Scottish Court of Session Decisions

[1] The appellant was employed by the respondents from September 1988 until July 1989 at their offices in Motherwell. In the afternoon of 6 March 1989 he reported to some of his colleagues that earlier in the day, when he had been alone in the room in which he worked, he had gone over to a window to lower a venetian blind and that the blind had suddenly dropped and struck him on the head.

[2] The appellant later made a claim for damages against the respondents and in 1992, close to the expiry of the triennium, he raised the present action in Hamilton Sheriff Court. After sundry procedure there was a proof before answer. It began on 26 August 1996. There were six days of evidence followed by a hearing on evidence on 25 November 1996.

[3] On 20 January 1997 the sheriff, in a lengthy judgment, assoilzied the defenders. The pursuer appealed to the sheriff principal. On 17 August 1999 the sheriff principal refused the appeal. The pursuer has now appealed to this court on three grounds which were drawn up by counsel who represented him at both of the previous stages.

[4] At the outset of the appeal the appellant sought leave to lead additional evidence on two matters. The first related to certain evidence given by the defenders' witnesses. The appellant sought to lead additional evidence in order to satisfy the court that his evidence regarding his work record from the date of the accident to the date of his admission to hospital was correct. He said that this additional evidence had been rehearsed in certain sheriff court proceedings, which he did not further describe, and at an Industrial Tribunal hearing.

[5] The second proposed line of evidence related to an accident report submitted to the Health and Safety Executive that had not been produced at the proof, and to the appellant's flexi-time records, all of which, he said, had a bearing on the reliability of the evidence given by Mr. Robert Sneddon on which the sheriff had relied. The appellant explained that the significance of these matters had occurred to him when he had been preparing for the hearing of this appeal.

[6] We refused the appellant's motion for four reasons. First, it was not clear to us what the proposed additional evidence would be or what purpose it would serve. Second, we were not satisfied that the evidence could properly be described as res noviter veniens ad notitiam, which is the only type of evidence that can properly be admitted after the closing of a proof. On the contrary, it appeared that the evidence had been available to the appellant before the proof. Third, no notice had been given to the respondents or to the court of the appellant's proposal to lead such evidence. Lastly, the motion came far too late, being made more than five years after the proof and more than twelve years after the date of the accident.

[7] On the merits of the case, the essential fact that the appellant had to prove was that, in line with his pleadings, he had sustained his injuries in the circumstances that I have described. The appellant spoke to that account; but his evidence was not corroborated. We need not go into the minutiae of the evidence and the detailed points on which there were conflicts. It is sufficient to say that the appellant's account was at odds with the evidence of Mr Sneddon, who was one of his witnesses, and of Professor Ian Bone, a medical expert called by the defenders.

[8] On the question of quantum, one of the factual issues concerned the date by which the appellant was fit to return to work.

[9] The basic question on which the action foundered was that of the appellant's reliability as a witness and the credibility of his account when it was considered in the light of all the circumstantial evidence. The sheriff found that the appellant was unreliable. The sheriff principal held that the sheriff had good reason so to find. The ground of appeal on this question is that the sheriff principal erred. He should have held that the sheriff's reasoning was unsatisfactory. The appellant submitted that the sheriff should have resolved the question in his favour.

[10] This is clearly a case where the sheriff enjoyed an advantage over any appellate court in having seen and heard the witnesses. The principles on which an appellate court may review findings in fact made at first instance are well established. They were laid down by the House of Lords in Thomas v. Thomas (1947 S.C. (H.L.) 45, per Lord Thankerton at 54 and Viscount Simonds at 47) and in Benmax v. Austin Motor Company ([1955] A.C. 370, per Lord Reid at 375-376), and were recently restated by the First Division in Caledonia North Sea v. London Bridge Engineering (2000 S.L.T. 1123, at 1165; 1170; 1210 and 1220).

[11] Applying these principles, we consider that we would not be entitled to substitute our judgment for that of the sheriff. The appellant has failed to satisfy us that the advantage enjoyed by the sheriff is insufficient to explain or justify his conclusion or that the sheriff failed to make proper use of that advantage. On the contrary, we consider that the sheriff's conclusion was adequately vouched by the evidence to which he and the sheriff principal have referred. Matters of credibility and reliability are pre-eminently matters for the court of first instance.

[12] The sheriff concluded that the appellant had not proved that the accident occurred in the way that he described. The sheriff principal held that the sheriff was entitled on the evidence to take that view. The ground of appeal on this point is that the sheriff principal erred. He should have held that there was independent evidence to support the appellant's account in the facts and circumstances spoken to by other witnesses, and in particular by Mr. Sneddon, Professor Bone and another medical witness, Professor Peter Behan. It is suggested in the ground of the appeal that the sheriff principal should have held that the matter was one which was at large for him to decide and that he should have substituted findings in favour of the appellant.

[13] The onus of proof rested with the appellant. He attempted to discharge it with his own evidence which was not corroborated by the evidence of any other witness. The sheriff's conclusion that the appellant was not a reliable witness led him to conclude that the appellant had failed to discharge the onus of proof.

[14] For the reasons that we have already given, we consider that the reliability of the appellant and the credibility of his account were questions that the sheriff was best qualified to decide. They are not matters into which we should venture on the basis of the transcript. We agree with the reasoning of the sheriff principal on this point.

[15] There was evidence that by November 1990 the pursuer was seeking other work. For this and other reasons, all of which had a foundation in the evidence, the sheriff concluded that the appellant was fit to return to work by that date. He assessed damages on that basis. The sheriff principal adhered to this assessment. The ground of appeal on this question is that the sheriff principal erred. The sheriff's finding was perverse.

[16] In view of our decision on the merits of the case, the present issue does not arise; but we consider that on this issue, too, for the reasons set out by the sheriff principal, the sheriff was entitled on the evidence to reach the conclusion to which we have referred.

[17] In the circumstances, the appellant has failed to persuade us that the approach taken by the sheriff principal to the findings of the sheriff was in any way erroneous. We shall therefore refuse the appeal.