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Cite as: [2004] ScotCS 31
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Stephen v. Peters & Anor [2004] ScotCS 31 (10 February 2004)
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OUTER HOUSE, COURT OF SESSION
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A3610/01
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OPINION OF LORD CARLOWAY in the cause LEITH STEPHEN (A.P.) (F.E.), Pursuer against ROBERT PETERS AND ANOTHER Defenders ________________
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Pursuer: Macaulay Q.C.; Balfour and Manson
First Defender: Stacey Q.C., P.J.D. Simpson; HBM Sayers
Second Defenders: Erroch; Simpson & Marwick, W.S.
10 February 2004
1. The Pleadings
[1] In June 2001, the pursuer raised an action against the defenders for damages in respect of personal injuries sustained by him on 20 September 1998 when he was hauling a trailer loaded with fifteen large bales of rolled paper. The pursuer avers that, en route from Aberdeen to London, he had driven across the Friarton Bridge on the M90 at Perth. He had turned left off the motorway onto the slip road which leads on an upward incline into a right hand bend across the M90 and heads ultimately towards the southbound A9. The narrative is then:"He was travelling at a speed of 40-45 mph when he entered the bend. As the pursuer was just entering the right hand bend, the trailer overturned to the nearside causing the lorry to collide with the nearside crash barrier. The lorry had overturned as the centre of gravity of the load had moved to the nearside during the journey."
According to the pursuer, the trailer had been negligently loaded by the second defenders and that loading had been negligently supervised by the first defender, his employer.
[2] At the stage of the third closing of the record on 27 February 2002 (it having previously twice been opened up and restored to the adjustment roll), the pursuer had cases of common law fault against both defenders based solely upon the faulty nature of the loading operation. This was so even although, in the original summons, there was a rogue averment, unconnected to any case of fault, that :"Following the accident, the police discovered that the switches for calibrating the tachograph had been incorrectly set with the consequence that the speed shown to the pursuer while driving was about 8.6% lower than the actual speed."
Indeed, this matter had been known to the pursuer as early as 22 February 2000 when his agents had written to the first defenders pointing it out. By letter of 19 April 2000 the pursuer's agents had said to the first defender that this would form part of the pursuer's case of fault. This was reflected in a legal aid memorandum dated 27 February 2001. However, the averment was deleted during the adjustment stage as had a statutory case based upon the trailer being "work equipment". Although it is perhaps surprising, it was agreed by all parties that one effect of the incorrect setting of calibration switches is not simply that the tachograph recordings will be wrong but that, at the time of driving, the speedometer of the tractor unit will give a false (in this case low) reading.
[3] The first defender's response upon record was that the pursuer was driving at 56 mph at the time of the accident, that being the maximum speed the limiter in the lorry permitted. This was excessive and was the cause of the accident. The precision with which the first defender was able to aver the speed was presumably because his advisors had obtained an analysis of the tachograph. There was, of course, no need to mention the tachograph since to do so would have been pleading evidence rather than fact. The second defenders' averments remained skeletal at the time the record closed, even after an additional adjustment period had been allowed.2. The Minute of Amendment and Answers
[4] In August 2002, a proof was allowed and fixed for 1 July 2003, almost five years after the accident. In March, however, the second defenders lodged a Minute of Amendment. This, like the first defender's case, averred that the pursuer had been driving at an excessive speed. It made specific reference to the findings of the tachograph, namely that it evidenced a speed of between 56 and 59 mph. However, it then went on to aver that, since the tachograph was also understating the speed by 10%, the lowest speed which the pursuer had been doing was 62 mph. The second defenders then aver that attempting to negotiate the curve at that speed would "almost certainly" have caused the trailer to overturn even if the load had been completely secure. The first defender lodged answers to this Minute on 2 July. These also made reference to the readings of the tachograph and in addition averred:"The tachograph, unknown to the first defender, had been wrongly calibrated by the garage which had carried out the last calibration check prior to the accident and was found later to have been underindicating speed by about 10 %."
Upon this basis, the first defenders also averred that the speed was at least 62 mph and not the 56 previously averred. Indeed the new averments on speed entirely replaced the old ones. The pursuer had lodged relatively uncontroversial answers initially. Meantime, on 4 June, the proof had been discharged on the motion of the pursuer because of difficulties he had been experiencing with his expert testimony. The new proof date is 2 November 2004.
[5] On 16 September 2003 the pursuer lodged adjustments to his answers. These added the following :"With reference to the defenders' averments in answer, admitted that the tachograph had been wrongly calibrated with the consequence that it was under indicating speed by approximately 10% under explanation that the pursuer was unaware that the lorry was actually travelling at a speed in excess of the speed set by the speed limiter (56 mph)."
The pursuer then sought to introduce an esto case against the first defenders that if, as the defenders maintained, the load was secure and he was in fact travelling at 62 mph, then the accident had been caused by the defectively calibrated tachograph. This permitted the lorry to travel at speeds, which should have been impossible had the limiter been working. Cases referring to the Employers' Liability (Defective Equipment) Act 1969 and the Provision and Use of Work Equipment Regulations 1992 were tabled on the basis that :
"... a speed of 56 mph would not have been sufficient for the vehicle to overturn with a secure load at this bend. In these circumstances, the accident was caused defective equipment (sic) due to fault of a third party for which the first defender is in law responsible."
3. The Motion Roll
[6] The case called on the second defenders' motion to allow the record to be amended in terms of their Minute of Amendment and the Answers thereto as adjusted. The second defenders did not take issue with the pursuer's answers. The first defender did, however, on the basis that the pursuer's adjustments introduced a new case long after the expiry of the triennium. It was accepted that whether to allow the record to be amended in terms of the adjustments was a matter for the discretion of the court. However, what the pursuer was attempting to do was to introduce an entirely new case and this should not be allowed (Greenhorn v J Smart & Co (Contractors) 1979 SC 427; cf Evans v Northern Coasters, Second Division, 20 January 1995, unreported). He was altering a case based upon faulty loading to one based upon faulty calibration of the tachograph. That was a case, the existence of which the pursuer had long since been aware but had apparently discounted. The first defender candidly accepted that there was not a great deal by way of prejudice since his insurer had investigated the matter when the ground of fault was intimated by letter and the rogue averment had been in existence. The tachograph record had itself been destroyed in 1999, prior to the action, although there was a copy of it still extant. In the event of the court being inclined to permit the amendment then the first defender sought further time to answer the adjustments. That had not been done pending the court's decision. [7] The pursuer did not dispute the applicable principles. The question was whether the proposed amendment was so radical as to convert the case into a new action. The history of the cause was that the second defenders had first produced detailed answers in their Minute of Amendment. The first reference to the content and effect of the tachograph record had come in the Minute. This had been adopted by the first defender, who had gone on to say how the faulty calibration had come about. The pursuer's new averments did not alter his action radically. It was the same accident involving the overturning of the lorry. The pursuer's common law case remained the same relative to the road and the pursuer's speed. In this regard, the pursuer sought to alter his new averment of fact as follows :"The pursuer was unaware that the lorry was actually travelling at a speed in excess of the speed set by the speed limiter (56 mph) displayed by the speedometer".
This was to make it clear that he was only presenting an esto case and not accepting that he was driving at in excess of 56 mph. There was no material prejudice to the first defender and the amendment ought to be allowed. The pursuer too sought a further period of adjustment given the absence, for example, of a plea-in-law to cover his statutory case.
4. Decision
[8] The test to be applied, when the Court is exercising its discretion on whether to allow an amendment of a pursuer's case after the expiry of a time limit, is set out by the Lord Justice-Clerk (Ross) in reviewing the authorities in Evans v Northern Coasters (supra). If the proposed amendment radically changes the basis of a pursuer's action then it will not generally be permitted. If it is merely reformulating the action, presenting not a new front but the old front from a new angle, it will be allowed. Which category the case falls into will often be an issue of fact and degree (Greenhorn v J Smart & Co (supra) per the Lord President (Emslie) at 431). Where what is averred are facts which remain essentially unaltered by the amendment and a pursuer seeks only to add a further ground of fault, which would have avoided the same danger as already referred to on record, the amendment will usually be permitted, at least if no material prejudice in the investigation and defence to the action can be shown. [9] The pursuer's case is about injuries which he sustained when the trailer he was hauling overturned. That remains his case in fact and it is not radically altered by the proposed amendment. The danger which was to be guarded against was that of the trailer overturning. That also remains the case with the proposed amendment. He still avers that the cause of the overturning was the faulty loading of the cargo. Speed has been an issue since it was introduced by the first defender prior to the closing of the record. However, it was only with the second defenders' Minute of Amendment that a speed of 62 mph was mentioned. This is significantly higher than the earlier averment of the first defender and is based specifically on the faulty tachograph calibration. This case against the pursuer has been picked up by the first defender in his answers. In these circumstances, it would appear to be a legitimate response to this essentially new development in the defences for the pursuer to reply that, if he was going at such a speed, then that was caused by the first defender. This is especially so given that the first defender effectively admitted this fault with his averment relative to the actings of a third party. The pursuer has not changed the fundamentals of his case. It is still the same accident caused by the overturning trailer. He has simply added a new ground of fault based upon the averments of his opponents and on an esto basis. In such circumstances, it would seem reasonable to permit the pursuer to adopt this line. [10] I will accordingly grant the motion to allow the record to be opened up and amended in terms of the Minute of Amendment for the second defenders and the Answers thereto for the first defender and the pursuer all as adjusted. I will not order the immediate closure of the record but allow the parties a further period of four weeks in which to adjust the pleadings on record (i.e. not simply the Minute and Answers) after which the record shall again close. This ought to permit all parties to tidy up the several faults apparent in the print. In this case, this will cause no delay because the proof has already been fixed for a date some months away. However, I should add that where a pursuer introduces what a defender considers to be a radical departure in an amendment process, the defender should normally answer that case so far as possible during the amendment process, notwithstanding that he intends to oppose amendment of the pursuer's case.