Scottish Court of Session Decisions

The pursuer seeks damages from the defenders in respect of an accident he suffered on 28 December 1988. The pursuer avers that while travelling on a train a door opened and he fell from the train sustaining serious injuries. The case called before me on Procedure Roll to debate the defenders' first plea-in-law. In the event, I granted the pursuer's motion for a proof before answer leaving all pleas standing. Mr Hanretty for the defenders was content with that outcome but wished an opinion to be written on one of the points he raised in the course of his argument.

In Article 5 of Condescendence the pursuer makes averments about steps which could have been taken to make the train door safe. At letter C he avers "Door locks of the type used on said coach from which the pursuer fell were liable to jam open and yet could appear to work normally. This was known to the defenders in 1988. Reference is made to the T.V. documentary "Blood on the tracks", to the incidents referred to in that programme and to "Passenger falls from doors" HSE Report 1993. Mr Hanretty criticised the last sentence of those averments as being the sort of "shorthand" method of pleading criticised by Lord Avonside in Eadie Cairns v Programmed Maintenance Painting Ltd 1987 S.L.T.777. Further, if one was to ignore such references there was insufficient averment of any accidents other than that to the pursuer, and therefore any such averments were irrelevant and should not be admitted to probation.

Mr McEachran for the pursuer accepted that references to the TV programme and the report were evidential matters which should not be the subject of pleading. However, he submitted that the pleadings should be read as a whole and taking Condescendences 5 and 6 together there was sufficient specification of previous accidents.

While I fully accept the observations of Lord Avonside and am of the view that these references should not be part of the pleadings and cannot be looked to supply any deficiency in specification, I nevertheless agree with Mr McEachran that sufficient specification of previous accidents is given in Condescendence 5 and 6 read as a whole. I note the TV programme is further referred to in Condescendence 6. For these reasons, ignoring the references to the programme and the report, I allow the averments concerned to be admitted to probation. I see no purpose in striking out the said references themselves as the items concerned could no doubt be the subject of evidence in any event.