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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Penman v Blue Cap Logistics Ltd [1999] ScotCS 65 (3 March 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/65.html Cite as: [1999] ScotCS 65

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The defenders' articulated lorry broke down on the A74 near Auchen Castle at about 5.30am on 16 December 1991. It was dark and raining. Visibility was poor as a result. The driver left the vehicle. It was in the near-side lane. The side and hazard warning lights were on but were very dim. About 25 minutes later the pursuer drove his motor car into the rear of the lorry and sustained serious injuries. The pursuer blames the driver and separately the defenders for causing his injuries through negligence.

The case against the driver, set out in Article 3, is that it was his duty not to abandon the vehicle without taking steps to see to it that it did not present an obstruction to other road users. By an "obstruction" the pursuer means something blocking the carriageway which is not easily seen. The pursuer does not aver that the driver could have stopped the vehicle anywhere else. There are no relevant averments that he knew it was likely to break down and should have stopped earlier or that he could have stopped the vehicle off the road somewhere rather than on the carriageway. There are accordingly no averments to support the duty pled at the third line of page 8 to move the lorry at least partly off the road before leaving it.

The other specific duties pled in Article 3 relate to measures which would draw the stationary vehicle to the notice of other road users. I deal with them in the order in which they should logically have been implemented. The first is to stop another motorist to position his vehicle some distance behind the lorry with its hazard lights on to provide a warning to oncoming traffic. There are no averments that there were on the road at that time vehicles which were likely to stop and provide that service and accordingly no factual basis for imposing that duty on the driver. It is next averred that he had a duty to make contact with the police so that expeditious arrangements might be made for the attendance of local recovery services and for the provision of adequate warnings of the obstruction. In support of that duty it is averred that within the 25 minutes between the stopping of the vehicle and the accident it was possible for the driver to contact Police Traffic Control and, had he done so, that they would have contacted locally based recovery services and would have arranged for the attendance of a patrol unit which would have alerted other road users to the presence of the obstruction. There are no factual averments to support that assertion which could only be a matter of inference from other basic facts. No indication is given of where the driver should have gone to make contact with the police, what police office he should have contacted, what arrangements they would have made and how quickly these arrangements would have been put in place. There are accordingly no relevant averments to support the duty averred. It is finally said that the driver had a duty to return to the vehicle within a reasonable time and to alert other road users to the obstruction. In support of that duty it is averred that, had the driver returned to the vehicle, he would have been in a position to stand between it and oncoming traffic to warn them. There are no factual averments suggesting what he could, in the circumstances, have done to make himself more visible than the lorry. There are accordingly no factual averments to support the duty pled.

It follows from the foregoing that I consider the case pled against the driver to be irrelevant. Miss Shand for the defenders made various submissions which are reflected in the determination I have made. In addition she submitted that the averment that the lights of the lorry were so dim as to be difficult to see was so vague and lacking in specification as to be irrelevant. I disagree. I consider the description of lights as "dim" to be a perfectly adequate description of lights which cannot be seen easily and do not achieve the objective of warning others of the presence of an obstruction.

The submission of Mr Hanretty for the pursuer in relation to the case against the driver was that the defenders' preliminary plea should be reserved until evidence was heard. He submitted that the defenders' approach, that much more should be averred than the basic facts from which inferences might be drawn, came close to arguing that it was necessary for the pursuer to plead evidence. Since periods of time rather than fixed times were involved, it was sufficient for the pursuer to aver that things had not been done by the driver within a reasonable time, and whether that claim was correct could only be determined after the evidence had been heard. So far as the question of alerting other road users to the obstruction by standing between it and the oncoming traffic was concerned, it was the pursuer's submission that, if the driver had returned to the scene as quickly as he should have, he would have noticed the condition of the lights on the lorry and would have been bound to take personal steps to draw the attention of on-coming traffic to the obstruction. When I suggested that the course of action proposed seemed highly dangerous, it was submitted that it was not open to me to discount the possibility that evidence could be led to show that a person in such a position could be seen if he moved about. It is noticeable that there are no averments to that effect. It was further submitted that it could be inferred from the fact that the road was the A74 that on that day at 5.30am there would be other traffic which could be, and would be prepared to be, stopped to park behind the lorry with hazard lights on as a warning to on-coming traffic. In relation to alerting the police, it was submitted that it was within the knowledge of those acting for the pursuer that there was a phone "nearby" and averments could be made to that effect if necessary. I was not persuaded by any of these submissions that there are adequate averments of fact to support the duties pled. The additional averment suggested about the proximity of a telephone was so vague and lacking in specification as to add nothing to the averments as they stand.

I should note one typographical error, which was corrected in the course of the pursuer's submissions, viz. that the word "either" at the end of the sixth last line on page 5 was deleted.

The stand taken by the pursuer in relation to the case against the defenders directly in Article 4 of condescendence was quite different. The pursuer did not attempt to counter the defenders' criticisms that the averments of duty were not supported by relevant factual averments, a submission along very similar lines to that made in relation to Article 3. Instead the pursuer relied on Binnie v Rederij Theodoro DV 1993 S.C. 71 as authority for the proposition that, when a piece of mechanical equipment fails, that is prima facie evidence of negligence on the part of the owner and operator of the equipment which it is then for the defenders to displace. It was the contention of the pursuer that it was sufficient to bring the case within the ambit of that decision to aver that the vehicle broke down with defective lights, and that that was sufficient to found averments of a failure to take reasonable care to maintain the lorry such that it would not be liable to break down and such that the lights would function properly. One of the defenders' submissions was that there was no averment that the defenders knew or ought to have known that if the vehicle broke down an accident might occur. While that is strictly accurate, there is in Article 3 an averment that the driver ought to have known that if the lorry ended up in that position an accident was likely to occur. In these circumstances it would in my opinion be unduly pernickety to refuse to allow proof in the absence of a specific averment of such foreseeability. The duties pled can only arise if the failure to implement them could foreseeably cause injury to the pursuer. I am accordingly prepared to regard such an averment as implicit in Article 4.

The crucial question is whether the case pled against the defenders directly falls within the ratio of Binnie. In my opinion the ratio of Binnie is to be found at page 87D-E where the Lord President (Hope), with whom Lords Allanbridge and Cowie concurred, said:

Binnie concerned a vessel passing through the lock system on her way from Grangemouth docks to the sea. In the course of this journey the forward momentum of the vessel into the lock was to be checked by means of reverse thrust on her engines which had been cut off as the vessel approached the lock system. Because the reverse thrust did not function, the strain placed by the continued movement of the vessel on one of the ropes normally used to secure it to the side of the lock, once it had been thrown into position, caused it to snap, and the broken end struck the pursuer and injured him. There were questions about whether using the rope to try to arrest the progress of the vessel when the engine did not function broke the causal link and also about foreseeability. These were resolved on appeal in favour of the pursuer. That left the question whether the pursuer had established a case of negligence by simply proving that there was engine failure. The pursuer led no evidence to support his averments that a reasonable system of inspection and maintenance of the engines would have prevented the accident nor to explain why the engine failed. The court regarded the very fact of engine failure as sufficient to establish a prima facie case of negligence.

Miss Shand for the defenders endeavoured to distinguish Binnie on the basis that it was a case decided after proof and that what the court was doing was placing the most favourable construction on the pursuer's case in the light of the defenders' failure to lead any evidence to explain what had happened. I do not consider that to be a basis for distinguishing Binnie. The task I have on Procedure Roll is to give the pursuer's pleadings their most favourable construction. I can dismiss the action only if the pursuer is bound to fail on the most favourable view of his pleadings. Taking that approach, it seems to me the present case falls squarely within the ratio of Binnie. The pursuer's case is that the very breaking down of the vehicle is prima facie evidence of a failure to maintain it properly and the dimness of the lights is prima facie evidence of a failure to maintain them properly. In addition the pursuer avers at page 5C-D that the state in which the brakes and clutch were found was consistent with the operation of the vehicle with a failing clutch and an improperly maintained breaking system. I accordingly consider the pursuer has pled a relevant case that the defenders failed to take reasonable care to maintain the lorry and the lights. I do not consider they have pled a relevant case that the defenders failed to give adequate instructions to the driver in the event of a break down, and indeed Mr Hanretty for the pursuer did not endeavour to suggest that he had. It is accordingly not appropriate that the averments "They had a duty to instruct Mr Scotland ... by the lorry" at page 9A-B and the third last sentence of Article 4 should be remitted to probation.

Miss Shand also endeavoured to distinguish the present case from Binnie on the basis that it was in effect a case of res ipsa loquitur. She pointed out that the averments one would expect for such a case were not present in the pursuer's pleadings. For example there was no averment that the breakdown of a lorry in these circumstances was something which would not normally occur and an averment to that effect was necessary for a res ipsa loquitur case - Devine v Colvilles 1969 S.C.(H.L.) 67. However, as Mr Hanretty pointed out, although the words res ipsa loquitur appear in the headnote to Binnie, there is no reference at all to that principal in the opinions. Nor does Binnie contain the averment referred to by Miss Shand. I asked Miss Shand whether she was taken by surprise by Mr Hanretty's submission based on Binnie, and she acknowledged that she was. I asked her whether she wished to make submissions that Binnie was incorrectly decided, but she indicated that she did not.

She then made one further attempt to distinguish it by considering the averments in Binnie in some detail, and stressed that the case initially made by the pursuer after proof was that the very fact of the accident, rather than engine failure, was prima facie evidence of negligence - see pages 72H and 78F-I. The case based on engine failure had emerged at the hearing of the Reclaiming Motion. While that may well be so, the problem with that submission is that the Court decided that engine failure was precisely the case of which the pursuer gave notice in his averments - see page 87E.

I shall accordingly sustain the defenders' first plea-in-law to the extent of deleting Article 3 and the fifth last and third last sentences of Article 4. Quoad ultra I consider Proof Before Answer appropriate on the merits.

Defenders' counsel was also critical of certain averments in Article 5 in support of the claim for loss of earnings and the claim for the provision of services in terms of section 8 of the Administration of Justice Act 1982. I am satisfied the averments in support of the claim for loss of earnings are adequate for Proof Before Answer. I an not, however, satisfied that there is a relevant case made out in terms of section 8. When I made my views on that known to Mr Hanretty, he invited me, in the event that I did not dismiss the action, to put it out By Order to enable the pursuer to indicate whether he proposed to amplify the averments in support of the claim under section 8, which Mr Hanretty envisaged would be the position.

Before pronouncing my interlocutor I shall adopt the course proposed by Mr Hanretty and put the cause out By Order on so that the pursuer can either lodge and intimate a minute to amend the case in support of the claim under section 8 or indicate that he does not propose to do so.