Practical Law

EM Forster may have written the classic novel, Where Angels Fear to Tread but, at this time of year, it may not be angels that have to look where they are going, but people, especially in urban areas with a gull population. If you are wondering what I’m referring to, take a look at the judgment in Kelly v Riverside Inverclyde (Property Holdings) Ltd.

Although this is a personal injury case, it ties in with what Matt was saying recently about witness evidence and the vagaries of our memories. Given the number of comments that Matt’s blog received, I thought it was worth revisiting the topic.

Cathie Kelly v Riverside

Ms Kelly worked in a business centre in Greenock, Scotland. In June 2010, she popped out of her office at lunchtime to buy a sandwich from a nearby sandwich van. To reach the van, she had to walk down some steps and across the car park. As she got to the last three steps, a “protective parent” gull swooped down at her. Ms Kelly crouched down, went to turn back indoors and fell, causing her to sustain an injury. She brought a claim against the landowner, Riverside, under certain Scottish occupier liability legislation and workplace health and safety regulations. While the damages for her loss were agreed (at £7,000 including interest), liability was contested. The gull had to come from Riverside’s building or the case failed.

One of the key issues in the case centred on gull behaviour, particularly in urban areas, when the gulls have youngsters in their nests. Both parties called an expert witness, as well as a number of other witnesses, including Ms Kelly herself.

Memories…

Unlike the construction cases that I regularly deal with and we are all familiar with, this was not a case with lots of documentary evidence. Instead, it centred almost entirely on the witnesses’ recollection of events prior to June 2010, some four years earlier, plus expert testimony.

The judge was “particularly impressed” with Ms Kelly’s evidence and demeanour, and he accepted her account of the events that led to her injury. A number of other witnesses described gulls in the vicinity of the car park, some swooping, others on nearby rooftops. However, none was entirely clear in when and where these events took place. For example:

• Mrs Walsh thought she had put in writing details of an incident in May 2010 affecting her, yet she could find no written evidence of it. It was not clear that the incident happened before Ms Kelly’s injury.
• Mrs Knox referred to “the annual swooping of birds in the car park” and said she had been the victim of a gull attack once in the period 2001 to 2007 (which was before Riverside bought the property, so was irrelevant).
• Mr Martin said there had been problems with gulls and he had been contacted by persons about this.
• Mr Swankie said he saw a gull swooping in the car park while he was a janitor (in the period May to October 2010), but was unclear about when this was.

No-one gave evidence that they saw a chick in the car park in June 2010.

Even the expert witnesses struggled at times. For example, Ms Kelly’s expert was a chap from the RSPB who the judge described as “impressive”, and yet it seems he lacked some fairly basic knowledge of gulls (such as their weight, breeding habits, nesting habits, lifespan and likelihood of being faithful to a particular building). Despite these “rather surprising omissions”, the judge still found his evidence to be “straightforward, frank, helpful and based on common sense and years of experience”.

Riverside’s expert was a retired teacher who now spent his time ringing birds and researching urban gulls. He gave:

 “thoughtful and articulate evidence based on his own extensive personal experience and a thorough knowledge of the relevant statistics…”

Although he had not been to Greenock, so he had not seen the car park and surrounding buildings, he had researched the gull colony in the area. He suggested that gulls have a spectrum of warning behaviour, and Ms Kelly was likely the subject of a low pass rather than a full strike. I’m sure  that clarification made her feel a whole lot better!

The judge concluded that, on the balance of probabilities, there was insufficient evidence before the court to establish that gulls were breeding in the area and on Riverside’s building. There was also insufficient evidence to show Riverside had knowledge of any incidents involving swooping gulls prior to Ms Kelly’s accident (and so the occupiers liability claim failed). Further, that the health and safety claim failed as it was:

“not feasible to consider the behaviour of wild creatures such as herring gulls and lesser black-backed gulls in the context of [that regulation] which addresses the organisation of a workplace. This is especially so when knowledge of an actual problem has not successfully been imputed to [Riverside].”

Time and money

While this case demonstrates the difficulties parties face with witness evidence (especially recollection evidence), it also shows that when there are disputed facts which rely solely on expert testimony, a tribunal or court’s examination of the witnesses is vital.

Another striking feature is that the case took five days in court and yet just £7,000 was in dispute. That would be considered insignificant even in adjudication, which is (arguably) a far more cost effective way of resolving disputes. Even for an “interesting and rather unusual case”, it cannot have been a cost-effective matter to bring to court.