ANDREW NICOL v. THE RIGHT HONOURABLE LYNDA CLARK, M.P. Q.C. THE ADVOCATE GENERAL FOR SCOTLAND (AS REPRESENTING THE MIONISTRY OF DEFENCE)+ALLAN TOOMEY+WESTSOUND RADIO LIMITED+BARR CONSTRUCTION LIMITED

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OUTER HOUSE, COURT OF SESSION
A1557/00	OPINION OF LORD MENZIES in the cause ANDREW NICOL Pursuer; against (1) THE RIGHT HONOURABLE LYNDA CLARK, M.P., Q.C., THE ADVOCATE GENERAL FOR SCOTLAND (AS REPRESENTING THE MINISTRY OF DEFENCE) (2) ALLAN TOOMEY (3) WESTSOUND RADIO LIMITED and (4) BARR CONSTRUCTION LIMITED Defenders: ________________

Pursuer: McEachran, Q.C., A C Forsyth; The Anderson Partnership

Defenders: (First Defender) Clancy, Q.C., Creally; Morton Fraser

(Second and Third Defenders) Bell, Q.C., O'Rourke; HBM Sayers

(Fourth Defenders) J R Campbell, Q.C.; Simpson & Marwick WS

11 March 2003

I.Introduction

[1]This is an action for damages for personal injuries arising from an accident which occurred at Ayr Race Course on 25 May 1997. On that date a charity fund-raising event was being held on the area of generally grassed land in the centre of the race course. The fourth defenders were the principal organisers of the event, which was held to raise money for the Ayr Hospice. A similar event had been held on this land on several previous years, including 1995 and 1996, although in those years the event had been organised by the Hospice itself; 1997 was the first occasion on which the fourth defenders had assumed responsibility for the overall organisation of the event.

[2]One of the attractions at the event was a "fun slide" which was operated by the Army Display Team. This consisted of a scaffolding tower about 40-50 feet high, which was held in place by 8 guy ropes or wires, 4 of which were attached to the scaffolding tower about half-way up its height, and 4 of which were attached to the top of the tower. On the top of the tower an "A-frame" structure of scaffolding poles was erected, from which a pulley was suspended. A metal cable was stretched from an anchor point in the ground some 30 paces to the south of the centre of the tower, through the pulley in the A-frame, and then to another anchor point further away to the north of the tower. The cable was then placed under tension, and members of the public were charged a fee to use the slide. To do this they were provided with a safety helmet and harness which were fitted for them and checked by Army personnel, and they then climbed to the top of the tower. Once there, further Army personnel attached them to a pulley and harness suspended from the cable, and they then slid down suspended below the cable towards the anchor point to the north of the tower. Two more members of the Army team, known as "catchers" were positioned at a point between the tower and the northern anchor, (between 50 and 70 feet from the anchor point), whose function it was to reduce the speed of the user of the slide until the user was on the ground again.

[3]The Army Display Team arrived at Ayr Race Course at about 8.40am on 25 May 1997 and erected the fun slide. Although there were differing recollections as to when the event opened to the public, it appears to have opened at about 10.00am. By this time the fun slide had been erected. Again, by this time some parts of the boundary of the fun slide site were demarcated by blue rope and red and white plastic warning tape. This demarcation extended along the southern boundary of the site, and some way up the east and west boundaries of the site, but there was no demarcation of the northern boundary of the site by this time (apart from bollards marking the position of the north anchor), and neither the blue rope nor the warning tape extended for the whole length of the fun slide on the east and west boundaries. By this time the pursuer, who was a private soldier in the First Battalion King's Own Scottish Borderers attached to the Army Display Team was working in the course of his employment with the Ministry of Defence. He was on the top of the tower; his task was to attach users of the slide to the pulley and harness, and assist them to commence the slide. He was himself attached to the A-frame by a safety harness. At about 11.35am a Land Rover Discovery car owned by the third defenders and driven by the second defender in the course of his employment with them collided with the main cable of the fun slide. The car was being driven in an easterly direction over the grass area, and collided with the cable at a point some 30 feet or so to the south of the northern anchor, and at a point where there was no blue rope or warning tape to delimit the east and west boundaries of the fun slide site. The car struck the main cable at a point at the nearside front corner of the roof of the car, where the roofrack is attached to the roof. The car pushed the main cable in its direction of travel, substantially increasing the tension on the cable and causing the A-frame on the top of the tower to fracture and collapse. As a result of this, the pursuer was thrown to the ground and sustained very serious injuries.

[4]The pursuer seeks damages from each of the defenders. He sues the first defender as representing the Ministry of Defence, as his employer, alleging breach of the duty to provide him with a safe place of work and safe plant and equipment. He sues the second defender as driver of the car, alleging breaches of the duties to keep it under proper control, to drive at a safe speed and to keep a proper lookout. He sues the third defenders as the employers of the second defender, vicariously and also for failure to give him adequate instructions as to where he should and should not drive on the day in question. He sues the fourth defenders as occupiers of the site on the day in question, alleging breaches of duties of care under the Occupiers' Liability (Scotland) Act 1960.

[5]The narrative of events given in this introduction relates to matters which were largely uncontroversial. There were however matters which remained in dispute as between all or some of the parties, and it is appropriate that I should give a summary of the evidence of the salient witnesses. (Although the pursuer gave evidence, he had no memory of the accident at all, and he was not cross examined on behalf of any of the defenders.)

II.Summary of the evidence

[6]Brian Seditas was an environmental officer with South Ayrshire Council, the body responsible for granting a public entertainment licence under the Civil Government (Scotland) Act 1982 for the charity event. The applicants for the licence were Barr Facilities Management Ltd (who, it appears, were a division of the fourth defenders). He had been involved in licensing this event in the two previous years. He stated that he normally received a layout plan which he would discuss with the organisers. He stated that the fourth defenders were responsible for the overall safety of the event and for traffic control. Once the event started he would expect most vehicles to go to the car park; he would not expect vehicles to use the grassed areas to get access to the stalls. He was at Ayr Race Course on 25 May 1997 to check that the conditions of the licence were complied with. Once the Army Display Team had set up the fun slide he requested that an engineer should check the scaffolding to see that it was safe. He did not anticipate that vehicles would use the grassed areas to obtain access to the third defenders' stand. He was responsible for preparing the report following the accident which was 6/45 of process. He considered that the absence of a "bunting barrier" marking off the fun slide at the point of the collision contributed to the accident. He could not say whether the whole of the northern end of the fun slide site had been enclosed with rope or warning tape, either on the day of the accident or previously. Although he had no expectation of vehicular traffic on the grassed area towards the north end of the fun slide site, he made no requirement about this and the risk did not occur to him at the time. Although not positive, his recollection was that on the two previous years the Army fun slide had been erected in approximately the same configuration and site as in 1997, with the tower towards the southern end of the site. If absolutely necessary, he considered that vehicular access to the site during the event should have been by means of the main tarmacadamed roadway which ran approximately east to west across the site; when it was suggested to him that this might cause a hazard to pedestrians, he observed that it would not be dangerous if any vehicle was being driven at walking pace. He was not aware of vehicles on previous years having been given permission to access stands via the grassed area to the north side of the site. He stated that the routing of traffic on the site, and the separation of vehicles from pedestrians, was the fourth defenders' responsibility in terms of their licence. He was not aware that the Army fun slide extended to the north of the ropes and marker tapes running along its east and west boundaries; although it was hard to say, in hindsight maybe he would have done something about it if he had seen it. He did not in fact notice if there was any tape across the north end of the site. Immediately after the accident he inspected the north area of the fun slide site. He noted that there were holes in the grass which suggested to him that there could have been fence posts inserted in a line across the northern end of the site, roughly in line with the two remaining wooden posts which are visible in photographs 7/3(2/2, 2/18 and 2/19). These holes in the grass were to the south of where the Land Rover was positioned when he saw it. The holes were smaller than the above wooden posts would have made; he thought that they were more likely to have been made by metal spikes. Mr Seditas also saw damage to the plastic of the roofrack at the front near side of the Land Rover. In re-examination, he was asked how far away from the West Sound stand (being stand 39) would a car be if it was parked in the car park immediately to the south of the main tarmacadamed road, and he estimated between 20 and 30 yards. He agreed that the driver of a vehicle approaching the fun slide from the west would be able to see the cable in front of him, and if there was someone on the slide at the time the driver should see such a person, and would also be able to see the catchers.

[7]Archibald Smith was a self-employed businessman who had taken his son (who was then aged 7) to the charity event on 25 May 1997. At the time of the accident he was standing with his son at the base of the tower. His recollection was that they arrived at the race course at about 12 noon, and the accident occurred at sometime between 12.30 and 2.30pm. The first he knew of the accident was when he heard a loud shuddering noise from the tower, and he felt vibration and saw the main cable changing direction. The pursuer then fell from the top of the tower and landed about 6 feet from him. He remembered that there was a barrier that he and his son had to pass to gain admittance to the fun slide - they were within the perimeter of the site, although he did not know the details of the perimeter. They had entered the race course by the gate at the western end, and walked down the main tarmacadamed roadway; he said that there were a few people milling about on that roadway. There was another roadway which ran parallel to the Army fun slide site. Mr Smith said that he and his son had waited for about 10 minutes before the accident, and during this period he was aware of one or two people coming down the slide.

[8]Sergeant Graham Milne was a Sergeant in the First Battalion, The Highlanders at the date of the accident; he has since left the Army after 23 years' service and has civilian employment. He was second in charge of the Army Display Team on 25 May 1997, Sergeant Major Pitchforth being in command. Sergeant Milne had been there in 1996 but took no part in setting up the fun slide that year. He said that he was 100% sure that they set up the slide in 1997 the same way as it had been set up in 1996. When shown photograph 2/3 of No 7/3 of process he thought that the red and white warning tape must have been put there after the accident - he never placed any red and white tape out. He was responsible for pacing out the distance between the rear anchor at the southern end of the site and the front anchor at the north end of the site. He said that there was no warning tape beyond the post which is shown in photograph 2/19. The distance between the wooden posts shown at 2/18 and 2/19 and the northern anchor point was 30-40 paces, or perhaps a bit more. He was asked if there was any warning tape or rope between the two wooden posts, demarcating the northern end of the fun slide site; he answered that he did see some posts and blue rope "lying on the deck" but they were not sticking up - the posts were lying on the ground and the blue cord was also lying on the ground and not joined up. He placed bollards next to the anchorage point, to give a warning that there was something there. He said that after the fun slide was erected, an employee of the fourth defenders went up the tower and checked it, but nobody checked the layout of the site apart from the tower. He was asked what he understood by the term "bunting barrier" and he said that this was a line with little flags on it, and if there was no enclosed area for the fun slide this would be put out to enclose the slide area. This was not done on this occasion because everything was done exactly as it had been done on the previous year. He did not think that there were any posts or cord at the northern end of the site in 1996. He understood that the only access for vehicles in the course of the charity event was by means of tarmacadamed or hardstanding roads, and that there was no question of vehicular access by means of grassed areas. His recollection was that he paced out the length of the main cable at 180 paces between the front and rear anchors. He was confronted with Plan D of No 6/25 of process, which was a sketch plan, not to scale, and prepared by him and which indicated that the distance was 160 paces. Sergeant Milne maintained that 180 paces stuck in his head, and suggested that the plan might be wrong. He said that Sergeant Major Jack taught him 180 paces in 1996, and the fun slide was erected on exactly the same pitch in 1997 as in 1996 - the front anchor at the north end was in exactly the same place as previously "give or take a couple of feet".

[9]Sergeant Milne's recollection of the accident itself was of hearing a thud and seeing the pursuer hitting the ground. Sergeant Milne passed the Land Rover at the main cable but never spoke to the driver. The cable appeared to be resting on the passenger side of the vehicle's roof, where the roofrack joined it.

[10]In cross-examination for the first defender, Sergeant Milne was clear that he would have remembered the blue rope shown in photographs 2/2, 9 and 10 of No 7/3 of process if the Army had put this up. He did not remember ever putting up such a rope. He had no recollection of giving any statement to police officers on the day of the accident, but if he did so he accepted that he would have told the truth and been as accurate as possible. He was shown a document which bore to be a statement taken from him by PC Cooper on the day of the accident (page 10 of No 6/43 of process) in which he is recorded as having stated:

"I had the area extended as it was too small. I did this last year as well. After construction of the tower I then paced 130 paces out to the north of the structure and secured an anchor point there to make the rope taught. I then paced 30 paces out to the south of the structure and made another anchor point where I made the rope taught."

In evidence Sergeant Milne repeated that he had the figure 180 in his head for some reason. In any event, the distance from the anchor point to the tower is always the same, and the tower was in the same position in both 1996 and 1997. Nobody from the fourth defenders made any comment about the positioning of the anchor point, either in 1997 or, as far as he could remember, in 1996. Moreover, nobody in 1997 told him that there might be vehicles in the vicinity of the north anchor point, and he had no reason to believe that there would be vehicle movement there. He understood that in 1997, as in 1996, all vehicular access would be by means of hardstanding roads, and not by grassed areas.

[11]In cross-examination for the second and third defenders, Sergeant Milne accepted that photograph 31 of 7/3 of process would be the view of the driver of the Land Rover as it approached the fun slide, that the red and white tape to the right of the Land Rover in the photograph was clearly visible but there was nothing to indicate danger to the left of this except the bollards marking the rear anchor. He stated that when he was pacing out the slide he stepped over the blue rope which was on the ground. He accepted that people using the slide would be sliding down beyond where that blue rope had been lying, and that there was no warning of this danger. He stated that Sergeant Major Pitchforth was responsible for safety, and Sergeant Milne had had no discussion with him as to where the main cable came to the ground.

[12]In cross-examination for the fourth defenders, Sergeant Milne described the order in which the setting up of the fun slide proceeded. First he would pace out the length of the main cable; then the Army truck would be driven to the rear anchor point to drop off the anchor and associated equipment there; then the truck would be driven to the north anchor point, and again the anchor and associated equipment would be dropped off; then it would return to the proposed site of the tower, where scaffolding would be unloaded, before the truck was moved to the side of the site. Photograph 20 of No 7/3 of process showed the mechanism for placing the main cable under tension. On the day in question it was placed at the standard tension, which was between 1.8 and 2 tonnes; Sergeant Milne did not re-tension the cable before the pursuer's accident. He estimated that it would take an average adult using the slide between 8-10 seconds from leaving the tower until touching the ground. He accepted that he positioned the front anchor at the north end of the fun slide beyond the boundaries of the site as presented to him. Although he could remember the blue rope and poles lying on the ground, he could not remember anything stretched across the north end of the site; he accepted that he could be wrong on this, and then said that he could not dispute it if it was suggested to him that it was roped off. When he was asked why he took no steps to put some form of warning between the wooden posts and the winch block he answered that he was under the impression from the plans which he had been given that nobody would be walking around that area. He especially did not think that there would be vehicles driven in that area - there was nothing at all on the ground to suggest that this was a vehicular route. If anybody was there they would see the bollards. In 1996 there had been bollards at the bottom anchor but it was not an enclosed area; in that year the only areas roped off were the main road and the hardstanding road running parallel to the fun slide.

[13]Sergeant Major Harry Pitchforth was a Sergeant Major in the Royal Scots in 1997. He had completed 23 years' Army service by that time. He had since retired from the Army and obtained civilian employment. On 25 May 1997 he described himself as acting in a supervisory capacity in respect of the Army Display Team at Ayr Race Course. He had not attended previous charity events, and had no prior meetings with the organisers of this event. He did not participate in the setting up of the fun slide. After the Army Display Team had arrived at the race course he went to hut 1 to tell the event organisers that the Display Team had arrived and were about to set up their sites. After the fun slide had been set up, a representative of the fourth defenders inspected the tower. Mr Pitchforth stated that this representative climbed the tower, and looked from the top level across the site. Mr Pitchforth assumed that this was his inspection completed; the inspector said everything was fine. At the time of the accident Mr Pitchforth was in the area of the Army minibus which is shown in photograph 2/7 of No 7/3 of process (and which is just to the left of the photograph 2/2). His recollection of the accident itself was of seeing a member of the public using the fun slide, and sliding down the main cable. He saw the main cable drop violently and out of the corner of his eye saw the Land Rover, which had been driving in an approximately easterly direction. He went to the Land Rover and saw that the cable was caught between the roof and the roofrack. There were 2 men in the vehicle. Mr Pitchforth said that the driver got out of the driver's side, and he told the driver to stay there until the police had arrived. The driver replied "We thought we could get under the wire". It was clear to Mr Pitchforth that the driver was shocked. His recollection was that the east, west and south boundaries of the fun slide site had a cord demarcating them, and he thought that the red and white safety tape (as shown in photograph 2/19) was there before the accident, although he did not recall the Army putting that up. He never saw any bunting. When the fun slide was being assembled he had gone to the front anchor point, at the northern end of the site, to give the team a hand to put the securing pins in the ground. They put bollards up to signify the position of the anchor point, but he did not remember any steps being taken to put warning tape from the two wooden posts shown in photograph 2/22 to the area of the anchor. He agreed that there was no bunting barrier at that end of the site, and when asked whether there should have been one, he answered "that you could say there could have been one".

[14]In cross-examination for the first defender he explained that he spoke to the driver of the Land Rover some 10-15 seconds after the accident had happened, and he repeated that the driver stated "We thought we could get under the wire" or words to that effect. He remembered being interviewed by PC Cooper that day, and agreed that he told the truth to the police and that the accident was fresh in his mind at the time and his statement was accurate. On looking at photographs 2/19 and 2/27 his impression was that the red and white tape may have gone beyond the wooden poles and may have been taken down by the police. His recollection was that before the public were allowed to use the fun slide, a representative from the fourth defenders inspected each level of the scaffolding tower and made some requirements for changes; the representative then had a cursory look around the site from the top of the tower and said that the Army could go ahead. There was never any mention about the front anchor being too far out or wrongly placed. There were signs saying "Danger, keep out" spaced around the perimeter fencing on the east and west sides of the site, although he did not remember any being down at the far end (i.e. the northern end) of the site.

[15]In cross-examination for the second and third defenders, Mr Pitchforth accepted that he left the laying out of the fun slide site to Sergeant Milne, who knew the whole procedure. He had not himself read the standing order relating to the thrill slide for the Scottish Division Mobile Display Team (No 7/5 of process), and was not aware of anyone having read this. However, he considered that all servicemen concerned were well conversant with the procedures. He did not see any requirement for a bunting barrier at the far end of the site - although he gave plenty of thought to the safety of the public, he could see that nobody walked into the roped off area, and the catchers were there to see that people did not enter the area. Looking at photograph 2/31 he considered that the tyre tracks on the grass showed that the Land Rover had moved from left centre to right centre of the photograph. As he was helping Sergeant Milne to put the north anchor in, he said that an executive vehicle drove up from the east and asked them if everything was okay. They said yes, the car drove off, and Sergeant Milne said that that was "the head man". After the accident Mr Pitchforth said that he went first to where the member of the public was stranded on the main cable, and then went straight to the Land Rover. The driver of the vehicle got no further than 15 or 20 yards from the Land Rover, and stayed in the area of the vehicle - Mr Pitchforth stopped him en route to see the pursuer, and told him to stay where he was. Although Mr Pitchforth accepted that he was concerned and upset, he still felt in control, and he disagreed that he had misheard or misunderstood what the driver said to him - he said "I thought I could get under the wire". He also stated that when a person is using the slide, the main cable will sag as a result of the weight of that person.

[16]John McGurk was a member of the Army Display Team on 25 May 1997 and was one of the catchers. He was standing about 70-75 yards from the tower - nearer the tower than the angle of the road shown in photograph 2/2, approximately level with the blue object to the right of the photograph. The other catcher was standing beside him, and both were facing towards the tower. When the accident happened Mr McGurk looked around and saw the Land Rover about 20 feet from him or maybe a little further, and in contact with the main cable. Before the accident he could not recall seeing any other vehicle in the area to the north of the slide or the area around it, although he was more concerned with the slide itself.

[17]PC William Cooper was a constable with 25 years' experience in Strathclyde Police, and was on duty at Ayr Race Course on 25 May 1997. He was informed by members of the public that the accident had occurred, and was the first police officer on the scene. He was responsible for preparing the report to the procurator fiscal which was No 6/43 of process, and he collated the statements attached to it although he did not take all of them himself. He took the statement from Mr Pitchforth and confirmed that Mr Pitchforth told him that the driver said "I thought I could get under the wire". This statement was taken on the day of the accident. PC Cooper had not inspected the fun slide site before the accident, but it was his understanding from speaking to people that the warning tape had been removed by Army personnel at the northern end of the site. He noted the time of the accident at 11.35am; the event had started at 10.00am, although he understood from the police statements that the fun slide had only been open since about 11.00am. He himself had not been at the charity event on previous years, but he confirmed that he took the statement from Graeme McBride (pages 12 and 13 of No 6/43 of process) on the day of the accident, and that Mr McBride stated that "The slide is always set in the same fashion and in the same distance. We set this up at various events and it is always the same." He also confirmed that the statements from Anthony McParland, Lee Penrice and Martin Brown (at pages 14, 16 and 21 of No 6/43) were taken on the same day as the accident, although by other police officers. He confirmed that several of the Army personnel to whom he spoke expressed the view that they had no idea that vehicles were allowed to drive in that area. He confirmed that photograph 2/27 showed where the red and white tape was when he arrived at the site immediately after the accident. He expressed the view that if the driver of the Land Rover had looked towards his left he would have seen the bollards at the north anchor quite clearly. He also thought that if the driver had seen the cable he could have driven around the north of the anchor point (although this would have been a difficult manoeuvre), or he could have turned back, or he could have driven underneath the main cable.

[18]In cross-examination for the second and third defenders, PC Cooper stated that neither he nor any other police officers moved any red and white tape lying on the ground at the northern end of the fun slide site, and that the tape on the west side of the site extended beyond the wooden peg to an iron post just to the right of the Land Rover in photograph 2/2. He confirmed that it was a bright sunny day on the day of the accident. He stated that although the anchor point might not be visible to the driver of the Land Rover, the 2 or 3 bollards around it would be visible to him. He stated that there was a very large crowd that day, which included children, and if he had been concerned with traffic regulation (which he was not) he would have refused to allow vehicles to use the main tarmacadamed road after the event opened to the public. Questioned about the statement from Mary Roy (at pages 26 and 27 of 6/43 of process) he stated that he understood that she viewed the accident from the car boot sale which happened in front of the stands well to the north of the charity event, and outside the race course itself. Although he spoke to the driver and passenger of the Land Rover, he did not take statements from either of them. He stated that feelings were running high after the accident, and Army personnel were angry at the driver of the Land Rover, although he heard no swearing. He advised the Army personnel to move back, and left PC Loach with the driver beside the Land Rover. He saw no other vehicles being driven in the vicinity of the fun slide.

[19]In cross-examination for the fourth defenders, P.C. Cooper stated that the Land Rover was not moved an inch after he arrived at the site. He confirmed that on the west side of the site the red and white tape and blue cord went beyond the wooden stake to a metal spike, and from the metal spike there was a long loose end of tape. He was asked if that piece of tape from the wooden stake onwards would be consistent with previous use going across the north end of the fun slide site (which was pitch 31) and he answered that that was his understanding. Iain Gemmell had told him that the site was taped off on the north side, and the extended tape and loose end were consistent with what Mr Gemmell stated. When he reached the Land Rover, the cable was not still in contact with the vehicle - he saw damage caused by the cable, but it was not actually resting on the car. The damage to the vehicle was shown in photographs 2/29 and 30, and although not an expert he could see no sign of any other point of contact. He estimated that at impact the cable would have been about 2 feet above the driver's direct line of sight. Under reference to photograph 2/31 he stated that when the driver of the Land Rover was at about the point where this photograph was taken, the cable would rise from the ground to his left, and rise across the line of sight to the right. The photographs were taken by a police officer whom PC Cooper contacted, and were taken within half an hour to one hour of the accident. In re-examination, PC Cooper confirmed that the public were meant to park cars in the grass area marked "car park" to the south of the main tarmacadamed road, and from there they would be able to walk between stalls to the other side of that road. He estimated the distance from the nearest point in that car park to the stalls on the north side of that road at about 30 metres.

[20]Sheila Hunter had been employed as an admin manager for the fourth defenders for over 16 years before the proof. She was the event organiser for the whole charity event. She identified No 7/7 of process as a copy of an evacuation plan prepared by the fourth defenders for the event on 25 May 1997, and No 7/1 of process as a copy of a layout plan prepared by the fourth defenders for the same event. She stated that the Army would have been sent a copy of this layout plan, in a smaller version (i.e. A4 size) some time before the event, and would be provided with the evacuation plan (No 7/7) on the day of the event itself. She accepted that there were several differences between 7/1 and 7/7 - for example, pitch 51 appeared on 7/1 but not on 7/7, and on 7/7 pitch 31 (which was the fun slide site) had no markings to indicate boundaries on the east, west or north sides, whereas on 7/1 boundaries had been marked to the north, west and south sides. Miss Hunter stated that she just worked to the layout plan from previous years, and it was not she who had marked the boundaries to the west and north sides of pitch 31. She was shown No 7/6 of process and confirmed that this was the evacuation plan for the same event in 1996. The Army fun slide was marked as 35 on this plan, but it was the same site as that numbered 31 on 7/1. She agreed that in neither of the evacuation plans for 1996 or 1997 were there boundaries marked to show the east, west or north boundaries of the fun slide site. Miss Hunter had not been concerned in organising the event in 1996 - she merely took the plans from 1996 and altered them for 1997, and she accepted that although she could not recall drawing the lines around site 31 it was possible that she had done so. She was at Ayr Race Course on Saturday 24 May 1997 and on that date she described pitch 31 as being basically an enclosed rectangle, with orange and white ticker tape and fence posts all round it. She could not remember any blue rope. She said that Iain Gemmell had laid out the site in the course of the week leading up to the event, and it was completed by Saturday 24 May 1997. On Sunday 25 May 1997 she remembered the Army setting up the fun slide, and that the fence and tape on the south side of the site were down. She could not remember any blue rope. She did not see the far end (i.e. the north end) of the site on Sunday 25 May 1997, but she was clear that the whole site was enclosed on all 4 sides on the previous day. When she was shown her statement (at page 5 of No 6/43 of process) she said that this was given in her office to a female police officer on a date following the accident; she reiterated that she did not see the north end of pitch 31 on the Sunday. She confirmed that the site which had been scribbled over on 7/1 (possibly No 39) was the site occupied by the third defenders, who were providing entertainment including live bands, recorded music and live interviews. On the Thursday before the event Mr Dennis Lilley of the third defenders came to her office to discuss this. He had come to pick up his passes for the event, and he asked her if he could use the route round the back as in previous years. She said that she did not know what he meant - she was not aware of any such route. He said that he was referring to the winter track. Again she did not know where this was, and asked him to show her what he meant. He had a copy of the layout plan and indicated a route starting from the main access at the west end of the main tarmacadamed road, and from there travelling northwards and then eastwards, to the north and east of the unnumbered pitch which lies to the north of pitch 29, and past the north of pitches 31, 32 and 38, then joining the hardcore track which travelled approximately north/south and immediately to the west of site 50, and then down to site 39. She said that Mr Lilley described the winter track as a track made of sand which horses used to train on in the winter. She was quite clear that that was what he wanted to use for vehicular access. Miss Hunter was shown photograph 2/2, and indicated that she understood Mr Lilley to be referring to the sandy yellow coloured track which can be seen beyond the Land Rover, and beyond the white railings which end at a point further from the camera than the Land Rover. Miss Hunter immediately said no to this request. She stated that she said that she was sorry, maybe you have been allowed in the past, but we do not use the back road. Ayr Race Course would not allow the fourth defenders to use any area where the horses train, and "we just don't allow vehicles anywhere else other than on the roads". She stated that she told Mr Lilley that she did not think it was necessary for him to go off the main tarmacadamed road. The busiest area for pedestrians was towards the eastern part of the site, from pitch 54 and eastwards. The busiest time was between 12.30pm and 2.30pm. She told Mr Lilley that he could use the main road up to the first hardcore road on the left side, and then go round to access the third defenders' site on roads already there. She could not remember anything being marked on the plan in this regard. Her impression was that Mr Lilley understood this - he nodded or said okay, and turned to other matters. She said that this was how matters were left with him. When shown photograph 2/2, she stated that the Land Rover would not have reached the position shown in that photograph by driving along the winter track, as the white railing was between the vehicle and the winter track. She said that someone was on the main gate to stop people driving vehicles into the site, and that the Land Rover should not have been driving across the grass area leading to the north end of site 31.

[21]In cross-examination for the second and third defenders, Miss Hunter said that the Army would have entered their site from the main road, and that it was not necessary for them to follow the same route as the Land Rover. She stated that she had never seen any vehicles in the area inside the winter track. When asked what route would be used by the emergency services to gain access to the third defenders' site she stated that her understanding was that they would just use the main tarmacadamed access road. It was suggested to her that it would be difficult for an ambulance to get there standing the crowds of pedestrians and she stated that the vehicle would probably be escorted. She thought that it would be better to use the most direct route than to go around by the grass area to the north, but it would not be her decision on what route they would take. In previous years she agreed that Mr Lewis Jardine of the Ayr Hospice had been the event organiser and had been responsible for vehicle movements. She agreed that he would be fully conversant with traffic arrangements in previous years. On the day of the accident she was aware that the Army were building the tower at the south end of pitch 31 although it appeared to be shown on the layout plan at the north end of the pitch; she could not remember if the tower had been built at the north end on previous years. She agreed that the fourth defenders expected people who had been allocated sites to keep within the marked area of the site, but she did not check on this. She thought that her meeting with Mr Lilley was on the Thursday before the event, not the Friday, because on Friday they were moving things to the site. She recalled taking a copy of the layout plan from her desk. She agreed that 7/1 of process was a copy of the layout plan and that the words "Iain Gemmell" were in her handwriting although she could not recall writing them, nor could she recall any lines being drawn on the plan. She was confident that the plan was A4 size, and not A3 size (as production 7/1 was) because A4 was easier to copy. She did not think that she had made the hand-written markings on the plan, and she denied that the line going around the top of the plan from the main access gate to pitch 39 was a possible vehicular access route - that is what Mr Lilley described as the back road. She knew that individual artists and bands needed to be brought in and out to the third defenders' site, although she was not aware of the need to bring equipment to and from the site. She agreed that the third defenders would need to get access for this purpose, and that Mr Lilley told her that he had got around the back in previous years, but she said that he would not be allowed to use this route from the race course point of view. She said that she could not allow people to drive wherever they wanted to, she had to exercise control, and there was no reason why they could not drive along the main tarmacadamed road. She did not think that this caused a greater danger than driving in an open area where there were no people, if the vehicle was driven at a snail's pace.

[22]Miss Hunter accepted that the Land Rover had to pass a checkpoint to get into the site, and that it was a matter for the fourth defenders which route it should take. She accepted that it was Mr Lilley's intention that the Land Rover would go round by the grass to the north of the site, but she said no, he should use the main road, and if that was too busy, he should use the road by the back. She denied saying to him that he should use the emergency services route. She said that Mr Devlin was in charge of the western gate, and he would have been briefed by Mr George, who would in turn have been briefed by Miss Hunter of anyone she expected to gain vehicular access to the event. Her position was that Mr Lilley had asked to use this route, and she said no, use the road. It was put to her that she did not say that he could not use the north route, and she accepted that she did not say this. However, she observed that no-one else was allowed to use that area, and she did not see why he should be the exception. It was again put to her that she did not tell Mr Lilley that he could not use the route he intended to use, and she replied that she did not say "Do not" - she said use the road. She thought he understood from her he should use the road. She was aware from being at the event in previous years that the third defenders came back and forward to their stand, but she had always seen them use the road - she did not see them using the grass. However, the third defenders' means of access in previous years had not been her responsibility.

[23]In cross-examination for the fourth defenders, Miss Hunter stated that her meeting with Mr Lilley lasted 5 or 10 minutes. She agreed that she did not say "You shall not drive that way, you shall drive this way", she thought she said basically this is where you would go to get to your site (i.e. by the main road) and this is an alternative (i.e. by using the smaller hardstanding roads). She reiterated that she did not think that the lines drawn on 7/1 of process were drawn by her - she had no reason to draw the roundabout at the bottom left of the plan, and she would not have drawn a triangular arrow such as that shown in the car parking area to the south of site 15. She observed that there was no reason for any driver to go onto the area to the north of site 52 - she said that the ground mounds up there and is quite rough. She agreed that Mr Jardine was the event organiser in 1996, at a time when he was employed by the hospice, and after the 1997 event he became employed by the fourth defenders. She had no involvement in the 1996 event, although she had had some involvement in previous years. In the time between her seeing site 31 surrounded on all 4 sides by warning tape on Saturday 24 May 1997 and the time of the accident she had no reason to know that the north side of the site had been opened up and the warning tape taken down. She stated that the toilet blocks in the grassy area in the north west quadrant of the site (numbered 30 in No 7/6 of process) were in the same position in 1997, and that the arrangements for pedestrian entrance and vehicle entrance shown on that production were also the same in 1997. She stated that Mr Ferguson, who inspected the Army fun slide, was employed by the fourth defenders; he was their approved scaffolder, and he had qualifications in scaffolding.

[24]In cross-examination for the pursuer, Miss Hunter estimated that there were between 10,000 and 15,000 people attending the event, and perhaps 500 cars. She stated that if a car was parked at the arrow on 7/1 just to the south of site 15, it would be between 40 and 50 yards to the third defenders' stand, but people could get access between each of the stands marked to the south of the main road, and there were no barriers between these stands. She accepted that the fourth defenders took occupation of the race course from the Monday before the hospice fun day, and that they had general responsibility for the safety of the public on the site. She was asked what steps were taken to provide for traffic safety, and she stated that stallholders were allowed into the site to unload, and told that after 9.30am their vehicles had to be parked in the car park or beside their stall. She was asked how stallholders would know this, and she stated that she wrote to all stallholders about one week before the event, with a copy of the layout plan and stall number, and with this information. She knew that the Army fun slide comprised a temporary tower held in place with hawsers, and that it was important that these hawsers were protected from traffic. If she had known that there was no bunting or warning tape at the north end of the Army site, pitch 31, she stated that she would have been concerned and would have asked Iain Gemmell to extend the tape to the bottom of the site. However, she was not told of this. She was asked if there was any system for the event organisers to check the stands before the event was opened to the public, and she stated that "we had to check the stands for the licence, before the public were allowed on the site". The people that she said did this on behalf of the fourth defenders were Mr Gemmell and Mr Cuthbertson. In re-examination she was asked if Mr Gemmell or Mr Cuthbertson reported to her that they were concerned with the perimeter tape on the fun slide site, and she replied that they did not. She reiterated that it was never part of the planning for the event that there would be vehicles in the grass area at the north west and north of the event, she never saw vehicles there, and she was never told by anyone else that vehicles were there. She agreed that the Army should have received the evacuation plan (No 7/7 of process), and that this showed their site not enclosed by tape. She did not agree that the Army might have thought that Mr Ferguson had a wider remit than just the scaffolding of the tower, because he signed the scaffolding certificate. The Army would have been told before the event that stallholders would have to have their vehicles off the site by 9.30am on the day of the event, and the Army would not be told about any occasional permitted vehicular access after that time. She confirmed that Mr Gemmell and Mr Cuthbertson had the opportunity to view the Army site before the event opened to the public.

[25]Mr Iain Gemmell was an employee of the fourth defenders in 1997, and was their "setting out engineer" tasked with setting up the charity event at Ayr Race Course prior to the event. This was the first year that he had been involved in this. His task included marking out every plot. One of Mr Gemmell's first tasks was to set out the stalls on the ground, by means of wooden fence posts and red and white ticker tape. This took him between two and three days, and he had completed this task about ten days before the charity event on 25 May 1997. In order to do this he was given a plan with individual stalls, names and numbers on it. He said that Sheila Hunter would sort out any queries with stallholders who needed to change their stall or required a larger site, or she would refer them to him if there were problems. He had never met Miss Hunter before he began to prepare for this charity event. He was given a plan which was roughly A3 size, which had been prepared by the technical services department of the fourth defenders. He was shown No 7/1 of process, which he said was similar to the one which he set out. He was able to identify the Army fun slide as plot 31, although he did not remember its dimensions. He was shown the witness statement which is at page 7 of No 6/43 of process, and did not remember speaking to the police officer, but he would have done his best to be accurate at that time. He accepted that looking to the plan, the ratio of the length of the west side to the north side of plot 31 was 6.5:1 and not 5:1, and he could not explain how the pitch could be described as 100 metres by 20 metres. He agreed that if the ratio of 6.5:1 was correct, and if the site was 20 metres wide, the length would be 130 metres. He did not ask the Army what size the fun slide would be, nor did he request Sheila Hunter to obtain this information. He did not remember actually marking out plot 31, but he knew that he had marked it out - he could have used metal poles and blue rope, but his recollection was that he used wooden pegs and red and white ticker tape. Some pitches might have had both. He disagreed that the blue rope at the northern end of the plot was lying on the grass, and not erected on fences or metal poles, when the Army arrived - although it was possible that someone could have taken this down in the intervening days after he had erected it, he did not see why they should do this. He could not assert definitely that the blue rope was there when the Army arrived, but he knew that the boundary had been extended to the north, because he looked at the site after the accident and he could see the marks in the ground where his posts had been. The posts had gone, but the holes were there. He could not say who had removed those posts. He was very clear that nobody from the third defenders had spoken to him about vehicular access to their stand.

[26]In cross examination for the second and third defenders Mr Gemmell accepted that he was on site on 25 May 1997 to extend or change sites if need be, and he could have supplied more tape and more rope if requested. The purpose of the tape was to let the public know that they should not go that way. His recollection was that the rope and red and white tape on plot 31 extended as far as the wooden posts shown in photographs 2/23 and 2/27 of No 7/3 of process, and then extended across the north of the site between those two posts. Looking at photographs 2/27 and 2/31, his view was that someone had taken the red and white tape off the northern boundary together with one of the metal poles supporting it, and used this to extend the western boundary. To his recollection he did not put the iron post in the ground in the position in which it is shown to the left of the Land Rover in photograph 2/27 (or to the right of the Land Rover in photograph 2/31). In cross examination for the fourth defenders he accepted that if he said to the police that the site had been taped and marked out on Wednesday 21 May that would be correct, and he remained of the view that it was taped off on its north side, although it is possible that the rope did not go across that side. There was no need for anyone else to go onto this pitch after he had set it out until the Army arrived on the Sunday morning. When he gave his statement to the police he was not in his office and did not have the plan in front of him, so he estimated the dimensions of the site by eye. There was no problem in extending this stand if required - the north end of the site was "dead ground" and not being used, and if he had been asked to do so he would have got more tape and extended it.

[27]In cross examination for the pursuer Mr Gemmell stated that he arrived at the fun slide site no more than three minutes after the accident. He later discovered that the anchor for the fun slide was beyond where the tape was. He was asked what he would have done if he had known of this before the accident, and he said that he would have made sure that it was secured off. He said that Sheila Hunter wanted everything set up before the public entered the event, and that there would be no reasons for people to be driving about. He could not disagree that cars should be parked in the car park or by their stalls by 9.30am, and that the public arrived at about 11.00am. A building control inspector had inspected the site on the day before the event and again on the Sunday morning, and no concerns were raised about plot 31. He himself did not check plot 31 after the fun slide was set up, because he did not consider there was any need to do so. He expected that if anyone wanted to use land outside the marked boundaries of their site they would have let Barrs know, who would refer the matter to him. Mr Cuthbertson's role at the event was as an employee of the fourth defenders - his role was effectively as backup manager, and he would obtain more men if required. It was not Mr Cuthbertson's role to check out every pitch for safety before the event began. In re-examination Mr Gemmell agreed that the Army would not know that he had more tape, nor would they know who he was or what his job was; however, he stated that his understanding was that the Army had been given details of their pitch, and if there were any problems they ought to have contacted the fourth defenders. He accepted that the site as set out was not large enough for the Army's purposes, and he had no reason to think that anyone from the fourth defenders told the Army to come and see him if they wanted to extend the site. When it was put to him that Miss Hunter thought that he and Mr Cuthbertson were carrying out an inspection of the pitches as set up on the Sunday morning before the event began, he said that he did check to see that everything was okay, but he did not check the dimensions of site 31. He did not remember seeing any pegs or warning tape moved before the accident. He accepted that it was part of his job on the day of the charity event to check that everything was satisfactory, including that boundary tapes were in position. He did not see that the warning tape was down at the north end of the fun slide site.

[28]Mr William Devlin was procurement director for the fourth defenders and had been employed by them for about twenty one years until the date of the proof. His task on 25 May 1997 was to oversee the operation of the main west gate giving access to the site. There were assistants who took money from pedestrians and from car drivers, and he was overseeing the operation. The layout at the west end of the site was very much the same in 1997 as was shown on the evacuation plan for 1996 (No 7/6 of process). There was a gate barring passage of vehicular traffic, which gate was positioned across the main tarmacadamed road running from east to west across the plan 7/6 of process. This gate or barrier was situated on approximately the position of the dotted line across the main road on 7/6, immediately after the second E of the word "Entrance", and was to prevent unauthorised vehicles entering the charity event after it was open to the public. Mr Devlin said that in the late morning of 25 May 1997 a Land Rover Discovery with the third defenders' logo on it drove up to the gate across the road. There was a driver and one passenger in the vehicle. He spoke to the driver and tried to discourage him from taking his car into the site. He tried to persuade the driver to take the car to the car park, where space had been set aside for stallholders who arrived late, close to the stalls immediately to the south of the main tarmacadamed road. Mr Devlin said that the driver was very arrogant and insisted that he should be allowed through the gate to get to his stall because he had stuff in the back of the car. Mr Devlin was very clear that neither the driver nor the passenger said that they had permission from anyone to go through the gate into the site. Mr Devlin pointed out the number of pedestrians in the area and told the driver to proceed with caution on the road ahead. The driver made no comment about this; Mr Devlin opened the gate for him, the driver drove forward a short distance and stopped, and Mr Devlin closed the gate. As he turned round after doing this he was surprised to see the car veering off to the left across the grass, on a route which Mr Devlin would not have expected him to take. The car drove to the west of the toilet blocks - between the gate and the toilets. There was nothing that Mr Devlin could do about it then. He was very much surprised when the Land Rover went off to its left - the driver had given no indication that this was his intention. No other vehicles had turned left into that area that day. He stated that the procedure for emergency vehicles was that they would be escorted by stewards, and would be directed to drive along the main tarmacadamed roadway.

[29]In cross-examination for the second and third defenders Mr Devlin confirmed that the front row of the public car park was left vacant for the disabled and for stallholders who required access to their stalls. Nobody had told him that the third defenders would be bringing people in and out of the event during the course of the day, and he had received no specific instructions regarding the third defenders' vehicle. The driver of the Land Rover did not like what he was telling him, and pointed out that he had equipment in the back of the vehicle. Mr Devlin did not see him give any sign indicating that he intended to turn to his left, and he did not think that it was possible that such a sign was given and he did not notice it. Although the road was very busy with members of the public, if the driver had proceeded with caution, going very slowly, it would be possible. Any emergency vehicles would have used this road and would have required to travel more quickly, hence the need for an escort. In cross-examination for the fourth defenders Mr Devlin confirmed that the driver's window was open, and if the driver had wanted to attract his attention he could have done so. If the driver had shouted to Mr Devlin he would have heard him. No signal was given by the driver while Mr Devlin was looking at the car. Mr Devlin had done the same job at the western access gate on previous charity fun days for the Ayr Hospice; on no previous occasion had he ever seen a vehicle use the route which the Land Rover Discovery used. In cross-examination for the pursuer Mr Devlin accepted that it was important to keep vehicles away from the wires and hawsers supporting the Army fun slide tower.

[30]Mr John Manderson was a forensic scientist specialising in accident reconstructions; he had been asked to investigate the accident on 25 May 1997, and confirmed that No 31/3 of process was his report on the matter. Pages 11 and 12 of that report gave an accurate summary of his qualifications and experience. He confirmed that he had copies of the photographs (No 7/3 of process) when he wrote his report, and that there were differences between the arrangements on the day of the accident and the reconstruction which he saw on 22 February 2002 in York. He was of the opinion that the tower would have been visible from hundreds of metres around the site, and should have been obvious to the second defender driving the Land Rover. He was also of the view that the main cable would have been obvious, as would any person sliding down the slide, and the two catchers. Indeed, if the two catchers were standing together, rather than 20 metres apart as at the reconstruction which he saw at York, they would be visually more obvious. The bollards marking the anchor point would also have been obvious. All these hazards would have been obvious through the car's front windscreen. The cable would be clearly visible through the front windscreen until the car was about two to three metres before the wire. Under reference to the Meteorological Office report (No 31/2 of process, which was agreed by paragraph 7 of the Joint Minute for the parties, No 58 of process) he observed that the weather was mainly sunny with good visibility. The driver of the car was facing east; at about 11.35am the sun was at an elevation of approximately 52 degrees and on a bearing of approximately 145 degrees, under reference to exhibit 4 on page 8 of the Meteorological Office report. He considered that the top of the tower would be in the vision of the driver without looking up. The sun's elevation would not prevent him seeing the top of the tower or the person on the slide or the catchers or the main cable. He was asked if the presence of the sun at that approximate angle or bearing would have an influence on his ability to see the cable, and he considered that it would not - if anything, he considered that it would make it easier for the driver to see the cable, by reason of a contrast in colours, and the tower would not be in line with the sun. He estimated that the overall stopping distance for the Land Rover on this grass surface would be about 8 metres at 10 miles per hour (which included 3 metres braking distance), and about 15 metres at 15 miles per hour (which included about 7.5 metres braking distance).

[31]In cross-examination for the second and third defenders Mr Manderson accepted that he had never visited the site, had not seen the wire in question, and that it might be slightly less than one inch in diameter. He adhered to his view that the main cable would be clearly visible to the driver of the Land Rover, whether above or below the horizon, and that the two catchers would also be within his vision. He agreed that he would have expected the red and white marker tape to have carried on for the whole length of the fun slide, and that it was dangerous not to extend this tape for the whole length of the slide. He declined to accept that this was an accident waiting to happen - although there was nothing to warn a driver approaching a main cable at the point of the collision, the tower, wire, catchers and north anchor were all visible. He estimated that it would take a person approximately three seconds to slide down the slide - he would be surprised if it took as long as eight seconds, but if it took eight seconds this would give a driver ample opportunity to see the person on the slide and avoid a collision with the cable. He agreed that it would be better for the red and white tape to extend the whole length of the slide, and that a driver might assume that there was no danger to the left of the end of the red and white tape. The post-accident position of the Land Rover would be about 17 metres from the anchor point, which would have been in the driver's view until the very last moment before the accident. It was pointed out to him that the charity event was very busy, with between 10,000 and 15,000 people attending, and he was asked if he would recommend vehicles to drive on the roadway in this situation; he replied that if he had been in the second defender's position, he would have used the tarmac road unless instructed not to. He disagreed that the sun would have impeded the driver's visibility - he said that the tower would certainly be totally visible to him, as would the wire as he drove towards it. In cross-examination for the fourth defenders' Mr Manderson agreed that the tower and slide was one of the most obvious things on the racecourse that day. He agreed that when the main cable came into contact with the Land Rover it would assist in slowing the speed of the vehicle, but he believed that the second defender did begin to brake before the collision with the cable. The braking effect of the cable was a small component in slowing the vehicle, by comparison to the application of the brakes. For the vehicle to stop in 3 metres, either it was being driven more slowly than 10mph or the driver had begun to think about braking before the impact. He was shown photographs 2/2 and 2/31 and asked if the army vehicles would have obscured a significant area of the slide; he replied that they would not, nor would they obscure the catchers from the line of sight of the driver of the Land Rover. If the accident occurred after 11.30am, the sun would be on a bearing of south south east, and progressing further towards the south. The bollards at the northern anchor point would be within the line of vision of the second defender as he approached, initially through the windscreen, and thereafter through the side window.

[32]In cross-examination for the pursuer Mr Manderson was shown photograph 2/31 and was referred to the tyre track marks on the grass which indicated that the Land Rover had steered slightly to its right; he agreed that the cable was higher at its right than its left, and that these tyre marks were consistent with an adjustment by the second defender to take account of the cable.

[33]Mr Dennis Lilley had been a disc jockey working for the third defenders in 1997; he no longer worked for them at the date of the proof. On 25 May 1997 he was responsible for the entertainments being provided by the third defenders on the site - disc jockeys, live bands, recorded music and the like. He had been involved in this task for the previous 2 or 3 years. He stated that the method of getting artists to and from the third defenders' stand was the same in each year - a vehicle would take them to the stand entering the racecourse by the west gate, then by means of the grass area to the west and then to the north, behind all the stands, to the third defenders' stand. In 1995 and in 1996 he had brought people onto the site in this way on about 3 or 4 occasions. The access arrangements had been made with Mr Louis Jardine in 1995 and 1996; he had been employed by the Ayrshire Hospice. Mr Lilley thought that he drove the vehicle in 1996, although he could not be sure about this. He said that he had had a meeting with Sheila Hunter of the fourth defenders at a portabcabin beside the centre, on the Thursday or Friday before 25 May 1997. At this meeting he was given a site map, which was probably smaller than A4 size. He had a discussion with her about access, he said that he took it that access would be the same as in previous years, and she asked what that was. He explained under reference to the map. Production 7/1 was not the same size as the map they had - he thought that this was an enlargement of the map they had. Sheila Hunter wrote the words "Iain Gemmell" on the plan, but Mr Lilley thought that he had possibly drawn the lines on the plan. He thought the lines were probably all in the same hand, it could have been him or Sheila Hunter or both. The line going around the top of the plan was the route he had taken in previous years - the main roadway was full of pedestrians, and in previous years Mr Jardine had told him that after 10am no vehicles were allowed on that road. Until 1997 he had not noticed any army fun slide. Sheila Hunter did not know very much about what route they should use. The terrain was uneven grass; Mr Jardine had told them that they could use this route if they took the widest possible route. They could drive in second gear - perhaps at 10mph. He denied ever having said to Sheila Hunter that they would drive along the winter track. Mr Jardine had in previous years agreed that they could use the route around the back of the site used by emergency vehicles. After he had left the meeting with Sheila Hunter his understanding was that access would be gained via the northern route, round the back of the stalls, to the third defenders' stand.

[34]On 25 May 1997 Mr Lilley was the passenger in the front seat of the Land Rover. They arrived between 11am and noon. They were not taking any performers with them, nor did they have any electrical equipment in the car - they probably had prizes and presents in the back of the vehicle. Asked why they did not drive into the car park, Mr Lilley explained that they wanted the vehicle with the third defenders' logo sitting at the side of the stand, partly for advertising purposes and partly so that it would be convenient to collect artists from the railway station or wherever they had to be collected from. When they arrived at the west gate, he said that the guy at the gate knew where they were going. They indicated to the left, got waved on and then turned left. He did not think that the vehicle stopped; the driver's window was opened, and the second defender spoke to the steward, thanking him and saying that they were just going to their stand. After they went through the gate they turned left and followed the dirt training track and then followed about 10-20 feet from the running rail beside the winter track. He estimated that they were in second gear and in no hurry - their speed was a maximum of 10mph. He could not remember if he noticed the army slide before the accident - all he remembered was a crunch, and the second defender stopping and jumping out of the vehicle and saying "we've snagged something" and then saying "I think someone's fallen off that tower" and going off towards the tower. Mr Lilley was not paying much attention to what was happening before the accident, and did not see the cable - the first he knew of anything untoward was hearing a crunching sound. He said that the second defender was about 20 feet in front of him going towards the tower, and that he followed the second defender. By the time the second defender got to where the pursuer was lying on the ground, Mr Lilley was beside him. Several soldiers came up and were behaving aggressively, so Mr Lilley ushered Mr Toomey away. He returned to the Land Rover, and 6 or 8 army personnel came up to them and wanted to move the vehicle. The second defender moved the Land Rover back 5 or 10 feet to take the tension off the cable. Paragraph 2/2 showed the vehicle's position after it had been moved back. Mr Toomey was "shell-shocked" and could not string two words together.

[35]When asked why they could not see the wire he stated that it was brand new silver cable, and the sun was immediately in front of them. The cable was masked by the sun, and there was a blue colour filter for a couple of inches across the top of the Land Rover's windscreen. Mr Lilley did not hear Mr Toomey say that he thought he could get under the wire; he did not remember anyone telling him to stay by the vehicle. When the vehicle snagged the cable, he thought that there was nobody between them and the tower - there were no pedestrians, and no army personnel. Shortly after the accident Mr Bill Barr of the fourth defenders drove up in a Volvo, using the same route as the Land Rover had used, and then left. Two other Barr Construction vans also came up, one from a northerly direction and one in the opposite direction, being driven Iain Gemmell. Mr Lilley was not aware of the red and white tape before the accident. He had used exactly the same route in 1996, and had not been aware of the army slide. He agreed that the tyre tracks on the grass in photograph 2/31 were probably those of the Land Rover; he thought that they were heading for the concrete road beyond the army slide. He did not recall any people walking about on the hard standing paths to the north of the main road.

[36]In cross-examination for the fourth defenders, Mr Lilley stated that you could not expect well known performers to walk across from the car park. Moreover, there was a fence separating the car park from the main road, and if the Land Rover was parked in the car park, performers would have to climb over this fence. Mr Lilley was confident that there was a fence there, and doubted if there was any direct access from the car park. He maintained that there were starting stalls (for horse races) and an all weather gallop at the west end of the white railing beyond the Land Rover, and these meant that it was not possible to drive beyond that white rail. He thought that the area in the north west corner of the site was probably pitted, and there may have been tractors in there in the winter months which may have caused deep holes in the terrain. He could have said to Mr Toomey to stay away from that part of the site; although it was 5 years ago, he would probably have told him to steer further out from the rail. He agreed that the tower of the army fun slide was one of the most prominent things on the site, and he probably did notice it in previous years. He did not think that there was a main cable there in previous years - he would have hit it, or noticed it. However, he agreed that it could have been there. Somebody told him that in 1996 the tower was the other way round (i.e. at the north end of the site) but he agreed that if that had been the case he would have had to pass very close to the tower, and he had no recollection of doing so. He observed that he did not even remember where he drove yesterday, but he was confident that he used the same route in 1996 as in 1997. When they came to the west gate he did not think they stopped - he probably indicated that they were going left. He asserted that as they approached the steward he indicated to the left; however, he then stated that he probably did this, and when asked if he knew whether he did or not, he said that he did not know. He did not remember any conversation with a steward, nor was there any gate there - there might have been a crash barrier which was open, but they did not stop. They just said thank you and went on. The steward gave no advice about taking care going along the road - he just shouted "Willie open the gate. Take your time going round." However, when questioned about this, Mr Lilley stated that he was surmising this, and that he made it up out of his head. With regard to the area of windscreen tinted blue on the Land Rover, he accepted that this could not be seen on photograph 2/28, but he surmised that there might be something like an ambulance windscreen which dulls the sun. He accepted that the sun was not directly in front of them, but it was not behind them either. He accepted that the sun was quite high; when he mentioned the sun to the police officer after the accident he was standing outside the vehicle, but he probably could not have seen the sun when he was in the passenger seat. He said that the main cable was brand new and silver coloured. He also stated that his memory was not the best in the world. When asked if Sheila Hunter was new to the job she was doing, he answered that he would anticipate so. He agreed that she did not know the route which he had taken on the previous year, and that he told her about the route. It was most probable that the markings on the plan were put on by him, to explain what he meant by the route previously taken. He denied that he would use the words "winter track"; if he was going to describe this, he would have used the words "all weather gallop". He did not think that it was possible that she had told him that he should use the grid of made up roads to the north of the main road - he thought that from a safety stand point the quicker they got off the main road the better. He did not recollect Sheila Hunter telling him to use the roadway - if she had done so he would have suggested that they stuck to the arrangement agreed in previous years. He thought they could not have gone up the hard-standing road beside the army fun slide because people would be queuing there for the fun slide. When it was suggested that they could have parked in the car park and carried things from there to the third defenders' stall, he said that the vehicle was wanted by the stall for branding, and to go to fetch anyone from the railway station.

[37]In cross-examination for the pursuer Mr Lilley again asserted that there was a fence between the car park and the stalls, and that to his knowledge there were no gaps in that fence. He was not paying particular attention before the accident - he might have had his eyes shut, although he doubted this. In cross-examination for the first defender he stated that he received no written instructions from Sheila Hunter for the 1997 charity event regarding the deadline that all vehicles had to be off the site before 9.30am. If such a letter had been sent, it would have been sent to someone else in the third defenders' organisation. It was never given to him. He said that after the accident he looked to his right towards the tower, and there was nobody between him and the pursuer on the ground. He denied that there were two catchers, and he denied that there was anybody on the fun slide (although he went on to say that he did not know if there was anyone on the slide). He suggested that the two catchers might have been with the pursuer. He asserted that the starting gates to which he had referred were not visible on the aerial photograph (No 7/8 of process), although they would be at the bottom of the white rail, nearest the camera. He accepted that it might have been possible to drive further out to the left, and beyond the white rails. When referred to the third line of his police statement (page 28 of No 6/43 of process) he stated that the words "go behind the stalls" were incorrect, and he would have corrected them if he had seen them. Moreover, going behind the stalls is a racing term, which does not mean the same as going beyond the starting gate. When asked again about the tyre tracks on the grass in photograph 2/31, he agreed that they suggested that the Land Rover was moving to its right and that it was heading for the concrete road to the right of the vehicle in this photograph. When it was suggested that this was just supposition on his part, he replied that he might have said our stall is along there - he did not know this, but he might have done so. He agreed that if Mr Toomey was heading for the corner of the hard-standing road at the north east side of the army fun slide, he was not following the route marked on the location plan (No 7/1 of process), which goes well to the north of this area before cutting down to the third defenders' stand. He agreed that the route marked on the plan gave the widest berth to the stands, and that driving to the corner of the road was not giving stand 31 the widest berth. He accepted that Mr Toomey was not following the route marked on the plan. He denied that Sheila Hunter had said that she did not want him to use this route, and he denied that the steward at the western gate had directed them to go down the main road. He was absolutely certain that at their meeting on the Thursday or Friday before the event, Sheila Hunter gave him permission to use that route. In re-examination he confirmed that in the third line of his police statement (page 28 of 6/43 of process) he was referring to the starting stalls and not to the numbered pitches at the event - he pointed out the starting stalls to the police officer, but "behind" was a slip of the tongue.

[38]Alan Toomey, the second defender, was the driver of the Land Rover Discovery. He was employed in 1997 as a freelance presenter by the third defenders; by the date of the proof he was the director of programming for the third defenders. He had been involved as a presenter of the roadshow at the event in 1995 and in 1996, and his role in 1997 was the same as it had been in 1996. He had been in the Land Rover as a passenger in previous years; vehicular access to the site had been obtained in those years in the same way as in 1997. There had never been any problem getting access to the third defenders' stand by this route in 1996. In 1996 there had been a gate at Craigie Road, but once they had gained access to the racecourse there was no further gate. Mr Toomey said that in 1996 he entered by a route similar to that which he used in 1997 - he crossed the race track, turned left, and then turned right along the back of the exhibition tents. For the charity event on 25 May 1997 he attended a meeting on 19 May in the third defenders' offices, chaired by Gordon McArthur, at which access arrangements were discussed. He was told that access would be by the usual way, and he was shown a map. He recognised No 7/1 of process as the map which he saw at that meeting, and he remembered Iain Gemmell's name written on the map. Dennis Lilley had this map with him at the meeting on 19 May, and Gordon McArthur had a copy of it. Mr Toomey was sure that the lines drawn at the top and bottom of the plan were there when he saw it and it was explained to him that the access which he should take would be by means of the line drawn to the north of the event. He was also told that only a limited number of vehicles could use this route, that any vehicles not transporting artists or equipment should go to the car park to the south of the event. When Mr Toomey arrived at the racecourse on 25 May 1997 he entered by the western gate; there was a security guard at the entrance. He had no conversation with this person, nor did he stop. He just indicated that he would turn left, and the steward or security guard waved them through. He had been instructed previously not to go along the tarmac road after the event started. He was going to the third defenders' stall, not to the car park, because he was taking equipment to it. He turned off the tarmac road, and followed the inner circle of the race track, turning right towards where the third defenders' site was. It was a very bumpy grass field; the first thing he saw was a metal pole about 20-25 yards to the right side, with a piece of broken tape dangling from it. He thought nothing of this, and did not think it signified anything. He saw nothing beyond the tape. He then heard a thump, and immediately applied his brakes. He saw nothing to his left or right, and so got out of the car and saw a metal cable trapped on the vehicle roof. He was absolutely sure that he did not see the cable before this. He stopped immediately he heard the thump, and thought that he had hit something underneath the car. He saw the tower to his right, and people at the bottom of it. He ran to the tower to see what had happened, and found a crowd of soldiers at the base of the tower and a person on the ground. He was deeply concerned and presumed that someone had fallen from the tower. He did not speak, but returned immediately to the vehicle. On his return 3 or 4 soldiers were standing beside the vehicle, and two were wrenching the cable from the roof rack. They were angry, and ordered him to move the vehicle back. He did so, moving it back about 10 feet, straight back in the same line as he had been driving. He denied ever saying that he thought he could get under the wire. He was asked why he did not see the metal cable, and he answered that it was a very bright sunny day and he was heading straight into the sun. He was not anticipating that a cable would be stretched across the top of the field. He was shown photograph 2/31 of No 7/3 of process, and confirmed that there was a post with red and white tape on it to the right of the Land Rover. He said that the tape was not attached to either pole before the accident - it was lying on the ground, with one single end fluttering. He thought that it was obviously a warning. He did not know of the existence of the winter track. If the accident had not happened he had intended to drive towards the third exit on his right side on No 7/1 of process (i.e. the hard-standing road lying in a north/south direction which passed site 50 and ended at site 39). When he got back to the vehicle all that he said was "I was driving" and nothing more. Mr Toomey was quite sure that Dennis Lilley remained with the vehicle, and did not accompany him to the tower. When Mr Toomey returned to the car, Mr Lilley had got out of it but was still on the other side of the vehicle. The soldiers were not in the best of moods, and were shouting and angry. The police arrived a matter of minutes after he had moved the vehicle backwards; they took his statement and then escorted him from the area. He saw no other vehicles when he was driving along before the accident, but about 10 or 15 minutes after the accident he saw a private car he knew was Mr Barr's vehicle, which drove past. He also saw a van belonging to the fourth defenders in that area, but it was turned away by the police. He was driving at between 12 and 15mph and still in third gear when the accident happened; it was a very bumpy field and he was watching the ground. He did not anticipate obstacles in the air.

[39]In cross-examination for the fourth defenders Mr Toomey was quite sure that the meeting at the third defenders' offices was on 19 May 1997, and he was quite sure that the plan No 7/1 of process was at that meeting. It was put to him that Dennis Lilley and Sheila Hunter had given evidence that this plan was only given to Mr Lilley on the Thursday or Friday before the charity event, and Mr Toomey could not explain this. It was the only plan that he had ever seen, and he was sure that it had the name Gemmell on it. The purpose of the plan was to show the third defenders' site, and how to gain access to it. It was his intention to follow the route as marked on the plan 7/1, and to cut back via site 50, not rejoining the hard-standing road until a point adjacent to site 50. He understood that once they had crossed over the main race track they were to turn left along the inside of the race track, so that he would never be on the tarmacadamed road. There was a single steward standing beyond the point at which he turned left, but he did not drive past that steward before taking to the grass. It had never been suggested to him that he should give the exhibition area as wide a berth as possible, nor was he ever instructed to follow the inner rails of the race track as close as possible. He did not see the army fun slide tower when he entered the race course, and was not aware of it on the previous year. He was asked who decided that this vehicle could use the north route by the grass, rather than going to the car park on this occasion, and he answered that it was the official branded Westsound vehicle. He was quite clear in his denial that he did not speak to Mr Devlin or anyone else in the area of the western entrance, and he denied that anybody tried to persuade him to go to the car park, and then tried to persuade him to go along the main road. There was no conversation and the steward waved him through in the direction which they wanted to go. There was no barrier that required to be opened, and he did not have to stop the vehicle after any gate or barrier was opened and then shut. If the toilet blocks were there, he agreed that he would have passed them on his right-hand side. It did not occur to him to go to the left of the white railing shown in photograph 7/8 and photograph 2/31 of 7/3 - he believed that he should be driving in the grassy area about 40-50 yards wide between the event stands and the rails, and he drove the car down the middle of this area. He had never been told to stay to the left-hand side nor to hug the rails. He had been told that once the event was open to the public he was not allowed to use the main tarmacadamed road - that was why they had to use the alternative route. He had been told to take this route by Mr McArthur and Dennis Lilley. Under reference to photograph 2/27 he was quite sure that the red and white tape was not attached to the spike next to the Land Rover; he was quite sure that no such tape was attached before the accident. It was just a pole with some tape on it not attached to anything. It did not occur to him to look to his right at that stage; he was looking ahead. The police arrived maybe 10 minutes after the accident; he agreed that the vehicle travelled slightly less than 10 feet from the point of impact with the cable to the point that it stopped. It was put to him that Mr Manderson's expert evidence was to the effect that if he had stopped in 3 metres he must have been aware of the cable and started applying the brakes; Mr Toomey replied that if he had seen the cable he would definitely have stopped, and he would have made no attempt to go underneath it. He insisted that he made no attempt to drive under the cable. He never spoke to any Sergeant Major, nor indeed to any soldier. He was a passenger in the third defenders' car during the 1996 event, and he was sure that the car had taken the same route as he took in 1997; he did not remember seeing a similar cable on that occasion. When he saw the red and white tape flapping from the metal post, it did not occur to him to look to his left or right to see what it signified. He never saw the bollards at the north anchor before the accident, although he noticed them after the accident. Under reference to paragraph 2/31 he accepted that although he did not see the bollards there was nothing to stop him from seeing them.

[40]In cross-examination for the pursuer Mr Toomey accepted that No 6/33 of process was a statement which he gave and signed on 17 November 1997, and that there was no mention in that statement of his intention being focused on the grass in front of him; he also accepted that there was no mention of this in the pleadings on his behalf. He agreed that he had a duty to keep a careful lookout, and that if he had been keeping a careful lookout he should have seen the metal cable. He did not see the tower, he did not see the cable, he did not see the bollards and he did not see the catchers before the impact with the cable. He was adamant that he did not at any stage say that he saw the wire and thought he could drive under it; his memory was clear, and he denied being shocked at the time and that he could not string one word after another. He gave a statement to the police, although he could not remember whether the police officer who took this was male or female.

[41]In cross-examination for the first defender Mr Toomey was sure that the police questioned him after the accident and he gave them a statement. He denied that he was speechless, and if Mr Lilley had formed that impression he was wrong. He was confident that he would not have said anything about thinking that he could get under the cable to a soldier, because he would have known not to make such an admission to a soldier. He would have said this to the police if it was true, but not to soldiers. At the meeting on 19 May Mr McArthur said nothing about having received written instructions from the event organisers that vehicles should not move about the site after 9.30am. Mr Lilley had told Mr Toomey that it was a condition of using the northern route to the third defenders' stand that they should give the event stands the widest possible berth. If he had been told to drive slowly on this route, he would have driven slower than 12-15mph . He reiterated that before the accident there was no red and white tape extending to the right of the metal post to the right of the vehicle in photograph 2/31. He agreed that he barely gave that tape a second thought, and it never occurred to him that the dangling piece of tape might extend to the rails on his left. He was not suggesting that he was driving directly into the sun, but he suggested that his visibility was impaired by the sun - they were certainly heading towards where the sun was. He did not have the sun visor down on the Land Rover. At the point of impact he was not heading for the near corner of the hard-standing road - if the accident had not occurred he would have continued on the grass parallel to the road, following the hand-drawn line on No 7/1 of process. He accepted that the tyre tracks shown on photograph 2/31 were probably his, and that they veered slightly to the right. He denied that this was in order to get under the wire; he denied that he misjudged the height of the car because he forgot about the roof rack; and he denied that he did not make any allowance for the wire sagging with the weight of a man using the slide. He could not explain why he veered to the right, but he did not attempt to go under the cable. He stated that he could have gone to the left side of the white rail - there was nothing to prevent him from doing that. He agreed that if he had gone to the left of the white rail this would have given the event pitches the widest possible berth. He admitted that he hit the cable, and caused the pursuer the injuries that he has suffered.

[42]In re-examination he stated that if there had been red and white tape extending from the metal pole to the white rails he would not have carried on - it would have blocked his route and warned him to stop.

[43]Anita Loach or Mackie was a police officer on duty at Ayr Race Course on 25 May 1997 together with P.C. Cooper. A member of the public ran up to them and told them of the accident and they ran to the army fun slide site. One of the soldiers pointed out the Land Rover and said that it was involved. Mr Toomey and Mr Lilley were close to the vehicle, and soldiers and members of the public were in the vicinity. She spoke to Mr Toomey, and she took notes at the time of what he said, although this was not in the form of a statement. Her notes were timed at 11.50am. Her notes of what Mr Toomey said included the following:

"We had permission from Barr Construction to go round the back of the event to gain access to the roadshow" ... "Lines strung down - tape not across last section - believed it safe to carry on. Didn't see any wire or obstruction. Only doing 10-15mph. Heard bang - thought gone over something on ground. Stopped immediately. Looked to right and saw something fall from scaffolding - didn't realise was person till I went up. Then I saw the wire."

She also took notes of what Dennis Lilley said immediately afterwards, which included the following:

"We had permission from Barr Facilities (Sheila Hunter) to use same route as last year - go behind the stalls and make our way to stand. I didn't see any obstruction. Route was not taped off. I heard a bang and Alan stopped immediately. I didn't know what had happened."

She was shown photograph 2/2 of 7/3 of process, and recalled both the blue rope and the red and white tape. She did not believe that the piece of red and white tape with the bend in it was there when they arrived. The police asked for the area to be taped off. She did not remember seeing any tape at the Land Rover when she arrived.

[44]In cross-examination for the fourth defenders she was shown photograph 2/27 and stated that she thought that if there had been tape in the path of the vehicle she would have noted it, but she could not say whether the tape shown in this photograph, which would have been to the right of the vehicle, was there or not. She could not say one way or another. She would not have expected any police officer to pick up loose ends of the red and white tape and tie them together - this would not be proper practice, and she did not do this. When she spoke to Mr Toomey and Mr Lilley they were standing together, within earshot of each other. If either Mr Toomey or Mr Lilley had pointed out things and asked her to note them down, she would have noted them in her book. In cross-examination for the first defender she stated that she was not herself a horse racing enthusiast, and she was sure that Dennis Lilley used the words "behind the stalls".

[45]Gordon McArthur was the Customer Service Manager of Score Digital Ltd, a wholly owned subsidiary of Scottish Radio Holdings. In 1997 he had been Programme Director with the third defenders since 1991, and had been with the company since 1981. He had been involved in the third defenders' organisation for the charity fun day in 1995, 1996 and 1997. His involvement required him to be present on the day of the event. By 25 May 1997 arrangements had been made for the necessary equipment to be put on site by contractors, but it was necessary to take artists to and from the third defenders' stand by shuttle vehicle. On the first year of his involvement, he had discussed the need for this access with Louis Jardine and had agreed with him a route which the shuttle vehicle would be permitted to take. This involved crossing the all weather gallop, turning left after the main public entrance and following the perimeter track until a metal road was reached, when the car would turn right down to the third defenders' pitch. He had himself driven this route on a couple of occasions in 1995; in 1996 Mr Lilley drove the vehicle. The terrain on this route was rough and rutted, and the maximum speed which could be attained was 10/15mph. He gave instructions that any member of staff not using the shuttle vehicle should use the main car park. The reason that the shuttle vehicle had to be so close to the stand was that artists arrived with clothing and the like, and it was not practicable for them to go from the car park through the stalls and across the track to the Westsound stand. In 1997 he received a letter and passes from the fourth defenders, and a map showing the third defenders' pitch. He arranged a meeting on Monday 19 May to discuss various points that needed to be cleared up with the fourth defenders as organisers of the event. This meeting was internal to the third defenders - no one from the fourth defenders was present. At this meeting he asked Dennis Lilley to have a meeting with Barr's event organiser to sort out details (which included a request for crash barriers, an increased size of pitch and securing of the power supply, as well as clarifying the access route for the shuttle vehicle). He understood from Mr Lilley that his meeting with Barr's event organiser was on the Thursday or Friday before the event. After Mr Lilley's meeting he reported to Mr McArthur on the various points discussed. With regard to access Mr McArthur's recollection is that Mr Lilley told him that he had agreed with Barrs regarding the access route and the use of the shuttle vehicle, but he did not recollect being told any details of the discussions. His impression was that the route was to be the same as in previous years. He could not remember if he saw any plan before the accident. The location plan, No 7/1 of process, was put to him and he could not remember if he had seen this particular plan before the event; he remembered that two plans were provided to the third defenders, and that one of these came with the passes about one week before the meeting on 19 May. This plan was similar to No 7/1, but without the hand-written lines drawn on it, and without handwriting, and with slightly different text in the bottom right corner. He agreed that what they had at the meeting on 19 May was a layout plan without any indication of routes, and with a different project description. He learnt of the accident shortly after it happened, and went to the army fun slide at about 12.15 or 12.30pm. He saw Alan Toomey standing by the Land Rover talking to two police officers, one male and one female. At that time he saw a vehicle being driven by Mr Barr of the fourth defenders on the far side of the Land Rover. This vehicle approached from the west, and did not stop. About 10 minutes later he saw a Barr Construction Sherpa van using the same route, but it was stopped by the police and turned back. Mr McArthur had no concerns about the route which Mr Toomey was taking, as it was no different from the route that Mr McArthur had taken on previous years.

[46]In cross-examination for the fourth defenders Mr McArthur said that in previous years Mr Jardine had given permission for vehicles to use a route to the north of the event for organisers' vehicles, emergency vehicles and the third defenders' shuttle vehicle. It may have been implicit that these vehicles should give the event as wide a berth as possible, but there was no specific stipulation to this effect. He understood the northern route to stay on the grassed area until the third hard-standing road, and then to take that road to the Westsound pitch. This involved driving to the far end of the hard-standing road which is visible in photograph 2/31 and which is going away from the camera. Mr McArthur confirmed that at the internal meeting on 19 May 1997 the layout plan No 7/1 of process was not before the meeting - the plan which he had had no freehand lines on it. It was his recollection that after Dennis Lilley's meeting with Sheila Hunter, he had no further real discussion with Mr Lilley, who just returned and said that everything was alright.

[47]In cross-examination for the first defender Mr McArthur remembered having a telephone conversation with Mr Jardine before the 1995 charity event and Mr Jardine told him to turn left after the entry to the race course and follow the white rail until he met a metalled road coming from the north. That metalled road was the third intersection running north and south. He regarded these directions from Mr Jardine as sufficient. Westsound had been attending events at the racecourse site for about 10 years, and had knowledge of the layout of the metal tracks. He was asked if there was anything to stop Westsound from using the car park to the south of the main track, and he replied that, apart from inconvenience, there was no reason, although some of the artists were high profile, well known pop groups who would have attracted attention from fans. He accepted that neither Mr Toomey nor Mr Lilley would attract that attention. Mr McArthur received the standard letter and flyer from the fourth defenders perhaps a couple of days before 19 May 1997; this would possibly have included the instruction that vehicles should be off the site by 9.30am. Mr McArthur did not think that there was a substantial difference between the route marked in freehand on No 7/1 of process and the previously agreed route. He was quite clear that the agreed route involved following inside the white rail; it was put to him that Mr Toomey had stated that it was possible to drive to the left (or north) of the white rail, and he stated that his recollection was that Mr Toomey was wrong in that respect. It was his recollection that when he saw Mr Barr driving in the vicinity after the accident he was not to the north of the white rail. His recollection was that Mr Barr drove between the Land Rover and the white rail. He stated in re-examination that he recalled that Mr Barr drove between the Land Rover and the anchor point marked with bollards.

[48]Mr Forbes Ferguson was, at the date of the proof, a scaffolding instructor at the National Construction College in Glasgow. In May 1997 he was employed by the fourth defenders looking after scaffolding at a variety of their sites. He was an advanced scaffolder, with qualifications and considerable experience of site management and safety inspections, always concerning scaffolding. The fourth defenders employed a large number of scaffolders, and he was in charge of them all. On the morning of 25 May 1997 he was asked to look at the army fun slide scaffolding tower after it was finished. He was asked to do this by Mr Jim Crombie, the fourth defenders' safety manager. He was asked to carry out an inspection and check the paper work presented by the army, consisting of scaffolding test certificates. This paperwork was all in order. He then inspected the scaffolding tower, to check that it was level and plum. He made certain requirements as to the internal handrails, for the safety of people climbing the tower. The sergeant who had the scaffolding paperwork came with him up the tower. His inspection involved nothing but the tower, and he was satisfied as to the safety of the tower. This was well within his expertise.

[49]In cross-examination for the pursuer Mr Ferguson confirmed that he checked the guy wires which were shown in photograph 2/7, because they were part of the tower, and it was important to see that they were in the right place and holding the tower upright. He checked the 8 guy wires and the tower itself, but the main cable and its anchor points were not his responsibility. He did not have the qualification to check the torque of the main cable itself, and he never went to look at the front or rear anchor points. He accepted that the security of the tower depended on the cables leading from it not being struck by vehicles, but he had no responsibility for this.

[50]In cross-examination for the first defender Mr Ferguson stated that the main cable was under tension when he inspected the tower, and he accepted that the cable affected the stability of the tower. If the tension of the cable was not correct, the tower would not be plum. If the tension was correct, it supported the tower. He checked each anchor point for the guy ropes, but he did not check the anchor points for the main cable because the tower was plum and straight. In cross-examination for the second and third defenders he was asked whether it was important to check that the guy rope anchors were in positions where they would not be damaged by vehicles, and he replied that they were in places where he did not think any vehicles would be. He was not aware of permission having been given for any vehicles to drive to the north of the site, and nobody within the fourth defenders had discussed this with him. He had been given a layout plan of the site, which was similar to No 7/1 of process without the hand-drawn lines on it. He stated that he had nothing to do with the layout of the site. He was asked whether he took any steps to check that the whole fun slide was within the site allocated for it, and he replied that he did not. He was asked if he checked whether the whole of the army slide was within the marked area, and he replied that the back anchor was within that area, but he never went to the front anchor as this was not within his remit. He was asked if it was important to check this, and he replied that it might be important for someone, but not for him. He agreed that it would be important for someone in the fourth defenders' organisation. He did not check it, and he was not instructed to check it. If he had seen that the anchor was outwith the marked area, he would have asked for it to have been barriered off. He agreed that although most people got access to the charity event from the west, some came from the Safeway car park to the north, and there were a lot of people moving about on the hard-standing tracks and all over the showground. He agreed that it was important to make sure that people did not come into contact with the supports for the tower, or with the slide, but he took no steps to check the warning signs or the tape at the far end of the fun slide site. He also agreed that it was important that someone should have checked that.

[51]The final witness was Mr David George, who was employed as the fourth defenders' Personnel Manager at the date of the proof, and had been employed as their Security Manager in May 1997. He had not been involved in previous charity events; his responsibilities in the May 1997 event related to security matters on site, and the stewarding of the site. The western entrance from Craigie Road was the only access for vehicles onto the site, and also allowed pedestrian access. He stated that the charity fun day opened to the public at 10.00am and all stall holders were instructed that their vehicles should be removed by 9.30am and parked in the car park. On entering the western entrance to the site, there was a gate across the main tarmac road just beyond the vehicle entrance to the car park. This was a physical barrier, although he was not sure if it was a gate or a metal crash barrier. The horizontal broken line below the words "pedestrian entrance" parallel to the main tarmac road on production 7/6 was a fence made up of metal crash barriers; although 7/6 related to the 1996 event, it accurately showed the layout of the western part of the site in 1997, and in particular the gate and barriers. The function of the fencing between the gate and the pedestrian entrance was to prevent pedestrians from entering without paying. His understanding of Mr Devlin's function was that he was in control of the Craigie Road entrance, and was supervising the stewards taking money and would deal with any vehicles which might require entry. He confirmed that if someone approached in a vehicle and did not want to go into the car park, they would be physically barred from entering the site by the crash barrier, and someone would have to open this. They would have to ask permission, and he would expect that it would be Mr Devlin who controlled access through this barrier. He thought that requests to take vehicles through this barrier would be unusual - he would expect Mr Devlin to tell drivers to park in the car park and then walk to their stall. That was part of his briefing that morning. He confirmed that in 1997 the toilets were in the same position as shown on 7/6.

[52]In cross-examination for the second and third defenders Mr George stated that he was never told by Sheila Hunter that the Westsound vehicle would require to come into the site from time to time during the day; he was not aware of any specific vehicles that would require access, although there were some vehicles such as caterers vehicles that would need access. The arrangements for such vehicles were that a steward would walk with the vehicle along the main road. Very few people walked on the grassy area to the north side of the event - they tended to use the main roads. It was put to him that if one had to drive a vehicle to the Westsound site, a safe way to get there would be by means of a route to the north of the event; he replied that he did not know if that was a safe route, but it was certainly an unrecognised route. It was clear that any vehicles coming onto the site should come along the main road. He was in radio contact with both Sheila Hunter and Mr Devlin, and he was aware of no agreement that a Westsound vehicle should be allowed access to the Westsound site by any northern route across the grass. He stated that he was not responsible for marking out the individual sites, nor for checking that on the day itself events stayed within their marked sites. He accepted that it was important to check this, and he thought that the people who were responsible for checking this were the people who laid out the site, namely Iain Gemmell and Mr Cuthbertson of the fourth defenders. It was put to him that this was a matter left to chance, and he disagreed, reiterating that Mr Cuthbertson and Mr Gemmell were responsible for this.

[53]In addition to the parole evidence of the above witnesses a Joint Minute (No. 58 of Process) was lodged agreeing certain aspects of evidence.

III.Assessment of the evidence and determination of the principal areas of factual dispute

[54]I formed the impression that most of the witnesses were doing their best to be truthful. Despite the fact that there were some areas of difference in the evidence in matters of detail, for the most part I took the view that this was a result of the passage of time, the accident having happened almost 6 years ago. I found most witnesses to be credible and reliable. However, I was unable to rely on the evidence of either Dennis Lilley or Alan Toomey. I found that Mr Lilley tended to exaggerate his evidence, and frequently asserted positively that things had been said or events had happened which, on closer examination, were mere supposition or speculation on his part. His evidence, and that of Mr Toomey, was frequently vague and evasive. Mr Lilley's evidence conflicted with that of Mr Toomey and both their evidence conflicted with that of other witnesses, such as Mr Devlin, Sheila Hunter and Sergeant Major Pitchforth, whom I found to be credible and reliable. I did not feel able to attach weight to the evidence of either Mr Toomey or Mr Lilley.

[55]The following were the principal areas of factual dispute:

(a)Arrangements before the 1997 event for vehicular access to the site

I accept that in the 2 years prior to the 1997 event, when responsibility for organisation rested with the Ayr Hospice, Mr Jardine appears to have agreed that the third defenders would be permitted to use a route from the west gate to their stand by turning left just after the west gate and keeping as far to the west and then to the north as possible, and therefore keeping as far away from the event stands as possible, and then travelling southwards down the third hardstanding road to reach their stand. This exception to the normal rule that no vehicles should be allowed into the site after it became open to the public appears to have been justified by the third defenders' need to ferry artists, with their clothing and gear, to and from their site on various occasions during the event. Although Mr Jardine did not give evidence in this regard, I accepted the evidence of Mr McArthur on this point. However, I was not satisfied that there was any barrier or other reason to prevent this route going to the north of the white rail which is shown behind the Land Rover in the photographs. I consider that the route taken by those driving the third defenders' shuttle vehicle in 1995 and 1996 must have been to the north of the route driven by the second defender when the accident occurred in 1997.

The fourth defenders accepted that they were responsible for regulation of vehicular and pedestrian traffic at the 1997 event, and this was the first occasion on which they had been so responsible. With regard to the discussions between Mr Lilley and Sheila Hunter on the Thursday before the 1997 event, I preferred the evidence of Miss Hunter to that of Mr Lilley. There was a discussion between them as to what route the third defenders' vehicle should take to gain access to their stand. On balance I consider that the hand-drawn lines on No 7/1 of process were placed on the plan at that meeting by Mr Lilley, in order to indicate his preferred means of access to the third defenders' stand, although the words "Iain Gemmell" were written by Miss Hunter. Although Miss Hunter conceded that she did not give a direct negative instruction to Mr Lilley along the lines "do not use the grass route to the north which you have indicated", I am satisfied that she made it quite clear to Mr Lilley that the route which the third defenders' vehicle should use in order to get to their stand was to drive along the main tarmacadam road until its junction with the first hardstanding road to its left, and then follow the hardstanding roads round to the third defenders' site. Mr Toomey was clearly mistaken when he said that he saw the location plan (No 7/1 of process) with the handwritten lines drawn on it when he attended the third defenders' pre-event meeting on 19 May, as that meeting pre-dated the meeting between Mr Lilley and Miss Hunter. If Mr Lilley reported to Mr McArthur that Miss Hunter had agreed to the third defenders' shuttle vehicle using the route over the grass as had been used in 1995 and 1996, this was wrong.

The fourth defenders sent out their standard letter to the army display team, as to all the other stall holders, approximately one week before the 1997 event. The letter stated that all stall holders' vehicles must be parked in the car park, or parked beside their stand by 9.30am on the day of the event. The army had no reason to believe that the grassed area at the northern end of their fun slide site was a vehicular route, nor that there was any specific reason for vehicles to be driving there during the event.

Although Miss Hunter stated in evidence that she would have briefed Mr George about any vehicles which required to obtain access through the west gate into the site during the course of the event, and that Mr George would have briefed Mr Devlin about this, she did not in fact do so. I accepted Mr Devlin's evidence that nobody had told him that the third defenders would be bringing people in and out of the event during the course of the day, and that he had received no specific instructions regarding the third defenders' vehicle. I also accepted Mr George's evidence that he was never told by Sheila Hunter that the Westsound vehicle would require to come into the site from time to time during the day.

(b)The boundary tapes/rope at the army fun slide site

I accepted the evidence of Iain Gemmell that he erected boundary markings around all four sides of the army fun slide site on about Wednesday 21 May 1997. These boundary markings consisted of plastic red and white warning tape, which was supported partly by wooden posts and partly by metal poles or spikes. Although recollections as to the blue rope varied, I am of the view that all four sides of the fun slide site were probably also demarcated with blue rope on 21 May 1997. All four sides of the fun slide site were demarcated with the red and white plastic tape on posts or poles when Sheila Hunter saw the site on Saturday 24 May 1997. Not all of the plans which were provided to the army showed the site demarcated on all four sides. The army would have received the evacuation plan in 1996 (No 7/6 of process) which appears to contain no demarcation of the boundaries of the fun slide site. The evacuation plan for the 1997 event (No 7/7 of process) appears only to have boundaries demarcated at the southern and south eastern corner of the site. The layout plan for the 1997 event (No 7/1 of process) appears to have boundaries demarcated on the north, west and south sides, but only a small boundary at the southern part of the east side.

By the time of the accident there was no warning tape or blue rope across the northern end of the fun slide site, nor on the east or west sides towards the northern end. It is apparent that the fun slide site as laid out by the army extended further to the north than its northern boundary as shown on No 7/1 of process. That there had been some form of tape and/or rope on metal poles or spikes across the northern end of the site, approximately along the line indicated on No 7/1 of process, is supported by the evidence of Mr Seditas and Mr Gemmell, both of whom noted holes in the ground in this area which suggested to them that poles or posts had been removed. There was no direct evidence that anyone saw army personnel removing this boundary tape and supporting poles, and I believed Sergeant Milne when he stated that he himself did not move them. However, it was clearly necessary for them to be moved to enable the army fun slide to be erected in this position, the army had a reason to move this tape and posts, and I can see no reason for anybody else to have moved them. On the balance of probabilities I am satisfied that the red and white warning tape and supporting poles were moved by army personnel on the morning of Sunday 25 May 1997 before the fun slide was set up, and the tape (or a substantial part of it) was moved round to extend the western boundary of the site in a northerly direction, to the position that can be seen billowing in the wind beyond the wooden pole in photograph 2/27, and to a point just to the right of the Land Rover in photograph 2/31. No "bunting barrier" was erected by the army display team at the fun slide on 25 May 1997.

(c)Inspection of the fun slide site before the event opened on 25 May 1997

Both Sheila Hunter and David George thought that Iain Gemmell and Mr Cuthbertson would check all the stands before the public were allowed on the site. There was ample opportunity for the fourth defenders to inspect the whole of the army fun slide site before the event opened to the public. Mr Gemmell did not consider that there was any need for him to check the boundaries of the site. He did not in fact check the boundaries at the north end of the fun slide site. He did not regard it as part of Mr Cuthbertson's duties to check the stands. Mr Cuthbertson did not give evidence.

The army did not inform the fourth defenders that the fun slide as set up exceeded the laid out boundaries of the site, nor that there was no warning tape or rope marking off the northern parts of the east and west boundaries of the site, and the northern boundary of the site. Neither the army nor the fourth defenders took any steps to erect any form of warning barrier around the northern part of the fun slide.

Although Mr Ferguson inspected the scaffolding tower of the fun slide, his responsibilities were confined to the stability and safety of that tower. He was not responsible for the wider safety of the fun slide site, and in particular he was not responsible for seeing to it that the northern part of the fun slide site was adequately marked with tape or rope and safety warning signs. He did not in fact inspect the northern end of the site.

(d)Events involving the third defenders' Land Rover on 25 May 1997

Although the fourth defenders had agreed that the third defenders' Land Rover could be brought onto the site while the public were there in order to bring artists to and from their stand, I am not satisfied that there was any good reason for the Land Rover to be brought onto the site by Mr Toomey and Mr Lilley at the time of the accident. They were not bringing any artists to the site, and there was no suggestion that they were carrying particularly heavy equipment in the vehicle. There was no reason on this occasion why the Land Rover could not have been parked in the main car park to the south of the event, in the area reserved for stall holders beside the stands just to the south of the tarmacadamed road. I did not accept Mr Lilley's evidence that there was a fence which precluded access from the car park to the event. The vehicle bore the third defenders' logo, and would therefore serve the purpose of "branding" or advertisement if parked beside the third defenders' stand, but this was not a reason for departure from the normal rule that stand holders' vehicles should not move about the event after the public were admitted.

I accepted Mr Devlin's evidence in its entirety regarding the events at the west gate. I accepted that Mr Devlin told Mr Toomey to use the car park, and when Mr Toomey insisted on gaining access to the site, Mr Devlin told Mr Toomey to use the road. When the gate or barrier was opened, Mr Toomey gave no indication to Mr Devlin that he was going to turn left. He then turned left (across the principal route for pedestrians between the pedestrian entrance and the event) and drove at between 10 and 15mph to the west of the toilet blocks and thence in an approximately easterly direction to the south of the white fencing. There was no obstruction or obstacle to prevent him from driving to the north of the white fencing.

As the Land Rover was driving in an approximately easterly direction towards the fun slide, the tower of the fun slide was clearly visible (and indeed had been clearly visible since before the Land Rover entered the west gate). The bollards marking the northern anchor of the slide were clearly visible, as were the two soldiers standing as catchers. The main cable itself was also visible, and (at least shortly before the accident) so was the member of the public sliding down the fun slide. Having regard to the elevation and bearing of the sun, I am not satisfied that there was any question of the sun being in Mr Toomey's eyes or dazzling him or otherwise causing him not to see the obstructions in front of him.

I accepted the evidence of Sergeant Major Pitchforth that approximately 10-15 seconds after the accident happened Mr Toomey said "we thought we could get under the wire" or words to that effect. Words to this effect were included in the statement which Sergeant Major Pitchforth gave to PC Cooper shortly after the accident. I do not consider that Sergeant Major Pitchforth invented this, nor do I think that there was any real risk of his misunderstanding what Mr Toomey was saying. Further support for the view that Mr Toomey saw the cable and was trying to get underneath it is provided by the tyre tracks which are visible on photograph 2/31. Both Mr Toomey and Mr Lilley (as well as several other witnesses) accepted that these tyre marks were probably made by the Land Rover immediately before impact, and they suggested that the Land Rover was turning towards its right. The cable of the fun slide was lower to the left and higher to the right as the Land Rover approached it. This manoeuvre was consistent with an intention to "get under the wire", as Mr Manderson observed in his evidence. Mr Manderson's evidence about braking distances also suggested that Mr Toomey was aware of the wire and had begun to apply his brakes before the impact. There was no other reason for the vehicle to turn to its right at this point - despite Mr Lilley's supposition that it may have been heading for the near corner of the hardstanding road, Mr Toomey's evidence was clear that he intended to follow the route as marked on plan 7/1, and not rejoin the hardstanding road until a point adjacent to site 50. Taking all these factors together, it seems to me more likely that the second defender did indeed see the wire and intend to drive under it, than that he failed to see the tower, the catchers, the cable, the member of the public on the cable and the bollards at the anchor.

IV.Liability of each of the Defenders to the Pursuer

[56]I am satisfied that each of the defenders is liable to make reparation to the pursuer for the loss, injury and damage which he sustained as a result of this accident.

[57]With regard to the first defender, the pursuer's case in summary was that the slide was his place of work and was provided as plant and equipment. In order to provide him with a safe place of work and safe and suitable plant and equipment, the army ought to have ensured that the main cable was not in an area where there was a risk of pedestrian or vehicular interference; they ought to have ensured that the whole of the main cable was within an area that was cordoned off and in particular that any part of the cable which was below the height of a pedestrian or vehicle was within that area. The pursuer avers similar duties of care against Sergeant Milne, for whom the first defender was vicariously liable. He ought not to have erected the slide beyond the pitch marked for it without consulting the fourth defenders or informing them. He ought not to have permitted the operation of the slide until the whole of the main cable was within a cordoned area, and he ought to have reinstated the tape cordoning off the area. He ought to have erected signs or warnings outwith the cordoned area. In response senior counsel for the first defender submitted that there was no act or omission on the part of army personnel which constituted a breach of duty to the pursuer - the accident was not a reasonably foreseeable consequence of any such act or omission. In any event, if there was any breach of duty by army personnel, it was not the causa causans of the accident. In support of his submission on foreseeability, he urged me to find that Sergeant Milne did not move the red and white warning tape at the northern end of the site, and moreover there was no reasonable expectation on the part of any army personnel of vehicular traffic at that part of the site. The army had received the standard letter from the fourth defenders advising them that vehicles should be moved off the site, or parked beside the stands, by 9.30am at the latest, and there was no evidence of other vehicles having driven in the vicinity of the slide before the accident. With regard to causation he pointed out that Mr Ferguson of the fourth defenders did inspect the army site and expressed no reservations about it; no inspection was carried out by Mr Gemmell or Mr Cuthbertson. The negligent act which caused the accident was that of the second defenders; if the army were in breach of any duties, such breach did not directly cause the accident.

[58]With regard to foreseeability, I accept that the tape at the northern end of the site as marked out by Mr Gemmell was not removed by Sergeant Milne himself, but I am satisfied that it was there before the army came onto the site, and that it was moved by a member of the army team. Although I accept that the army had been told that stall holders' vehicles should be parked in the car park or beside their stands before 9.30am, it does not follow that there might not be emergency vehicles, event organisers' vehicles, or other vehicular traffic which might pass occasionally in the vicinity of the army slide. Indeed, the evidence was to the effect that there was such occasional vehicular traffic. The risk of injury from a vehicle or pedestrian colliding with the slide was in my view an obvious and real risk. Although it does not appear that Sergeant Milne or Sergeant Major Pitchforth applied their minds to this risk before the accident, with the benefit of hindsight Sergeant Major Pitchforth agreed that it would have been better to have ensured that the whole of the slide was cordoned off. If the red and white warning tape had extended all the way to the north end of the slide, the possibility of a vehicle or pedestrian colliding with the slide would have been greatly diminished. Although there were breaches of duty by the other defenders, and although these breaches of duty were a substantial contributory cause of the accident, I am satisfied that the army personnel owed the duties of care relied on by the pursuer, that they breached these duties of care, and if they had not breached these duties the accident would not have happened. Those in charge of the army display team ought to have realised that the slide was being constructed in an area extending beyond that area marked for it by the fourth defenders. They ought to have advised the fourth defenders of this, and seen to it that the red and white marker tape was extended so as to enclose the whole of the northern end of the slide. If for any reason this was not practicable, they ought to have erected warning signs alerting pedestrians and drivers of the hazard. In the result, I am satisfied that the Ministry of Defence were in breach of the duties of care which they owed to the pursuer as his employer, and moreover that Sergeant Milne (for whose actings and omissions they are vicariously liable) was also in breach of the duties of care incumbent on him.

[59]The pursuer sues the second defender as driver of the vehicle, averring (a) a failure to keep a proper lookout and avoid colliding with the main cable and (b) a failure to drive the vehicle safely by attempting to drive under the main cable knowing of the minimal clearance at the point of impact. The second defender accepted in cross-examination that he had a duty to keep a careful lookout, and that if he had been keeping a careful lookout he should have seen the cable. He maintained that the accident was caused by his failure to keep a proper lookout, and not by any error of judgement in deciding that he could drive under the cable. As indicated above, I formed the view that the accident was probably caused by a deliberate decision by the second defender to drive under the cable. However, at least in a question of liability towards the pursuer, it seems to me that the matter may be of academic interest. I am left in no doubt that the accident was caused by fault of the second defender, and that he is liable to the pursuer in damages.

[60]The third defenders are sued as employers of the second defender. There was no dispute that the second defender was working in the course of his employment with the third defenders at the time of the accident. The third defenders are accordingly vicariously liable for the second defender's acts and omissions.

[61]The pursuer makes a separate case against the third defenders for a failure to instruct the second defender not to drive on the grassed area but rather on the tarmac road. Senior counsel for the third defenders submitted that the evidence indicated that permission had been given in previous years and was given again. As indicated above, I am satisfied that Sheila Hunter made it sufficiently clear to Dennis Lilley in her meeting with him that the third defenders' vehicle should not obtain access to their stand by means of the grassed area. Although she accepted that she did not give an express prohibition along the lines of "you shall not drive over the grassed area", I am satisfied that she made it clear to Mr Lilley that the route to be taken by the third defenders' vehicle was by means of the main road and the hardstanding side roads, and not by the grassed area. Mr Lilley did not report this to Mr McArthur, nor to Mr Toomey, so no blame can rest with either of them in this regard. However, Mr Lilley was an employee of the third defenders at the material time, and it was he who represented the third defenders at the meeting with Sheila Hunter. His knowledge of Miss Hunter's instructions about access must therefore be deemed to be the knowledge of the third defenders. While it may make little difference in a question of liability toward the pursuer, I am accordingly satisfied that the pursuer has established his additional case against the third defenders.

[62]The fourth defenders were occupiers of the whole site at the material time, and the pursuer's case against them is based on their duties of reasonable care in terms of the Occupiers Liability (Scotland) Act 1960. The pursuer avers that they were in breach of their duty (a) by failing to ensure that there were prominent signs prohibiting access to the grassed area by motor vehicles, (b) by failing to ensure that the boundaries of the army fun slide pitch were adequately marked or were reinstated if altered and (c) by failing to ensure that the main cable was within the area set out by Mr Gemmell or at least within a cordoned boundary, by means of a reasonable inspection of the boundaries of the army pitch. There was an additional case of fault against the fourth defenders in the pleadings, based on their vicarious liability for Mr Ferguson who inspected the scaffolding tower and who, it was averred, ought to have inspected the boundaries of the site before certifying it as safe. Senior counsel for the pursuer expressly departed from this case in his submissions. (Senior counsel for the second and third defenders, who had adopted the pursuer's averments in this regard, maintained that Mr Ferguson was at fault in certifying the site as safe without having checked that the whole cable was within the cordoned off area. I am satisfied that Mr Ferguson was not responsible for inspecting the boundary markings of the site, and that his granting of a safety certificate related only to the structure of the tower. His expertise was in scaffolding, and I do not consider that he was at fault in not inspecting the north end of the site to see that safety signs or red and white warning tape enclosed it all).

[63]Although there were no warning signs prohibiting access to the grassed area by motor vehicles, I do not consider that the fourth defenders were at fault in this respect, standing the arrangements which they had made for vehicles to be parked beside their stands or in the main car park by 9.30am, and the fact that Mr Devlin was at the main west gate and directed Mr Toomey to gain access to the third defenders' stand by means of the main tarmacadamed road. Standing these arrangements, it does not seem to me to be reasonably foreseeable that Mr Toomey would ignore Mr Devlin's instructions and without warning turn left across the grassed area. However, it is clear from the evidence that there were occasionally vehicles which drove over the grassed area in the vicinity of the army slide, including vehicles belonging to the fourth defenders. It was in my view reasonably foreseeable to the fourth defenders as occupiers of the whole site that vehicular or pedestrian impact with the cable would result in persons entering upon the site suffering injury or damage. Sheila Hunter accepted that if she had known that there was no warning tape at the north end of the army site, she would have been concerned and would have asked Iain Gemmell to extend the tape to the bottom of the site. She also stated that the fourth defenders had to check the stands for the licence, before the public were allowed on the site, and the people that she said did this on behalf of the fourth defenders were Mr Gemmell and Mr Cuthbertson. Although Mr Gemmell did carry out an inspection of the pitches on the Sunday morning before the event began, he did not check the dimensions of the army slide site and did not see that the warning tape was down at the north end of the fun slide site. He did not think that such an inspection was part of Mr Cuthbertson's duties and Mr Cuthbertson did not give evidence at the proof. In light of this evidence, I am satisfied that the fourth defenders' system for ensuring that the army slide was completely within the cordoned off area and that all sides were properly marked with warning tape was not effective. I consider that the fourth defenders ought to have caused an inspection to be made of the boundaries of the army slide site to see that all these boundaries were properly marked with warning tape, and if there were any gaps in the warning tape, to arrange for additional warning tape to be erected. They failed to so. If they had not failed to do so, it is unlikely that the accident would have happened. I therefore consider that the fourth defenders are liable to make reparation to the pursuers.

V.Apportionment of Liability

[64]Each of the defenders maintained, under reference to their separate pleas-in-law relating to section 3 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940, that in the event that they were found liable, liability should be apportioned between the defenders. I was referred to several authorities as examples of how the court has approached the question of apportionment in different circumstances. I was referred to Grant v Sun Shipping Co Ltd 1948 SC (HL) 73, Smith's Tutors v Smith 1990 SLT 370, BOC Ltd v Groves 1993 SLT 360, and Diboll v City of Newcastle upon Tyne 1993 PIQR P16. However, it appears to me that the question of apportionment of liability must be one which is determined according to the circumstances of each individual case, and it is difficult, if not impossible, to lay down rigid rules or principles which should apply to all such cases. One thing that is clear from these cases however, and which appears to me to be consistent with principle, is that where several parties are at fault and by their respective negligent acts or omissions have created a situation where an accident occurs, it does not follow that the actings or omissions most proximate in time to the accident will inevitably be apportioned with the greatest share of liability. It may be the case (although it will not always be the case) that a person who is at fault and who is actually involved in an accident may bear a smaller responsibility for that accident than others who created the situation which enabled it to happen. In the present case counsel for the first defender submitted that I should take account of several factors when apportioning liability, including (1) the nature of the breaches committed by the respective defenders, (2) the number of breaches, (3) causation, that is, the part each breach played in the accident, (4) the degree of negligence or recklessness involved in the individual breaches, and (5) blameworthiness. Without wishing to adopt a formulistic approach, and without attempting to attribute fixed values to each of these criteria, I consider that each of these are factors which I should properly take into account when apportioning liability.

[65]In light of the view which I have taken as to the main areas of disputed evidence, I have little difficulty in reaching the view that the second and third defenders must bear the majority of the liability for this accident. As explained above, I consider that the second defender probably did see the army slide and decided wrongly that he could drive underneath the main cable without snagging it. This was clearly a most dangerous thing to attempt to do, and involved recklessness on the part of the second defender. It was preceded by the second defender ignoring, or wilfully acting contrary to, the instructions given to him by Mr Devlin as to how he should gain access to the third defenders' stand. He turned left off the main tarmacadamed roadway and onto the grassed area in direct defiance of what Mr Devlin had told him to do. This, together with his reckless decision to attempt to drive under the main cable, infers a high degree of blameworthiness. These two decisions were the immediate and direct causes of the accident.

[66]Even if I am wrong in my view that the second defender deliberately attempted to drive under the cable, the fact that he drove into the cable infers a high degree of negligence on his part. There was nothing to obstruct his view of the hazard in front of him; the tower, the main cable itself, the bollards at the northern anchor, the two army personnel acting as catchers and the member of the public on the slide were each things which ought to have been readily apparent to him if he had been keeping a good lookout and paying proper attention. He had no business to be driving in the area of the army slide, and I am not persuaded that there was any need for the third defenders' vehicle to be brought onto the site on this occasion. All items of heavy equipment appear to have been brought to the third defenders' stand already, and there was no satisfactory evidence that whatever was in the back of the vehicle on this trip could not have been carried from the main car park. There were no artists or performers in the vehicle. While there might have been a need to bring the vehicle into the site on other occasions that day, I am not persuaded that on this particular trip the car could not have been satisfactorily parked in the car park. Moreover, with regard to the separate case made against the third defenders, as indicated above, I am satisfied that Sheila Hunter made it clear to Mr Lilley that access to the site should be taken by means of the tarmacadamed road and hardstanding side roads; this information should have been reported to Mr McArthur, and instructions given to Mr Toomey that he should not attempt to gain access to the third defenders' stand by means of the grassed area. I do not propose to apportion liability as between the second and third defenders, as it was not disputed that the third defenders are vicariously liable for any acts or omissions of the second defender, and moreover because these defenders shared the same pleadings and representation. It appears to me to be appropriate to apportion liability in respect of these two defenders to the third defenders alone. I am of opinion that the third defenders were 65% to blame for this accident.

[67]The army team removed the warning tape from their site, and erected the fun slide partly on an area which was not originally marked out as their site. They did not tell the fourth defenders that they had done this, and they did not make any arrangements for the northern part of the site to be fenced off or otherwise cordoned off with tape or rope. They put up no safety or warning signs in the northern part of the site where there was no barrier. The slide was an obvious hazard, and albeit they had no reason to expect stallholders' vehicles to be driving in the vicinity of the slide, there might have been (and indeed were) other vehicles operated by the fourth defenders driving in the vicinity, as well as pedestrians. This was an obviously dangerous state of affairs. I apportion 20% of the liability for this accident to the first defender.

[68]The fourth defenders were aware of the potential hazard which the army slide constituted. They ought to have made effective arrangements to inspect the site before the public were allowed to enter, they ought to have seen that there was no cordon at the northern end of the army site, and they ought to have made arrangements for this to be cordoned off by red and white tape. I apportion their blame for this accident at 15%.

VI.Damages

[69]Parties were agreed as to the quantification of damages in the event of the pursuer being found entitled to reparation, this agreement being contained in the Joint Minute of Admissions (No 58 of process). However, parties were agreed that it would be appropriate for me to continue this matter on the question of damages to enable them to consider the details of a possible structured settlement. I shall therefore continue the matter without further order to enable this to be done.