Scottish Court of Session Decisions

Smith v. Goldthorpe & Ors [2002] ScotCS 60 (6th March, 2002)

OUTER HOUSE, COURT OF SESSION
A2961/01	OPINION OF LORD WHEATLEY in the cause GILLIAN A SMITH Pursuer; against (FIRST) ANTHONY GOLDTHORPE, (SECOND) ALISON GOLDTHORPE, (THIRD) MAUREEN GOLDTHORPE AND (FOURTH) NICHOLAS GOLDTHORPE Defenders:   ________________

 

 

Pursuer: Bell; Digby Brown

Defenders: Springham; Dundas & Wilson, C.S.

6 March 2002

1. The pursuer seeks damages for an accident that happened to her in May 1992 at a camp site owned by the defenders. While the pursuer was camping at the site she went to help other people to protect a tent which was being damaged in the wind. The fourth named defender also arrived to help driving a pickup truck which the pursuer says that she believes and avers belonged to the defenders. The rear of the pickup was covered by a fibreglass canopy. The wind blew the canopy off the truck and on to the pursuer who suffered injury as a result. The pursuer's case on Record as regards the cause of the accident is in two parts. Firstly, the pursuer believes and avers that the canopy did not fit properly on to the vehicle. Secondly, it is said that if the canopy was fitted properly on to the vehicle it is believed and averred that the clips which attached the canopy to the chassis were not properly fastened. The pursuer further avers that canopies which are properly fitted and securely fixed do not in the ordinary course of use become detached from pickup trucks by winds of less than 30mph. The case came out for debate and defenders' counsel argued in support of her first plea-in-law that the action should be dismissed, and presented six grounds of argument as to why the case should be dismissed at this stage.
2. Firstly, defenders' counsel submitted that there was considerable confusion about the identity of the parties sued. The action is raised against each of the four defenders as individuals and as partners in a partnership. In Condescendence 1 the pursuer believes and avers that the defenders or some of them are members of the partnership. In response the defenders indicates that the first and third defenders were the sole partners in the business operated at the camp site. There was no basis for the statement in the first sentence in Article 3 of the Condescendence that the accident was caused by the fault and negligence of the defenders' partnership and separately any of the defenders or partners for whom the partnership is vicariously liable. Further, the second and third pleas-in-law seem to attribute fault only to the first and fourth defenders. In response the pursuer's counsel sought to amend his pleadings at the bar by adding a general denial at the end of Article 1 of Condescendence and by deleting all references to the first and fourth partners in particular in the second and third pleas. This undoubtedly goes some way to resolving the unfortunate confusion which the pursuer's averments originally presented. Should these amendments at the Bar be allowed it would appear to be the case that the defenders are sued individually or as member of the partnership on the basis of the ownership of the truck. It is still unclear as to whether the truck is owned by the defenders as individuals or as partners but while that is unfortunate and undesirable I do not see that it is a reason at this stage for dismissing the action.
3. The defenders' second submission was based on what appeared to be the pursuer's first factual hypothesis, namely that the canopy of the pickup truck could not be fitted properly. In these circumstances it was inappropriate for the pursuer to maintain as she did in Article 2 of Condescendence that they "believed and averred that the canopy did not fit properly on to the rear of the vehicle". Reference was made to Brown v Redpath Brown & Company Limited 1963 S.L.T.219 and Strathmore Group Ltd v Credit Lyonnais 1994 S.L.T.1023. Defenders' counsel submitted that there required to be a factual averment which allowed for such an inference to be made. In reply pursuer's counsel argued that the pursuer was not in a position to say how this particular accident had happened after it had occurred. Once the canopy had become detached from the pickup it had to be a matter of inference as to how that had happened. The defenders also submitted that there were no averments that the pursuer knew or ought to have known that the canopy was defective. It does seem to me that there is considerable force in this submission. However, in reply the pursuer has averred that the defenders knew or ought to have known that if the canopy did not fit properly it might blow off (Article 3 of Condescendence at p.7D-E of the Closed Record). While this does not properly focus on the issue, I think that the averments are sufficient to suggest that the pursuer's case in this respect is that the canopy did not fit properly on the rear of the vehicle and that the defenders knew or ought to have known that if this was the case there might be an accident. In particular it is suggested that the defenders knew or ought to have known that in such circumstances the canopy might be blown off in a light wind. Although, as I have indicated, the duties of care thus described do not properly focus on the defenders' state of knowledge at the material time, I consider with some hesitation that there is just sufficient notice given to the defenders of the case which the pursuer is trying to make.
4. The third submission made by counsel for the defenders was related to what she described as the second factual hypothesis put forward by the pursuer. It is said that if the canopy was properly fitted to the vehicle then the clips which were used to attach the canopy to the truck were not properly fastened. Again in general terms the same submissions were made as under the first factual hypothesis. There was no averment or specification in the pleadings that the clips were in fact improperly or incorrectly fastened. Again, in response, pursuer's counsel maintained that once the accident had happened, the circumstances of the incident precluded any investigation with the precise cause into what had happened. Further it was clear that if there was a defect in the way in which the canopy was attached to the truck, it should have been obvious to those that owned the truck that the wind might blow the canopy off. While I have considerable sympathy with the defenders' submissions, again I have with some reluctance concluded that there is sufficient notice given to the defenders by the pursuer of the case which is to be pled. I think in this respect it is necessary to assume that the pursuer proposes to demonstrate in the course of her proof that the only two possible causes of this accident were that the canopy did not fit properly to the rear of the vehicle or that the canopy was not properly fastened to the vehicle by the clips, that these are the only inferences that can be drawn from the fact that the canopy blew off in the circumstances, and that the defenders as owners of the truck are either individually or collectively responsible for what happened.
5. Defenders' counsel's fourth submission was concerned with the averments on Record concerning the speed of the wind. In Condescendence 2 the pursuer believes and avers that the wind was less than 30mph. In Article 3 of Condescendence (at p.7C) it is averred that "Applecross Peninsula is a windy place. It frequently experiences strong winds". In these circumstances the pursuer then goes on to aver that the defenders knew or ought to have known that a relatively light fibre glass canopy could, when used in Applecross, be vulnerable to being blown off a truck causing injury to persons or property nearby. These averments did not seem to be supported by the earlier allegation that the winds at the time were less than 30mph. There is no averment that the canopy blew off regardless of the question of fitting or fastening. There were therefore no relevant averments concerning the basis for the averments by the pursuer of knowledge on the part of the defenders that the canopy would be blown off the truck when used at Applecross. The pursuer's counsel did not effectively respond to this submission and in my view it is well founded. While I accept that it is relevant for the pursuer to aver that the locality is one which suffers from strong winds, I do not think that the pursuer has properly recorded an averment or duty of care based on the alleged knowledge of the defenders that a relatively light fibre glass canopy could be liable to be blown off a truck without any other definition of the duties of care that are involved. This, in my view, is underlined by the further averment made by the pursuer in this respect to the effect that in particular it was the defenders' duty to check the manufacturer's specifications to ensure that the canopy was reliable for use in Applecross. Counsel for the pursuer specifically accepted that this averment was irrelevant. The submissions made by defenders' counsel under her fifth head were related to this topic. In all the circumstances I think it is appropriate to delete the fifth, sixth and seventh sentences in Article 3 of the condescendence.
6. The sixth head of argument submitted by defenders' counsel was concerned with what appeared to be on the face of the pursuer's pleadings a case of res ipsa loquiter. I think that the apprehension of defenders' counsel that such a case was being pled can clearly be understood from the third last sentence in Article 2 of Condescendence which avers that "such canopies properly fitting and securely fixed do not in the ordinary course of use become detached from pickup trucks by winds of 30mph or less". These submissions were plainly of substance but again pursuer's counsel accepted that no such case was intended, and accordingly it is sufficient for me to note at this stage that the defenders do not have such a case.
7. In all the circumstances therefore I have with considerable hesitation allowed a proof before answer. I shall allow pursuer's counsel to make all of the various amendments he suggested in the course of his submissions as well as deleting from the Record the averments I have noted above. It only remains for me to record that I have not dealt with expenses of the action, and to observe that the succinct and lucid submissions by counsel appear to be in marked contrast to the confused state of the pursuer's pleadings and the extraordinary delay in pursuing the action.