Scottish Sheriff Court Decisions

THE SHERIFFDOM OF NORTH STRATHCLYDE AT KILMARNOCK

A465/07

JUDGEMENT OF SHERIFF BRIAN A MURPHY in the cause DAVID PATTERSON, residing at 92F Raise Street, Saltcoats, Ayrshire KA21 5JY Pursuer against GRATTAN PLC, Anchor House, Ingleby Road, Bradford, West Yorkshire Defenders ­­­­­­­­­­­­­­­­­________________

Act : Middleton, Advocate

Alt : Kennedy, Advocate

KILMARNOCK : 2 November 2010.

The Sheriff, having resumed consideration of the cause, Finds the following facts admitted or proved.

Findings-in-Fact:

(1)         The Pursuer is David Patterson. He formerly resided at 92F Raise Street, Saltcoats and now at 2 Carey Road, Saltcoats. The Defenders are based in Bradford and retail goods to the public by means of mail order.

(2)         In early April 2004, the Pursuer purchased from the Defenders a Silver Fox 'Bad Attitude' bicycle, Model Number BAD02, by means of mail order.

(3)         The Defenders, in response to the Pursuer's order on or about 5 April 2004, delivered to the Pursuer said bicycle as a flat pack. When removed from its packaging it was necessary for the Pursuer to straighten the handlebars, fit the pedals and connect the brake cables.

(4)         The Pursuer duly assembled said bicycle, but had difficulty fitting one of the pedals. He telephoned the Defenders and obtained by courier delivery the following day two replacement pedals which he then fitted.

(5)         The Pursuer duly took said bicycle out and rode it for a few hours without incident. Within a day or so thereafter, he took said bicycle to Stuart Shedden of North Ayrshire Cycles and requested that he service said bicycle. Stuart Shedden duly carried out a service realigning the brakes, wheels and gears and checking that the pedals were tight.

(6)         On or about 9 April 2004, the Pursuer was out cycling alone on said bike when he was involved in an accident.

(7)         On or about the following day, he and his father took said bicycle back to North Ayrshire Cycles. The Pursuer remained in his father's vehicle, but his father asked said Stuart Shedden of North Ayrshire Cycles to inspect said bike.

(8)         Mr Stuart Shedden examined said bike and determined instantly, according to him, that there was a faulty cog in the rear freewheel mechanism and that as a result, a ratchet had failed to engage. He did not open the rear hub.

(9)         Mr Shedden immediately advised the Pursuer's father of his findings and as instructed, removed the rear wheel and attached freewheel mechanism, replacing it with a second hand rear wheel and mechanism at a cost of approximately £30.00.

(10)     Mr Shedden retained the rear wheel and freewheel mechanism, which he had removed from said bicycle and eventually placed it in storage, scrapping it in the summer of 2008.

(11)     Within days of said inspection and in any event by mid April 2004, Mr Shedden telephoned the Pursuer and confirmed his findings personally of the faulty rear freewheel mechanism and that said bicycle was now repaired and ready for collection. The Pursuer was aware that those parts removed had been retained by Mr Shedden.

(12)     At no time did the Pursuer or his father ask Mr Shedden for return of the original rear wheel or freewheel mechanism.

(13)     Some months following said accident, the Pursuer telephoned the Defenders. He expressed his dissatisfaction with said bicycle. He obtained their agreement that they would reimburse him some £30 in repair costs. Later, the Defenders agreed as a good will gesture to refund all sums paid by the Pursuer and uplift said bicycle by courier. Said bicycle was eventually returned to the Defenders, the refund credited to the Pursuer's account in October 2004. The Defenders thereafter returned said bicycle to their suppliers.

(14)     In April 2005, the Pursuer consulted the National Accident Helpline who in turn referred him to his present firm of solicitors. There he spoke to Robert Moore, a para legal with that firm, who on 6 May 2005 wrote to him inter alia seeking "confirmation regarding the nature of the defect ... ... alternatively to let us have details of the local bicycle dealer ... ...".

(15)     On or about 24 August 2005 the Pursuer, through his solicitors, formally intimated a claim to the Defenders which claim was acknowledged by letter of 12 September 2005.

(16)     By letter of 7 November 2005, the Pursuer's agent wrote again to the Pursuer requesting a report from the repairer, North Ayrshire Cycles, relating to the defect complained of. The Pursuer responded by letter of 6 February 2006, enclosing an undated letter from Mr Shedden of North Ayrshire Cycles setting out his findings of a faulty cog in the rear freewheel mechanism. By letter of 11 March 2006, the Pursuer's agents wrote to the Defenders' adjusters enclosing copy of Mr Shedden's letter.

(17)     Throughout said correspondence, the Defenders' adjusters disputed that there had ever been a report of an accident by the Pursuer.

(18)     In January 2007, responsibility for the Pursuer's file was transferred within the firm of solicitors to Mr David Forbes, a partner within said firm. Proceedings were instituted by him against the Defenders in March 2007.

(19)     Mr Forbes eventually met with Mr Shedden in Saltcoats on or about 23 September 2009. At no stage prior to this had the Pursuer mentioned to his solicitors that the rear wheel and attached freewheel mechanism had been retained by Mr Shedden. Mr Shedden disclosed to Mr Forbes that he might still have such parts in storage and offered to carry out a search. Until this date the Pursuer's solicitor's understanding was that all of the original bicycle had been returned to the Defenders in October 2004. On or about 1 Octoer 2009, Mr Shedden confirmed that both the rear wheel and freewheel mechanism had been scrapped.

(20)     The Defenders operate various procedures in respect of returns. Generally, returns are accepted within a reasonable period and the customer's account is duly credited accordingly. Returns are accepted for a variety of reasons, not necessarily because of faults or defects.

Specifically where an accident is alleged to have occurred, the Defenders operate a specific and separate procedure. In these circumstances, customers are requested to complete an incident/accident form and provide a label and documentation so that such goods on return can be clearly identified and examined by the Defenders or their suppliers.

(21)     The Defenders checked their records from early 2004 to date but could find no trace of any accident/incident report form being received from the Pursuer. The Pursuer's bicycle was treated as a normal return and no examination of said bicycle was made when returned in October 2004.

Finds-in-Fact and in-Law:

(1)         This court has jurisdiction.

(2)         Declares that any oral evidence of the witness, Mr Stuart Shedden, regarding the condition of the rear freewheel mechanism from the Pursuer's bicycle and the documentary evidence thereof contained in Mr Shedden's report, Number 6/9 of Process, are inadmissible.

(3)         Separatim Finds and Declares that the oral evidence of the Pursuer regarding the failure of the pedals to offer resistance at the time of, and after, the accident and the Pursuer's father regarding the behaviour of the freewheel mechanism from the Pursuer's bicycle after the accident, are inadmissible at proof; Accordingly, Sustains the first and second pleas-in-law for the Defenders; Repels the Pursuer's first, second, third and fourth pleas-in-law all as contained in the Defenders' Minute with Answers for the Pursuer as adjusted; Grants Decree of Absolvitor in favour of the Defenders; Reserves expenses meantime and Appoints parties to be heard in respect thereof on TUESDAY 30 NOVEMBER 2010 at 10.00 am.

Note

This matter proceeded by way of preliminary proof before me on 26 August, 3 and 16 September 2010. It had first called before me on 22 April 2010 and reference should be made to my earlier Note in this respect. Whilst on that occasion the Defenders had sought absolvitor, it appeared to me in the course of that earlier three day hearing in April and having considered the authorities referred to, that I could not give appropriate weight to the concepts of fault and prejudice, given the non-availability of the primary evidence and the Pursuer's wish to lead secondary evidence of the condition of the bicycle without hearing evidence restricted to (a) the circumstances surrounding the deposit of the Pursuer's bicycle with Stuart Shedden and (b) the subsequent loss of the rear wheel mechanism, hence I allowed a preliminary proof restricted to these issues.

Defenders' Evidence

The Defenders duly led and in order to maintain a correct chronology, evidence was heard from the Pursuer's solicitor, Mr David Forbes, Mr Lee Weighman, a Legal Executive with the Defenders, and Mr Stuart Shedden, the bicycle mechanic.

Mr Forbes spoke of his firms early involvement having first been consulted in April 2005, exactly a year after the accident. Initially the matter was handled by a para-legal and he only became involved personally in early 2007. His understanding of matters from file notes, discussions with his para-legal, Mr Moore, and with the Pursuer were to the effect that the whole bicycle had been returned to the Defenders by the Pursuer in October 2004, following upon the Pursuer reporting said accident personally to the Defenders by telephone.

It was only when he met Mr Stuart Shedden for the first time on 23 September 2009, that he first became aware that the rear wheel and freewheel mechanism had been retained by Mr Shedden and even at that date might still be available in Mr Shedden's storage facility. As it turned out in the week or so thereafter, this proved not to be the case, but it was my clear understanding that Mr Forbes was not challenged by the Pursuer that he could possibly have known earlier of the whereabouts of the original rear wheel and freewheel mechanism.

Next, evidence was heard from Mr Lee Weighman, a legal executive with the Defenders' holding company. Mr Weighman's involvement had been to check paper and computer records after the event with a view to determining a history of the transaction surrounding this bicycle and to speak to the Defenders' administrative procedures.

The records disclosed that the bike was ordered on 2 April 2004, a Friday, and was probably delivered the following Monday, 5 April 2004. A telephone call was logged from the Pursuer that day which may have related to his problem with the pedals. There were however, apart from this, no records of the Pursuer having phoned the Defenders in April or May 2004. There was a record of a credit of £30 being allowed on 24 August 2004, but no script showing the reason for this, or the nature of any repair being carried out.

On 22 October 2004, there was a record of "an uplift", meaning the goods were being returned with a refund to the Pursuer's account of £199.99.

Mr Weighman explained that when an accident is reported, quite different and separate procedures are triggered from those relating to normal returns. In the former circumstances, customers are sent specific forms requesting that they complete outlining the nature of the fault and the circumstances surrounding any accident.

Such returned items are separately identified with labels marked "accident" so that they can be the subject of further investigations, sometimes with the supplier.

In this case, it is clear that the bicycle had been treated as a normal return and not as an accident and returned to Universal Cycles, the suppliers, without examination.

Mr Weighman was adamant he had checked the audit log carefully and whilst he accepted that a defect was reported in relation to the bike, no accident was ever reported to the Defenders by the Pursuer.

Next the Court heard from Mr Stuart Shedden, a bicycle mechanic with North Ayrshire Cycles, who in fact had run the premises owned by his father, since January 2000. The business was involved in the sale of specialist bikes and their maintenance.

He had first met the Pursuer when he called in April 2004 requesting a full service. He recalled the bike was virtually new. He confirmed that he set up the gears, made the appropriate adjustments, checked the pedals etc.

A few weeks later, the Pursuer's father called again at the premises with the bike. It was his understanding that the Pursuer had had an accident with the bike the previous day. His father wished to know whether the cause of the accident lay with the bike or his son.

He told the Court that he took the rear wheel off and was able to determine instantly where the problem lay. He did not require to open the rear hub, as it was clear to him that there was a faulty cog in the rear freewheel ratchet which had failed to engage.

His recollection was that he confirmed all of this to the Pursuer's father within minutes of inspection and with his agreement, removed the rear wheel and mechanism and fitted a second hand rear wheel and mechanism. He thereafter retained the removed parts ie the rear wheel and freewheel mechanism and placed them in storage. He charged the Pursuer approximately £30 for providing and fitting the second hand wheel.

His recollection was that the rear wheel was stored at a farm where he had storage facilities until the summer of 2008, when he disposed of it and other items to a scrap dealer. He maintained that he kept the ratchet mechanism separate and at the shop "to demonstrate to customers why they shouldn't buy a cheap bike". He maintained, however, he only kept the ratchet for a matter of weeks.

He was adamant that when he serviced the bike prior to the accident, he had simply adjusted the screws on the dérailleur system, but did nothing that would have affected the ratchet system.

Pursuer's Evidence

The Pursuer gave evidence of his wish to purchase a jump or stunt bike. His ultimate wish was to become involved in downhill mountain biking.

Accordingly, he had purchased by mail order from the Defenders a Silver Fox "Bad Attitude" Model Number BAD02 on 2 April 2004. His recollection was that he obtained delivery the next day. The bike arrived as a flat pack and he immediately assembled it as per instructions provided. He recalled that one of the pedals had been cross-threaded and wouldn't fit. He phoned the Defenders and requested a replacement pedal. Instead the Defenders sent two pedals by courier, which he recalled receiving on Monday 5 April.

Thereafter he was able to ride the bicycle and duly did so for a few hours without incident. Sometime in the middle of that week he recalled taking the bike to North Ayrshire Cycles for a service to ensure everything was tight and in order.

The bike having been serviced, he then went out on his own on Friday 9 April and it was while going up an incline that he had his accident and fell from the bike. He described it as feeling "as if the chain had come off, but it hadn't. He felt he was pedalling but there was no resistance.

He recalled waiting until Saturday 10 April before attending hospital. He was fairly sure that that evening after attending hospital, he phoned the Defenders and reported his accident. He in all claimed he had phoned the Defenders four or five times over a period of weeks. He told the Defenders' employee that it was a severe accident and that he had injured his knee. He did not, however, keep any records of his telephone calls.

Within a few days of his accident, he arranged with his father to have the bike returned to North Ayrshire Cycles for inspection.

The bike was transported in his father's vehicle. He waited in the vehicle whilst his father took the bike into the shop. On returning to the vehicle, his father relayed to him Mr Shedden's comments concerning the defective rear wheel mechanism. In any event, he recalled Mr Shedden phoning him personally shortly thereafter and confirming his views about the faulty ratchet. At this stage he said he was unsure whether he would keep the bike, but recalls on its return it being stored in a ground floor storage cupboard at his father's flat. He was aware Mr Shedden, of North Ayrshire Cycles, had retained the rear wheel and freewheel mechanism. He recalled paying £30 for a replacement rear wheel and freewheel mechanism and sending the Defenders a receipt in respect of this in August 2004. He was now unsure when he first discussed returning the bike, but agreed he eventually did so in October 2004.

He accepted now that retention of the rear wheel and freewheel mechanism was important, but did not treat it with any priority at the time. He was more concerned with getting better

In or about April 2005, he took legal advice. He confirmed he told his solicitors that the bike had been returned to the Defenders, but omitted to tell them that North Ayrshire Cycles had retained the rear wheel and freewheel mechanism. He accepted that it was only in the course of last year (September 2009) when Mr Forbes had been taking a statement from Mr Stuart Shedden that his solicitor became aware of this fact.

He maintained that because he had told the Defenders in several telephone calls about his accident and resultant injury, he expected them to interview him and advise him to seek a lawyer.

Submissions for the Defender

Counsel for the Defenders, Mr Middleton, helpfully provided a written outline of his submissions, he stressed that the only issues for determination at this Proof were -

(i)            the facts surrounding the disposal of the mechanism,

(ii)          who was ultimately responsible, and at fault for such disposal,

(iii)         how that affects the admissibility of the evidence of the Pursuers, his father, and Mr Shedden, and

(iv)        if inadmissible, whether the Pursuer can prove his case by some other means.

He referred to the uncontroversial facts surrounding the purchase of the bicycle, the initial service by Mr Shedden, the occurrence of the accident, the bicycle being returned to Mr Shedden for inspection, his discovery of a defect in the rear freewheel mechanism, and his retention of certain parts. Thereafter, the bicycle was returned to the Defenders in October 2004, and in the following April, legal advice was sought, and eventually a claim intimated in August 2005, thereafter, the rear wheel and freewheel mechanism were disposed without ever having being returned to, or examined by the Defenders. He further submitted that in essence there were only 7 findings in fact that were essential to the finding of fault (or more precisely the inability of the Pursuer to prove no fault on his part). Some were controversial, others were not.

(1)         Following the accident Mr Shedden examined the bicycle and identified the cause of the accident as being a defect in the rear freewheel ratchet mechanism,

(2)         That Mr Shedden advised the Pursuer, and his father, at the time or shortly after, of the results of his inspection, thereby fixing the Pursuer with knowledge that the freewheel mechanism had been implicated in the accident,

(3)         That following inspection, Mr Shedden retained possession of the rear wheel and free wheel mechanism.

(4)         That the Pursuer was aware that Mr Shedden had retained these items.

(5)         That Mr Shedden retained them long enough for the Pursuer, reasonably, to have retrieved them.

(6)         That the Pursuer never asked Mr Shedden for the return of these items, or at least the freewheel mechanism.

(7)         That once the Pursuer had instructed his present solicitors, the Pursuer never advised them that Mr Shedden had retained these items so that they could recover them.

Mr Middleton then summarised in turn the evidence which would support such findings in fact. He thereafter focussed on the issue of "fault", stressing -

(a)          that the Pursuer knew, or ought reasonably to have known, that the freewheel was implicated in the accident,

(b)         knew, or reasonably to have known, that the rear wheel was in the possession of Mr Shedden, from whom it could, and ought to have been recovered, either by him, his father, or his agents, had they been told.

Even if the Pursuer had not realised the significance of retaining the rear wheel in April 2004, he ought to have done so by February 2006, when he produced Mr Shedden's report to Messrs Walker Laird. By failing to enquire of, and retrieve it from Mr Shedden, and by failing to advise Messrs Walker Laird of its whereabouts, at any time up until its disposal, the Pursuer had failed in his high duty of care to take all proper steps to preserve this fundamental item of real evidence, and is solely responsible for its loss.

Certain evidence relating to the Defender's recall/recovery procedures was led under reservation. Mr Middleton submitted that the existence, and/or implementation of such procedures, were irrelevant to the disposal of this Proof.

It was the Pursuer's case that he reported the accident and the defect to the Defenders on more than one occasion. He therefore seeks to blame them for failing to implement their recovery procedures so that the bicycle, including the rear wheel, could be examined and preserved by them. In contrast, the Defenders submitted that on the facts, neither the accident, nor the defects, were reported to them. A refund of £199.00 had been given as a good will gesture, but not because of any reported accident.

Thus, if the Court accepted that the accident was not reported, the Defenders cannot have been to blame for the disposal of the rear wheel and freewheel mechanism. However, even if the accident had been reported to the Defenders, and they failed to implement their recovery and inspection procedures, that did not dilute, or excuse the Pursuer's own failure to preserve the mechanism in light of a possible claim for damages. Any such failure by the Defenders did not result in the actual loss of the mechanism. The mechanism was disposed of by Mr Shedden, and any failure by the Defenders simply left it longer in his possession, and from whom the Pursuer ought to have recovered it. Ultimately, he submitted, any action or inaction by the Defenders, did not cause the loss of the mechanism, that was not the casus amissionis.

Mr Middleton then returned to his principal submission that the reason why the Defenders are prejudiced by the absence of the freewheel mechanism is because they cannot obtain their own expert opinion to properly test the Pursuer's position that the freewheel mechanism spun freely in both directions. Whilst they can speculate on other reasons for the loss of pedal resistance, the proper way to test the Pursuer's case is to challenge the primary suggestion that the freewheel was in fact faulty. If the evidence of the Pursuer, his father, and Mr Shedden concerning the behaviour of the rear wheel is held admissible, the evidence about any defect in, and the behaviour of the rear wheel, would be entirely one sided.

Accordingly, he submitted, that the Defenders were entitled to have excluded from probation any evidence about the behaviour or physical condition of the freewheel, namely any evidence that it spun in both directions, and/or that the reason for that was a defective or broken ratchet cog.

Accordingly, the Defenders were entitled to have excluded -

(a)          the evidence of the Pursuer that the pedals failed to offer any resistance, and that they spun in both directions at the time of the accident,

(b)         the evidence of the Pursuer's father to the same effect after the accident,

(c)          the oral evidence of Mr Shedden and his documentary report (number 6/9 of process) that

(i)            that the freewheel spun freely, and

(ii)          there was a defective cog or ratchet.

In Mr Middleton's opinion the absence of the freewheel speaks for itself, but it would also have been important for the Defenders to have examined the rear wheel in its entirety, and indeed, the bicycle in its entirety, so as to identify any other possible mechanical problem, consistent with, for example, misuse by the Pursuer, or to discount any mechanical problem, leaving only rider error as the most likely cause of the accident.

If the foregoing submission was upheld, and such secondary evidence was excluded, the question for the Court was "what other admissible and reliable evidence could the Pursuer rely on to prove his case". In other words, could he conceivably succeed via any other evidential route. In the Defenders' submission he could not. In order to succeed it was not enough for the Pursuer to prove that he had had an accident, or even that it was caused by a broken ratchet, it was not a case of res ipsa loquitur.

The onus of proof remained on the Pursuer to establish on a balance of probabilities that the accident was caused by a broken ratchet, and that it existed on the bike, or was latently about to manifest itself, at the time it was delivered to him.

In other words the Pursuer required to prove that the ratchet was broken. In the Defenders' view he could not do so without the evidence of Mr Shedden, but arguably, he couldn't do that even with the evidence of Mr Shedden, since Mr Shedden never in fact opened up, or inspected, the freewheel mechanism itself, and such inevitably affected his reliability.

Thereafter, and additionally, he required to prove that the defect existed in the bike as delivered, ie that it was a defect attributable to some breach of contract by the Defenders, that effectively meant that there had to have been some failing in the manufacturing process. The Pursuer fairly recognises that, and offered to prove that the ratchet broke, or was broken, as a result of 3 features of the manufacturing process, namely -

1.            poor choice of lubrication,

2.            poor choice of materials, and

3.            questionable quality control.

The source of those averments was the expert report by Mr Richard Hoyle, number 5/33 of process. Mr Hoyle admits to speculating about these matters, as he, of course, had never seen the bike, and his report was underpinned by the evidence of Mr Shedden. Accordingly, without Mr Shedden's evidence, Mr Hoyle's evidence had no basis, and neither the Pursuer nor his father, were in a position to speak to the manufacturing process.

Hypothetically, if not the manufacturing process, was there an issue with the Defenders' delivery service, ie was the bike damaged in transit? There were no averments or evidence about that, and it was almost impossible to see how that could have been a feature in the present case.

Positively, against the Pursuer's ability to attribute any defect to the Defenders, was the fact that the bicycle was clearly not in its "as delivered state" by the time of the accident as -

(a)          it required a degree of self assembly by the Pursuer,

(b)         it had been taken to Mr Shedden for a service,

(c)          Mr Shedden had amongst other things adjusted the gearing mechanism,

(d)         there had been some sort of problem with the pedal, and there must be room for speculation whether the Pursuer cycled with the bicycle not having received replacement parts, and knowing there was a pedal problem, and

(e)          the Pursuer had used the bike before the accident, and bearing it mind it was a jump bike, it was not a bicycle which was purchased with the view to a gentle cycle run, it was meant for physical jumping, but that may have conceivably caused the damage.

Accordingly, it was Mr Middleton's submission that the Pursuer could not succeed by any other evidential route, and that the proper course for the Court was to grant absolvitor.

Pursuer's Submission

Mr Kennedy's submission can be conveniently divided into 3 chapters.

(i)            the legal basis, ie what the Pursuer required to prove to succeed,

(ii)          the relevancy of the Defenders' minute, and submissions on the test the Defenders sought to apply, and

(iii) submissions in relation to the factual issues as they affect the concepts of "fault" and "prejudice".

(i) Legal basis

Mr Kennedy reminded the Court of the terms of Section 14 of the Sale of Goods Act 1979, and in particular, of Sections (2A), (2B), and of the requirement that there be freedom from minor defects and that, inter alia, safety and durability be taken into account. He referred to Crowther v Shannon Motor Company, 1975, WLRI and Lord Denning's observations at page 33 concerning engine failure a short time after sale.

He also referred to Thain v Anniesland Trade Centre, 1997, SLT (Sheriff Court) 102 arguing that if an important component fails soon after purchase that may be a strong indicator that the item is not of satisfactory quality.

His opening submission, therefore, was that the Pursuer need only prove that within a week of purchasing the bicycle it failed to operate properly due to the freewheel hub failing to ratchet, and that such a failure leads to the conclusion that the bicycle was not of satisfactory quality at the time of purchase.

It was Mr Kennedy's contention that the Pursuer did not need to rely on expert evidence, or establish technical or engineering reasons for the failure of the component to ratchet. It was his submission that any eye witness was competent to speak to seeing its failure to ratchet.

In this context, in so far as he gave evidence of what he saw, Mr Shedden was simply an eye witness, he was not a professional witness, who for a fee prepared a report for litigation purposes, nor should he be seen as the Pursuer's witness, simply because the Pursuer paid him for carrying out a repair. All 3 individuals, ie the Pursuer, his father, and Mr Shedden, were entitled to speak as eye witnesses to seeing the freewheel hub turning in both directions.

(ii) Test to be applied

Mr Kennedy began this chapter of his submission by referring back to my earlier note, and suggested that the Court ought not to apply the test as outlined in Scottish and Universal Newspapers v Ghersons Trustees, 1987, SC 27, and subsequently followed in Peacock Group v Railston and another, 2007, CS0H26. He submitted that there may be scope for distinguishing situations, depending at what time the documents, or real evidence, was lost, and that the same duty may not apply where the real evidence was lost before the action commences (as in the present case). In Scottish and Universal Newspapers, the Pursuers had effective control of the records when the action began, and in Peacock they were lodged, but borrowed out, by the Pursuers' agents, and never returned.

His reasoning why the Court should not follow Peacock was largely based upon his recent researches which had brought to his attention the case of Haddow v Glasgow City Council, 2005, SLT 1219 in which Lord McPhail had examined the historical origins of the best evidence rule. He submitted that properly understood, there was no general best evidence rule, but specific exclusionary rules of the common law, and that the proper test, as he had submitted at the previous hearing, was one of practicability. He accepted that Lord Drummond Young in Peacock had not referred to Haddow, but in his submissions the strength of Haddow lay in its examination of the historical origins of the doctrine at page 7, and that the Court should follow Lord McPhail's reasoning, ie that the evidence would be admissible if sufficiently relevant to an issue in dispute, and must not infringe any of the exclusionary rules (he conceded he had been unaware of this authority at the earlier hearing in April 2010). For the foregoing reasons he submitted that the Court should sustain the Pursuer's preliminary plea within the Minute.

(iii) Factual Issues

Finally, Mr Kennedy addressed 4 factual questions which arose.

(a) when was the freewheel hub assembly disposed of? He conceded there was a serious discrepancy in this context between what Mr Shedden told Mr Forbes in September 2009, and what he said in evidence. This was material, he submitted because only actings up to the date of loss could be taken into account in assessing whether loss had arisen due to the actings of a party.

Crucially, Mr Shedden denied on oath telling Mr Forbes he had retained the hub until he cleared out his storage facilities in the summer of 2008. His evidence in Court was that he had retained it for days, or a few weeks, but not for months.

Mr Kennedy submitted that the Court should prefer his evidence under oath. His earlier evidence in 2009 was contained in a file note, and may not have been accurately recorded by Mr Forbes, the circumstances in which it had been produced had not been properly explored or tested. He accepted that Mr Shedden was the only source of evidence on this matter, but it pointed to the freewheel mechanism having been disposed of fairly soon after the incident, and probably by the late summer of 2004.

(b)       whether the Pursuer reported his accident, and his injury, to the Defenders shortly after the accident. Mr Kennedy submitted that there was little doubt that the Pursuer had been in telephone contact with the Defenders. He had clearly contacted them about a replacement pedal, he had clearly arranged the return of the bike, and it was conceded he was given a credit of £30.00 in August 2004. It was, he submitted, highly likely that the Purser was advised to have the repair carried out locally, and thereafter send them such receipt.

In all the circumstances it was therefore highly likely the Pursuer, he suggested, would have told the Defenders of his injury when discussing the defect that caused said accident. The more likely explanation, he suggested, was that the call centre had failed to identify the significance of what was being said, and failed to record it as an accident.

In these circumstances, he went on, the Defenders had an opportunity to investigate the cause of the accident, and secure preservation of the component. If they failed to do so, they had no cause for complaint, nor should they be allowed now to complain if they allowed or encouraged the Pursuer to dispose of the defective component.

In the Defenders' separate procedures, where an accident had been reported, they recognised some kind of responsibility whereby they assumed control of the investigative process. They must have many customers of differing levels of sophistication and vulnerability, and it was only right that such customers should be able to look to them for guidance.

(c) To what extent is the Pursuer at fault for failing to preserved the component? The significance of the rear freewheel mechanism may now be obvious, he suggested, but it was not obvious, even to the Defenders, in the early stages of this litigation, therefore, should the Pursuer be found at fault because it didn't occur to him that it had to be preserved? He submitted that the Pursuer did not understand the legal issues or the procedures involved, and that it was for the Defenders to take their victim, the Pursuer, as they found him. In these circumstances, he concluded, that the level of fault on the part of the Pursuer was minimal in the weeks following the accident, when the item could have been preserved.

Finally, he addressed the issue of prejudice to each party. Basically, he submitted, each party was equally prejudiced, as neither side had been able to have their professional expert examine the defective component. Any expert evidence led would have to rely on Mr Shedden's eye witness testimony, as no one had the opportunity to open up the hub assembly to ascertain precisely what went wrong (although he stressed that was unnecessary for the Pursuer to succeed).

He conceded that assessment of prejudice was difficult. If, on the one hand one assumed that the component was not defective then its absence was prejudicial to the Defenders, if, on the other hand an assumption was made that it was defective, then its absence was prejudicial to the Pursuer. He submitted that the only fair approach was to make no assumption, and then neither party was prejudiced by the component's absence more than the other.

Discussion

Having heard parties' submission in April 2010, and thereafter certain evidence, and further submissions on 16 September 2010, I remain of the view that the applicable legal principles are those set out in Scottish and Universal Newspapers v Ghersons Trustees as subsequently applied in Peacock PLC v Railston Ltd. It was suggested by Mr Kennedy that I should not apply the test as set out in Scottish and Universal Newspapers v Ghersons Trustees, but instead, follow the approach by Lord McPhail in Haddow v Glasgow City Council.

It seems to me, having considered the terms of Lord McPhail's judgement, that the parties in that case did not present a full discussion of the authorities concerned, and that in the absence of such, Lord McPhail excused the Pursuers failure to produce certain footwear. Whilst Lord McPhail, from his own researches, looks at the historical origins of the best evidence rule, I do not regard such as a rejection of the principle outlined in Scottish and Universal Newspapers v Ghersons Trustees, rather it appears that he was critical of those providing representation where he states at the end of paragraph 15 "any support for its exclusion in the present case should have been sought on the authorities on the production of real evidence at proof. I am unable to sustain the objection on the basis of the authorities cited."

I do not therefore consider that Haddow v Glasgow City Council offers any assistance, and in any way changes the tests to be applied.

I turn now to the evidence heard in the course of the Preliminary Proof concerning the disposal of the rear freewheel mechanism. I accept as reliable and credible the evidence of the Pursuer's solicitor, Mr David Forbes. Mr Forbes had been involved in general civil litigation for almost 20 years, and had extensive experience. I had no reason to doubt his accuracy and attention to detail. It is noteworthy that at his meeting with Mr Shedden in September 2009 he was given an impression that the rear freewheel was still at Mr Shedden's storage facility, only to be advised about a week later that it had been scrapped. It is also noteworthy that at that meeting no indication was ever given to him by Mr Shedden that he had retained the original ratchet in the shop, thus separating it from the rear wheel, which he had stored at the farm. Again, he was quite clear that the Pursuer had never disclosed to him, prior to that meeting in September 2009 (when he discovered such from Mr Shedden) that the bike had been returned in October 2004, with a different rear wheel and freewheel mechanism.

I turn now to Mr Shedden, the bicycle mechanic. I found Mr Shedden somewhat brash and opinionated. I have no doubt he has much experience in bike repairs, but it clearly caused him some irritation that customers bought bikes by mail order, rather from specialised shops, and his instant determination of where the fault lay, without opening the hub, smacked of a rush to judgement. I do not believe he kept the ratchet separate from the rest of the rear wheel, and considered that an embellishment of his evidence, added after he met Mr Forbes. Whilst I accept he has considerable technical expertise, I could not accept him as entirely credible or reliable, for example, he said he had suggested that in completing the repair that Mr Patterson make a claim under warranty, whereas Mr Patterson's evidence was that Mr Shedden stated there would be little point, as he would simply get the defective part replaced with a similar inferior component.

Likewise, the Pursuer's evidence was not compelling. He appeared to vacillate between not thinking about making a claim, and instead, prioritising his attempt to make a speedy recovery, and on the other hand considering making a claim, but expecting Grattans to interview him on what happened, and to advise him to instruct a lawyer. I accept that in the early months his priority would have been recovery, but I found it remarkable that he did not disclose to his solicitors that Mr Shedden had retained the rear wheel and mechanism over a period from May 2005 until September 2009, when Mr Forbes discovered such by his own efforts.

I am persuaded the Pursuer eventually told the Defenders of the defect and of his wish to return the bike, but in my view that was not until August 2004. I am not persuaded that he reported any accident or injury sustained by him. I simply did not find him credible in his assertion that he'd phoned the Defenders on a Saturday evening, the day after his accident, and on returning from hospital, to report he had been in "a severe accident, injuring his knee".

Nor could I accept that he had made 4 or 5 subsequent telephone calls on the following week. He accepted that within days of the accident he knew of Mr Shedden's finding, and yet there is no evidence that he told anyone. He provided no detail of the content of his alleged 4 or 5 telephone calls to the Defenders to the Court, although by then he would have been in a position to be fairly specific about the defect. I accept that in August 2004 he provided a receipt for the £30.00 repair, but only with a view to a refund. He never suggested when writing that he gave the Defenders any further detail concerning an accident or injury.

The remaining witness from whom the Court heard was Mr Lee Weighman, a legal executive with Freemans Grattans Holdings. His task had been to examine company records from archived material, some of which were in paper form, and some held on computer records. I had no reason to doubt his reliability or credibility.

It is clear from those records that the bike had been ordered on 2 April 2004, and that on Monday 5 April 2004 a telephone call had been received with regard to a faulty pedal.

Thereafter, the records were silent until about 24 August 2004, when a credit of £30.00 was agreed for a repair, although there is no script to show the nature of that repair. Finally, on 22 October 2004, records have an entry headed "uplift", indicating that the bike was being returned.

At no stage was there any entry denoting an accident, or that someone had sustained an injury. In that event separate procedures would have been triggered. Given what I have heard, I could not accept that some 4 or 5 telephone calls from the Pursuer went unrecorded in the Defenders log, when in all other respects these logs appear correct and accurate.

I therefore return to the principles as set out in Scottish and Universal Newspapers v Ghersons Trustees, and in particular, to the opinion of Lord President Emslie at page 47 "from these passages (in Dickson on Evidence) I take the true rule applicable to a case such as this to be that secondary evidence of the contents of the missing records would be admitted, only if it is shown they had been destroyed or lost, without fault on the part of the Pursuers who had effective control of the records when the action began. A party in the position of the Pursuers, indeed, will, according to Dickson, probably be required to show a special casus amissionis, not attributable to any fault on his part. It must be recognised, accordingly, that the leading of secondary evidence to prove the contents of missing documents manifestly unsatisfactory, expedient is a privilege to be earned by a party in the position of the Pursuers".

In the present case the Pursuer accepts that he knew within days of his accident the nature of the defect to the rear wheel mechanism. He accepted eventually in his evidence that retrieving and retaining the rear freewheel was important. It is, in my view, simply beyond belief that the Pursuer can seek to absolve himself from fault in this respect. He knew that the rear freewheel had been retained by Mr Shedden, and that it would be crucial in establishing his case. If there was any room for doubt in this matter, then that doubt is removed by his obtaining a brief written report for his solicitors from Mr Shedden in February 2006. By failing to take any steps to retrieve the part, and ensure its preservation, the Pursuer, in my view, falls well short of what is expected of him, and cannot show that he was without fault, and thus come within the casus amissionis.

Indeed, in my view, he compounded the problem by failing to tell his solicitors for about 4 years of the whereabouts of the rear freewheel mechanism.

I should, perhaps, deal at this point with certain evidence relating to the Defenders' recall/recovery procedures heard under reservation.

It is my view, as is clear from the findings in fact, that the Pursuer never reported that he had been in an accident with the bike, or that he had sustained an injury. Thus, Defenders cannot have been to blame for the disposal of the rear freewheel mechanism.

Even if he had reported such (which I have not found), he clearly did not advise the Defenders that he had substituted a different rear freewheel mechanism to that originally on the bike when returning the whole bike in October 2004. The Pursuer simply cannot invert matters by saying to the Defenders "because you did not ask me for the defective component, it is your fault that it is lost". Such an argument simply does not stand scrutiny. Nothing the Defenders did caused the defective component to be lost.

In Scottish and Universal Newspapers v Ghersons Trustees, Lord President Emslie makes clear that "fault" simply means a failure in duty to take all proper steps, or to use all due diligence, to see that these records were preserved and remained accessible for use in the Proof ..... It must, I think, depend upon the circumstances of each, whether the party tendering the secondary evidence has expended the appropriate amount of care and diligence, and the steps required of such a party will no doubt be affected by the nature and importance of the documents, the contents of which are of vital importance in the proof, to the ascertainment of the truth, and to the interests of all parties. The more important a document, the more necessary it will be for the party who has them to take all proper steps to preserve them". As can be illustrated from the authorities, the concepts of fault and prejudice are closely intertwined, as Lord President Emslie further indicated in Scottish and Universal Newspapers v Ghersons Trustees "the greater the obvious prejudice which would be occasioned by the loss of the documents, the more necessary will it be for the party who controls the document to take whatever steps are required to see that they are not lost".

Applying the foregoing principles, I am of the opinion the Defenders would suffer insurmountable prejudice if secondary evidence as to the state of the rear freewheel mechanism should be permitted. It is clear that the state of this part is of fundamental importance to the Pursuer's case, and that the Defenders have no means of challenging this.

The Pursuer would undoubtedly rely heavily on the evidence of Mr Shedden, a man of technical expertise, whose evidence would form the foundation for Mr Richard Hoyle, an expert, to advance his analysis and criticisms of the state of the rear freewheel mechanism. Such a situation would be extremely one sided, and leave the Defenders wholly unable to mount any effective cross examination.

For the foregoing reasons, I cannot agree with Mr Kennedy's submission that each party has been equally affected in terms of prejudice by the loss of the component.

Nor did I consider the authorities of Crowther v Shannon, or Thain v The Anniesland Trade Centre, to assist the Pursuer's cause. In these cases, there remained a vehicle capable of examination by both parties, and thus, a sound evidential basis for the Court to form a view that within a short time of purchase the article had failed the test of satisfactory quality.

Accordingly, if, as I have decided, to sustain craves 1 and 2 of the Defenders' minute, is there any other basis upon which the Pursuer might succeed. In my view, there is no other evidential route that the Pursuer can take to advance a case against the Defenders, and in this respect I agree with Mr Middleton's submission as set out at pages 14-16 of this judgement.

It follows, in these circumstances, that the Defenders are entitled to absolvitor.