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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McCalman Rankin (AP) v John Jack (t/a Lochill Equestrian Centre) [2008] ScotCS CSOH_167 (05 December 2008) URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSOH_167.html Cite as: [2008] CSOH 167, [2008] ScotCS CSOH_167 |
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OUTER HOUSE, COURT OF SESSION [2008] CSOH 167 |
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OPINION OF LORD MALCOLM in the cause IAN McCALMAN RANKIN (AP) Pursuer; against JOHN JACK, trading as LOCHILL EQUESTRIAN CENTRE Defender: ________________ |
Pursuer:
Hajducki, Q.C., McMillan; Thompsons
Defender: R Macpherson, Solicitor Advocate, Simpson
& Marwick, W.S.
The evidence
[2] That
day the pursuer was instructed by the defender to assist in the removal of
building rubble and general debris from a shed at the riding centre. The defender and another employee, Mr
McIlwraith, were knocking through an opening in the wall of the shed. The rubble was to be taken to a tip on the
farm. The pursuer used the Massey
Ferguson tractor and its trailer.
In his evidence he stated that prior to his employment with the
defender, he had never had much to do with tractors. This was the first day he had driven the
Massey Ferguson. The defender used the
bucket of the tractor to fill the first load in the trailer. According to the pursuer the defender then
showed him the way to the dump. The
route involved opening and closing a gate into a field containing horses and
sheep. The gate required to be kept
shut. The defender opened the gate and the
pursuer closed it. The defender
accompanied the pursuer until the last load, which was the fourth or fifth
trip. The pursuer made this trip on his
own.
[3] The
pursuer stated that all of the breeze blocks removed from the wall in the shed
were in this last load. The trailer was
"full to the gunwales". The steering and
general response of the tractor was completely different with this last
load. The pursuer reached the gate where
he waited, expecting the defender to appear.
However he did not appear. The
pursuer explained that he opened the gate and drove through into the
field. He then pulled off the track onto
the right hand side with the front right wheels off the track. The ground there was softer, which would
prevent the tractor sliding. He dropped
the tractor bucket onto the ground and turned the tractor's front wheels to the right. He applied the parking brake with as much
pressure as he could. Earlier in his
evidence the pursuer stated that he always put as much pressure as he could on
the parking brake. Later in this opinion
I will explain what was involved in the operation of the parking brake.
[4] The
pursuer stated that he dismounted from the tractor and walked up towards the
gate while looking to see if the defender was coming. He closed the gate. The tractor and trailer began to move down
the hill. The pursuer ran after them. When alongside he placed his hand on the steering
wheel. He tried to get onto the tractor
but was struck by the tractor wheel.
Next he was run over by the tractor wheel and by the trailer. He stated that he thought he was going to
die. In due course people came to his
assistance and an ambulance was summoned.
He was taken to hospital where he remained in intensive care for about
ten days. Both Mr and Mrs Rankin
spoke to a comment made by Mr McIlwraith when he visited Mr Rankin in
hospital which they understood to be an acceptance by him that the trailer was
overloaded.
[5] In
cross examination Mr Rankin said that he had previously worked on his father's
farm. He had driven tractors since he
held a driving licence. He knew how to
drive tractors. If the advertisement had
mentioned tractors he would probably not have applied for the position. When interviewed for the job he was not told
that he would be driving a tractor. If
that had been mentioned he would have had to say that he did not have
experience of tractors. When pressed on
this, the pursuer stated that he would have had to say that he had limited
experience of tractors. He specifically
denied having driven the Massey Ferguson tractor at Lochill before the day of
the accident.
[6] The
pursuer explained the operation of the brakes and the parking brake. He applied the parking brake every time he
stopped, including immediately before the accident. He used the foot brake and then applied the
parking brake with as much force as he could.
After stopping the tractor on the verge, he waited some minutes for Mr
Jack, though he immediately qualified this to perhaps no more than twenty
seconds. He waited on the tractor. He denied that he had not applied the parking
brake. He agreed that if the parking
brake was applied then it would hold the brake pedals in the on position. The pursuer said "I did put the parking brake
on - it sticks in my mind - 100% sure - till the day I die". He denied that blocks from the wall were
spread through the various loads.
[7] The
first person to notice that the pursuer was in difficulties was
Dawn Miller who was visiting the riding centre. She saw the tractor stopped in a soft part of
the field with its trailer at an angle and its engine running. She then heard the pursuer calling from
further up the field. He said that he
needed an ambulance. Ms Miller ran
back to the centre and found a member of staff, Helen Maxwell. She told her what had happened, then returned
to Mr Rankin with blankets.
Mr McIlwraith then arrived, followed by Mr Jack.
[8] Helen
Maxwell, the manageress of the farm and riding centre gave evidence. She interviewed Mr Rankin. He told her that he had had his own farm and
that he knew all the duties. She told
him that he would require to muck out the horses every morning along with
herself, then help Mr Jack with whatever else needed to be done. Nothing was said at the interview about
tractors. Once employed Mr Rankin
was very obliging. The muck from the
stables was taken to the trailer. The
pursuer emptied the trailer when required, using the tractor. He drove the Massey Ferguson tractor on a
daily basis before the accident. Ms
Maxwell was brought up on a farm. She
could see that the pursuer was competent in driving the tractor. Only the Massey Ferguson tractor was
used for taking muck to the muck heap.
Ms Maxwell worked alongside Mr Rankin in the stables. She was certain that she could not be
mistaken on the question of his regular use of the tractor.
[9] So
far as the day of the accident is concerned she was informed by a visitor that
there had been an accident. She took a
blanket and found Mr Rankin on the ground.
She put the blanket over him. She
went to summon Mr Jack and Mr McIlwraith.
They attended with boards to provide shelter for the pursuer. The tractor was down at the bottom of the
field, however Ms Maxwell did not pay much attention to it. She was positive that she had gone to see Mr
Rankin, taking with her a phone and blankets.
She could not recall how long Mr Rankin had been employed at the
centre before the accident, but she was certain that he had driven the tractor
before the day of the accident.
[10] Mr Jack explained that Mr Rankin had come to do general work
about the farm and the riding centre. Mr Rankin
drove the tractor nearly every day before the accident when clearing out the
bottom stables. There were two tractors
on the farm, a Renault and the Massey Ferguson. The pursuer used the
Massey Ferguson. He did not require
any training or instruction. He had no
problems with the tractor. He was a good
worker. On the day in question they were
knocking a passageway through the wall of a barn. The debris and other material on the floor of
the barn required to be loaded and taken away.
The pursuer was present along with Mr McIlwraith. The wall consisted of 18 x 5 inch
hollow blocks. They were cemented in,
but not reinforced. Mr Jack was there
all day. He thought there were three
trips to the dump. There was other
general rubbish loaded on the trailer along with the blocks. Some blocks would be knocked out and taken
away. By the time Mr Rankin
returned more blocks were ready for removal.
Mr Jack did not think that there was as much in the last load as in the
previous loads
[11] The Massey Ferguson is a fair age. Mr Jack explained that Mr McIlwraith looks
after it along with other vehicles on the farm.
Mr McIlwraith has his own garage business but also helps out at the
centre. Mr Jack spoke to the vehicle
service records. When asked about the
condition of the tractor he replied that it did all that was asked of it.
[12] Mr Jack did not see the accident. He heard someone screaming and he ran to the
field. He saw Mr Rankin in the
field. The tractor was at the soft ground
at the bottom of the field.
Helen Maxwell had alerted him to the accident. They tried to make Mr Rankin as
comfortable as possible and an ambulance was summoned. They stayed with Mr Rankin until the
ambulance arrived some 15 to 20 minutes later. Afterwards, Mr McIlwraith and
Mr Jack went to see the tractor. It
was ticking over. There was not a mark
on it. The brake was not on. There was nothing wrong with the
tractor. Further up the field tyre marks
showed that it had been parked to the right beyond the gate. If the parking brake had been clipped on then
the tractor would not have run down the field.
Mr Jack specifically looked at the brake in order to find out what
had happened. The tractor ran away
because the brakes were not applied. If
the brakes had been applied, as suggested by the pursuer, it would have been
"impossible" for the tractor to run away.
According to Mr Jack the tractor was never overloaded. The tractor was fit for its purpose. He could not give the exact weight of the
load in the trailer at the time, but it would cause no problem whatsoever. He had had no difficulties in holding the
tractor and trailer on the parking brake.
If the clip is put on, the tractor will never move.
[13] Under cross-examination, Mr Jack stated that everything on
the tractor worked. The trailer was in
good condition. Mr Rankin drove the
tractor regularly when mucking out the stables.
Mr Jack saw him use the trailer every day. The accident occurred on the last load when
he was transporting the sweepings up - "just clearing up." Mr Jack had not gone to the dump with
Mr Rankin on any of the earlier trips.
Mr Rankin had been at the dump before. After Mr Rankin was attended to, Mr Jack
went to the tractor with Mr McIlwraith.
Mr Rankin had never made any complaints about the tractor. Mr Jack had seen him operating the clip
on the parking brake. The last load was
the lightest load. All of the blocks and
rubbish could have been taken in one trip.
He would not put 21/2 tonnes onto the trailer. That was simply common sense, given that the
tractor would be going downhill.
Mr Jack would not overload the trailer. It was put to Mr Jack that he was
mistaken about the brake not being on when he examined the tractor in the field. Mr Jack replied that he was not
mistaken, otherwise the tractor and trailer would not have run down the hill.
[14] Mr Eric McIlwraith gave evidence. He is an agricultural and mechanical
engineer. He has his own garage and
repair business. He helped out at
Lochill Riding Centre. His work included
repairs to the tractors and other machinery.
Before the accident he had been working at the centre for about a
year. On the day of the accident he had
been helping out with the operation spoken to by Mr Jack. The hollow breeze block wall was easily
knocked down. The blocks should have
been filled with cement, but were hollow.
With the exception of one corner there were no reinforcing rods. He thought that about 27 blocks were removed
to the dump. A complete block would
weigh about 20 kilograms, but few of them remained intact. The blocks were spread amongst the three
loads. None of the loads were
particularly heavy. The third load was
the lightest. Mr McIlwraith
specifically denied that all the blocks were in the final load.
[15] Mr McIlwraith said that Mr Rankin seemed to be a competent
operator of the tractor. When the alarm
was sounded, he ran to Mr Rankin to provide aid. Initially he was on his own with
Mr Rankin. No one else was with him
when he reached Mr Rankin. The gate
was closed. Mr Rankin was lying to
the right of the road about 7-8 metres off the road, and 8-10 metres
down from the fence. The tractor was
sitting at the bottom of the field with its engine still running. Its wheels had sunk into soft ground. The tractor had travelled some
50-100 metres. He did not go to it
at first. He was more concerned about
Mr Rankin. After Mr Rankin was
taken away, he went to the tractor. He
was the first to go to it. The parking
brake was "most definitely not on". Had
it been applied, the tractor and trailer would have remained up at the
gate. The mechanism used to apply the
brake would not jump off. The spring or
clip used to fix the parking brake was off and the pedals were up. He specifically looked at this because he wondered
what had happened. To Mr McIlwraith
it was clear that the tractor had been parked at the side of the road without
the brakes being applied. When it moved
off, Mr Rankin conscientiously tried to stop it and then the accident
occurred.
[16] Mr McIlwraith serviced the vehicles, including the
tractor. He had driven it. It was in excellent working order. He spoke to the service records. He was self-employed and submitted invoices
to the defender for this work. The
brakes were in good order at the time of the accident.
[17] Under cross-examination Mr McIlwraith agreed that there might
have been 29 blocks. He denied that
when he visited Mr Rankin in hospital, he said that the trailer was
overloaded. He might have said that Mr Rankin
had been run over by a substantial weight, meaning the tractor and trailer
together. The trailer was not loaded
with 3 tons of rubble. He denied
saying that the trailer was overloaded with a 3 ton weight. In Mr McIlwraith's view, the trailer was
not overloaded, nor was it dangerous.
Subsequently in his cross-examination, Mr McIlwraith appeared to
indicate that many of the blocks were contained in the last load. He insisted that the service records were
genuine and were not made up after the event.
[18] Mr Stanley Johnston, a consultant engineer, gave evidence
for the pursuer. He spoke to his
report. He had examined the tractor and
trailer. He found no defects in the braking system. He did identify a number of examples of
disrepair, none of which were said to be directly relevant to the
accident. He offered views on the cause
of the accident based upon certain hypotheses and assumptions. He described these views as speculation. Notable assumptions in his report were that
Mr Rankin did apply the parking brake and that the trailer was substantially
overloaded.
[19] During his evidence Mr Johnston outlined the faults which he
found, though he described the tractor as "generally OK". If the tractor was pulling a load of
3 tons it was "questionable" if the brakes would cope with a downhill gradient. If an emergency stop was required, the
tractor would take longer to come to a halt.
There was bound to be wear and tear on the brakes and brake
linkages. Given its age he would be cautious
about using the tractor near its operating limit. The maximum gradient at the scene of the
accident was
[20] Both Mr Johnston and Mr Robinson, an expert instructed on
behalf of the defender, offered differing hypotheses as to how the accident
occurred, but in my view they are each so dependent on their respective
assumptions as to render this evidence of little assistance to me in
determining the issue of liability. As I
explain below, the correct answer on the question of liability depends on
whether the pursuer has proved that he applied the parking brake. For obvious reasons that is an issue on which
neither expert can assist. In cross
examination Mr Johnston stated that the circumstances of the accident were not
known to him. However he could not
accept that the non-application of the brakes was a possible explanation. He could not believe that the pursuer would
have forgotten to put the brakes on.
That would be against common sense.
Here I consider that Mr Johnston was being asked to go beyond the proper
role of an expert witness and resolve the key issues of fact in the case, as
opposed to offering skilled advice on matters within his specialist knowledge
and experience. There was an issue
between Mr Johnston and Mr Robinson as to the potential effect of a defect in
the hydraulic rams operating the front bucket, but I do not consider this to be
critical to a proper resolution of the issues in the case. In any event, as explained below, I prefer
the evidence of Mr Robinson on this matter.
[21] Mr Simon Robinson, a consulting engineer instructed on behalf
of the defender, spoke to his report. In
it he provided a helpful description of the tractor braking system. He explained that the tractor was fitted with
brakes to its rear axle only, which were mechanically operated drum brakes. There was no power assisted braking
system. Two brake pedals fitted to the
offside of the tractor provided the driver with independent control of the
nearside and offside brakes. An
interconnecting latch provided a means of linking the pedals such that both
brakes operated simultaneously. There
was no handbrake lever. There was
however a spring loaded park brake latch fitted to the brake pedal assembly
which, when engaged via a ratchet, allowed the driver to park the tractor using
its drum brakes. Photographs 7 to 11
appended to his report show the above system.
Mr Robinson noted that the brake pedals could be manually lifted up
through some 35mm of free travel. There
was no free play when depressed and the brake pedals returned to the same position
when released. The park brake possessed
nine ratchet positions. When the spring
loaded latch was engaged and no braking applied, the latch engaged on the
fourth ratchet position. When the brake
pedal was depressed the latch could be engaged on the fifth, sixth or seventh
ratchet position depending upon the degree of brake pressure applied. The park brake latch had to be pushed forward
either prior to or whilst the brake pedal was depressed, such that it engaged
with the ratchet wheel. In order to
release the park mechanism, the spring lever had to be manually released, and
then the brake pedal had to be depressed to release the forces acting on the
latch.
[22] Later in his report Mr Robinson indicated that he had traced
the route taken by Mr Rankin to the gate at the mouth of the field. The road through the field leading from the
gate was about 3.3mm wide and had a significant downhill slope of around 9.5 to
10 degrees. There was an area of
visually level land at a position through the gate to the right hand side
extending into the field, and perpendicular to the road. Measurements indicated that this area
possessed only a slight downhill slope of around 1 to 1.5 degrees, though
the crossfall was some 5 to 6 degrees.
The surrounding land to the left of this position formed a raised half
bowl shape such that the land followed the down slope of the hill to the right
hand side of the road. Again this
topography is shown in photographs appended to the report.
The submissions on liability for the pursuer
[23] Mr Hajducki submitted
that if the court accepts the pursuer's evidence then he has proved his
case. He accepted that the exact weight
of the load on the trailer is unknown.
However it was in excess of the maximum weight the tractor was designed
to pull. The pursuer's knowledge of
tractors was basic. The pursuer's case
based upon a failure of instruction did not arise, given the way in which the
areas in dispute had evolved during the proof.
It was submitted that all of the concrete blocks, all 29 of them,
were placed in the last load. That would
mean a load of at least close to 700 kilos. The pursuer said that he was 100% sure that
he had applied the parking brake, along with other precautions. It was submitted that the pursuer was a credible
and reliable witness.
[24] It was submitted that Ms Maxwell's evidence was vague and
unsatisfactory. She was not a credible
witness. Mr Jack's evidence was
contradictory. He was neither credible nor reliable. He was "cavalier" on health and safety
issues. Mr McIlwraith contradicted
himself in relation to whether the last load was or was not the lightest. On a balance of probabilities the service
records were not genuine records. At the
least the evidence suggested that Mr McIlwraith was not as punctilious as he
claimed. Only Mr McIlwraith and Mr Jack spoke to the parking brake
being applied when the tractor was found at the bottom of the field. Mr Hajducki submitted that the court
should hold that this had not been proved.
[25] So far as the evidence from the experts was concerned,
Mr Hajducki submitted that it was of lesser importance than the witnesses
as to fact. Neither expert examined the
tractor until a considerable period after the accident. Mr Hajducki accepted that there was no
evidence that the brakes were defective.
The pursuer's case is that the brakes were overcome by an overloaded
trailer. The pursuer's case based upon a
lack of training did not arise and was not insisted in. What it all came down to was that if the
pursuer's evidence was accepted, and in particular that he put the parking
brake on, it followed that the tractor was hauling an excessive load. The pursuer spoke to the load behaving
differently and to taking extra precautions when he stopped the tractor before going
to close the gate. If he was worried
about the load, it is likely that he would put the brake on. It was accepted that the absence of braking
on the trailer did not contribute to the accident.
[26] If the pursuer's evidence was accepted, then it followed that
the defender had instructed him to transport an unsafe load which exposed the
pursuer to the risk of injury. In the
end of the day the pursuer relied on the common law case as set out in article 7
of the condescendence, in that an overloaded trailer exposed the pursuer to the
risk of the tractor's brake system being overcome when he parked it on a muddy
slope for the purpose of closing the gate.
The statutory cases were either a restatement of the common law case or
did not arise on the evidence.
The submissions on behalf of the defender on liability
[27] Mr McPherson for the
defender submitted that there is a stark dispute or conflict in the evidence
regarding whether the pursuer applied the parking brake immediately prior to
the accident. It was not necessary to
submit that the pursuer was being deliberately misleading. He has suffered post-traumatic stress
disorder which has caused him to relive the events. It may well be that he does not accurately
recall all the details. However, so far
as Mr McIlwraith and Mr Jack's evidence is concerned, if they are
rejected on the critical issue, it can only be on the basis that they are not
telling the truth. It has to be the case
for the pursuer that they are deliberately lying. Whatever motive Mr Jack as the defender
might have for that, Mr McIlwraith has no axe to grind. The inconsistency in their evidence as to
whether they went to the tractor together or separately, militates against a
concocted story. It was natural that the
position of the brake would be one of the first things they would
investigate. They were trying to work
out what had happened. It is difficult
to see how they could both be confused on that crucial matter. The submission was not that the pursuer's
evidence was untruthful, but that it is unreliable.
[28] If it was necessary to choose between the expert witnesses,
then the court should prefer Mr Robinson in that he has the more
appropriate qualifications and was the more measured and objective witness. The overloading of the trailer is a crucial
part of the pursuer's case, yet it has not been proven. Reference was made to Robb v
[29] There was no evidence of any defect in the brake. The case was not presented on the basis that
the fact of the accident demonstrates such a defect. Another explanation for the incident was that
the brake had not been applied when the tractor was parked by the pursuer. The tractor was parked on a slope, though how
steep a slope was unknown. The pursuer's
position was that he applied the parking brake with as much pressure as he
could. The key question is whether the
court accepts that evidence. There was
no evidence as to what weight would have overcome the parking brake. This
was a large gap in the pursuer's evidence.
The contributory negligence case did not arise. If the pursuer did not set the brake then he
would be wholly responsible for what happened.
Discussion and decision on liability
[30] There is much which is not in dispute. The pursuer was asked to transfer rubble and
general debris from a shed to the farm dump using the elderly Massey Ferguson
tractor and trailer. Its parking brake
system was of a basic mechanical nature. There was no evidence that it was
defective. The pursuer had to pass
through a gate which required to be kept shut.
When transporting the last load of the day he opened the gate, drove
through it and stopped the tractor and trailer half on the verge on a slightly
downhill slope. After he left the
tractor to close the gate, the tractor and trailer began to move down the slope. In attempting to gain control of the vehicle
the pursuer fell under the wheels of the tractor and trailer and suffered
serious injuries.
[31] The pursuer's case is that the accident happened because the
trailer was overloaded and thus the parking brake on the tractor was overcome. This was the fault of the defender who was
responsible for the load in the trailer.
The load was so excessive that it should have been obvious that the
pursuer was being asked to undertake a risky journey. The defender's case is that the trailer was
not overloaded and that the accident was caused by the pursuer's failure to
apply the parking brake when he stopped the tractor on the verge.
[32] The general effect of the evidence was that the brakes would
cope with anything but a clearly excessive load. It follows that if I am satisfied that the
pursuer has proved that he applied the parking brake, then he has proved his
case that the trailer was overloaded.
There would be no other reasonable explanation for the accident. Thus the key issue is whether the pursuer has
proved that he applied the parking brake before he left the vehicle to close
the gate.
[33] This means that the numerous other matters in dispute at the
proof fall into the background. There
were issues as to the pursuer's awareness that part of his duties would involve
driving tractors; whether he had driven
the Massey Ferguson tractor before the day of the accident; the general condition of the tractor and
trailer and a variety of alleged defects, none of which were said to be
directly causative of the accident; and
the weight and nature of the final load (by the end of the proof it was
accepted that there was no clear evidence on this). The experts speculated as to how the accident
might have happened, but their evidence on that matter never went beyond
speculation. It is for me in the light
of the evidence led at the proof to decide whether the pursuer's case has or
has not been made out.
[34] Unfortunately the pursuer was alone at the time of the accident. He was adamant that he applied the mechanical
parking brake with as much force as he could muster. The brake was on a pin and ratchet system
which allowed the foot brake pedals to be locked in the down position. The parking brake was operated by pushing a
small pin into place as shown in the photographs. The pursuer insisted that he
had applied the brake fully and properly, and that for a short period the
tractor was at rest. He said that he also turned the front wheels of the
tractor to the right to face slightly up the verge, and he dropped the front
bucket onto the ground. It is entirely
to be expected that if the pursuer was concerned about the load then he would
have applied the parking brake, but there is evidence from Mr Jack and Mr McIlwraith
to the effect that there was nothing out of the ordinary about the load in the
trailer.
[35] Had the pursuer's evidence been the only relevant evidence on
the key facts I would have had no difficulty in accepting his account of
events. However I have to take into
account the other relevant evidence from witnesses who, although they were not
present at the time of the accident, saw the tractor and trailer immediately
before and immediately afterwards. Mr
Jack and Mr McIlwraith both spoke to an absence of any concern as to the size
of the load in the trailer, and also that when they looked at the tractor at
the foot of the field they saw that the parking brake was not applied. It could not have sprung off during the
tractor's journey down the field. Thus
they concluded that it had not been applied by Mr Rankin when he went to close
the gate. If that is correct, that
explains the accident and exculpates the defender.
[36] A burden of proof is placed on the pursuer to make out his case
on a balance of probabilities. If he
fails to do that, his claim is unsuccessful.
It follows from this, and from the above discussion, that in order to
uphold the pursuer's case I must accept his evidence on the key facts as
probably accurate, and reject the evidence of both Mr Jack and Mr
McIlwraith. In particular, to uphold the
pursuer's claim I must reject their evidence that the parking brake was not
applied.
[37] It was submitted on behalf of the pursuer that he was a
credible and reliable witness, while the defender and Mr McIlwraith were
not. However there is little of real
weight to support an attack on the evidence of Mr Jack and Mr McIlwraith
on the key issues. No doubt they both
have an interest in the matter at issue; Mr Jack is the defender and Mr McIlwraith is
the person responsible for servicing his vehicles. Mr Jack did give his evidence in a somewhat
bombastic and over-confident fashion, but that does not mean that he was
deliberately untruthful. There was an
apparent inconsistency in Mr McIlwraith's evidence as to whether the last load
was or was not the heaviest of the day.
As to his conversation with Mr and Mrs Rankin in the hospital when
visiting the pursuer, he gave an explanation for it which was consistent with
his evidence in court. In any event
there was scope for a misunderstanding as to what Mr McIlwraith intended
when commenting on the accident. There
was an attempt to attack Mr McIlwraith's service records as concocted and
fraudulent, but there was no evidence of sufficient weight to support this
serious claim. I consider that
Mr McIlwraith gave his evidence in a careful and measured way. He seemed
to me to be someone who was doing his best to recount events as he remembered
them, without any attempt to trim or gloss in favour of the defender. I found him credible and reliable. The differences in the evidence on details,
such as who attended Mr Rankin and when, and whether Mr Jack and
Mr McIlwraith went to the tractor together or separately, militates
against a concocted story.
[38] As I said earlier, if the pursuer's evidence had stood alone I
would have had no difficulty in accepting it.
It follows that it is only the contradictory evidence, especially on the
parking brake issue, which stands between him and success on the issue of
liability. On that matter there is
little room for Mr Jack and Mr McIlwraith being mistaken. If I reject their evidence it can only be on
the basis that I do not believe them to be telling the truth. On the other hand Mr Rankin suffered a
very serious accident which left him with substantial physical and
psychological injuries. As explained
later in this opinion, his injuries include post traumatic disorder. It is likely that he will have played and
replayed the events over and over in his mind. It is entirely possible that during a trip
that had no special significance for him at the time, he failed to apply the
parking brake, yet he is now genuinely convinced that he did. It may have been his normal practice, and
this was but a momentary aberration. Or
perhaps at the time he thought that putting the wheels on the softer ground and
turning them into the verge would suffice.
No doubt the vehicle was stationary for a period, something which could
be explained by this simple precaution.
[39] Clearly application of the foot brake was sufficient to stop
the tractor and trailer. The parking
brake does not operate independently of the foot brake, it is simply a
mechanism to hold down the foot brakes in the on position, thus applying the
drum brakes to the wheels. On the
pursuer's account the brakes held for a period and then slipped allowing the
tractor and trailer to travel to the bottom of the field. It is not easy to understand how this would
come about. Mr Johnston suggested
an explanation based upon the front
bucket having been lowered and then, because of a problem with the hydraulic rams,
lifting of its own accord thus leaving the tractor and trailer relying upon the
brakes alone, which proved to be insufficient.
This explanation, which always seemed highly speculative, was
convincingly excluded by Mr Robinson. He
pointed out that, as can be seen from the photographs, the hydraulic rams
operating the bucket have a single acting piston. This means that any failure in hydraulic
pressure could only lower the bucket under the operation of gravity, not lift
it. I consider that a more likely
explanation for what happened is that the pursuer, having applied the foot
brake, but not the parking brake, took the tractor slightly off the track onto a
more level though still sloping piece of ground with the wheels turned into the
verge to the right. He then assumed that
this was sufficient to hold the vehicle, which proved to the case, but only for
a short period.
[40] Unfortunately for the pursuer his evidence on the size of the
load and the application of the parking brake is contradicted by other
witnesses who were in a position to speak to these matters. I have no real basis on which to reject them
on these points, thus I am left with an unresolved dispute or conflict in the
evidence on the key issues. In this
state of the evidence I am unable to hold that the pursuer has proved his case
on a balance of probabilities. The
possibility remains that the pursuer's evidence is accurate and that Mr Jack
and Mr McIlwraith are being untruthful.
I do not exclude that possibility, but I have no sufficient basis for
concluding that it is the more probable state of affairs. It is at least equally, and I think more
probable that the parking brake was left off, that Mr Jack and
Mr McIlwraith did see it in that position, and that for whatever reason
Mr Rankin is now genuinely convinced that he did pin it in place before
dismounting. In all these circumstances
my conclusion is that the pursuer has not proved his case on liability. If I am wrong about that, the case of
contributory negligence does not arise, as was conceded by Mr Macpherson
for the defender. However in the result
I absolve the defender from the conclusions of the summons.
Quantum of damages
[41] Although I have absolved the defender of liability, in case
this matter goes further it is right that I should outline my views on
damages. As a result of the accident the
pursuer sustained a fracture of the distal third shaft of the left humerus; fractures
of both lower ribs; extensive subcutaneous emphysema in the chest; a large
right sided hydropneumothorax and a small left sided hydropneumothorax; an
oblique fracture of the upper body of the sternum with slight displacement of
the inferior fragment posteriorly; and numerous fractures and displacement of his
ribs. Mr Rankin was treated in a
high dependency unit for pain relief.
Chest drains were placed on either side of his chest. Open reduction and internal fixation of the humerus
with a plate was carried out. The radial
nerve was found to be intact but bruised.
He suffered a lower respiratory tract infection secondary to lung
contusions. Mr Rankin was
discharged on
[42] During his evidence the pursuer explained that after his
discharge from hospital he required extensive daily care from his wife. For several months she provided help with
basic everyday activities such as dressing and washing. She still helps him at night, for example
with showering his back. His wife gave
up her work to look after him and has not gone back to work. He has remained unemployed since the
accident. He spends much of his day
sitting in the house. He has become very
dependent upon his wife and has had panic attacks in her absence. He constantly worries about harm coming to
his children. In recent times the panic
attacks are better than they were, and his nightmares about the accident not as
severe. He sees a psychologist once a
week, which helps. He can get out and
about if someone is with him. He used to
do the garden, some painting and plumbing etc.
He does not know what the future will bring. If he could go back to work he would want to
do so. However the constant pain gives
him a feeling of helplessness.
[43] The medical evidence was agreed. It confirms that the pursuer remains
substantially incapacitated. Pain, pins
and needles, and altered sensation in both thighs makes walking difficult. His right leg is weaker than the left. A left partial nerve palsy causes pins and
needles and discomfort in the left forearm and hand. It restricts the mobility of the left
arm. He has pins and needles in the
right thumb and index finger. He can no
longer play golf nor play with his grandchildren. It is unlikely that he will be able to return
to his pre-accident form of employment.
While his condition has improved over time, in physical terms he remains
markedly incapacitated.
[44] While his reports were agreed, evidence was led from Dr Derek
Chiswick, a consultant forensic psychiatrist.
In his first report Dr Chiswick explained that after the accident the
pursuer became anxious and withdrawn. He
suffered occasional panic attacks. He
was able to drive a car. He worried
excessively about his wife and children.
He dreamed of the accident. He
would panic if a tractor passed by on the road.
He was a completely different person since the accident. Sexual relations were on "hold". Mr Rankin had suffered a terrifying accident
and he was unable to rid his mind of it.
In Dr Chiswick's opinion he suffered from post traumatic stress disorder
on a moderate to severe degree. There
was associated low mood and anxiety. His
confidence and motivation had been affected and he was overly dependent upon
his wife. His mental symptoms prevented
him from working. The condition was
perpetuated by ongoing pain related to the accident. It was possible that treatment might help the
psychological symptoms. Mr Rankin was
unlikely to be able to carry out farm work or heavy machinery work in the
future. He may be able to carry out
indoor work, for example warehouse duties.
This would require a gradual introduction and ongoing reviews.
[45] In his supplementary report dated
[46] In his evidence in court Dr Chiswick confirmed that the pursuer
presents a complex picture and that the prognosis is difficult. His mental health will not improve until pain
management is improved. Mr Rankin's life
revolves around coping with the pain.
The opiate analgesics may be having a harmful effect on his mood and
libido, and deprive him of motivation.
[47] In her evidence Mrs Rankin described herself as her husband's
"crutch". He required a lot of daily
care until about the spring of 2006. She
needs to be with him in the morning and at night. He may need help to wash his back and with
buttons etc. She has seen a huge change
in his mental condition as compared with before the accident.
[48] The parties agreed past loss of income at £35,000 with interest
from the date of the agreement. Future
loss of income was agreed at £125,000.
So far as solatium is concerned the pursuer submitted that a sum of
£80,000 would be appropriate. Reference was
made to Penman v RGC plc 1994 SLT 805 and to Middleton v CPS 2000 Ltd
[49] The main issue between the parties on quantum related to an
appropriate figure for the services provided by Mrs Rankin to her husband under
and in terms of section 8 of the Administration of Justice Act 1982. A schedule of damages was produced on behalf
of the pursuer which suggested figures of £31,700 for services to the date of
the proof, and £226,800 for the future, based on £10,000 per year and a
multiplier of 22.68. Mr Hadjucki
observed that the pursuer had given up two jobs to care for Mr Rankin. She had been earning about £10,000 net per
annum. For the first year of care he
suggested £15,000 based on £5 per hour, eight hours a day. Thereafter the appropriate figure should be
£10,000 per annum. The multiplier was
taken from Table 1 of the Ogden Tables.
Mrs Rankin is younger than Mr Rankin and is likely to outlive him. His need for care will continue until his
death. Mr Hajducki submitted that a
broad approach was justified, but this was not a case where a lump sum award
would be appropriate. It was in a sense
a jury question. The multiplier might be
reduced if it was thought that there was a reasonable chance of improvement in
the pursuer's condition. Reference was
made to the cases of Farrelly v Yarrow Shipbuilders Ltd 1994
SLT 1349 and McManus' Executrix
v Babcock Energy Ltd 1999
SC 569.
[50] In response Mr Macpherson submitted that the pursuer's claim in
respect of section 8 services was excessive.
There had been no detailed evidence of hours spent in caring for the
pursuer. It was accepted that after the
accident the pursuer required a considerable amount of physical and emotional
support. However one cannot assess the
future with any confidence, particularly on any hourly rate. A reasonable interpretation of the evidence
is that while Mr Rankin is emotionally dependent on his wife, support of
that nature is provided simply by her being his wife. A useful cross check is the agreed wage loss
for the pursuer. On any view this is an
unusual services claim. The evidence
does not suggest that Mrs Rankin will be rendering services to Mr Rankin
for the rest of his life. Mr Macpherson
suggested past services to date at £10,000, and another £10,000 for the
future.
[51] In my view Mr Macpherson is correct to observe that there are
unusual features to this section 8 services claim. The evidence is clear that in the first six
months or so after the accident the pursuer required considerable assistance
from Mrs Rankin on a daily basis.
However since then he has become much less dependent, at least in
physical terms. He still requires
occasional assistance with showering his back, troublesome buttons and the like,
but in general his reliance on his wife is emotional in nature and is part of
the psychological consequences of the accident. A need for this kind of support can support a
section 8 claim, albeit the services are likely to be less defined and
more sporadic. Improved pain management
is critical to improvement in Mr Rankin's overall well-being, including
reduced dependence on opiates.
Dr Chiswick considers the prognosis to be difficult and
uncertain. I consider that it is likely
that there will be a degree of emotional dependence upon Mrs Rankin for some time
to come and that this will continue to place additional pressures and
requirements upon her. However I see no
basis upon which all of this can be sensibly calculated on an hourly rate and a
multiplicand/multiplier approach. There
is scope for improvement in Mr Rankin's condition. The services rendered by Mrs Rankin are
much reduced as compared with those provided in the aftermath of the
accident. I do consider the pursuer's
claim to be excessive. Given all the
uncertainties, not least as to prognosis, in my view this is an appropriate
case for a broad lump sum approach. Had
I been awarding damages, in all the circumstances I consider that it would have
been reasonable to allow £25,000 inclusive of interest to the past, and a
further £40,000 for the future.
[52] So far as the section 9 services claim is concerned there was
no dispute regarding a suggested figure of £1,000 per annum. However Mr Macpherson did consider the
future multiplier of 22.68 in the schedule of damages to be excessive. I agree with that. If awarding damages I would have allowed
£3,000 for past section 9 services, inclusive of interest, and £7,000 for
the future.