeability of risk. The ruling underscores that occupiers are not liable for injuries arising from deliberate and obvious dangerous acts by adult trespassers where no prior incidents or special knowledge impose a duty to secure premises further.