Scottish Court of Session Decisions

On 8 March 1994 a raft, with nine occupants aboard, capsized in the River Orchy. Two of the occupants were drowned. The group on board consisted of six police officers, two civilians named Brian Boyle and Douglas Hill and a 17 year old girl. One of those drowned was the deceased girl who is the stepdaughter of the first pursuer. The second pursuer is her mother and the third pursuer is her natural father.

The group had been engaged in a white water rafting expedition. They had borrowed the necessary equipment, including the raft, from the John Street Community Education Centre, Bellshill, which was owned and operated by the defenders. The pursuers raised the present action against the defenders for damages following on the death of the deceased. On the day of the accident the river was averred to be in full spate, very fast flowing and severely turbulent. It was also averred that a suitably qualified person in charge of the expedition would not have proceeded with it, especially given the inexperience of the group.

There are two grounds of fault pled against the defenders. Shortly stated, the first is directed to the fault of the defenders themselves. The second is directed to the fault of the defenders' storeman Boyle for whom the defenders are to be held vicariously liable.

The defenders' first plea to the relevancy of the pursuers' averments was debated by the parties in the Sheriff Court in Oban. By an interlocutor, dated 28 November 1997, the sheriff allowed parties a proof before answer of their respective averments. The defenders appealed to this court, and Miss Shand argued on their behalf that both cases of fault made against the defenders were irrelevant and submitted that the action should now be dismissed. Mr. Ellis for the pursuers argued in support of the sheriff's decision to allow a proof before answer.

In order to deal with the first case of alleged fault we will outline the pursuers' pleadings on this matter. In Condescendence 2 it is averred that in about February 1994, along with the late Sergeant Westwood (who was the other person drowned in the accident), the first pursuer visited the defenders' said Centre which contained inter alia a store for equipment for various outdoor river activities, including river rafting. The equipment was used by parties of school children but it was also available for use, upon application, by other groups within the community. Boyle was the storeman and his duties included advising interested groups of the conditions upon which the equipment was available and the procedure for applying for its use. The defenders operated a policy whereby those wishing to use the equipment had to complete an application form. The defenders required evidence to be produced to them as to the qualification of group leaders or instructors and the defenders' management retained authority to refuse the use of the equipment. The purpose of the policy was to implement safety guidelines and procedures recommended by national bodies for each activity. In the case of white water river rafting the relevant body is the Scottish Rafting Association ("the Association"), whose guidelines are contained in its code of practice for river rafting.

In Condescendence 3 it is averred that the purpose of the first pursuer's first visit to the Centre was to borrow equipment for a hill walking expedition in which he was about to engage with a number of colleagues. During his visit he noticed photographs displayed on the walls, showing parties of school children on white water rafting expeditions which had been organised by the defenders' Community Education Department. He was interested and asked Boyle whether such an expedition for a group of his colleagues could be arranged through the Centre and said that neither he or his colleagues had any experience of river rafting. Boyle replied that he and his fellow instructors often accompanied parties of children on such expeditions and that the necessary equipment could be made available by the defenders. He indicated that if the first pursuer organised a group he (Boyle) together with an experienced associate, Douglas Hill whom he knew well, would take charge of and supervise the expedition. After this visit the first pursuer communicated what was said to his police colleagues and to his stepdaughter, the deceased. Having organised a group he confirmed matters with Boyle. The latter, "in the presence of the first pursuer", then filled out an application form on behalf of this group, naming himself and Hill as the relevantly qualified leaders/instructors. (The completed form is a production and was referred to for its terms in the Sheriff Court and in this court). In completing the form Boyle was acting in the course of his employment. The application form was thereafter approved on 14 February 1994 by the defenders' Area Community Education Officer, Stewart Wright, who was also acting in the course of his employment. Prior to approving the application form, Wright was supplied with evidence of the qualifications held by Boyle and Hill. This evidence consisted of certificates from the Association which certified them as trainee raft guides and log books which showed that the qualification of "trainee raft guide" was the lowest within the training scheme then operated by the Association. Wright would also have been supplied with a copy of the proposed programme of activity. By the process of completion and approval of the application form, Boyle and the defenders represented (falsely) to the first pursuer (and through him to the deceased) that Boyle and Hill were "suitably qualified" to take charge of the white water rafting expedition. The first pursuer and the deceased are averred to have relied upon these representations in participating in the expedition and took no steps on their own account to establish whether Boyle and Hill were suitably qualified.

In Condescendence 4 it is averred that on 8 March 1994 the group, including Boyle and Hill, met at the Centre and uplifted the necessary equipment which the defenders had allowed them to use. They travelled to the River Orchy, which was then in full spate and very turbulent. It is explained that the certificates of Boyle and Hill issued by the Association, which certified them as being qualified as trainee raft guides, did not qualify them to have charge of rafts or take overall responsibility for a river rafting expedition. On the expedition date the waters of the River Orchy were of such difficulty to negotiate that a suitably qualified person in charge of the expedition would not have proceeded with it, especially given the inexperience of the group. It is part of the function of the person in charge of the expedition to assess the river conditions in regard to the potential safety risks, under reference to the code of practice for river rafting published by the Association. A suitably qualified person would be a person qualified as a trip leader. It is averred that Hill, who was the person in overall charge of the expedition, was insufficiently qualified to assess the risks properly and in consequence he allowed the expedition to proceed.

In Condescendence 5 it is averred that shortly after the expedition commenced, due to the river conditions and the inexperience of the group, the raft capsized at a point in the river known as the Easan Dhube rapid and the occupants were thrown into the water. The deceased was drowned and the first pursuer was injured.

The pursuers' first case of fault against the defenders is set out in Condescendence 6. It is based on the defenders' alleged duty to take reasonable care for the safety of persons to whom they supplied equipment for white water rafting. Having adopted a policy for checking on the qualifications of group leaders or instructors it was the defenders' duty to take reasonable care in the operation of that policy. As regards white water rafting it was said to be an inherently dangerous activity which, if carried on by inexperienced persons under the supervision of inadequately qualified leaders or instructors, could result in injury or death. The defenders knew, or ought to have known, that the qualifications held by Boyle and Hill, were limited in scope, the lowest qualification offered by the Association, and that neither Boyle nor Hill was qualified to have overall charge of a white water rafting expedition. In any event, the defenders could not reasonably be satisfied they were so qualified. The defenders knew or ought to have known that the first pursuer and the deceased would rely on the defenders' representations to the contrary. In these circumstances it was averred that it was the defenders' duty to refuse use of the river rafting equipment. "To do otherwise was to negligently misrepresent that Boyle and Hill were suitably qualified".

In Condescendences 8-10 it is averred that the first and second pursuers have suffered loss, injury and damage as a result of the deceased's death; the third pursuer as her natural father has suffered loss; and that the first pursuer was injured as a result of being thrown from the raft.

We now turn to consider the attack of counsel for the defenders upon the case of fault made directly against the defenders and contained in Condescendence 6. Miss Shand for the defenders made a number of detailed criticisms of the pursuers' pleadings on this matter which are helpfully set out in her Grounds of Appeal. The salient arguments which were advanced to us and answered by Mr. Ellis are as follows. It did not appear to be in dispute that, apart from the operation of the policy, the defenders would not have been under a duty to check the qualifications of group leaders, and the pursuers did not make such a case. Miss Shand attacked the pursuers' submission that they had set out a viable case of the assumption of responsibility, on the ground that the defenders had not "undertaken a task" for the group and that there was no averment that the first pursuer was aware of or relied upon the policy. Mr. Ellis submitted that there were sufficient averments to show that the first pursuer was aware of at least the operation of the policy. Miss Shand submitted that the pursuers' averment relating to negligent misrepresentation was irrelevant in a number of respects:- (i) There were no averments that the first pursuer received a

misrepresentation made by or on behalf of the defenders. He was not said to be aware of the Association or of any misrepresentations made with reference to their qualifications. (ii) In what respect was there a misrepresentation? What was the meaning of "suitably qualified"? (iii) There was nothing to show that the defenders knew that a misrepresentation would be communicated to, or relied on by, the first pursuer. Mr. Ellis said that the misrepresentation in the present case was no more than another aspect of the fault of the defenders in not refusing the use of the equipment. This did not have to rely on the type of case with which Hedley Byrne & Co. Ltd. v Heller & Partners Ltd. [1964] 405 was concerned, as the representation was made in regard to matters of personal safety. The pursuers did not have to aver that the first pursuer knew about the Association's qualifications. He simply expected Boyle and Hill to be qualified adequately for the purpose of taking charge of the group. The defenders knew that the operation of the policy would involve a representation as to the adequacy of their qualifications.

At this stage of the case we are only concerned with whether or not the pursuers' pleadings are sufficient to justify an enquiry. The proper approach of the court at the stage of relevancy is succinctly set out in the speech of Lord Keith of Avonholm in Miller v. South of Scotland Electricity Board 1958 S.C. (H.L.) 20 at page 33 as follows:

We consider that the pursuers' pleadings, if established in evidence, may be sufficient to show that the defenders had by reason of their actions assumed responsibility to take reasonable care for the interests of others. (See, for example, Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. and Caparo plc v. Dickman [1990] 2 AC 605). The actings founded on by the pursuers in this case are that the defenders operated a policy whereby those wishing to use their equipment had not only to submit an application form but also required to produce evidence as to the qualification of intended group leaders or instructors. It is averred that the defenders' management retained authority to veto the proposed activity programme and refuse use of the equipment. It is further averred that the purpose of the policy was to implement safety guidelines and procedures and that, by the process of completion and approval of the application form and then not refusing the issue of the equipment, the defenders were negligently misrepresenting that Boyle and Hill were suitably qualified. Such averments could, depending on the facts established in evidence, be sufficient to support a case that the defenders had assumed responsibility for investigating the suitability and qualifications of Boyle and Hill.

One aspect of the pursuers' pleadings which was particularly criticised is that it is averred that the defenders, knowing that Boyle and Hill were not suitably qualified, "knew or ought to have known that the first pursuer and the deceased would rely on representations to the contrary". The question of whether it could be established, on the basis of these pleadings, that the first pursuer had sufficient knowledge of the operation of the defenders' policy procedure to demonstrate that he was relying on it, when the group was eventually issued with the necessary equipment, is not so easily answered. It is not specifically averred that Boyle explained the procedure to the first pursuer in such a way as to inform the latter the reason for it. It is averred that the application form was "filled out" by Boyle "in the presence of the first pursuer". It is clear from the form, which is available as a production and referred to for its terms, that Boyle must have been given some information from the first pursuer to enable him to complete the form. It is not clear, however, whether the first pursuer actually saw the form and it does not appear to have been signed by him. We have carefully considered this aspect of the pleadings and, with some hesitation, we have reached the conclusion that in the circumstances of this somewhat unusual case it would be unwise to reach a concluded view on the matter of whether the first pursuer did in fact rely on the defenders' procedure, without first hearing evidence. In any event, the role of actual reliance is not clear. In the circumstances averred we cannot say that after the full picture is revealed in evidence the pursuers would be unable to show that the court should hold that the duty of reasonable care included a duty to refuse use of the river rafting equipment to this group, given that they could have foreseen that no person would be in charge other than Boyle or Hill. This is not a case in which the pursuers are bound to fail to show that any duty at all was owed: Miss Shand did not contend otherwise. The real question is likely to be the content of the duty rather than the existence of a duty arising out of the whole transaction and the relationships evidenced by it.

As regards the pursuers' case of fault in Condescendence 7, based on the defenders' vicarious responsibility for the alleged negligence of Boyle himself, we have little difficulty in reaching the view that this part of the case should also go to proof. It is averred in this Article of Condescendence separatim that the accident was caused by the fault and negligence of Boyle for whose actings, in the course of his employment, the defenders are responsible. He knew or ought to have known that the defenders operated a policy whereby approval of the use of the equipment was subject to supervision by suitably qualified leaders or instructors and he knew that neither he nor Hill were so qualified. He failed in his duty in the exercise of reasonable care by misrepresenting to the first pursuer and to the defenders that he and/or Hill were suitably qualified to supervise the expedition. It was his duty not to insert his own name and that of Hill on the application form as suitably qualified instructors.

Miss Shand said that her main criticism of the case against Boyle was the absence of fair notice of what was the "falsity" of the representations alleged to have been made by him to the first pursuer and on which he relied. She submitted that the pursuers were not offering to prove that only a person with a trip leader's qualification would be "suitably qualified". She said that the averments in the case were insufficient to support a case that Boyle was acting in the course of his employment at the relevant times. Mr. Ellis replied that there was adequate notice of the case against Boyle. He presented himself and Hill to both the first pursuer and to the defenders as both being suitably qualified to take charge of the expedition and it was on this footing that he misled the first pursuer and the defenders. As regards the question of whether Boyle was acting in the course of his employment with the defenders, it was to be noted that Boyle's name was printed at the top of the application form and that, in any event, this matter could only properly be determined after proof.

The pursuers must, of course, establish in evidence that Boyle was acting in the course of his employment when, as averred, he allegedly negligently represented to the first pursuer himself or to the defenders that he and/or Hill were suitably qualified to supervise the expedition. Questions may arise after proof as to whether these representations were unauthorised acts which were so unconnected with his authorised duties as to be quite independent of and outside these duties. These matters can only be determined after the facts have been established. (See, for example, Lord Jauncey of Tullichettle at page 53F-H of Racz v. Home Office [1994] 2 A.C. 45).

For these reasons we refuse the appeal, adhere to the sheriff's interlocutor dated 28 November 1997 and remit the case back to the Sheriff Court to proceed as accords.