Margaret Hunter And Others V. William Murray And Others
| Jurisdiction | Scotland |
| Judge | Lady Smith |
| Date | 11 April 2002 |
| Court | Court of Session |
| Published date | 11 April 2002 |
| OUTER HOUSE, COURT OF SESSION | |
|
| OPINION OF LADY SMITH in the cause MARGARET HUNTER AND OTHERS Pursuers; against WILLIAM MURRAY AND OTHERS Defenders: ________________ |
Pursuers: Dorrian, Q.C., Davidson; Drummond Miller, W.S.
Second and Third Defenders: Stephenson; McClure Naismith
Fourth, Six and Seventh Defenders: Smith; Simpson & Marwick, W.S.
11 April 2002
[1]It takes many people to stage a pop concert. On 2 August 1996, arrangements were under way for the staging of a concert led by the pop group "Oasis" at Balloch Castle Country Park, Balloch. Those on site included the first defender, who was a labourer, the third defender, [a partner in the second defenders] who was Site Manager, the fourth defender, who was Traffic Manager, the sixth defenders, who were concert organisers, the seventh defenders, who were the production crew, and the deceased [a relative of the pursuers] who was on site to deliver a lorry load of drinks to some of the bars that were being set up.
[2]The foregoing summary can be gleaned from the pursuers' averments which were amended in the course of the debate so as to:
- at p.15B, insert, after '..two vehicles.': 'The fourth defender instructed the first defender to move forward.';
- at p.44A, delete in lines 1 and 2 from: '..in respect..' to '..responsible.'; and
- at p. 61C-Ddelete from: 'He knew ..' in line 6, to: 'in any event', in line 11.
[3]The lorry driven by the deceased had become bogged down on the site. A forklift truck, driven by the first defender, was determined on as the means by which the lorry was to be moved. The plan was to use the forklift truck to tow it, with the first defender driving the forklift. The maximum towing capacity of the forklift truck was 7 tonnes. The lorry weighed in excess of 30 tonnes. The pursuers aver that the fourth defender gave instructions to the first defender in the course of an attempt at the towing operation during which the first defender was driving the fork lift truck, and the deceased, who was on the ground between the two vehicles, was crushed. In particular, they aver as follows:
"The deceased stood between the fork lift truck and his HGV in order to tie a tow rope between the two vehicles. The fourth defender instructed the first defender to move forward. Suddenly and without warning the fork lift truck driven by the first defender reversed, pinning the deceased between the fork lift truck and his HGV. As a result the deceased suffered crushing injuries from which he died." [p.15]
[4]In article 4 of Condescendence, the pursuers attribute the death of the deceased to various breaches of duty by the first defender at common law. The first defender denies that he was at fault and an account of the accident is averred on his behalf in terms that are at variance with the pursuers' account. He avers:
"The fourth defender told the first defender to attach a span set to the back of the fork lift truck. The deceased then went to attach the span set to the front of the HGV. The distance between the fork lift truck and the HGV was only a couple of feet. The first defender climbed into the fork lift truck. He then awaited the instructions of the fourth defender. The fourth defender instructed the first defender to move forward. The first defender started to move forward slowly. The connection between the two vehicles tightened and the fork lift slipped backwards. As a result the deceased was crushed between the two vehicles..............the deceased moved between his vehicle and the fork lift while the latter was in motion." [p.17]
[5]The pursuers' response to the case advanced on behalf of the first defender is to aver an alternative case to the effect that if the accident happened in the manner averred by the first defender then it was attributable to the fork lift truck being used for an operation for which it was "patently unsuitable, namely the towing of a vehicle which weighed greatly in excess of its maximum towing capacity." [ p.15]
[6]Consequent upon the introduction of the above alternative case, the pursuers introduced averments to the effect that the provision of the fork lift truck for the towing operation was, in the circumstances, a breach of the Provision and Use of Work Equipment Regulations 1992, S.I. 1992 No. 2932 Reg.5 in that the fork lift truck was being used for an operation for which and under conditions for which it was unsuitable [see: Reg. 5[3]]. A case was also averred to the effect that, since the first defender had no driving qualifications or training, there had been a breach of Regulation 9[1] of those Regulations. Those breaches were, it was averred, breaches for which both the first defender's employers and those who had control of the premises were responsible.
[7]The case came before me on the Procedure Roll at the instance of the second, third, fourth, sixth and seventh defenders in respect of their preliminary pleas.
[I] Case against the Second and Third Defenders:
- Second and Third Defenders' second plea in law: Mr Stephenson, Counsel for these defenders, indicated that it was now accepted that the pursuers' averments in respect of patrimonial loss and services were sufficient and that I should thus repel his second plea in law, which I do.
b. Second and Third Defenders' third plea in law: As regards his third plea in law, Mr Stephenson submitted that I should exclude from probation the words: "for whose acts and omissions the second and third defenders are vicariously liable," where they appear in Answer 3 for the first defender at p.16C-D. The reason given was that there were no averments in the pleadings to support a relationship which could give rise to such vicarious liability. The first defender was not represented at the hearing. His agents had withdrawn from acting in January 2002, the procedure set out in Rule of Court 30.2 had then been followed and I was advised that it was understood that he now had agents acting for him and was aware of these proceedings. In these circumstances, I am satisfied that it is appropriate to deal with the argument in the absence of the first defender. I consider that Mr Stephenson's submission is well founded and I shall exclude these averments from probation by sustaining the third plea in law for these defenders.
c. Second and Third Defenders' first plea in law: Mr Stephenson was content with a proof before answer in respect of the pursuers' case against the second and third defenders at common law but insisted in his first plea in law, which is to relevancy and specification, in respect of the statutory cases.
Alternative cases of fact:
[8]Mr Stephenson submitted that the statutory cases pled against the second and third defenders were irrelevant for two reasons the first of which was that the breaches of Regulation 5 were based on a version of events put forward in the first defender's pleadings which was contrary to that averred by the pursuers. He argued that the case did not disclose circumstances which entitled the pursuers to put forward alternative accounts of the facts. The pursuers were, he submitted, seeking to present two inconsistent versions of the facts and that was not something that they were entitled to do. Reference was made to the cases of Clarke v Edinburgh and District Tramways Ltd 1914 SC 775, Smart v Bargh 1949 SC 57, M v M 1967 SLT 157, Valley v Wiggins Teape 1979 SLT [N] 50, Safdar v Devlin 1995 SLT 530, and Royal Bank of Scotland v Harper McLeod 1999 SLT [Sh Ct] 99, none of which, it was submitted, were on all fours with the present case. It was accepted that they were authority for the proposition that there was no absolute bar to a pursuer making alternative cases or taking a defender's averments and, in effect, turning them against him by averring an alternative case based on that defender's account of the facts. For, however, reasons which were not entirely obvious from the submissions made, it was not, it was said, appropriate to allow the pursuers to do so in the present case nor was it appropriate to allow them to do so to the extent of using one defender's version of the facts against other defenders as well.
[9]In response, Miss Dorrian Q.C., for the pursuers, submitted that the approach of the second and third defenders to the pursuers' alternative case was wholly misconceived. She submitted that, on the authorities, a pursuer is entitled to plead alternative cases where he is justifiably ignorant of the precise facts and where the case is pled in response to a defender's averments. Leeway ought, as a matter of substantial justice, to be given to a pursuer where he has no means of direct knowledge as to how an accident happened. In this case, given that the victim of the accident died, there was ample justification for the pursuers having no direct knowledge of what occurred.
[10]On the authorities, it is clear that the question which arises when a pursuer pleads cases based on alternative versions of the facts, is whether it is compatible with substantial justice to allow both cases to proceed. In Clarke v Edinburgh and District Tramways Co. Ltd, Lord President Strathclyde approved the observations of Lord President McNeill in the earlier case of Finnie v Logie 21D825:
"In certain cases it may be quite right that there should be alternative statements. There may be matters as to which the pursuer cannot be expected to be fully informed, and as to which it may be reasonable that he should be allowed to state an averment alternatively, and if the alternative statement in each of its branches be a relevant statement and ground of action and there appears to be a reason for not compelling him to limit himself to one of these at the time of bringing the action, then that is a relevant mode of stating a ground of action." [@ p.781]
In Smart v Bargh, Lord President Cooper commented:
"Now, it seems to me on the one hand, that there are many cases in which substantial justice not only permits but...
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