No precautions held necessary over stone in path

In McKevitt v National Trust for Scotland an occupier’s liability for an obvious danger was considered. The pursuer sought damages following an accident at an historic property owned and occupied by the defenders. While walking in the grounds, she had fallen over a large stone situated in a tarmac path.

As it was accepted that there no duty to protect against obvious dangers, the first issue to be considered was whether the stone fell into that category. It had been located in the path since 1992 without any reported incidents. There was a factual dispute about how obvious the stone was, but based on the evidence, Sheriff McGowan concluded that the stone was not in the same category of hazards as those held to be an obvious danger in previous cases, such as a lake in a quarry, a reservoir, or a stony mountain path. To fall into this category, there were two aspects of “obviousness” to be considered – the feature had to be physically obvious and it had to be obvious that it presented a danger. He concluded that the stone was not an obvious danger in view of the dispute over the extent to which it was visible.

The question was then whether the defenders had a duty to take precautions in respect of the stone. Sheriff McGowan viewed “danger” and “reasonable precautions” as being closely interlinked, in that the precautions would be informed by the nature of the danger, so the questions would become “how much danger” and “what are the reasonable precautions to reduce it”.

He looked at the likelihood of somebody tripping over the stone, starting with how visible it was. The sheriff accepted that the pursuer had not seen the stone, but concluded that this was not because it had been in some way obscured, but rather because her attention had been elsewhere. Liability was not established and decree of absolvitor was granted.

McKevitt v National Trust for Scotland [2018] SC EDIN 20 (ASPIC, 20 February 2018)