Two recent cases demonstrate that for defenders there is more than one route to success.
In Ian Pocock v The Highland Council 2017 CSOH 40 the Pursuer sought damages for an injury to his knee after tripping on a raised paving slab on Baron Taylor Street in the centre of Inverness. He alleged a breach on the part of the Defenders of their common law duty to take reasonable care for the safety of pedestrians. The breach was averred to be a failure to remedy the trip hazard within seven days, failing which twenty-one days.
It was averred the Defenders had inspected the street on 20 December 2011 and noticed the presence of the defect. The Pursuer contended that the defect at this time was more than 20 mm and as such should have been repaired within seven days.
The witnesses included an expert witness for the Pursuer, Mr Kevin McMahon, Consulting Engineer and Yvonne Lowe who was a Roads Inspector with the Defenders. Mr McMahon estimated a difference in height between the paving slabs of 28 mm but did so from photographs taken by the Pursuer and his wife after the accident. On the other hand, Yvonne Lowe spoke to carrying out inspections on 20 December 2011 and 23 January 2012. She indicated that given she had stated a twenty-one day period for repair the height difference of the defect must have been less than 20 mm.
The case went to Proof on of both liability and quantum.
The pursuer was a crofter and his family lived “off the grid”. The Pursuer gave evidence that following the injury he was unable to carry out the activities of running the croft to the same extent and needed significant help from his wife and her brother. However evidence was led of a BBC Documentary in which the Pursuer had been shown carrying out various activities such as chopping logs, etc. Competing medical evidence was led from both Mr Nick Short for the Pursuer and Mr John Keating for the Defenders.
Lord Clarke found in favour of the Defenders and granted Decree of Absolvitor (ie. the Defenders were absolved from any liability). He referred to McDonald v Aberdeenshire Council 2013 CSIH 83 and stated the Pursuer required to establish that:
“A Roads Authority of ordinary competence using reasonable care would have identified the hazard and would have taken steps to correct it”.
The Pursuers proceeded entirely on the basis that the trip hazard was greater than 28 mm. The case pled for the Pursuer was a duty to repair a defect with a height difference of greater than 20 mm within seven days or at most within twenty-one days. No case was made about a requirement to repair a defect of less than 20 mm or the time period in which to do so.
Despite the evidence led for the Defenders, Lord Clarke did find the Pursuer credible and reliable. Therefore whilst he found Mr Keating to be a highly impressive witness, he accepted that the injury had resulted as a result of one accident albeit he found the Pursuer had failed to mitigate his loss by refusing treatment at an earlier stage.
In the second case Stephen Paterson v (First) David McLeod, (Second) Highland Council, (Third) William Fraser and (Fourth) Axa Corporate Solutions Insurance SA [2017 CSOH 20] the dispute was one of fact rather than law.
This case concerned a road traffic accident which occurred on 6 May 2010 on a stretch of the A835 Ullapool to Inverness road. The Pursuer was driving a Mazda motor car towards Inverness. He rounded a blind bend and his vehicle collided with a refuse lorry which was stationary on the opposing carriageway. At the time the Pursuer rounded the blind bend the refuse lorry was being overtaken by a yellow Scania flatbed lorry. The Pursuer sought damages from the driver of the refuse lorry (First Defender), his employers (Second Defender), the driver of the Scania lorry (Third Defender) and his Insurers (Fourth Defender). The First Defender had died prior to the Diet of Proof and so the Action against him was abandoned. The case went to Proof on the issue of liability only, quantum having been agreed and a three week Proof was heard by Lord Armstrong.
The Pursuer’s position in essence was that his vehicle had collided with the stationary refuse lorry as a consequence of necessary evasive action taken by him in order to avoid the oncoming Scania lorry which had been blocking his lane.
It was accepted by the Pursuer that following the accident he had pled guilty to a contravention of Section 3 of the Road Traffic Act 1988 (driving without due care and attention, etc) by driving at an inappropriate speed and colliding with the refuse lorry.
Considerable evidence was led over a period of three weeks. The Pursuer himself gave evidence for some three and a half days. There was also considerable expert evidence led, in particular on the issue of tyre marks.
Having considered all the evidence, Lord Armstrong had no difficulty in finding that the Pursuer was not a reliable witness and he was in fact highly critical of the Pursuer and his evidence.
Lord Armstrong stated that in giving evidence the Pursuer was at pains to put forward only a version of events designed to exonerate him from blame. He stated he was guilty of “historical revisionism”. He had been described as melodramatic, narcissistic, self-centred, and delusional by the Defenders. Lord Armstrong said that at the very least he was found to be lacking in objectivity.
He held that on the evidence presented, the Pursuer had clearly been travelling in excess of the speed he claimed and had simply not had time to stop. Had he been driving at an appropriate safe speed he would have been able to stop in time to avoid an accident.
In short, Lord Armstrong held the Pursuer entirely at fault for the accident, pronouncing Decree of Absolvitor in favour of all the Defenders.
These cases demonstrate that whether the law or the facts are on your side, for Defenders it can be crucial to properly test the pursuer’s case at Proof as there are many routes to success!