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For the pursuer, Mr Smart submitted that the defenders had been given sufficient notice by what is said on record.
I was fortified in this view by the opinion of Lord Justice-Clerk Ross sitting in the Outer House in McClafferty where he held that a projection of three quarters of an inch above the level of the surrounding pavement was not a foreseeable cause of injury. In that case the pursuer offered to prove, on record, that the manhole cover over which she tripped stood proud to a height of forty four millimetres. This to me supports the view that a particular degree of unevenness falls to be the subject of averment.
Furthermore, in the course of his opinion (p 327K) his Lordship said "One critical question, however, is to determine the extent to which the manhole cover was protruding.". It would be strange if a fact correctly stated to be critical and determinative of the case did not require to be the subject of averment.
On record the pursuer has referred to photographs which are lodged in process at 5/1(a) - (c). They are Polaroid or similar in nature and not of very good quality. Regrettably they do not assist in determining the extent of the unevenness of the pavement.
I am therefore of the view that the pursuer has not averred sufficient to allow the case to go to proof.
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Common Room
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