When bins attack or the vigilance of invigilators

Since beginning lecturing almost a decade ago twice (or more) yearly the writer has wandered purposefully through examination halls.  The scent of fear is marked, and tension amplified by the writer's choice of a pair of squeaky shoes, and a tendency to pick up textbooks and casually flick through pages.  Aside from a grumpy muttered aside the potential risks inherent in invigilation were not apparent.  Let Burgess v Napier University [2009] CSOH 6 explain those risks.

Mrs Burgess invigilated an examination in a room in the Merchiston campus, Napier University.  Five candidates were scheduled to attend the August exam although only 2 turned up.  Both students finished and departed before the scheduled end of the examination. On completion of the examination after the papers had been gathered Mrs Burgess attempted to leave the examination hall.  In doing so she passed a bin – one foot high, and one foot in circumference – and after failing to negotiate this came to to discover that the bin was flattened "as if a steamroller had gone over it" (para [4]).  Mrs Burgess alleged that she had fallen over the bin and that Napier University was liable because regulation 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992 provided that:

"so far as is reasonably practicable, every floor in a workplace and the surface of every traffic route in a workplace shall be kept free from obstructions and from any article or substance which may cause a person to slip, trip or fall".

And a bin – while it was conceded was not an obstruction – was an article for the purposes of the regulation.

Napier University argued that Mrs Burgess had failed to prove that she had fallen over the bin, and even if she did prove that she should have kept a look out for this.

Lady Dorrian rejected the claim and granted absolvitor to Napier University.  In her judgment she made clear that Mrs Burgess had not established her case.

"The real problem which I encountered in this case was with the reliability, and to some extent, the credibility, of the pursuer. In examination in chief her position was relatively simple. She had found herself "rugby tackling" the wall and as she did so she recalled thinking "oh I must have tripped". At that stage she had no idea what might have caused her to trip. She had not seen the bin before this, and when she saw it later, in its flattened state, she deduced that she must have tripped over it." (para [39])

and then

"However, in cross-examination, her position became gradually more elaborate, to the point of being frankly unbelievable. She claimed that as she was falling she was aware that the bin was being trailed along with her. As she was sliding down the wall she was aware it was between her feet. Then she said that she only became aware that it was between her feet after she had fallen. This whole passage of evidence was contrary to the evidence which she had given in chief and I accepted none of it." (para [40])

The writer therefore feels safe to resume examination invigilation for the moment, although is left to ponder why this case for a total damages claim of around £20,000 and little apparent legal complexity was felt more appropriate for the Outer House of the Court of Session than the sheriff court.