Act: Di Rollo, Q.C., Davidson; Balfour + Manson LLP (for Lafferty Law, Glasgow)

(Pursuer and Reclaimer)

Alt: Hanretty, Q.C., Dowdalls; HBM Sayers (Defenders and Respondents)

13 June 2008

[1] The pursuer in this action sustained injury on the 6 May 1997 in the course of employment with the defenders on a derrick barge then located on the Panna Field, west of Bombay in the Arabian Sea. Diving operations were being conducted from the barge and at the material time there were two divers in the water, who were in the course of returning to the surface. The pursuer was tending one of the divers by bringing in his umbilical, a cable which carries the diver's air supply, and telephone communication line . In the course of trying to bring in the umbilical, the pursuer collapsed in severe pain and was later found to have sustained injury. The action was raised in May 2000. Proof was eventually heard before a temporary Lord Ordinary between May and October 2003: the full procedural history is narrated in the opinion of the Lord Ordinary. On 18 February 2004, the Lord Ordinary assoilzied the defenders. The pursuer reclaimed but the reclaiming motion was delayed by the need to obtain a report from the Lord Ordinary on an issue which was not, in the event, pursued in the reclaiming motion. The reclaiming motion was ultimately heard between 22 April and 1 May 2008.

[2] The essential circumstances of the case as finally presented to the Lord Ordinary, and to us, can be stated briefly. The diving operation was under the control of the diving supervisor, Harrison, who was stationed in a cabin on the deck of the barge. Harrison communicated with the divers under water by telephone. The lead diver, Bing, was stationed at the cabin door and relayed instructions from Harrison to the crew on deck, including the pursuer. At the beginning of this particular dive, there had been three divers in the water but one had been brought up some time before the incident in which the pursuer sustained injury. When, the remaining two divers were being brought up, the pursuer attended to one (named, probably, Bonser) while another employee, Padden, attended to the other diver. The umbilical which the pursuer was tending snagged and became taut, as happens quite often in the course of such operations. When that happens, the proper procedure, as was agreed by all the witnesses, is for the supervisor to instruct the diver to clear the obstruction. There is no possibilityIt is not possible, according to the evidence, of clearingfor the attendant to clear a snagged line by pulling on it. The pursuer reported to Harrison, via Bing, that the line was snagged. He was told to bring it up again and tried to do so but found it still snagged and passed that information to Bing. This sequence was repeated. The pursuer then received another order to bring up the diver and attempted to do so, according to his evidence, by applying additional force and so suffered his injury.

The pleadings set out a variety of grounds of fault against the defenders but the only part of the case pled which was ultimately founded upon is as follows:

"They (the defenders) knew or ought to have known that if the pursuer was given instruction to haul in the diver he would follow the instruction. They knew or ought to have known that if the pursuer was required to haul in a taut umbilical he would be likely to sustain loss, injury and damage. It was their duty to take reasonable care to see that the pursuer was not required to pull up a taut umbilical."

[3] The Lord Ordinary's findings are set out in his opinion as follows:

"[35] In the course of the operation to take Mr Bonser to the surface the pursuer sustained injury. While taking Mr Bonser to the surface, the umbilical became taut. It can be inferred that it had fouled since it was immoveable. Fouling of an umbilical can and does frequently happen and may happen on more than one occasion in an assentascent. That the umbilical had fouled was communicated to the lead diver, Mr Bing and by him to the supervisor, Mr Harrison. Thereafter Mr Bing, on receipt of a message from Mr Harrison again told the pursuer either by word or gesture to come up on the umbilical but the pursuer announced that the umbilical was still taut and fouled. After being told again to come up the pursuer doubled up in pain. He then ceased work. The umbilical was taken over and without further incident Mr Bonser was brought to the surface. The whole incident took very little time. There was no direct communication between Mr Harrison and the pursuer. After the event witnessed by Mr Bing, the pursuer stayed on deck for a short time but did not work. He went below deck and sometime later completed a report, or rather a request for medical assistance, the content of which was narrated above.

[36] These are the only matters which can be said to have been established. The Court heard no evidence from any of the divers nor from Mr Harrison. It cannot, on the available evidence, be inferred that the pursuer was instructed to overcome the resistance to the umbilical. He was asked to pull the diver in. The fact that an umbilical might become taut while doing this does not mean that the pursuer was being or had been invited to do something which was impossible. The evidence was quite explicit that an umbilical cannot, if fouled, be freed by pulling on it. If it becomes taut, it is snagged or fouled. The pursuer, Mr Harrison and Mr Bing all knew that. The Court has no evidence from which it can infer that Mr Harrison was in any way knowingly involved in conveying an instruction to come up on a taut umbilical. It cannot be affirmed that he would ever do so without information that the snag had been released. The Court had no information from the diver in question about any of the circumstances.

[37] It cannot therefore be held that the pursuer was instructed to do something known to be impossible."

[4] It is apparent from that extract that the Lord Ordinary interpreted the pursuer's case as being dependant upon his having received a specific instruction to do something known to be impossible, that is, to haul in a taut and snagged umbilical. In that respect, in our opinion, the Lord Ordinary misdirected himself. The reading of the pursuer's case which he adopted was a narrow one,' much narrower reading than is warranted by the pleadings. It is true that that, as counsel for the pursuer concededntinued during the hearing of the reclaiming motion, the case is restricted to liability for fault on the part of the diving supervisor and there is no broader case such as an attack upon the safety of the system of work which was being employed at the material time. The ground of fault argued in the appeal was that the supervisor failed to take reasonable care for the safety of the pursuer by issuing an instruction to bring up the umbilical at a time and in circumstances in which he knew or ought to have known that there was a risk that the umbilical remained snagged and that the pursuer would act upon the instruction in such a way as to be foreseeably likely to cause injury to himself. In our opinion, that is a case which falls within the pursuer's pleadings, as quoted above. It follows that, in view of the Lord Ordinary's narrow reading of the case pled, the matter is open for review, although the case does depend almost entirely upon issues of fact.

[5] As above noted, the relevant facts are in narrow compass. There are, two issues which have to be dealt with before turning proceeding to the question whether fault on the part of the supervisor can be inferred. The first concerns the Lord Ordinary's treatment of the pursuer's own evidence. The Lord Ordinary approached his decision, in the first instance, by setting aside the issue of the pursuer's credibility and reliability and making the findings above quoted on that basis. Later, however, he expressed the view that he could not accept the pursuer's evidence except where it was corroborated. He was able to approach the issue in that way, it seems to us, because of the view that he took about the limited character of the pursuer's case. If, however, the pursuer's case is understood as we have set it out above, the acceptability or otherwise of the pursuer's evidence becomes more significant and accordingly this Court has to consider whether the Lord Ordinary's assessment of that evidence can be challenged. In order to do so, it is necessary to set out the evidence which was available in regard to precisely what happened at or about the time of the accident.

[6] The pursuer said that earlier in the day he had been asked to prepare an air diving chamber to be ready for decompression. Later in the afternoon he came on deck at a time when three divers were in the water. The pursuer attended to one of the divers and that diver was brought to the surface. Thereafter the pursuer tended to the umbilical of one of the two divers in the water and Padden tended to the other one. Some time later, a shout went up that the dive was finished because the tide was too strong and the divers were coming up. The pursuer explained that in the Panna Field tides were strong and visibility was limited because of silt in the water and consequently there was a risk that if the tide was too strong a diver might be swept off the job. The diver to whom the pursuer was tending came up first and Bing instructed the pursuer to "come up on the diver". The pursuer pulled the umbilical and it came a little bit but then it did not come any more, and the pursuer said to Bing that he thought it was fouled. He gave it a couple of tugs and still got the same reaction. The pursuer said that he did not know what the diver might be carrying in the way of tools. He did not know how long the diver had been in the water and it was important that, once the diver left his last stop, that he should get to the deck of the barge and into a decompression chamber within about five minutes. Consequently he wanted to haul the man in and get him out of the water as soon as possible and as safely as possible and as quickly as possible, because it was not possible to hang about. After the pursuer told Bing that the umbilical was fouled, Bing disappeared into the dive control and came back out and said "Keep coming up", so the pursuer tried again. The pursuer was not able to hear anything that passed between the supervisor and the diver and when he was told to keep coming up he presumed that it was all right to try again to bring him up. The pursuer was asked how hard he pulled and replied

"A lot harder than previous because the first time I did it I wasn't aware that the diver was anywhere other than there. You do a tentative pull because, as I said, you could pull him off the job into danger rather than out of danger. This time I knew that time had passed and he was definitely coming up, so I gave it a more definite heave."

The pursuer further explained:

"So ....so I braced myself for more of a heave and I shouted 'No'. I said "I 'It's still foul" bfouled' butut Les didn't go into dive control. He said 'Keep coming up' so that's when I made the wrong assumption that he was laden down and that the excess weight was holding him, but I was wrong because it was definitely fouled."

He was asked if he pulled hard and replied

"The hardest I pulled anything in my life. I thought I was pulling a diver with heavy equipment, when in fact I was trying to pull an anode off the platform as I found out after."

He then explained that he suffered severe pain as though his back had been hit, struck from behind and said that his right testicle appeared to have exploded. He also said there was a shooting pain down his right leg. He was unable to continue tending the cable and Mr Padden attended to it.

[7] The pursuer was cross-examined at length with reference to three documents which contained or appeared to contain previous statements by him. The first was a request for medical treatment which contained a very brief account of the injury to him and which does not appear to be of particular significance in this context. The second was a statement taken by a Mr Owen on behalf of the defenders' insurers while the pursuer was in Dubai shortly after he had been taken off the rig and before he returned to the UK. That statement says, in part:

"On 6 May 1997 in the afternoon I was on the deck of the DB 27 working with a Filipino assisting in tending the hoses of divers in the water.

There were two divers in the water and the Filipino was looking after one of these and I was looking after the other named Bond.

I had pulled the umbilical up to thirty 30' feet and the diver had taken a water stop. There was no problem up to till this point.

After the requisite rest at the thirty foot30' level I then started to pull Bond up but the umbilical suddenly stopped.

I knew that there was only limited time to bring him the surface. I pulled harder and I turned round and its stuck. I tugged hard and as I did so I felt my right testicle went 'bong' and I felt excruciating pain. There was a similar feeling in my leg."

[8] It is obvious that that statement is at odds with the pursuer's description of the accident in evidence in two respects, namely that it refers to the diver taking a water stop and that it does not refer to instructions or repeated instructions to pull or continue to pull on the umbilical. The Lord Ordinary, however, found even greater significance in the fact that the pursuer showed considerable reluctance to accept that anything of that kind had been stated by him to Mr Owen. Mr Owen had, in fact, taken elaborate steps to authenticate the statement. It was signed by the pursuer before a witness, who also signed, and each page of the statement was initialled in the corners by the pursuer. Notwithstanding that, the pursuer showed considerable reluctance to accept that the statement might record anything made said by him and his position throughout cross-examination remained that he did not remember giving that statement at all.

[9] The second statement was one composed by the pursuer himself and given to the defenders' insurers. That statement is much more consistent with the pursuer's evidence. The material part reads:

"Due to the bottom time of the in water divers it was presumed that both would require surface decompression i.e. leave their thirty foot30' water stop, come to the surface, go across the deck, strip off their diving gear, into enter the decompression chamber and be blown down to forty feet40' within five minutes. With that in the back of my mind when I was told 'to come up on the diver', I did not delay. I pulled up no on his umbilical which soon became taut; I looked over my right shoulder to dive control from where I had gotten the initial order to "come up on the diver" and indicated that the diver's umbilical appeared 'fouled'. There was a slight delay whilst the diver who was acting as go between at the dive control door and us who were tending the divers spoke to the diver supervisor and whom I presumed communicated with the diver both verbally and visually to check his umbilical thence giving me the all clear to pull, pull. I pulled then thought that the extra resistance on the umbilical was perhaps due to equipment that the returning diver was carrying, e.g. hydraulic grinding equipment, etc etc. I then took up the strain, felt resistance, looked over my shoulder, gave the "go between" a sign that the line was fouled and got the indication to keep coming up. I pulled with the utmost power available to me in a sudden jerk and in return suffered the most excruciating pain that I have ever suffered."

[10] That statement is more consistent with the pursuer's evidence, but it refers to a water stop, which the pursuer did not mention in his evidence , and it refers only to one repetition of the instruction to keep coming up on the diver rather than two. The pursuer was cross-examined, again at some length, about the question of a water stop and denied that there was any such stop. It has toshould be said that the diving log, which was a production, did not record any water stop: but there was no direct evidence about the keeping of the log and in any event what is significant is the marked discrepancy between different statements made by the pursuer..

[11] Bing's evidence was taken on commission before the commencement of the proof. He gave evidence about the set up and also gave evidence about the proper practice when a cable became snagged. He explained that if an umbilical went tight the person tending it should stop pulling and inform the supervisors who would ask the diver to check the umbilical. He also said that if the umbilical became tight it was physically impossible to pull it up any further. His evidence about the particular incident involving the pursuer was as follows:

"What do you remember happening? - I remember seeing him double over in what was obviously pain while he was tending the umbilical.

Were you able to see what he had been doing before he doubled over in pain? - No.

At the time he seemed to experience his pain what was actually happening in terms of the diver and the umbilical? - I think we were coming up on the diver's umbilical, the guy was coming back to the surface.

Can you remember if you were made aware by Mr Pearson at any point that there was some difficulty with the umbilical? - Yes, I seemed to remember him saying a couple of times it was tight, the umbilical had become tight and I relayed this back to the supervisor who spoke to the diver and was obviously trying to clear the umbilical and so we are saying come up on the umbilical several times."

[12] He was then asked what the person tending should have done if the umbilical was still tight and said that if it became tight you should just stop pulling and inform the lead diver. He also said that it quite regularly happened that an umbilical might become snagged on more than one occasion. He was asked again if he knew what Mr Pearson was doing when he doubled up and replied:

"Well I think he was coming up on the umbilical probably but I think I was talking to the supervisor at the time and turned round and saw him double over."

[13] In cross-examination on behalf of the pursuer Mr Bing agreed that if the pursuer received an instruction to pull in on a line which had been snagged he would be entitled to assume that the problem had been sorted out and the line was no longer snagged.

[14] The only other direct evidence about the accident was given by Mr Padden. He recalled that the pursuer was pulling up on an umbilical but he could not remember what he himself was doing at the time. He recalled that the pursuer was pulling and then wasn't getting anywhere, but the line was obviously going tight so that he presumed that it was fouled. He then said that the supervisor, Harrison, started to become quiet quite agitated because possibly the diver must have been getting to the end of his bottom time and needed to come to the surface and said:

"Mr Harrison started to get quite agitated, and it was just, you know, the normal off shore language you use. I seem to remember his shouting one or two expletives at Alan to hurry up and come up quickly."

[15] Mr Padden explained that the pursuer was looking across and trying to pull and pulling even harder, probably pulling with as much strength as he had and that Harrison shouted in his direction. The instruction came directly from Harrison, and Mr Paton Padden said:

"Because he actually physically opened his door, where the supervisor's control panel, flung the door open and shouted across to Alan. Alan is probably twenty-twenty five20, 25 feet away."

[16] He then said:

"Well it was over in a matter of seconds. Alan was obviously pulling for him to do his work, and then I just heard him give out like a loud groan, like a squeal, sort of thing and then he just fell down."

[17] In cross-examination Mr Padden displayed, perhaps, some confusion about the precise position and roles of Bing and Harrison but he did not depart from his evidence that Harrison had opened the door and given instructions to the pursuer. Directdirect. Mr Padden also said that after the pursuer sustained his injury, he himself had gone to the umbilical and found it tight at first but that thereafter it came free and the diver was recovered without further difficulty.

[18] After the findings above quoted, the Lord Ordinary's opinion continues:

"[40] Those findings do not depend upon the pursuer's credibility or reliability. If that matter was an issue, however, I would have been unable to accept the pursuer's evidence on unless corroborated. The examples of his varying statements and general unreliability in connection with the narration of the events at and surrounding the accident together with his attitude towards the written material which was put to him, persuaded me that if his evidence stood alone it could not be accepted. Accordingly I would not have believed his suggestion that he was in some way compelled to attempt to slacken the fouled umbilical by pulling as hard as he could. Mr Paton's Padden's evidence did not assist the pursuer. It contradicted the evidence of Mr Birch and indeed of the pursuer himself in relation to the instructions given by Mr Harrison. Mr Birch's evidence can be accepted. It was not challenged on the matter above noted which became a feature of the pursuer's case"

[19] In that passage, the reference to Mr Birch appears to be erroneous and we take it the Lord Ordinary was referring to the evidence of Mr Bing.

[20] Counsel for the pursuer noted that the Lord Ordinary had not been prepared to say outright that he thought that the pursuer was lying and submitted that the Lord Ordinary had not explained sufficiently clearly what his reasons were for rejecting the pursuer's evidence and which parts of the evidence he considered to be incredible or unreliable. It was also submitted that the Lord Ordinary had given too much weight to the statements previously made by the pursuer and had not taken enough account of the circumstances in which the statement to Mr Owen, in particular, was given. The pursuer had explained that at that time he had been drinking and was also under sedation. It was submitted that the pursuer had been quite candid in his evidence, in that, for example, he had himself made known to the doctors who were treating him at a later stage that he suffered from an alcohol problem and had not attempted to conceal that problem.

[21] It is true that the Lord Ordinary did not find that the pursuer had been telling lies in his evidence. Indeed, it does not appear that the pursuer was ever cross-examined to the effect that he was lying. What was put to him, and was submitted on behalf of the defenders, was that the evidence which he gave on material aspects of what had occurred could not be relied on. The Lord Ordinary gave particular weight to the fact that in his evidence the pursuer was reluctant to accept that the statement to Mr Owen was his statement and that the signature appearing on that statement was his signature. It is evident from the cross-examination, even as it appears in print, that the pursuer did show such reluctance. In any event, it is clear that the account of events appearing in both of the statements differs materially from the evidence which the pursuer gave in court.. Judgement of credibility and reliability is primarily a matter for the judge who hears the evidence. It is only if it can be shown that the judge has failed to take proper advantage of the opportunity to see and hear the witnesses that that judgement can be interfered with. It is true that the Lord Ordinary does not in his judgement refer to the evidence that the pursuer had been drinking or that he might be have been under sedation at the time of giving the statement to Mr Owen. Mr Owen, however, did give evidence and did not consider that the pursuer had been affected by alcohol or drugs at the timer of giving the statement. In the whole circumstances, it seems to us that no sufficient reason has been stated for departing from the judgement of the pursuer's credibility and reliability which was made by the Lord Ordinary.

[22] The second issue on the evidence can be dealt with more briefly. From the above narrative, it is clear that there is a conflict as to what exactly happened on deck when the cable became snagged. In particular, Padden gave somewhat dramatic evidence that Harrison came out from the cabin shouting direct and emphatic instructions to the pursuer. If accepted, that evidence would materially assist the pursuer's case. However, the Lord Ordinary rejected that part of Padden's evidence because it was not supported either by Bing or by the pursuer himself, and he drew attention to the fact that Bing's evidence had not been challenged in cross-examination. In the argument for the pursuer, it was pointed out that the defenders had not suggested to Padden that his evidence was exaggerated. It was also pointed out that Bing had been mistaken in saying that there was only one diver in the water, when in fact there were two, and also in saying that there was a standby diver on the surface when in fact there was none, and that he had accepted that his recollection of the incident was hazy . It was argued, therefore, that although Bing did not expressly mention Harrison's appearance on deck, his evidence was not totally irreconcilable with that of Padden. There is some force in the comments on vagueness in Bing's evidence, but it remains the case, in our view, that Padden's account of the forceful intervention by Harrison is contradicted by the evidence of Bing and the pursuer , and, in our view, there is no reason to differ from the view which the Lord Ordinary took.

[23] Before proceeding further, we should remark that the case was confused by the fact that there were extensive averments of duties incumbent upon the defenders in relation to the number of divers who could be in the water at any one time and the steps which should be taken to prepare for and carry out a diving operation of this kind, and that expert evidence which to some extent supported these averments was led on behalf of the pursuer. Reference was also made, particularly in the expert evidence, to regulations governing diving practice in U.K. waters (which of course did not apply to the operation in question) and to international standards which were not introduced until after the accident. s. However, it became evident, eventually, that whether or not the defenders failed to comply with normal and proper practice in these respects, no causal relationship could be established between any such failures and the actual accident to the pursuer. The only significance, as a result, which these averments and evidence might have is that the pursuer maintained that his action in pulling with extreme force on the cable was motivated, in part, by his awareness that normal practices were not being followed and his sense that that failure contributed to the dangerous nature of the actual operation of retrieving the diver.

[24] As we have observed, the pursuer has not pled any case that the system of work adopted was inherently dangerous, and there is, therefore, no reason to think that the operation of pulling up the umbilical on which the pursuer was engaged involved, in ordinary course, any foreseeable risk of injury to him. That being so, once the issues discussed above have been dealt with, the actual case for the pursuer resolves into a case that Harrison, without taking reasonable care to see that the cable was free, issued an order to the pursuer to pull on it which either was a direct order to exercise unusual force, liable to lead to injury, or was one which, as was foreseeable in the circumstances, would be likely to lead the pursuer to exercise unusual force. The main relevant circumstances are the stage which the dive had reached, the state of the tide and current, the risk of injury to a diver if he was not brought up quickly, and, as noted above, the pursuer's awareness that proper practice had not been followed in the earlier stages of the operation.. That formulation gives rise to a series of questions.

[25] The first is whether the pursuer has proved that there was an accident, that is, that he sustained injury while hauling on the cable. The Lord Ordinary's opinion is perhaps equivocal on this point, but the evidence clearly is that the pursuer collapsed in pain in the middle of the operation of recovering the cable and that his injuries were consistent with being caused in that way. Accordingly that point is resolved in the pursuer's favour.

[26] The second question is whether the pursuer did exercise unusual force. There is a degree of doubt about that, because there is no corroborating evidence to support his contention that he did exercise such force, particularly if Padden's evidence as to the forcible instruction given by Harrison is rejected. However, for the present purposes, the point may be assumed in the pursuer's favour.

[27] The third question is whether at any point in the operation, instructions to the pursuer to bring up the diver were given with any peculiar urgency or force, . In our opinion, the evidence negatives that possibility. We have already explained and accepted the Lord Ordinary's reasons for rejecting the evidence of Padden. None of the other evidence suggests that instructions were given otherwise than in a normal way..

[28] The next question is whether there was in fact any particular urgency or panic at this the stage of the operation at which the injury was sustained. Again the answer to that is no. Snagging is a normal incident of the operation of bringing up a diver. The pursuer in his evidence spoke about the need to bring up a diver quickly and about the problems posed by tides and visibility, to which reference has been made, but there is nothing in the evidence, and particularly nothing in the evidence of Bing, to suggest that there was particular urgency on this occasion or that the operation was other than a normal one.

[29] The final question then is whether anything was done by Harrison which in the particular circumstances might foreseeably be likely to lead the pursuer to exercise such force as to be likely to cause injury to himself. Counsel for the pursuer submitted that when the pursuer was given repeated instructions to bring up the diver in the water, he was entitled to assume that the cable was free and naturally proceeded to apply extra force, under the impression that the failure to bring up the cable was due to some failure on his own part, perhaps arising because the diver was carrying additional weight such as tools. The fault on the part of Harrison consisted in giving these repeated instructions without taking reasonable care to see that the line was not fouled. In a development of this argument, it was submitted that the defenders had failed to lead the evidence of Harrison and the two divers who were in the water at the time, with the result that there was no evidence as to what Harrison actually did on being told that the line was snagged: and that in these circumstances the court should draw the inference unfavourable to the defenders, that is, that Harrison had failed to take reasonable care to check that the cable was free before repeating his instruction to bring it up. Reference was made in this connection to the dicta of Lord Reid in Ross v Associated Portland Cement Manufacturers [1964] 1 WLR 768 and Lord Upjohn in O'Donnell v Murdoch M'Kenzie & Co. Ltd. 1967 SC (HL) 23, and to some other cases in which similar principles were applied.

[30] The difficulty for that argument is that there is no evidence from which it can be inferred that there was any foreseeable risk of injury to the pursuer in issuing an instruction, or even a repeated instruction, to bring up a cable which in fact was snagged. .Snagging is a regular occurrence, as has been seen, and can occur more than once in the course of a dive. A person tending a cable may therefore at any time find that the cable is snagged. In the absence of a case based on unsafe system, the pursuer has to show that there was some reason for Harrison to anticipate that the pursuer would exercise additional or unusual force and soor otherwise act on the instruction in such a way as to expose himself to a risk of injury. Evidence in support of that is entirely lacking, and the fact that it is agreed by all the witnesses that there is no point in trying to pull a snagged cable does not assist the pursuer.

[31] As regards the argument based on Ross v Associated Portland Cement Manufacturers, that and similar decisions may encourage the court to draw inferences favourable to the pursuer where there is some evidence from which such inferences can reasonably be drawn, but do not justify reaching conclusions in the absence of necessary evidence. That point was clearly made in the opinion of the court given by Lord Grieve in Johnstone v City of Glasgow District Council 1986 SLT 50 at 52, where he said:

"Counsel for the pursuer submitted that the Lord Ordinary has asked himself the wrong question. The question he should have asked himself was: "In the absence of evidence from the defenders why should I not infer that the period of three months is too long?".

This submission was based on the dictum of Lord Reid in Ross v Associated Portland Cement Manufacturers at p. 755. What his Lordship said was:

"Before I deal further with the facts I must note that both the respondents and Lloyd Lawrence, who appeared as defendants at the trial, elected to lead no evidence and to rely on the contention that the appellant's evidence was insufficient to prove her case. They were quite entitled to do that but they cannot complain if in those circumstances the most favourable inferences are drawn from the appellant's evidence of which it is reasonably capable". "

That dictum had a gloss put on it by Lord Upjohn in O'Donnell v Murdoch M'Kenzie & Co. Ltd. 1967 SLT at p. 232 to the effect that in circumstances where the defender had led no evidence only the most favourable inferences should be drawn from the pursuer's evidence. We accept these dicta must be borne in mind in appropriate cases, but we do not think that they entitle a court to indulge in speculation when considering the evidence of a pursuer in a case in which the defender has led no evidence. The evidence led must be capable of giving rise to any inference drawn from it and such an inference must be a reasonable one."

[32]

In our opinion, in the present case, the pursuer has not led evidence from which the inference necessary to establish fault on the part of Harrison can be drawn. Accordingly, there is no reason to interfere with the decision of the Lord Ordinary and the reclaiming motion should be refused.