Scottish Court of Session Decisions

Hislop v. Lynx Express Parcels [2003] ScotCS 98 (3 April 2003)

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Osborne Lord Weir	XA152/02 OPINION OF THE COURT delivered by LORD WEIR in APPEAL From the Sheriffdom of Lothian and Borders at Edinburgh   in the cause THOMAS HISLOP Pursuer and Appellant; against LYNX EXPRESS PARCELS Defenders and Respondents: _______

 

 

Act: Ivey, Q.C.,; Allan McDougall (Pursuer and Appellant)

Alt: Hofford; HBM Sayers (Defenders and Respondents)

3 April 2003

1. The pursuer was injured in the course of his employment with the defenders. He was driving a heavy goods vehicle in Fife when he observed that a warning light had come on indicating a problem with the radiator. He stopped the vehicle and went to inspect the radiator. He observed water trickling from the top of the radiator. As he was looking, according to his evidence, the radiator cap came off. He had not touched the cap. Scalding water from the radiator struck him causing him to receive burns in various parts of his body. His claim for reparation was based on an alleged breach of Regulation 6 of the Provision and Use of Work Equipment Regulations 1992. This regulation provides as follows:

"6. Every employer shall ensure that the work equipment is maintained in an efficient state, in efficient working order and in good repair."

It was averred that by reason of the ejection of the filler cap from the radiator, the work equipment of the vehicle of which the cap was part was not maintained in an efficient state, in efficient working order and in good repair.

2. After proof the sheriff assoilzied the defenders because in his judgment the pursuer had failed to prove that the accident had occurred in the manner averred and consequently that he had failed to prove a breach of statutory duty by the defenders. At the proof the pursuer gave evidence in terms which supported the averments made on record. He was the only witness to speak to the circumstances of the accident. His account to the effect that the radiator cap spontaneously blew off was contradicted by two witnesses, Allan and Pope, who were led on behalf of the defenders. They were, respectively, the transport engineer and a mechanic employed by the defenders. Their evidence was that the radiator cap could not have blown off spontaneously and they gave reasons for that view. Pope's opinion was that the pursuer must have interfered with the cap causing it to come off. There was thus a conflict of evidence. The sheriff stated that he preferred the evidence of the defenders' two employees and was therefore not prepared to find that the accident happened in the way averred by the pursuer.
3. The pursuer appealed to the sheriff principal. In broad terms the submission made on his behalf was that the line of evidence adduced on behalf of the defenders, which was accepted by the sheriff, was not covered by their pleadings and that it had been properly objected to at the time. The sheriff principal concluded that the evidence given by Allan and Pope should not have been admitted and, if admitted, should have been disregarded. He then examined the case on the basis that the pursuer's account should have been accepted but affirmed the decision of the sheriff because he did not consider that a breach of regulation 6(1) had been proved.
4. In this situation we have had to consider two appeals. The first is by the pursuer who submitted that on the basis of the pursuer's account, which he accepted, the sheriff principal should have held that there had been a breach of Regulation 6(1). The cross appeal is by the defenders against the sheriff principal's finding that the defenders' evidence was inadmissible and should have been disregarded. We propose to examine first the merits of the cross-appeal.
5. In considering whether or not the evidence for the defenders should have been considered by the sheriff it is necessary to examine the pleadings. The pursuer averred as follows:

"He was close to Crossgates when he noticed that the warning light came on in the cab of his vehicle. Said light indicates that there may be a problem with the radiator. The pursuer stopped the vehicle and turned off the engine. He lifted up the radiator grill and saw that water was flowing from the filler cap area. The pursuer did not touch the filler cap and began to close the radiator grill. Suddenly and without warning, the radiator cap blew off covering the pursuer with scalding water and resulting in the loss, injury and damage hereinafter condescended upon."

In reply the defenders averred:

"Not known and not admitted that as he was driving the vehicle he noticed that the warning light came on. Not known and not admitted that the pursuer stopped the vehicle and switched off the engine. Not known and not admitted the nature and extent of the pursuer's movements. Not known and not admitted that the radiator cap blew off. Not known and not admitted the nature and extent of any injury suffered by the pursuer. Quad ultra denied."

The defenders made further averments to the effect that there was no indication of a problem with the radiator, apart from a minor leak which had been dealt with at an inspection the day before the accident, and that after the accident no faults of any kind were detected. The scope of the defenders' case was therefore restricted to showing the satisfactory condition of the radiator and cooling system both before and after the accident. In this situation it was for the pursuer to prove that he was injured as a result of the radiator cap blowing off without him having touched it. In the state of the pleadings it was not legitimate for the defenders, whether by cross-examination of the pursuer or by the evidence of their witnesses, to seek to lead evidence to demonstrate that the accident could not have happened in the way the pursuer alleged. If they wished to do this their pleadings should have contained a denial, followed by averments of the reasons why the accident could not have happened in that way. Our attention was drawn to passages in the Notes of Evidence where there were early signs that the defenders were seeking to develop a case not covered by their pleadings. In the cross-examination of the pursuer the solicitor for the defenders asked him if he was aware of a second cap on the radiator designed to relieve pressure on the radiator (page 31). The pursuer was asked if he saw whether the cap itself showed signs of damage after the occurrence (page 35). He was asked if considerable pressure was needed to blow off the cap if it had been secured properly in the first place (page 35). Finally he was asked to comment on possible evidence from an engineer showing that the cap could not have shot off in the manner described by him (page 39). The strategy of the defenders became more evident when the evidence of Allan and Pope was led. The first sign came in Allan's evidence when he was asked if some leakage had been seen at the cylinder heads of the engine and whether that could be a cause of the cap flying off (page 53). It became manifest when he said (page 67) that a rubber hose connected to the radiator would give way under pressure sooner than the cap and moreover that if the cap had blown off signs of damage would be observed. On inspection there were no such signs. The point that was being made by this witness was that the accident could not have happened in the manner described by the pursuer. Indeed he said that the cap could not have come off without someone "physically removing it". This evidence was corroborated by Pope.

6. The sheriff had regard to such evidence in reaching his decision. He concluded:

"I preferred the evidence of the defenders' two employees and have not found that the accident happened in the way averred by the pursuer."

7. In our opinion the sheriff was not justified in reaching this conclusion. In particular, he should have disregarded the evidence of Allan and Pope since this was not in any way covered by the defenders' pleadings. The only material before him as to how the accident happened was the account given by the pursuer. It is significant that the sheriff did not disbelieve the pursuer. He described his evidence as having been given in a straightforward manner and pointed to certain "helpful indicators" as supporting his case. The only reason for not accepting the pursuer's account was that he preferred the evidence led by the defenders which, as we have said, was not properly before him. In our view, and in full agreement with the sheriff principal, the sheriff should have proceeded to determine the case by accepting the only admissible evidence before him, namely the pursuer's account of what happened.
8. Counsel for the defenders conceded that none of the evidence upon which the sheriff founded was covered by their pleadings. He submitted, however, that the material could properly be taken into account since the solicitor for the pursuer had not objected, or at least effectively objected, to the line of evidence. In the absence of such objection she must be deemed to have waived her right to object.
9. It is well established that an objection to a line of evidence should be made at the time when the point arises and that a failure to do so may give rise to an inference of acquiescence in the leading of such evidence. This can occur in particular where the evidence in question is founded on a case which is not pleaded by one of the parties (McGlone v. British Railways Board 1966 S.C. (H.L.) 1). Before the sheriff principal and before us it was submitted that no effective objection had been taken to the evidence of Allan and none at all to the evidence of Pope. Counsel also founded on the absence of any objection to some questions asked by the sheriff of Pope which could be interpreted as supporting the defenders' case.
10. The concept of an "effective" objection is not self-evident. The question must always be whether, in a given situation, it has been made clear to the court that a line of evidence is regarded as objectionable and that, in our opinion, can only be determined by an examination of the circumstances of each case. Of course total silence or continuing silence in the face of plainly objectionable evidence may well give rise to an irresistible inference of acquiescence but sometimes it is difficult for a pleader to foresee, whether, in the cross-examination of his witness by his opponent or the leading of his opponent's testimony, where the case may be going. The timing of an objection may be difficult to judge. So we agree with the sheriff principal when he said

"What will amount to sufficient objection such as to refute any suggestion that a party has waived his right to object to evidence which is otherwise inadmissible will usually, I suspect, be a matter of fine judgment."

In our opinion no absolute rule can be laid down and, as we have said, it is necessary to proceed by examination of the circumstances of each case.

11. A study of the Notes of Evidence shows that the solicitor for the pursuer was alert to the limitations in the defenders' pleadings and to the attempts by their solicitor to transgress. She objected when the pursuer was asked in cross-examination about the second cap being designed to deal with pressure on the radiator and this objection indeed was sustained by the sheriff. She attempted to object to a further question to the pursuer about the degree of pressure required to blow off a properly secured cap, but this was repelled. When Allan was giving evidence she again objected to a line of evidence pointing out that nowhere on record was it suggested that the accident did not occur as averred (page 54). This objection was also repelled. Finally she protested at a line of evidence from Allan which clearly was intended to refute the pursuer's account of the accident (page 66) only to be rebuked by the sheriff for intervening during the course of the witness's answer. Counsel for the defenders founded strongly on the fact that the supporting evidence of Pope (including evidence prompted by questions from the court) was not made the subject of any objection. We do not find it altogether surprising that in what appears to have been a somewhat discouraging atmosphere, she did not attempt to object to that evidence. Moreover, there is no requirement, in our opinion, once a general objection has been clearly made at an earlier stage for that objection to be repeated on every occasion when an attempt is made to lead further objectionable evidence. On an examination of the transcript we consider that the objection to the leading of evidence relating to matters not covered in the defenders' pleadings was made at an early stage and the pursuer's position was, or should have been, quite clear to the court from then on. In our view the objection as advanced was apt to cover all subsequent questions directed to these matters. It is unfortunate that the sheriff did not either uphold these objections or at least resort to the useful expedient of allowing the evidence subject to competency and relevancy. We agree with the sheriff principal, for the reasons given by him, that the defenders' evidence to the effect that the accident could not have occurred in the manner described by the pursuer either should not have been admitted or, at any rate, should have been disregarded.
12. In the course of the examination of Pope the sheriff asked a number of questions arising from the line of evidence being advanced by the defenders outwith their pleadings. Counsel for the defenders submitted that the solicitor for the pursuer should have objected to these questions. In support of that contention he drew our attention to an observation of Lord Guthrie in McCallum v. Paterson 1969 S.C. 89 to the effect that at least in a jury trial, where the court asks a question which would be objectionable if asked by counsel, this could be objected to. Lord Guthrie's observation was made in the context of a motion for a new trial. He said (at page 92:

"When directing our attention to this passage in the Notes of Evidence, counsel for the defender stated that he was placed at the trial in a difficult position, since the new matter had been introduced, not by his opponent, but by the court. I appreciate his embarrassment. On reflection I think that objection could have been taken at the trial on the ground of undue admission of evidence, even although it was led by the court ... ".

13. We do not consider that this point is material to the determination of the case. The sheriff's intervention was brief, and, for reasons already given, notice of objection to questions not covered by the pleadings had already been sufficiently given. We would only comment that Lord Guthrie's observation concerned the conduct of a jury trial where adherence to the pleadings is a very strict requirement and, moreover, that he does not appear to have been saying that a failure to object to a question by the court is necessarily fatal. However, we would prefer to reserve our opinion on the general issue of objecting to questions asked by the court since it is not critical to our decision.
14. There remains for consideration the pursuer's appeal from the sheriff principal. The sheriff principal said:

"If the pursuer's account of what happened is to be accepted, has he established that the defenders were thereby in breach of Regulation 6(1) of the Provision and Use of Work Equipment Regulations 1992?"

Counsel for the defenders submitted that in the absence of any identifiable defect it could not be affirmed that there had been a breach of Regulation 6(1). This was in substance the conclusion of the sheriff principal. Counsel for the pursuer submitted that the identification of a defect was not the proper test in considering whether there was a breach of the regulation. The regulation said nothing about defects. The proper question was whether or not the work equipment, that is the vehicle and its parts, including the radiator cap, was maintained in "an efficient state, in efficient working order and in good repair". The necessary inference in this case was that by reason of the cap flying off and landing on the ground without human intervention it could not be said that the working equipment was maintained to the necessary standard.

15. Our attention was drawn to the cases of Millar v. Galashiels Gas Co. Limited 1949 SC (HL) 31 and Stark v. Post Office 2000 ICR 1013. It is unfortunate that neither of these cases was drawn to the attention of the sheriff principal because, if they had been, he might well have reached a different conclusion. Millar was concerned with a breach of section 22(1) of the Factories Act 1937. The words in that section and in the definition section (section 152(1)) foreshadow the language used in Regulation 6(1), as was recognised in Stark, (per Waller L.J. at page 1020). It is clear from these decided cases that the obligation of maintenance is an absolute one and applies at all times. Furthermore, it does not matter if the cause of some failure in maintenance remains a mystery. If it is proved that some piece of working equipment had in fact failed, that is sufficient (Millar supra, Lord Morton of Henryton at page 37, Lord McDermott at page 40-41; Stark, supra, per Waller L.J. at page 1023).
16. In light of the proper interpretation to be given to these provisions and to Regulation 6(1) in particular, we have no difficulty in concluding that the pursuer's account of what happened, namely, the spontaneous projection of the cap for the radiator was itself sufficient proof of a breach of the Regulation.
17. For these reasons the pursuer's appeal is allowed and the defenders' cross appeal is refused. In implementing that decision we consider it right to alter the sheriff's finding in fact 11 by deleting the words "became loose" and substituting therefor "spontaneously blew off", this being the proper inference to draw from the admissible evidence. Furthermore the findings in fact and law of the sheriff fall to be altered as follows: "(1) That the pursuer has established in evidence that the accident occurred as averred in condescendence 2 and in particular that the said radiator cap spontaneously blew off while the pursuer was inspecting said engine; (2) That the pursuer has established a breach by the defenders of the terms of Regulation 6 of the Provision and Use of Work Equipment Regulations 1992. (3) That the pursuer is entitled to damages from the defenders in the agreed sum of £4,220.00 with interest thereon at the rate of 8% per annum from 22 May 2002 until payment.