Scottish Court of Session Decisions

This action called on procedure roll on 27 November, 1998. At that diet, counsel for the pursuer tendered a minute of amendment of the pursuer's pleadings. I refused to allow the minute to be received. It was intimated that in that event the pursuer could not resist the defenders' motion that their first plea in law should be sustained and the action dismissed, and I took that course accordingly.

The basic facts of the case are simple. The pursuer was running along a path which brought him to the vicinity of Muirtown Locks on the Caledonian Canal. There was there a wooden jetty which ran parallel to the canal. He ran onto the jetty. His foot went through the platform, and he was injured. The case has had a long and tortuous procedural history. There have been four attempts to amend the pursuer's pleadings to meet arguments advanced by the defenders in notes of argument lodged in anticipation of diets of debate. The pursuer has sought recovery of documents and property to enable a case to be developed. The minute of amendment which I refused was the latest of these.

Intimation of the pursuer's claim was made within a few days of the accident. His solicitor took photographs of the damaged platform. There was a prolonged correspondence before proceedings were raised. It appears clear that initially it was perceived that the pursuer's case could be based on a relatively positive averment that the planking of the platform had come to be in a defective state through fungal infection; that the condition must have existed in a degree that would have been observed on inspection for at least twelve months; and that any reasonable system of inspection would have included inspection at intervals not exceeding twelve months. In the fullness of time, the pursuer sought expert advice from Mr R. P. Sharphouse of Trada Technology Limited. As a result it came to be appreciated that the frequency and the requirements of inspection were a function of the design characteristics of the jetty and of the materials employed in its construction. The spacing of support structures influenced the dimensions of the platform components. The degree of redundancy achieved by over-specification affected the resilience of the structure and the need for inspection. The pursuer did not have the basic data, and it was impossible now to obtain it without the co-operation of the defenders. The jetty had been renewed a few weeks after the accident.

The pursuer made a number of attempts to recover the defenders' documents, and the remains of the original platform in order properly to instruct Mr Sharphouse. These were resisted by the defenders, and the pursuer's motions, so far as material, were refused. For present purposes it is sufficient to note the events of the week leading up to the procedure roll diet. On Tuesday 24 November, the pursuer renewed his motion for commission and diligence to recover the defenders' records and sought recovery of the remains of the platform. Coupled with that there was a motion to discharge the diet of debate. The motions were refused. Leave to reclaim was sought and refused by the Lord Ordinary.

The present minute of amendment was then prepared and tendered. Defenders' counsel argued that the minute failed to address the fundamental criticisms of the pursuer's pleadings which were outlined in the notes of argument and in particular in the third note, number 21 of process. The clear purpose of the amendment was to provide a basis for renewal of the motion for specification and diligence and for specification of property which had hitherto failed. In my view, the objections were well founded.

As already indicated, it was accepted by the pursuer that the duties of inspection incumbent on the defenders had to be related to the design characteristics and materials used in the construction of the platform. It followed, in my view, that the general expression of a duty of care which was elaborated without reference to data descriptive of those factors had to be irrelevant. Since the pursuer could not supply the deficiencies from information now available to him, the minute of amendment could be no more than a prelude to a fishing expedition to procure the information from the defenders. Since the case was admittedly irrelevant as it stood, dismissal was inevitable.

I reached this conclusion with regret. The basic information has at all material times been in the hands of the defenders. They are a public authority. Superficially they suffer no disadvantage of which they can legitimately complain if uncontrovertible physical data in their possession properly interpreted supports a case made by a member of the public against them. Counsel for the defenders emphasised the expense and delay caused by the procedure to date. There is always a point to be made by defenders sued by a legally aided person from whom they cannot expect to recover their expenses or to recover them fully. But over a considerable period they might have avoided expense by making facilities available for the inspection of the documents and materials in question, with or without an order of the court if that had been a material consideration. At the end of the day, however, it remains the position in ordinary procedure that it is for the pursuer to aver relevantly the basis on which he blames the defenders and seeks damages from him. That the pursuer has failed to do in the present case.

The argument identified a number of other criticisms of the pursuer's pleadings as they would be if the proposed amendment procedure were carried through. There was criticism of the first paragraph of the minute of amendment where there was an attempt to introduce a case of common law fault on an esto basis related to the defenders' contention that they were not occupiers of the footway within the meaning of the Occupiers' Liability Act, 1960. There was criticism of the use made of a passage in Mr Sharphouse's report which was at best ambiguous. There was an argument that the defenders could not be liable in damages for failure to exercise statutory powers. There was criticism of the averments relating to the practice of other parties in maintaining walkways. These points, and other similar points, would have made for interesting discussion if the debate had proceeded. But none of them seemed to be beyond remedy if the amendment had been allowed, subject to later debate on any points of principle which remained.

Act: J R Campbell, Q.C., Porter

Wright Johnston & Mackenzie

Alt: Lake

Maclay Murray & Spens

4 December 1998