Dingwall v Walter Alexander & Sons (Midland) Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Fraser of Tullybelton,Lord Keith of Kinkel,Lord Scarman,Lord Roskill,Lord Brightman |
| Judgment Date | 17 June 1982 |
| Judgment citation (vLex) | [1982] UKHL J0617-1 |
| Docket Number | No. 8. |
| Court | House of Lords |
| Date | 17 June 1982 |
[1982] UKHL J0617-1
House of Lords
Lord Fraser of Tullybelton
Lord Keith of Kinkel
Lord Scarman
Lord Roskill
Lord Brightman
My Lords,
This appeal arises out of a tragic accident to a bus which occurred on 8th September 1976 on the Trossachs road to Aberfoyle near the Duke's Pass. The pursuers, now appellants, are the widow and children of the bus driver, John Angus Dingwall ("the deceased"), who was killed in the accident. The deceased in the course of his employment with the defenders, now respondents, was driving a Bedford bus belonging to them on an afternoon tour from Glasgow. The bus had travelled that day from Glasgow via Crieff, Comrie, Lochearnhead and Callander to the Trossachs. It had then travelled by the A821 road over the hills and down towards Aberfoyle by the Duke's Pass on its way back to Glasgow. About 8.15 p.m., while descending a steep hill towards Aberfoyle it went off the road.
The pursuers' case is based upon averments that the vehicle's brakes suddenly failed, with the result that it gathered speed to such an extent that the deceased was unable to steer it round a sharp right hand bend on the road above Marshall Lodge. The vehicle left the road and plunged down an embankment landing on its roof. The deceased was killed. Some of the passengers were killed and others suffered injuries. There had been a good deal of rain during the afternoon and the road was very wet. The pursuers aver that after the accident the brakes were found to be defective in three specific respects, and that these defects caused the accident. The Lord Ordinary (Lord Jauncey) held two of these defects unproved but he held "not without some hesitation" that the third specific defect, consisting of air in the braking system had been established, and that the air, when heated on the descent of the Duke's Pass, rendered the front brakes ineffective and caused the accident. He awarded damages to the pursuers. The pursuers also have a further general averment that the brakes had been the subject of several complaints during the months before the accident, and that, having regard to the extensive remedial work necessitated by these complaints, the defenders ought to have taken the bus off the road and made a thorough inspection and overhaul of the braking system. The Lord Ordinary held that the pursuers had failed to prove that such an inspection and overhaul would have remedied the defect, the nature of which is ex hypothesi not known. The defenders denied the pursuers' averments of fault and they averred that the accident had been caused by the fault of the deceased in driving at an excessive speed.
The defenders and respondents reclaimed against the Lord Ordinary's decision and their reclaiming motion was allowed. The Second Division (the Lord Justice Clerk, Lord Kissen and Lord Robertson) held that the pursuers had failed to establish that brake failure was the cause of the accident. They also held that the pursuers were not entitled on their pleadings to make the case of general defect of an unspecified nature in the braking system. During the hearing of the reclaiming motion, the defenders abandoned their averments of fault against the driver The Second Division accordingly assoilzied the defenders from the conclusions of the accident.
The main question which is now before your Lordships' House is whether the Lord Ordinary was entitled to hold that the appellants had established that the accident was caused by defective brakes on the bus, and in particular by the presence of air in the braking system before the accident. The evidence falls into three chapters. First there is evidence as to the condition of the brakes before the accident. This was to the effect that some work, including re-lining, had been done on the brakes on 6th September, and that they had then been tested and were in good condition on 6th and 7th September, and on 8th September up till the time of the accident. Secondly, there is evidence as to the condition in which the brakes were found after the accident. This is to the effect that air was found in the system leading to the front brakes on the morning after the accident and that, if it was there at the time of the accident, it was the probable cause of the accident. Thirdly, there is evidence from four passengers in the bus as to what occurred immediately before and at the time of the accident. They all expressed the opinion that the brakes had failed. The Lord Ordinary found that the evidence of the passengers was reliable, by which I think he meant that they were honestly doing their best to give accurate evidence. Much of the argument in this House was concerned with the meaning and effect of the evidence in Chapter 2. Taken at its highest for the appellants, it would tend to show that air was in the braking system before the accident and probably caused it. But, for reasons which I shall mention later, there is room for doubt whether this part of the evidence excludes the probability that the air found in the braking system may have got there after the accident. The other main area of dispute was concerned with the weight to be attached to the passengers' opinions that the brakes had failed.
The Lord Ordinary considered the passengers' evidence first but I think it will be more convenient to consider the three chapters of evidence in the order that I have mentioned above and to leave the evidence of the passengers until the last. The first two chapters are concerned primarily with facts observed by the witnesses, and it is desirable to establish these facts, as far as possible, before coming to the passengers' evidence which relates mainly to their impressions of the accident itself.
I turn then to the evidence relating to the condition of the brakes before the accident. The most important evidence on this matter was given by Mr. Turner, a mechanic at the respondents' depot at Milngavie who carried out certain work on the brakes on 6th September 1976, two days before the accident. I shall have to describe the braking system on the bus a little more fully later but for the moment I take the following brief description from the Lord Ordinary's opinion.
"All four wheels had drum brakes, hydraulically operated, with servo assistance, by the brake pedal. In addition the handbrake operated the rear brakes mechanically by means of rods. Depression of the brake pedal operated the servo, which in turn transmitted pressure by means of a rod to the two pistons in the hydraulic system master cylinder. The brake could be operated hydraulically without the assistance of the servo but the effort required of the driver would be much greater and the result less efficient."
The work done by Mr. Turner on 6th September included bleeding the brakes to release any air in the system, as well as some other work, and he then took the bus for a road test. After returning to the depot he relined the near side front brake shoes and adjusted them and then took the bus on another road test to Strathblane and back, a distance of about 12 miles. During this second road test he kept his foot on the footbrake for most of the time in order to burn in the new lining and that must have caused some heating of the brake shoes and drum on the near side front wheel. The significance of this will appear later. On his return to the depot, Mr. Turner did an emergency stop and noticed four evenly distributed tyre marks on the road, indicating that the brakes were working efficiently. The Lord Ordinary said that he regarded Turner as a careful witness, and certainly the impression I gain from reading his evidence is that he tested the brakes thoroughly and found them to be functioning satisfactorily. He was not cross-examined to the contrary effect and in particular it was not suggested to him that some air might have been left in the braking system of the front wheels when he had finished his work.
On the next day, 7th September, the bus was driven from Milngavie to Ibrox and East Kilbride and back again, a total distance of about 36 miles, by another employee of the respondents, Mr. Taylor. He gave evidence that he noticed nothing wrong with the brakes, although he had no occasion to apply them hard.
On the day of the accident the deceased, who was an experienced driver, had driven the bus for a distance of about 80 miles before the accident, apparently without observing any defect in the brakes. There was evidence that he must have passed close to several of the respondents' depots at which he could have stopped to have the brakes adjusted if he had found them defective, but he did not do so. None of the passengers said that they had noticed anything wrong with the brakes or heard any complaint from the deceased until immediately before the accident. The evidence that I have considered so far, and particularly that of Turner, tends strongly to suggest that the brakes were working efficiently from the time that Turner completed his work on 6th September until a few seconds before the accident. There was no evidence to suggest that air would have been likely to enter the braking system during that period.
I come now to the second chapter of the evidence, which relates to the findings after the accident, and their interpretation. On the morning after the accident three of the witnesses went to the locus where the bus was still lying upside down, and made a preliminary examination of it. These witnesses were Mr. McDonald, who was a vehicle examiner employed by the Department of Trade, and Sergeant McMeehan and P.C. Leslie of the Central Scotland Police. They found the...
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