Family of woman who died after falling from drinks shelf at Edinburgh bar sues shareholder

Family members of a woman who lost her life in an accident at a 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 Katrin Martenka, who died following the incident at the Green Room wine bar in Edinburgh’s William Street.

Ms Martenka had been at the bar on September 23, 2023, with a friend when 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.

The court heard that at around 1am, Ms Martenka and the second respondent went outside to smoke.

The area was described as dark, as the outside lighting had been switched off.

Lawyers for the family members claim Mr Johnstone “raised himself up onto a shelf” that was supposed to be used exclusively as a drinks tray and sat there for around a minute before moving along the shelf “to leave a space such as to accommodate” Ms Martenka.

The court heard that she then “hitched” herself up onto the shelf one leg at a time.

As she sat back, the shelf immediately gave way, and she fell onto concrete steps, suffering a fatal injury. The second respondent was able to prevent himself from falling backwards over the drop.

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.

The judge found that Mr Johnstone did not have a duty of care to Ms Martenka and 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. They cited previous cases that they said showed that Johnstone – as someone who knew the danger in climbing onto the tray – should have 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.

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, fixed a wooden shelf to the railing so 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.”

Describing the pursuer’s 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 into 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.