Reparation

Margaret Aitken v. Scottish Ambulance Service and others [2011] CSOH 49

Thu, 30 Jun 2011 22:08:55 GMT

The pursuer was the mother of the later Nikki Williamson, who died in the Southern General Hospital, Glasgow on 1 November 2003, aged 15. The pursuer sought damages in respect of the loss suffered on account of her daughter's death. Each of the defenders was sued on the basis of their vicarious liability for the alleged fault and negligence of others for whose acts and omissions they were responsible.

This case called on procedure roll, where the first defenders sought to have certain averments excluded from the pleadings for irrelevancy and lack of specification. It was also submitted by the first defenders that the member of staff in the Emergency Medical Dispatch Centre who answered the first 999 call in respect of Nikki was not under a duty of care during the period between 13.18 hours and 13.51 hours on the date of Nikki's death. The pursuer's case was founded upon averments that had the first defenders dispatched an ambulance promptly, following receipt of the first 999 call, it is likely that the ambulance would have arrived at the pursuer's house within 8 minutes. The pursuer averred that Nikki's death was caused, inter alia, by fault and negligence on the part of the EMDC employee, who answered the 999 calls.

Having heard submissions, the Lord Ordinary determined that the action should not be viewed as based on “pure omission” and moreover, the Lord Ordinary noted that the court was not prepared to dismiss the action on the basis that it was merely a rescue case (where no common law duty lies on an individual to rescue another). The Lord Ordinary further concluded that the statutory framework governing the operation of the emergency 999 services did not exclude the possibility of a private law remedy, relying on the common law of negligence. Applying the tri-partite Caparo test, the Lord Ordinary concluded that it would be open to the court to find a relationship of proximity between Nikki and the EMDC staff existed at the time the first 999 call was accepted by the first defenders.

Motion on behalf of first defenders dismissed.

Kathy-Rose Gordon v. EUI Limited [2011] CSOH 36

Thu, 07 Apr 2011 21:53:29 GMT

On 2 May 2008, the pursuer was driving her car westwards on the A90 dual carriageway near Glencarse, when she was rammed from behind by a vehicle driven by the defenders’ insured. The pursuer was thrown forward and suffered various head injuries during the accident, for which she sought damages in the present action.

In this opposed motion, the defenders argued that the case was unsuitable for jury trial because it raised complex issues of fact relating to the nature of the pursuer’s injuries and her prognosis for recovery. It was argued that the difficulties presented within the factual material of the case went beyond merely requiring a jury to discriminate between competing medical experts. Conversely, counsel for the pursuer argued that the case raised no special cause which would permit withholding issues before a civil jury, noting that medical complexities were frequently encountered in similar cases before juries. It was argued that the right to a jury trial was an important statutory right which the pursuer should not be deprived of, absent any special cause.

Allowing the motion, the Lord Ordinary concluded that special cause did exist, and allowed for the refusal of issues before the jury trial. The Lord Ordinary noted that several complex medical issues were raised within the case and these were extremely relevant to the quantification of any solatium the pursuer might receive. The Lord Ordinary noted that complex issues of fact and causation were raised, particularly in relation to whether the pursuer's claimed inability to return to her pre-accident employment was due to her physical disabilities, or to neuro-psychological deficits, or psychological problems, or to a combination of those factors. The Lord Ordinary felt that several days expert evidence would be required to assess the impact of those factors on the calculation of future loss of earnings and the assessment of loss of employability and that this might complicate the task of a jury. Pursuer’s motion refused; proof before answer allowed.

Gwenneth Ann McCafferty & others v. Scott's Caravan & others [2011] CSOH 16

Fri, 28 Jan 2011 00:47:14 GMT

In February 2007, the first pursuer and her husband stayed overnight in a caravan belonging to the first pursuer’s brother. The caravan had a gas heater. During the night carbon monoxide from the flue of the heater re-entered the caravan. The first pursuer and her husband sustained carbon monoxide poisoning. The first pursuer's husband died and the first pursuer suffered injury. The first pursuer claimed damages for her personal injury and for the death of her husband; the two sons and one daughter of the marriage also claimed damages for the death of their father. The defenders sold the second-hand caravan to the first pursuer's brother. The claims are directed against the defenders in respect of their alleged fault at common law; it was averred that the heater had not been properly installed in accordance with the manufacturer’s instructions and that the defenders had represented that the caravan had been serviced and inspected, when it had in fact not been so serviced and inspected and had been installed incorrectly.

The defenders argued that there was “special cause” in terms of the Court of Session Act 1988, sections 9 and 11, for refusing issues and withholding the case from a jury. It was submitted that the action would inevitably require the leading of complex engineering evidence relation to: the operation of the gas heater; the manner of installation of the gas heater; the effect of the weather on the movement and build-up of carbon monoxide within the caravan; the carbon monoxide concentrations. Moreover, it was submitted that the basis of the duty of the defenders to these particular pursuers, who were not the purchasers of the caravan, would result in difficulties in leading evidence and directing the jury.

Rejecting this motion, the Lord Ordinary concluded that this case fell “well short of the degree of technical complexity that would make a case unsuitable for trial by a jury”. While acknowledging that some technical passages of evidence would require to be placed before the jury, the court noted that such evidence was not of the essence of the action and could readily be put to a jury in a manner which was intelligible. The court moreover noted that no judge would have difficulty directing a jury on such matters. The Lord Ordinary concluded that there was no special cause to justify withholding the pursuers from the right to a civil jury trial.

Kevin Bennett v. Coatbridge Health Centre and others [2011] CSOH 9

Sun, 23 Jan 2011 21:28:07 GMT

The pursuer had been a sufferer for epilepsy and had been prescribed vigabatrin (the propriety name of which is Sabril) in 1989 to treat and manage his condition. In 1999, the pursuer attended his GP for a visual fields test, following his concerns about Sabril and its effect on vision after reading a medical article on the subject. The pursuer was told at that time that there were no problems with his vision and no concerns about the medication he was taking. On or around February 2004, the pursuer developed problems with his eyes, which were later diagnosed as diminution of his peripheral vision, caused by his consumption of Sabril. In this action of damages, the pursuer averred that no ordinarily competent GP acting with reasonable care would have failed to send the pursuer for review by ophthalmologist, when he attended in 1999. It was averred that if the pursuer had come off Sabril in 1999, he would have suffered significantly less vision loss than he now does.

In this motion, the defenders submitted that the pursuer’s averments were lacking in specification. It was submitted that the defenders had been left in the dark on key details of the referral of the pursuer and the literature which they were averred to have been prudent to consult in 1999.

After hearing submissions, the Lord Ordinary concluded that the action should not be dismissed at this juncture, despite their lack of clarity. The Lord Ordinary noted that it would be wrong to conclude that the pursuer’s primary case was bound to fail, without having first heard evidence on the state of knowledge of the effect of the drug in 1999 and how an ordinarily competent general practitioner exercising reasonable care would have acted in the circumstances. Proof before answer allowed.

Shaun Clark v. The City of Edinburgh Council [2010] CSOH 144

Sun, 02 Jan 2011 14:36:39 GMT

In November 2007, the pursuer’s Toyota Celic motor vehicle was damaged by a City of Edinburgh Council refuse collection vehicle, whilst parked outside the pursuer’s workplace. The pursuer had recently purchased his vehicle for the sum of £1,700. On 10 March 2008 the defenders' insurers wrote to the pursuer acknowledging liability and subsequently settled the pursuer’s claim for damage to the vehicle at the sum of £1,400.

The pursuer had engaged the services of Accident Exchange Limited, a company who provide replacement vehicles, on a credit basis, to individuals whose own vehicles require repair as a consequence of a road accident for which they were not responsible. It was heard in court that their daily rates tend to be grossly in excess of normal spot hire rates for replacement vehicles. Accident Exchange Limited provided the pursuer with a Honda Civic 2 litre VTEC Type R GT motor car with 900 miles on its odometer. The court heard that such a vehicle would have had a purchase price of around £18,000 and was described as a sports or sports coupe and the top of the range model. Accident Exchange Limited charged the pursuer £12,857.13 for the use of this replacement vehicle. In the action the pursuer sought payment of this sum from the defenders.

The defenders contested the claim on the basis that no car hire had been necessary at all, failing which it was unreasonable to expect the defenders to meet the cost of the particular type of motor car hired. They also contended that the period of hire was unnecessarily long. It was accordingly submitted that the pursuer had made no attempt to mitigate his loss.

Having heard evidence and submissions, the Lord Ordinary concluded that it was plain the pursuer had given no thought to the question of whether he had a duty to mitigate his loss by selection of one type of car over another. The Lord Ordinary also did not accept that the vehicle which was provided to the pursuer by Accident Exchange ought to be seen as an equivalent to the pursuer’s own damaged car or that it fell into the same broad range of quality and nature as the damaged car. The Lord Ordinary noted that the pursuer was provided with a vehicle which was greatly superior in every sense to his own, and that the pursuer ought reasonably to have been able to hire a suitable replacement at a much lower daily rate than that claimed for. The Lord Ordinary accordingly awarded the pursuer the cost of fifty days hire at the spot rate of £39 per day, giving a total of £1,950 decree.

Arthur Clelland v. Quinn Direct, Sheriff C.N.R. Stein, Arbroath Sheriff Court, 22 October 2010

Sat, 04 Dec 2010 11:33:24 GMT

On 27th September 2007, the pursuer’s TVR Tuscan Mark 1 fibre-glass motor vehicle was parked and unattended, when the defender’s insured collided with it while attempting to reverse park. The collision caused damage to the pursuer’s vehicle, specifically its paint and bodywork. At the time of the accident, the pursuer’s vehicle was worth £18,000.

Reluctant to involve his own insurers because of the possibility of increased premiums, the pursuer agreed to engage the services of Accident Exchange Limited, and entered into a Vehicle Rental Agreement with them on 17th October 2007. Accident Exchange Limited was a company who specialized in handling non-fault claims for owners whose vehicles had been damaged through the negligence of others, who preferred not to involve their own insurers. Their charges were agreed in court to be very significantly in excess of conventional claims.

At the expiry of the rental agreement, the pursuer was bound to pay the hire charges in full, together with interest during the period that the charges remained outstanding. These were unpaid, and the pursuer sought the defender to make payment, along with damages in respect of the loss he suffered as a result of the accident.

The defenders disputed quantum, arguing that the pursuer had hired a replacement vehicle on credit from a company which charged far in excess of hiring on spot market value. It was submitted that therefore the whole costs of this hire agreement were not recoverable. Moreover, the vehicle was provided with an entire re-paint job, rather than re-painting in only the damaged areas, therefore there had been some betterment of the vehicle which the defenders were not liable to pay for.

On behalf of the pursuer, it was submitted that he was “impecunious” in the sense explained in Lagden v O’Connor 2004 1 AC 1067, namely that he would not be able to afford to pay hire charged quoted by local hire companies at a spot rate, without incurring “unreasonable financial sacrifice”. Therefore, it was necessary to hire a vehicle on credit. In reply, the defenders submitted that the pursuer was a company director, with a combined family income in excess of £100,000, and therefore he could hardly be characterized as the type of “impecunious” individual for whom it would be an unreasonable financial burden to meet spot-hire rates.

After hearing evidence, the Sheriff noted that hiring a vehicle from Accident Exchange Limited was not the pursuer’s last resort, and found he clearly had a choice. The court found that the pursuer was clearly in a position to hire a vehicle on the spot market, through his credit card. The court found that the pursuer had failed to mitigate his losses in this regard. However, in granting decree of the remaining damages sought, the court noted that it was reasonable for the pursuer to hire a replacement vehicle, and moreover for his entire car to be re-painted in full, following evidence led from the professional painters. While the court acknowledged that the re-painting had given rise to some degree of betterment of the vehicle, the court deemed this benefit to be incidental and unavoidable.

Accordingly, the Sheriff granted decree to the pursuer of the sum of £11,684.50.

Angus Joinery Limited v. James and Valerie McKay, Sheriff Davidson, Dundee Sheriff Court, 16 November 2010

Tue, 16 Nov 2010 21:31:50 GMT

The pursuers and defenders entered into a contract for the supply and installation by the pursuers of six hardwood traditional sash and case windows, at the defenders’ home. The defenders had attended at the pursuer's premises and had selected the particular windows which they wished installed conform to the sample then exhibited to them. A window surveyor thereafter attended at the defenders' home to take measurements for the windows whereafter the windows were manufactured specifically in implement of this contract.

The installation was not satisfactory. There were a significant number of serious defects. After the defenders’ refusal to pay for the unsatisfactory services, the pursuers raised an action for payment against them. The defenders disputed this action on the basis that the defects were the result of poor installation, and accordingly, the pursuers had materially breached their contract in refusing to complete remedial works or facilitate replacement of the windows.

Having heard evidence and submissions, the court found for the defenders. The Sheriff ruled that the defects could not be repaired by remedial works, and that complete replacement of the windows was required. By refusing to return to complete and remedy their contractual performance, the pursuers put themselves in material breach of contract. Considering a reasonable estimate for replacement of the windows, and also the fact that the defenders had suffered considerable distress and inconvenience as a consequence of the pursuers’ material breach of contract (and the prolonged disruption to their home), the Sheriff granted decree for damages of the sum of £11,750.

Martin Hines and Wallace Commercial Limited v. King Sturge, LLP [2010] CSIH 86

Sat, 06 Nov 2010 11:09:52 GMT

Reclaiming motion:- The first and second named reclaimers occupied business premises on St Vincent Street, Glasgow, which were badly damaged during a fire in April 2005. It was averred that the respondent to the action was the property manager of these premises, with responsibility for their maintenance. This was said to include responsibility for maintenance of a fire monitoring system, upon which the first and second named reclaimers relied. They averred that they paid an annual service charge as tenants of the properties, which included the provision of fire alarm testing and maintenance.

On the night of the fire, the fire alarm system did not work, as it was not operational following the respondents’ failure to set up a new telephone connection line. It was averred that the absence of a monitoring system to alert Strathclyde Fire Brigade meant that the fire service experienced significant delays in identifying the location of the outbreak of the fire, which caused or materially contributed to the extent of the spread of the fire, and the loss and damage suffered by both reclaimers. But for this delay, it was averred that the loss and damage sustained by the reclaimers would have been significantly reduced.

The defenders and respondents had tabled a plea-in-law to dismiss the action on grounds of the irrelevance and lack of specification of the pursuers’ averments. Following a procedural hearing in July 2009, the Lord Ordinary sustained that plea-in-law and dismissed the action. The pursuers and reclaimers appealed against that decision in the present action. The reclaimers argued that the Lord Ordinary had dismissed the action on the basis that there was no duty of care owned by the respondents to the reclaimers. However, the Lord Ordinary had not dealt with their secondary argument, and counsel submitted that there were in fact three alternative legal bases upon which liability could lie. First, there was a special relationship between the reclaimers and the respondent, giving rise to a duty of care. Secondly, in any event, the reclaimers had relied in fact upon the respondent in relation to the provision and maintenance of the fire alarm and monitoring system. Thirdly, esto, the reclaimers could also rely on the tripartite test explained in Caparo Industries Plc v Dickman and others [1990] 2 A.C.605. The reclaimers argued that these three bases were alternatives. The respondents however argued that, if a particular set of circumstances one of these tests was not satisfied, then it followed that none of the other tests could be satisfied either.

The court doubted whether the submissions of the respondent were correct on this point. Noting that in order to achieve justice in widely different situations, the Inner explained that the courts have devised different tests apt to particular situations and in those circumstances, it is open to the courts to reach a view as to which of the several tests is appropriate to the kind of circumstances which with the court has to deal. The court concluded that the tests could not be seen as strict alternatives.

The court noted that while at the time of the fire, the respondents had no formal contract for the management of the building with its owners nevertheless, there was plainly an informal arrangement between those parties, under which the respondents had assumed some element of responsibility, therefore satisfying the Caparo tripartite test. Moreover, it would not be difficult to successfully argue that there was a relationship of proximity between the reclaimers and respondents on this basis. Finally the court found it particularly persuasive that the reclaimers paid a service charge to the reclaimers, indicating a degree of reliance that the respondent would perform their duties with reasonable care.
The court therefore held that if all the reclaimers’ averments were proved, it could not say that the claim would fail, and accordingly recalled the interlocutor of the Lord Ordinary, allowing proof before answer on the whole of the case (Lord Osborne and Lord Emslie; Lord Carloway dissenting).

James Robertson v BAE Systems Marine Limited, Court of Session 5th October 2010

Thu, 07 Oct 2010 07:20:00 GMT

The pursuer was a shipwright who was injured at work on 16th January 2007. He was working on a new naval destroyer at the Defender’s Govan shipyard, when he slipped on an manhole cover on deck which had not been properly replaced and secured. The pursuer’s case was that he suffered a fractured skull, soft tissue injuries to his neck and post-concussion syndrome. The proof was heard before Lord Bannatyne over three days from 28th September, and the issues in dispute were contributory negligence and quantum. A verbal judgment was given on 5th October.

Lord Bannatyne found that there had been no contributory negligence – the pursuer had been working in the area for some time before the accident, with the cover being properly in place, and it was not reasonable for him to have expected the cover to have been moved. Given the hazardous nature of a ship in the process of construction, it was not reasonable to expect workers to pay the same degree of attention to the floor that pedestrians may do in the street.

As to quantum, the judge accepted the evidence of the pursuer’s expert witnesses, Dr Durward and Dr Gillam, and found that the pursuer would continue to suffer symptoms of post-concussion syndrome for the rest of his life. The most significant factor was considered to be his ongoing low mood, which lead to social isolation. Lord Bannatyne valued solatium at £13,500. The total award was £15,231.

Mr Robertson was represented by Amber Galbraith of Compass Chambers.

Raymond Munro v William Sturrock t/a Scotmaps [2010] CSOH 116

Tue, 21 Sep 2010 15:22:17 GMT

This case concerned an accident in 2004. The accident occurred during the "Little the Jewellers" Speyside Stages Rally. The rally was part of the Scottish Rally Championship and the pursuer was the reigning Scottish Rally Champion. Prior to competing in the rally the pursuer, and other competitors, were able to purchase route notes, and an accompanying DVD.

The notes were for use during the rally, and the DVD in the preparatory stages.

The route notes and DVD were created and sold by the defender. Stage 6 of the rally took place through Clashindarroch Forrest. As the pursuer was proceeding through the stage he crashed. He raised an action claiming that the route notes were negligently prepared, in that they incorrectly described the angle of a bend such that the pursuer attempted to drive through it too quickly. Proof was heard on liability only. The defender's position was that the bend was correctly described and that, in any event, any incorrect assessment (being subjective) would have to be proved to the standard required in terms of Hunter v Hanley. In finding for the defenders, Lord Uist held that corner had been correctly described. He did not therefore feel that he required to address the issue of the appropriate standard of care.

Richard Pugh, of Compass Chambers, was junior counsel for the defender.

Melanie Logan v William Logan and GHI Insurance Services Limited

Tue, 21 Sep 2010 15:20:02 GMT

The pursuer claimed damages for injuries sustained in a road traffic accident on 15th August 2007. Liability was admitted, and so the issues at proof focused solely on quantum. Evidence was lead before Lady Stacey in July 2010.

The pursuer suffered a whiplash injury, which resulted in ongoing back pain and she also developed an adjustment disorder which remained untreated. Having retired early from her job as a social worker, the pursuer started her own business as a tattoo artist in July 2006 – at the age of 55. As a result of her ongoing back problems, her evidence was that she could only now work 3 days a week – compared to 6 days before the accident. Unfortunately, when she had the accident the pursuer was in the process of establishing her business and developing her reputation, and this made the accurate assessment of her future earnings loss problematic. Although she had no prior experience as a tattoo artist, the evidence was that she was highly regarded within the tattoo world, and had a loyal following of customers. Clients would have to wait a number of weeks for an appointment. The defenders sought to argue that no allowance should be made at all for future wage loss. They contended there was insufficient evidence that would allow the Court to assess her loss, and that a forensic accountant would be required. This proposition was not accepted by the Lord Ordinary, and the pursuer’s approach was preferred. In the circumstances it was accepted that a broad brush approach could be taken. The defenders argued for damages in the region of £13406 and £16717. Lady Stacey awarded £65,858.

The pursuer was represented by Amber Galbraith of Compass Chambers.

Kaj Dalberg Anderson v. Mohammed Hameed and Esure Services Limited [2010] CSOH 99

Sun, 19 Sep 2010 16:48:24 GMT

The pursuer sustained injuries in the early hours of 29 December 2006 when a car driven by the defender, in which the pursuer was a back seat passenger, struck a tree at Stewarton Road, Newton Mearns, Glasgow. At the time of the accident, the defender was 16, and was driving a car belonging to his parents without their permission or knowledge. At the time, the defender had neither insurance nor a driving licence. Quantum having been agreed, the issue for the court was to determine the liability of any parties to make reparation to the pursuer. For the defender it was argued that the pursuer and defender were engaged in a joint criminal activity with the consequence that the law imposed no liability on the defender. For the party minuters it was argued that the insurers were not liable under section 151 of the Road Traffic Act 1988 to satisfy any award of damages in favour of the pursuer because their liability was an "excluded liability" under section 151(4), the pursuer having known or having had reason to believe that the car was stolen or unlawfully taken.

The court heard evidence from a number of witnesses, including both the pursuer and defender. The court noted that the accounts of defender and pursuer in relation to the events leading up to the accident varied to a great extent. The court noted in its judgment, that it did not consider all witnesses to have given a truthful account of events in their evidence. The court found that the only truthful and credible account of events was given by the defender, who presented a detailed and convincing narrative, which stood up to cross-examination. The court found the defender’s evidence that, in order to his impress his friends, he had told the pursuer and other passengers that he had “stolen” his parents’ car, to be particularly convincing. The court therefore found that the pursuer had known the car had been taken without the consent of the owner.

Accordingly, the Outer House determined that the pursuer knew, when he allowed himself to be carried in the car, that it had been taken without the consent of its owner, and that he could have been charged and convicted of an offence under section 178(1) of the Road Traffic Act 1988. The court therefore found that the pursuer was participating in a joint criminal activity with the defender and that he was accordingly not entitled to recover damages from the defender for loss and injury as a result of the defender’s negligent act. Decree of absolvitor granted.

Rachel Davis v. (1) John Catto & (2) CIS General Insurance Limited and Stephen Skinner [2010] CSOH 93

Thu, 09 Sep 2010 20:52:10 GMT

In March 2006, the first defender was driving his vehicle at speed on the A832, lost control of the car and was involved in an accident after the vehicle overturned. The pursuer sustained serious injuries as a result of the accident. The loss of control occurred at a time when the first defender had overtaken another vehicle, driven by the third party to this action.

The second defenders were the insurers of the first defender, and had admitted liability to make reparation. A proof was conducted to ascertain whether the defenders had a right of contribution from the third party, on the basis that the third party was a joint wrongdoer under section 3 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940.

Evidence was elicited from the passenger in the back seat of the third party’s vehicle, along with the evidence from the third party himself. Both were professional footballers for Ross County FC, who travelling to Inverness at the time of the incident. Accident and reconstruction evidence was additionally led from experts and the police force.

The court found both eyewitnesses to be unimpressive, noting that the third party had a clear financial motive to minimise his responsibility for the accident. The court found that the third party’s evidence on a number of key factors in the accident (particularly that he was driving at less than 70mph at the time of overtake of the first defender’s vehicle), to be contradicted by evidence from two expert sources, and was consequently unreliable.

While the court concluded that it was clear both vehicles were driving at excessive speeds, it was possible to infer from the evidence that the vehicles were engaged in racing or competing. The court found that the third party attempted a manoeuvre at grossly excessive speed, without slowing down, and to that extent, failed in his duty of care. Accordingly, the court found the third party must bear some responsibility for his part in the accident, and found the defenders entitled to recover a contribution of twenty per cent of any damages paid to the pursuer.

James Doran v. Shanks Waste Management [2010] CSOH 91

Tue, 24 Aug 2010 09:28:42 GMT

The pursuer was employed by the defenders as a HGV driver until an accident occurred at work in August 2008. He was dismissed from his employment one month later following disciplinary procedure. At the time of the accident, he had been driving lorries for approximately 40 years.

On the date of the accident, the pursuer was operating a “skip” or “bucket” lorry. These lorries held skips on their lorry bed, and sometimes these skips were held in chains. The pursuer’s job was to collect waste in the skip and then drive it back to the depot to be emptied. When full, the skip was covered with a net to keep the waste inside the skip. In order to empty the skip at the depot therefore, the net would have to be removed.

The pursuer noted in evidence that the “de-netting” area at the depot was often busy with drivers, and it was common, in order to save a few moments of time, to release the net ties while waiting to deposit the waste. On the date of the accident, he decided to untie the tiers, and to do so, used the controls within the cab of the lorry to move the skip back thereby creating some space. He then climbed up the ladder onto the lorry and loosened the tiers at the front of the skip. He turned round and caught his foot in a space created by the movement of the hydraulic ram on the lorry, and fell off, sustaining injuries.

In evidence, the pursuer noted that he had never been told not to climb on to the back of the lorry for this purpose, and noted that other workers often did so. They often did so in front of managers, so he was surprised when he was dismissed as a result of his actions, as he assumed that the managers must have known this was a common occurrence. This was supported by a number of other witnesses, particularly the pursuer’s former work colleagues. Additionally, evidence was led that the training received by employees of the defender amounted to a minimal signing of paper work, without emphasising the content of their health and safety policy to employees. An expert witness gave evidence that this was simply not enough to effectively manage the health and safety risk of workers when operating skip lorries.

The pursuer submitted that the defender was in breach of Regulations 4, 8 and 9 of the Provision and Use of Work Equipment Regulations 1998, and had additionally breached Regulation 13 of the Management of Health and Safety at Work Regulations 1999. Further, the pursuer argued that the defender was also in breach of Regulations 4 and 6 of the Work at Height Regulations 2005. The court considered the pursuer and his witnesses credible, and accordingly, found the defender in breach of all above noted provisions, as well as in breach of their common law duty to devise and implement a safe system of work for the pursuer.

The court further considered aspects of contributory negligence affecting the pursuer’s claim. The court found the pursuer failed to have due regard to his own safety by climbing up onto the lorry, and did not take care where he placed his feet. Decree granted for £45,000 less 20% contributory negligence, being £36,000.

Raymond Allan Sinclair McGregor v. Alpha Airports Group plc [2010] CSOH 110

Thu, 12 Aug 2010 14:47:38 GMT

Minute of Amendment:- In this action for reparation a proof has been fixed for 23 November 2010. The pursuer is a party litigant who formerly had the assistance of both solicitor and counsel. On 1 December 2009 Lord Bannatyne ex proprio motu discharged the second diet of proof and motions on behalf of the defenders for the expenses of the discharge and for caution for £25,000 for expenses were heard on 15 March 2010. Lord Bannatyne issued an Opinion dated 8 April 2010. Subsequently, a motion was enrolled by the pursuer which stated "that the pursuer be allowed a Minute of Amendment". Counsel for the defenders submitted that the motion was ambiguous and was opposed. Due to concerns by the court of the pursuer being able to follow the procedure the motion was amended by oral submission and counsel for the defenders provided written submissions for the pursuer’s benefit. The case on record was limited to the alleged negligence by the defenders on a single day, 18 June 2003, involving a single task of carrying two cases of juice cartons which resulted in injury to the pursuer. Here the pursuer sought to introduce averments in relation to:- (1) his lifting catering and in flight bars, up and down aircraft stairs, on a daily basis from 1999 until 2003 in the course of his employment; (2) that it was company practice to work shifts without sufficient rest periods; and (3) that during his years of employment tachographs were not used and as a result there were no accurate records of his working hours. It was submitted on behalf of the defenders that the new averments come too late and they were an attempt to change the basis of the pursuer's case. Here the court balanced the pursuers interests, in particular, in light of his lack of representation, against the interests of the defenders, in particular, the prejudice to them if they were required to investigate new factual matters raised in the Minute of Amendment after the passage of time, in considering whether the minute of amendment should be allowed.

Stephen Sim v. Strathclyde Fire Board [2010] CSOH 63

Thu, 13 May 2010 13:51:57 GMT

Proof:- In this action the pursuer sought damages from the defender for injuries suffered by him following an accident. On 23 April 2005 the pursuer was travelling south through the village of Blackridge on a motorcycle, with his son as a pillion passenger when, as he reached the crest of a hill as he left the village, he saw a fire tender travelling towards him on his side of the road and the motorcycle struck the offside of the tender and both the pursuer and his son were seriously injured. Here the pursuer claimed that the accident was caused by the negligence of the defenders' employee who was driving the tender at the time of the accident. Quantum of damages was agreed and the only issue in dispute here was liability. It was the defenders contention that the driver was not at fault and that the accident was caused by the pursuer, or, alternatively that the damages should be reduced because of the pursuer's contributory negligence. At proof the court heard evidence that the pursuer was travelling at excessive speed, was under the influence of alcohol at the time of the accident, his vision was blocked by the hill and it was likely he was racing a car. Here the court considered whether the driver of the tender was acting with due care and attention when he carried out an overtaking manoeuvre at the time of the accident and whether, to any extent, the driver of the tender could be described as being at fault and responsible for the accident.

Alan Law v. Frank Ronald & Motor Insurers’ Bureau [2010] CSOH 53

Wed, 21 Apr 2010 15:45:18 GMT

In this action the pursuer sought damages from the first defender for injuries which he sustained as a result of a road accident on 30 May 2004. In addition the pursuer sought from the second defender declarator that they were liable to satisfy any decree awarded against the first defender if any decree remained unpaid by the first defender after seven days. On 30 May 2004 the pursuer had allowed himself to be driven by the first defender following a party. An accident occurred on the A83 Tarbert to Lochgilphead road as a result of which the pursuer was injured. The issue here at proof was whether the second defenders proved that at the time of the accident the pursuer was allowing himself to be carried in the vehicle at a time when he knew or ought to have known that the vehicle was being used without there being in force in relation to its use a contract of insurance. During the proof a witness, George Brown, gave evidence in which he stated that at the first defender's house before leaving in the motor vehicle prior to the accident there was a discussion in the presence of the pursuer that the first defender did not have insurance and this was known to the pursuer. Here the court considered whether the witness’s evidence should be accepted on the issue that the pursuer had actual knowledge of the lack of insurance when he agreed to be driven by the first defender.

Raymond Allan Sinclair McGregor v. Alpha Airports Group plc [2010] CSOH 51

Thu, 08 Apr 2010 17:45:42 GMT

Motion for expenses and caution:- In this action the pursuer sought damages from the defenders for injuries which he sustained as a result of an accident while in the course of their employment at Inverness Airport on 18 June 2003. It was the pursuer’s case that he sustained the injuries to his back as a result of carrying two heavy cases of juice. The case was based on a breach of regulation 4 of the Manual Handling Operations Regulations 1992 and the defenders' fault at common law. The pursuer has not had legal representation since 20 January 2009. On 1 December 2009 the case called for proof and was discharged ex proprio motu. On behalf of the defenders motions were made for:-(1) the expenses of the discharge of the diet of proof; and (2) caution for expenses. The motions were opposed by the pursuer. On behalf of the defenders it was submitted that the discharge of the proof was solely caused by the pursuer and was through no fault of the defenders. In justifying an order for caution the court was invited to consider:- (1) the pursuer's impecuniosity when taken with; (2) the lack of merit in the pursuer's case; and (3) the pursuer's behaviour in the course of the action. Here the court considered whether the general rule that expenses follow success or are payable by whoever has caused the expense should pay the cost, should apply. The court went on to consider the merits of the pursuer’s case as presently pled and also his case, if allowed to amend outwith the triennium, and the issue of the impecuniosity of the pursuer, which of itself was not determinative, and whether he should be ordered to lodge caution for expenses.

David Lyons v Wm Morrisons Supermarkets PLC [2010] CSOH 50

Thu, 08 Apr 2010 17:38:15 GMT

The pursuer was employed by the defenders at a supermarket in St. Andrews. During the course of his employment the pursuer stacked shelves. On two separate occasions in December 2005 and a month later, the pursuer injured his back whilst lifting heavy goods within the supermarket. Following the second accident the pursuer was off work for two weeks, after which he was initially returned to light duties. Since then the pursuer has performed his normal duties despite suffering back pain throughout the period. Here at proof liability was not in dispute and the only issue between the parties was the assessment of solatium. Expert medical evidence was led on behalf of both parties. It was submitted on behalf of the pursuers that the pursuer's back was subjected to unusually severe stresses in the course of the accidents and had resulted in a chronic back problem. It was submitted on behalf of the defenders that the accidents aggravated a pre‑existing minor strain to the pursuer’s back but it was likely that the damage would have happened anyway. Here the court considered whether the continuing chronic problems to the pursuer’s back were attributable to the accidents or whether the continuing problems would have occurred in any event as a result of the pursuer's body building which, had it not been for the accidents, would have placed severe strains upon his already damaged spine.

Margaret Valentine and Another v. The Ministry of Defence [2010] CSOH 40

Thu, 25 Mar 2010 18:36:29 GMT

Proof:- On 31 January 2004, sapper Robert Thomson, a member of 35 Regiment, Royal Engineers, was killed during his fourth tour of Iraq when he was crushed by earth when it collapsed on him whilst he was recovering soil samples from a trench. Here his mother and brother sought damages from the Ministry of Defence at common law, that he died through the fault of the Ministry of Defence on account of their failure to provide a safe place of work and their failure to devise and institute a safe system of work for the task undertaken. It was contended by the pursuers that the United Kingdom standards applied on account of the declared policy of the Ministry of Defence to apply these standards to construction sites abroad where reasonably practicable. Reliance was placed upon United Kingdom statutory provisions, the application of which had not been extended to Iraq, in particular Regulation 3 of the Management of Health and Safety at Work Regulations 1999 and Regulation 12 of the Construction (Health, Safety and Welfare) Regulations 1996. Here the court considered how sapper Thomson came to be within the trench as it was not clear whether he had voluntarily entered it or fallen in. The court considered, on the evidence, that it was likely he fell in while preparing to undertake the next stage of the job following completion of the excavation. The court went on to consider what should have been done to prevent that from occurring and whether there was a breach of the Ministry's duty of care to the deceased at common law or the various regulations founded upon by the pursuers. The court also considered whether the deceased contributed to any material extent to the incident. In the event of liability being established quantum was agreed.

Angus Campbell v. Robert Downie [2010] CSOH 37

Wed, 17 Mar 2010 21:34:59 GMT

Proof:- On 7 October 2007 the pursuer was driving his car on the M8 towards the Kingston Bridge in Glasgow. The pursuer slowed down to take heed of queuing traffic, and was close to stopping, when he was hit from behind by a van driven by the defender. The pursuer came to a halt and was again struck by the defender's van, pushing him into the rear of the car in front of him being driven by a Mr Cassidy which resulted in a scuff on his car’s rear bumper. The second contact between pursuer and defender was caused by the defender being struck by a vehicle from behind, the driver of which remains untraced. At proof the dispute between pursuer and defender concerned the sequence of events and the reason for the defender's car colliding with the pursuer's car. The pursuer claimed that it happened because the defender failed to stop in time when the pursuer slowed down due to traffic in front of him and he described there being two impacts. The defender claimed that he had stopped his van and that the untraced fourth driver collided with him, propelling him into the pursuer and therefore absolving him of blame. Here the court considered whether the pursuer had proved that the accident happened in the manner he described and that there was loss, injury and damage sustained by him, due to the fault of the defender, and the quantification of any award made.

Axa General Insurance Limited and Others v. The Right Honourable Elish Angiolini QC and others [2010] CSOH 36

Wed, 17 Mar 2010 21:32:38 GMT

Here a motion was made on behalf of eleven individuals who claimed to have been diagnosed with bilateral pleural plaques caused by negligent exposure to asbestos and who had actions for loss, injury and damage in process or in immediate contemplation for leave to enter the process in terms of Rule of Court 58.8(2). The motion was opposed on behalf of the petitioners on the basis that Rule of Court 58.8(2) did not apply to those persons on whose behalf the motion was made and that it was not in the interests of the expeditious and efficient determination of the cause that these individuals should be given leave to enter the process. Here the court considered whether to grant the motion and, in particular, whether the named persons fell into the category of persons directly affected by the issue raised. Further, the court went on to consider whether the court should exercise its discretion and grant the named persons leave to enter the process.

Anthony Brookes v. First Aberdeen Limited [2010] CSOH 16

Wed, 24 Feb 2010 19:49:20 GMT

Proof:- On 27 January 2006, the pursuer, a 45 year old man at the time of the incident, was driving his scooter in Aberdeen when he lost control, fell and was injured. It was the pursuer’s contention that the accident was caused by a bus operated by the defenders, and driven by one of their employees acting in the course of his employment, travelling in the opposite direction to the pursuer which caused him to fall off. During the course of his evidence the pursuer stated that the bus was being driven northwards in the southbound lane towards him which required him to take evasive action and led to his loss of control. The defenders stated that the driver of the bus was driving northwards at a speed of 20 mph and there was a row of parked cars on his left which he required to overtake by straddling the white lines in the centre of the road, and the pursuer was travelling in the centre of the southbound lane, passed the front of the bus and at some point lost control of his scooter. It was further contended on behalf of the defenders that the pursuer could either have waited to allow the bus to pass him or proceeded with care into an available space on his side of the road to let the bus pass. Here the court considered, having regard to the evidence led on behalf of both parties, whether the driver of the bus was negligent at the material time and liable to the pursuer for damages.

Maxine Griffiths v. Brian Butler & Mrs Nicola Griffiths [2009] CSOH 152

Thu, 19 Nov 2009 15:43:00 GMT

This motion for issues on behalf of the pursuer was opposed by the defender and the third party. On behalf of the defender it was submitted that in the particular circumstances of the case the matters in dispute were sufficiently complex that they would cause confusion to a jury and that amounted to special cause and that decision was a matter for the discretion of the Court. On behalf of the third party it was submitted that the case was sufficiently complex, particularly in relation to the issue of contributory negligence, and amounted to special cause. It was submitted on behalf of the pursuer that the case was simple in relation to liability and the pursuer had a right to a jury trial unless the onus of establishing special cause on the opposing parties was discharged. Here the court considered whether to grant the pursuer's motion for issues, to refuse the motion for issues or to proceed under Rule 26.7(3) to allow the action so far as directed against the third party by the defender to proceed as the first stage to proof and to allow issues in respect of the action between the pursuer and the defender.

Jacqui Louise Smith v. The Highland Council [2009] CSOH 149

Thu, 12 Nov 2009 20:53:43 GMT

This relates to a hearing in terms of Rule of Court 42.4(4) in respect of a Note of Objection for the pursuer to a Report by the Auditor of Court in relation to an account of expenses lodged by the solicitors for the pursuer in the action and related to the Auditor's disallowance of certain charges for precognitions, a fee for a medical report and pre-litigation work. It was submitted on behalf of the pursuer that the Auditor has misdirected himself and the fact that the solicitor had not himself carried out certain work, or even if not instructed by him, did not mean that he could not charge for it and Rule of Court 42.16 allows for the recovery of the work done by a clerk. It was submitted on behalf of the defenders that the Note of Objection should be repelled and to find the pursuers liable in expenses of the hearing. It was submitted that under Rule 42.10 (1) "Only such expenses as are reasonable for conducting the cause in a proper manner shall be allowed." Here the court considered whether the expenses should include work done at a point prior to the instruction of the solicitor and, as such, not undertaken at the behest of the solicitor.

Mrs Lynn McGovern v. Glasgow City Council [2009] CSOH 148

Thu, 12 Nov 2009 20:52:08 GMT

On 8 January 2007 the pursuer stepped off a pavement on Great Western Road, Glasgow into a pothole on the road, fell down and suffered an injury to her leg. The case was brought on the basis that the defenders had a duty to take reasonable care to maintain the road in a safe condition for persons who required to cross it. Quantum was agreed at £5,000. The only question at proof was whether or not the pothole had a depth of at least 40mm on the date that an inspection of the road had taken place, namely 27 November 2006. At proof it was the opinion of an expert instructed by the pursuer that due to the measurements of the pothole, and the wearing away of the top layer, and the cracking around it, the pothole was likely to have been in existence and at least 40 mm deep on 27 November 2006. The expert on behalf of the defenders gave evidence that there had been no pothole on 27 November 2006. Here the court considered whether, having regard to all of the evidence led, the pursuer had proved her case.

Wands v Fife Council – Kirkcaldy Sheriff Court, 5 August 2009

Thu, 29 Oct 2009 20:46:25 GMT

The Pursuer raised an action of damages against the Defenders for loss and damage to her physical and psychological health. She claimed that the Defenders directly, and the teaching staff for whom they were vicariously liable, had failed to protect her from bullying. The Pursuer averred that she had been subjected to a systematic campaign of physical and verbal abuse from other pupils. This began at nursery and continued throughout both primary school and secondary school. At Debate, the Defenders argued that the claim should be dismissed as fundamentally irrelevant. The parties agreed that the case did not involve any breach of a statutory duty - it was a case based on professional negligence. The Defenders' main criticism was that the Pursuer’s pleadings failed to set out dequately the type of facts necessary to meet the established legal tests for liability in cases such as this and also that the lack of specification was so acute that they were denied fair notice of the case that they must answer at Proof. They referred to the well known test for professional negligence in the case of Hunter v Hanley. They also referred to a number of cases involving the alleged negligence of local authorities. It was suggested that liability in such cases would arise from “exceptional, specific and identifiable mistakes" – and this meant that averments demonstrating the Defenders' “manifest incompetence” were necessary. In this case, the Pursuer had made real attempt to point to any specific act of manifest incompetence on the part of the Defenders during her education. There had been no attempt to define “bullying” or to set out what reasonable steps the Defenders ought to have taken to make sure that anti bullying strategies were reasonably implemented. The Pursuer had also averred details of incidents that had take place outwith school hours or school premises and the Defenders could not be held responsible for alleged wrongdoings outwith their legal and physical control. The Pursuer’s averments of loss were criticised on the basis that there were no relevant averments to link the Pursuer statements to any physical injury or recognised psychiatric illness. The Pursuer had referred the panic attacks, low self esteem and moods, but this did not amount to psychiatric illness. The Pursuer was not offering to prove that the individual acts of harm, even taken together, were causally linked to any of her alleged symptoms. She was not offering to prove that any action or inaction by the Defenders was causally linked to her loss or damage. At the outset of the debate, the Pursuer had conceded that her case was based on “harm in the round” and that she was not able to aver individual acts of negligence on a precise time line. It had been conceded that if the Sheriff held that such pleadings were required for the Pursuer’s case to succeed, then it must fail. The Pursuer argued that her averments described what anyone would understand as bullying. She offered to prove that the Defenders had failed to implement their own established behaviour management policies, either directly or through staff. She offered to prove that they failed to meet appropriate professional standards in their selection of the anti bullying techniques that they did use and that amounted to negligence. The Pursuer argued that the correct test of delictual liability in the present case involved the three essential ingredients of foreseeability, proximity and the court being satisfied that, in all the circumstances, imposing liability on a Defender would be fair, just and reasonable. The Sheriff had to decide whether to dismiss the action.

K.T. v. Lothian NHS Board [2009] CSOH 132

Thu, 01 Oct 2009 17:45:55 GMT

The pursuer is the mother of CK, born 11 May 1998, and sought reparation, as guardian for CK, from the defenders in respect of alleged negligence of anaesthetic and obstetric staff during the birth of CK, for which it was averred the defenders were liable as their employers. CK has cerebral palsy, is severely disabled and will have severe neurological impairment for the rest of her life. The issues for proof were restricted to liability and caustion. Here the court considered whether there had been professional negligence on the part of the obstetrician and the anaesthetist and whether any such negligence caused or contributed, to any extent, to the disabilities of CK. Here the court considered whether, in the emergency situation faced by the hospital staff during labour, certain acts and omissions alleged of the obstetrician and the anaesthetist were negligent and causative of the injuries and disabilities suffered by CK. Following proof it was submitted on behalf of the pursuer that both liability and causation were established and counsel invited the court to remit the cause for a proof before answer on quantum. It was submitted on behalf of the defenders that there was no evidence that the obstetrician was negligent on the limited grounds averred by the pursuer and any delay by the anaesthetist capable of causing the damage suffered by the child was not the consequence of any negligence for which the defenders were responsible and the defenders should be assoilzied.

Caroline Jarrett as legal Representative of Megan Jarrett v Kirkcaldy Ice Rink - Kirkcaldy Sheriff Court, 2nd July 2009

Thu, 20 Aug 2009 19:28:50 GMT

The Pursuer’s daughter suffered an accident at Kirkcaldy Ice Rink in October 2007 when she was 12 years old. As she left the ice and stepped onto a walkway, her right skate became caught in some netting that was trailing on the ground. She fell and twisted her ankle. The netting was there to protect spectators from high flying ice hockey pucks. The netting was pulled back when not in use for ice hockey matches as it was not required during ordinary skating. The Defenders had a system for securing the end of the netting to keep it clear of the ground or the walkway. Damages were agreed but liability remained in dispute and a proof before answer took place. The Pursuer claimed that the Defenders were liable at common law. An obstruction on the walkway was a clearly foreseeable hazard and the Defenders were negligent in failing to keep the netting safely off the ground. She also claimed that the Defenders had breached their statutory duties as occupiers and controllers of the ice rink in terms Section 2(1) of the Occupiers Liability (Sc) Act 1960. Under Section 2(1), the Defenders had a duty to take reasonable care to see that ice rink users did not suffer injury as a result of dangers due to the state of the premises. The Defenders put forward three lines of defence. They argued that the accident had not happened as the Pursuer alleged. They also argued that the Pursuer’s common law case was irrelevant. It was not enough for the Pursuer to establish that the netting had been trailing along the ground in such a way as to cause someone to trip. She had to establish fault on the part of the Defenders by proving how the net came to be on the ground; how long it had been there before the accident; and whether the Defenders should have known that the net was in that position before the accident. Finally, they argued that the Pursuer’s statutory case was also irrelevant. The statutory test was not absolute or strict. It was based on taking reasonable care in all the circumstances. The Pursuer had not offered to prove how long the netting had been left trailing before the accident occurred. On that basis, it was not possible for a finding to be made regarding when this should have been noticed and tied up. The Pursuer had suggested other ways that the Defenders could have secured the netting but had not averred that any of these alternatives would have avoided or materially reduced the risk of accidents. The Pursuer had failed to aver or prove essential elements of the legal tests applicable to both the common law and statutory cases. In relation to the common law duties, the Defenders submitted that there had been no evidence of negligence. As regards the statutory duties, the Defenders had led unchallenged evidence proving that they had a system for inspecting the ice rink, including the walkways, every day before the rink was opened to users. They led unchallenged evidence that there were three attendants charged with general security and health and safety duties. These were reasonable precautions. The Pursuer had not averred or attempted to prove that the netting should have been inspected more regularly.It was up to the Pursuer to prove what system the Defenders should have had in place to prevent such an accident. In the absence of those averments, the Defenders would be held to an unknown standard. The Sheriff had to determine whether the Pursuer had made out her common law and/or statutory case.

Elizabeth Gordon v. Mark Martin Lynch [2009] CSOH 116

Wed, 12 Aug 2009 13:37:15 GMT

Proof:- On 16 May 2004 the pursuer’s brother, Sean Milligan, was injured in a road traffic accident in Carluke when the car he was driving collided with a stolen van being driven by the defender who was under the influence of alcohol. The defender was thereafter convicted of a number of road traffic offences which resulted in him being imprisoned. The pursuer was appointed the financial and welfare guardian for her brother in March 2006. Here the pursuer sought reparation on behalf of her brother for the injuries that he sustained in the accident. The pursuer received the sum of £350,000 by way of interim damages in May 2007for a care package to be put in place. Liability has been admitted and the only issue at proof here was quantum. The pursuer’s brother had sustained traumatic brain injury as a result of the accident and had a score of 3 on the Glasgow Coma Scale initially. He had a number of other injuries including a pneumothorax to the right side of the chest, a closed fracture of the right neck of femur, a closed fracture of the right middle/distal third of the femur, an open comminuted fracture of the right patella, a closed fracture of the right ankle and an open comminuted fracture of the left patella with an underlying fracture of the distal femur. At proof a number of heads of claim were agreed between parties, however, there were a number of areas of dispute including inter alia solatium, the cost of future care and the cost of accommodation. Here the court considered the level of damages to be awarded having regard to the pursuer’s brother’s needs for the remainder of his life.

Craig McIntosh v. First Glasgow Limited [2009] CSOH NUMBER117

Wed, 12 Aug 2009 13:36:01 GMT

Motion to remit to Sheriff Court:- In this ordinary action the pursuer sought damages of £9,000 in respect of damage caused to his motor vehicle following a collision with a bus driven by an employee of the defenders. Liability was not disputed by the defenders and the only issue related to the reasonableness of the sum concluded for. Here the defenders enrolled a motion to remit the cause to Glasgow Sheriff Court in terms of Section 14 of the Law Reform (Miscellaneous) Provisions (Scotland) Act 1985 and Rule of the Court of Session 32.1. The motion was opposed on behalf of the pursuers. It was submitted on behalf of the defenders that it was a straightforward case and it was likely that a proof would be fixed before the end of the year if the action was remitted to the Sheriff Court whereas if the action remained in the Court of Session it was unlikely that a proof date would be available earlier than 2010 and the expense of litigating there would be less. It was submitted on behalf of the pursuer that it was insufficient reason to make a remit to the Sheriff Court on the basis that the procedure there would be quicker and cheaper because that would be the same in every motion to remit under section 14. Here the court considered the nature of the action in deciding whether to remit to the Sheriff Court.

Jacqueline Donoghue v. Greater Glasgow Health Board & Laing O'Rourke Scotland Limited [2009] CSOH 115

Wed, 05 Aug 2009 15:55:56 GMT

In this action the pursuer, a porter at Glasgow Royal Infirmary, sought damages from the defenders, her employers, for an accident which occurred during the course of her employment when she slipped on loose stones on the stairs at the GRI and fell and injured her back. The basis of the pursuer's claim was a breach of the defenders common law duty to take reasonable care for the pursuer's safety and their breach of statutory duties in terms of Regulations 5 and 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 and section 2 of the Occupiers' Liability (Scotland) Act 1960. The defenders brought in a third party who, in 2004, undertook to construct a path leading to the top of the stairs on which the pursuer avers that she fell. The third party was also responsible for landscaping the area adjacent to the path. The defenders aver that the third party was in breach of the sub-contract which regulated the work in particular they failed to "exercise the reasonable skill, care and diligence to be expected of a properly qualified and competent engineer or other appropriate designer who is experienced in carrying out such services in relation to works of a similar scope, nature, timescale and complexity, and on a similar site at a similar location in the sub-contract works". The third party claimed that it was under no obligation to make payment to either the pursuer or the defenders. The third party avers that the defenders' averments against it are irrelevant and lacking in specification and that the action should be dismissed insofar as directed against the third party. At debate the defenders conceded that it was accepted that the pursuer would not have any right of action directly against the third party, however, that did not necessarily mean that the defenders had no claim against the third party. The defenders claimed against the third party in terms of Rule of Court 26.1(1)(b)(ii). Here the court considered whether the defenders' claim for damages for breach of contract against the third party was too remote, having particular regard to the gap in time between 27 May 2004 when the work was done by the third party and when the accident was said to have occurred on 27 April 2007, and should be dismissed.

Neil Todd v. Myles Clapperton and another [2009] CSOH 112

Thu, 30 Jul 2009 15:23:03 GMT

Proof:- In this action the pursuer sought damages from the defender, from whom he and his partner rented a property from, after a glass panelled door there swung on to his hand as he entered the living room causing him to be injured. The pursuer based his claim on a breach of the condition implied by Section 113 and paragraph 1(2) of Schedule 10 to the Housing (Scotland) Act 1987 which provides:- "In any contract to which this paragraph applies there shall, notwithstanding any stipulation to the contrary, be implied a condition that the house is at the commencement of the tenancy, and an undertaking that the house will be kept by the landlord during the tenancy, in all respects reasonably fit for human habitation." The parties agreed the value of the claim at £25,000. The main issue at proof was whether or not the pursuer was a credible and reliable witness and whether he had proved that the accident had happened in the manner averred on record. There were a number of matters the court considered in relation to the credibility of the pursuer, in particular, the medical records which contained the history provided by the pursuer on his admission to the hospital in relation to how he came by his injuries. The court also considered the questions:- (1) whether it been proved that the property was not reasonably fit for human habitation? (2) would a reasonable inspection carried out by the defenders have discovered the defect in the pane? and (3) were the defenders in breach of their obligations to put the house in a condition such that it was in all respects reasonably fit for human habitation regardless of whether an inspection of the subjects would have revealed the defect in the pane?

Donal Toner v. Kean Construction (Scotland) Limited & CRGP Architects and Surveyors and Partners Thereof [2009] CSOH 105

Thu, 23 Jul 2009 14:22:00 GMT

Procedure Roll:- In this action the pursuer, an architect, sought damages from the first and second defenders, developers and architects respectively, for breach of copyright. The pursuer was instructed by the first defenders predecessor in title as an architect in relation to the development of various sites. The pursuer prepared certain drawings in relation to the development. The pursuer's employment in relation to the developments was subsequently terminated by the first defenders. The pursuer maintained that he had copyright in the drawings. The first defenders then employed the second defenders as architects in relation to the various developments. The second defenders then lodged drawings in respect of a planning application relative to the development. The first defenders constructed the development in conformity with the planning permission. The pursuer alleged breach of copyright against the second defenders in that they had copied substantial parts of the drawings which were then used in support of the first named defenders planning application. The alleged breach of copyright in relation to the first named defenders was that they had constructed the buildings within the development in conformity with the copied plans. At debate at the instance of the first defenders their pleas in law challenged the competency of the pursuer's action and the relevancy and specification of the pursuer's pleadings. The second defenders were unrepresented at the procedure roll. It was submitted on behalf of the pursuer inter alia that it was incompetent to sue more than one defender in the same action where there were separate conclusions against each based on separate and independent grounds of debt. It was further submitted that the case should be dismissed for want of relevancy and specification in that that there were insufficient averments which if proved would lead to damages. Here the court considered whether the cases pled by the pursuer against both defenders were so inextricably linked, both factually and legally, that it was competent and in the interests of justice that the cases be brought against the two defenders in the same action.

Dale McFarlane v. Barry Thain & James Campbell & The Motor Insurers Bureau [2009] CSIH 64

Thu, 23 Jul 2009 13:25:00 GMT

Reclaiming motion:- On 17 July 1999 the pursuer was riding as a pillion passenger a on a motorcycle which was driven by the first defender. The pursuer was seriously injured when the motorcycle collided with a car driven by the second defender. The pursuer thereafter raised an action against both alleging that each of them had been negligent. The first defender was uninsured, so the Motor Insurers' Bureau entered the process as minuters and disputed liability on the ground that the pursuer knew that he was uninsured. In addition, both the second defender and the MIB pled contributory negligence on the part of the pursuer. The second defender maintained that the pursuer failed in his duty to wear a properly fastened crash helmet. Further, the MIB contended that the pursuer knew that the first defender was unlicensed and had been drinking heavily before the accident also that the pursuer had failed to fasten the straps of his helmet securely. A restricted proof before answer on liability took place in 2007. During the course of the proof, before any evidence was led on behalf of the MIB, senior counsel for the pursuer intimated that the pursuer no longer insisted upon his case against the MIB, who were assoilzied. The first defender did not enter an appearance. Subsequently, the Lord Ordinary assoilzied the second defender. Here the pursuer submitted that the Lord Ordinary erred in sustaining an objection to a line of evidence relating to the sound of the motorcycle. It was submitted on behalf of the pursuer that the Lord Ordinary erred in concluding that fair notice of a case based on the sound of the motorcycle was not given in the pursuer's pleadings and the Lord Ordinary erred in deciding that the objection did not come at too late a stage of the proof. Here the court considered whether the objection by senior counsel for the second defender came too late and whether the second defenders should have been assoilzied.

Andrew Young v. The Advocate General for Scotland [2009] CSOH NUMBER102A

Wed, 15 Jul 2009 15:31:00 GMT

Proof:- The pursuer, a 60 year old man, worked in the employment of the Ministry of Defence at Rosyth Dockyard as a fitter from 1968 until 1976. He worked on vessels undergoing refit and repair and worked in the vicinity of laggers who were stripping and applying asbestos lagging. From 1976 until 1984, the pursuer worked for British Coal as a surface fitter when he worked on steam boilers and locomotives that were lagged with asbestos which he removed and he used asbestos based packing material for valves. The pursuer now suffers from a lung condition, interstitial lung disease, which is a disease of the parenchyma, the part of the lung responsible for the exchange of oxygen and carbon dioxide. It was contended on behalf of the pursuer at proof that he suffered from asbestosis as a result of exposure to asbestos during the periods of employment with the Ministry of Defence and British Coal. On behalf of the defender it was submitted that the pursuer suffered not from asbestosis but from an idiopathic lung condition unrelated to asbestos exposure, namely cryptogenic fibrolising alveolitis, also known and referred to as idiopathic pulmonary disease and if that was indeed the case and the pursuer suffers from cryptogenic fibrolising alveolitis then the defender's would not be liable for his condition. At proof each party lead evidence from an expert witness and the court here considered, in light of that expert evidence, which condition it was that the pursuer suffered from and whether the defender was liable.

Patricia Welsh v. Neil Brady [2009] CSIH60

Wed, 15 Jul 2009 15:28:00 GMT

Reclaiming Motion:- On 14 March 2005, the pursuer went for a walk with her golden retriever near Dundee. The defender was also in the field with his black Labrador. Both dogs were off the lead and were running around together, however, the pursuer, on calling for her own dog, both dogs ran towards her and the defender's dog collided with her right knee and knocked her over. The collision resulted in the pursuer suffering severe injury to her right knee, for which she sought damages from the defender. The pursuer pleaded a statutory case of strict liability based on section 1 of the Animals (Scotland) Act 1987 and a common law case based on the alleged negligence of the defender. The quantum of damages was agreed, in the event of liability being established, at £160,000, however, the Lord Ordinary found against the pursuer on both cases and assoilzied the defender. Here the pursuer reclaimed and submitted that the Lord Ordinary erred in law in finding against the pursuer on the statutory case of strict liability. Section 1(1) of the 1987 Act sets out three criteria that must be satisfied in order to establish strict liability:- "a person shall be liable for any injury or damage caused by an animal if - (a) at the time of the injury or damage complained of, he was a keeper of the animal; (b) the animal belongs to a species whose members generally are by virtue of their physical attributes or habits likely (unless controlled or restrained) to injure severely or kill persons or animals, or damage property to a material extent; and (c) the injury or damage complained of is directly referable to such physical attributes or habits." Here the court considered, under reference to section (1)(b) whether fully grown black Labradors, by virtue of their physical attributes or habits, are likely (unless controlled or restrained) to injure severely or kill persons or animals or whether the interlocuter of the Lord Ordinary should be adhered to.

Elizabeth Nugent v. Glasgow City Council [2009] CSOH 88

Wed, 08 Jul 2009 13:36:00 GMT

Proof:- In this action for personal injury the pursuer sought damages from the defenders for injuries she sustained as a result of tripping in a hole on the east footpath of West Nile Street, Glasgow, near Bath Street, on 11 January 2006. The pursuer sought payment of £200,000. By interlocutor of 20 May 2009 proof in the action was separated into a proof on liability and contributory negligence and a proof on quantum to be heard subsequently. Here the court heard the proof on liability and contributory negligence. The court considered the circumstances of the fall by the pursuer as she stepped into a depression in the pavement which was described as a "hole" and the defenders' system of street maintenance. Parties were in agreement as to the applicable law referred to in Hutchison v North Lanarkshire Council, 7 February 2007, unreported where a submission by counsel for the defenders in that case was in the following terms:- "At common law the duty incumbent upon a roads authority in relation to the maintenance of repair of footways or carriageways for which it is responsible is a duty to take reasonable care and does not extend to maintaining the surfaces of these footways, far less carriageways, in a uniformly flat and even condition. Irregularities in those surfaces are to be expected and it will always be a question of degree whether a particular defect gives rise to a reasonably foreseeable risk of injury...Even if a pursuer has suffered injury as a result of a defect which presented a reasonably foreseeable risk of injury, that is not sufficient in itself to establish fault on the part of a roads authority. The pursuer requires to establish that it was reasonable and practicable for the roads authority to have become aware of the defect (and to have repaired it) before she suffered injury. In order to do so a pursuer requires to prove that inspection in accordance with a practice common to roads authorities would have revealed the defect or that some special and exceptional circumstances, such as numerous previous complaints about the defect, made it reasonable and practicable to inspect the locus before the accident occurred... In the absence of any evidence establishing failure to comply with common practice, or special circumstances, the failure by roads authorities to implement its own repairs and maintenance policy may give rise to liability... but the allocation of finite resources among competing demands is entrusted to the discretion of the roads authority and the reasonableness of the policy decisions made by the authority is not subject to review by the Court in an action for damages unless the decision is so unreasonable as to fall outwith the ambit of discretion and relates to operational matters..." Here the court considered the appropriate standard of care in the case to ascertain whether the "hole" presented such a material or reasonably foreseeable risk of injury to pedestrians that the failure of the defenders to have it repaired before11 January 2006 amounted to a breach of their duty of reasonable care.

J.S. v. Lothian Health Board [2009] CSOH NUMBER97

Wed, 01 Jul 2009 18:19:00 GMT

Procedure Roll:- In this action the pursuer sought damages in respect of loss, injury and damage which the pursuer claims to have suffered due to negligence in her ante-natal care in 1994. At debate counsel for the defender invited the court to sustain the defenders' first plea in law and dismiss the action. It was submitted that there were no averments that the analysis of the sample was carried out by an employee for whose actings and omissions the defenders were responsible. The test was done as part of a research study which was not funded by the Health Board and was not carried out by an employee of the defenders and, as such, they were not responsible for the research study. It was submitted on behalf of the pursuers that the defenders were liable in negligence even though the individual said to have been negligent was not an employee of the defenders. Here the court considered the circumstances both relating subjectively to the pursuer's perception and objectively to the whole circumstances which affect the question of whether the defenders had assumed responsibility for the testing provided to the pursuer.

Leonard Allison v. Henry Robb Limited and Others [2009] CSOH 83

Thu, 18 Jun 2009 07:11:00 GMT

The pursuer formerly worked for the defenders during which period he was exposed to asbestos and developed bilateral pleural plaques. In this action the pursuer sought damages from the defenders for his anxiety about the diagnosis and about the possibility that he might develop serious asbestos-related diseases. At common law the pursuer did not have a relevant claim for damages following on from the decision of the House of Lords in Rothwell v Chemical & Insulating Co Ltd [2008] 1 A.C. 281 where it was held that a person who developed asymptomatic pleural plaques had not suffered loss and damage capable of giving rise to a cause of action in damages for negligence. However, the Scottish Parliament enacted the Damages (Asbestos-related Conditions) (Scotland) Act 2009, which was scheduled to come into force on 17 June 2009. Section 1 of the 2009 Act provides that asbestos-related pleural plaques are a personal injury which is not negligible and constitute actionable harm. Several insurance companies have jointly raised proceedings for judicial review of the 2009 Act in which they argue that the 2009 Act is outside the legislative competence of the Scottish Parliament. Here the defenders, moved the court for the action to be sisted and submitted that the sist of this action and six similar actions pending the resolution of the challenge to the 2009 Act would avoid unnecessary expense and inconvenience. The motion was opposed by the pursuers and submitted that the defenders in this case and in the six other cases referred to were not challenging the validity of the 2009 Act on human rights grounds or otherwise and that in each case the defenders were part of British Shipbuilders, a nationalised industry, and benefited from an indemnity from the Secretary of State. Further, it was submitted on behalf of the pursuers that if the court allowed the actions to be sisted, this would cause unnecessary delay and would prolong the uncertainty which the pursuers faced and, even if the 2009 Act were invalid in a question with the insurance companies, that did not mean that it was invalid in relation to those, such as the defenders in these actions, who could not be victims under the Convention. Here the court considered whether to sist the case.

Morris Amusements Limited v. Glasgow City Council and Others [2009] CSOH 84

Thu, 18 Jun 2009 07:10:00 GMT

Debate:- In this action the pursuers, the proprietors of a building in Glasgow, sought damages from the defenders. In 1999 the gable wall of that building was damaged in the course of demolition works which were in progress on an adjacent building, that decision to demolish it on public safety grounds was taken by the first defenders in terms of section 13 of the Building (Scotland) Act 1959. The pursuers' case was based on negligence and nuisance against the Council and the demolition contractors, the second defenders, in relation to the manner in which the works were carried out. At debate the issue was whether the pursuers had pled a relevant case against either or both of the defenders. It was submitted on behalf of the defenders that the pursuers' pleadings disclosed no relevant case of negligence or nuisance against them, and that the averments of alleged loss were so lacking in specification that the claim should be dismissed. Here the court considered whether if all of the averments were to be proved the pursuers' case against either of the defenders would necessarily be bound to fail.

Martin Cameron v. Melissa Beth Gellatly & Axa Corporate Solutions Services UK Ltd [2009] CSOH 82

Thu, 18 Jun 2009 07:07:00 GMT

On 12 May 2007, the pursuer was leaning into the rear nearside door of a stationary taxi in Perth when a car being driven by the defender collided with the taxi. As a result the pursuer was injured. The pursuer raised an action against the defender in which he sought damages of £500,000. The minuters defended the action on the basis that they insured the vehicle driven by the defender and the defender was not insured under the relevant policy at the time of the accident because she was driving the vehicle without the policy holder's permission, and the minuters would be obliged to satisfy any judgement obtained by the pursuer against the defender under section 151 of the Road Traffic Act 1988. The effect of section 151 is to make the minuters liable to the pursuer as if the defender was covered, albeit they would have a right of recovery against the defender. Here the pursuer enrolled a motion for interim damages which was opposed by the minuters on the ground that it was incompetent because it did not fall within the terms of Rule of Court 43.11(5). If an award was competent, it was agreed that an interim payment of £27,500 should be made. Rule of Court 43.11(5) provides:- "(5) No order shall be made against a defender under this Rule unless it appears to the court that the defender is - (a) A person who is insured in respect of the claim of the pursuer; (aa) A person who is not insured but in respect of whose liability the Motor Insurers' Bureau will be liable to make payment; ..." Here the court considered whether the pursuer's application was competent.

William Campbell v. Elliott Group Limited [2009] CSOH 63

Thu, 07 May 2009 08:19:00 GMT

Proof:- In this action for damages the pursuer claimed that in February 2005, whilst employed by the defenders, the pursuer, in the course of his employment, was carrying cans of paint when he caught his foot which caused him to fall onto his left knee resulting in his injury. The action was based on breach of the defenders' duty at common law to take reasonable care for the safety of the pursuer and a breach of statutory duty under Regulations 5 and 12 of the Workplace (Health, Safety & Welfare) Regulations 1992. The defenders contested the pursuer's account of what took place and alleged contributory negligence on the part of the pursuer. It was conceded on behalf of the defenders that if there was a finding to the effect that the accident occurred as averred on record, they accepted that they would be liable to pay damages for any loss, injury and damage caused to the pursuer by the accident. Here the court considered, on the evidence led, whether the pursuer had established on the balance of probabilities that as a result of his foot going into a pot hole or rutted area he fell with a twisting movement and his left knee was injured and to what extent, if any, he was contributorily negligent

E.A. v. G.N. [2009] CSIH 29

Wed, 01 Apr 2009 19:00:00 GMT

Reclaiming Motion:- In this action the respondent sought damages damages from the reclaimer on the ground that she suffered psychological damage as a result of sexual abuse alleged to have been perpetrated upon her by him between 1975 and 1997. The reclaimer was prosecuted on various charges of indecency and was duly convicted, however, his appeal against conviction was successful (N v HM Advocate 2003 J.C. 140). The present action was raised in January 2004. The respondent invited the court to exercise its discretion under section 19A of the Prescription and Limitation (Scotland) Act 1973 to allow the action to proceed notwithstanding that for more than three years prior to the commencement of the action she was aware of the facts specified in section 17(2)(b) of the 1973 Act. The Lord Ordinary, having heard a debate directed at the reclaimer's contention that the respondent's averments in support of the exercise of that discretion were irrelevant and lacking in specification, rejected that contention and proceeded, without hearing any evidence, to exercise the discretion in favour of allowing the action to proceed. Here the reclaimer appealed against that decision of the Lord Ordinary on the grounds that the respondent's averments directed to the exercise of the section 19A power were irrelevant and lacking in specification and that the action be dismissed,or, alternatively, that there should be a preliminary proof on the application of section 19A.

Donald Ross v. PGS Production A.S. [2009] CSOH45

Wed, 25 Mar 2009 17:11:00 GMT

On 2 June 2000 the pursuer was injured whilst employed as a deck foreman on an off-shore installation. The action was settled by extra judicial agreement. In this opposed motion enrolled on behalf of the pursuer, the pursuer sought the certification of two engineers as skilled witnesses for the pursuer under under Rule of Court 42.13. Further, the pursuer sought an additional fee under Rule of Court 42.14. It was submitted on behalf of the pursuer that this had been a substantial demages claim and a very complicated accident where there was limited evidence regarding the actual circumstances of the accident itself and, as such, there was a requirement to instruct both engineers. Further, an additional fee was sought, in particular, with regard to the complexity of the cause. It was submitted on behalf of the defenders that there was no need for expert engineers to be instructed and it was unfair for the defenders to have to pay for two reports, simply because one of the engineers did not complete the work he had been instructed to carry out. Here the court considered whether it was reasonable to employ the witnesses to make investigations or to report for any purpose as required under Rule 42.13 (2) and whether an additional fee was appropriate having regard to the the allegedly complex nature of the dispute on the merits, and for the need of advice from a consulting engineer.

Edward Pratt (A.P.) v. The Scottish Ministers [2009] CSOH 31

Thu, 05 Mar 2009 13:48:00 GMT

Debate:- In this action the pursuer, a prison officer, sought damages from the defenders, the employers of the pursuer, in respect of mental health consequences of an incident at work on 3 August 1997. On that date the pursuer had intervened in a fight between prisoners during the course of which the pursuer ingested a quantity of blood from one of the participants in the fight who was known to be an intravenous drug user. The pursuer attended hospital for blood tests the following day and a week later he was signed off work suffering from depression. The test results were ultimately clear, however, the pursuer developed a depressive illness and between 1998 and 2001 he was intermittently off work for periods of time before leaving the Prison Service. At debate here the question was whether the pursuer had pled a valid case or, as the defenders stated, that the claim should be dismissed as irrelevant. Here the court applied the test of whether, even on proof of all of the averments, the pursuer's claim would still necessarily fail.

Benjamin Monteith v. Scot Tech Furniture Services Limited [2009] CSOH 21

Thu, 19 Feb 2009 11:20:00 GMT

Proof:- On 25 August 2005 the pursuer was injured in an accident sustained by him during the course of his employment with the defenders as a delivery driver. Liability was admitted by the defenders and the only issue at proof was whether the injury had rendered the pursuer unfit for heavy work throughout the period since the accident and had continued to cause him substantial pain or whether the pursuer had fully recovered within 3 months of the accident as contended by the defenders. Here the court considered the nature, extent and the effects of the injury to the pursuer's back in light of expert medical evidence led on behalf of both parties, and the level of damages to be awarded as a result.

Elizabeth Stuart and Others v. The Advocate General [2009] CSOH 15

Thu, 12 Feb 2009 13:10:00 GMT

Proof:- This was an action for damages for reparation against the Advocate General for Scotland representing the Ministry of Defence and the Department of the Environment at the instance of the executors of the late George Smith Stuart who died in December 2007. The claim related to rights to damages in respect of personal injuries which were vested in the deceased immediately before his death and transmitted to his executors in terms of section 2(1) of the Damages (Scotland) Act 1976, as amended. At proof it was agreed that the deceased was employed by the Ministry of Defence and the Ministry of the Environment and in the course of that employment he was exposed to asbestos dust, and that the exposure was negligent, and that as a result of the exposure the deceased developed asbestosis. The claim for damages was made in respect of loss of respiratory function and consequent disability due to the deceased's asbestosis during the last eighteen months of his life. Here the court considered the level of damages to be awarded.

J.A. McClelland and Sons (Auctioneers) Limited v. I.R. Robertson and Partners Limited and Vexamus Water (Scotland) Limited [2009] CSOH 11

Tue, 03 Feb 2009 16:16:00 GMT

In this action the pursuers, operators of livestock markets, sought damages for losses resulting from the selection and provision of an effluent treatment system for a livestock market at Ballymena, Northern Ireland. The pursuers sued the first defenders, who are consulting civil engineers, for breach of an implied term of contract that they would exercise professional skill and care and the second defenders, who designed and manufactured the system, for breach of an implied term of contract that the system was fit for purpose. The action settled and the pursuers enrolled a motion for the certification of skilled witnesses under Rule of Court 42.13 and for an additional fee under Rule 42.14 which was opposed by the defenders. During the hearing a question arose as to the competency of the court certifying a skilled person whom the pursuers had not proposed to call as a witness and whom they had not included in their witness list under Rule 47.12. Here the court considered whether the Rule covered such witnesses who are employed to carry out investigations and provide reports with a view to enable parties to narrow the areas of dispute and whether, in this particular case, the motion was competent in respect of the "skilled" witness.

Janice Burgess v. Napier University [2009] CSOH 6

Wed, 28 Jan 2009 12:33:00 GMT

Proof:- The pursuer, an employee at Napier University, was invigilating at an exam at Merchiston Campus on 16 August 2006. At the end of the exam the pursuer collected the exam papers and left the room. As she did so, she tripped and fell against a wall injuring herself. Here the pursuer claimed damages for the injuries she suffered. It was claimed by the pursuer that she tripped on a waste paper basket which had been left lying on the floor. The pursuer based her case under regulation 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992:- "..so far as is reasonably practicable, every floor in a workplace and the surface of every traffic route in a workplace shall be kept free from obstructions and from any article or substance which may cause a person to slip, trip or fall". It was submitted on behalf of the pursuer that if the court was satisfied that the bin caused the accident, the breach of the regulations was made out. It was submitted on behalf of the defenders that the pursuer had not established that she tripped over the wastepaper basket. It was further submitted that esto it was established that the pursuer did trip over the wastepaper basket, she contributed to her accident due to her failure to keep a proper lookout and to look where she was putting her feet and the pursuer had a basic duty that she should take reasonable care for her safety. Here the court considered whether the pursuer had established her case to the requisite standard.

Chalmers v Aberdeenshire Council – Aberdeen Sheriff Court, 28 November 2008

Wed, 21 Jan 2009 19:16:00 GMT

The Pursuer sought damages for alleged negligence on the part of the Defenders and also damages for alleged nuisance. A drainage ditch at the side of a public road ran alongside the Pursuer’s fields. The Defenders were the local authority responsible for the management and maintenance of the road and ditch in terms of the Roads (Scotland) Act 1984. The Pursuer alleged that the form and construction of the ditch resulted in significant flooding of his fields. The parties did not agree about the causes of the flooding and the steps to be taken to improve the situation. At Debate, the Defenders argued that averments in 3 passages in the Pursuer’s pleadings should be excluded from the Record. They argued that, by including those averments, the Pursuer was trying to get the Court to make findings that the Defenders had duties to carry out certain work on a statutory basis and findings as to how the work should be carried out. He was inviting the Court to make a finding that the Defenders should carry out this work in order to comply with their statutory duties when it was not competent for the Court to do so. The Sheriff Court did not have the power to review the decisions of a local authority or to instruct a local authority on how to carry out its statutory function - only the Court of Session could exercise that supervisory jurisdiction.The passages were not necessary for the Pursuer to establish his case. The Pursuer argued that a Proof before Answer should be fixed and no averments should be excluded from probation. The averments that were attacked by the Defenders had been included to support the Pursuer’s case based in negligence. Without those averments, the Pursuer would be subject to the criticism that his pleadings had failed to give notice of how the Defenders’ duties should have been fulfilled. The Sheriff rejected the Defenders’ submission and allowed a Proof before Answer without deletion of any of the Pursuer's averments. In any action for negligence, it was appropriate for the Pursuer to set out the duty or duties that he claimed were incumbent on the Defenders and the way in which he claimed those duties had been breached. The averments complained of were relevant and it was appropriate for the Pursuer to give the Defenders full and proper notice of the steps that he claimed could or should have been taken to resolve the problem. The Defenders had not averred that their approach to the dispute involved a policy decision to act, or not act, in any particular way. If they had, it would have been beyond the power of the Sheriff Court to review that decision.

Douglas Robert Porter v. Scottish Borders Council [2008] CSOH163

Wed, 10 Dec 2008 07:37:00 GMT

Proof:- In this action the pursuer sought damages in respect of injuries sustained as a result of an accident occurring on 2 September 2005. That afternoon the pursuer had finished work for the week and visited the public toilet of the town. The pursuer worked as a joiner and was wearing his working boots which had rubber soles. The pursuer turned the corner to enter the main toilet area and lost his footing falling to the floor. He was embarrassed at having fallen into the trough of the urinal and managed to get to his feet and leave the premises. After reaching his home the circumstances of the pursuer's accident were reported to the defenders by his brother to a health and safety technician employed by the defenders. At proof it was submitted on behalf of the pursuer that he had simply lost his footing on the floor of the toilet block and there was no element of fault on his part and there was no suggestion that he was rushing or being unduly careless and thus it was submitted that there was no element of contributory negligence on his part and there was ample evidence to make a specific finding that the floor of the toilet block was wet to a material degree on the day in question and the defenders could not claim that they were not aware of such a risk. Here the court considered whether the pursuer had established that the defender failed to take reasonable care for the pursuer's safety at common law and under section 2(1) of the Occupiers Liability (Scotland) Act 1960.

J.M. v. Fife Council [2008] CSIH63

Wed, 10 Dec 2008 07:35:00 GMT

Reclaiming Motion:- The pursuer and reclaimer was resident in St. Margaret's Children's Home, Elie, Fife. The home was run by the statutory predecessors of the defenders and respondents. The pursuer sought damages for loss, injury and damage sustained as a result of sexual and non-sexual abuse inflicted on him by an employee of the respondents' statutory predecessors who were responsible for the running of the home. In 2001 the same employee pled guilty to offences involving the abuse of a number of children formerly in his care and was sentenced to 15 years' imprisonment, and died while serving that sentence. The respondents disputed liability for the actions of their employee. This reclaiming motion relates to the Lord Ordinary's assessment of solatium at £75,000 and his decision to award interest on that sum only from the time of citation, rather than from the date of the wrong. Here the court considered whether the award could be said to be so low as to be wholly unreasonable or out of all proportion to the sum which should have been awarded. Further, the court considered whether interest should accrue from the date of decree or from 14 September 1966 when the reclaimer left the home as claimed on behalf of the reclaimer.

Alyson King v. Advocate General for Scotland [2008] CSOH 166

Wed, 10 Dec 2008 07:32:00 GMT

Debate:- The pursuer breeds and rears horses and in 2000 purchased a property in south-west Scotland with the intention to operate stables there. In March 2001, the pursuer was aware of aircraft flying at low altitudes over the stables in an area where operational low flying was allowed. The pursuer estimates that there are around thirty incidents each month. In this action, the pursuer sought damages for the harm which she alleged has been caused to her, her horses and to her property by the low-flying aircraft. The pursuer's claim against the defender was based upon:- (1) nuisance; and (2) infringement of Article 8 of the European Convention on Human Rights . The defender denied the claim and stressed that low level aircraft training was important in the defence of the country. At debate the specification of the pleadings was attacked:- (1) the pursuer did not offer to prove the altitude of the flights was below 250 feet and the conclusions for declarator could not be granted and the action should therefore be dismissed; (2) the wholesale incorporation of expert reports was challenged; (3) the specification of a number of heads of loss was challenged; and (4) the relevancy of condescendence four (the minimum separation distance is "the distance between the aircraft and the ground or buildings/trees") was challenged.

A. v. N. [2008] CSOH 165

Wed, 10 Dec 2008 07:31:00 GMT

Debate:- In this action the pursuer sought damages for a period of sexual abuse from when she was a child until the age of thirty by the defender. The abuse ended in 1997 and the pursuer's loss was known in 1998. The triennium expired in 2001 with this action raised three years later. At debate the defenders moved the court to dismiss the action on the grounds that the action had time barred. It was submitted on behalf of the defender that the case was time barred and so if it now proceeded he would have lost an unanswerable defence. There was no behaviour on his part which could be criticised and he maintained his denial of any breach of duty to the pursuer. He had twice been acquitted in the criminal court and he was not insured and would have to fund his defence to the action from his own resources. Further, it was submitted that the addresses of the alleged abuse may have changed internally and the pursuer's mother was now dead and two other witnesses could not be traced. Here the court considered the limitations under section 17 of the Prescription and Limitation (Scotland) Act 1973 and whether the pursuer satisfied the court under the exception contained under section 19A.

Crolla v Hussain and Ascension Construction Limited, Edinburgh Sheriff Court, 8 October 2008

Wed, 05 Nov 2008 20:41:00 GMT

The Pursuers/Appellants were heritable proprietors of a first floor tenement flat. The Defender/Respondent was the proprietor of the property below. He had arranged for Ascension Construction Limited to carry out works to his property and they were convened as third parties to the action. The Pursuers claimed that the works had caused serious cracking in their property. Their case was based negligence by the third party, for which they claimed the Defender was responsible, and also on nuisance created by the Defender. The Pursuers relied on an exception to the general rule that an employer is not vicariously liable for wrongs committed by an independent contractor employed to provide services. They argued that this rule did not apply when the contractor was carrying out an inherently dangerous operation. At Debate, the Defender had attempted to persuade the Sheriff to reject this exception as having no basis in Scots Law. He argued that, in any event, the Pursuers had not pled a relevant case within the exception and that the action should be dismissed. The Sheriff had rejected both arguments and had allowed a Proof Before Answer. The Defender appealed that decision. A number of authorities were considered and the Defender argued that these showed that the exception did not exist and, on that basis, an employer was not liable for the negligence of a contractor. Alternatively, if the exception was recognised in Scots Law, the Pursuers had not pled a relevant case. A distinction had to be made between operations which were inherently hazardous or particularly dangerous and those which could be carried out safely by competent contractors and only became hazardous when not carried out properly. In this case the Pursuers had not relevantly pled that the operation was necessarily hazardous. The Defender sought dismissal of the action. The Pursuers contended that the Sheriff was entitled to hold that, if a heritable proprietor instructed work on his property and that work necessarily carried a risk of damage to neighbouring property, he would remain personally liable for damage resulting from the negligent execution of the works, even if the works were carried out by an independent contractor. That liability was not an exception to the general rule as it was not being contended that the employer was liable for the negligence of his contractor, rather that he himself was under a duty of care and he remained subject to that duty even if he chose to delegate the execution of the works. This position was recognised in a number of Scottish decisions and was consistent with Scots Law. The Pursuers also argued that it was not a fair reading of their pleadings, taken as a whole, to say that risk only arose in the event of negligent execution of the works. The Sheriff Principal found in favour of the Pursuers. In his view, the case did not fall to be regarded as an exceptional example of vicarious liability for the negligence of an independent contractor. It should be regarded as an exception to the general rule that there is no liability on the employer for the fault of an independent contractor, however. This was a case involving withdrawal of support. If a proprietor was under an obligation to support his neighbour’s property and he instructed contractors to carry out work which, properly conducted, would not give rise to a risk to his neighbour’s property, he would not be liable for damage arising from the negligence of the contractor. If, however, the work necessarily carried risk, he could not escape liability by binding the contractor to take effective precautions. This principle formed part of the Law of Scotland. The Sheriff Principal had greater difficulty with the Defender’s second argument. On a strict reading of the relevant averments, the Pursuers appeared to set out a case of vicarious liability for the fault of the Third Party, which was not the true basis for seeking to attach liability to a proprietor who instructs operations involving withdrawal of support. Considering other averments in the Pursuers’ pleadings, however, a Proof Before Answer should be allowed. The Pursuers would also be entitled to rely on the case of nuisance, regardless of doubts over the relevancy of the case based on negligence.

Jeroen Van Klavern v. Servisair (UK) Limited [2008] CSOH 136

Wed, 17 Sep 2008 03:19:00 GMT

Reparation:- In this action the pursuer sought damages of £200,000 following an accident on 12 August 2004 when the pursuer was working in the course of his employment as a baggage handler with the defenders at Aberdeen Airport. Here on behalf of the pursuer counsel sought summary decree and a restriction of the proof to quantum. It was submitted on behalf of the pursuers that the defenders' insurers entered into a binding obligation with the pursuer's agent which bound both the pursuer and the defenders and that liability had been accepted, with an obligation to pay damages assessed and an obligation to pay costs. It was further submitted that the obligation having been created, the defenders could not then withdraw from it. It was submitted on behalf of the defenders that the defenders' insurers' employee in admitting liability was not agreeing to be bound and indicated a lack of consent there being no intention to enter into contractual arrangements. Further, it was submitted that even if the Court was satisfied that a contractual liability did exist a proof was still necessary to establish the terms and extent of the contract and summary decree should not be granted. Here the court considered whether there was a binding contract on liability in the correspondence between the parties.

Douglas Stuart v. Doreen Bulger [2008] CSOH 102

Thu, 24 Jul 2008 10:33:00 GMT

Reparation:- This case related to an action for damages following a road traffic accident in Arran in 1996. The case settled extra judicially with the defenders agreeing to make reparation to the pursuer together with the judicial expenses of the action as taxed. The pursuer's account of expenses was remitted to the Auditor of Court for taxation and the pursuer sought an additional fee under the provisions Rule of Court 42.14(2) and that application was also remitted to the Auditor for determination. Here the pursuer's former solicitors enrolled a motion in which they sought approval of the Report of the Auditor of Court dated 11 July 2006 and thereafter to grant decree in favour of the pursuer's former solicitors against the pursuer for sums they claimed were outstanding to them following the Auditor's Report. The motion for decree was opposed on the basis that it would be incompetent for a Court to grant decree in the terms sought. It was submitted on behalf of the pursuer's solicitors that since 1806 it had been competent for a solicitor to obtain a decree for expenses against his own client, within the same action as that in which he had acted for the client. In opposing the motion counsel for the pursuers submitted that:- (1) the procedure being adopted by the pursuer's former solicitors in seeking decree in terms of the Auditor's Report was incompetent; and (2) in the alternative, it was submiited that even it was competent to grant decree against the pursuer in terms of the Auditor's Report, without further procedure, in the particular circumstances of this case the court should not do so. Here the court considered the competency of the motion and the further procedure to be adopted.

Cameron Don v Eastern Holdings Limited – Edinburgh Sheriff Court, 18 June 2008

Wed, 16 Jul 2008 18:44:00 GMT

This action concerned liability for a road accident involving the Pursuer’s car and a car being driven by the Defenders' employee, M. Quantum was agreed and a Proof on liability took place at which the Pursuer and M were the only witnesses. The accident occurred on a road which had four lanes, two in each direction. M had been in the process of carrying out a u-turn from the south bound carriageway to the north bound carriageway. During the course of this manoeuvre, he had stopped in a gap in a line of stationary vehicles in the off side lane of the north bound carriageway and the front of his car was protruding into the nearside lane. M maintained that his car had been stationary when it was struck by the Pursuer’s car, which had been travelling in the near side lane of the north bound carriageway. The Pursuer's evidence was that he had been travelling along the near side lane and had seen M's car edging out into that lane. As he passed M's car it had moved forward and had struck his car. The Sheriff accepted the Pursuer’s version of events and found that M had been at fault. He held that the Pursuer had contributed to the accident to the extent of 25%, however, as he had decided not to pause or stop when he saw the M's car edging forward when, by his own admission, he had been unclear about what M intended to do.

Mrs Joyce Robson v. Grampian Country Chickens (Rearing) Limited [2008] CSOH 100

Tue, 15 Jul 2008 17:36:00 GMT

Reparation:- Between March 1999 and April 2004 the pursuer was employed by the defenders at their premises in Inverurie. In this action the pursuer sought damages for personal injuries which she said she suffered as a result of being exposed to formaldehyde and other chemicals during her work in the chicken hatching unit of the defenders. She claimed that as a result of the defenders' failures in duty the pursuer contracted occupational asthma and sought damages of £100,000. At proof liability was admitted and the only issue was restricted to quantification of damages. Here the court considered the level of damages to be awarded.

John Stephen & Mark Tocher v. Simon Mokster Shipping AS [2008] CSOH 99

Wed, 09 Jul 2008 09:52:00 GMT

Reparation - In these two actions the pursuers, both fishermen, sought damages from the defenders for injuries they say they sustained following a collision between their vessel, "The Harvester" and a vessel belonging to the defenders "The Strilmoy". Both pursuers raised their claims under Chapter 43 of the Rules of Court. The pursuers in Article 3 of the condescendence state:- "The present action arises out of a collision at sea on 4 November 2005 as condescended upon below. An action arising out of the same incident is proceeding in this Court. This Court accordingly has jurisdiction." In Article 4 of condescendence the collision is said to have taken place some 130 miles north east of Peterhead. In their defences the defenders plead:- "The action, being an action having a conclusion appropriate for the enforcement of a claim to which Section 47(2) of the Administration of Justice Act 1956 applies, and therefore being an admiralty action to which the provisions of rule 46.6 of the Rules of the Court of Session 1994 also apply, is incompetent in its present form." Here the defenders enrolled motions in both actions to have the actions dismissed as being incompetent. Prior to the introduction of Chapter 43 procedure actions similar to the present proceedings would have had to have been raised as admiralty actions under Chapter 46 of the Rules of Court. The question for the courrt here was whether that remains the position or whether, with regard to Chapter 43, claims like the present must be brought under Chapter 43 procedure.

Maureen Flood v. The University Court of the University of Glasgow [2008] CSOH 98

Wed, 09 Jul 2008 09:51:00 GMT

Reparation - Debate:- In this action the pursuer, a senior lecturer employed with the defenders from 1999 to 2001, sought damages from the defenders after she went off work with symptoms that she attributed to her excessive workload and lead her to be diagnosed as suffering from a psychiatric injury. At debate it was submitted on behalf of the defenders that the action should be dismissed on three grounds:- (1) on the pursuer's averments, the defenders could not have foreseen the risk of psychiatric harm to the pursuer; (2) any claim that there was a duty on the defenders to carry out a risk assessment was disputed; and (3) the pursuer's averments regarding the steps which the defenders should have taken in order to fulfil their duty of care were challenged. In response on behalf of the pursuer a proof before answer was sought as it was not possible to hold that the case would necessarily fail at proof having regard to the pleadings on the folowing grounds:- (1) the risk of psychiatric damage to the pursuer was reasonably foreseeable; (2) no risk assessment case had in fact been pled; and (3) fair notice had been given to the defenders of the steps which they should have taken to satisfy their duty of care. Here the court considered inter alia whether the pursuer's averments went far enough to identify the steps which the defenders should have taken to relieve the pursuer of some of her workload.

Lily Rose Crosset & Others v. Upper Clyde Shipbuilders Ltd (in liq) & Another [2008] CSOH NUMBER97

Wed, 09 Jul 2008 09:35:00 GMT

Reparation - Proof:- In this action the pursuers were the executors and family of the deceased who died from mesothelioma in 2005. The defenders were the successors of the rights and liabilities of the former employers of the deceased. At proof a joint minute of admissions was entered in to in which the defenders admitted liability to make reparation to the first pursuers and the parties agreed damages in the sum of £70,000. The only issue outstanding issue related to the sum of £9,912 paid to the deceased's estate under the Pneumoconiosis Etc. (Workers Compensation) Act 1979 and whether that sum should be deducted from the £70,000. It was submitted on behalf of the pursuers that to deduct the figure would result in the pursuers being under-compensated. It was submitted on behalf of the defenders that the payment under the 1979 Act fell to be deducted. The only issue before the court was whether the payment under the 1979 Act fell to be deducted from the sum of £70,000.

NATIONAL GRID GAS PLC v. STANLEY STORES (STRATHCLYDE) LIMITED 2008 CSOH 94

Thu, 03 Jul 2008 14:49:00 GMT

Action involving fracture of pipe under ground in an area which was being cleared for a carpark. Damages agreed in a joint minute. The pursuers' second plea in law stated that there had been a failure to take reasonable care on the part of the defenders. The defenders had little experience of property development and had subcontracted much of the construction work out. they were ignorant of much of the work being carried out on the site. The case centered on the pleadings and whether the defenders had answered the case made against them. Onus of proof disputed. Disputed that the defenders could have foreseen that any gas pipe would be in the relevant area or likely to be damaged by work of scraping. Defenders held liable to reparation.

Alan Pearson v. Ray McDermott Diving International Inc [2008] CSIH NUMBER 39

Tue, 17 Jun 2008 18:40:00 GMT

Reclaiming Motion:- On 6 May 1997 in the course of his employment with the defenders the pursuer suffered injury whilst working on a barge in assistance of two divers. An action was raised in May 2000 and, following a proof in 2003, on 18 February 2004 the Lord Ordinary assoilzied the defenders. Here the pursuer reclaimed against that decision. The only ground of fault that the pursuer relied upon at proof was in the following terms:- "They (the defenders) knew or ought to have known that if the pursuer was given instruction to haul in the diver he would follow the instruction. They knew or ought to have known that if the pursuer was required to haul in a taut umbilical he would be likely to sustain loss, injury and damage. It was their duty to take reasonable care to see that the pursuer was not required to pull up a taut umbilical." In his findings thed Lord Ordinary stated inter alia that:- "It cannot therefore be held that the pursuer was instructed to do something known to be impossible." The court considered whether the Lord Ordinary misdirected himself in relation to that finding. The question for the court here was whether fault on the part of the supervisor could be inferred from the evidence led at proof, in particular, whether any evidence was led by the pursuer from which the inference necessary to establish fault on the part of Harrison, the supervisor, could be drawn.

David & Doreen Stewart v Aftab Ahmed Malik – Ayr Sheriff Court, 29 April 2008

Wed, 28 May 2008 20:17:00 GMT

The Pursuers and Appellants were the joint proprietors of a first floor flat. The Defender and Respondent was the heritable proprietor of the shop which was located directly below the flat. The Defender had arranged for alteration works to be carried out to the shop. The works were subject to a building warrant issued by South Ayrshire Council, but were not carried out in accordance with the building warrant. A load bearing wall had been removed without the construction of a central support column. There was insufficient support to the walls of the flat and this caused damage to the Pursuers’ property. The Pursuers raised proceedings for recovery of damages. They offered to prove that the contractors instructed by the Defender did not put the central support column in place, as they were required to do by the building warrant, and, as a result, the Pursuers had suffered loss. The Defender effectively accepted that this was the case but argued that, as the work had been carried out on his behalf by an independent contractor, he could not be held responsible. There were a number of well defined exceptions to that general rule, one of which was where the contractor was carrying out an inherently hazardous operation. At debate, the Sheriff had sustained the Defender’s plea in law to the effect that the Pursuers’ averments were irrelevant and had dismissed the action. The Pursuers appealed and tendered a Minute of Amendment adding averments to the effect that the removal of the load bearing wall was an inherently hazardous operation as the wall supported the weight of the structure above. The Pursuers also sought to add a new plea in law to the effect that, as the works involved an inherently hazardous operation, the Defender was liable for the acts and omissions of his contractors. The Sheriff Principal allowed the Pursuers to add the additional plea in law and amend their pleadings. The Defender argued that the Pursuers’ case was still irrelevant. A distinction had to be made between operations which were inherently hazardous or particularly dangerous and operations which could be carried out safely but which only became dangerous or hazardous if not carried out properly by competent contractors. In the latter case, there was no personal liability on the employer. The works were not per se particularly dangerous or inherently hazardous and they only became hazardous when they were not carried out properly. Even if the Pursuers proved everything they offered to prove, they were bound to fail. The Defender submitted that the Pursuers’ averments as amended were capable of the interpretation that “inherently dangerous operation” referred to the negligent manner in which the contractors had carried out the works. After considering a numberof authorities, the Sheriff Principal decided that, reading the Pursuers’ pleadings as a whole, and, in particular, having regard to the new plea in law added by way of amendment, the Pursuers’ case was that the removal of a load bearing wall and the insertion in its place the new support beams and a central supporting column was in itself an inherently hazardous operation. What is “inherently hazardous” is a matter of fact. While it was attractive to consider the Defender’s submission that, if a building warrant had been obtained, the local authority did not consider the operation inherently hazardous, that was not determinative of the issue in the Sheriff Principal’s opinion. He concluded that the Pursuers were entitled to a Proof before Answer.

Billy McGhee v. Diageo plc [2008] CSOH 74

Fri, 23 May 2008 07:23:00 GMT

Proof - Reparation:- In this action the pursuer, a 20 year old trainee service engineer employed by Stilcan Industrial Conveyors Ltd, attended at the defenders' premises at Glen Ord Distillery to carry out maintenance work on scrapers on two conveyor belts. Whilst carrying out the repair work his legs became crawn in to a screw feeder and he suffered injuries to his legs. In this action the pursuer sought damages for the injuries that he suffered as a result of the accident. Liability was admitted and the proof was limited to the question of quantum and contributory negligence. The only issue in dispute regarding quantum was the appropriate figure for future loss of earnings. In relation to the issue of contributory negligence an employee of the defenders gave evidence that the pursuer was made aware about the imminent operation of the screw feeder and the court considered that against the other evidence led to determine whether the pursuer could be said to be contributorily negligent to any extent.

William Hynes v. Simon Lobnitz and Others [2008] CSOH 67

Wed, 07 May 2008 10:12:00 GMT

Reparation - Proof:- The pursuer, a 66 year old man, worked on and off as a fitter between 1956 and 1974 in the shipyards at Renfrew. At various times during his periods of employement in the shipyards the pursuer was employed by the seven defenders. During his employment with them, the pursuer experienced exposure to asbestos sufficient to cause asbestos disease and this was admitted by the defenders. The defenders were all agreed that the appropriate apportionment, in the event of liability being established, would be: first defenders - 26.19%; second defenders - 38.10%; third defenders - 2.38%; fourth defenders - 1.79%; fifth defenders - 16.07%; sixth defenders - 8.03%; and seventh defenders - 7.44%. At proof here the main issues were:- (1)whether the pursuer had pleural thickening as a result of exposure to asbestos and asbestosis itself, in the form of pulmonary fibrosis; (2) whether the pursuer's physical problems such as breathlessness were caused by asbestos related disease as distinct from other conditions like connective tissue disease and emphysema.

Farstad Supply AS v. Enviroco Limited & Asco UK Limited [2008] CSOH 63

Thu, 24 Apr 2008 07:17:00 GMT

Reparation - Procedure Roll:- On 7 July 2002 an oil rig supply vessel belonging to the pursuers was damaged by fire whilst it was berthed in Peterhead. In this action the pursuers sued the defenders for damages claiming that the fire resulted from the negligence of their employees when they removed residue from the vessel's oil tank and disconnected pipes causing base oil flowed back from the pipes and ignite on coming into contact with a hot engine after the vessel's main engines had been started up. The defenders sought relief from a third party, in terms of section 3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940, averring that the third party failed in its duty as charterer and base operator to direct and supervise the operations carried out on the vessel while the vessel was in port. In a charterparty dated 4 February 1994 the pursuers indemnified the third party. At debate counsel for the pursuer submitted that the defenders could not recover a contribution from the third party under section 3(2) of the 1940 Act and by virtue of the indemnity the pursuers could not recover damages from the third party. The issue at debate was whether the contractual obligations into which the pursuers entered into with the third party, prior to the damage to the vessel, prevented the defenders from obtaining a contribution from the third party under section 3(2) of the 1940 Act. Here the court considered the statutory interpretation of section 3(2) of the 1940 Act together with the construction of the clause in the charterparty, in particular, the words "defend, indemnify and hold harmless" and, ultimately, whether the defenders were entitled to a contribution from the third party under section 3(2) of the 1940 Act.

Diana Cheesman v. International Travel Service Limited [2008] CSOH 58

Wed, 09 Apr 2008 09:09:00 GMT

Contract:- In September 2001 the pursuer and her husband went on a coach holiday in Switzerland and Italy. On the last day of her holiday the pursuer tripped on a carpet in the coach and injured her ankle. The pursuer raised an action against the defenders with whom she had entered into a contract to provide a holiday. The action proceeded to proof on 11-13 July 2006 before Lord Dawson who made avizandum. On 11 June 2007, Lord Dawson died while the case was still at avizandum. On 26 June 2007, the court ordered that the cause continue and be dealt with by another Lord Ordinary. Here the court proceeded with the cause with parties providing extended notes on the evidence heard at proof and fresh submissions. The pursuer’s case was based on the contract she entered in to with the defenders to provide coach travel for a coach excursion during the holiday in which the defenders agreed to accept liability for the negligence of their coach suppliers and the damaged carpet on the coach which caused her to fall resulting in injury which was due to the coach suppliers negligence, in particular the driver. There were two main areas of dispute between the parties:- (1) whether the defect in the carpet was one which would have been identified and remedied by the coach supplier or coach driver, exercising reasonable care, prior to the pursuer's accident?; and (2) if so, whether, the contract between the pursuer and defenders were rendered the defenders liable in respect of the pursuer’s injuries?

Brenda Downie v. Fife Council [2008] CSOH 47

Thu, 20 Mar 2008 17:07:00 GMT

Reparation - Proof:- The pursuer was employed by the defenders as a social worker. The pursuer had a desk bound job in which she claimed that she developed a pain in her neck from stretching and twisting to use a computer that she shared with a colleague and which was situated on an adjacent desk. The claim was based on the defenders' breach of inter alia regulation 11 of the Workplace (Health, Safety and Welfare) Regulations 1992 (SI 3004), which requires workstations to be suitably arranged. Liability was not disputed by the defenders the only issue being quantification of damages. At proof the court heard from the pursuer and her husband together with medical evidence in relation to her injuries. Here the court considered the level of damages to be awarded to the pursuer.

Linda Henry v. Rentokil Initial plc, Captive [2008] CSIH 24

Thu, 20 Mar 2008 17:03:00 GMT

Reparation - Appeal from the Sheriff Court:- On 12 January 2000, the pursuer was injured while working as a nurse in the National Health Service at Canniesburn Hospital. The pursuer's injuries were caused by the negligence of an employee of the defenders for which they were vicariously liable and the issues at the proof before the Sheriff and on appeal related to quantum only. The Sheriff awarded a total of £315,306.45. The defenders challenged the award under each head of claim. The pursuer cross-appealed on the failure by the sheriff to award £24,191 as damages for loss of pension plus interest. Here the court considered both aspects of the appeal.

Thomas Ruddy v. Monte Marco & M & H Enterprises Limited [2008] CSOH 40

Wed, 12 Mar 2008 11:15:00 GMT

Reparation:- On 5 October 2002, the pursuer was injured when working in a warehouse at 137 Shawbridge Street, Pollockshaws, Glasgow. The second defenders were the owners of the warehouse. The first defender was a director of the second defenders. At the time of the accident, the pursuer had been working at the warehouse for around four weeks. Whilst the pursuer was removing some of the pipes of the sprinkler system and some of the buckled beams from the roof space of the warehouse the pursuer fell from the scaffold to the floor while cutting a pipe with a saw. Damages, on the basis of full liability, were agreed at £450,000. The pursuer's case against the first defender was based upon his failure at common law to take reasonable care, as the pursuer's employer, to provide a safe place of work and safe plant and equipment. The pursuer's case also relied upon regulations 4(1) to (3), 5(1), 8 and 9(1) of the Provision and Use of Work Regulations 1998 (SI 2306) and regulations 5(2), 6(1) to (3) and 10(1) and (2) of the Construction (Health, Safety and Welfare) Regulations 1996 (SI 1592). The action against the second defenders was based upon a number of different grounds, however, it was not disputed that the summons was not served upon the second defenders until January 2006, more than three years after the accident and the action was time barred under section 18 of the Prescription and Limitation (Scotland) Act 1973.

Anne Mitchell & Karin Mitchell (Aps) v. Glasgow City Council [2008] CSIH 19

Wed, 05 Mar 2008 11:32:00 GMT

Reclaiming Motion:- On 10 August 2001 James Mitchell, aged 72, died as a result of an assault by his neighbour James Drummond. On 12 July 2002 Drummond pled guilty to culpable homicide. In 2003, the deceased's widow and daughter raised this civil action of damages against Glasgow City Council in respect of the death as the defenders had been the local authority landlords of both the deceased and Drummond and the defenders had been aware of Drummond's threatening and aggressive behaviour towards the deceased prior to his death. The basis of the pursuers' claim was that the defenders owed the deceased and his family a duty of care:- (1) to instigate eviction proceedings against Drummond within a reasonable time of complaints about Drummond's behaviour being made; and (2) to warn the deceased about the meeting with Drummond. The action was dismissed following debate and it was against that decision that the pursuers reclaimed here.

Caroline Spencer v Miss E Baron – Edinburgh Sheriff Court, 4 February 2008

Thu, 21 Feb 2008 19:56:00 GMT

Action for Damages – Solatium - Road traffic accident – Causation - Pursuer having suffered whiplash type injury, although vehicles she was in

The Pursuer was a passenger in a private hire vehicle, which was stationery at a junction when it was struck on the rear bumper by the Defender's vehicle. There was no damage to the private hire vehicle. The Pursuer sought solatium for a whiplash injury sustained as a result of the collision. The Defender accepted that the accident had been her fault, but argued that the collision had been so minor that it could not have caused any injury to the Pursuer. There was evidence that, at the time of the collision, the Defender's vehicle had been travelling at less than 5mph. The Sheriff decided that, although there had been no damage to the private hire vehicle, on the balance of probabilities, the contact between the vehicles had been sufficient to cause injury to the Pursuer’s neck. The Sheriff found the Pursuer to be a credible witness. The consultant who had examined the Pursuer, and gave evidence on her behalf, found evidence of injury. Following the accident the Pursuer had felt stiffness in her neck and a tingling sensation down her left arm. This did not settle down and she saw her GP about 11 days after the accident. He prescribed ibuprofen and referred the Pursuer to a physiotherapist, although she did not attend as she thought that her injuries were manageable. She had recovered substantially after 6 months, although she continued to experience tingling in her left arm. The Pursuer returned to work after a week's holiday following the accident. She resumed her hobby of running after 2 weeks and was not restricted in any other activity. The Pursuer was awarded £3,500 as solatium, with interest at the rate of 4% per annum from the date of the accident.

Mrs Rosemary Catherine McCusker v. David Cunningham & Alan Cameron Glen [2008] CSOH 32

Thu, 21 Feb 2008 09:12:00 GMT

Proof:- On 18 May 2001 members of the Glasgow University Geological Association were travelling, in two minibuses, northwards on the A9 in Perthshire. The front minibus collided head-on with an ex-military Land Rover driven by the first defender. In the minibus the pursuer was seriously injured and four other occupants, including the driver, were killed. The driver of the Land Rover was also badly injured. The second defender was the driver of a Honda CRV vehicle, which had been previously travelling behind both of the minibuses, and, shortly before the accident, had overtaken the rear minibus. Here the pursuer sued both defenders for damages for the injuries caused to her, on the basis of the fault and negligence of either or both of them. The issue between the parties was whether the accident was caused by the first defender, who was travelling southwards on the A9 on the day in question, driving his vehicle onto the wrong side of the road and into the path of the minibus or whether the accident had been caused by the second defender in overtaking the front minibus at a time when it was unsafe to do so because of oncoming traffic in the shape of the first defender's vehicle and that the first defender was forced to take avoiding action to seek to prevent a collision between his vehicle and the second defender's vehicle. It was accepted by parties that the pursuer was not required to be put to the proof on the matter and the first defender had assumed the onus of showing that the accident was caused by the sole fault of the second defender.

Karl John Chadwick v. Continental Tyre Group Limited [2008] CSOH 24

Wed, 13 Feb 2008 10:19:00 GMT

Reparation - Procedure Roll:- On 28 April 1999 the pursuer was injured following a road traffic accident after the rear tyres of the vehicle he was driving, a mini-coach, failed, causing the coach to lose control and overturn. The pursuer sought damages of £25,000 damages against the defenders for the injuries he suffered. The case called on the procedure roll on the defenders' first plea-in-law to the relevancy of the action. The pursuer averred a manufacturing defect in a tyre or, alternatively, if there was no manufacturing defect, as a matter of reasonable foreseeability tyre manufacturers know that people will overload vehicles and under-inflate tyres, and that in itself was a defect, and the absence of instructions or warnings could amount to a defect under the Consumer Protection Act 1987.

McKindless Bus Company v Peter Davidson – Glasgow Sheriff Court , 30th January 2007

Thu, 17 Jan 2008 21:04:00 GMT

Reparation - Third Party claims settled - Right of Relief - Constitution of the Debt essential prerequisite - NCB v Thomson followed

The Pursuers/Appellants were the Defender/Respondent’s employers. The Pursuers offered to prove that, on two occasions, the Defender had driven a bus belonging to the Pursuers without exercising reasonable skill and care and, as a result, had collided with third party vehicles. The Pursuers had settled the third party claims on the basis that they were vicariously liable for the Defender’s actings. The Pursuers had not intimated the third party claims to the Defender and had settled the claims without reference to him. The Pursuers then sued the Defender for relief in respect of those payments in an action based on delict. At first instance, the Sheriff decided that, as the Pursuers had settled the claims without reference to the Defender and without having had the debt in respect of which they sought relief constituted against them, they had lost the remedy of relief. The Pursuers appealed and invited the Sheriff Principal to distinguish the decision in National Coal Board v Thomson 1959 SC 353, in which the Inner House held that a joint and several decree, or some equivalent instrument constituting the debt, was an essential prerequisite to an action of relief. Although there were a number of facts which distinguished the present case, the Sheriff Principal held that he was bound by the decision in National Coal Board v Thomson and the appeal could not succeed.

Brian Kelly v Shetland Health Board [2008] CSIH 7

Thu, 17 Jan 2008 13:30:00 GMT

Appeal – Court of Session – exclusion of appellant from respondents’ list of ophthalmic opticians. Tribunal decision that appellant had caused detriment to health scheme. Appellant was an ophthalmic optician held to have secured financial or other benefits from false and inaccurate claims on forms submitted to the respondents in respect of provision of spectacles to patients. Appeal on point of law. Appellant argued that all fraudulent acts took place seven years beforehand, £12,460 had been repaid and no risk to public health had been involved in his actions. Appeal allowed. Matter remitted to Tribunal in light of new submissions.

Donald Bremner v. Kevin Bartlett [2008] CSOH 03

Thu, 10 Jan 2008 17:36:00 GMT

Reparation – This action related to a road traffic accident. Liability was admitted by the defenders and the only issue was the quantification of damages. While the proof ranged over a wide area, in their submissions counsel identified and focussed the matters in dispute and the court was able to concentrate on those relatively few issues. It was not in dispute that the pursuer's problems up to March 2006 could be attributed to the road traffic accident, and that after that date cervical spine changes at C5/6 and C6/7 levels were in themselves sufficient to prevent the pursuer's pre-accident employment. If those changes are not attributable to the accident, liability stopped in March 2006, and vice versa. The key issue was whether it had been proven that the degenerative changes were caused by the accident.

William McEleney v. Dr Kamal Ohri and Others [2007] CSOH 203

Thu, 10 Jan 2008 17:28:00 GMT

Proof – damages – The pursuer had a number of symptoms and complaints and eventually had to undergo an emergency operation after a diagnosis of a massive prolapsed inter-vertebral disc at L4/5 level, causing cauda equina syndrome. The defenders in this action were general practitioners in partnership. Three days before the pursuer's emergency operation, he was there seen by one of the defenders in connection with his acute complaints. The defenders failed to diagnose cauda equina syndrome, which was accepted as negligent. Following the defenders' concession of negligence, and of consequent liability to make reasonable reparation to the pursuer, the principal live issues between the parties were in the field of causation and the related issue of quantification.

Marc William MacDonald v. Christopher Robert Mallan [2008] CSOH 01

Thu, 10 Jan 2008 14:24:00 GMT

Reparation – Motion for Issues –

This action related to road accident on 17 April 2004 in which the pursuer sustained serious multiple injuries. He now sought damages from the defender who was driving the car which came into collision with his motor scooter. Liability was admitted by the defenders and the only issue was the quantification of damages. Here the pursuer enrolled a motion to allow issues for jury trial. The motion was opposed by the defenders. The competing submissions concerned the complexity or otherwise of the pursuer's claims in respect of future loss, and of the calculations necessary for their determination.

Helen Trueman v Aberdeenshire Council – Aberdeen Sheriff Court, 20 November 2007

Thu, 06 Dec 2007 19:25:00 GMT

Action for Damages - The Occupiers' Liability (Scotland) Act 1960 - Failure to maintain Fence in Park - Contributory Negligence

The Pursuer raised an action for damages against the Defenders under The Occupiers Liability (Scotland) Act 1960, sections 1 and 2 as owners and occupiers of her local park after she fell into a stream in the park in the early hours of 1st January 2000. She suffered bruising to her head, arms and body. She also fractured her cervical spine and required subsequent fusion and a bone graft. She continued to suffer pain and discomfort and had to stop work. Damages were agreed at £35,000, inclusive of interest. The Council had erected a chespale fence between the edge of the footpath leading to a bridge over the stream and shrubbery which had been planted along the bank of the stream. The chespale fencing ran parallel to the stream and was designed to prevent people encroaching on the planted area. The fence consisted of three foot long vertical sticks joined together by two strands of wire, one of which was several inches above the ground. The fence had been vandalised regularly and a number of the vertical sticks had been removed leaving 3 to 4 feet of wire leading to the bridge. As the Pursuer approached the bridge, she stumbled and her left foot became caught up in the lower strand of wire. She fell down the bank into the stream. As is customary at Hogmanay, the Pursuer had been seeing in the New Year with a number of drinks during the course of the evening. Following a Proof, the Sheriff held that the Defenders had a duty in terms of the 1960 Act take reasonable care for the safety of persons using the park. Although the Defenders did not have a duty to fence off the bank so as to prevent people inadvertently walking or falling into the stream, having introduced a fence, they had a duty to take reasonable care to maintain it in a condition which did not constitute a danger to people on the adjacent pathway. It was reasonably foreseeable that the existence of a single wire a few inches off the ground close to the edge of the bank could be a source of danger. The Sheriff found, however, that the Pursuer had failed to take reasonable care for her own safety and that her contribution to the accident was “very high”. Her initial loss of balance was caused by her failure to keep a proper lookout. He assessed her contribution at 80%.

James McKenzie Clegg and Another v. Jane Rogerson & Network Rail Infrastructure Limited [2007] CSIH NUMBER 87

Thu, 06 Dec 2007 16:59:00 GMT

Reclaiming Motion:- On 5 May 2001 a car driven by Miss Rogerson, the first defender, with her boyfriend Mr Thomson as the front seat passenger, and a three year old girl, Sarah Clegg, in the back seat, attempted to cross a level crossing. The crossing was operated by Network Rail, the second defenders. A train struck the car and Mr Thomson was killed and Sarah Clegg was seriously injured. Her parents, Mr and Mrs Clegg, the pursuers, were following in another car and in this action they sought damages for the depression and other mental disorders which they suffered as a consequence of the accident. The action was originally brought against Miss Rogerson as the sole defender, but she brought Network Rail into the process by third party procedure. The issue between the parties, before the Lord Ordinary, was whether either or both of the defenders were in breach of their duties of reasonable care to Mr and Mrs Clegg as parents of the injured girl in having caused or materially contributed to the accident. After proof, the Lord Ordinary awarded an agreed sums of damages against Miss Rogerson, but assoilzied Network Rail holding that Miss Rogerson failed to exercise reasonable care in attempting to cross the railway at a time when a train was approaching, and that this was the sole cause of the accident. He also held that Railtrack might be criticised for failing to take a particular precaution, namely the provision of instructions at the driver's side controls, and that if they had taken it they would have fulfilled their duty of reasonable care, but that this failure did not cause the accident. Miss Rogerson reclaimed against this decision and Network Rail cross-appealed. Here the court considered whether (1) the Lord Ordinary ought to have found that the accident was caused in part by the fault of Railtrack, and accordingly Network Rail should be found liable to make a contribution to the damages payable to Mr and Mrs Clegg and (2) whether, as submitted by Network Rail, the Lord Ordinary erred in law in holding that Railtrack failed in their duty to take reasonable care. Here the court considered the Lord Ordinary's assessment of Miss Rogerson's reliability, and his specific findings of fault on her part, and whether the absence of instructions at the driver's side controls had any part to play in the causation of the accident.

Robert Smith v. Dumfries & Galloway Health Board [2007] CSOH 192

Thu, 06 Dec 2007 16:21:00 GMT

Reparation - Additional Fee:- On behalf of the pursuer a motion was enrolled to allow inter alia an additional fee in terms of Rule of Court 42.14 (3) (a), (e) and (g). The motion, in relation to the additional fee only, was opposed by the defenders. It was submitted on behalf of the pursuer that (1) the circumstances of the case demonstrated complexity in that the particular type of medical negligence focussed upon was unusual and there was a difference of view even amongst the pursuer's own experts which required careful examination; (2) the case had a particular importance for the pursuer in that the injury caused by the negligence under consideration had led to a lifestyle change for the pursuer which affected him in embarrassing ways; (3) the pursuer was a man of modest means and the prospect of a finding of expenses against him after a 6 day proof had led to very great strain and the impact of having to face the defenders' costs was a significant one and this concern led to further difficulty in providing advice to the pursuer; and (4) the pursuer's agents had made various efforts to settle the case and had repeatedly attempted to secure a joint consultation in order that matters could be discussed. The motion was opposed on behalf of the defenders and it was submitted that the purpose of Rule of Court 42.14 was to allow for additional remuneration in exceptional cases and there was nothing complicated about the medical aspects of the case here and the importance of the case to the pursuer was not sufficient given his age and the relatively small value of the case to bring it within the terms of the Rule of Court. Here the court considered whether the motion should be granted, in particular, whether there was a sufficient degree of complexity about the case to merit the additional fee.

Christine Robertson (AP) v. The Scottish Ministers [2007] CSOH 186

Wed, 28 Nov 2007 18:42:00 GMT

Reparation - Debate:- In this action the pursuer sought damages in respect of alleged bullying and harassment at her work between early 2000 and late 2001. During that period the pursuer was employed as a prison guard by the Scottish Prison Service and her claim comprised solatium for anxiety, distress and psychiatric illness, together with a continuing loss of earnings in the period after she was medically signed off work from 31 October 2001. The pursuers case was based on: (1) a complaint against her employers at common law, alleging that in various ways they failed to take reasonable care for her welfare; (2) she sought to have her employers held vicariously liable for the intentionally harmful conduct of colleagues who she alleged bullied her; and (3) an action of harassment under section 8 of the Protection from Harassment Act 1997. At debate the defenders invited the court to dismiss the action as irrelevant and lacking in specification, and also as time-barred by virtue of sections 17 and 18B of the Prescription and Limitation (Scotland) Act 1973. In relation to prescription the summons was served on 9 September 2004. Under sections 17 and 18B of the Prescription and Limitation (Scotland) Act 1973, the primary date for the commencement of the triennium was the date when continuing acts or omissions, or alleged harassment under the 1997 Act, ceased. Here the last of the alleged conduct capable of amounting to bullying and harassment occurred in May 2001. It was submitted on behalf of the defenders that the triennium had expired four months prior to the raising of the action. Here the court considered whether the pursuer had put forward sufficient averments in justification of the court's discretion being exercised in the pursuer's favour.

Graham Dickie v Flexcon Glenrothes Limited - Kirkcaldy Sheriff Court, 6 August 2007

Thu, 15 Nov 2007 20:31:00 GMT

Action for Damages - Pleadings - Relevancy and Specification - Protection from Harassment Act 1997

In an action for damages against his former employers, the Pursuer averred that he had been harassed by a fellow employee (H) to such an extent that he had suffered psychiatric illness. His claim was based on 3 grounds of action. He maintained that H’s conduct amounted to harassment in terms of the Protection from Harassment Act 1997, for which the Defenders were vicariously liable. The Defenders had also breached their common law duty of care towards him by failing to take effective steps to end H’s conduct. Finally, the Defenders had breached their common law duty of care towards him by failing to deal with his grievance timeously. A Debate took place before Sheriff Braid. The Defenders argued that all 3 branches of the Pursuer’s case were irrelevant and lacked specification and that the action should be dismissed. Alternatively, if a Proof before Answer was allowed, certain averments should be omitted from probation. The Pursuer argued that two passages in the defences were irrelevant. The decision contains a useful discussion on the terms of Section 8 of the Act and the corresponding English provisions and case law. There is also guidance on how a relevant case under the 1997 Act might be pled. Having considered the Pursuer’s pleadings in detail, the Sheriff excluded various passages from probation. The Pursuer's averments in relation to both common law cases were held to be irrelevant. A Proof before Answer was allowed in relation to the case under the 1997 Act. The Sheriff did not accept the Pursuer’s argument that the Defenders’ averments that it was not reasonably foreseeable that the Pursuer would suffer psychiatric illness as a result of any harassment were not relevant. The Pursuer argued that foreseeability of illness was not a requirement of the 1997 Act. The principle behind this argument was complex and very little authority was cited. The Sheriff concluded that questions of remoteness might arise, in which case foreseeability may be relevant. Those were questions best decided at Proof before Answer.

Michael McColm v Borders General Hospital NHS Trust – Selkirk Sheriff Court, 19th October 2007

Thu, 08 Nov 2007 16:53:00 GMT

Medical Negligence - Failure to treat MRSA infection - Damages - Solatium - below knee amputation

The Pursuer was injured in a quad bike accident. He was admitted to Borders General Hospital and was found to have suffered a displaced fracture of his right tibia. Following a surgical procedure, and while the Pursuer’s leg was still in plaster, a fracture blister developed, which subsequently became infected with MRSA. There was a delay in admitting the Pursuer for intravenous antibiotic treatment for the MRSA infection. The Pursuer underwent a number of procedures and surgical attempts to eradicate the infection without success. Eventually, he had to undergo a below the knee amputation and was fitted with a prosthetic leg. Following a Proof, the Sheriff held that three of the consultants involved in the Pursuer’s treatment had been in breach of their duty of care. Two consultant orthopaedic surgeons had been negligent in failing to admit the Pursuer for intravenous antibiotic treatment on separate occasions. A third consultant had been negligent in carrying out two operations when the Pursuer’s tibia was grossly infected. Those procedures had been of no benefit to the Pursuer. The Sheriff held on the balance of probabilities that the Pursuer would not have required a below the knee amputation if it had not been for the negligence of the two consultants who had failed to treat the MRSA infection. The Pursuer suffered severe pain for a year following the accident and had to endure surgical procedures, which were of no benefit to him. Periodically, the Pursuer suffered from pressure sores on his stump and had to avoid wearing his artificial limb for several days. He suffered from occasional phantom pains from the site of the amputation and pain from the pressure sores. He was unable to walk more than 100 yards and was unable to run. He had some difficulty walking over rough ground. The Pursuer could no longer play rugby and was limited in his range of recreational activities. He was less able to undertake work on the family farm, but there was no claim for lost income or reduced profits in relation to the family business because he and his wife had re-organised the duties between them. The Pursuer’s wife had devoted a considerable amount of time and energy to assisting the Pursuer during his frequent and lengthy stays in hospital. At home she assisted him with every day tasks, such as dressing. She also attended hospital with the Pursuer for frequent out patient visits. The Sheriff awarded solatium of £66,000, with two thirds attributable to the past. Damages of £10,000 and £5,000 were agreed for services under Sections 8 and 9 respectively of the Administration of Justice Act 1982, with two thirds attributable to the past in each case.

Rosemary Fletcher v. Argyll & Bute Council [2007] CSOH 174

Thu, 01 Nov 2007 17:03:00 GMT

Reparation – Procedure Roll:- In this action the pursuer sought damages from her employers for psychiatric injury suffered during her employment. The claim stemmed from her job as a teacher during which it was averred that she suffered psychiatric injury in the form of an adjustment disorder with mixed anxiety and depressive reaction due to problems she had with her pupils over a period of time. At debate it was submitted on behalf of the defenders that the action should be dismissed because (1) the pursuer had failed to aver a sufficient basis in fact and law that the risk of psychiatric injury to the pursuer was reasonably foreseeable; (2) the pursuer failed to make out any relevant duties of care such as to entitle her to establish liability and (3) certain averments were irrelevant and should not be admitted to probation. In response it was submitted on behalf of the pursuer that a proof before answer on all pleas be allowed and the pursuer's position on record was that the psychiatric illness was due to a combination of disruptive behaviour on the part of the pursuer’s class and the defenders' failure to respond to that situation and that harm to her health was reasonably foreseeable.

Nadine Montgomery v. Lanarkshire Health Board [2007] CSOH 172

Wed, 24 Oct 2007 13:30:00 GMT

Reparation - Debate:- In this action the pursuer sought damages for injuries sustained by her son who was born in October 1999. It was averred that the obstetrician in charge of her antenatal care failed at an early stage to take the proper course namley that on three distinct occasions resort she should have had a caesarean section that would have produced a healthy child and due to the normal delivery that was undertaken the result was shoulder dystocia, deprivation of oxygen and resultant injury. At debate counsel for the defenders submitted that the action should be dismissed or at least restrict some of the averments from probation. It was submitted that the the damage was not a reasonable and probable consequence of the defenders' negligence. It was submitted for the pursuer that a deliberate choice not to deliver by cesarean was made and the defenders were then left to do an emergency vaginal delivery. It was submitted that that was negligent and had they not been negligent the child would have been born healthy. Here the court considered whether the pursuer could never succeed in law even if she proved all that she averred.

George Johnston v. Edinburgh District Council [2007] CSOH 171

Wed, 24 Oct 2007 13:27:00 GMT

Reparation - Proof:- In this action the pursuer sought damages following an accident on 28 October 2004 when he was knocked off his bicyle by the driver of a minibus who worked for the defenders. The outcome of the case turned on who was ahead at the junction where the accident took place. It was the pursuer's position in evidence that he was ahead of the bus and, when he reached the junction, saw nothing coming and went round to his left. The pursuer said that the bus followed him, tried to overtake and cut him off, forcing him to jump from his bike at which time the bus struck him. Conversely, the bus driver claimed that he was in front of the cycle and stopped at the junction. The bus driver then describes the cyclist as he tried to come up the nearside kerb and hit the bus causing the cyclist to a fall from his cycle. The court decided the merits of the case by considering the credibility of the pursuer and the drivers' evidence.

Kevin O'Neill v. Dowding and Mills plc & David W. Smith Ltd [2007] CSOH 170

Wed, 24 Oct 2007 11:29:00 GMT

Reparation - Allowance of Issues:- In this action the pursuer sought damages following an accident at work in April 2004 when the pursuer sustained serious injuries to his right leg when he fell through a gap in a walkway in the course of his employment with the defenders. The defenders conceded liability to the pursuer but also sought relief against a third party. The action was based on allegations of both common law fault and breach of statutory duty. Here the pursuer sought allowance of issues. The motion was opposed by the defenders and the third party on the basis that special cause existed for withholding a jury trial under section 9(2) of the Court of Session Act 1988 due to (1) a lack of relevancy and/or specification of the pursuer's averments on the subject of his future employment and earnings potential; and (2) the complexity of loss calculations required on earnings and pension rights.

Robert MacFarlane v. Andrew Samuel - Paisley Sheriff Court 20/09/07

Thu, 18 Oct 2007 12:31:00 GMT

Damages - Solatuim - Neck and Back injuries

The Pursuer was injured in a road traffic accident when his stationery vehicle was struck from behind by the Defender’s vehicle. The Pursuer raised an action for damages. Liability was not in dispute and the proof was restricted to quantum. The Pursuer felt pain and stiffness in his neck and discomfort in his back following the accident. He suffered moderate neck pain for about two months but this gradually resolved. The Pursuer experienced continuous, moderate pain in his back. He underwent a course of physiotherapy and took painkillers. This pain resolved about a year after the accident. At the time of the Proof, almost 18 months after the accident, the Pursuer was still taking painkillers and continued to experience sciatic pain after standing or walking for a short time. This restricted his ability to play golf. The Pursuer did not have to take any time off work as a result of his injuries, nor were his evening social activities adversely affected. The Defender contended that the sciatic pain might not have been caused by the injuries which the Pursuer suffered and argued that solatium should be valued at £2,000. The Pursuer sought £3,600. The Sheriff was satisfied on the balance of probabilities that the Pursuer’s sciatic pain was related to the accident. He assessed solatium at £3,500. The Pursuer was also awarded the agreed sum of £50 for inconvenience. Interest was awarded at 4% from the date of the accident and at 8% from Decree until payment.

Thomas Timms v. Barclay Curle Limited & Corus UK Limited & Refractory Services Limited [2007] CSOH 166

Thu, 11 Oct 2007 09:14:00 GMT

Proof - Reparation:- The pursuer, a 67 year old man, formerly worked as a welder. At various stages during the course of his working life he worked as a welder for the three defenders. Since retiring from his employment the pursuer was diagnosed with a serious form of interstitial lung disease. It was the pursuer's case that he suffered from asbestosis as a direct result of exposure to asbestos during his employment with the defenders. The pursuer also claimed that he had pleural plaques. The defenders contended that the pursuer suffered from a condition that was not related to asbestos exposure and the defenders submitted that they were not responsible for the pursuer's condition. Here the court, following proof, considered whether the pursuer suffered from asbestosis contracted through exposure to asbestos during the course of his employment with the defenders. In addition the court also considered whether the pursuer suffered from pleural plaques. The court also considered the level of damages in the event that the pursuer's case was established.

Performing Right Society Limited v. Kwik-Fit Group Ltd [2007] CSOH 167

Thu, 11 Oct 2007 07:09:00 GMT

Debate - Copyright, Designs and Patents Act 1988:- In this action the pursuers sought interedict and damages in respect of the playing of music at Kwik-Fit service centres all over the country, that was said, constituted the "playing" or "performance" of such works "in public" for the purposes of section 16 of the Copyright, Designs and Patents Act 1988 and such alleged long term infringement rendered the defenders guilty of copyright infringement either directly or through others authorised by them. At procedure roll the defenders sought dismissal of the action as irrelevant or, alternatively, on the basis that the pursuers' averments did not provide fair notice of the case they had to meet in that:- (1) failure to prove that the defenders themselves actually "played" or "performed" any musical works for the purposes of section 16 of the Act; (2) failure to aver facts and circumstances capable of setting up "authorisation" for the purposes of section 16(2); (3) lack of specification of the precise date, location and nature of each alleged instance of infringement; and (4) failure to aver either the permission or the state of mind necessary for secondary liability under section 26(3). It was submitted on behalf of the pursuers that the defenders' averments of a 10-year company policy prohibiting the use of personal radios in the workplace did not constitute a relevant defence to the action. Here the court considered whether the pursuers' averments, as a whole, were irrelevant in the sense that, if they were all fully proved, the case would be bound to fail.

James Murray Smith v. Golar-Nor Offshore A/S [2007] CSOH 161

Thu, 27 Sep 2007 10:28:00 GMT

Reparation - Debate:- The defenders enrolled the following motion:- "On behalf of the defenders, to grant decree of dismissal and award the expenses of the process in favour of the defenders on account of the pursuer's inordinate delay in pursuing the action". The motion was opposed, and a debate took place. It was submitted on behalf of the defenders that there was inordinate and inexcusable delay, with an added element of unfairness to the defenders specific to the particular facts of the case. The action related to alleged accidents which had occurred ten years previously. The action had been in court for more than seven years and there had been inexcusable delay. The pursuer had an obligation to proceed as expeditiously as possible which he had failed to do and it was appropriate that the action be dismissed. The pursuer opposed the defenders' motion and advised that the pursuer would seek to amend the record in terms of a minute of amendment. It was submitted that the delay might be regarded as inordinate, but it was excusable. Here the court considered whether there had been inordinate and inexcusable delay, resulting in an added element of unfairness to the defenders specific to the factual context of the case.

John McGuinnes v. Endeva Service Limited (In Administration Receivership)[2006] CSOH 41

Thu, 09 Mar 2006 00:00:00 GMT

Civil Proof

Lewis v Six Continents Plc, Ca (Civ Div) 12/12/2005

Mon, 12 Dec 2005 00:00:00 GMT

Occupiers’ Liability. Where a guest in a hotel fell from a second-floor bedroom window after leaning out of it, the hotel was not liable under s.2 of the Occupiers' Liability Act 1957, as it was not reasonably foreseeable that an adult would lean out of the window in such a way as to say that the occupier should have limited the way the window opened.

Evans v Tarmac Central Ltd, CA (Civ Div) 12/12/2005

Mon, 12 Dec 2005 00:00:00 GMT

Assessment of Damages. In an assessment of damages for personal injury, the judge had failed to take into account the fact that the claimant might have suffered the back injury regardless of an accident at work and he therefore set the multiplier too high when assessing loss of future earnings. Further, the award of Smith v Manchester damages was too large.

KD v Chief Constable of Hampshire & Anr, CC (Portsmouth)(Tugendhat J) 23/11/2005

Wed, 23 Nov 2005 00:00:00 GMT

Harassment & Battery. It was held that a police officer who, during several visits to her home, had obtained from a female interviewee detailed explicit information about her sexual conduct, which was not for the purpose of preventing or detecting crime, had subjected her to harassment. His touching of her, purportedly to comfort or cuddle her, amounted to battery.