Ian Mccalman Rankin (ap) V. John Jack Trading As Lochill Equestetrian Centre
| Jurisdiction | Scotland |
| Judge | Lord Hardie,Lord Marnoch,Lord Reed |
| Judgment Date | 02 June 2010 |
| Neutral Citation | [2010] CSIH 48 |
| Published date | 02 June 2010 |
| Docket Number | PD1342/07 |
| Court | Court of Session |
| Date | 02 June 2010 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Reed Lord Hardie Lord Marnoch | [2010] CSIH 48 PD1342/07 OPINION OF LORD REED in the cause IAN McCALMAN RANKIN (A.P.) Pursuer and Reclaimer; against JOHN JACK trading as LOCHILL EQUESTRIAN CENTRE Defender and Respondent: _______ |
Alt: Macpherson, Solicitor-Advocate; Simpson & Marwick, W.S.
2 June 2010
Introduction
[1] In this action of damages for personal injuries, the critical issue at the proof was whether the pursuer had properly applied the parking brake of the tractor which he was driving, when he stopped it on a slope and got out of it to close a gate. He was injured when the tractor ran down the slope and ran him over. His case was that the trailer being pulled by the tractor had been overloaded, and that in consequence the brake, even when properly applied, had been ineffective. On the critical issue, the pursuer's evidence that he had applied the brake properly was contradicted by the evidence of two witnesses who arrived at the scene of the accident soon after it had happened, and who found that the brake was not applied (it being common ground that, if the brake had been applied before the tractor ran down the slope, it would still have been applied when the tractor came to rest). The same two witnesses also gave evidence that the trailer had not been overloaded. The Lord Ordinary rejected the pursuer's evidence on the critical issue, partly because he considered the pursuer's account to be inherently implausible (in that the tractor had remained stationary on the slope for a time before running away), and partly because he had no good reason to reject the evidence of the two witnesses, the defender and a Mr McIlwraith.
[2] The pursuer also raised an issue at the proof as to whether the maintenance records of the tractor were genuine or had been concocted after the accident. The records had been produced by Mr McIlwraith, a local garage proprietor who carried out the maintenance of the tractor. There was not, ultimately, any argument that the accident was attributable to a lack of maintenance (as we have explained, the pursuer's case was that the trailer had been overloaded), but the genuineness of the records was put in issue by the pursuer as a means of attacking the credibility of Mr McIlwraith. The pursuer therefore led evidence from a witness, Mr Johnston, to the effect that the records were not genuine, and Mr McIlwraith gave contrary evidence. The Lord Ordinary accepted the evidence of Mr McIlwraith. The pursuer now seeks to lead additional evidence to support that given by Mr Johnston, in the hope that Mr McIlwraith's evidence that the records are genuine will now be disbelieved, and therefore (so runs the argument) this court will conclude that the Lord Ordinary erred when he rejected the pursuer's evidence that he had applied the brake.
The Lord Ordinary's decision
[3] The general nature of the evidence at the proof, and the Lord Ordinary's assessment of it, are apparent from paragraphs 30-40 of his Opinion:
"[30] There is much which is not in dispute. The pursuer was asked to transfer rubble and general debris from a shed to the farm dump using the elderly Massey Ferguson tractor and trailer. Its parking brake system was of a basic mechanical nature. There was no evidence that it was defective. The pursuer had to pass through a gate which required to be kept shut. When transporting the last load of the day he opened the gate, drove through it and stopped the tractor and trailer half on the verge on a slightly downhill slope. After he left the tractor to close the gate, the tractor and trailer began to move down the slope. In attempting to gain control of the vehicle the pursuer fell under the wheels of the tractor and trailer and suffered serious injuries.
[31] The pursuer's case is that the accident happened because the trailer was overloaded and thus the parking brake on the tractor was overcome. This was the fault of the defender who was responsible for the load in the trailer. The load was so excessive that it should have been obvious that the pursuer was being asked to undertake a risky journey. The defender's case is that the trailer was not overloaded and that the accident was caused by the pursuer's failure to apply the parking brake when he stopped the tractor on the verge.
[32] The general effect of the evidence was that the brakes would cope with anything but a clearly excessive load. It follows that if I am satisfied that the pursuer has proved that he applied the parking brake, then he has proved his case that the trailer was overloaded. There would be no other reasonable explanation for the accident. Thus the key issue is whether the pursuer has proved that he applied the parking brake before he left the vehicle to close the gate.
....
[34] ....The pursuer insisted that he had applied the brake fully and properly, and that for a short period the tractor was at rest. He said that he also turned the front wheels of the tractor to the right to face slightly up the verge, and he dropped the front bucket onto the ground. It is entirely to be expected that if the pursuer was concerned about the load then he would have applied the parking brake, but there is evidence from Mr Jack and Mr McIlwraith to the effect that there was nothing out of the ordinary about the load in the trailer.
[35] Had the pursuer's evidence been the only relevant evidence on the key facts I would have had no difficulty in accepting his account of events. However I have to take into account the other relevant evidence from witnesses who, although they were not present at the time of the accident, saw the tractor and trailer immediately before and immediately afterwards. Mr Jack and Mr McIlwraith both spoke to an absence of any concern as to the size of the load in the trailer, and also that when they looked at the tractor at the foot of the field they saw that the parking brake was not applied. It could not have sprung off during the tractor's journey down the field. Thus they concluded that it had not been applied by Mr Rankin when he went to close the gate. If that is correct, that explains the accident and exculpates the defender.
[36] A burden of proof is placed on the pursuer to make out his case on a balance of probabilities. If he fails to do that, his claim is unsuccessful. It follows from this, and from the above discussion, that in order to uphold the pursuer's case I must accept his evidence on the key facts as probably accurate, and reject the evidence of both Mr Jack and Mr McIlwraith. In particular, to uphold the pursuer's claim I must reject their evidence that the parking brake was not applied.
[37] It was submitted on behalf of the pursuer that he was a credible and reliable witness, while the defender and Mr McIlwraith were not. However there is little of real weight to support an attack on the evidence of Mr Jack and Mr McIlwraith on the key issues. No doubt they both have an interest in the matter at issue; Mr Jack is the defender and Mr McIlwraith is the person responsible for servicing his vehicles. Mr Jack did give his evidence in a somewhat bombastic and over-confident fashion, but that does not mean that he was deliberately untruthful.....There was an attempt to attack Mr McIlwraith's service records as concocted and fraudulent, but there was no evidence of sufficient weight to support this serious claim. I consider that Mr McIlwraith gave his evidence in a careful and measured way. He seemed to me to be someone who was doing his best to recount events as he remembered them, without any attempt to trim or gloss in favour of the defender. I found him credible and reliable. The differences in the evidence on details, such as who attended Mr Rankin and when, and whether Mr Jack and Mr McIlwraith went to the tractor together or separately, militates against a concocted story.
[38] As I said earlier, if the pursuer's evidence had stood alone I would have had no difficulty in accepting it. It follows that it is only the contradictory evidence, especially on the parking brake issue, which stands between him and success on the issue of liability. On that matter there is little room for Mr Jack and Mr McIlwraith being mistaken. If I reject their evidence it can only be on the basis that I do not believe them to be telling the truth. On the other hand Mr Rankin suffered a very serious accident which left him with substantial physical and psychological injuries. As explained later in this opinion, his injuries include post traumatic disorder. It is likely that he will have played and replayed the events over and over in his mind. It is entirely possible that during a trip that had no special significance for him at the time, he failed to apply the parking brake, yet he is now genuinely convinced that he did. It may have been his normal practice, and this was but a momentary aberration. Or perhaps at the time he thought that putting the wheels on the softer ground and turning them into the verge would suffice. No doubt the vehicle was stationary for a period, something which could be explained by this simple precaution.
[39] Clearly application of the foot brake was sufficient to stop the tractor and trailer. The parking brake does not operate independently of the foot brake, it is simply a mechanism to hold down the foot brakes in the on position, thus applying the drum brakes to the wheels. On the pursuer's account the brakes held for a period and then slipped allowing the tractor and trailer to travel to the bottom of the field. It is not easy to understand how this would come about. Mr Johnston suggested an explanation based upon the front bucket having been lowered and then, because of a problem with the hydraulic rams, lifting of its own accord thus leaving the tractor and trailer relying upon the brakes alone, which proved to...
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