Edinburgh woman died after 'following man to sit on shelf in city wine bar'
Family members of a woman who lost her life in an accident at an Edinburgh bar can pursue a compensation claim against a shareholder in the business which owned the hostelry.
Court of Session appeal judges have told Roderick Finlayson, Ingrid Merrettig and Stephan Martenka that they can pursue a claim against a man called Andrew Johnstone. The trio believe Mr Johnstone should compensate them for the loss of their loved one Katrin Martenka.
Ms Martenka lost her life on September 26 2020 after spending time at the Green Room wine bar in Edinburgh’s William Street. The Inner House of the Court of Session heard how Ms Martenka had sat on a “non load bearing wooden structure” with Mr Johnstone.
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He had climbed onto it at first and she followed him. The court heard that the structure was supposed to be used exclusively as a drinks tray - it collapsed under the combined weight of Ms Martenka and Mr Johnstone.
She hit concrete steps and sustained a fatal injury. Lawyers for Ms Martenka’s family had gone to the Court of Session and raised compensation claims against Mr Johnstone and the bar’s owners Alban Wine Ltd. The claim against Alban was settled but a judge in the Court of Session originally threw out the action against Mr Johnstone.
This was done because the judge found that Mr Johnstone did not have a duty of care to Ms Martenka. He concluded that she had an opportunity to assess the situation for herself and decide whether to follow Mr Johnstone.
This prompted lawyers to appeal this decision to the Inner House of the Court of Session - Scotland’s highest civil appeal court. They argued that Mr. Johnstone acted negligently by inviting Ms Maetenka onto the tray, knowing it was unsafe.
They argued that the judge who originally heard the case applied the wrong legal test in making his decision and cited previous cases which they said showed that Johnstone - as someone who knew the danger in climbing onto the tray - should have for seen the risk to Ms Martenka. In a written judgement issued by the court on Tuesday, Scotland’s second most senior judge Lady Dorrian agreed with the submissions made to her by the lawyers acting for Ms Martenka’s family.
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Lady Dorrian, who sat with colleagues Lord Malcolm and Lord Pentland, wrote: “The test, at this stage of proceedings, is whether, on the averments, the reclaimers’ case against the second respondent is bound to fail.
“Only in rare and exceptional cases will it be appropriate to dismiss a personal injury action on relevancy grounds. This is not such a case. The reclaiming motion must succeed, and the case be remitted for proof.”
The judgement tells of how the deceased’s partner, her mother and brother are the people pursuing the compensation claim.
Lawyers for the family say that the wine bar had an outside area on the plat with tables and chairs. The bar, using steel struts and hinges had fixed a wooden shelf to the railing, in such a way that it extended over the gap above the staircase leading to the basement area.
Lady Dorrian wrote: It could be folded down when not in use. The shelf was intended to be used as a drinks tray, and was not intended for sitting on, which would be dangerous, all of which was known to the second respondent.”
The judgement tells of how on the evening of September 23 2020, the deceased and a friend were socialising in the bar. They started up a conversation with Mr Johnstone, who was a “shareholder” in Alban wine Limited. He is also described as being a “frequent visitor” to the bar.
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The court heard that at around 1am, the deceased and the second respondent went outside to smoke. It was dark at that time and the outside lighting had been extinguished. Lawyers for the family members claim Mr Johnstone “raised himself up onto the shelf” and sat there for around a minute before moving along the shelf “to leave a space such as to accommodate” the deceased.
The court heard that Ms Martenka “hitched” herself up onto the shelf one leg at a time. As she sat back, the shelf immediately gave way, and she fell onto the concrete steps, suffering a fatal injury. The second respondent was able to prevent himself from falling backwards over the drop.
Describing the purusers’ case, Lady Dorrian wrote: “The reclaimers maintain that the second respondent had a duty to take reasonable care to avoid acts or omissions which he could reasonably foresee might cause injury.
“The deceased was proximate to him in time and space. From his general familiarity with the premises he knew or should have known that the shelf outside was not meant for sitting upon, that it was suspended over a drop and that sitting on it was dangerous. By his actions he invited the deceased onto a trap. He should not have sat on the shelf, nor should he have invited the deceased to join him, either explicitly or implicitly.
“He should have foreseen that the deceased might follow his example. He also had a duty to prevent or at least discourage the deceased from joining him on the shelf. He created the risk of the accident which eventuated.”
The case against Mr Johnstone has now been “remitted” to the Outer House of the Court of Session and will be heard sometime in the near future.