Scottish Court of Session Decisions

Hunter & Ors v. Murray & Ors [2002] ScotCS 104 (11th April, 2002)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LADY SMITH in the cause MARGARET HUNTER AND OTHERS Pursuers; against WILLIAM MURRAY AND OTHERS Defenders:   ________________

 

 

Pursuers: Dorrian, Q.C., Davidson; Drummond Miller, W.S.

Second and Third Defenders: Stephenson; McClure Naismith

Fourth, Six and Seventh Defenders: Smith; Simpson & Marwick, W.S.

11 April 2002

1. It takes many people to stage a pop concert. On 2 August 1996, arrangements were under way for the staging of a concert led by the pop group "Oasis" at Balloch Castle Country Park, Balloch. Those on site included the first defender, who was a labourer, the third defender, [a partner in the second defenders] who was Site Manager, the fourth defender, who was Traffic Manager, the sixth defenders, who were concert organisers, the seventh defenders, who were the production crew, and the deceased [a relative of the pursuers] who was on site to deliver a lorry load of drinks to some of the bars that were being set up.
2. The foregoing summary can be gleaned from the pursuers' averments which were amended in the course of the debate so as to:
1. at p.15B, insert, after '..two vehicles.': 'The fourth defender instructed the first defender to move forward.';
2. at p.44A, delete in lines 1 and 2 from: '..in respect..' to '..responsible.'; and
3. at p. 61C-Ddelete from: 'He knew ..' in line 6, to: 'in any event', in line 11.
3. The lorry driven by the deceased had become bogged down on the site. A forklift truck, driven by the first defender, was determined on as the means by which the lorry was to be moved. The plan was to use the forklift truck to tow it, with the first defender driving the forklift. The maximum towing capacity of the forklift truck was 7 tonnes. The lorry weighed in excess of 30 tonnes. The pursuers aver that the fourth defender gave instructions to the first defender in the course of an attempt at the towing operation during which the first defender was driving the fork lift truck, and the deceased, who was on the ground between the two vehicles, was crushed. In particular, they aver as follows:

"The deceased stood between the fork lift truck and his HGV in order to tie a tow rope between the two vehicles. The fourth defender instructed the first defender to move forward. Suddenly and without warning the fork lift truck driven by the first defender reversed, pinning the deceased between the fork lift truck and his HGV. As a result the deceased suffered crushing injuries from which he died." [p.15]

4. In article 4 of Condescendence, the pursuers attribute the death of the deceased to various breaches of duty by the first defender at common law. The first defender denies that he was at fault and an account of the accident is averred on his behalf in terms that are at variance with the pursuers' account. He avers:

"The fourth defender told the first defender to attach a span set to the back of the fork lift truck. The deceased then went to attach the span set to the front of the HGV. The distance between the fork lift truck and the HGV was only a couple of feet. The first defender climbed into the fork lift truck. He then awaited the instructions of the fourth defender. The fourth defender instructed the first defender to move forward. The first defender started to move forward slowly. The connection between the two vehicles tightened and the fork lift slipped backwards. As a result the deceased was crushed between the two vehicles..............the deceased moved between his vehicle and the fork lift while the latter was in motion." [p.17]

5. The pursuers' response to the case advanced on behalf of the first defender is to aver an alternative case to the effect that if the accident happened in the manner averred by the first defender then it was attributable to the fork lift truck being used for an operation for which it was "patently unsuitable, namely the towing of a vehicle which weighed greatly in excess of its maximum towing capacity." [ p.15]
6. Consequent upon the introduction of the above alternative case, the pursuers introduced averments to the effect that the provision of the fork lift truck for the towing operation was, in the circumstances, a breach of the Provision and Use of Work Equipment Regulations 1992, S.I. 1992 No. 2932 Reg.5 in that the fork lift truck was being used for an operation for which and under conditions for which it was unsuitable [see: Reg. 5[3]]. A case was also averred to the effect that, since the first defender had no driving qualifications or training, there had been a breach of Regulation 9[1] of those Regulations. Those breaches were, it was averred, breaches for which both the first defender's employers and those who had control of the premises were responsible.
7. The case came before me on the Procedure Roll at the instance of the second, third, fourth, sixth and seventh defenders in respect of their preliminary pleas.

[I] Case against the Second and Third Defenders:

1. Second and Third Defenders' second plea in law: Mr Stephenson, Counsel for these defenders, indicated that it was now accepted that the pursuers' averments in respect of patrimonial loss and services were sufficient and that I should thus repel his second plea in law, which I do.

b. Second and Third Defenders' third plea in law: As regards his third plea in law, Mr Stephenson submitted that I should exclude from probation the words: "for whose acts and omissions the second and third defenders are vicariously liable," where they appear in Answer 3 for the first defender at p.16C-D. The reason given was that there were no averments in the pleadings to support a relationship which could give rise to such vicarious liability. The first defender was not represented at the hearing. His agents had withdrawn from acting in January 2002, the procedure set out in Rule of Court 30.2 had then been followed and I was advised that it was understood that he now had agents acting for him and was aware of these proceedings. In these circumstances, I am satisfied that it is appropriate to deal with the argument in the absence of the first defender. I consider that Mr Stephenson's submission is well founded and I shall exclude these averments from probation by sustaining the third plea in law for these defenders.

c. Second and Third Defenders' first plea in law: Mr Stephenson was content with a proof before answer in respect of the pursuers' case against the second and third defenders at common law but insisted in his first plea in law, which is to relevancy and specification, in respect of the statutory cases.

Alternative cases of fact:

2. Mr Stephenson submitted that the statutory cases pled against the second and third defenders were irrelevant for two reasons the first of which was that the breaches of Regulation 5 were based on a version of events put forward in the first defender's pleadings which was contrary to that averred by the pursuers. He argued that the case did not disclose circumstances which entitled the pursuers to put forward alternative accounts of the facts. The pursuers were, he submitted, seeking to present two inconsistent versions of the facts and that was not something that they were entitled to do. Reference was made to the cases of Clarke v Edinburgh and District Tramways Ltd 1914 SC 775, Smart v Bargh 1949 SC 57, M v M 1967 SLT 157, Valley v Wiggins Teape 1979 SLT [N] 50, Safdar v Devlin 1995 SLT 530, and Royal Bank of Scotland v Harper McLeod 1999 SLT [Sh Ct] 99, none of which, it was submitted, were on all fours with the present case. It was accepted that they were authority for the proposition that there was no absolute bar to a pursuer making alternative cases or taking a defender's averments and, in effect, turning them against him by averring an alternative case based on that defender's account of the facts. For, however, reasons which were not entirely obvious from the submissions made, it was not, it was said, appropriate to allow the pursuers to do so in the present case nor was it appropriate to allow them to do so to the extent of using one defender's version of the facts against other defenders as well.
3. In response, Miss Dorrian Q.C., for the pursuers, submitted that the approach of the second and third defenders to the pursuers' alternative case was wholly misconceived. She submitted that, on the authorities, a pursuer is entitled to plead alternative cases where he is justifiably ignorant of the precise facts and where the case is pled in response to a defender's averments. Leeway ought, as a matter of substantial justice, to be given to a pursuer where he has no means of direct knowledge as to how an accident happened. In this case, given that the victim of the accident died, there was ample justification for the pursuers having no direct knowledge of what occurred.
4. On the authorities, it is clear that the question which arises when a pursuer pleads cases based on alternative versions of the facts, is whether it is compatible with substantial justice to allow both cases to proceed. In Clarke v Edinburgh and District Tramways Co. Ltd, Lord President Strathclyde approved the observations of Lord President McNeill in the earlier case of Finnie v Logie 21D825:

"In certain cases it may be quite right that there should be alternative statements. There may be matters as to which the pursuer cannot be expected to be fully informed, and as to which it may be reasonable that he should be allowed to state an averment alternatively, and if the alternative statement in each of its branches be a relevant statement and ground of action and there appears to be a reason for not compelling him to limit himself to one of these at the time of bringing the action, then that is a relevant mode of stating a ground of action." [@ p.781]

In Smart v Bargh, Lord President Cooper commented:

"Now, it seems to me on the one hand, that there are many cases in which substantial justice not only permits but requires that a case may be stated alternatively on inconsistent averments of fact." [@p.61]

In Valley v Wiggins Teape Ltd, Lord Allanbridge allowed the stating of alternative cases in a case arising out the death of a workman, explaining:

"I should add that a further reason why I have decided to allow a proof before answer in this case is because it is a claim by relatives of a deceased workman. In such an action, whilst the relatives must aver a relevant claim, I consider the court is entitled to take into account in testing relevancy the fact that the same detailed knowledge of the facts of the accident may not be available to the relatives as would have been available to the deceased himself had he survived."

More recently, in Safdar v Devlin Lord Milligan commented:

"I see no sound reason whatsoever why the pursuer should not be allowed to aver the alternative case which she has to cover the eventuality of the defender's revised version of what happened being preferred to the pursuer's primary case, which she maintains, albeit that the respective cases are inconsistent on the facts and require different averments of fault ...." [@p.535]

Far from supporting the deletion of the pursuers' alternative case in the present action, these discussions firmly support its retention, in my view. It would be grossly prejudicial to the pursuers if, all parties having been put on notice by the first defender of the possibility that the facts of the accident might turn out, in evidence, to be different from the pursuers' initial understanding of them, the pursuers were to be prevented from pursuing any case of fault open to them were that eventuality to arise. The pursuers cannot reasonably be expected to have any direct knowledge of the circumstances of an accident which did not involve them and to which they were not witnesses. They are handicapped by the fact that the victim of the accident was killed as a result of it. I was urged by Mr Stephenson not to take a favourable view of the pursuers' case because, he stressed, all the defenders represented at the debate were in agreement that the accident was caused by the fault of the first defender. The unspoken suggestion seemed to be that that should be enough for the pursuers, despite the fact that the first defender denies liability. The admission by the second and third defenders of the fault of the first defender seemed to me, though, to be nothing more than a hollow concession on their part given that the second defenders deny having been the employers of the first defender at the relevant time. In short, I have no doubt that substantial justice is best served in this case by permitting the pursuers to plead the two alternative cases that are on record.

Cases under the Provision and Use of Equipment Regulations 1992 ['the 1992 Regulations']

The pursuers aver breaches of Regulations 5 and 9 of the 1992 Regulations. The provisions of Regulation 5 include:

".. [3] Every employer shall ensure that work equipment is used only for operations for which, and under conditions for which, it is suitable......

[4] In this regulation 'suitable' means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person."

The pursuers' case is to the effect that the description of the accident averred by the first defender is indicative of the cause of the accident being that the forklift truck was unsuitable for the task and thus, if it is established that that is the manner in which the accident occurred then there was a breach of Regulation 5 of the 1992 Regulations. As already noted, the first defender denies that the accident was caused by his fault and does not seek to blame the fourth defender. It is thus evident that his averments are designed to point to the cause being the nature of the operation that was being carried out. It was submitted by Mr Stephenson and, subsequently, by Mr Smith on behalf of the fourth, sixth and seventh defenders, that the pursuers' averments were not apt to cover a case that the forklift truck was unsuitable or that that unsuitability was the cause of the accident, even on the alternative version of events as drawn from the first defender's pleadings. The pursuers make various averments about the forklift truck:

"The forklift truck had a maximum towing capacity of seven tonnes. The deceased's vehicle weighed in excess of 30 tonnes at the time of the accident. The fork lift truck was accordingly not suitable for the task of towing the deceased's vehicle." [@p.15B]

"Explained and averred that esto the fork lift truck slipped backwards as is averred by the first defender then it did so as a result of being used for an operation for which it was patently unsuitable, namely the towing of a vehicle which weighed greatly in excess of its maximum towing capacity."

[ @p.15D - E]

"It was not suitable for the operation for which it was used, namely towing the deceased's HGV. The towing capacity of the fork lift truck was many times lower than the weight of the deceased's HGV. It was reasonably foreseeable that using the fork lift truck to tow the HGV would endanger the health and safety of persons in the vicinity. On the hypothesis of fact advanced by the first defender ......the fork lift truck slipped backwards as a result of being used for an operation for which it was patently unsuitable, namely the towing of a vehicle which weighed greatly in excess of its maximum towing capacity." [ @ p.41B, 45C, 49D, 52E -53B, and 57B- C].

Those averments are made against a background of the first defender having averred, as already quoted, that the accident happened due to the fork lift truck slipping backwards when the tow connection between the two vehicles first tightened.

5. Mr Stephenson submitted that there were no "proper" averments that the forklift truck was unsuitable so as to bring the pursuer's case within the provisions of Regulation 5. It is, in my opinion, patently obvious that the pursuer is offering to prove that the disparity between the weight of the HGV and the towing capacity of the fork lift truck was, on the first defender's hypothesis, responsible for the accident and that, accordingly, the forklift truck was unsuitable for the job, in breach of Regulation 5[3]. I could not, at this stage, rule out the possibility of that being established in evidence nor could I rule out that, after an examination of the facts in evidence, it may become clear, as was urged by Miss Dorrian, on behalf of the pursuers, that there was a clear risk to health and safety arising from that disparity, given the nature of the task that was being attempted. It was, she submitted, akin to seeking to have a mouse pull an elephant and the risk of harm to those in the vicinity arising from rebound of the mouse was obvious. Whilst I am not entirely convinced, on the averments, that that risk would have been obvious, I have come to the view that those averments are relevant and sufficient for enquiry. They are certainly, in my opinion, capable of supporting a case of unsuitability arising from the disparity between towing capacity and weight and of that unsuitability being the cause of the accident. The defenders cannot seriously be in any doubt that that is the case of which the pursuers give notice.
6. The case under Regulation 5 against the second defender follows upon the pursuers' averment that the first defender was employed by the second defender. The case under Regulation 5 against the third defender arises differently. He was not the employer of the first defender. It is averred that he was Site Manager of the locus and therefore in control of it. It is also averred that he organised the hire of the fork lift trucks, kept the keys of them and was responsible for allocation of them for use on site [@p.13B-C]. In terms of Regulation 4 of the 1992 Regulations, the requirements of Regulation 5 apply not only to employers but also to others including:

"2...[b] ..any person who has control, to any extent, of non-domestic premises made available to persons as a place of work, in respect of work equipment used in such premises by such persons and to the extent of his control;"

Regulation 4 further provides that:

"Any reference in paragraph 2[b] to a person having control of any premises or matter is a reference to the person having control of the premises or matter in connection with the carrying on by him of a trade, business or other undertaking [whether for profit or not]."

A question arises as to the interpretation of Regulation 4. Mr Stephenson for the second and third defenders submitted that the Regulation 5 duties were only imposed on a non employer by Regulation 4 if that person had control of work equipment. It was not enough that he had control of the premises or part of the premises. On behalf of the pursuers, Miss Dorrian submitted that on a proper interpretation of Regulation 4, the only control required was control, to some extent, of the premises and such control was averred in this case by virtue of the third defender being Site Manager. In any event, even if what was required was control to some extent of the equipment, the pursuers also averred such control. Reference was made to the averments at p.13B-C as being to that effect.

7. The 1992 Regulations have, since the accident in this case, been superseded by the Provision and Use of Work Equipment Regulations 1998 ["the 1998 Regulations"] in terms of which it is clear that the requirements of the regulations apply not only to employers but also to persons who have control, to any extent, of, work equipment, those who use it at work, or the way in which it is used at work [Regulation 3 of the 1998 Regulations]. The clarity provided by the 1998 Regulations is, sadly, absent from the 1992 Regulations. A simple reading of Regulation 4[2][b] leads readily to the conclusion that the critical issue is whether or not a person has any control over premises. When, however, the later part of the Regulation is considered, in particular the reference to control of some "matter", it does seem that the drafter of Regulation 4[2][b] had in mind that the person required to have control of both premises and equipment used in or on those premises, to some extent. The use of the word "matter" at that part of the Regulation would be redundant if it were not that subparagraph 2[b] were meant to refer to control, to some extent, of both premises and equipment.
8. I would, accordingly, reject the pursuers' submission that all that is required is for a non employer to have control, to some extent, of the relevant premises for the obligation to comply with Regulation 5 to arise. I am, however, persuaded that the pursuers have sufficient averments to the effect that the third defender had control, to a significant extent, of the fork lift truck, so as to render relevant the case against him based on a breach of Regulation 5 of the 1992 Regulations.
9. The pursuers also aver breaches of Regulation 9[1] of the 1992 Regulations which is in the following terms:

"Every employer shall ensure that all persons who use work equipment have received adequate training for purposes of health and safety, including training in the methods which may be adopted when using the work equipment, any risks which such use may entail and precautions to be taken".

The averments of breach of Regulation 9[1] apply only in the event that the pursuers' case that the accident occurred due to the fault of the first defender is established. It is averred that there was a breach of Regulation 9[1] in respect that the first defender had received no training in the operation of the fork lift truck. There are no averments as to what training would or should have been given to the first defender nor are there any averments as to how it was that a lack of training caused or materially contributed to the accident. The pursuers simply aver:

"The first defender used the fork lift without first having received any training in the operation thereof. The second defenders thus failed in their statutory duties and by their failures caused or at least materially contributed to the accident." [ p.41D]

The same averments are made in respect of the third, fourth and sixth defenders. Mr Stephenson submitted that, on the pursuers' pleadings, breaches of Regulation 9[1] could not be said to be the cause of the accident since there was no averment that any particular lack of training was responsible for the driver error which occurred. In response, Miss Dorrian submitted that it was obvious that there would be a greater risk from an untrained driver. For relevancy purposes, it was enough to aver that the accident happened through the fault of the driver and that the driver was untrained.

10. I am not persuaded that it is enough for the pursuers simply to aver that the driver was untrained and to make no attempt to link that lack of training to the way in which this accident occurred. The problem with the pursuers' approach is that it ignores that, fallibility being inherent in the human condition, it is possible for a normally competent and trained individual to be negligent. Lack of training is not necessarily the reason why an accident occurs. Thus, a driver, though normally competent, may be guilty of causing an accident through negligent inattention even although he had been properly trained to be attentive at all times. To make a relevant case based on lack of training, a pursuer would, in my opinion, have to offer to prove that the accident happened due to something that the first defender did or failed to do that probably would not have occurred if he had been trained. If, for instance, the pursuers had been able to aver that the accident happened because, due to a lack of training as to an unusual layout and/or marking of the gears, the first defender put the truck into reverse when he thought that he was putting it into a forward gear, that would have amounted to a relevant case under Regulations 9[1], in my opinion. The present averments cannot, however, be regarded as being in anything like the same category. They are nothing more than bald assumption that somehow training would have made a difference and I shall refuse to allow them to be admitted to probation.

[II] Case against Fourth Defender:

11. There are cases against the fourth defender both at common law and under the 1992 Regulations. Mr Smith, counsel for the fourth defender submitted that all cases should be dismissed as irrelevant. Contrary to Mr Stephenson, he accepted that the pursuers were, in the circumstances, quite entitled to plead alternative cases but his principal submission was that the pursuers entire case was irrelevant because there was no proper and clear averment of fact as to how the accident happened on either the pursuers' version or the esto case pled under reference to the first defender's averments. No proper averment linked any breach of duty, whether common law or statutory, with the circumstances of the accident. There was, he submitted, simply insufficient in the pleadings for proof on any basis.

a. Common law case: The pursuers aver that the fourth defender was in breach of his common law duties not to instruct the first defender to drive the fork lift truck without first checking that he was qualified to do so and not to instruct him to move it whilst the deceased was positioned between the two vehicles. Mr Smith submitted that the former [a case which only arises for the pursuers on the esto basis founded on the first defender's averments] was a "duty too far" in respect that it seemed to require the fourth defender, who was not the first defender's employer, to instigate an investigation and to do so in circumstances where, on the pursuers' own averments, the first defender had been driving around the site for two days prior to the accident, the pursuers not suggesting that there was anything defective in the manner of his driving over that period. As regards the latter, he submitted that there was a fundamental problem in that it was impossible to tell, from the pleadings, precisely what had happened. In response Miss Dorrian submitted that the duty to check the first defender's qualification was not a "duty too far" because it was not a matter of suggesting that there should have been a "stop and search" policy. It was rather a matter of the fourth defender, as traffic manager, taking upon himself the responsibility to take care to see that the fork lift truck driver was properly qualified.

12. It is not difficult to accept that someone described as "traffic manager" for the event described on record would have responsibility for traffic safety on site and so would be expected to take reasonable care to see to it that those driving on the site did so in a safe manner. I do not, however, consider that in the circumstances of this case as averred, the traffic manager would be obliged to check whether every fork lift truck driver was qualified, particularly where they were employed by someone other than him or his employer. He would, in my opinion, be entitled to expect individual employers to have checked the qualifications of their employees. Had the first defender been observed driving in an unsafe manner around the site prior to the accident it might have been reasonable to expect the traffic manager to make enquiries as to his level of qualification but the absence of any such averment in the part of the pursuers' pleadings which refer to his prior driving on site gives rise to the inference that there was, on the contrary, nothing about his driving to give cause for concern. It would not, in my opinion, have been reasonable to expect the fourth defender to check that the first defender was qualified to drive the fork lift truck. I shall, accordingly, not allow the averments in Article 10, in support of that case [p.61D] to be remitted to probation.
13. As regards, however, the case to the effect that the fourth defender had a duty to refrain from instructing the first defender to move the fork lift, the pursuers have, in my opinion, sufficient relevant averments on record in support of it.
14. Statutory cases: The pursuers aver that the fourth defender was in breach of Regulation 5[3] and 9[1] of the 1992 Regulations, on the basis that, as traffic manager, he was in control of the locus. It is also averred that he was instructing the first defender in the use of the fork lift truck at the time of the accident.
8. Mr Smith submitted that there were insufficient averments to the effect that the fork lift truck was unsuitable in terms of the Regulations and his argument was met by Miss Dorrian with the same response as to the criticisms levelled on behalf of the second and third defenders. For the same reasons as I rejected those criticisms, I would reject Mr Smith's submissions on this matter. The pursuers' averments clearly instruct a sufficient and relevant case that the fork lift truck was unsuitable in terms of Regulation 5[3] of the 1992 Regulations, in my opinion. For completeness, I would add that the case based on a breach by the fourth defender of Regulation 5[3] is relevant because although the fourth defender was not the employer of the first defender, as traffic manager directing him in the use of the fork lift truck at the relevant time, he clearly had some control of the relevant equipment, in terms of Regulation 4[2][b].
9. As regards, however, the pursuers' case against the fourth defender under reference to Regulation 9[1] of the 1992 Regulations, I am of the view that it is irrelevant for the reasons already discussed and I shall not allow the averments in support of it to be remitted to probation.

[III] Case against Sixth Defender: The case against the sixth defenders is purely statutory, under reference to Regulations 5[3] and 9[1] of the 1992 Regulations. The pursuers aver that they were "the organisers of the concert and as such had control of the locus." Nowhere are there any averments which could, in my opinion, be interpreted as an offer to prove that the sixth defenders were, to any extent, in control of the fork lift truck. Nor is it averred that the sixth defenders were employers of either the first or fourth defender. In short, the pursuers' statutory case against these defenders is based solely on an averment to the effect that they had control of the premises. In these circumstances, the case against the sixth defenders is, in my opinion, irrelevant, for the reasons already discussed. I shall, accordingly, sustain the sixth defenders' first plea in law and dismiss the case against them.

[IV] Case against Seventh Defenders: This case arises from the second and third defenders' averments in Answer 3 [@p.23E-24B] in response to the pursuers' averment that the first defender was an employee of the second defender. The second and third defenders' averments are as follows:

"The second defenders supplied the first defender as a labourer to the production crew on the date of the accident. The first defender was at all material times under the supervision and control of the production crew. He worked to their instruction generally unloading and carrying equipment."

The pursuers' response is in Article 11 of Condescendence, where they aver:

"On the hypothesis of fact advanced by the second and third defenders in Answer 3, which is not known and not admitted, the first defender was at all material times a labourer working to the direction and under the control of the concert production crew, namely the seventh defenders."

Thus the pursuers seek to advance a case of employment pro hac vice against the seventh defenders in the event of the second and third defenders being successful in establishing their case that the first defender had been supplied to the production crew and was working to their direction at the relevant time. The pursuers' earlier averments about the production crew are in slightly different terms. In Article 3 of Condescendence, they aver that the seventh defenders "organised the production crew for the concert". The differences in averment are capable of being explained by semantics and are not, in my opinion, so significant as to amount to irrelevancy. Miss Dorrian indicated that the pursuers position was as averred in Article 11, namely that they were offering to prove, if the esto case arose, that the production crew referred to by the second and third defenders was in fact the seventh defenders and I see no reason why, on the case as pled, the pursuers should not be entitled to seek to do so. I am reinforced in that view when account is taken of the fact that these defenders, whilst denying that they were the production crew, choose to avoid explaining who they were and that is despite their volunteering information about the sixth defenders and about Cathouse Productions Ltd and Lettuce Inns Ltd, companies which are not parties to these proceedings.

10. Mr Smith, on behalf of the seventh defenders, whilst not attacking the second and third defenders' averments [despite the criticism of them that is implicit in his own pleadings at p.66C-D], submitted that the averments were insufficient to support a case of pro hac vice employment. He referred to the following authorities: Munkman: Employer's Liability - 13^th Edition @4.65, 4.67, and 4.68, Mersey Docks and Harbour Board v Coggins and Griffiths [Liverpool] Ltd 1947 AC1, Malley v London, Midland and Scottish Railway Company 1944 SC129, and Moir v Wide Arc Services 1987 SLT 495.
11. It was, he submitted, evident from them that the onus of establishing that a defender is liable for the negligence of a person not employed by them, through the application of the principles of employment pro hac vice, is a heavy one. Further, whether or not the principle applies depends on the facts and circumstances of the case. On the averments it was, he submitted, very hard to see how it could be said that the seventh defenders were in control of the first defender at the relevant time albeit that it might be said that the fourth defender had the requisite control, he being the person who, according to the pursuers, was directing the first defender in his movement of the fork lift truck at the time of the accident.
12. In response, Miss Dorrian submitted that it was important to bear in mind the distinction between facts that would have to be proved to establish a relationship of employment and those which would have to be proved to establish vicarious liability on pro hac vice principles. The latter, she stressed, were designed only to so as to attribute vicarious liability to an otherwise non- employer and thus not all the incidents of the full employer/employee relationship need necessarily be present. The major factor was generally that of control and, drawing on the second and third defenders' averments for the pursuers' esto case against these defenders, there was ample by way of averment on which to base a case that sufficient control had been relinquished by the second defenders for the principle to apply, given that this was a case of transfer of an employee without equipment.
13. The observation that the onus of establishing a transfer of employment pro hac vice is a heavy one, is a fair one on the reading of the authorities. Equally, it is the case, in my opinion, that control is the major factor and that it easier to establish a transfer of control where an employee has been transferred without equipment. That is, though, precisely what the second and third defenders, on their averments on this matter, seek to establish. It is significant that control or fault on the part of the fourth defender does not form any part of their case. They seem simply to be saying that the accident was caused through the fault of the first defender and, at the time of the accident, the first defender was nothing to do with them as his services had been supplied to the production crew who were wholly in control of instructing him in his work. The authorities relied on by the seventh defenders all appear to concern cases which were determined after proof and caution requires to be exercised not to confuse the testing of averments for relevancy with the evaluation of evidence after proof. In my opinion, the pursuers averments on this matter are clearly relevant. Indeed, it would be wholly inequitable to deprive the pursuers of the opportunity, if they require it, of seeking to establish the case that they aver in Article 11 whilst leaving it open to the second defenders to seek to escape vicarious liability on that same basis. That would be the result if I acceded to the seventh defenders' submission that the case against them should be dismissed as irrelevant. I am not persuaded that it should.

Conclusion:

In the result, I shall:

• repel the second and third defenders' second plea in law
• sustain the second and third defenders' third plea in law
• sustain the second and third defenders' first plea in law but only to the extent of excluding from probation the pursuers' averments in support of the case based on a breach of Regulation 9[1] of the 1992 Regulations. Otherwise I shall allow a proof before answer in respect of the case against the second and third defenders.
• sustain the fourth defender's first plea in law but only to the extent of excluding from probation [a] the averments in support of the common law case that the fourth defender should have ascertained whether or not the first defender was qualified to drive a fork lift truck; and [b] the averments in support the case based on a breach of Regulation 9[1] of the 1992 Regulations. Otherwise, I shall allow a proof before answer in respect of the case against the fourth defender.
• sustain the sixth defenders' first plea in law and dismiss the action insofar as laid against them.
• allow a proof before answer in respect of the case against the seventh defenders.