Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 71
PD1156/13	OPINION OF LORD STEWART in the cause NIALL STIRTON Pursuer; against LADYBANK TYRES LIMITED Defenders: ________________

Pursuer: Hastie advocate; Digby Brown LLP solicitors

Defenders: Cowan solicitor advocate; Simpson & Marwick solicitors

16 April 2014

[1] I heard proof and submissions in this personal injury action on 4 and 5 March 2013 and having reflected on the matter I now propose to assoilzie the defenders. In the result the pursuer will not receive payment of the sum of £13,000 which is the agreed amount of damages for the injury he sustained in a workplace accident.

[2] The accident happened on 13 June 2011. The pursuer was then aged eighteen. He was working as a tyre fitter for Ladybank Tyres Limited at their Blairgowrie premises. Ladybank Tyres Limited are the defenders. At about 16.40 on the day in question the pursuer caught his right hand in the spokes of a spinning alloy wheel fitted to a Ford Focus SR. At the time the car was on the ramp. The car had been raised clear of the ramp on the scissors jack with the wheels about head height so that the front nearside wheel could be checked for a suspected buckle. The visual inspection involved spinning the wheel and looking for a "wobble", outside and possibly inside, as the wheel turned. The fingers of the pursuer's right hand got caught between the turning spokes and the fixed brake calliper behind the spokes with the result that the pursuer suffered a traumatic amputation of the top one inch or so of his right index finger.

[3] The pursuer's claim as pled is based on breaches by the defenders of the Provision and Use of Work Equipment Regulations 1998, of the Manual Handling Operations Regulations 1992, and of the Management of Health and Safety at Work Regulations 1999; and the claim is also based on breaches by the defenders' employees of their common law duties (for which breaches the defenders are vicariously liable) and on breaches by the defenders themselves of their common law duties. The common law case was added by amendment at the bar at the outset of the proof. It is the only case relied on at the end of the day. The specific allegation is that the defenders failed in their duty to the pursuer to take reasonable care to institute and maintain a safe system of work and in particular failed in their duty to assess the risk and to provide training for the task of checking wheels for buckles. The factual premise is that the pursuer was instructed by his "foreman" Jamie Strike to spin the wheel while Strike and the customer checked for the suspected buckle; and that the pursuer had been given no information or training for the job. This case stands or falls on the question of instructions; and though I suspect the truth may lie elsewhere I cannot be persuaded on the evidence adduced that the pursuer was instructed to spin the wheel.

[4] Let me say at once that there is less difficulty about the allegation of fault. The defenders did not have a system and after the accident they instituted a system by conducting a risk assessment and training all their employees at each of their four branches to follow the system. I shall come back to the details. There is perhaps rather a different question as to whether the absence of a system caused the accident.

The circumstances of the accident: pursuer's case

[5] On the day in question the manager of the defenders' Blairgowrie branch was on holiday. The other employees at the branch, who were at work that day, were the pursuer, Jamie Strike and Alistair ("Ali") McIntosh. Strike was the senior employee in the manager's absence. He calls himself a tyre fitter but he seems to have been skilled in all departments - brakes, exhausts, suspension, tyres and wheels. McIntosh calls himself a mobile tyre fitter: he has some skill in other departments.

[6] The incident started when a customer brought a Ford Focus SR into Ladybank Tyres. The car had spoked alloy wheels. The customer was Johnny Russell of the Balmoral Garage. Importantly neither side led Johnny Russell as a witness or applied for his evidence to be received in some other way. The pursuer gave no evidence in chief about what the car had been brought in for. He simply described what happened. The pursuer testified that customer had a discussion with Jamie Strike. The customer drove the car on to the ramp guided by Jamie Strike from the front. Strike raised the ramp using the controls on the offside. Ali McIntosh was outside speaking to a customer. The pursuer said that the car had gone over a pot hole and had a dent in the front nearside wheel. (I took this to mean a dent in the outside rim of the wheel.) Strike asked the pursuer to check for a leak. The pursuer put soapy water on the tyre (where the tyre bead meets the outside wheel rim as I understood it.) There were no bubbles. The pursuer could not establish a leak but there was a dent in the outside rim. Jamie Strike put the ramp down and disappeared into the office with the customer. The customer and Strike then came back and asked the pursuer to raise the ramp so that they could check the inside of the wheel for a dent. Jamie Strike and the customer went under the front of the car. The customer was in front bending down and looking. Strike was under the car. Strike told the pursuer to spin the wheel "to see if there was a dent". The pursuer spun the nearside front wheel anti-clockwise. He demonstrated putting his right hand on the tyre at about 3 o'clock and paddling it round anti-clockwise to 11 o'clock. He did this three times. I got the impression that, after the first time, the wheel was spinning when the pursuer put his hand on the tyre to give it another spin. He said in terms that the wheel was spinning when he put his hand on the tyre the fourth time. He said that "it threw my hand into the spokes and that's how my finger got caught." (My understanding is that the Focus RS [Rally Sport] has low profile tyres without much side wall that look flat compared with normal tyres.) In cross-examination the pursuer said: "As soon as I touched it, it just flung my hand." He could not explain it. He denied trying to turn the wheel by the spokes. That would clearly have been a very dangerous thing to have done. He had appreciated that before the accident.

[7] In cross-examination the pursuer said that Jamie Strike mentioned a leak or suspected leak in the front nearside tyre and told the pursuer to check for a leak in the tyre and to check the dent (presumably in the rim). He said that before the Focus was brought in Jamie Strike was just standing about waiting for the customer: Jamie Strike was not in the office doing paperwork. The pursuer denied that the Focus had been brought in for a wheel alignment and that Ali McIntosh had set the job up with the car on the ramp. He denied that he had helped McIntosh fit the wheel-alignment gauges. He denied that McIntosh had then gone to speak to someone outside and that Jamie Strike had taken over and finished the alignment job. He denied that after the alignment the customer asked for the front nearside wheel to be checked for a buckle, that the car had been hoisted and that Jamie Strike had spun the wheel and checked for a buckle just from the outside without going underneath. He said that Jamie Strike confirmed to the customer that the wheel was buckled on the outside when the car was up on the ramp the first time. The customer and Strike then went into the office. When they came back out the ramp was put back up so that they could check the inside of the wheel. The pursuer was quite sure about that. That was when Jamie Strike told the pursuer to spin the wheel. The pursuer had no other reason to spin the wheel.

[8] Rod Allan (43) was the defenders' manager who had a particular responsibility for health and safety. He gave evidence as part of the pursuer's case. His evidence was that he had investigated the accident the following day. His evidence about the circumstances was second hand and is narrated below.

The circumstances of the accident: defenders' case

[9] Jamie Strike (30) testified that when the Ford Focus arrived he was in the office. He did not know the car was coming in. Ali McIntosh dealt with the customer initially. Ali set the Focus up (on the ramp) for a wheel alignment. Jamie Strike said that he then took over. At that point the pursuer was standing around the middle of the workshop. The alignment took fifteen to twenty minutes. He then went to the office with the customer to make up an invoice. When they were coming back out of the office the customer asked Strike to check for a buckled nearside front wheel. The car was still on the ramp. It was jacked up with the scissors jack. Strike said that he spun the wheel to do a visual check. You could see a little wobble as the wheel went round. He did the visual check looking at the outside of the wheel. He told the customer that the wheel was damaged and that a new wheel was needed. The new wheel would have to be ordered. At that point the customer was at the front of the car and the pursuer was standing behind Jamie Strike in the middle of the workshop. Strike went to put the ramp down by moving around the front of the car to the control panel on the offside. Jamie Strike's evidence was that he did not say anything to the pursuer or give him an instruction. The next thing he heard was a scream. It was fairly obvious that the pursuer had injured himself. There was no discussion as to what the pursuer had been doing. Jamie Strike flatly denied that he had given the pursuer an instruction to spin the wheel.

[10] In cross-examination Jamie Strike conceded that the ramp might have been put down after the wheel alignment and that he could have instructed the pursuer to put the ramp back up when he, Strike, went to check if the wheel was buckled. The pursuer was not at the wheel when, according to the witness, he, Jamie Strike, went to put the ramp down. Strike insisted that he was telling the truth. He did not instruct the pursuer to spin the wheel. He accepted that the pursuer would have had no reason to spin the wheel other than being instructed to do so.

[11] Alistair ("Ali") McIntosh (23) stated that on 13 June 2011 Johnny Russell brought the Ford Focus into Ladybank Tyres. From recollection it was just for a wheel alignment. Ali McIntosh was in the office with Jamie Strike at the time. Ali McIntosh said he would get the Focus on the ramp for him. He guided the customer on. Jamie Strike usually did the alignments. McIntosh started the job for Strike. He went to undo the nuts on the tracking rods but they were seized. He asked Jamie Strike to take over and went outside to speak to the sales rep from Cromwell Apex. McIntosh did not return to the workshop while the job was going on. When Ali McIntosh came back into the workshop, the Focus was still on the ramp. The witness saw Jamie Strike standing beside the nearside front wheel with the pursuer standing a couple of feet behind him. Jamie Strike walked away from the wheel round the front of the car. The pursuer moved forward to the wheel and spun it. The first time he spun the wheel safely with his hands on the tyre. The next time he put his hands in the spokes. The witness went to shout at the pursuer: "Niall don't do that!" Ali McIntosh knew what had happened. He wrapped the stump with blue paper roll, picked up the pursuer's finger and took him straight to hospital.

[12] In cross-examination Ali McIntosh confirmed that he started the wheel alignment. At first McIntosh said that he saw the buckle when the car came in. The customer told him: "The boy had hit a kerb." McIntosh said he was sure the customer said that there is a buckle and to check for that as well. The customer said the wheel had been hit. McIntosh then said he could not remember if he saw a buckle in the wheel. The witness said that on his way back from talking to the rep outside he was going towards the office. He was a few feet into the workshop. The front of the ramp was fifteen or twenty feet away. Jamie Strike was at the wheel, just about to move away from it. It looked as if Strike was walking round to put the ramp down. Strike walked past the customer who was at the front nearside of the Focus. The witness continued walking into the premises till he saw the pursuer stick his hand in the spokes. The first time the pursuer spun the wheel with two hands, definitely with two hands. He did it safely with both hands on the tyre. The witness could not say that the pursuer was not instructed to spin the wheel: but it did not look like he was told to spin the wheel.

[13] The witness admitted to Mr Hastie, cross-examining, that he had put a post on his Facebook page saying that the pursuer's claim was "a disgrace". He told me that this was a reaction to his witness citation. He thought the company [the defenders] were citing him as a witness and telling him he would not get paid for three days at Court. Ali McIntosh also told me that the pursuer was spinning the wheel with full force, like a child playing with a toy.

Dented rims, buckled wheels, wheel alignment and system of work

[14] In 2011 Rod Allan (43) was the defenders' manager who had responsibility for health and safety. He was an experienced tyre fitter. According to his evidence a suspected buckle can be checked for on the wheel balancing machine. You can make a visual check for a suspected buckle by hoisting the car on the ramp, going underneath and turning the wheel slowly. It is normally the inside of the wheel that is damaged. A dent in the rim (on the other hand) is usually visible with the wheel stationary. When doing a visual check Rod Allan spins the suspected wheel slowly at arm's length from underneath the car. A visual inspection might be appropriate if the customer thinks the wheel is buckled. It doesn't happen very often. It is a one man job.

[15] Rod Allan investigated the accident. He got the information from Jamie Strike and Ali McIntosh. He filled in the accident report book [6/7] on the day after the accident with the following "Description of the Incident":

"While checking car for a front buckle in wheel which was spun and Jamie confirmed with customer it was buckled. Away to put ramp down got to o/s/f [offside front] corner of car. Herd a screem Niall had spun wheel by using the spokes of the wheel and sliced top of finger off. Spokes and calliper. Taken to hospital... Staff advised and new risk assessment"

Allan also completed the RIDDOR [Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995] report [6/8]. He gave the following details:

"While checking a car for a front buckle in the wheel. The car was on the scissor ramp and front wheels jacked up. The wheel was spun and Jamie confirmed to the customer that the wheel was buckled. Jamie had just turned towards the off side of the car then Ally shouted to IP [injured party] to use the tyre to spin the wheel at that point IP screamed IP had cut off top of his finger between the wheel spoke and the brake calliper. IP was taken to hospital."

The RIDDOR report is undated.

[16] The risk assessment referred to in the accident report book also bears to have been completed by Allan the day after the accident [6/8/9]. The activity description is: "Spinning a wheel checking for buckle in wheel." The description of the hazard is: "Laceration, trapping." The risk likelihood is assessed as "very likely" and the consequences are assessed to be "lost time/ illness". The risk mitigation measures are noted as follows: "Training given checking wheel arch for any hazards and spinning wheel by holding tyre do not use spokes of wheel." Rod Allan said that copies were given to all employees and they were asked to sign. The document for the Blairgowrie Branch bears to be signed by "Alistair McIntosh", " J Strike" and "N Stirton" (the pursuer). The pursuer returned to work after two months sickness absence on 15 August 2011. On 30 August Rod Allan filled in a "Return to Work Interview" form which records: "Training done 30/8/11 put car on ramp and demonstrated procedures of safety and what to look out for." This document too bears to be signed by the pursuer "N Stirton". Rod Allan testified that it was the pursuer's signature. The signed original was filed in the health and safety file and the pursuer got a copy. Mr Allan was not challenged by counsel for the pursuer on the question of the pursuer's signatures.

[17] When the pursuer gave evidence (before Rod Allan) he denied that the "N Stirton" signatures were his. He said that he never signed anything. He was never shown anything like the risk assessment. He denied that when he returned to work Rod Allan had trained him to inspect for buckled wheels with a car on the ramp. The pursuer explained that wheel alignment is indicated when there is uneven tyre wear or if the customer feels the car pulling to one side. In cross-examination he said that he did not remember that the Focus needed its wheels aligned. He said: "After I spun it Jamie Strike confirmed to the customer that the wheel was buckled on the outside - that was before we put the ramp down first time, before they went to the office." He said that when the customer and Jamie Strike came back from the office the ramp was put up and they checked the inside rim "to see if there was a dent". He was quite sure about that.

[18] The pursuer said that there had been no training before the accident. He had never previously been involved in checking for a buckled wheel. If vehicles came in with buckled wheels they usually just changed them. According to the pursuer a few days after he got back to work he was told by Rod Allan to take the wheel off and put it on the wheel balancer. (The wheel balancer has a guard with, I got the impression, a safety interlock switch: but you can only see the inside of the wheel on the balancer.) Rod Allan did not give instructions as to how to see dents [sic] on the outside of the wheel on the balancer.

[19] Jamie Strike explained that wheel alignment is a one man job. Checking for buckled wheels happened "regularly", that is visual checking on the ramp. He would not use the wheel balancing machine. You look from underneath to see if there is a buckle on the inside. If you are checking the inside you spin the wheel from the outside and move to the front to see if there is a buckle. You can spin the wheel as many times as you like. Once you find a buckle on the outside there is no point in checking on the inside: you have to change the wheel. Ali McIntosh said that you can check for a buckle on the wheel balancer, that is a buckle on the inside. If the buckle is on the outside it is as easy to check on the ramp. You check for buckles every day when wheels are on the balancer.

Parties' submissions

[20] Mr Hastie, advocate, for the pursuer submitted that there are two factual issues: first, as to the mechanism of trapping, whether the pursuer deliberately used the spokes to spin the wheel or whether the moving wheel "grabbed" the pursuer's hand and threw it into the spokes; and, secondly, as to whether the pursuer had been instructed to spin the wheel or not. The information for the narratives in the accident report book and in the RIDDOR report was provided by Jamie Strike and Ali McIntosh. The pursuer was not asked to provide information. These reports are not necessarily inconsistent with the pursuer's version. The reports are not inconsistent with the pursuer having acted in accordance with an instruction from Jamie Strike (but without training). If the pursuer had been on a "frolic" of his own you would expect to see that in the reports. Mr Allan did not have the impression that it was a frolic. The suggestion that the pursuer was acting like a child was not explored with the pursuer. In answer to my questions, Mr Hastie submitted that the pursuer was not lying when he maintained that he had not signed the risk assessment and the return-to-work interview form: he was mistaken.

[21] It was submitted for the pursuer that Rod Allan's evidence made it clear that before the accident there was no risk assessment, training or system for spinning wheels on the ramp to check for buckles. Jamie Strike was lying. He was too ready to exclude the pursuer from involvement in the Focus job. When pressed he accepted that the pursuer might well have hoisted the Focus on the ramp the second time. Strike was aware that the pursuer had had no training. There was no independent evidence to support Jamie Strike's account. Ali McIntosh admitted that he was not in a position to say whether or not Jamie Strike had instructed the pursuer to spin the wheel. Although Mr Hastie contended that "there is not independent evidence" he also stated that he could not make anything of the fact that the customer had not testified. (I gather that Mr Hastie accepted information supplied by the defenders that the customer was indisposed.)

[22] The common law case is that the defenders have failed to take reasonable care to institute and maintain a safe system of work for checking wheels, whether inside or out, without taking them off the vehicle. The evidence was consistent to the effect that there was no system before the accident. As to foreseeability, Mr Allan accepted that there was a risk. Jamie Strike accepted that if you do not know how to do the job there is a risk. When the defenders applied their mind to the issue they were clear about the risk. The pursuer was not told how fast to spin the wheel. In response to the submissions for the defenders about causation, Mr Hastie appeared to accept that training would not have taught the pursuer not to put his fingers in the spokes since the pursuer knew that already. Mr Hastie stated that the speed of the wheel was relevant to the pursuer's accident. There was no suggestion that the pursuer would not have followed training and instructions, had he been given training and instructions. As to contributory negligence, if the pursuer was not using the spokes there was no negligence on his part. If he were using the spokes to spin the wheel his contribution should be assessed at no more than one third: he was young, inexperienced and untrained.

[23] Mr Cowan, solicitor advocate for the defenders, invited me to reject the pursuer as being an incredible and unreliable witness. The witness Ali McIntosh formed the impression at the time that the pursuer was just seeing how fast he could spin the wheel: it is not the case that the only conceivable explanation is that the pursuer had been instructed to spin the wheel. At every point the pursuer's evidence was in conflict with the other testimony in the case. The pursuer maintained that Jamie Strike was waiting for the customer whereas Jamie Strike and Ali McIntosh agreed that they were in the office and that it was Ali McIntosh who initially dealt with the customer. The pursuer said there was no wheel alignment but both McIntosh and Strike said that the Focus was brought in for a wheel alignment and that a wheel alignment was carried out. It made no sense to say, as the pursuer did, that the front nearside wheel was found to be buckled looking from the outside the first time the car was on the ramp and that the car was put on the ramp again to check for a buckle on the inside. Once the wheel was found to be visibly buckled it had to be replaced: there was no point looking on the other side. Anyway, Mr Cowan asked: why should Jamie Strike ask the pursuer to spin the wheel? Checking for buckles was a one man job according to both Rod Allan and Jamie Strike.

[24] Rod Allan said that "it's normally the inside that's damaged": he did not say that it is never necessary to check the outside of the wheel. Jamie Strike said that it could be the inside or the outside. Ali McIntosh said that the Focus had reportedly hit the kerb. That would be more consistent with damage to the outside. Since Jamie Strike had already identified the buckle on the outside, why, asked Mr Cowan, would Strike require the pursuer to spin the wheel to check for a buckle on the inside? McIntosh saw Strike dropping his hands as if Strike had just finished spinning the wheel; and he saw Strike moving round to the offside of the Focus. All of this was consistent with Strike's account of having found a buckle on the outside and knowing then that the wheel had to be replaced without any further spinning and inspection.

[25] In the absence of expert evidence it was not possible to understand how the pursuer's finger had got trapped if he were simply putting his hand or hands on the tyre to spin the wheel. The likelier explanation is that the pursuer was using the spokes to spin the wheel. If his hand were to be thrown off the spinning tyre it was more likely that it would have been thrown against the wheel arch rather than into the spokes. The contemporary records, the report in the accident report book and the RIDDOR report, were more consistent with the defenders' version than with the pursuer's version. The records are consistent with the evidence given by Strike and McIntosh. You would not necessarily expect brief documents like these to attribute blame (to the pursuer). As for the appearance of "the pursuer's signature" on the return-to-work interview form and on the risk assessment, it was not possible to reconcile the pursuer's denials with the acceptance by pursuer's counsel that Rod Allan was telling the truth about this matter: the pursuer was lying, and his lie tainted the whole of his evidence. There was also a clear conflict between the pursuer and Rod Allan about the training that the pursuer had received from Allan after the accident. Again there was no suggestion that Allan was lying.

[26] Mr Cowan also highlighted discrepancies between the pursuer's evidence and the pleadings [Record (as amended), February 2014, No 18 of process, as further amended at the bar.] At 4B-C the pursuer averred: "The pursuer was instructed by Jamie William Strike, to guide a Ford Focus motor vehicle on to the ramp." And at 5B-C the pursuer averred: "When the pursuer returned to work after his accident, he was provided with this training [as envisaged in the post-accident risk assessment.] Mr Cowan accepted that mistakes can be made: but in this case the pleadings had been amended up to the opening of the proof. The pursuer maintained that he, the pursuer, had drawn these discrepancies to his solicitor's attention. If that were true, why had nothing been done to address the problem? The pursuer was not to be believed.

[27] It was agreed that the pursuer's case must fail unless it were established that the pursuer was instructed to spin the wheel. The pursuer's common law system case was founded on the fact that the pursuer had no training, on the absence of written procedures, and on the inconsistency of approaches (as to whether to make a visual inspection on the ramp and whether to take the wheel off and put it on the balancer). Would a system have made any difference? In order to succeed, the pursuer has to establish that a system would have taught him something he did not know already. The pursuer accepted in evidence that he already knew that it would be dangerous to stick his fingers into the spokes of a turning wheel. The pursuer's case must fail absent evidence from the pursuer as to how giving him training would have prevented the accident [Neil v East Ayrshire Council 2005 Rep LR 18 at § 26].

[28] Should it be found that the accident was caused by the defenders' fault, the question of contributory negligence must arise. If the pursuer attempted to spin the wheel by the spokes, that was patently a risky and dangerous thing to do. This was not an accident caused by momentary inadvertence. A fifty per cent reduction in any award for his negligence would be appropriate. It was not taken from the pursuer that a safe system including training would have stopped him using the spokes to spin the wheel. Even if the pursuer did not use the spokes, he failed to take reasonable care to avoid his fingers being caught in the spokes. There was no suggestion in the evidence that spinning a wheel was inherently dangerous.

Assessment and decision

[29] The evidence left me uncertain as to what really happened. I think at one stage one of the witnesses accepted, in answer to a question from me, that a blow to one of the wheels, such as might occur hitting the kerb or a pothole, could put the wheel alignment out: but the evidence about this is not solid. I cannot understand why the customer should have wanted to have the wheels aligned if one of the wheels were known to be buckled and had to be changed. One of the witnesses told me that the alignment would hold good if the wheel were to be changed: but I confess that I do not understand how this can be certain if the wheel to be changed is a buckled one. There was also some ambiguity in the evidence about whether the issue was about a dent or dents in the wheel rims or about a buckled wheel or about both. The pursuer at times talked about checking for a dent by spinning the wheel. I prefer the evidence that a dent in the rim can be identified without spinning the wheel.

[30] There is a clear conflict in the evidence about how often wheels were checked for buckles on the ramp with the wheel still on the vehicle. There was also a conflict as to whether the check on the ramp should be made from underneath or from the "outside". Jamie Strike told me that you could not spin the wheel from underneath the car because only a portion of the wheel and tyre showed. If he wanted to look from underneath he would spin the wheel from the outside and then go round and have a look while it was still spinning.

[31] Having said all that, there are also problems with the pursuer's evidence, indeed three main problems. The first problem is that the pursuer is contradicted at many, if not all points by Jamie Strike and by Ali McIntosh. As to the crucial question whether the pursuer was instructed to spin the wheel Ali McIntosh could not be categorical: but he did form a distinct impression as to what was going on; and his impression contradicts the pursuer's case. I thought he was a good witness. The second problem is that the pursuer flatly denied that he had signed the documents presented to him by Rod Allan and flatly denied that he had received the training that Rod Allan claimed to have given: but it was not suggested to Rod Allan that Rod Allan was wrong about these things. It follows that I am not in a position to accept the pursuer's evidence about these matters. I should say that when the pursuer gave the evidence in question my provisional impression was, anyway, that his evidence was unconvincing. I do not agree with Mr Cowan that the whole of the pursuer's evidence is thereby tainted: but it is necessarily more difficult to accept the pursuer's version of the essential facts. It is also the case that the pursuer was quite definite and also mistaken about a number of other matters, such as the time of day when the accident happened.

[32] The third problem is that the evidence presented for the pursuer does not give a coherent account of the job that was being done on the Ford Focus. I think that at times the pursuer's evidence may have confused, or failed to distinguish between, a dented wheel rim and a buckled wheel. If the wheel were known to be "buckled" by making a visual inspection from the outside, as the pursuer at one point maintained happened when the car was first on the ramp, I simply cannot understand why it should have been thought necessary to raise the car on the ramp a second time to check for a buckle on the other side of the wheel. The customer's evidence might possibly have been decisive in the pursuer's favour: but the customer was not led as a witness; and his account was not put in evidence in some other way. I did wonder whether the pursuer's case might have been put more broadly on the basis that the existence of spinning spoked wheels in the workplace constituted a hazard that should have been guarded against: but pursuer's counsel - and I certainly do not say that he was wrong to do this - stated that the pursuer's case was based on an instruction having been given and that counsel did not think it proper to depart from this as the basis of the claim.

[33] I also take the view, that as the evidence emerged, the pursuer faces a problem as to causation. The impression I got from the witnesses Jamie Strike and Rod Allan is that the wheel does not have to be spun fast in order to identify a buckle. On the pursuer's account his accident was caused by the speed at which the wheel was rotating. That the speed of rotation was the cause is not at all obvious on the face of the pleadings. In closing submissions the speed of rotation was put forward by pursuer's counsel as the cause of the accident ― on the pursuer's version of events: but the question of the speed of rotation and the risk, if any, arising had not been explored with the witnesses. In the state of the evidence I am unable to conclude that, if the defenders had exercised reasonable care, they would have instituted and maintained a system whereby their tyre fitters were trained and instructed not to spin wheels too fast or alternatively to spin wheels only at a slow or moderate speed. I simply do not know what the defenders' witnesses would have said about the matter. The pursuer did not offer evidence that if he had been told not to spin the wheel fast he would have complied. In the circumstances of this case I am not prepared to assume or infer that he would have complied.

[34] In the result I am left unpersuaded by the evidence that the pursuer was instructed to spin the wheel, preferring the evidence of Jamie Strike and Alistair McIntosh on that matter. Even if the pursuer were so instructed the evidence does not allow me to conclude that the defenders were at fault in omitting to train and instruct the pursuer as to the speed at which wheels were to be spun or that it was their fault that caused the accident. I shall assoilzie the defenders reserving all questions of expenses.