[2009] CSOH 81



in the cause







Pursuer: Caldwell QC, Love; Allan McDougall

First Defender: McShane; Bell & Scott

Second Defenders: Hastie; Bell & Scott

5 June 2009

[1] On 16 August 2001 the pursuer was employed as an HGV driver with John Fleming & Company. He was required to deliver a load of timber doors to the second defenders' (Coltra Limited, t/a Applecross Developments) building site at Westmill Road, Edinburgh. During the delivery a large number of the doors fell on top of the pursuer causing him serious injuries. He blames the accident on the first defender (Arthur Morrison) who was employed at the site by the second defenders as a forklift truck driver. The second defenders are said to be vicariously responsible for their employee's negligence. Although the pursuer did not see what happened he makes the following averments:

"Believed and averred that the first defender's forklift truck was positioned towards the driver's side of the pursuer's lorry with its forks inserted under the pallet of doors on that side. Further believed and averred that the movement of the first defender's forklift truck (particularly its forks) moved and dislodged the pallet of doors on the passenger side of the pursuer's lorry or caused the load on the driver's side to move and dislodge the pallet on the passenger side. As a result it fell off the rear section of the lorry and landed on the pursuer."

The main issue in the proof was whether the pursuer has proved these averments. In the event that the pursuer is entitled to compensation the parties have agreed damages at £280,000. The only other disputed issue was whether, in the event that the case of fault is made out, it is nonetheless time barred regarding the second defenders, the action having been raised against them more than three years after the accident. The second defenders cases of contributory fault against two third parties were not pursued to proof.

The evidence concerning the cause of the accident

[2] The pursuer explained that he delivered two pallets of doors to the second defenders' construction site. He secured the load before setting off. The pallets were towards the front of his lorry, one on the driver's side, one on the passenger side. They were secured using straps attached to the ceiling of the lorry, and also a separate ratchet strap over both pallets, with the ratchet secured at the passenger side. Mr Sinclair said that the ceiling straps were not sufficient security in themselves, hence the use of the ratchet strap. Each pallet was on a set of timber some 6 inches high which rested on slats designed to allow a forklift truck to lift each load. Each door was shrink wrapped in plastic. Having secured the load Mr Sinclair closed the curtains on each side of the otherwise open sided lorry and left for the second defenders' site around midday. So far as the pursuer was concerned there was nothing unusual about the load. He was confident that it was secure.

[3] On arrival the pursuer stopped on Westmill Road at the archway on the junction leading into the site. He parked on the right hand side of the road. A banksman indicated that he would make contact with a forklift truck driver. Mr Sinclair opened the curtain at the driver's side. He undid the two ceiling straps but did not undo the ratchet strap. He then made his way to the passenger side of the lorry. He did not see a forklift truck approach. He carried out the same procedure on the passenger side. Nothing regarding the load gave him any cause for concern. Mr Sinclair said that the lorry was leaning slightly to the right, that is towards the driver's side, because of the camber of the road. He gave the ratchet a knock to release the tension on the belt. He heard someone shout "Whoa" after which the doors came down on top of him. He said that they did not fall when the tension was removed but about one to one and a half minutes later. The pursuer explained the accident on the basis that he thought that while removing the pallet on the driver's side of the lorry, the forklift truck driver inserted the forks of the truck too far causing them to hit the pallet on the passenger side, and then when the truck lifted the other pallet it dislodged the doors which fell on top of him. Mr Sinclair said that this kind of accident had happened quite a few times.

[4] In cross-examination Mr Sinclair indicated that the ratchet strap was still over the load on the driver's side. He did not see the forklift truck nor know where it was at the time of the accident. He accepted that for anyone on the other side of the lorry it would have looked as if the load was still secured. It was put to the pursuer that the forklift truck driver had unloaded the driver's side, and then asked him to reverse the lorry so that the truck could make its way to the passenger side of the lorry, all of this happening before the accident. The pursuer firmly denied this version of events though he accepted that, because of fencing and the general layout of the area, unless the lorry reversed the truck would not be able to get past the lorry. He asserted that he never saw the forklift truck. It was suggested to Mr Sinclair that the pallet on the driver's side having been removed, the other pallet was still secured by the hanging ceiling straps and that the doors fell when he undid them. Again Mr Sinclair denied this account. When it was put to him that it was the forklift truck driver who shouted "Whoa", he replied that he did not know who made the shout.

[5] Evidence was led from two paramedics who attended at the scene to assist the pursuer, however neither could recall anything of direct relevance to the issues in dispute. WPC Donna Kane attended in response to a 999 call. Her memory was that the lorry's curtains were open on one side, and that the forklift truck was not far from where the curtains were open. Subsequently she was asked to draw a sketch of the scene - production 6/42. In cross-examination she indicated that while she could not now be 100% sure, in her mind the scene which she encountered was similar to that in the sketch. It shows the forklift truck positioned in the road on the passenger side of the lorry, that is on the same side as the doors which fell on top of the pursuer. She was at pains to stress that her memory of the scene and events was now vague and fragmented.

[6] The first defender gave evidence. He has been a forklift truck driver for 24 years. He explained that he would not attempt to unload a pallet if it appeared to be still strapped to the lorry. Even if the belt was loose he would not attempt to unload since the belt could become entangled in the cradle of the forks or in the pallet. After the pursuer's lorry arrived he drove the truck up to the entrance of the building site. He was on the driver's side of the lorry. He waited for the driver to open the curtain on that side. The pursuer undid the strap around the pallet on the driver's side. He then stood back where Mr Morrison could see him. Mr Morrison drove forward and removed the pallet. He reversed down the hill and took the pallet to a storage area. He drove back up the hill towards the lorry. Mr Sinclair had closed the curtain. Mr Morrison asked him to reverse the lorry a little so that he could exit the site. The lorry reversed about eight to ten feet and Mr Morrison drove the forklift truck onto the roadway on the other side of the lorry. He turned the truck and parked facing the lorry. The lorry had returned to its original position. Mr Sinclair came out of the cab, drew back the curtain on the passenger side, then undid the black straps hanging down from the ceiling at which point the doors fell on top of him. Mr Morrison could see the doors starting to move and he shouted "Whoa". At this point his truck was some fifty to sixty feet away from the lorry on the passenger side of the lorry. According to Mr Morrison he had no responsibility for the accident.

[7] In cross-examination Mr Morrison conceded that when unloading a pallet on one side the forklift truck could touch a load on the other side of the lorry. He denied that it would be possible to unload the pallet of doors on the driver's side if the strap over the load had simply been loosened. Mr Morrison stressed that he would not remove a pallet without knowing the position of the driver. He said that he saw a jumble of doors individually falling down. There was no ratchet strap around them. They had been restrained only by the ceiling straps. It is apparent that Mr Morrison's evidence is directly contradictory to the account given by the pursuer. I should record that I considered Mr Morrison to be a straightforward witness who gave his evidence in a clear and direct manner. In my view he was a credible and reliable witness.

[8] The final factual witness on the merits was Mr James Currie, the construction site manager. At the time of the accident he was sitting in a portacabin office near to the scene. He heard the bang of the doors hitting the road. He had not previously been aware of the presence of the lorry. He turned round, looked out of the office and saw the doors on top of someone. He rushed out of the office and attempted to administer first aid. The doors stacked on the pallet were individually shrink wrapped. A ratchet type strap was still loosely around the doors after they had fallen off the lorry. There was no overall wrapping around the doors. As is illustrated in WPC Kane's sketch the site office was located a few feet from the lorry. Mr Currie estimated that it took him about 30 seconds to reach the pursuer after hearing the bang. He had to travel some ten to twelve yards. He was asked about the position of the forklift truck. He answered that it was to the right of the lorry as he looked at it, that is on the passenger side of the lorry. It was close to the yellow lines as shown in photograph 7 of production 7/3. In cross-examination on behalf of the first defender Mr Currie said that when making his way to the injured party he did not see any movement on the part of the forklift truck nor did he hear its engine. It was stopped about fifteen yards away from the lorry and facing the lorry.

[9] Under cross-examination on behalf of the pursuer Mr Currie said that after the accident the doors were like an opened pack of cards, still held loosely by a strap. He expressed the view that the truck could pass the lorry to go into the building site and vice versa. He was asked whether it was possible that after the bang the forklift truck had moved from the driver's side of the lorry to the position in which he saw it. Mr Currie replied that that was possible, but he very much doubted it. In re-examination Mr Currie indicated that the lorry was positioned close to the green box shown in photograph 8 of production 7/3. The bay window building shown in the photograph was not present at the time of the accident. Mr Currie said that given the position of the lorry there would have been no room for a forklift truck to gain access to the driver's side of the lorry for the purpose of unloading.

[10] The only other witness relevant to the merits of the case was Lenford Greasly, a consulting engineer instructed on behalf of the pursuer. His main report on the matter is production 6/39. He had inspected the lorry and the place where the accident occurred. Given the configuration of the roadway he thought it likely that the doors would have been leaning away from the pursuer. He explained that he considered that there were three possibilities as to how the accident may have occurred, namely

"(a) The forks of the FLT dislodged the doors on the passenger side of the pursuer's lorry as the driver of the FLT tried to lift/remove the load of doors from the driver's side of the truck.

(b) In manoeuvring the FLT into position to lift the doors off the driver's side of the truck, the doors on the passenger side were dislodged by being pushed off.

(c) The doors were badly loaded/came loose in transit and, by virtue of material displacement, simply fell off the pursuer's lorry as soon as he undid the tensioner."

[11] In his conclusions Mr Greasly stated:

"The cause of the accident to the pursuer is unknown; all that is known with certainty is that a stack of doors fell from the lorry and the doors struck the pursuer. There are two reasons why a stack might fall from a lorry. A stack might be so precariously balanced that it falls under its own weight or the stack is disturbed by some external force. For the reasons given within this report I am of the opinion that the scenario in which the pallet of doors was so precariously balanced that they fell on the pursuer after he had released and removed the tensioning strap is unlikely. The stack would have been either so grossly disturbed or unsupported that it should have been obvious and the pursuer, as he released the tensioner, would have been facing the stack and very close to it and able to see any problems with the support for the load. The forklift truck from the site was to be solely used to unload the doors at that time. It was possible for the stack of doors to be disturbed by the forks of the FLT if they projected past the stack of doors on the offside of the lorry. The stack could then have been disturbed by either the FLT lifting upwards or by the projecting forks hitting the other stack and moving it forward to a point of instability. It is my opinion that the scenario whereby the doors were disturbed by the FLT was the more likely reason for their collapse."

Under cross-examination Mr Greasly accepted that much of his report discusses a "scenario", namely that the forklift truck disturbed the stack of doors and overturned them so that they fell from the lorry. Mr Greasly agreed that he was making the assumption that the forklift truck was unloading the pallet at the driver's side of the lorry at the time of the accident, and that his conclusions would be inaccurate if the truck was not in that position. He also accepted that he was not in a position to judge or advise the court on the position of the forklift truck at the time of the accident. That would be a matter for the court to determine based upon all the evidence in the case. In my opinion it follows from this that Mr Greasly is unable to assist in respect of the key factual issue in the case, namely whether the pursuer has proved that the forklift truck was unloading a pallet on the opposite side of the lorry at the time of the accident. Mr Greasly's report does indicate that if that was the factual position, then it is likely that the forklift truck caused the accident. However, as shown by his three possibilities as to how the accident occurred, Mr Greasly does not rule out that the accident occurred without any intervention by the forklift truck.

Decision on the merits

[12] I have no hesitation in concluding that Mr Sinclair has failed to prove his case. He can offer no direct evidence in its support himself, other than that he considered that the load was secure and unlikely to fall of its own accord. In those circumstances he concluded that the accident must have been caused in the manner suggested. He could conceive of no other explanation. The problem for him is that the other evidence in the case contradicts or at least points away from his conclusion.

[13] Firstly there is the evidence of the forklift truck driver, Mr Morrison. It is impossible to reconcile his account with that of Mr Sinclair. There is no room for Mr Morrison being mistaken in his evidence, and I am not prepared to conclude that he was being deliberately untruthful. On the contrary he appeared to me to be an honest witness who gave his evidence in a straightforward, clear and reliable manner. On the other hand, given the serious injury which occurred to him, it is entirely possible that Mr Sinclair's recollection of events is less than reliable. I do not consider that I can or must hold Mr Sinclair to have been deliberately untruthful in his evidence, simply that there is no good reason to prefer his account to that of Mr Morrison, especially given the other evidence supportive of Mr Morrison's account.

[14] That other evidence consists of WPC Kane's recollection which, so far as it goes, indicates that only one curtain of the lorry was open, and that she places the forklift truck on the passenger side of the lorry. In addition I consider it inherently unlikely that Mr Morrison would have attempted to unload the pallet on the driver's side while the ratchet strap, even if loosened, was still around the pallet. Furthermore, I consider that the only realistic inference which can be taken from Mr Currie's evidence is that at the time of the accident the forklift truck was some distance from the lorry and facing towards its passenger side. Mr Currie was in the site office located just a few yards from the lorry when he heard the bang of the doors falling off the lorry. He immediately rushed to the aid of the pursuer. It can only have taken him a few seconds to reach the pursuer. If the pursuer's account is correct, during that time the forklift truck must have travelled round the lorry and parked in the position identified by Mr Currie, but without Mr Currie noticing this happen. While Mr Currie was not willing to rule out this possibility, he regarded it as very doubtful. I would go further. I cannot see how his recollection of events can be reconciled with the pursuer's case, given the short distance from his office to the lorry and the few seconds it would have taken him to leave his office in response to hearing the accident.

[15] In her submissions Miss Caldwell did not maintain the case based on breach of statutory duty. The pursuer's case relies entirely upon fault on the part of Mr Morrison. She criticised Mr Morrison's evidence by reference to his post accident statement to his employers (production 6/13) but I can find no inconsistencies between that document and Mr Morrison's evidence. She invited me to conclude that Mr Morrison perjured himself, but I would require some compelling justification for such a conclusion. As Miss Caldwell observed, there was some conflict in the evidence as to whether the lorry would have required to reverse to allow room for the forklift truck to move from one side of the lorry to the other, but I do not regard this as a critical matter. In any event, both the pursuer and Mr Morrison were at one on this point. It was only Mr Currie who suggested that there was sufficient room. Miss Caldwell suggested that Mr Morrison gave the shout of "Whoa" when he realised that he had disturbed the pallet on the other side of the lorry, then he drove his forklift truck round to the other side using the gap identified by Mr Currie in an attempt to avoid blame for what had happened. For the reasons given earlier I find this account next to impossible to reconcile with Mr Currie's evidence. In any event there is no positive evidence in its support. Also I consider the expression "Whoa", meaning stop, to be more consistent with Mr Morrison's version of events than the scenario put forward by Miss Caldwell.

[16] It is true that Mr Currie's evidence about the loose strap around the doors is consistent with Mr Sinclair's evidence, but I do not consider this to be sufficient to overcome the other factors. In any event, he could have been thinking of what were in fact the ceiling straps, or, contrary, to Mr Sinclair's recollection, there may have been a separate ratchet strap around each pallet. At this remove in time it is likely that every witness will be mistaken as to details of events. It was noteworthy that in her submissions Miss Caldwell placed little reliance upon Mr Greasly's evidence. I consider that she was correct in this approach. For the reasons explored in his cross-examination and discussed above, Mr Greasly could provide no evidence of direct assistance on the key factual issue in the case. His evidence depended on proof of the scenario presented to him. In the absence of its proof, his evidence explaining that it was a credible and likely explanation for the accident simply falls away. Matters might have been different if Mr Greasly had been able to assert that the scenario was the only possible explanation for the accident, but unsurprisingly he did not do so. In addition, to an extent at least, his evidence was undermined by mistaken assumptions on his part as to the nature of the loads on the pallets.

[17] Finally Miss Caldwell suggested that if the load was going to fall this would have been obvious to Mr Sinclair and he would not have loosened the strap. That submission certainly reflects Mr Sinclair's evidence, but given that the doors were individually wrapped and of various sizes, I see no reason why Mr Sinclair's evidence must be taken as correct. On the contrary I can well understand that a strap might be restraining a bundle of individually shrink wrapped doors, which could tumble ("like an opened pack of cards" as described by Mr Currie) when the restraint was loosened.

[18] It is worth remembering that the pursuer was unable to assert from his own direct evidence that the accident happened in the way in which he contended. He did not see the forklift truck removing the pallet on the other side at the time of or shortly before the accident. Indeed he did not remember seeing the forklift truck at all. The result is that all the direct factual evidence in the case points away from the inference drawn in the "believed and averred" averments in the pursuer's pleadings quoted above. In summary my decision is that there is no proven factual basis from which an inference of fault on the part of the first defender can be made.

Time bar

[19] The second defenders claim that the action, so far as directed against them, is time barred. Shortly before the expiry of the triennium a summons was served on them, but with the second defenders designed as Applecross Developments Limited. This was done by leaving a copy of the summons with Carole Mearns, the personal assistant to the chairman of the second defenders at their place of business in Grange Loan, Edinburgh. Shortly after the expiry of the triennium Messrs Bell & Scott wrote to the pursuer's agents stating that they acted for Coltra Limited, which trades as Applecross Developments, and that Applecross Developments Limited was an English registered company with no connection to their clients. There was no explanation as to why service had been accepted. Subsequently the summons was amended to refer to Coltra Limited and was re-served on the second defenders in November 2004.

[20] In these circumstances the pursuer relied on the court's equitable dispensing power contained in section 19A of the Prescription and Limitation (Scotland) Act 1973 (as amended). The evidence on the issue showed that the second defenders and the second defenders' insurers were alerted to the claim at an early stage. It was intimated on 16 January 2002. Two weeks later the second defenders' insurers responded to the claim. They investigated it and communicated with the pursuer's agents, who forwarded their expert's first report. The correspondence throughout referred to Applecross Developments. There was no mention made of Coltra Limited. The error in the summons occurred because the pursuer's agents noted that there is a company called Applecross Developments Limited, and assumed that it was the proper defender. However in fact it has no connection with Mr Morrison's employers. It was submitted on behalf of the pursuer that this was a purely formal error which caused no real prejudice to the second defenders, who were fully aware of the claim from an early stage, had it investigated, and accepted service of the summons within the triennium.

[21] On behalf of the second defenders Mr Hastie suggested that if the time bar plea was upheld there would be no prejudice to the pursuer, who could continue the claim against Mr Morrison alone and, if appropriate, thereafter sue his solicitors for their error. He accepted that the correspondence from the second defenders' insurers was headed "Applecross Developments". However the delivery note (production 6/30) relating to the doors mentioned Coltra Limited t/a Applecross Developments. In Mr Hastie's submission more should have been done on behalf of the pursuer to identify the correct defenders. He accepted that at an early stage Coltra Limited instructed their insurers to investigate the matter and that success in the time bar plea would provide a windfall benefit for them. However the second defenders did not cause the error. After the error was pointed out, there was a further delay until November before the amended summons was served. While Mr Hastie did not dispute that service was effected on the second defenders at their place of business within the triennium, it was service of a summons which named the wrong defenders.

[22] While in a sense the issue is academic given my decision on the merits, I have no doubt that the second defenders time bar plea should be repelled and that the pursuer's fourth plea relying upon the court's equitable power should be upheld. In all the circumstances the error, while regrettable, was understandable. It was based upon the terms of the correspondence with the second defenders' insurers which reflected the second defenders' trading name. The second defenders were fully aware of the claim from an early stage and had it fully investigated. Service of the summons was accepted at their place of business in Edinburgh within the three year period. There is no prejudice to the second defenders, other than the loss of a time bar defence, and in my opinion it is clearly appropriate and equitable that the claim be allowed to proceed in terms of section 19A of the 1973 Act.

[23] The overall result is that, while I have repelled the second defenders' plea of time bar, I have concluded that the pursuer has not proved his case. I shall therefore grant decree of absolvitor in respect of both defenders.