Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH 39
	OPINION OF LADY CLARK OF CALTON in the cause DAVID PEARCE Pursuer; against STEVEN FERGUSON and ANOTHER Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: R. Milligan; Digby Brown

First Defender: Dawson; Balfour + Manson

6 March 2009

[1] This case came before me on procedure roll on 6 March. I gave an ex tempore oral opinion on 6 March 2009. At the request of the instructing solicitors of the first defender, I have taken steps to have the oral opinion issued in written form. I revised the typed script on the 10 and 11 March 2009. As the opinion was intended primarily to advise the parties, I have not expanded the original terms of the opinion to include detailed information about the pleadings and submissions. These matters had been canvassed before me shortly before the opinion was given.

[2] At the commencement of the hearing, on the unopposed motion of the pursuer and second defenders, I assoilzied the second defenders. The case therefore proceeded in relation only to the first preliminary plea of the first defenders. A motion at the bar on behalf of the pursuer was made to amend the pleadings. This was not opposed and was granted. The words "to take reasonable care" were inserted after the word "duty" in the third line of Article 6.

[3] The case involved averments about personal injuries. The case was raised under Chapter 43 procedure and was remitted to the ordinary roll by interlocutor of 7 July 2008. It was not disputed that the pleadings should be judged in the context of pleadings involved in an ordinary action. I am grateful to counsel for their submissions which I have considered.

[4] Counsel for the first defender presented an attractive submission, based on his note of arguments, which he developed in oral submission. He prayed in aid Jamieson v Jamieson 1952 S.C. (H.L.) 44, p. 50; Wilkes v Cheltenham Cycle Club (C.A.) 1971 1 W.L.R. 668, particularly passages at 668F-H, 670-1 and 674C-F. He also made reference to Sharpe v Highland and Islands Fire Board and Another [2007] CSIH 34. Counsel for the first defender submitted that the present case was not a case involving a road traffic accident on a public road. Such a case involved different considerations. He submitted that the pursuer's case is plainly pled in the context of events at Knockhill Racing Circuit in which the pursuer, on his own averments, was participating in test sessions in advance of the race. In the context of such a case, involving motor racing and the inherent dangers thereof, counsel for the first defender submitted that it was not sufficient for the pursuer merely to plead that an accident happened. Counsel for the first defender sought to persuade me that I should be satisfied from the pursuer's pleadings and/or judicial knowledge that the present case was one in which the pursuer was a voluntary participant in a motor racing sport in which the dangers of the type of accident averred on record were part of the sport. In such circumstances, counsel submitted that the pursuer's pleadings were irrelevant and the case must fail at proof because there were no averments which would enable the pursuer to establish a case of fault on the part of the first defender.

[5] I accept that the pursuer's pleadings set the case in the context of racing at Knockhill Racing Circuit. I note that no averments are made by the pursuer about any risks that might be involved in connection therewith. The averments by the first defender about inherent risks of injury in motor sport are met with a general denial by the pursuer. I do not consider that I can properly infer from the pursuer's pleadings that the risks and dangers described by counsel for the first defender are part of the facts and circumstances accepted or averred by the pursuer in this case.

[6] Further, in my opinion, it is not a matter within judicial knowledge as to what risks or dangers might be common or expected or exist by participating in test sessions at Knockhill Racing Circuit. I certainly cannot conclude that it is within judicial knowledge that the pursuer had voluntarily agreed to the risks of an accident of the type averred or that such accidents were part of the common risks of the sport at that particular racing circuit. I am of the opinion that evidence would be required about this. I note in passing that the first defender does not have averments about risks or dangers of the specific nature averred by the pursuer. The first defender's main defence to the action is not to pray in aid such risk of collision but to aver sudden and unexpected failure of the master cylinder and brake failure. These are the averments that the first defender makes at page 7E-8B.

[7] The parties are agreed that the test to be applied by the Court in considering the matters raised on procedure roll is the test set out in Jamieson v Jamieson at page 50 and recently referred to in Mitchell v Glasgow City Council [2009] UKHL 11. I am of the opinion that the facts of the present case are such that they require to be established before an assessment can be made about whether the averments of the pursuer are relevant and in particular whether relevant averments of fact and duty have been pled by the pursuer to found a case of negligence in relation to the first defender. I accept that the pursuer's averments of fault in Article 6 of Condescendence pled against the factual background averred in Article 4 of Condescendence are limited in scope. This may cause difficulties for the pursuer at proof but that is another issue. I do not consider that I can draw much assistance from the cases cited on behalf of the pursuer's counsel, namely O'Hara v Central SMT 1941 SC 363 and Weatherston v T. Graham and Son (Builders) Ltd [2007] CSOH 94. These cases do not focus on technical aspects of pleadings and are concerned with issues specific to the particular cases determined after proof. Counsel for the pursuer did submit that he could draw assistance from Wilkes, page 674C-D. Counsel stated that a judgment about the degree of care reasonably to be expected in all the circumstances required to be made and that required a proof about the facts to enable such a judgment to be made. I think there is force in that general submission. Counsel for the pursuer submitted that the Court was not entitled to dismiss the pursuer's action as irrelevant as the Court could not be satisfied that, even if the pursuer proves all his averments, that the action must necessarily fail. I consider that this submission by counsel for the pursuer is well founded. As I have stated, I consider that the facts of the case are critical. It is only from the assessment of the facts that it will be possible to judge properly whether there has been a breach of duty and negligence on the part of the first defender. I am satisfied that although the averments founding and averring breach of duty are sparse, that does not entitle me at this stage to conclude that the pursuer's case must necessarily fail. On the issues argued before me, I am not prepared to grant dismissal as requested by counsel for the first defenders. I therefore reserve the first defender's first plea-in-law and allow a proof before answer.

[8] As a footnote, in discussion, counsel for the first defender criticised the lack of specification in the pursuer's pleadings at page 6E relating to averment about what the first defender is alleged to have said after the accident. No specification is given about the person or persons to whom the statement was allegedly made. One might have expected such specification bearing in mind the need to give fair notice. But this point was not pressed by counsel for the first defender and was not included in his written note of argument. The point was not addressed in answer by the pursuer's counsel. In these circumstances I leave this for the parties to deal with as they think fit.