SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

A100/04

Act:

Alt:

ABERDEEN, 25^th February 2008.

This matter came before me as a result of a pursuer's motion to be allowed to amend the Record in terms of a Minute of Amendment No. 16 of process. The defenders did not oppose items 1 and 2 of the Minute of Amendment but opposed the rest based on the argument that new matter was being introduced at a very late stage in the procedure.

In support of the amendment, counsel referred me to the Ordinary Cause Rules and the usual criteria for allowing amendment.

He then submitted that the additional detail in items 3A, 3B and 3C was simply expanded narrative to meet the detailed averments of the defender in Answer 3. It was not, he said, introducing any new matter and the defenders were obviously well aware of the detailed circumstances.

Miss McNeill, for the defenders, disputed that last assertion and pointed out that in 3(c) the reference to a prior incident involving Mr Watt was entirely new and was in itself lacking in any specification and ipso facto irrelevant. She also submitted that the averment that "any reasonable system would have prioritise" is entirely new and opens up a whole new issue of what constituted proper prioritisation. If there was to be such a issue the defenders would need to answer that and seek to lead evidence to show that the system they employed did meet whatever the new test of reasonable prioritisation was. She also pointed that the averment of fresh snow on compacted snow and what should have been done about that opened up, seven years later, a whole new line of enquiry as to when snow fell and how it had become compacted and what could have been done at some unspecified earlier time to deal with that contingency. To introduce that line of enquiry and implied new case at common law of failing to act timeously or appropriately was unfair to the defender at this stage of proceedings.

The record which the pursuer now seeks to amend was lodged in process on 2^nd December 2005. The Minute of Amendment was lodged on 29^th November 2007. The cause was sisted on the pursuer's motion for investigation and negotiation on 6^th December 2005. The sist was recalled on defenders' motion on 10^th October 2007 and proof was fixed on pursuer's motion on 5^th December 2007.

From the procedure narrated in the preceding paragraph, it is plain that the pursuer has had ample time to state is perception of the facts and to frame the breaches of duty he thinks have occurred.

In my view, the objection to the reference to a prior accident is well founded. It is absurd to expect the defenders' agents to be making enquiries about that seven years after the incident. No justification for the lateness in producing this information has been laid before me. The averment itself is wholly lacking in specification. I shall disallow the amendment from line 3 in Article 3 "Mr Gordon .... to accident" in line 4.

The defenders have had a narrative of the system they applied on Record since December 2005. The pursuers now seek to argue that the defenders' system was flawed and to introduce a new factual element of the existence of compacted snow under new snow. Until now there has been no criticism of the defenders' method of dealing with the problem brought about by the snow on 26^th February.

It would be absurd to open up new enquiry into the weather on preceding days, and the case of earlier snow/ice clearing, and what they did on the 25^th February and whether that was adequate and whether they should have anticipated conditions and done something prior to 7 am on 26^th February. Accordingly, I delete from the Minute of Amendment, item 3, lines 13 to 14 in the sentence "Any .... route" and line 15 and 16 "The area ... compacted." There is very considerable prejudice to the defender if new lines of factual enquiry are to be opened up at this stage.

The next item of the Minute of Amendment is Article 4. Counsel submitted that this was simply a reformulation of the pre-existing common law case. Miss McNeill did not demur from that description insofar as it applied to the first eight lines but when the pursuer was introducing an esto case based on priorities selected at the time she begged to differ.

The defenders' pleadings state that they did operate a priority system and explain what it was. Until this amendment there is no criticism of the priority system adopted. The imposition of a duty to form cleared and gritted paths is clearly new matter and might require detailed enquiry to refute by referring, for example, to usual course of practice or evidence of custom of trade. There is considerable force in the argument that it is not reasonable to expect the defenders to meet such a case at such short notice seven years after the accident and four years after the action was raised. There is no reason before me to explain the lateness of introducing this line of enquiry.

Item 5 of said Minute of Amendment contains a new statutory case. Counsel argued that this added nothing new to the pleadings but simply reflected the existing facts and the common law case. The defenders, he submitted, had anticipated a statutory case when they introduced the detailed averments to show that they would have complied with any reasonable practicability test. While he accepted that the pursuer had delayed in introducing this case he pointed out that the defenders had been dilatory by about eighteen months in failing to lodge reports in the early stages of the case. The relevance of that was not further explained.

Miss McNeill responded by submitting that the statutory case imposed a greater onus on the defender. To date the pursuer's case was based on the failure of the defender to take reasonable care. Now it was proposed to add that what the defenders did was not what was reasonably practicable. The meaning of "so far as reasonable practicable" in the context of clearing snow during falling snow was not at all clear and entirely different evidence might need to be addressed to meet that test. Once again she pointed out that the proposed additional onus on the defender was two years after the Record was closed and there was no rational explanation for the delay.

In my view there is a different and additional onus on the defenders if the statutory case is pled. There is a patent issue on the relevancy of that case. In the circumstances, the defenders would require to answer it and perhaps debate the relevancy before or after proof. In addition, there is an argument that there is a time bar protection for the defenders which would be lost if this statutory case were to be allowed in. There is no explanation for the introduction of this statutory case at such a late stage.

The issue, however, that is before the court is whether or not this statutory case and a reformulated common law case is a radical alteration to the pursuer's case. The possibility of a statutory case being pled against them can be presumed to have been with the reasonable anticipation of the defenders. That could even be inferred from the style of their explanation in Answer 3. There is no doubt that the defenders would require to recast their defence and perhaps carry out further investigation in order to be in a position to meet the additional burden imposed upon them by the statutory case. However, it seems to me that in terms of the unamended Record there would require to be enquiry into what the weather conditions had been, were, and were likely to be. The nature of the defenders' duty will vary depending on the conditions past, present and predicted.

It must always have been within the expectation of the defenders that they would require to show that the steps that they took were reasonable in all the circumstances.

In addition to the statutory case, the pursuers now desiderate in an esto case quite specific example of what reasonable care would have entailed, namely, having a cleared and gritted path. As with the statutory case this is a new duty but in my view it is not a radical alteration. It seems to me to be inconceivable that a proof on the existing record would not raise the issue of creating safe pathways. If allowed it does require that the defenders have a reasonable opportunity to respond and they may need to respond in some detail with reference to, for example, what was the accepted practice in this country or elsewhere in the interpretation of reasonable care in all the circumstances. Furthermore the pursuers seeks to expand on their losses in Article 6 of the Amendment.

While I am conscious that there has been very considerable delay here, I am not persuaded that further delay in bringing this matter to a final conclusion is sufficiently grave as to override the desirability of having both the pursuer's and defenders' case accurately before the court for judicial determination. Lateness alone no matter how culpable or unexplained is not sufficient to justify refusal to allow amendment.

While there is a public interest in the prevention of delay there is also a public interest in avoiding an unsatisfactory conclusion arising from confusion from poorly prepared presentation of the issues involved. Although the defenders refer to the pursuer's case on the existing record as being one of breach of a duty of reasonable care that duty does not appear on the face of the record at all. The only duty averred specifically in a "duty to keep the area in which he would be working, or walking clear of ice and snow and other dangerous and slippery materials." It is only now that the pursuers seek to properly focus their case.

In my view the appropriate course is to allow this amendment to be received subject to the deletions I have indicated above relating to new factual issues, appoint the defenders to answer and have a further hearing on the adjusted amendment and answers in due course to determine whether or not a debate is required prior to a proof.

Although the parties were anxious to retain the existing proof date that seems to me quite impractical. The parties, however, are in a better position to judge on the practicability of using the existing diet and I shall not discharge it at this stage.

I was not specifically addressed on the issue of expenses of the amendment procedure and it may well be appropriate that an order for expenses is be made in this case to take into account not only the amendment procedure but also the consequences of a very late presentation of a Minute of Amendment and the introduction of averments which may require to be considered at debate. These are factors which parties may wish to address at the hearing on the adjusted Minute and answers in due course and I have reserved expenses to that date.