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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> DSG Retail Ltd (t/a Currys) v. Poundstretcher Ltd & Ors [2003] ScotCS 321 (19 December 2003)
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Cite as: [2003] ScotCS 321
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DSG Retail Ltd (t/a Currys) v. Poundstretcher Ltd & Ors [2003] ScotCS 321 (19 December 2003)
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF T. G. COUTTS, Q.C. (Sitting as a Temporary Judge) in the cause D.S.G. RETAIL LTD t/a CURRYS Pursuers; against POUNDSTRETCHER LTD &c Defenders:
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Pursuers: McKay, Q.C., Donald; Simpson & Marwick, W.S.
First Defenders: Jones, Solicitor Advocate; Brechin Tindal Oatts
19 December 2003
Introductory
[1] Three actions were before this Court arising from the same event, i.e. a fire in the defenders' premises at Fort Kinnaird Retail Park, Edinburgh on 4 February 1996. That fire caused damage to the property of each of the pursuers who were the owners or occupiers of adjacent premises. The facts and circumstances and the pleadings were common to each action. They came before me on procedure roll in which the argument was presented in relation to the action at the instance of DSG Retail Ltd. It was agreed that the determination would apply to each.
The pleadings
[2] The pleadings for the pursuers were designed to support a case based on an inference that the fire was caused by a discarded light or cigarette dropped by an employee of the first defender, while acting in the course of employment. There was no dispute about the law relating to the term "believed and averred" as expounded in Brown v Redpath Brown and subsequent cases. Parties were agreed that the appropriate use was to invite the Court to draw an inference from a set of proved facts and circumstances. The pursuer's pleadings were as follows:
"There were no electrical faults which might have caused the fire. Further, portable electrical appliances used by the defenders have been examined and certified under the Electricity at Work Regulations by Pheonix Precision Electric Ltd., on 13th September, 1995 and were unlikely to have caused the fire. There were no heating devices used in the warehouse which might have caused a fire. The fire started in daylight hours in a busy retail park. It is unlikely that an act of arson would be committed in such circumstances. There was no evidence of any accelerants or other substances to suggest that the fire had been started deliberately. Only the first defenders' staff had access to the said warehouse. Security cameras monitor the first defenders' store. Staff of the first defenders smoked in the warehouse area in breach of the first defenders no smoking policy which provides that smoking is only permitted within the staff canteen. On 6th February, 1996, discarded used smoking materials were found within the ladies' and gents' toilets and the general office. A delivery had been made to the first defenders' premises on the 3rd February, 1996. The warehouse area was thereafter full of stock. The level of the damage caused within the warehouse area was such that any sign of smoking within the warehouse would have been destroyed by the fire."
The defenders' argument
[3] The solicitor for the defender attacked each and every averment above quoted as being insufficient to entitle the Court to draw the necessary inferences. Those, he stated were two, the first being that a fire was caused as averred and the second, that it was caused by an employee acting in the course of his employment. He argued that two inferences were involved to the first matter, that is that the fire was caused by a discarded light or cigarette and further, that that was discarded by a member of the first defenders' staff. He accepted that the averments of exclusion of electrical faults and heating devices were relevant to the first matter but insufficient to establish it and, in any event, that there was insufficient averment and no fair notice to support the pursuer's assertion that the fire was caused by the actings of a member of the first defender's staff.[4] In the second place, he argued that there were no facts and circumstances averred showing or tending to show that such an employee was acting in the course of his or her employment. Time, place and opportunity were not conclusive in that regard. The pursuer's cases, he argued, were perilled on the Court accepting that if an employee started the fire, it followed that he or she must have been acting within the scope of their employment.
Decision
[5] The pursuer argued that there were sufficient averments to entitle them to a proof before answer. I agree. Further, if the pursuer is able to establish that the fire was started by a careless employee, then the question whether that employee was acting in the course of his employment might, perhaps, be susceptible to an easy answer. Since the case of Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] AC 509, it is impossible to determine as a matter of pleading whether or not the smoking employee was acting outwith the course of his employment. It is a matter of fact in the circumstances in each case and that requires to be the subject of enquiry.[6] The pursuer's averments upon which the "believed and averred" is founded, have been examined in detail by the solicitor for the defender. I do not consider that I can go so far as to dismiss this action on the basis that those averments in the whole circumstances cannot amount to a sufficient basis for the view that the fire was caused by an employee. Every one of the pursuer's averments requires to be determined upon the balance of probabilities and the cumulative effect of the averments, if established would allow the necessary inferences to be drawn to support the averment at 12B. In that regard, the presence of various smoking materials, albeit found two days after the fire in the defender's premises, is of or may be of some relevance as well as the defender's own averment, that they had designated smoking areas. It is therefore not possible as the defenders have urged to exclude, the averments relating to smoking on the basis that the pursuers have not specified who the smoker was. Had the defender averred that none of their staff smoked at all, the situation might be different but that is not the case. The pursuer has sufficient averment to entitle the Court on the balance probability to exclude other causes. Pursuer's counsel can point to the time and the circumstances, point to the persons who did have access, and point to the presence of security cameras as an adminicle of evidence tending to negative the defenders' assertion that some passing stranger might have entered the premises and caused the fire.
[7] I would not be justified in dismissing these actions at this stage and each and every one of them require to be the subject of a proof before answer. I cannot say that if the pursuer establishes all or some of the matters averred, that a Court could not draw the inference the pursuer seeks. Whether a Court would after evidence be prepared to do so, is a different question and not one which can be answered at this stage.