MARK DANIELS - Adviser on visitor and occupational health and safety at historic buildings, parks, gardens, coast and countryside

News archive January 2013

17th January 2013

Conclusion of civil case following visitor's fall from ha-ha at historic Scottish house

This civil case followed an accident in September 2008 when a gentleman taking part in a night-time guided bat walk at Hopetoun House near Edinburgh sustained a broken ankle when he fell from the ha-ha whilst taking a shortcut across a lawn to the car park in the dark.

The facts of the case were that the claimant had taken part with his grandson in a guided tour led by a ranger to observe bats. At the start of the walk, all participants had received a safety briefing. When the walk concluded, the claimant made his way back to the car park, but took the wrong route; when he realised his mistake, he took a short cut across the lawn (his grandson holding the torch) and fell into the ha-ha where the drop of about 5' was greatest. There was some disagreement in the evidence of witnesses as to what verbal instruction had been given at the end of the walk and whether the claimant had been present whilst this instruction was given.

The arguments presented by each side were these. The claimant argued that having invited persons onto the premises which contained a dangerous man-made feature in the form of the ha-ha, it was the defendant's duty to take reasonable care to ensure that they left the premises safely in the dark. In answer, the defendant argued that the ha-ha, which had been in existence since the 18th century, was a well-established, permanent and familiar feature of the landscape at Hopetoun House. It was not concealed, it presented no unusual or special dangers, and there was no history of accidents or complaints relating to it. There was no duty on the defendant to protect the pursuer against such natural and obvious dangers. The accident occurred as a result of the sole fault of the claimant.

In the discussion of the merits of the case, Lord Bracadale considered that the ha-ha, although a permanent and long established structure, was an unusual feature of which a visitor crossing the lawn in the dark would be unaware. He concluded that the ha-ha did not come within the scope of the law on obvious dangers, and constituted a danger due to the state of the premises for the purposes of the Occupier's Liability (Scotland) Act 1960. In considering what precautions were reasonable, he emphasised that this was a very fact specific case. He thought it unreasonable for the defendant to erect a fence round the ha-ha, nor to light it or provide signs. He thought that the duty could have been met by giving clear directions to everyone in the group at the end of the walk before the participants dispersed.

Despite finding the defendant liable, he also decided there was a high level of contributory negligence (75%) so that damages previously agreed at £35,000 were reduced to £8750.

Media reports here - http://www.heraldscotland.com/news/home-news/bat-walk-man-wins-damages-after-ditch-fall.19946763

Judgement here - http://www.scotcourts.gov.uk/opinions/2013CSOH9.html

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