Pursuers: MacGregor; Brodies

Defenders: Connal, QC, Solicitor-Advocate; McGrigors

24 February 2006

Introduction

[1] The pursuers are respectively the stepson and the youngest son of the deceased, Gerald James Toms, who died at about 0255 in the early morning of Thursday 12 October 2000, as a result of falling asleep at the wheel of a lorry which he was driving for the Post Office, then trading as Parcelforce Worldwide. The accident occurred on the A702 approximately a quarter of a mile south of Lamington Village. It is admitted that, by virtue of Section 62(1) of the Postal Service Act 2000, the defenders have inherited the liabilities of the Post Office. In this opinion I shall refer to the defenders, the Post Office and Parcelforce Worldwide collectively as "the defenders".

[2] The claim is based on fault at common law. The pursuers aver that the defenders failed to take reasonable care for the deceased by devising, maintaining and enforcing a safe system of work; and that the deceased's death was caused by their fault or that of Alan Graham, for whom they are vicariously liable. They say that the defenders permitted the deceased to continue to drive for them at night at a time when they were aware that he was working for another employer by day; and were, or should have been, aware of the danger to him and to other road users caused by his driving when he was too tired to drive safely. Their case is periled on the contention (which is one of the main issues in dispute) that at the material time the deceased was employed by the defenders - a motion by the pursuers seeking leave to amend, so as to advance the case on a broader basis not depending upon employment, was refused shortly before the proof.

[3] The parties have agreed damages subject to the defenders' pleas of contributory negligence, volenti not fit injuria and ex turpi causa non oritur actio.

[4] Many of the material facts were not in dispute. The deceased had no written contract of employment with the defenders. He was assigned to them as a driver by Topstaff Employment Ltd, an employment agency with whom he had signed on. He had driven for the defenders under this arrangement for about a year before the accident in which he died, driving for them at night on a fairly regular basis, Monday to Thursday every week. Latterly, he was based at the defenders' depot at Edinburgh Airport. The main run undertaken by drivers at night was part of the defenders' UK‑wide distribution service; drivers would be despatched from the main hubs in different parts of the country, meet another driver halfway, exchange loads, and then return to the point from which they set off. On his night shifts, the deceased would start at Edinburgh, drive to a point south of the border into England, rendezvous with a driver coming up from the south, and then return to Edinburgh. He would usually start work at about 10pm and finish at about 7am the next morning, although sometimes he would continue until about 9am if he had to do an extra delivery after his main run.

[5] The deceased enjoyed working for the defenders. He had asked them if there was a possibility of him being employed by them in a permanent job, and was told that he was next in line. But since he was also told that there might not be a permanent job until the following year, he looked around for other work. His wife, who gave evidence, explained that they had four boys to look after and his concern was that the job of driving for the defenders could have come to an end at any time. He needed to be sure of a steady income. In late September 2000, he applied for and was offered a sales job with R H Young, agricultural engineers in West Lothian. He commenced employment with them on 2 October 2000, working from 9am to 5pm each day, visiting clients and potential clients. He was given a company car. But he carried on working for the defenders (in circumstances to which I shall have to return). For the first few days he appeared to cope well with combining the two jobs. But, according to Mrs. Toms, in the last day or two before he died, he was tired. She found him sleeping on the couch when she got in from her work, which was unusual for him.

[6] The parties are agreed that the accident occurred as a consequence of the deceased falling asleep at the wheel. Although not formally agreed in the Joint Minute, it was not disputed that the tiredness which caused him to fall asleep at the wheel was directly caused by the fact that he was, during this period, working by day for R H Young as well as continuing his night work driving for the defenders.

[7] The following issues arise for decision: (a) whether the deceased was employed by the defenders; (b) whether the defenders knew that the deceased was also doing a day job; (c) whether the defenders owed a duty of care to the deceased; (d) volenti non fit injuria; (e) ex turpi causa non oritur actio; and (f) contributory negligence. I propose to deal with them in turn.

[8] The question whether the deceased was employed by the defenders at the material time is a mixed question of law and fact. Before turning to look at the authorities to which I was referred, I will first set out in a little more detail the relevant contractual and factual background.

[9] As I have already indicated, the deceased was signed on with Topstaff. He had registered with Topstaff as a driver in October 1999. He had had to fill in a driver's registration form for Topstaff, giving details of his experience, and Topstaff had obtained a reference from a previous employer. His engagement with Topstaff was governed by a document headed "Terms and Conditions of Work for Temporary Workers", in which the deceased was described as "the Temporary Worker" and was said to be engaged under a "contract for services". In terms of Clause 1 thereof, Topstaff agreed to provide to the Temporary Worker opportunities to work as a driver where there was a suitable assignment with a hirer (elsewhere in the document referred to as "the client") requiring such a worker. Topstaff reserved to themselves the right to decide to which of their Temporary Workers the assignment would be offered. Clause 2 provided that the Temporary Worker was under no obligation to accept an offer of an assignment from Topstaff; but insofar as he did, he was required to comply with certain obligations, such as to be present during the agreed number of hours, not to engage in conduct detrimental to the interests of Topstaff, and to take reasonable steps for his own safety and that of other persons. Of greater importance, he was required to comply with disciplinary rules or obligations in force at the premises to which he was assigned to work, and to comply with all reasonable instructions and requests, within the scope of the agreed services, made either by Topstaff or by the client. Clause 3 made it clear that there was no obligation on Topstaff to provide work, nor any obligation on the Temporary Worker to work, for any normal number of hours in any day or week. Clause 4 provided that Topstaff would pay the Temporary Worker wages calculated at a minimum hourly rate, subject to deductions for the purpose of National Insurance and PAYE. Payment would be made on the basis of time sheets, signed by the client, reflecting the hours worked by the Temporary Worker during each week. Topstaff were responsible under Clause 6 for making all the statutory deductions from pay. Under Clause 7 the Temporary Worker accepted that the nature of the temporary work was such that there might well be periods between assignments when no work was available from Topstaff. In terms of Clause 8 Topstaff were entitled to instruct a Temporary Worker to end an assignment with a client at any time.

[10] Topstaff had their own terms and conditions which regulated the supply of Temporary Workers and Permanent Workers to clients. The defenders were clients of Topstaff who subscribed to these standard terms. Clause 1 to 8 of those standard terms governed the supply by Topstaff of Temporary Workers. Clauses 1 and 2 provided as follows:

[11] The picture that emerged from the evidence was that the defenders had a number of drivers currently on their staff and employed by them under contracts of employment. They also used, from time to time, a number of agency staff supplied by Topstaff. Mr Mackay, a Deputy Manager with Topstaff, explained that Topstaff supplied Temporary Staff for a variety of employers as and when required. Topstaff would receive a "booking" from the defenders either the day or the week before the person was required. This would be by phone or by fax, typically a fax on a Friday afternoon. Sometimes the client would ask for a particular worker. Thus, in this case, the defenders would often ask for the deceased to work for them, though they had also at times asked for other drivers by name. Clearly it was to the client's advantage to have workers with whom they were familiar and who were familiar with the system. Mr Mackay confirmed that the majority of the deceased's work when on Topstaff's books was with the defenders, though he did work from time to time for other clients. As far as Mr Mackay understood the position, there was no contract between the Temporary Worker and the client. He explained that Topstaff supplied staff on a "contract for services" basis. The Temporary Worker was paid by Topstaff. The client would forward time sheets to Topstaff detailing the hours worked by the Temporary Worker during a particular week. Topstaff would then invoice the client; and would themselves pay the Temporary Worker at the rates agreed between Topstaff and the Temporary Worker, which was not the same rate as that charged to the client. Topstaff handled all questions relating to the Temporary Workers' tax and National Insurance deductions. Clearly it was the client who gave the Temporary Worker his instructions when he arrived at their premises; and to that extent he was under the client's direction and control. So far as Topstaff were concerned, their aim was to provide staff to the standard that the client was looking for. Any client who was not happy would contact Topstaff directly and Topstaff would either replace the Temporary Worker with another one or agree with the client to give him another chance. Topstaff did not guarantee work to the Temporary Worker and he, for his part, was under no obligation to accept work offered by them. The client did not have to give any notice of terminating the Temporary Workers' assignment to them; they could terminate at will. Equally the worker was under no obligation to tell the client when he wanted to stop; he would simply tell Topstaff so that they could replace him. Mr Mackay's evidence was not controversial.

[12] Mrs. Toms explained that Topstaff would send out drivers and other workers to places that needed them. When the agency offered her husband a job, he would say yes or no. Towards the end of his time working for them, he had sometimes dealt with the defenders more directly. Two or three times they had called him directly early in the morning; or they had told him the week before that they wanted him to work the next week and what shifts were available. She confirmed that, at the beginning, the deceased had once or twice taken jobs with other clients. She confirmed that he was paid by Topstaff and that Topstaff made the appropriate deductions from his pay. In terms of how regularly the deceased worked for the defenders, she said that a lot of the time he was working four or five days a week but at other times it was less than that. It would depend upon what shifts were available with the defenders. She understood that, during the few weeks before her died, he was filling in for Permanent Staff, whereas before that he was driving on a regular nightshift. He was hoping for a permanent post with the defenders.

[13] Evidence was also given by Christopher Stills, a Temporary Worker signed up with Topstaff who also drove for the defenders. He said that driving for the defenders was not a permanent job. He described it as "agency driving work". Most weeks he would get four or five nights work with the defenders. Most of the work given by Topstaff to their drivers was with the defenders. He would do a variety of runs for the defenders, to Penrith, to Scotch Corner or to Sandbach Services. Penrith was a short run which could be finished in about six hours. Scotch Corner took a bit longer whereas the run to Sandbach Services was a longer run for which he got paid overtime. Mr Stills said that he was told where he was going when he started the shift. His evidence was that by the late summer or early autumn in 2000, the deceased had gone exclusively onto the Penrith run. He said it was unusual for an agency driver to be put exclusively onto one run - they would be expected to fit in with what was left after the employed drivers had been given their regular runs.

[14] By reference to the defenders "Agency Staff Hire Weekly Reports" it was possible to see the hours worked by the deceased and by Mr Stills over a period of some weeks. Thus, for the six weeks beginning with the week ending on 6 August 2000, Mr Stills worked respectively eight and a half hours, seven and a half hours, twenty-one hours, twenty‑five hours, twenty-eight and a half hours and forty hours. This was rather less than he had sought to make out in his evidence. The deceased's hours working for the defenders, for the period beginning with the week ending on 6 August 2000 and going through to the week in which he died, were as follows: eighteen hours, eight hours, fifty-five and a half hours, fifty-two hours, forty-three hours, fifty-three and a quarter hours, nine hours, fifty-three hours, thirty-two hours, forty-four hours and twenty-five hours. It is to be noted, in passing, that the Vehicle Issue Records kept by the defenders and lodged in process showed that Mr Stills was wrong to suggest that the deceased had been assigned by the defenders to the Penrith run on a regular basis before his death.

[15] I was referred to a number of authorities on the employment question. These were: Munkman on Employer's Liability, 13^th Ed. at paras.405-412, Carmichael v National Power Plc [1999] 1 WLR 2042, Motorola Limited v Davidson and Melville Craig Group Limited [2001] IRLR 4, Montgomery v Johnston Underwood Limited [2001] IRLR 269, Stephenson v Delphi Diesel Systems Limited [2003] ICR 471, Dacas v Brook Street Bureau (UK) Limited [2004] IRLR 358, and Bunce v Postworth Ltd (t/a Skyblue) [2005] IRLR 557. I was also referred to two recent unreported decision of the Employment Appeal Tribunal as illustrative of the approach the court should take: Cable and Wireless Plc v Muscat UKEAT/0661/04 (25 February 2005), and Astbury v Gist Ltd UKEAT/0446/04 (14 April 2005). All of these cases raise the question of employment in a context which is rather different from the present case. They are largely concerned with questions of unfair dismissal and employee protection. In such cases it may be thought that the court will be astute to seek to protect the individual would-be employee and to ensure that he is not readily deprived of the protection given to him by employment status. To that extent I think Mr Connell was right when he submitted that, in considering the case law, I should bear in mind the statutory background to each case. However, I do not think that that point can be taken too far. It was recognised in the cases to which I have referred that a decision on the issue of employment will have an impact far beyond questions of unfair dismissal. In Dacas v Brook Street Bureau (UK) Limited, Sedley LJ put the matter in this way (at para.72):

"It is important to bear in mind that a great deal more hangs on the legal status of a worker than the worker's own rights, though they are important enough. An employer is vicariously liable for injury to others caused by an employee's carelessness, and is required by statute to insure against it; but an enterprise will have no such liability for harm done by somebody working for it who is not an employee. Suppose for a moment that Mrs Dacas had injured a resident or a visitor in the course of her work by carelessly leaving cleaning materials in a dangerous place. She would have been in breach of her obligation to Brook Street under Clause 4(d) of the temporary worker agreement, but that would have been of no value to the victim. Any competent solicitor to whom the victim went would have issued proceedings against Wandsworth on the footing that Wandsworth was vicariously liable as Mrs Dacas' employer; and if it were so held, the borough's compulsory insurance would cover the damages. If Wandsworth denied that Mrs Dacas was their employee it would be obliged to say whether it contended that she was employed by somebody else or by nobody. ... It is highly unlikely that it could succeed in either such contention. If the facts established at trial were those I have postulated, it is a near-certainty that the [court] would find Wandsworth vicariously liable for Mrs Dacas' negligence. Counsel advancing a submission (and it is the submission made to us) that Mrs Dacas had for four years or more been cleaning the hostel as a contractual licensee, or pursuant to some other innominate type of contract, and that Wandsworth therefore had no vicarious liability for her negligence, could look forward to a bad day in court."

In the passage cited, Brook Street were in the position of Topstaff in the present case and Wandsworth were in the position of the defenders. Keene LJ, in para.1 of his judgment in Bunce v Postworth Ltd, also emphasised that the question of the employment status of the worker may be relevant in a number of ways other than employment protection; and he too gave as an example the question of vicarious liability for acts committed by the worker in the course of his work.

[16] All these cases, with the exception of Carmichael, concern the position of workers who have entered into a "temporary worker agreement" with an employment agency, which agency had provided the services of that worker (and, no doubt, other workers) to a client or end user in much the same way as, in the present case, the deceased entered into a temporary worker agreement with Topstaff and his services were provided by Topstaff to the defenders. The cases establish that, in this context as well as in previous situations where the question of employment has arisen, there are two "irreducible minimum legal requirements" for the existence of a contract of employment, namely "mutuality of obligation" and "control".

[17] The classic definition of control in this context was provided by MacKenna J in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 at 515. The question is: who determines "the thing to be done, the way in which it shall be done, the means to be employed in doing it, the time when and the place where it shall be done". That test was applied and approved in the cases to which I have referred. It was the issue of "control" which, in Dacas, Montgomery and Bunce, led to the conclusion that there was no employment contract between the employment agency and the worker. In each of those cases, the court identified the real control as being that of the client or end user, rather than the employment agency. Although it was the employment agency that determined whether to send the individual worker to the particular client, it was the client who told him what to do when he got there and, if necessary, how to do it. As was emphasised by Keene LJ in Bunce, the question is who "in reality" has the power to control what the worker does and how he does it.

[18] The same approach guided the Employment Appeal Tribunal in Motorola to hold that the client or end user was the employer. Lindsay J, giving the judgment of the EAT, said (at para.11): "Although MacKenna J speaks of control, as we have noted, in terms of rights, there is, in our view, no good reason to ignore practical aspects of control that fall short of direct legal rights." The EAT there observed that the temporary worker's agreement with the employment agency that the worker would comply with the requirements of the client; and the agreement between the employment agency and the client that, if the client was dissatisfied with the work performed by the worker, it should make its complaint to the employment agency, who would remove the worker from the service of the client or take other appropriate steps; in reality gave the client control over the worker in respect of the work carried out by him for them.

[19] Applying this analysis, which I accept as accurately stating the applicable law, there is no doubt to my mind that the defenders had "control" over the deceased while he was assigned to them, sufficient to satisfy this part of the test for employment. Clearly from the moment the deceased arrived for work at the defenders' depot, he was under their instruction. The choice of vehicle was theirs, he was told what route he was to take, what time he was to leave, and where and with whom he was to rendezvous. If the defenders were dissatisfied with his performance they would no doubt, in practice, tell him but even if they did not, the defenders would ensure that their dissatisfaction was made known to him by contacting Topstaff and, if they remain dissatisfied, ensuring his removal from the assignment to them. There is no material difference between the facts of this case and those of the cases to which I have referred.

[20] When one comes to consider "mutuality of obligations", however, the situation is less clear. In Dacas and Bunce, the courts held that the temporary worker agreement between the employment agency and the worker was not a contract of service because of this lack of mutuality and obligations. The agency was under no obligation to provide work for the worker and the worker was under no obligation to accept any work offered by the agency. That reasoning is applicable to the present case.

[21] However, the question here is not whether there was a contract of employment between the agency and the deceased, but rather whether the deceased was an employee of the defenders. Assuming that the defenders satisfy the "control" part of the test, what of the requirement for "mutuality of obligations" between them and the deceased? One is immediately faced with the difficulty that the contractual arrangements are set up in such a way that the only written contracts are between the agency and the worker on the one hand and between the agency and the client on the other. In order to find any mutuality of obligations between the worker and the client, one would have to find an implied agreement between the worker and the client under which mutual obligations were undertaken or imposed. This point did not arise for decision in Montgomery or Bunce. In Motorola, although the Court found that the worker was an employee of the client, they did so on the only point argued before them and Lindsay J, giving the judgment of the EAT, was at pains to emphasise that they had concentrated upon "control" and did not propose to say anything about whether they would have come to that conclusion had the case been argued on wider grounds.

[22] Nor did the matter arise for decision in Dacas, but it was considered obiter by the three members of the Court of Appeal in that case. The Court of Appeal allowed the appeal by the employment agency against the finding of the EAT that Mrs Dacas was employed by the agency. Mrs Dacas had originally presented a complaint of unfair dismissal against both the agency and the client, Wandsworth Borough Council. The EAT found that she was not employed by the Council and she did not appeal that finding. The Court of Appeal, however, on its own motion, joined the Council as a respondent to the appeal - on the basis that they might allow the appeal by the employment agency on the ground that Mrs Dacas had really been employed by the Council. In their judgments, all three members of the Court of Appeal expressed somewhat differing views about this. Sedley LJ expressed the view that it defied common sense to conclude that Mrs Dacas was not employed by anybody. He thought that the evidence pointed to only one conclusion, namely that by the date of her dismissal (i.e. after having been assigned to the Council for a significant period) she was an employee of the Council under a contract to be implied from the conduct of the parties. Mummery LJ expressed the view that, in principle, the fact that there were express contracts between the agency and the worker on the one hand and the agency and the Council on the other, did not prevent there being, in addition, an implied contract between the worker and the Council. He concluded that, if Mrs Dacas had appealed on her case against the Council, he would have remitted the case to the EAT for them to determine whether there was indeed an implied contract between Mrs Dacas and the Council and, if so, whether it was a contract of service under which she was employed by the Council. Munby J came to a different view. He considered that there was no mutuality of obligation between Mrs Dacas and the Council. As he put it:

[23] In Stephenson v Delphi Diesel Systems Limited, the EAT dismissed an appeal by the applicant (the worker) against a finding that there was no contract of employment between himself and the client. It did so on the ground that there was no mutuality of obligation - or, put more simply, no contract - between those parties. The contractual background to the decision was similar to that which exists in the present case and in the other cases to which I have referred. The arguments for the worker included an argument that the employment agency was, in some sense, acting as agent for the client company under an implied agency agreement, so that through the employment agency the worker was, in reality, contracting with the client. That argument was rejected. At paragraph 39 of his judgment, giving the judgment of the EAT, Elias J observed that the arrangements by which the worker worked for the company were wholly explicable "by virtue of the contractual obligation that exists between the applicant and the agency". In other words, there was no need to imply any further contract. I note in passing that, in paragraph 47 of the judgment, Elias J observed that, so far as the EAT were aware, the Motorola case was the only case where a worker provided by an employment agency of this kind had been held to be an employee of the client. And he pointed out that the appeal to the EAT in that case was focused only on the question of control and did not raise "the more fundamental question of whether there was contractual relationship between the client and the worker at all - as the appeal tribunal was at pains to make clear in its judgment". The decision in Stephenson is consistent with the analysis by Munby J in Dacas.

[24] Consistently with that approach, I hold that in the present case there is no mutuality of obligation between the deceased and the defenders so as to satisfy the test for there being in existence a contract of employment, express or implied, in terms of which the defenders employed the deceased. I come to this decision not without some misgiving. Those misgivings are prompted by the remarks of Sedley and Keene LJJ, in the passages to which I have already referred, emphasising that a decision that a worker is not an employee of the client in the arrangements such as those with which I am here concerned, may have serious consequences when considering claims by third parties who are injured as a result of the negligence of the worker whilst performing duties for the client. In the present case, if, when he fell asleep, the deceased had crashed into another vehicle causing death or personal injury to the occupants, the natural reaction of any pursuer, on legal advice, would have been to look to the defenders, whose van the deceased was driving, for compensation, invoking the principle of vicarious liability. The logic of my decision in this case, and of the analysis of Elias J and Mumby J which I have followed, means that there is, at first blush, a lacuna in an otherwise well developed system of liability for delictual acts and a trap for the unwary. I was not addressed on these difficulties and therefore do not propose to say any more about them in this Opinion.

[25] The parties were agreed that, if I decided that there was no contract of employment between the deceased and the defenders, the pursuers' case must fail. Nonetheless, in case this matter should go further, I shall deal with the other points that were argued before me.

[26] In his closing submissions, Mr McGregor for the pursuers asked me to find the following facts proved: (a) that on 29 September 2000, the deceased advised Alan Graham (the then nightshift manager for the defenders at their Edinburgh Depot) of his new employment with R H Young and that it was due to begin on 2 October 2000; and (b) that Alan Graham persuaded, or at least permitted, the deceased to continue working for the defenders whilst working for R H Young. He accepted that he needed to establish that the defenders knew that the deceased had a day job. Put shortly, the pursuers' case was that the defenders persuaded, encouraged or permitted the deceased to continue driving for them with knowledge that he was at the same time working by day for another company.

[27] Mr McGregor relied upon the evidence of Mrs Toms and Mr. Stills. Mrs Toms impressed me as an honest and reliable witness. However, her knowledge of what her husband told Alan Graham (or anyone else at the defenders) was inevitably second-hand. Her evidence was that the deceased found out on a Thursday night that he had got the job with R H Young. That evening he told his wife that he was going to tell Parcelforce he would have to leave because he could not do two jobs, because of the shifts. She recalled that their conversation was in their living room. He went into work for the defenders that evening. When he came back the next day he told her that he had told "Doods", a nickname for Alan Graham, that he had a new job and could not continue working for the defenders. Doods had responded by saying that there was another shift coming up, starting earlier in the evening and finishing at 2am or 3am, giving him time to have a sleep before his day job. He told her that he had said that he would do it; he enjoyed the work, there would be extra money coming in, and he would do it for a few weeks. Mrs Toms said that deep down the deceased was always hoping that he would get kept on by the defenders. He preferred that job to his new job.

[28] I have already referred to the fact that Mr. Stills was a temporary worker assigned to the defenders by Topstaff. His work for the defenders was less continuous than that of the deceased. He knew the deceased, but not that well. He had met him a few times, chatting over coffee or waiting for vehicles. He told me that, during the day, he too had another occupation, working as an instructor for the Sea Cadets, teaching power boating. This was a job that occupied him from 9am until 5pm five days a week. He was not paid for his work with the Sea Cadets, except for his travel expenses. He was working with the defenders at night to fund his lifestyle. He said that he did not tell Topstaff of his day work: as far as he was concerned, he believed it was not legal to do both jobs. But he said that staff at the defenders' Edinburgh Depot were aware that he was doing this other work. On shifts, when they were unloading, there were long breaks of up to two hours, and staff would sit and talk. He said they often discussed how he was getting on during the day. He remembered talking to Joe Craig, another employee of the defenders. Sometimes he and Joe Craig would be sitting in the office of Paul Denholm, the defenders' early supervisor and transport co-ordinator, subordinate to Alan Graham, talking about his day job; so Paul Denholm obviously knew, from overhearing their conversation, that he (Mr. Stills) had a day job. Mr Stills said that it would not be possible for people there not to know. He would say things like "I am going home now, grab a couple of hours sleep and then go and teach"; or he might discuss things he had done that day. He did not recall specifically talking to Paul Denholm about this, but he (Paul Denholm) would have known simply from being in the room when these discussions took place. He said that the defenders never instructed him not to do day work as well as driving for them at night. He was never disciplined. Similarly, he said that "pretty much everyone" in the depot knew that the deceased had a day job. Mr Stills said that he knew that the deceased had been provided with a new company car for his day job. When news of the deceased's death came through, and the police came to the depot, Paul Denholm and Alan Graham took the police to see the deceased's vehicle, i.e. his new company car. From this Mr Stills inferred that they were aware that he had a new company car, and therefore must have been aware that he had a day job. When the accident was reported, Mr Stills said that one of the talking points was that the deceased had been pushing things a bit by working during the day as well as at night. He said that pretty much all the staff knew, including Joe Craig. He said that Joe Craig was the person he talked to the most. He got on well with him. He said that everyone up to the level of Paul Denholm was aware that the deceased was working by day. He could not say for definite if "Doods" did or did not know.

[29] Joe Craig, Paul Denholm and Alan Graham all gave evidence for the defenders. Each of them denied any knowledge of the fact that the deceased was employed during the day with R H Young or indeed anyone else. When Alan Graham came to give evidence, there was an objection by Mr McGregor, for the pursuers, on the grounds that Mr Graham had been present during Mrs Toms' evidence. I was referred to Rule of Court 36.9(3) which provides that a witness may not, without the leave of the court, be present in the court room during the proceedings prior to giving evidence; and to Section 3 of the Evidence (Scotland) Act 1840 which is the basis for that Rule of Court. That section provides that the court need not reject the evidence of any witness on the grounds that he had been in court without the permission of the court before giving evidence; but may admit that evidence where it appears to the court that the presence of the witness was not the consequence of culpable negligence or criminal intent, and that the witness had not been unduly instructed or influenced by what took place during his presence, or that injustice will not be done by his or her examination. This objection caused something of an interruption in the proceedings. Mr Graham was asked, in light of the objection, whether he had been in court during any of the previous evidence. He said that he had not and he maintained this denial under cross-examination. In the normal course, if a witness had been in court, and admitted to having been in court, it would be unlikely that a court would exclude his evidence on that ground alone. The appropriate course would normally be to allow the evidence to be given, though the court would no doubt be alert to the need to scrutinise the evidence of that witness to ensure that it had not been improperly influenced by what had gone before. But this is easily done. It has to be recognised that the rule in Scotland that a witness may not be in court prior to his own evidence is by no means universal. In some jurisdictions it is common place in civil proceedings for witnesses simply to sit in court, observe the proceedings, hear the evidence, and come forward to give their evidence from the well of the court, though there may be exceptional cases where this is not permitted. His denial, however, put matters in a different light. If his denial was false it might appear that he was trying to conceal from the court the fact that he had been present during the evidence of other witnesses; and that might, and I emphasise might, have led me to view more sympathetically Mr. McGregor's motion to exclude his evidence altogether. It seemed to the parties, and I agreed, that the matter should be explored further. There was therefore, interspersed with other evidence, a mini proof in bar of his evidence. Both parties led evidence, from persons who had been in court and from other witnesses who had been sitting in the rotunda outside court 5, on the question whether Mr. Graham had been in court before he was called to the witness box. Having heard that evidence, I was not satisfied that Mr. Graham had been in court at any material time before giving evidence. I have therefore taken full account of his evidence, whilst being alert to the possibility that my finding is wrong in this respect, and therefore of the need to scrutinise his evidence with particular care.

[30] On the question of knowledge, I preferred the evidence of the defenders' witnesses to that led for the pursuers. I did not find Mr. Stills to be an impressive witness. In a number of material respects his evidence conflicted with that of the defenders' witnesses. His claim to be particularly friendly with Mr. Craig was contradicted by Mr. Craig - I preferred the evidence of Mr. Craig on this. His account of Mr Graham walking with the police to see the deceased's car in the car park, was contradicted by Mr. Graham who said he was in bed at the material time - I preferred Mr. Graham's evidence on this. And there was, to my mind, an inconsistency between, on the one hand, Mr. Stills' account that everyone knew and talked about his and the deceased's day jobs; and, on the other, his statement that he would not have told those in a position of responsibility because he knew it was illegal. Mr. Connall QC, for the defenders, sought to characterise Mr. Stills as a "blether". I think this is a bit harsh. But I consider that he was prone to elaborate and exaggerate. When presented with a conflict between his evidence and that of others who gave evidence, I prefer the latter. As for the evidence of Mrs. Toms, whilst, as I have said, I accept that she was a truthful and reliable witness, she could only speak to what the deceased had told her. I am not persuaded by that evidence that the deceased did in fact tell Mr Graham, or others in responsibility at the defenders, that he was continuing to work for them whilst doing a day job. He may well have intended to do so, or he may have told his wife that he was doing so when in fact falling short of this. I was satisfied by the evidence adduced by the defenders that he did not in fact tell them that he was working by day whilst driving for them by night.

[31] Accordingly I reject the factual assertion underlying the alleged duty of care. It follows from this, by common consent, that even if I had found that the deceased was employed by the defenders, I would have found against the pursuers on the facts.

[32] I should, however, go on to consider the question of whether the defenders would have owed a duty of care to the deceased even if I had been of the contrary opinion on the questions of employment and knowledge.

[33] I propose to deal with this question briefly. By way of introduction I should say that, although the pursuers' case was periled on the assertion that the deceased was employed by the defenders, I do not see why this should make any difference to the existence or otherwise of a duty of care. Whether or not the defenders employed the deceased, they certainly directed his activities. They decided what run he was to go on. They decided whether he was to drive for them at night. If they knew that he was tired, whether because of working by day or for some other reason, why should it make a difference to the duty owed by them to him, or to other road users, that he was or was not employed by them. Assuming knowledge, I would have thought that it is direction and control that matters, not employment status. For that reason, I am not persuaded that, had the application to amend, to plead what would have amounted to an esto case on the basis that the deceased was not employed by the defenders, been made to me, I would have refused it: the amended case, had the amendment been allowed, would have required no further factual enquiry and very little further legal argument. On the facts found by me, namely that the defenders had no knowledge of the deceased's daytime job, the case would still have failed. But what if I had found that the defenders did know?

[34] I was addressed on this issue by reference to the decision in Barrett v Ministry of Defence [1995] 3 All ER 87. In that case a naval airman died after becoming so drunk one night at a naval base that he passed into a coma and became asphyxiated on his own vomit. Judge Phelan found for the plaintiffs on the basis that the Ministry of Defence owed the deceased a duty of care to prevent him consuming so much alcohol that he became unconscious, since the Ministry knew of the culture of excessive drinking at the base. He also found that the Ministry was in breach of a duty of care owed to the deceased to care for him once he had passed out. The Court of Appeal reversed the decision on the first point but not the second. They held that there was no reason in the circumstances why it should not be fair, just and reasonable for the law to leave a responsible adult to assume responsibility for his own actions in consuming alcoholic drink.

[35] That case, so it seems to me, is of direct relevance to the present. Why should it be fair, just and reasonable to impose on the defenders a duty to ensure that the deceased was protected from the consequences of his own deliberate actions, to guard him against the consequences of his own folly? I emphasise that I am dealing with a case at common law. Though there are regulations as to the number of hours that a person may drive, there was no case made here that the defenders were in breach of statutory duty. I also emphasise that I am not dealing with a case where a third party was injured or killed as a result of the accident; in such a case I can quite see that a strong case could be made - quite separate from a case based on vicarious liability - that the defenders, assuming a finding of knowledge, owed a duty of care to other road users not to permit their lorries to be driven on the public highways in the charge of someone who they knew to be, or had reasonable cause to believe might be, unfit through tiredness to drive. But I am here only concerned with the question whether the defenders owed a duty of care to the deceased. He must be taken to be a responsible adult who ought to have been aware of the risk he was taking. The evidence led before me showed that the dangers of driving whilst tired were well known - they ought to have been as apparent to the deceased as to the defenders. For the reason indicated briefly above, I would have held that the defenders owed him no duty of care to protect him from his own wilful conduct.

[36] Assuming, contrary to my findings, that the defenders owed and were in breach of a duty of care to the deceased, I have to consider certain additional arguments raised by the defenders. These are: (i) volenti non fit injuria; (ii) ex turpi causa non oritur actio; and (iii) contributory negligence. I deal with each in turn, again briefly given my earlier findings. I do so on the hypothesis, contrary to my earlier findings, that the defenders knew that the deceased was undertaking a day job at the same time as working for them at night, and owed him a duty of care.

[37] On this hypothesis I would have rejected the defence of volenti. The reasons can be simply stated. First, it is an essential element of the plea of volenti that the pursuer, against whom the plea is taken, knows of the risk to which he exposes himself. As Lord Guthrie puts it in Flannigan v British Dyewood Company Limited 1969 SLT 223 at 226, "the pursuer against whom it is pleaded must be sciens as well as volenti". It is not enough that the pursuer, or here the deceased, ought to have known of the risk to which he was voluntarily exposing himself. There was no evidence of knowledge here. I can quite accept that the deceased was foolish, in that he ought to have known of the risk. But on the evidence I cannot find that he did in fact know of the risk he was voluntarily running. He may well have taken the view, foolhardy though such a view might be, that he was quite capable of doing the two jobs without difficulty. Second, the plea proceeds on the basis that the pursuer, or deceased, "accepts the risk" in the sense of agreeing to relieve his employer of the consequences of the injury caused by his employer's fault: per Lord Guthrie, ibid at p.227. As Lord Watson put it in Smith v Baker [1891] AC 325 at 355, in a passage quoted by Lord Kissen in Kirkham v Cementation Company Limited 1964 SLT (Notes) 33 to which I was referred: "The question which has most frequently to be considered is not whether he (the pursuer) voluntarily and rashly exposed himself to injury, but whether he agreed that, if injury should befall him, the risk was to be his and not his master's." In a case such as the present, where the duty of care has to be one of guarding the defender against the consequence of his own folly, the plea of volenti involves saying that the deceased accepted the risk of the defenders failing to protect him from his folly. Such an argument would deprive the duty of any content and would be wholly circular - and I reject it. Third, on one view of the matter, the negligence of the defenders (assuming there to have been a duty of which they were in breach) had occurred before the deceased acted in the way he did. He took advantage of their failure to have in place a system in terms of which they ought to have forbidden him driving by night when he was working elsewhere by day. The authorities are not entirely clear on this point, but it is arguable that the plea of volenti is applicable only to a case of future negligence: see the analysis of Lord Nimmo Smith in McTear v Imperial Tobacco Limited (unreported 31 May 2005) at para. [7.206]. Where the negligence has already occurred, and the pursuer steps into the situation created thereby, with his eyes open, the proper analysis may be not volenti but novus actus interveniens. I was not addressed on this question and do not propose to deal with it in detail. Suffice it to say that, on the hypothesis that the defenders owed the pursuer a duty of the type contended for, and were in breach of it, I would not hold that the deceased's actions broke the chain of causation in this way, essentially for the reasons given above; namely, because his foolhardiness, falling short of him knowingly and wilfully exposing himself to the risks, would be the very thing which, on this hypothesis, was foreseeable and against which it was the defenders' duty to guard.

[38] I would also have rejected the defence of ex turpi causa. The plea was founded upon the fact that the deceased, as well as the defenders, was in breach of s.96 of the Transport Act 1968 in that he, as a driver within the meaning of that part of the Act, was driving a vehicle to which that part of the Act applied for a period amounting in aggregate to more than ten hours in a working day. This assumed that one should aggregate the deceased's hours driving for RH Young with his hours driving for the defenders. That section also provides that, subject to certain exceptions, the working day of a driver shall not exceed eleven hours. It is not possible for me to find, on the evidence, that the deceased was in breach of either of these provisions. Without such a finding, the maxim has no application. But even if the deceased had been in breach, I would have rejected this line of defence. As is made clear by Lord Coulsfield in Weir v Wyper 1992 SLT 579, there is in Scots law no firm rule that participation in any type of criminal conduct, however minor, disables an injured party from recovering damages. In Hewison v Meridian Shipping Services PTE Limited [2003] ICR 766, Clarke LJ, at paras. 27-29 and 33, approved the following test as formulated by Beldam LJ in Clunis v Camden and Islington Health Authority [1998] QB 978, 986-7: "whether a claim brought is founded in contract or in tort, public policy only requires the court to deny its assistance to a plaintiff seeking to enforce a cause of action if he was implicated in the illegality and in putting forward his case he seeks to rely upon the illegal acts"; and see also per Tuckey LJ at para.51, agreeing with that approach, where he asks: "is the claim ... based substantially (and not therefore collaterally or insignificantly) on an unlawful act?" That approach appears to me to reflect the law in Scotland as well. Applying that approach to the present case, the pursuers complain that the defenders failed to protect the deceased from the dangers inherent in driving whilst tired. They do not need to assert any wrongdoing by the deceased. The fact, if it be a fact, that he was driving or working for a number of hours which put him in breach of the statutory prohibition is not an essential part of their claim. Even if it were shown that the deceased was in breach of a legal limit in the hours driven or worked, and even if he was aware of such contravention of the law, it seems to me that that illegality is properly to be described as collateral to the claim and is insufficient to defeat the claim.

[39] Finally I deal with the question of contributory negligence. This only arises, of course, if the defenders were in breach of duty and liable to the pursuers for the death of the deceased. In those circumstances I would have taken the view that the deceased was the main author of his own untimely death. I would have assessed contributory negligence at two thirds.

[40] However, for the reasons I have given earlier in this opinion, I have concluded that the pursuers' claim must fail and I therefore assoilzie the defenders from the Conclusions of the Summons.