Lesley Mcglinchey V. General Motors Uk
| Jurisdiction | Scotland |
| Judge | Lord Philip,Lord Brodie,Lord Justice Clerk |
| Neutral Citation | [2012] CSIH 91 |
| Court | Court of Session |
| Docket Number | PD1987/10 |
| Published date | 04 December 2012 |
| Date | 04 December 2012 |
| Year | 2012 |
| SECOND DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Justice Clerk Lord Brodie Lord Philip | [2012] CSIH 91 PD1987/10 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in Reclaiming Motion by LESLEY ANNE McGLINCHEY Pursuer and Reclaimer; against GENERAL MOTORS UK LIMITED Defenders and Respondents: _______________ |
Alt: Milligan, QC; Paull & Williamsons LLP
4 December 2012
The pursuer’s Case on Record and at Proof
[1] The pursuer seeks damages for injuries sustained by her on 13 August 2007.
Quantum, on the basis of full liability, is agreed at £85,377 inclusive of interest to 22 November 2011. The circumstances of the accident appear straightforward. The pursuer parked her Vauxhall Signum car in a cul-de-sac, which had a 4.4 degree gradient. She did not put it in gear. It was accepted by both parties, although not established during the course of the proof, that, if the handbrake had not been applied to some extent when the car was parked, it would immediately have rolled backwards. It did not do so. For this reason, as the defenders explained at the hearing of the appeal, it was never contended by the defenders that the pursuer had not attempted to apply the handbrake, or that she had forgotten to do so.
[2] The pursuer got out of the car and went round to the rear in order to open the hatchback and let her dog out. As she was doing so, the car rolled backwards and the accident occurred. After the proof, the Lord Ordinary found (Opinion para [3]) that “the pursuer applied the handbrake”. He then narrated that the pursuer had testified “that it was her habitual practice to engage the handbrake by pulling it on quite aggressively and without depressing the button thereon” and had done so on the day of the accident. Although the defenders did attempt to argue that the Lord Ordinary’s finding might be referable to a partial application of the handbrake, that is not how the court reads his Opinion. Had the Lord Ordinary considered, on a balance of probability, that the pursuer had failed to apply the handbrake in the aggressive way which she described, the court is confident that the Lord Ordinary would have said so since that, in itself, would effectively have put an end to the case. No issue would have arisen after proof, and certainly not upon appeal, as to whether any defect existed in the handbrake or otherwise; proof of which is the essential matter now in dispute.
[3] Much turned at the proof upon the evidence concerning the handbrake and the effect of its application. The pursuer led evidence from an expert consultant engineer, Alan Bathgate, who described the handbrake mechanism. It is of conventional design and consists of a lever mounted on a central console between the front seats of the car at the front of a central armrest. The lever moves through a vertical arc on a pivot. This pivot, when turned, pushes a spring-loaded mechanism forwards, which in turn pulls a horizontal cable attached to the rear brakes. Pulling that cable applies the brakes.
[4] As is perhaps best illustrated by the above diagrams, when the lever is pulled, the mechanism is held in place by means of a pawl, the fork-like prongs of which slot over one of several teeth on a ratchet device. Once in place, the pawl holds the ratchet, and hence the brake cable, in a particular tension. The pawl can be raised free of the ratchet by pressing the release button at the front of the lever. This pushes an internal rod backwards, causing the pawl to pivot upwards and free of the ratchet teeth. If the button is not pressed, the two prongs of the pawl slot automatically, by means of spring loading, over one of the teeth of the ratchet.
[5] The brake can be applied by using one of two basic methods. First, the release button can be pressed and the lever raised. When the lever is in position, the button can be released, allowing the pawl to drop into position. This method generates little sound. The second method, preferred by some, is not to use the button at all when applying the brake, but simply to pull the lever up, dragging the pawl over the teeth of the ratchet until it stops in a suitable position. This method creates the familiar handbrake ratchet sound. It was this second method which was employed by the pursuer. If the cabling was at the appropriate tension, there is no obvious reason why, on pulling up the lever using this second method, the rear brakes should not operate as they are designed to do. Accordingly, the central issue is, assuming that the brakes did not operate in that way, how that eventuality came to pass.
[6] The pursuer advanced a case based upon section 2 of the Consumer Protection Act 1987. A common law negligence case had also been tabled, but it was not insisted upon in the appeal. The case under the 1987 Act rests upon the pursuer demonstrating the existence of a “defect” in the car, and in particular its handbrake mechanism, which caused the accident. It is of some importance, in that regard, to notice the precise terms of the case advanced by the pursuer on record, given the arguments which were ultimately presented at appeal. In the fifth statement of fact, the pursuer avers that, at the time of the accident:
“The handbrake on the pursuer’s car failed to hold the car due to … defects in its design. There was movement within the handbrake grip affecting the position of the pawl within the ratchet on the handbrake lever and that this could allow the pawl to slip on the ratchet and release the handbrake lever thus allowing the car to move towards the pursuer. … The handbrake mechanism was situated between the driver’s seat and the passenger seat in a position that required the driver to reach back. When operating the handbrake forward pressure was placed on the handgrip tending to move it forward”.
There were further potential defects mentioned, but these fell by the wayside in the course of the first instance proceedings. In the eighth statement, the pursuer set out her case under the 1987 Act, as follows:
“The handbrake was of defective design and manufacture. As a result the safety of the pursuer’s car was not such as persons generally are entitled to expect”.
[7] It is necessary to set out the evidence of Mr Bathgate in some detail, since much of the pursuer’s criticisms of the Lord Ordinary, on appeal, were directed towards his interpretation of Mr Bathgate’s evidence. Mr Bathgate initially examined the car on 12 October 2007. He was unable to identify any obvious fault in the handbrake mechanism. On the contrary, he was able to apply the brake successfully simply by pulling the pawl over the fourth tooth on the ratchet. It could be pulled up a further three teeth from that position.
[8] Mr Bathgate carried out a more detailed inspection by arranging for the removal of the handbrake several months later in January/February 2008. Having done so, he ascertained that the plastic grip on the outside of the lever was not retained in position and could travel forwards and backwards along its length. This was either because a “tang”, which was designed to retain the lever onto the central consol, had become worn and disengaged, or because the plastic grip of the lever itself, again as a result of wear and tear, had become loose. It was Mr Bathgate’s position that this looseness in the grip had been present when he had first examined the car, even although he had made no note of the problem at that time.
[9] Mr Bathgate was able to demonstrate to his own satisfaction that, on rare occasions, the semi-detached handbrake grip could slip and jam the release button fully forward, thus preventing the brake from operating properly. As a result of this, the pawl could rest higher up on the ratchet’s teeth, rather than fully engage with them. In terms of his report dated 26 September 2011 [no 6/15 of process] he wrote:
“There is then a possibility that a sudden movement of the vehicle, such as closing a door, could cause the pawl to slip on the edge of the teeth, releasing the handbrake. It would normally be expected in such a situation that the pawl would then catch on another tooth on the ratchet as it released, but this is dependent on the travel of the release button rod not being obstructed by the position of the hand grip”.
Having been referred to this passage in the witness box, Mr Bathgate continued [transcript p 74]:
“I have spent literally hours moving the handbrake back and forward, and I think on two or maybe three occasions only did I manage to get the handbrake into such a position that it was holding the release button in sufficiently far to cause it not to contact the ratchet at all… I can manage to pull it on and have the handgrip in such a position when it was on that it was possible by applying reasonable pressure to it to bump the handbrake off again and…the pawl did not catch on the ratchet…
…What I did manage to do is find a position with the handbrake grip where it was neither fully forward nor fully back but it did hold the…pawl slightly raised from the ratchet and it was holding, but just by bumping it I was able to release the entire handbrake, so, in other words, there seemed to be a position whereby with the handbrake on and appearing secured, the position of the hand grip was such that it held the pawl on the edge of the tooth, not fully engaged but not fully released from it, and it would appear that the button was partially depressed and locked in that position by the forward movement of the hand grip”.
Mr Bathgate was then asked, and answered, a leading question as follows (p 77):
“… you said at the beginning of this explanation that…in many attempts to see what might have happened, you were able to do that on two or three occasions?
Yes, that’s so. I had spent many hours [trying hard] to replicate it again and it’s almost impossible. It seems that possibly...
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