Marie Ann Wallace v. Glasgow City Council [2010] CSOH 88

In June 2007, the pursuer was employed by the defenders as a clerical assistant for a school in Glasgow. She required to use the toilet facilities, and as a courtesy to the next user, attempted to open the window after doing so. The window was around seven feet above the ground, and no pole was in the cubicle at the time to assist with pulling the window open. Being only 5ft1ins in height, the pursuer stood on the ceramic bowl of the toilet to open the window. As she did this, the ceramic bowl capsized, becoming detached from the floor and falling on her left foot. The pursuer sustained serious injuries to her left foot, including a displaced fracture of the posterior tuberosity of the calcaneum from which she had not made a full recovery.

The pursuer sought reparation from the defender for breach of their statutory duties under Regulations 5, 15, and 20 of the Workplace (Health, Safety and Welfare) Regulations 1992 and breach of their duty under Regulation 3 of the Management of Health and Safety at Work Regulations 1999. The defender contended that the accident was not caused by any breach of their statutory duties, but rather, by the fault of the pursuer, or in any event, was materially contributed to by her negligence.

Having heard evidence, the court considered that there were alternative courses of action available to the pursuer to safely open the window, and that in any event, it was not essential she do so. Even if alternative courses of action were not available, the pursuer could simply have left the window closed. Considering the application of Regulation 15 of 1992 Regulations, the court found that while the action employed by the pursuer had endangered her safety, it was not likely that the window in the cubicle would be opened by persons who stood on the toilet to reach it. With regards Regulation 20, alternate courses of action were available; the provision of a pole to open the window was not essential. Considering Regulation 5 was concerned with the maintenance, and not provision, of equipment, the court deemed this provision did not add anything to the pursuer's claim. In relation to the duty to carry out a suitable and sufficient risk assessment under Regulation 3 of the 1999 Regulations, the court found that there was no sufficient evidence to conclude that one had not taken place, and in any event, it was likely that an assessment would not disclose the risk of people standing on toilet bowls to open windows. Defender found not liable for the pursuer's injuries caused by her accident; decree of absolvitor granted.