Scottish Court of Session Decisions

[1] This matter, which is an action of reparation, called before me on the motion roll in respect of an application by the pursuer for an award of interim damages against first, second and third defenders, ultimately on a several basis. Having heard counsel, I refused the motion in respect of the second, and third but allowed the motion in respect of the first defender and made an award in the agreed sum totalling £150,000.

[2] This reclaiming motion arises from my decision to grant an interim award against the first defender.

[3] The factual background to the matter relates to a very serious accident occurring at Ayr Racecourse on 25 May 1997, when the pursuer, who was a member of the armed forces, was part of a team running a fun slide at a public event at the racecourse. The slide consisted of a tower from which a cable was slung towards an anchor point on the ground, some 100 paces away from the base of the tower.

[4] While there are a number of detailed averments of fact on the Record by all parties, the essential facts of the accident are extremely simple. The pursuer was at the top of the tower, assisting with attaching members of the public who were to ride down the cable to it by means of a safety harness. A Land Rover was driven under the cable towards its base and snagged it with its roof-rack. As a result, the tower collapsed and the pursuer was thrown to the ground, suffering catastrophic injuries which will render him severely disabled for the rest of his life.

[5] The first defender represents the Ministry of Defence as for the purposes of this action, the employers of the soldiers involved in the exercise including the pursuer. The second defender was the driver of the Land Rover. The third defender was his employer at the time. The fourth defender, who did not feature in the motion before me, had overall charge of the whole site.

[6] It appears that the site which was to accommodate the tower and the cable had been pegged out prior to the arrival of the army to prepare their particular enterprise. In so doing the soldiers in charge of the operation decided to anchor the cable at a point beyond the area that had been mapped out to accommodate their particular site. The anchor point was itself surrounded by bollards and tape and possibly also with pieces of the racecourse railing. However, there was a gap between that area, that is to say where the cable was anchored and the point where the original site had been mapped out. No tape or other barricade was present to prevent anything or anyone passing through that gap underneath the cable. It was through that particular gap that the Land Rover was driven by the second defender and thus into contact with the cable with the catastrophic results that occurred.

[7] The relevant part of the relevant Rule of Court which is 43.9 is as follows:

[8] It is important to note that the rule now having been amended from its original form refers to 'any' defender and subsequently to 'that' defender. This therefore requires the Court applying the appropriate test to be satisfied in relation to each defender in a multiple defender case that the pursuer would be likely to succeed before meeting an award against that defender. The test in this context as set by the First Division in Cowie v Atlantic Drilling Co Ltd 1995 S.C. 288 is that the pursuer has to show that it was practically certain that he would succeed on the question of liability or that he would almost certainly do so, against the particular defender.

[9] In this tragic case, nobody disputes that the pursuer is bound to obtain an award of damages at the end of the day on any reasonable view of things. He was totally innocent in any way of what happened to him and no question of contributory fault or even factual defence in relation to his conduct arises. The issue is solely therefore an inter-defender one and this therefore puts sharply into focus the fact that if an award has to be made against any defender, it must be one against which the Court is satisfied the pursuer is almost certain to succeed.

[10] This was the issue raised by counsel for the first defenders and indeed by counsel for the second and third defenders and this reclaiming motion is taken against my decision to the effect that I considered the test to be met on the averments or even the admitted facts in relation to the first defender, but not the second or third defender.

[11] My reasons in that respect are simple. The overall control of the site involving the tower and the cable, even it had been originally pegged out by somebody else, was in the hands of the first defender's employees. It was they who were responsible for the extending of the enterprise beyond the original area mapped out and for that leaving the gap between the anchor point and the end of the tape which offered no warning or avoidance in itself to any person or vehicle passing through it or under it. This seemed to me to indicate, whatever other warnings may have been in the vicinity, the creation of a real risk of injury or possible danger at least, not least by reason of the fact that persons were coming down the cable which, at the relevant height, was sufficiently low to be snagged by a Land Rover merely carrying a roof-rack. It is therefore my opinion that it is almost inevitable that the first defender will not escape some degree of liability for allowing that state of affairs to exist and for not having extended the tape to cover the gap between anchor point and the original extension point of it, or provided some other obstacle to plug the gap.

[12] The position taken up by counsel for the first defenders was essentially that there was no causative link between the existence of gap as described and the actions of the driver of the Land Rover, who was wholly responsible for taking the route he did, and failing apparently to observe or at least avoid the presence of the cable, because he struck it. His fault was the sole cause of the accident.

[13] The position adopted by counsel for the second and third defenders was quite the opposite. He maintained that the route that the second defender took was effectively an authorised one until it was invaded by the extension to the tower site by the decision to anchor the cable beyond it. Furthermore, he said that the driver need not necessarily be taken to have seen the cable which was a relatively slight thing in visual terms and accordingly the whole blame for the matter must rest with the first defenders. In addition to that was that they had averred an admission by the driver, the second defender "that he thought he could get under the cable". This admission was denied by the second defender.

[14] I accept that I am required to consider the position against each of the relevant defenders. I am satisfied that the pursuers succeeds at this stage against the first defender for the reasons I have already given, based primarily on the fact that they had overall control of the site, with a duty to minimise or avoid obvious risks. The leaving of the gap, whatever other warnings might have been in the vicinity, at least contributed to the creation of a risk of possible disaster. As presently advised, I therefore almost certain that the pursuer is bound to succeed to some extent against the first defender.

[15] I did not at this stage consider that the same test could be met in relation to the second and the third defenders, although I consider it highly unlikely that they will escape liability. On any view of the matter, whether authorised or not, the driver ought to have seen the cable and realised that he would have come into contact with it. That in itself, would be bound to involve him and his employers in some degree of liability, but not, in my opinion, as high as "almost certainly so." In addition I cannot rely on the alleged admission because it is denied. With some hesitation therefore, I refused the motion in relation to the second and third defenders.

[16] I would close with one observation, which I did not allow to influence my decision but nevertheless, is a concerning one. In this case, an innocent pursuer might have failed to obtain interim damages in a case which he cannot possibly lose, simply because of inter-defender bickering. I therefore consider that the form of the current rule with reference to the words "that defender" may require certain consideration given that there is always rights of relief between the defenders. To my mind, the old version of the rule was preferable, but that is just an observation. I repeat that I granted the motion upon the basis that I was satisfied on the test that should be applied in respect of the first defender. However, I granted leave to reclaim partly to allow the question to be considered.

[17] The agree sum of £150,000 is not in dispute as I understand it.