Outer House case concerning a claim made under the Occupiers’ Liability (Scotland) Act 1960 (and concurrent common law duties of care) and the Workplace (Health, Safety and Welfare) Regulations 1992 (in particular regulations 5 and 17) following injuries caused as the result of a seagull attack.

Background
Ms Kelly worked at the Ladyburn Business Centre in Greenock which was owned and operated by Riverside (who accepted that they were also in the position of an employer). Whilst leaving the premises to buy her lunch she was attacked by a seagull which swooped at her with its wings outstretched causing her to stumble and fall on steps outside the centre.

Decision
After hearing the evidence, the court dismissed the claim finding that it had not been established on the balance of probabilities that the seagull which attacked Ms Kelly had come from the centre. Even if it could have been shown that the seagull had come from the centre, the temporary judge found that the claim  would nonetheless have failed.

Occupiers’ liability
With regard to occupiers’ liability (both at common law and under the 1960 Act) it was found that the incident was not reasonably foreseeable as Ms Kelly had been unable to show that complaints of analogous incidents had been made to Riverside prior to her accident.

Workplace (Health, Safety and Welfare) Regulations 1992
With regard to the Workplace Regulations, regulation 5 was found to relate to maintenance rather than construction of the premises and Mr Kelly’s contention that the property should have been protected by measures such as spiking, meshing and netting were matters of construction. An argument that the seagull nests should have been regularly removed also failed as such acts were found to be control measures rather than maintenance.

Regulation 17(1) of the 1992 Regulations obliges an employer to organise the workplace “in such a way that pedestrians and vehicles can circulate in a safe manner”. However Ms Kelly’s case under that provision also failed, the temporary judge finding:

“The pursuer has failed to tie in the attacking bird to the roof of the LBC. That is of course a different and antecedent point in this case, but it is also an important one in the context of consideration of regulation 17. It is simply, in my view, not feasible to consider the behaviour of wild creatures such as herring gulls and lesser black-backed gulls in the context of a regulation such as regulation 17(1) which addresses the organisation of a workplace. This is especially so when knowledge of an actual problem has not successfully been imputed to persons such as the defenders in this case.”

The full judgement is available from Scottish Courts here.

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