|
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord Justice Clerk
Lord
Brodie
Lord
Philip
|
PD1987/10
OPINION OF
THE COURT
delivered by
LORD CARLOWAY,
the LORD JUSTICE
CLERK
in Reclaiming
Motion
by
LESLEY ANNE
McGLINCHEY
Pursuer and
Reclaimer;
against
GENERAL
MOTORS UK LIMITED
Defenders
and Respondents:
_______________
|
Act: I G Mitchell,
QC, Wallace; Drummond Miller LLP (for MacLachlan &
Mackenzie)
Alt: Milligan, QC; Paull
& Williamsons LLP
4
December 2012
The
pursuer’s Case on Record and at Proof
[1] The pursuer seeks damages for injuries
sustained by her on 13 August
2007.
Quantum,
on the basis of full liability, is agreed at £85,377 inclusive of interest to 22 November 2011. The circumstances of the accident appear
straightforward. The pursuer parked her
Vauxhall Signum car in a cul-de-sac, which had a 4.4 degree gradient. She did not put it in gear. It was accepted by both parties, although not
established during the course of the proof, that, if the handbrake had not been
applied to some extent when the car was parked, it would immediately have
rolled backwards. It did not do so. For this reason, as the defenders explained
at the hearing of the appeal, it was never contended by the defenders that the
pursuer had not attempted to apply the handbrake, or that she had forgotten to
do so.
[2] The pursuer got out of the car and went
round to the rear in order to open the hatchback and let her dog out. As she was doing so, the car rolled backwards
and the accident occurred. After the
proof, the Lord Ordinary found (Opinion para [3]) that “the pursuer
applied the handbrake”. He then narrated
that the pursuer had testified “that it was her habitual practice to engage the
handbrake by pulling it on quite aggressively and without depressing the button
thereon” and had done so on the day of the accident. Although the defenders did attempt to argue
that the Lord Ordinary’s finding might be referable to a partial application of
the handbrake, that is not how the court reads his Opinion. Had the Lord Ordinary considered, on a
balance of probability, that the pursuer had failed to apply the handbrake in
the aggressive way which she described, the court is confident that the Lord
Ordinary would have said so since that, in itself, would effectively have put
an end to the case. No issue would have
arisen after proof, and certainly not upon appeal, as to whether any defect
existed in the handbrake or otherwise; proof of which is the essential matter
now in dispute.
[3] Much turned at the proof upon the
evidence concerning the handbrake and the effect of its application. The pursuer led evidence from an expert
consultant engineer, Alan Bathgate, who described the handbrake mechanism. It is of conventional design and consists of
a lever mounted on a central console between the front seats of the car at the
front of a central armrest. The lever
moves through a vertical arc on a pivot.
This pivot, when turned, pushes a spring-loaded mechanism forwards,
which in turn pulls a horizontal cable attached to the rear brakes. Pulling that cable applies the brakes.
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[4] As is perhaps best illustrated by the
above diagrams, when the lever is pulled, the mechanism is held in place by
means of a pawl, the fork-like prongs of which slot over one of several teeth
on a ratchet device. Once in place, the
pawl holds the ratchet, and hence the brake cable, in a particular
tension. The pawl can be raised free of
the ratchet by pressing the release button at the front of the lever. This pushes an internal rod backwards,
causing the pawl to pivot upwards and free of the ratchet teeth. If the button is not pressed, the two prongs
of the pawl slot automatically, by means of spring loading, over one of the
teeth of the ratchet.
[5] The brake can be applied by using one of
two basic methods. First, the release
button can be pressed and the lever raised.
When the lever is in position, the button can be released, allowing the
pawl to drop into position. This method
generates little sound. The second
method, preferred by some, is not to use the button at all when applying the
brake, but simply to pull the lever up, dragging the pawl over the teeth of the
ratchet until it stops in a suitable position.
This method creates the familiar handbrake ratchet sound. It was this second method which was employed
by the pursuer. If the cabling was at
the appropriate tension, there is no obvious reason why, on pulling up the
lever using this second method, the rear brakes should not operate as they are
designed to do. Accordingly, the central
issue is, assuming that the brakes did not operate in that way, how that
eventuality came to pass.
[6] The pursuer advanced a case based upon
section 2 of the Consumer Protection Act 1987. A common law negligence case had also been tabled,
but it was not insisted upon in the appeal.
The case under the 1987 Act rests upon the pursuer demonstrating the
existence of a “defect” in the car, and in particular its handbrake mechanism,
which caused the accident. It is of some
importance, in that regard, to notice the precise terms of the case advanced by
the pursuer on record, given the arguments which were ultimately presented at
appeal. In the fifth statement of fact,
the pursuer avers that, at the time of the accident:
“The handbrake on the pursuer’s car
failed to hold the car due to … defects in its design. There was movement within the handbrake grip
affecting the position of the pawl within the ratchet on the handbrake lever
and that this could allow the pawl to slip on the ratchet and release the
handbrake lever thus allowing the car to move towards the pursuer. … The handbrake mechanism was situated
between the driver’s seat and the passenger seat in a position that required
the driver to reach back. When operating the handbrake forward pressure was
placed on the handgrip tending to move it forward”.
There were further
potential defects mentioned, but these fell by the wayside in the course of the
first instance proceedings. In the eighth
statement, the pursuer set out her case under the 1987 Act, as follows:
“The handbrake was of defective design
and manufacture. As a result the safety
of the pursuer’s car was not such as persons generally are entitled to expect”.
[7] It is necessary to set out the evidence
of Mr Bathgate in some detail, since much of the pursuer’s criticisms of
the Lord Ordinary, on appeal, were directed towards his interpretation of
Mr Bathgate’s evidence. Mr Bathgate
initially examined the car on 12 October
2007. He was unable to
identify any obvious fault in the handbrake mechanism. On the contrary, he was able to apply the
brake successfully simply by pulling the pawl over the fourth tooth on the
ratchet. It could be pulled up a further
three teeth from that position.
[8] Mr Bathgate carried out a more detailed inspection
by arranging for the removal of the handbrake several months later in
January/February 2008. Having done so, he
ascertained that the plastic grip on the outside of the lever was not retained
in position and could travel forwards and backwards along its length. This was either because a “tang”, which was
designed to retain the lever onto the central consol, had become worn and
disengaged, or because the plastic grip of the lever itself, again as a result
of wear and tear, had become loose. It
was Mr Bathgate’s position that this looseness in the grip had been present
when he had first examined the car, even although he had made no note of the
problem at that time.
[9] Mr Bathgate was able to demonstrate
to his own satisfaction that, on rare occasions, the semi-detached handbrake grip
could slip and jam the release button fully forward, thus preventing the brake
from operating properly. As a result of this,
the pawl could rest higher up on the ratchet’s teeth, rather than fully engage
with them. In terms of his report dated 26 September 2011 [no 6/15
of process] he wrote:
“There is then a possibility that a
sudden movement of the vehicle, such as closing a door, could cause the pawl to
slip on the edge of the teeth, releasing the handbrake. It would normally be
expected in such a situation that the pawl would then catch on another tooth on
the ratchet as it released, but this is dependent on the travel of the release
button rod not being obstructed by the position of the hand grip”.
Having been referred
to this passage in the witness box, Mr Bathgate continued [transcript p 74]:
“I have spent literally hours moving
the handbrake back and forward, and I think on two or maybe three occasions
only did I manage to get the handbrake into such a position that it was holding
the release button in sufficiently far to cause it not to contact the ratchet
at all… I can manage to pull it on and have the handgrip in such a position
when it was on that it was possible by applying reasonable pressure to it to
bump the handbrake off again and…the pawl did not catch on the ratchet…
…What I did manage to do is find a
position with the handbrake grip where it was neither fully forward nor fully
back but it did hold the…pawl slightly raised from the ratchet and it was
holding, but just by bumping it I was able to release the entire handbrake, so,
in other words, there seemed to be a position whereby with the handbrake on and
appearing secured, the position of the hand grip was such that it held the pawl
on the edge of the tooth, not fully engaged but not fully released from it, and
it would appear that the button was partially depressed and locked in that
position by the forward movement of the hand grip”.
Mr Bathgate was then
asked, and answered, a leading question as follows (p 77):
“… you said at the beginning of this
explanation that…in many attempts to see what might have happened, you were
able to do that on two or three occasions?
Yes, that’s so. I had spent many hours
[trying hard] to replicate it again and it’s almost impossible. It seems that
possibly when it’s being raised, if the release button is pushed in slightly
and the hand grip slips forward at the same time, it is locking and holding the
release button in that position, which is just enough to allow the…pawl to sit
on the edge of the ratchet and, if that position is maintained, it would be
possible to bump it and release the handbrake”.
He repeated his
position, about only being able to replicate this problem on 2 or 3 occasions
despite “many, many occasions”, in answer to specific questions from the Lord
Ordinary (p 81).
[10] Mr Bathgate explained that, if the problem
which he postulated had occurred, the driver would have thought that she had
applied the handbrake properly. But,
again in an exchange involving a leading question (p 105), he stated that he
could not say whether what he thought might have happened, did happen even
though he could not think of any other way that could cause the car with the
handbrake applied to roll backwards. Various
competing causes, enumerated by the defenders’ expert, Dr Jan Graham, were
put to Mr Bathgate, but he excluded them all (other than handbrake defect), on
the assumption that the pursuer had correctly applied the brake. In that
context, he concluded his examination-in-chief as follows (p 146):
“…the only … explanation is … to do
with the position of the hand grip holding the release button in a position
that the pawl is not engaging into a ratchet and is effectively sitting almost
tooth-on-tooth and then, when it does release when [the pursuer] is out of the
car, because the pawl is held in its raised position, it’s not catching on
subsequent teeth but is fully releasing the handbrake”.
[11] In cross-examination, Mr Bathgate accepted
(p 167) once again that he had only managed to replicate the circumstances of
his theory 2 or 3 times over a period of 5 hours, or at least a whole
afternoon. He went on (p 168) to describe
that what he was replicating was a “tooth-on-tooth” situation, whereby, if the
pawl then slipped, it would come fully off the ratchet. The cross-examination developed with the defenders
suggesting to Mr Bathgate that, so far as the mechanism of failure was
concerned, there was not much difference between him and Dr Graham. The following exchange occurred (p 173):
“…essentially it’s the tooth-on-tooth
that’s the problem. How you get there
might be slightly different?
Yes, but for the handbrake to fail
completely, it would have to be tooth-on-tooth, and in that respect I do agree
with Dr Graham”.
He did not agree,
however, that this could not be achieved by dragging, as distinct from lifting,
the pawl over the ratchet teeth.
[12] When Dr Graham’s report of being unable to
replicate Mr Bathgate’s experiment was put to him, Mr Bathgate again explained
(p 202) that he had, albeit on only two or three occasions, managed to
re-create the exact circumstances which could explain the accident. These he described as the pawl and ratchet
“sitting tooth-on-tooth”. He had not
been able to replicate the experiment after his initial achievements. He was asked (p 233) to agree with Dr Graham’s
view that it is possible to set the handrake mechanism “tooth-on-tooth” by
depressing the release button, pulling up the lever and carefully lowering the
pawl onto the ratchet. He agreed with
this and that it required “considerable trial and error”.
[13] At the very end of cross-examination,
there was an important exchange (at p 233 et seq), which begins with further parts of Dr Graham’s report
being put to Mr Bathgate, as follows:
“’The likelihood of achieving an
inadvertent tooth-on-tooth setting in a ‘real’ handbrake application with the
release button depressed is extremely low, requiring as it does that the
handbrake lever is fortuitously moved to exactly the right position to allow
the pawl to be released onto the correct, neutrally-stable position on a
ratchet tooth, without upsetting the delicate balance’, … you would agree with
that?
I would agree, yes.
‘If the release button is not
depressed, the action of pulling the handbrake lever sets the pawl of the
handbrake mechanism ‘bouncing’ over the teeth of the ratchet to create the
characteristic buzz…?’
Yes.
‘The possibility that a ‘real’
handbrake application can be made without the release button being depressed
and yet the pawl comes to rest in exactly the right position to achieve a
tooth-on-tooth setting is, in my view, sufficiently remote as to be implausible’?
I wouldn’t agree with that”.
The Lord Ordinary
intervened to ascertain that it was the “implausibility” that Mr Bathgate
disagreed with, since he thought that there was a “higher degree of possibility
than implausibility” even if he could not quantify it. Mr Bathgate concluded (p 235):
“You could probably apply the
handbrake hundreds of times and never achieve it and once just get it on that
crucial point. …it would require more luck than anything else to achieve that
point, but, nonetheless, it is possible to do it”.
[14] Finally, in re-examination, it was
explained (perhaps for the first time, p 239) that Mr Bathgate was of the view
that, because of the awkward positioning of the handbrake, the pursuer would
have been pulling it forward as well as up, thus causing it to become loose and
free from the tang.
[15] The defenders elected not to lead any
evidence, but submitted that the pursuer had failed to demonstrate the
existence of a defect, or that it had caused the accident. The defenders appear to have accepted the
existence of the problem with the handbrake grip, but submitted that that was produced
by wear and tear over the years since the car’s manufacture in 2004. The pursuer could not establish that the
defect had been present when the car had left the factory and that, according
to the defenders, was fatal to her case.
The
Lord Ordinary’s Findings
[16] The Lord Ordinary accepted (para [12]) the
evidence of Mr Bathgate that he had been able to demonstrate on rare occasions
that it was possible to operate the handbrake lever in such a way as to achieve
a result whereby the pawl rested on top of the ratchet without engaging a
tooth. Indeed, he gave Mr Bathgate a
general note of credit as a witness who spoke in a straightforward manner
designed to assist the court. Nevertheless,
the Lord Ordinary stated that he was not:
“however persuaded, on the facts, that
Mr Bathgate proffered an explanation satisfactory to explain the cause of
this accident”.
He elaborated his
reasons for this. First, he was
conscious that the failure of the lever had been demonstrated only in
artificial laboratory conditions, once the handbrake mechanism had been removed
from the car, rather than taking place in the car itself. Secondly, he noted that, although he regarded
this as “quite proper”, in carrying out his experiments, Mr Bathgate had set
about attempting to achieve the result of having a pawl ending up resting on
top of the ratchet teeth in a manner which did not hinder the movement of the
ratchet. This was “far removed” from the
situation in which a person repeatedly applied the handbrake without any
intention of achieving a particular result.
[17] Thirdly (“second circumstance”), the Lord
Ordinary took cognisance of Mr Bathgate’s evidence that he had only been
able to achieve the result on 2 or 3 occasions. The Lord Ordinary had regard to the view of Dr Graham,
as expressed in his report (supra),
that the likelihood of “this”
happening in real life was “sufficiently remote as to be implausible”. The Lord Ordinary did not consider that
Mr Bathgate had “seriously” sought to rebut that contention.
[18] In adopting the approach recommended by
Lord Brandon of Oakbrook in The Popi M
[1985] 1 WLR 948, the Lord Ordinary came to the conclusion that the pursuer had
failed, on a balance of probability, to prove causation, in the sense of
demonstrating that the accident had been caused by the defect alleged.
[19] The Lord Ordinary also determined that the
defect in the handbrake grip, which may have existed at the time of the
accident, had not been proved by the pursuer to have been present when the car
had left the defenders’ factory. He
interpreted section 3 of the 1987 Act in a manner which did not provide a
consumer with a “life-long warranty of goods” on the part of the
manufacturer. On this basis, he
considered that the pursuer’s case under the 1987 Act failed.
[20] Had he been in favour of the pursuer, the
Lord Ordinary would have found her to have been contributory negligent to a
“small” extent in failing to leave the car in gear, although he did not
consider that such a finding was appropriate in respect of the defenders’ other
contention that the pursuer’s failure to run round and re-enter the car as it
rolled towards her also amounted to fault on her part. He did not attempt to quantify the level of
contributory negligence.
Submissions
PURSUER
[21] The first problem facing the
court is to determine precisely what grounds of appeal are being maintained by
the pursuer. It has before it three
written documents: (1) the grounds of appeal; (2) a “note of argument”; and (3)
written “submissions”. It then has the
content of the oral presentation at the appeal hearing. Neither the written documents, nor the oral
submission, follow the same structure and it is difficult to extract from them
the essence of the pursuer’s appeal.
What is attempted here is a distillation of the content of the written
material as supplemented by, what appeared to be insisted upon, in oral
argument.
[22] The terms of the Consumer Protection Act
1987 required to be construed in accordance with the Product Liability
Directive 85/374/EEC. Both imposed
liability on the producer for damage caused by a “defect in a product” without
the need to prove any fault. “Defect”
had a special statutory meaning, different from its normal meaning in the
English language. This was that “the
safety of the product is not such as persons generally are entitled to expect”
(1987 Act section 3(1)). It was for
the courts to determine what it was that persons were entitled to expect (A v National
Blood Authority [2001] 3 All ER 289, Burton J at para 31 vii). What the pursuer required to show was that
there was something in the product’s safety, which the public were entitled to
expect, but which was not present. It
was expectation at the time of manufacture which was important, but the defect did
not require to be visible at that time.
There required to be an inherent safety problem in the manufacture of
the product, but it was not necessary for the pursuer to demonstrate the
precise mechanism whereby the defect thereby identified caused the damage. It was sufficient for the pursuer to demonstrate
that the damage must have resulted from some defect (Ide v ATB Sales Ltd
[2008] PIQR P13 Thomas LJ at paras 7 and 19). It was accepted that it was not enough merely
to show that the product had failed and caused damage (Tesco v Pollard [2006] EWCA Civ 393, Laws LJ at para 17); but, where the only plausible
explanation for the failure was a defect in the product, the pursuer must
succeed (Clerk and Lindsell, Torts (19th
ed) para 11-55; Richardson v LRC Products Limited [2000] Lloyd’s Rep
Med 280; Foster v Biosil [2001] 59
BMLR 178, Booth QC at 180; Abouzaid v
Mothercare (UK) Ltd 2000 WL 1918530,
Pill LJ at para 22).
[23] It was common ground that, if there was a
failure in the product, it was in the handbrake. There had been two theories advanced by the
competing experts, although only one gave evidence. The defenders’ explanation on implausibility
related to the pawl and ratchet being “point to point”. However, the pursuer’s expert had not said
that there was a need to achieve a precise “point to point” match between pawl
and ratchet. On the contrary, he was
saying that it was possible for the pawl to slip if the pawl, although not
“point to point”, had rested higher up than it should have on the ratchet
tooth. The Lord Ordinary had conflated
the two theories of the experts and misunderstood Mr Bathgate’s evidence
when he concluded that Mr Bathgate had accepted the rarity of his own theory.
[24] If, as in this case, the car had left the
factory gates in a state whereby the slipping of the handbrake grip would, in
due course, happen, that constituted a lack of safety in the product and hence
a defect in terms of the legislation.
Once the pursuer was able to present in evidence a mechanism for the
failure of the handbrake, and there was no other competing theory supported by the
evidence nor any basis for the court to reject the evidence of the mechanism or
failure, she had demonstrated that the car was unsafe and therefore ought to
succeed.
DEFENDERS
[25] The defenders’ arguments at the
appeal hearing followed broadly the approach taken by them in their written
submissions. In terms of the 1987 Act,
as interpreted in light of the Product Liability Directive 85/374/EEC, in order
to succeed the pursuer did not require to prove fault on the part of the
defenders, but she did need to demonstrate that: (1) the product was defective
and (2) the defect caused the injury complained of. The word “defect” ought to be construed, in
the first place, in terms of the Shorter Oxford
English Dictionary definition as involving something “wanting or falling
short” or a “lack or absence of something essential to completeness”, or a
“deficiency”. The explanation as to its
meaning in the statute resulted in a narrower construction, since the defect
had to be something which affected the safety of the product.
[26] A mere failure of a product was not
sufficient to achieve success (Clark and
Lindsell (supra) para 11-55; Richardson v LRC
Products Limited (supra); Foster v Biosil (supra) Booth QC
at 181). If all that had been required
was proof of failure of the product, then there would be no prospect of a manufacturer
ever being able to invoke the defence, that the defect did not exist at the
time the product was initially supplied (section 4(1)(d)). Almost by definition, failure cannot be the
same as defect, since any failure occurs post supply. The test of safety, in relation to what
persons are generally entitled to expect, should not be overly strict and the
1987 Act should not be used by the courts as an equivalent of a contractual
warranty on the part of the manufacturer (Tesco
v Pollard (supra) Laws LJ at para 15).
[27] The pursuer’s primary position was that
there had been a particular defect in the handbrake. She had a subsidiary argument that, even in
the absence of a proven defect, the mere fact that the handbrake did not work
on this occasion was sufficient to enable her to succeed. If that argument were correct, it would mean
that the pursuer could succeed if she demonstrated that on a particular
occasion the product had not worked as expected, even although it had worked
perfectly well before and after the incident and no defect had been found on
subsequent inspection. There was no precedent,
under the 1987 Act, which indicated that this was the law.
[28] A fundamental problem underlying the
pursuer’s case was that the precise nature of the defect had never been identified. There were a number of defects referred to on
record but, ultimately at the proof, the one complained of was the slipping of
the handbrake grip. It had only been at
the stage of submissions that the pursuer had attempted to argue that there was
no need to prove a particular defect and that it was sufficient to show that
the brake did not work on this occasion.
That approach is not permissible.
The pursuer’s case had to be tested on the premise that she had to prove
that there was a defect in the grip, which caused a “tooth on tooth”
application, which in turn led to the accident.
[29] Mr Bathgate had given extensive
evidence on the timing of the creation of the alleged defect. He considered that the grip had broken after
manufacture and supply, possibly as a result of wear and tear. It could not even be said that the grip had
been broken at the time of the accident, given that Mr Bathgate had not
made any reference to it at the time of his initial report. Although the Lord Ordinary may have misdirected
himself as to the onus of proving the existence of the defect at the time of
supply, it was implicit from his reasoning that he considered that it was
probable that the defect arose post supply.
That was the only reasonable finding to make.
[30] The issue of causation was one purely of
fact. The court should be slow to
interfere with findings of fact made by a judge who has seen and heard all the
evidence in the case and, in particular, should not do so unless it could be
demonstrated that the Lord Ordinary was “plainly wrong” (Thomas v Thomas 1947 SC
(HL) 45, Lord Thankerton at 54 and Lord Macmillan at 59, see also Piglowska v Piglowski [1999] 1 WLR 1360, Thomson
v Kvaerner Govan 2004 SC (HL) 1
and Barber v Somerset County Council [2004] 1 WLR 1089, Lord Rodger at
para 16 and Lord Walker at paras 67 and 70).
[31] The Lord Ordinary had been entitled to
reject the evidence of Mr Bathgate regardless of what the contradictory
evidence might have been. The law on
this matter was clear from The Popi M
(supra) where Lord Brandon of
Oakbrook undermined the application of Sherlock Holmes’s logic that when the
impossible was eliminated “whatever remains, however improbable, must be the
truth”. The mere fact that a particular
mode of failure was, in the opinion of an expert, “possible” did not mean that
the Lord Ordinary was bound to accept it as a cause of the accident. Mr Bathgate had been able to replicate
the failure only when careful and delicate positioning of the handbrake had
taken place. Yet, the evidence of the
pursuer was that on the day of the accident she had wrenched the handbrake
lever up, making the possibility of achieving a “tooth-on-tooth” application
too remote to be plausible. Although it
was not necessary for the defenders to offer an alternative explanation, there
were at least two other possibilities: (1) that the pursuer simply failed to
apply the handbrake properly; and (2) that the pursuer achieved a “tooth on
tooth” application regardless of any defect in the handbrake. In all these circumstances, it could not be
said that the Lord Ordinary had not been entitled to come to the view that the
explanation put forward by the pursuer was too unlikely to be the probable
cause of the accident. If the court was
against the defenders, then the finding of contributory negligence should be
one of 20%.
Decision
[32] There is little doubt that the Lord
Ordinary has posed, for this court, a significant conundrum. If a handbrake is properly applied, as has been
held to have occurred in this case, how does a car come to roll backwards on a
modest incline? The obvious possibility,
as a matter of common sense, is that the handbrake must have failed as a result
of some form of defect, giving that term its normal English meaning. Yet the Lord Ordinary has found that such a
defect has not been proved; thus leaving the cause of the accident as,
presumably, an unexplained and perhaps inexplicable mystery. Accordingly, this court requires to analyse the
Lord Ordinary’s reasoning for his conclusion with some considerable care and to
determine whether he, as the primary assessor of fact, has misdirected himself
or reached a conclusion which is not justified by the evidence. In relation to
the latter, whilst affording the Lord Ordinary due deference because of his
advantage in having seen and heard the witness, this court will be entitled to
intervene if the Lord Ordinary’s decision on the facts: (i) contains material inconsistencies
or inaccuracies; (ii) fails to appreciate properly the weight or bearing of
facts admitted or proved; or (iii) is otherwise plainly wrong (Thomas v Thomas 1947 SC (HL) 45, Lord Thankerton at 54 and Lord Macmillan
at 59).
[33] The principal issue is whether, having
rejected the idea that the pursuer had failed to apply the handbrake (or failed
to do so adequately), the Lord Ordinary was nevertheless entitled to reject
also the only other explanation tendered to him in evidence; that the handbrake
mechanism was defective because of the possibility of the pawl being jammed free
of the ratchet as a result of the loose grip. This, not for the first time, requires the
court to consider whether it is appropriate to use the logic, attributed by Sir
Arthur Conan Doyle to his fictional detective Sherlock Holmes in, for example,
the Sign of Four, that once the
impossible has been eliminated, “whatever remains, however improbable, must be
the truth”. This logic is sound as
stated, but it is only applicable if all possibilities are known and hence
capable of elimination. In real situations,
closed systems of possible cause do not always exist.
[34] The difficulty about a court of law
applying the detective’s analysis was thoroughly examined in England in The Popi M [1985] 1 WLR 948. The judge at first instance (Bingham J,
[1983] 2 Lloyd’s Rep 235) had been left with two explanations for the sinking
of a cargo vessel in calm seas. The
first was some unexplained action of wear and tear and the second was collision
with a submarine. The judge regarded (at
248) the submarine hypothesis as containing an “inherent improbability” yet
found it established on a balance of probability since he had rejected wear and
tear and it had been the only alternative postulated in the evidence. The Court of Appeal ([1984] 2 Lloyd’s Rep 555)
considered that the judge was “plainly right” (Donaldson MR at 558). However, the House of Lords disagreed. Lord Brandon of Oakbrook, who delivered the
only substantive speech, began (at 951) by stressing that, where the burden of
proving the cause of an event is on a pursuer, although it is open to defenders
to advance an alternative cause, there is no obligation on them to do so or to
prove it. Following the obiter dictum of Scrutton LJ in La Compania Martiartu v Royal Exchange Assurance Corporation
[1923] 1 KB 650 (at 657) (which Bingham J had also cited), he continued:
“…it is always open to a court, even
after the kind of prolonged inquiry with a mass of expert evidence… to
conclude… that the proximate cause of
the ship’s loss, even on a balance of probabilities, remains in doubt, with the
consequence that the [pursuer has] failed to discharge the burden of proof…”.
He regarded it
inappropriate to use Holmes’ logic for three reasons. It is worth quoting these:
“The first reason is…that the judge is
not bound always to make a finding one way or the other with regard to the
facts averred by the parties. He has
open to him the third alternative (sic)
of saying that the party on whom the burden of proof lies in relation to any
averment made by him has failed to discharge that burden. No judge likes to
decide cases on the burden of proof… There are cases, however, in which, owing
to the unsatisfactory state of the evidence or otherwise, deciding on the
burden of proof is the only just course for him to take.
The second reason is that the dictum
can only apply when all relevant facts are known, so that all possible
explanations, except a single extremely improbable one, can properly be
eliminated…
The third reason is that the legal
concept of proof of a case on a balance of probabilities must be applied with
common sense. …If a judge concludes…
that the occurrence of an event is extremely improbable, a finding… that it is
nevertheless more likely to have occurred than not, does not accord with common
sense…”.
Lord Brandon
identified Bingham J’s error as being that he thought that he required to
choose between the (only) two theories presented to him, even if he regarded
one as “extremely improbable” and the other as “virtually impossible”.
[35] Lord Brandon’s reasoning was explored in Ide v
ATB Sales [2008] PIQR P13 in which Thomas LJ referred to the circumstances
of The Popi M (supra) as being very unusual and stated that:
“4 …In
the vast majority of cases where the judge has before him the issue of
causation of a particular event, the parties will put before the judges two or
more competing explanations as to how the event occurred, which though they may
be uncommon, are not improbable. In such
cases, it is… a permissible and logical train of reasoning for a judge, having
eliminated all of the causes of the loss but one, to ask himself whether, on
the balance of probabilities, that one cause was the cause of the event. What is impermissible is for a judge to
conclude in the case of a series of improbable causes that the least improbable
or least unlikely is nonetheless the cause of the event; such cases are those
where there may be very real uncertainty about the relevant factual background…
or the evidence might be highly unsatisfactory.
In that type of case the process of elimination can result in arriving
at the least improbable cause and not the probable cause.
…
6. As
a matter of common sense it will usually be safe for a judge to conclude, where
there are two competing theories before him neither of which is improbable,
that having rejected one it is logical to accept the other as being the cause
on the balance of probabilities. …if
there were only three possible causes of an event, then it was permissible for
a judge to approach the matter by analysing each of those causes. If he ranked those causes in terms of
probability and concluded that one was more probable than the others, then,
provided those were the only three possible causes, he was entitled to conclude
that the one he considered the most probable, was the probable cause of the
event provided it was not improbable”.
[36] This is all somewhat convoluted but no
doubt the general sense is clear. The dictum proposes that an improbable cause
cannot, on a balance of probability, be the
cause! However, Holmes’ thinking should
not be discounted entirely. What might,
at first sight, be improbable or implausible may become increasingly more
probable as and when alternative causes are eliminated. In a case such as the present, involving a
very simple road traffic accident, it can only be regarded as at least
unfortunate that the case required to be decided on onus of proof. This is an echo of Lord Brandon’s comment
that judges do not like to decide cases purely on onus of proof. As Lord Reid stressed, in McWilliams v Sir William Arrol & Co 1962 SC (HL) 70 (at 83):
“In the end when all the evidence has
been brought out, it rarely matters where the onus originally lay: the question
is which way the balance of probability has come to rest”.
The question is
whether the Lord Ordinary has erred in deciding the case purely on the basis of
a failure to overcome the onus of proving that the car rolled backwards because
of a defect, in the face of evidence that a defect may possibly have existed.
[37] In order to succeed in a claim under
section 2 of the Consumer Protection Act 1987, a pursuer must prove
that he suffered damage “caused… by a defect”.
This phraseology ought not to pose any complex questions of
understanding. It involves proof of the
presence of a defect and of damage caused by that defect. “Defect” should, in the first place, be given
its ordinary English meaning. It
involves the product lacking something.
Given the terms of section 3(1) relative to there being a defect in the
product if its safety is not such as persons are generally entitled to expect,
the defect must be a lack relative to the safety of the product (see Abouzaid v Mothercare (UK) 2000 WL 1918530, Pill LJ at para 22). Whether such a lack of safety exists is
determined according to what the court considers the public would expect. The
court does not understand there to be any dispute with the proposition that a
car would have a defect if its handbrake mechanism was such that it did not,
upon proper application, engage at least the rear brakes of the car. The public are entitled to expect that
handbrakes do perform this function and do not, suddenly and without warning,
fail. If this was the position at the
time of supply to the first customer, there would be a defect which sounded in
damages if loss occurred as a result.
Equally, if the mechanism was such that such a failure could occur,
without any problem being noticed in advance, in the future, the same result
would follow. If, therefore, it were
possible, in terms of Mr Bathgate’s evidence, that the pursuer could have used
the handbrake properly, yet the rear brakes were not engaged, leaving aside any
issue of wear and tear, a defect in the handbrake and the car would exist.
[38] The court does not consider that it is of
any moment that the product is described as the car or the handbrake, or
both. However, it is clear from the
pursuer’s pleadings that what the pursuer set out to prove was the existence of
“defects” in the “design and manufacture” of the handbrake. The particular one founded upon after proof
was “movement in the handbrake grip affecting the position of the pawl”. If the pursuer proved that, she would
succeed. If she did not, she would be
bound to fail as not having proved her case on record which, as a matter of
fair notice, the defenders had come to meet and which remained the only case
against them when the pursuer closed her proof.
[39] There will be cases in which the failure
of the product to act in a particular way will lead inevitably to the inference
that a defect of some sort must have existed (Clerk and Lindsell, Torts (19th ed)
para 11-55; Ide v ATB Sales (supra)). The court accepts
also that, in such cases, a pursuer may not have to prove the precise mechanism
of how the defect led to the failure.
However, a car which has had its handbrake applied at one point may roll
backwards at a later point for a variety, albeit a limited variety, of reasons
which do not involve a defect in the handbrake (or the car) itself. One obvious example is that, after applying
the handbrake, the brake was accidentally released somehow. It may even be possible to consider some
“inexplicable failures” (Richardson v LRC Products [2000] Lloyd’s Rep Med 280,
Ian Kennedy J at 285), although there was no evidence of such causes in this
case. However, the short point remains
that this pursuer set out to prove that it was a defect in the car’s handbrake
which prompted the movement. The Lord
Ordinary was not bound to hold that all possible explanations, other than
defect in the handbrake or even the car, had been eliminated at the proof. In these circumstances, he was entitled to
the view that the movement of the car itself did not, without more, provide
sufficient evidence of defect. Rather
the pursuer’s success depended upon the acceptance of Mr Bathgate’s theory of handbrake
failure.
[40] A court is seldom bound to accept evidence
presented to it, even if it is unchallenged or uncontradicted. In the absence of agreed fact apparent on the
face of the record or a joint minute, it may reject the testimony of a
particular witness, or parts of it, as, in this case, not sufficiently
reliable. Where the evidence is of a
crucial nature, the judge is bound to give a reason for its rejection and, when
it is unchallenged or uncontradicted, the reason ought to be correspondingly
clear. The appellate court will not,
however, reverse a decision on the reliability of a particular piece of
testimony where the judge has given cogent reasons for its rejection.
[41] The court rejects the submission that the
Lord Ordinary misunderstood the nature of Mr Bathgate’s evidence or the
challenge to it. As set out above,
although Mr Bathgate began by describing a situation in which the pawl was
resting high up in the grooves of the ratchet teeth, his references to being
able to replicate the circumstances of the accident only 2 or 3 times related
to the creation of a situation whereby either the pawl sat “on the edge of the
ratchet” or, as he said at the end of his examination-in-chief, “not engaging
into a ratchet” but “sitting almost tooth-on tooth”. This was emphasised in
cross-examination. It is clear that Mr
Bathgate’s 2 or 3 times related to being able, one way or another, to create a
situation in which pulling the lever up by whatever method left the pawl
effectively free of the ratchet in the event of movement.
[42] The court considers that the Lord Ordinary
has given cogent reasons for rejecting Mr Bathgate’s evidence that this “tooth-on-tooth”
contact could occur in reality. First, no
such defect was discoverable on normal application of the handbrake in the car.
Secondly, it was only created when deliberately attempted. The experiment was designed to achieve a
particular result and not to discover empirically whether there was a fault in
the system. Thirdly, the recreation was
only achieved on 2 or 3 occasions over a period of at least an afternoon. It was not achieved again and could not be
demonstrated at the proof. Hearsay of Dr
Graham’s view that it was “implausible” that the “tooth-on-tooth” positioning could
occur in real life was admitted in the course of the pursuer’s proof and the
Lord Ordinary cannot be faulted for referring to it, even if Dr Graham was
not called upon to testify. The
description of the likelihood as “remote” was regarded by the Lord Ordinary as
one which was not seriously rebutted by Mr Bathgate. That was not an unreasonable conclusion,
given Mr Bathgate’s responses in cross-examination (supra). Mr Bathgate
certainly classified the possibility of his explanation actually occurring as
greater, in possibility terms, than implausibility but the Lord Ordinary was
entitled, in the absence of any attempt at greater quantification, to regard
the differences between Mr Bathgate and Dr Graham in this area as not
particularly significant.
[43] Ultimately, the Lord Ordinary was left
with what he regarded as an implausible explanation which, in terms of Lord
Brandon’s cautionary words, he could therefore hardly hold to have been the
cause of the car’s movement. For the
reasons given above, the court is unable to fault the Lord Ordinary’s reasoning
on this critical issue and, on that basis, this reclaiming motion must fail.
[44] Were the court to have reached the view
that the Lord Ordinary had erred in a material respect, it would then have
required to reconsider the printed version of the evidence in order to
determine for itself where the balance of probability had come to rest. Suffice it to say that, upon such a reconsideration,
the court may have struggled to come to any conclusion other than that this
handbrake had simply not, for whatever reason, been properly applied. In that regard it may have been forced to
conclude that the pursuer’s testimony was not to be relied on in this crucial
area of the proof.
[45] The court would have concluded that the
defenders had made out their case that, even if there had been a defect in the
car at the time of the accident, it could not be said to have existed three
years earlier, at the time of its first supply after manufacture in 2004. There was no material that would have
justified the conclusion that there was anything wrong with the manufacture of
the handbrake. If the handgrip had come
free of the “tang” or lever by the date of the accident, that was something
which was proved to have occurred as a result of wear and tear of the type
which the public would anticipate might occur.
It was not something which could be regarded as a flaw or deficiency
inherent in the design or manufacture of the handbrake mechanism or the car
itself.
[46] Finally, had the court been in favour of
the pursuer, it would have assessed contributory negligence in respect of the
failure to leave the car in gear at 10%.
In that regard, it stresses that quantifying contributory negligence is
a function to be carried out by the court of first instance irrespective of the
finding on liability (Hogan v Highland Regional Council 1995 SC 1,
LJ-C (Ross) at 2).
