MORRISON v J. KELLY and SONS Ltd
| Jurisdiction | Scotland |
| Judgment Date | 02 December 1969 |
| Date | 02 December 1969 |
| Docket Number | No. 6. |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION.
Lord Leechman.
EvidenceFunction of judgeOpinion of judge who heard witnessesDuty of appellate courtAction of damages for personal injuriesFacts held proved by Lord Ordinary on uncorroborated evidenceLaw Reform (Miscellaneous Provisions) (Scotland) Act, 1968 (cap. 70), sec. 9 (2).
EvidenceSufficiencyEvidence of single witnessAction of damages for personal injuriesFacts held proved on uncorroborated evidence of single witnessWitness contradicted by all other witnessesNo adverse comment by Lord Ordinary on these witnessesLaw Reform (Miscellaneous Provisions) (Scotland) Act, 1968 (cap. 70), sec. 9 (2).
The Law Reform (Miscellaneous Provisions) (Scotland) Act, 1968, enacts by sec. 9 (which applies to actions of damages for personal injuries): "(2) any rule of law whereby in any proceedings evidence tending to establish any fact, unless it is corroborated by other evidence, is not to be taken as sufficient proof of that fact shall cease to have effect in relation to any action to which this section applies, and accordingly in any such action the court shall be entitled, if they are satisfied that any fact has been established by evidence which has been given in that action, to find that fact proved by that evidence, notwithstanding that the evidence is not corroborated."
The driver of a cattle float was injured when, owing to the failure of a pawl to engage in a ratchet, the back of the float fell open and struck him. In an action of damages against his employers he deponed that the pawl was defective; that he had twice reported the defect to the defenders, who had taken no steps to remedy it; and that he did not report it again because the defenders never carried out repairs until an accident happened. His evidence was not corroborated on any of these points and was contradicted on all of them by the other witnesses who spoke to them, including two witnesses adduced for the pursuer. The Lord Ordinary accepted the pursuer's evidence as to the alleged defect and the reports. He doubted, however, his evidence that he had tested the pawl just before the accident to make sure that it was properly engaged. He also doubted whether the pursuer was justified in his belief that the defenders omitted to carry out repairs when defects were reported, but stated that the belief seemed to him at least to be honestly held. His only comment on the pursuer's credibility and reliability was: "There was nothing in the pursuer's demeanour in the witness-box which led me to think he was not telling a substantially true story." He did not comment adversely on the credibility or reliability of the other witnesses, and rejected their evidence mainly on the ground that it contradicted that of the pursuer, and also partly on a ground which was abandoned in the Inner House. Applying sec. 9 (2), he held the defenders partly to blame for the accident.
Held (1) that sec. 9 (2) did not in any way alter or lessen the power of a court of appeal to review in appropriate circumstances the decision of a judge of first instance on an issue of fact, or the necessity for that judge to state adequate and sufficient reasons for reaching a decision based on his assessment of the evidence of the witnesses; (2) that the presence or absence of corroboration remained an important consideration for the court in deciding whether or not a fact had been proved; (3) that, as the Lord Ordinary had not given satisfactory reasons for rejecting the evidence contradictory of that of the pursuer, the Division was entitled to re-assess the whole evidence; and (4) (rev. judgment of Lord Leechman) that on such re-assessment the pursuer had failed to prove his case of fault; and the defenders assoilzied.
Dictum of Lord Thankerton in Thomas v. Thomas, 1947 S.C. (H.L.) 45, at p. 54, applied.
Daniel Morrison brought an action of damages against his employers, J. Kelly and Sons Limited, in respect of personal injuries sustained by him in the course of his employment when the rear door of a cattle float fell open and struck him.
The following narrative of the facts, of the pursuer's allegations of fault, and of the evidence relevant thereto, are taken from the opinion of Lord Migdale:"This is a reclaiming motion by the defenders against an interlocutor finding them 50 per cent to blame for the accident sustained by the pursuer. The Lord Ordinary assessed the total damage at 2000. The action is laid on a breach of the common law duty of the employers to take reasonable care for the safety of the pursuer employed as a lorry driver and in particular to take reasonable care to see that the door control mechanism of the stock float he operated was maintained in a safe condition. The pursuer avers that a part of the mechanism for raising and lowering the back door was defective, because one of two pawls did not fall into position on its ratchet wheel. In consequence the door fell down and injured the pursuer, who was then walking round the back of the float. The defenders say they were not in breach of duty
"On 16th May 1964 the pursuer had driven a load of cattle to the abattoir at Hamilton. To let them out he lowered the back door, so that it formed a ramp. The bottom of the door was hinged to the rear end of the lorry platform and the panel of the door was let down and pulled up on the hinge. The door itself was about eight feet in height. It was wound up and lowered down by means of a shaft which ran across the rear of the lorry, at each end of which was a drum or spindle Each spindle had a ratchet wheel with teeth set so as to engage with the pawl, which rode over the teeth when the door was being raised, but if set to engage, prevented the ratchet from moving in the lowering direction. To operate the door the driver would take the handle and fit on to one or other end of the shaft. To lower the door it was necessary first to withdraw bolts which secured it to the frame. It was then necessary to disengage both pawls. If both were engaged, the driver must first go to one side and disengage the pawl on that side. He did this by turning the handle in the lifting direction, so as to relieve the pressure of the tooth on the nose of the pawl. The pawl could then be swung over to the disengaged position. He would then go to the other side and repeat the operation. When both pawls were disengaged, he would lower the door by unwinding the spindles and control the descent by holding the handle.
"To raise the door the driver would set one or both of the pawls in the engaged position on the ratchet and wind up with the handle. As the ratchet rotated, the tip of the pawl rode up over the top of each tooth as it passed and fell back into the space between the teeth. If the driver stopped winding, the weight of the door would cause the spindle to move in the downward direction. This in turn brought a tooth against the pawl and prevented further unwinding. The duplication at either end allowed the driver to work from either side of the vehicle. In practice drivers usually left one pawl in the disengaged position and operated the door by means of the pawl at the side at which he fixed the handle. The pawl operated by its own weight. A pin or rod, held by sockets fixed to the body, passed through the hinge end of the pawl. If the hinge did not turn freely on the pin, the pawl, even if placed in the engaging position, would not fall into the trough when the ratchet turned. These pins, together with other parts of the door mechanism, required to be maintained by cleaning and oiling. The pursuer and other witnesses said that maintenance was part of the driver's duty. To put a pawl in the disengaged position the driver would turn it back through 180 degrees, so that it lay on its back. The two ratchet wheels were set so that the teeth were staggered. The pawl on one side would be on the top of a tooth when the pawl on the other side was in a trough. In this way the door could always be prevented from falling down.
"The pursuer's account of the accident is uncorroborated. He says that, after he had backed the float to a midden, in order to wash it out, he saw that the ground on the nearside was dirty. He accordingly decided to lower the door from the off side. He got out of the driver's seat carrying the handle and stopped at the offside spindle and set the pawl to the engaging position, that is, he put the pawl over into such a position that it should fall into the teeth of the ratchet wheel whenever the spindle rotated. In cross-examination he said he knew the offside pawl was not actually engaged in the teeth. It was sticking, but there were times when it worked all right and other times it was just one of those things. He was asked why he did not use the handle to set the offside pawl, between the teeth. He replied that he never thought of it.
"The pursuer then went to the near side, fitted on the handle, turned it a wee bit and turned back that pawl from the teeth to the disengaged position. He then gave the handle a shake to see that the other pawl was caught, and I felt as if it was catching on the other side. He was trying to see if the pawl was in. In cross-examination he said he turned the handle slightly and it felt as if the handle wouldn't turn any further. It felt as if the wheel was gripping on the other side. I only turned it till I felt it was sticking it felt as if the pawl on the other side was gripping. He thought it was the pawl on the other side stopped the handle from turning. He tried the handle because he had doubts as to the effectiveness of the pawl. He thought the driver's side pawl was engaged, so he took off the handle and walked round behind the float. Suddenly the door swung down and injured his ankle. He said that the offside pawl could not have been engaged. If it had been, the door would not have come down. The pawl must have remained in the position he had placed it, just clear of the teeth...
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