A grandfather who fell into a historic feature in the grounds of a stately home after taking his grandson on a guided bat walk was awarded £8750 damages today.
John Cowan badly fractured his right ankle in the fall into the ditch of a ha-ha - a feature to prevent livestock straying onto gardens - at Hopetoun House on the outskirts of Edinburgh on September 5 in 2008 as they made their way back to a car park in the dark.
Mr Cowan, a former water quality manager who was 61 at the time, raised an action seeking compensation at the Court of Session in Edinburgh against the Hopetoun House Preservation Trust and trustees including the Marquess of Linlithgow.
Damages were agreed at £35,000 in the case but a hearing of evidence was heard as liability was contested.
A judge ruled that the trust was liable for the accident suffered by Mr Cowan, of Bankton Grove, Livingston, in West Lothian, but that the amount should be reduced by 75 per cent. Lord Bracadale said: “There is a high level of contributory negligence.”
Mr Cowan said: “After I went over the drop when I sort of came to my grandson was on top of me.” His five-year-old grandson, Ross, bit his lip in the incident, the court heard.
Mr Cowan, who was recovering from an operation for thyroid cancer, had gone on the organised walk with a group searching for bats armed with a torch as instructed.
He had never been to the historic house, whose construction started in 1699, and was not familiar with the lay-out of the grounds.
“I didn’t know what a ha-ha was beforehand. It was to keep animals from leaving an area in country parks,” he said.
The walk ended at a Ranger’s centre and Mr Cowan said he immediately took his grandson to the toilet. He did not hear any instructions as to how to get back to the car park.
Countryside ranger Peter Stevens said he had gathered all the group inside the centre and gave directions on returning to the car park.
He said he did not notice Mr Cowan and his grandson going to the toilet and if he had he would have given individual instruction on returning to the car park.
Lord Bracadale said in his judgement: “I find that the pursuer (Mr Cowan) did not hear these directions, no doubt because he was engaged in attending to the needs of Ross.”
“I consider that Mr Stevens must be mistaken in thinking that he had checked everyone was present when he gave the directions,” he said.
Mr Cowan ended up walking in the dark on a route that would inevitably take him to the ha-ha at a point where there was a drop of about five feet.
A nurse, Carol Terry, who was a bat group member, went to the aid of Mr Cowan and said the accident victim told her he could not believe he had been that stupid and had jumped from the ha-ha.
Lord Bracadale said: “I do accept that he said things which gave Mrs Terry the impression that the pursuer’s position at the time was that it was his fault.”
“But I think it unlikely in the light of common sense that a man of his age, recovering from recent surgery and in charge of his five-year-old grandson, having come upon the ha-ha in the dark, would jump into it carrying the child.
“People often do blame themselves when they suffer an accident; it is an aspect of human behaviour,” said the judge.
The judge said that he considered the ha-ha fell outside the scope of the law over obvious dangers such as cliffs or canals where an occupier was not required to take precautions against a person being injured.
“It is an unusual feature of a concealed nature, particularly in the dark. While the ha-ha was a permanent and long established feature of the landscape at Hopetoun House, it is an unusual feature about which someone crossing the lawn in the dark would be likely to be unaware,” he said.
He added: “It seems to me that it was reasonably foreseeable that a member of the group might, albeit carelessly, take a short cut across the grass to the car park,”
The judge said it would have involved no sacrifice to take the group to the front of the house and clearly point out their route, perhaps with a repeat of earlier instructions not to leave paths.
But he added: “Leaving the path in the pitch dark to walk across open ground was a careless thing to do. The pursuer could not have been keeping a proper lookout; if he had been he would have been likely to have spotted the ha-ha when he came across it. The top of the ha-ha was edged with stone.”