A woman who claims she plunged into a quarry as she searched for a missing dog is suing Edinburgh City Council for damages after fracturing her pelvis in the fall.
Debi Ballantine-Brown was walking her two dogs at an Edinburgh beauty spot with a friend, who also had dogs with her, when she noticed one of her animals, which was off the lead, had disappeared.
It is said she called the dog’s name and retraced her steps back up Corstorphine Hill to try to find him and heard the dog whimpering and walked towards the sound.
In her action it is said she was able to step over the remains of a dilapidated fence and walked on a few feet to a point where the ground started to slope downwards.
The area was wooded and overgrown and as a result the degree of the slope was not obvious, it is said.
She heard her dog barking further down the slope and made her way towards the sound.
It is said: “The pursuer was unaware or could not reasonably have been aware that there was a hazard such as the disused quarry and a sheer drop of about 50 feet only a few feet from she was standing.”
She lost her footing on wet leaves and fell into the quarry. She was wearing hill walking boots and was careful where she placed her feet as she moved down the slope, it is maintained.
Her friend had heard her scream as she fell and alerted emergency services, but she lay in the quarry for between two and three hours before she was rescued.
She was drifting in and out of consciousness as she lay at the bottom of the quarry and had to be lifted out by mountain rescue personnel, it is said.
She was taken to Edinburgh Royal Infirmary following the incident on October 28 in 2009 after sustaining a fractured pelvis and other injuries.
Nursery nurse Ms Ballantine-Brown, 48, of Edinburgh, subsequently raised an action at the Court of Session in Edinburgh seeking £200,000 from Edinburgh City Council.
In the case she said she did not regularly walk at Corstorphine Hill and was unfamiliar with its topography.
It is maintained that there was no notice warning of the hazard and that if the fence had been in a proper state of repair she would not have scaled it.
“Shortly after the accident this section of fencing was replaced with new fence posts and wires,” it is said.
The council contested the action and maintained it did not breach any duties placed on it. It said she should have stayed on the path and taken care where she placed her feet.
It also maintains that if the accident occurred as set out by the dog walker and it it was to any extent caused or contributed to by its fault or breach of statutory duty, which it denies, any award of damages should be reduced by contributory negligence.
The case is due to go to a civil jury trial later this year, but it called before Lord Brailsford as the local authority sought to amend its case.
Geoff Clarke QC, for the council, said he would still seek to argue that as a matter of law on the totality of the evidence the case should be recalled from a jury.
But Ian Mackay QC, for Ms Ballantine-Brown, said the matters raised by the case were “for the commonsense and judgement of the jury having been directed on the law by the judge”.
Lord Brailsford said he was not satisfied that there was justification for the council seeking to amend in the terms it proposed at this stage.
But the judge allowed one aspect of the proposed amendment by introducing a plea of volenti non fit injuria that no injury is done to a willing or consenting person.
The council maintain there is no duty to warn of natural or obvious danger such as the slope and that she willingly accepted the risk posed by it.