pursuers and appellants in expenses and remits an account thereof, when lodged, to the Auditor of Court to tax and to report; certifies the appeal as suitable for the employment of junior counsel.
(signed) Mhairi M Stephen
BACKGROUND
1. The pursuers and appellants are Scottish Water. Scottish Water are responsible for the operation and maintenance of inter alia all public sewers in Scotland. They are a public funded statutory body. They appeal the sheriff's interlocutor of 10 February 2012 pronounced after proof at Livingston Sheriff Court which took place over several days in 2011.
2. The sheriff's interlocutor appealed against dated 10 February 2012 is in the following terms:-
"repels the Pursuers' first and second and sustains the Defenders' third pleas in law, and assoilzies the Defenders, from the crave of the Initial Writ; refuses the Pursuer's motion for the certification of Counsel; finds the Pursuers liable to the Defenders in expenses and remits an account thereof, when lodged, to the auditor of court to tax and report."
3. The appellants also appeal the decision of the sheriff to refuse the pursuers' motion to certify the cause as suitable for the employment of junior counsel for the proof.
4. The defenders and respondents are Dunne Building and Civil Engineering Ltd a company registered in Scotland. Their main place of business is located in Bathgate, West Lothian. The defenders and respondents had carried out reconstruction and resurfacing works for Fife Council at Queen Anne Street, Dunfermline in or around November 2007. This work was part of a more substantial contract relating to a new bus station in Dunfermline. The works involved removal of road and pavement surfaces part cobbled and part tarmac which were replaced with monobloc. The work was carried out inter alia in Queen Anne Street, Dunfermline; outside Coral's a bookmaker's shop.
5. In late 2008 the appellants were notified of a blocked sewer in the same area. The appellants' operatives and contractors attempted to clear the blockage but with limited success. Due to ongoing problems relating to the sewer it was necessary to close the road and excavate around and open up the sewer pipe. This took place in February 2009. The appellants' contractors found a brick or monobloc or part thereof which was considered to be the cause of the blockage to the sewer. Part of the sewer was replaced and the whole area reinstated with new monobloc. Thereafter the appellants intimated a claim to the contractors acting on behalf of Fife Council having taken the view that the blockage to the sewer occurred as a result of negligence on the part of those who had been resurfacing the area around 49 Queen Anne Street. The defenders and respondents were identified as the company who had undertaken the resurfacing works and the appellants issued an invoice for £12,585.44 being the costs incurred by the appellants in dealing with the blockage including closure of roads and contractors' charges. Liability was disputed and accordingly these proceedings were commenced at Livingston Sheriff Court.
6. The sheriff made the following Findings in Fact and Law:-
"1. That this court has jurisdiction.
2. That the cause of the overflowing sewer was a solid rectangular obstruction, a brick or monobloc approximately 100 mm long, 80 mm wide and 75 to 80 mm thick. It was part of a block similar in type to those used by the defenders to surface the area in 2007. The manner in which the obstruction found its way into the pipe is unclear.
3. That if the loss to the pursuers had been caused by a breach of duty on the part of the defenders, the sum sued for represents a reasonable measure of the damage caused to the pursuer's property, namely the sewer pipes servicing the block at 49 Queen Anne Street, Dunfermline including the bookmaker's shop."
7. The note of appeal for the pursuers and appellants is no 25 of process and the appeal proceeded before me on Tuesday 10 July 2012.
SUBMISSIONS FOR THE APPELLANTS
8. Mr Logan for the appellants confirmed that the appellants, in essence, do not challenge the sheriff's findings in fact save that the second finding in fact and law read together with the sheriff's note paragraph 31:
"I have found in fact that the block is one of these used by the Defenders"
and 43
"I am satisfied that it probably was one of the blocks being used by the defenders.",
indicated that the sheriff accepted that the appellants had established on a balance of probabilities that the monobloc found in the sewer and therefore the cause of the blockage was one of the respondents' monoblocs. Mr Logan argued that the sheriff's second finding in fact and law and paragraphs 31 and 43 of the note taken together were critical parts of the judgment. It indicated that the appellants had established on a balance of probabilities that the respondents' monobloc caused the blockage; that this was evidence from which it was reasonable to infer negligence and that it was for the respondents to rebut that inference. Thus the learned sheriff had misdirected himself in law in stating at paragraph 43 of his opinion:
"I am not, however satisfied that it fell down the rodding eye or that I can draw the inference that it came to be in the sewer as a result of negligence on the part of the defenders. They failed to exclude all other possibilities."
9. Counsel for the appellants developed his submissions with reference to Hendry v Clan Line Steamers Limited 1949 SC 320 and Inglis v LMS 1941 SC 551. From these cases the appellants conclude that, unlike criminal cases, in reparation cases there is no presumption that the defender is blameless and the issue before the sheriff is whether there are facts and circumstances from which an inference of negligence may be made. It is not for the pursuer to exclude all other possibilities but rather it is the sheriff's function to decide where the balance of probabilities lies and to do that in the current case would involve looking at the manner in which the sheriff has dealt with the evidence and his findings.
10. Turning to the sheriff's findings it is reasonable to conclude from a straightforward reading of Finding in Fact and Law 2 and paragraphs 31 and 43 that on balance of probabilities it was one of the blocs being used by the defenders which was found in the lateral sewer causing the blockage or significant restriction of flow of sewage necessitating the works carried out by the pursuers of which the sum sued for is a reasonable measure of damages (Finding in Fact and Law 3).
11. Counsel for the appellant turned to inconsistency on the part of the sheriff in dealing with the evidence. Despite the sheriff's comments on the credibility and reliability of the defenders' witnesses particularly Mr Reel and Mr Lindsay he appears implicitly to reject their evidence by accepting that the brick found in the sewer was probably one of the defenders. Mr Reel's evidence in essence was that that brick was not one of the type used by the defenders and Mr Lindsay's evidence was to the effect that one of their bricks could not get down into the sewer. By accepting that the brick or part of the brick in the sewer was probably one of the defenders he then appears to reject the evidence given by these two witnesses for the respondents. On the other hand, the sheriff whilst doubting the reliability of Mr Cuthill, who was the first witness for the pursuers, then appears to accept his evidence with regard to his identification of the block found in the sewer, as being one used by the defenders.
12. Accordingly, Mr Logan submitted that any alternative proposition put forward by the defenders had been rejected by the sheriff and that there was indeed no balancing exercise to carry out to decide whether one set of facts prevailed over another proposition or set of facts. The sheriff fulfils that function and prefers the evidence put forward by the pursuers despite his comments on the reliability of the pursuers' witnesses. The sheriff goes on to deal with the question of negligence and in the view of the appellants falls into error in making these statements in his note at paragraphs 32 and 43 as follows:-
"32. The Pursuer's case is that on a balance of probability part of a block was dropped by the defenders down a rodding eye into the lateral sewer while they were working on the pavement above in 2007. It had taken a while for debris to collect around the block and blockage of the sewer had begun to manifest itself in late 2008.
The Pursuers have no direct evidence as to what happened in 2007 and to succeed they have to allow me to draw the appropriate inferences by proving that there was no other way in which the block could have entered the sewer. Their evidence has to fit together in such a way as to exclude all other possibilities."
That in itself is a misstatement of the law repeated by the sheriff at paragraph 43:-
"43. While I have considerable doubts about the reliability of Mr Cuthill's evidence this does not extend to his identification of the block. I am satisfied that it probably was one of the blocks being used by the Defenders. I am not, however satisfied that it fell down the rodding eye or that I can draw the inference that it came to be in the sewer as a result of negligence on the part of the Defenders. They failed to exclude all other possibilities."
13. There being no other competing set of facts the sheriff ought to have inferred negligence on the part of the defenders by virtue of the findings in fact and law and his explanation referred to above.
14. Therefore the sheriff fell into error by misdirecting himself as to the onus on the pursuers. It was not for the pursuers to exclude other possibilities but to put evidence before the court which the court could and did accept and from which it was reasonable to infer negligence.
15. Finally, the appellants sought review of the sheriff's decision to refuse to sanction the cause as suitable for the employment of junior counsel. In essence the errors into which the sheriff fell indicate that the matter is not as straightforward as suggested by the sheriff. The sheriff took the view that the case was not sufficiently complex or valuable to justify certification and refused certification. I was asked to take the view that the sheriff erred in the exercise of his discretion in that matter and that I should certify the cause as suitable for the instruction of junior counsel at both proof and on appeal.
RESPONDENTS' SUBMISSIONS
16. Mr Lovett for the respondents emphasised the legal principle that the onus or burden of proving negligence fell on the shoulders of the appellants. The appellants had not been on site when the respondents were working in 2007. Their averments of fault were not substantiated, the appellants having failed to show how the brick got into the sewers. There was no duty on the respondents to lead evidence about alternative means of how the brick may have got into the sewer.
17. Mr Lovett relied on the dicta of Lord Cohen and Lord Denning in Brown v Rolls Royce 1960 SC (HL) 22.
18. Turning to the pleadings in the present appeal I was referred to answers 4 and 5 of the record which state the defence to the action. The defenders aver that the blockage could be attributed to a number of events with which the defenders were not involved. They state that it was not possible that the blockage was caused during the work carried out by the defenders or by a monobloc as it would not fit into the access points to the sewers. In Answer 5 the defenders in effect aver that there was no entry point for a brick or section of brick to pass into the sewer such as a rodding eye or gully.
19. Mr Lovett developed the argument before the sheriff to the effect that Mr Cuthill's evidence would have to be treated with great caution bearing in mind that the real evidence, namely the brick, was not preserved. I was referred to the relevant part of Mr Cuthill's cross-examination (page 29 of the transcript) and that his evidence is contradicted by the pleadings as, indeed, is the evidence of Mr Ross. I was reminded that the evidence of Mr Reel and Mr Lindsay, both witnesses for the respondents, appears to have been accepted by the sheriff at least in terms of his note (paragraph 40).
20. Mr Lovett placed considerable reliance on the lack of evidence as to what occurred when the defenders were on site in Queen Anne Street in 2007. None of the pursuers' witnesses were in a position to speak to what may have happened when the defenders were engaged in the resurfacing work. Furthermore, considerable stress was placed on the fact that Fife Council who had engaged the defenders to carry out the resurfacing work were entirely satisfied about the manner in which the work had been carried out. The Council had a duty to ensure that the work was carried out properly with no damage to third parties' plant or equipment.
21. Significantly the sheriff appears to reject the pursuers' proposition that the brick entered the sewer through a rodding eye and this is specifically addressed by the sheriff at paragraph 43 of his note. This taken along with the sheriff's observations at paragraph 33 of the note onwards indicate quite clearly that the sheriff preferred the evidence of the defenders' witnesses. The evidence of the pursuers' witnesses was either contradictory or ambiguous particularly with regard to the dimensions of the block found in the sewer. That associated with the sheriff's comments that the brick would not be capable of falling down the rodding eye to cause the blockage are compelling and explain the sheriff's decision that no inference of negligence could be drawn from the fact that a brick was found to be causing the blockage.
22. Accordingly, I was urged to refuse the appeal and adhere to the sheriff's decision. The sheriff had clearly weighed the facts and circumstances and come to the view that the pursuers and appellants had failed to discharge the onus of proof. This is clear from the sheriff's reasoning as to the lack of evidence as to how the brick may have entered the sewer.
23. Turning to paragraph 7 of the grounds of appeal. Mr Lovett agreed that the sheriff had erred in stating in the final sentence of paragraph 39 of the note that Mr Lawson was Mr Cuthill's superior. This was clearly an error but an error which had no material bearing on the outcome.
24. Mr Lovett asked me to dismiss the appeal with a finding of expenses in favour of the respondents. On the matter of certification of counsel I was urged not to interfere with the sheriff's reasonable exercise of his discretion. The matter was not sufficiently complex to justify counsel nor should counsel be certified for the appeal.
DECISION
25. The critical averments for the appellants can be found in Article 4 of Condescendence:-
"The defenders had been contracted by Fife Council to resurface the area around Queen Anne Street, Dunfermline in late 2007 or early 2008. The said resurfacing work involved the laying of monobloc as the street surface. The connection from the flatted dwelling houses at 49 Queen Anne Street, Dunfermline to the lateral sewer pipe had become blocked, as hereinbefore condescended upon." And following "in the sewer they found an obstruction comprising approximately one third of a monobloc and comprised of exactly the same material as to those used by the defenders in their paving of the street."
The appellants go on to make certain averments relating to how they believe the brick came to be in the sewer, namely that the defenders' employees dropped the monobloc brick into the uncovered trap and thereby into the sewer. Accordingly, the sheriff's finding that the cause of the blockage to the sewer was monobloc used by the defenders in the course of resurfacing the area of Queen Anne Street approximately a year prior to the blockage being detected is critical and the starting point for this appeal. The sheriff is unable to make a finding as to how the bloc found its way into the pipe. He is not satisfied that it fell down the rodding eye. The sheriff observes that the pursuers have no direct evidence as to what happened in 2007. This is entirely reasonable as the pursuers were not on site at that time and the cause of the blockage was only detected 15 months later. The blockage itself, having become apparent approximately one year after the resurfacing work.
26. It therefore appears to me that the appellants have succeeded in proving the essential facts from which the inference of negligence can be drawn. They have succeeded in showing the cause of the blockage namely, a monobloc or part of a monobloc of the same type as used by the defenders in the resurfacing work carried out approximately one year prior to the blockage first becoming apparent. The sheriff has made a finding relating to the respondents' contract with Fife Council to resurface the area immediately above the sewer. This is the area referred to outside Coral's Bookmakers shop in Queen Anne Street, Dunfermline.
27. In making that finding it appears to me that the appellants' submission that the sheriff has clearly rejected the propositions put forward by the respondents' witnesses is correct. It is worthwhile rehearsing that evidence which came from witnesses Reel and Lindsay namely, that the brick was not one of their bricks; the brick could not enter the sewer via a trap or rodding eye and that there was no gully or rodding eye which could have formed a pathway for the brick. The sheriff makes no findings with regard to these matters and states as a matter of fact and law that the manner in which the obstruction found its way into the pipe is unclear. Although the appellants postulate as to the manner in which the brick may have entered the sewer it does not appear, to me, to be essential to the issue of negligence that they show the precise mechanism by which the brick came into the sewer. I hesitate to mention the Latin maxim res ipsa loquitur because this is not a case of res ipsa loquitur but comes very close to requiring some alternative facts to deflect from the inference of negligence that can be drawn from the presence of the respondents' monobloc in the sewer.
28. Mr Logan for the appellants submitted that no other coherent alternative was before the sheriff given that the sheriff had in effect rejected the propositions put forward by the respondents in Answers 4 and 5. In particular, the sheriff rejects the argument that it was impossible for a brick or part of a brick to enter the sewer. He must have done so by making the finding that he does and likewise he rejects Mr Reel's proposition that the brick was not one of the defenders' bricks.
29. I was referred to Hendry v Clan Line Steamers. It is indeed correct to say that in reparation cases there is no presumption that the defenders are blameless. The sheriff has to ask himself whether there are facts established from which negligence may reasonably be inferred. Normally, the sheriff would then have to conduct a balancing exercise by looking at the facts established in evidence and ask whether they raise an inference of negligence or whether they point in the opposite direction. It is clear that the sheriff is not in a position to say how the brick got into the sewer, but that is certainly not fatal to the appellants' case. The appellants and pursuers are not in a position to say how the brick got into the sewer. Although they put forward propositions as to how the bloc may have got into the sewer the critical matter for evidence was the cause of the blockage and provenance of the bloc. Therefore, the critical finding for the appellants is the finding that the brick or part of the brick in the sewer causing the blockage is one of those used by the defenders. The sheriff in paragraph 31 of his decision states:
"In any event, even having heard this evidence I have found in fact that the block is one of those used by the defenders".
Nevertheless, the sheriff himself clearly believes that the appellants require to go further than that and prove how the block got into the sewer. Indeed, the sheriff goes on to suggest that the appellants would then have to prove a negative by stating at paragraph 32:
"the pursuers have no direct evidence as to what happened in 2007 and to succeed they have to allow me to draw the appropriate inferences by proving that there was no other way in which the block could have entered the sewer. Their evidence has to fit together in such a way as to exclude all other possibilities."
30. In my view, the sheriff has misdirected himself by making that statement. That is a misstatement of the law. It is not for the pursuers to exclude other possibilities it is for the pursuers to prove the facts from which it is reasonable to infer negligence. By proving the presence of the defenders' block or part of the defenders' block in the sewer and causing the blockage they prove a set of circumstances from which prima facie negligence may be inferred.
31. The decision of the Court in Clan Line Steamers requires any inference to be natural and reasonable. The facts must be more consistent with an inference of negligence than lack of fault. Accordingly, the sheriff requires to conduct a balancing exercise. In this case it appears that the sheriff has conducted that exercise by making the finding about the cause of the blockage. He is thereby left with no other competing view which points away from negligence.
32. I was referred to various authorities. Hendry v Clan Line Steamers 1949 SC 320. That was an appeal from a jury verdict in a reparation case. The appeal deals with the standard and burden of proof in the context of the trial judge's direction to the jury that the pursuer in a civil case had to satisfy the jury beyond reasonable doubt that the defenders were to blame for his accident. Addressing the various standards of proof in criminal cases the Lord Justice Clerk (Thomson) describes the criminal standard "beyond reasonable doubt" in the following way at page 323:-
"It is a high and exacting standard of proof for the simple reason that the accused person is presumed to be innocent. Such a situation is entirely different to that in a reparation case. There is no presumption that the defender is blameless."
The Lord Justice Clerk goes on to discuss the "preponderance of probability" and makes the following observation at page 324:-
"It may be that the jury had to weigh and value evidence which pointed only in one direction and to decide whether they believed it and if so whether it established the inference that the defenders were to blame. On the other hand it may be that owing to the course taken by the proof the jury had to weigh evidence pointing in two different directions and decide whether it was evenly balanced or whether there was preponderance one way or the other."
In the same case Lord Jamieson deals with the same issue which is indeed similar to the direction which any judge or sheriff should adopt when dealing with the evidence in a civil case. The passage at page 328 looks at the standard which the pursuer must achieve in order to succeed. He goes on to say:-
"In speaking of the balance of probabilities, I think that what the learned judge meant was that, if more than one inference may be drawn from the proved facts, weighing them together, that will prevail which is the more probable. But, if an inference pointing one way is equally consistent with one pointing the other, the matter is left in even scales and he on whom lies the onus of proof fails. Any inference must of course be a natural and reasonable one drawn from the evidence. It need not be irresistible, but must be more consistent with one view than the other."
33. If further authority is required to confirm that it is not for the pursuers to exclude other possibilities as the sheriff suggests then one can look at the well-known case of Inglis v LMS 1941 SC 551 a case where a child of eight was killed when he fell out of a railway compartment when the door opened. It was held that the opening of the door was in itself prima facie evidence of negligence. The sheriff was entitled to draw the inference that it had not been properly secured by the defenders' employees as a result of their negligence. At page 559 the Lord President states:-
"The prima facie evidence of negligence is not met by any counter evidence from the defenders of interference by third parties. The consequence is that we must hold the defenders' negligence to have been the cause of the accident."
That case is entirely apt in considering the present appeal. The pursuers have established prima facie evidence that a brick of the type used by the defenders in the course of resurfacing the pavement and roadway is the cause of the blockage in the sewer and in the absence of contrary evidence the finding by the sheriff raises prima facie evidence of negligence there being no contrary evidence led by the defenders which was accepted by the sheriff. Accordingly, it is my view that these cases support the appellants' proposition that the sheriff misdirected himself as to the legal test to be applied in deciding whether the pursuers had discharged the onus of proof. The passage at paragraph 32 is a clear example of this misstatement of the law where the sheriff refers to the pursuers' case. In the second part of that paragraph he falls into error in stating
"the pursuers have no direct evidence as to what happened in 2007 and to succeed they have to allow me to draw the appropriate inferences by proving that there was no other way in which the block could have entered the sewer. Their evidence has to fit together in such a way as to exclude all other possibilities."
34. It is clearly wrong to expect the pursuers in a civil action to reach a standard of proof which in effect involves proving a negative and excluding all other possibilities. That is not what the law requires of a pursuer.
35. Turning to the sheriff's statement of the law in paragraph 43 I recognise that the sheriff does not refer to the pursuers by name but the only sensible interpretation of that paragraph is that the sheriff is referring to the pursuers when he refers to "they" in the final sentence of that paragraph. "They failed to exclude all other possibilities." Applying the law as set out in the authorities the sheriff clearly accepts the important parts of the pursuers' evidence. In my view, the law does not require the pursuers to prove how the brick got into the sewer provided they lead evidence accepted by the sheriff which raises a prima facie inference of negligence.
36. The respondents, on the other hand, argue strenuously that the sheriff was entitled to come to the view he did given that he was not satisfied that the brick was in the sewer causing the blockage due to any failure on the part of the defenders. He was not satisfied that the appellants had proved the hypothesis set out in their pleadings namely, that the respondents had removed the iron framed cover of the trap leading to the sewer and had then covered over the trap with the monoblocs; that during the course of the works the respondents' employees had dropped or had allowed a monobloc brick to fall into the uncovered trap thereby entering the sewer. The sheriff was not satisfied as to the dimensions of the brick and was certainly not satisfied that the brick had entered the sewer via the rodding eye. The respondents' counsel placed significant weight on the varying and contradictory accounts of the size of the brick and how it might have got into the sewer. He reminded me that the Fife Council, who the Roads Authority had been satisfied that the work had been carried out correctly; that the sheriff did not deal with the matter of the 12 month time delay between the resurfacing work and the first problem with the sewer. Contrary to the appellants' submissions the respondents' counsel emphasised the sheriff's view of the pursuers' witnesses whose evidence in essence he appeared to reject and the failure on the part of the appellants to preserve and lodge the monobloc brick.
37. In my view, these arguments on the part of the respondents are in the main peripheral. The sheriff deals with the "best evidence" rule and indeed Mr Cuthill gave a straightforward and graphic explanation of why the brick was not preserved. The position of Fife Council, appeared to me, to be entirely irrelevant to the question of negligence and it was difficult to understand what interest they might have had or knowledge they would have had as to the effect of the resurfacing work on the property of Scottish Water. Clearly, Fife Council would have had an interest in the defenders and respondents fulfilling their obligations under their contract to complete satisfactorily the resurfacing work. Beyond that I fail to see the significance of the Fife Council contract. The respondents considered that the contradictory descriptions of the dimensions of the brick by the pursuers' witnesses were a further factor which would have influenced the sheriff. However, that difficulty for the pursuers is more apparent than real as it would appear that the sheriff was in the end prepared to accept the pursuers' evidence regarding the brick in the sewer. The sheriff does not explain the view he took about the dimensions of the brick although describes it in Finding in Fact 2 as a brick or monobloc approximately 100mm long, 80mm wide and 75-80mm thick. Accordingly, although it appears that the sheriff accepted Mr Cuthill's evidence regarding the presence of the brick in the sewer the sheriff goes beyond Mr Cuthill's evidence in identifying the actual dimensions of the brick. In the same finding the sheriff states that the manner in which the obstruction found its way into the pipe is unclear. Accordingly, the sheriff having accepted that the defenders' brick or part of the defenders' brick got into the sewer and caused the blockage the issue would appear to be whether the pursuers' failure to show exactly how the brick found its way into the sewer is material to the question of negligence.
38. In support of the respondents' argument counsel for the respondents referred to Brown v Rolls Royce Limited 1960 SC (HL) 22 a case involving an employee at Rolls Royce who contracted industrial dermatitis. He complained that his employers had been negligent in failing to provide him with barrier cream which would have protected him against the risk of developing that disease. The rubric states:
"the pursuer maintained that the defenders' failure to provide barrier cream constituted a fault of omission which amounted to negligence in the circumstances".
The House of Lords affirmed that the onus was on the pursuer to show that the defenders had been negligent and that their negligence had caused the injury. I have considered carefully the dicta of Lords Cohen and Denning to which I was referred. It appears to me that the House of Lords are reaffirming the position in the authorities of Hendry and Inglis referred to by the pursuers. Towards the end of his opinion at page 28 Lord Denning states:-
"If the defenders do not follow the usual precautions, it raises a prima facie case against them in this sense, that it is evidence from which negligence may be inferred, but not in the sense that it must be inferred unless the contrary is proved. At the end of the day, the court has to ask itself whether the defenders were negligent or not. It is sufficient if there is a greater probability on one side or the other: but, if, at the end of the case, the evidence is so evenly balanced that the court cannot come to a determinate conclusion, the legal burden comes into play and requires the court to reject the case of negligence alleged against them".
In my view, the decision in Brown v Rolls Royce far from contradicting the pursuers' authorities is simply a development of the same. It does not however, support the sheriff's interpretation of the law as stated in paragraphs 32 and 43 of his note. It is not authority suggesting that the pursuers have to exclude all other possibilities. Brown v Rolls Royce merely reaffirms the standard proposition that the onus of proof lies with the pursuer. There is no actual burden of proof on the defenders however Lord Denning elaborates on the difference between the legal burden on the pursuer and the provisional burden which may shift between the parties depending on the evidence. He states at page 28:
"in order to discharge the burden of proving negligence the pursuer proves that "barrier cream" was commonly supplied by employers to men doing such work as the pursuer was doing. This was a cogent piece of evidence and raised no doubt a "presumption" or a "prima facie" case, in this sense, that, if nothing more appeared, the court might well infer that the defenders were negligent, and in that sense it put a burden on the defenders to answer it. But this was only a provisional burden which was raised by the state of the evidence as it then stood. The defenders might answer it by argument, as indeed they did, by pointing out that "there is no evidence as to what, if any, other precautions these employers take": or the defenders might answer it by calling evidence themselves, as indeed they did, by proving that they "relied on their medical officer, Dr Collier, who exercised proper care and skill" and that they carried out the precautions advised by him. In this way, a provisional burden may shift from one party to the other as the case proceeds or may remain suspended between them. But it has no compelling force. At the end of the day, the court has to ask itself - not whether the provisional burden is discharged - but whether the legal burden has been discharged, that is to say: has the pursuer proved that the defenders were negligent?"
This case is not authority for the proposition put forward by the sheriff that the onus was on the pursuers to prove that there was no other way in which the block could have entered the sewer. That in my view, not only flies in the face of the settled law but also of common sense. The sheriff observes that the pursuers have no direct evidence as to what happened in 2007 and nor indeed would it be reasonable for them to provide that evidence. It appears to me that the sheriff has fallen into the error encountered by the trial judge in Hendry namely, that he set the bar too high and expected the pursuer to exclude all other possibilities not only other probabilities. The sheriff in paragraphs 32 and 43 is articulating the directions in law which he gave himself just as Lord Blades gave directions to the jury in the Hendry case. Of course, the sheriff's error would be academic had there not been prima facie evidence before him which he accepted and from which negligence could be inferred. There is, therefore, sufficient, in my view, to allow me to say that the error on the part of the sheriff was such as to be critical. The evidence he accepted with regard to the cause of the blockage was such as to raise a prima facie inference of negligence which has not been answered by the defenders and respondents or rather any answer made by the defenders has implicitly been rejected by the sheriff. Had the sheriff asked himself the correct test he would have asked whether the prima facie evidence of negligence which could be inferred from the presence of the defenders' brick in the sewer had been met or countered by evidence from the defenders. He did not do so and as a consequence I consider the error in law to be sufficiently material to persuade me that this appeal should be allowed. The sheriff has made a finding that the sum sued for was a reasonable measure of the damage caused to the pursuers' property by the blockage. I will accordingly allow the appeal; recall the sheriff's interlocutor of 10 February 2012; sustain the first and second pleas in law for the pursuers and repel the pleas in law for the defenders and grant decree for the sum sued for (£12, 585.44) together with interest from the date of date of citation. Expenses should follow success.
39. The appellants also challenge the sheriff's decision to refuse to certify the cause as suitable for the instruction of counsel. Essentially, this is a discretionary matter for the sheriff who exercised his discretion in a manner that the appellants complain of. However, the appellants advance no significant argument in respect of the certification point. They argue that the sheriff's error in law may suggest that the matter was more complex than originally thought. However, in the end of the day this is a matter which is entirely within the discretion of the sheriff to allow or to refuse. I do not propose to interfere with his decision in respect of the proof. I shall, however, certify that the appeal proceedings are suitable for the employment of counsel. The grounds of appeal clearly require to address not only questions of law but an analysis of the evidence and the sheriff's conclusions on the evidence. The issues raised justify the employment of counsel.
(signed) Mhairi M Stephen