EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lord Reed Lord Drummond Young	[2011] CSIH 64 PD1342/07 OPINION OF THE COURT delivered by LADY PATON in the cause IAN McCALMAN RANKIN (A.P.) Pursuer and Reclaimer; against JOHN JACK trading as LOCHILL EQUESTRIAN CENTRE Defender and Respondent: _______

Act: Hajducki, Q.C., A. Macmillan; Thompsons (for John Henderson & Sons, Solicitors, Dumfries) (Pursuer and Reclaimer)

Alt: Macpherson, Solicitor Advocate; Simpson & Marwick, W.S. (Defender and Respondent)

11 October 2011

Introduction

[1] On 27 September 2005 the pursuer was seriously injured when he was run over by a tractor and trailer. He had left the tractor with a loaded trailer in a stationary position on a slope, in order to close a gate. The tractor initially remained in position, but then began to move down the slope. The pursuer attempted to regain control of the tractor. He was knocked down and run over.

[2] Some months after the accident, engineering experts examined the tractor, trailer, and the scene of the accident. In February 2006 Mr Robinson, a consultant engineer, carried out an examination on behalf of the pursuer's employer (the defender). In June 2006 another consultant engineer (Mr Johnston) made an examination on behalf of the pursuer. The pursuer then raised an action of reparation against the defender. Issues initially in dispute included whether or not the pursuer had in fact been employed by the defender; whether there had been breaches of the employer's common law duty to provide a safe system of work (including training); whether there had been breaches of the Provision and Use of Work Equipment Regulations 1998; and whether there had been any contributory negligence on the part of the pursuer. Ultimately however the crucial issue became whether or not the pursuer had applied the tractor parking brake before walking towards the gate.

[3] The pursuer's case was that the accident occurred because the trailer was overloaded, thus overcoming the tractor brake. At a proof before answer, the pursuer gave evidence that he had indeed engaged the tractor's parking brake, and had also turned the tractor wheels into the incline and lowered the tractor bucket as a further means of holding the tractor. Also, as noted in paragraph [4] of the Lord Ordinary's Opinion -

"[b]oth [the pursuer and his wife] spoke to a comment made by Mr McIlwraith [the defender's vehicle maintenance manager] when he visited [the pursuer] in hospital, which they understood to be an acceptance by him that the trailer was overloaded."

As explained in paragraph [19] of the Opinion, the pursuer's expert Mr Johnston gave evidence that he -

"... could 'conjecture' that the load was over 2 tons, perhaps up to 3 tons. If it was 3 tons, the brakes were 'likely to slip' ... To explain how or why the vehicle remained at rest and then moved off, Mr Johnston suggested that the front bucket was lowered, but then after a while it lifted up, allowing the brakes, which were then holding the load on their own, to be overcome ..."

The weight and nature of the load on the trailer at the time of the accident was not established at the proof. The tractor brake was not shown to be defective.

[4] By contrast, the defender's case was that the trailer had not been overloaded. The accident had occurred simply because the pursuer failed to apply the parking brake when he stopped the tractor on the slope. Both the defender and Mr McIlwraith gave evidence that, on arriving at the scene of the accident, they found the tractor parking brake to be off. In relation to the hospital visit (paragraph [17] of the Opinion) -

" ... [Mr McIlwraith] denied that when he visited [the pursuer] in hospital, he said that the trailer was overloaded. He might have said that [the pursuer] had been run over by a substantial weight, meaning the tractor and trailer together ... 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."

[5] The Lord Ordinary assessed the evidence as follows:

"[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 be 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."

[6] The pursuer reclaimed. The pursuer's agents sought to introduce fresh evidence on the basis of res noviter veniens ad notitiam. That application was heard and ultimately refused by the Inner House in an Opinion dated 2 June 2010.

Submissions for the pursuer

[7] Senior counsel for the pursuer acknowledged that the appeal court should be slow to disturb decisions on credibility and reliability unless persuaded that the Lord Ordinary was plainly wrong, or had failed to take proper advantage of seeing and hearing the witnesses: Clarke v Edinburgh and District Tramways Co 1919 SC (HL) 35, at page 37; Thomas v Thomas 1947 SC (HL) 45 at page 54. However the court would be more ready to treat matters as at large where the Lord Ordinary had failed to give clear and satisfactory reasons: Morrison v J Kelly & Sons 1970 SC 65; Hamilton v Allied Domecq plc 2006 SC 242 paragraph 84.

[8] In this case, the Lord Ordinary expressly stated that, had the pursuer's evidence stood alone, he would have accepted it. That being so, he was not entitled to reject the pursuer's evidence on the basis of the evidence of the defender and Mr McIlwraith, for several reasons. First, the Lord Ordinary was not entitled to speculate that the pursuer might have played and replayed events over in his mind, ultimately convincing himself that he had applied the parking brake. There was no basis in the evidence for such an approach. Secondly, the Lord Ordinary appeared to have overlooked the pursuer's evidence (recorded at page 31C et seq of the transcript) to the effect that during the trip when the accident happened the tractor was handling differently as a result of the excessively heavy load. Thus the trip had been a special and distinctive one which the pursuer would remember. Thirdly, the Lord Ordinary had not taken into account important discrepancies between the evidence of the defender and Mr McIlwraith, and between their evidence and that of other witnesses. In particular there were inconsistencies relating to who was first at the scene of the accident; who first examined the tractor after the accident; the weight of the trailer load at the time of the accident; what Mr McIlwraith said about that load when he visited the pursuer and his wife in hospital; whether or not the trailer had tipped over after the accident; whether or not the tractor engine was running when the tractor was found after the accident; whether a leather belt found on the tractor had some sort of function; whether a pin was missing in the bucket on the tractor; and whether or not the trailer was in good condition. These matters taken individually might not seem significant, but when viewed altogether they cast considerable doubt on the credibility of the defender and Mr McIlwraith.

[9] Counsel ultimately submitted that the Lord Ordinary had "gone plainly wrong". He had not taken certain evidence into account; and in view of the unsatisfactory nature of the evidence given by the defender and Mr McIlwraith, the Lord Ordinary was not entitled to reject the pursuer's evidence on the basis of their evidence. The appeal court should reassess the evidence. That would result in a finding that neither the defender nor Mr McIlwraith could be held to be credible about the crucial issue (i.e. whether the tractor parking brake was on or off after the accident). The interlocutor assoilzieing the defender should be recalled, and decree granted in favour of the pursuer.

Submissions for the defender

[10] Mr Macpherson invited the court to refuse the reclaiming motion. He submitted that findings of credibility and reliability made by a court at first instance should not be disturbed unless the Lord Ordinary was shown to have been plainly wrong: Clarke v Edinburgh and District Tramways Co 1919 SC (HL) 35; Benmax v Austin Motor Co Ltd 1955 AC 370, dicta of Viscount Simonds; Thomson v Kvaerner Govan Ltd 2004 SC (HL) 1 paragraphs [16] to [20]. Unlike the appeal court, the Lord Ordinary had had the advantage of seeing and hearing the witnesses: Thomas v Thomas 1947 SC (HL) 45 at page 54 et seq. Only where it appeared that the Lord Ordinary's reasons were unsound should the appeal court review his findings: Dingley v The Chief Constable of Strathclyde Police 2000 SC (HL) 77, at pages 81 to 82. In the present case, it was not accepted that the Lord Ordinary's reasons were unsound.

[11] These arguments were all the more relevant where the key issue was one of credibility. While the pursuer had given evidence that he had applied the parking brake, there was other evidence to the contrary. The evidence about the mechanism of the parking brake in itself militated against the pursuer's version of events.

[12] In response to specific criticisms advanced by the pursuer, Mr Macpherson made the following submissions. (a) On the evidence available, the Lord Ordinary had been entitled to conclude that there had been a misunderstanding about what Mr McIlwraith said during the hospital visit. (b) The evidence about the final position of the trailer after the accident had been conflicting, and the Lord Ordinary was entitled to reach the conclusion he did. (c) Similarly there had been conflicting evidence about the function (if any) of the leather strap and the pin. Ultimately the Lord Ordinary was not asked to rule upon possible defects in the tractor. Also the pursuer accepted that the tractor's braking system was not defective. Thus the leather strap and pin were not directly relevant to the crucial issue. (d) The same argument applied to the general condition of the trailer. Ultimately the condition of the trailer was not relevant to the cause of the accident. (e) The trailer braking system was also irrelevant. It had not been operational for some time. There was no evidence that its lack of function was material.

[13] In conclusion, none of the points made by the pursuer were sufficient to entitle the appeal court to conclude that the Lord Ordinary erred in his assessment of the credibility and reliability of the defender and Mr McIlwraith in relation to the crucial issue, namely whether the parking brake had been applied. The reclaiming motion should be refused. If, contrary to the respondent's submissions, the appeal court were minded to assess the evidence of new, that exercise would prove very difficult, particularly as assessments of credibility and reliability of witnesses and of the weight of the evidence would have to be made on the basis of reading the papers without seeing or hearing the witnesses.

Discussion

[14] The Lord Ordinary had the advantage of seeing and hearing the witnesses giving their evidence. As Lord Hope observed in Thomson v Kvaerner Govan 2004 SC (HL) 1:

"[17] ... a Lord Ordinary's view on the credibility or reliability of a witness is not sacrosanct. But the jurisdiction of the appellate court must be exercised within narrow limits where the only issue is whether it should take a different view from that which the trial judge formed on the facts. Viscount Simon said in Thomas v Thomas (p 48), that Lord Greene MR had admirably stated the limitations to be observed in the course of his judgment in Yuill v Yuill. In that case Lord Greene MR said (p 19): 'It can, of course, only be in the rarest of occasions, and in circumstances where the appellate court is convinced by the plainest of considerations, that it would be justified in finding that the trial judge had formed a wrong opinion.'

[18] Although Lord Morison said that the reasons given by the Lord Ordinary for holding as he did were not satisfactory, the opinion which he delivered falls short of saying that the Lord Ordinary had gone plainly wrong. He said that the conclusion which the court had reached was that Mr Cox's opinion was not of sufficient weight by itself to justify rejection of the respondent's direct evidence as to the occurrence of the accident. I am left with the clear impression that their Lordships, for their part, did not give the weight which an appellate court ought to give to the decision on the facts by the judge who was sitting at first instance. Instead they appear to have given way to the temptation which must always be resisted by an appellate court of retrying the case on the printed evidence.

[19] The rule to which I have referred is so familiar that I would regard it as quite unnecessary for an appellate court as a matter of routine to cite the well-known authorities. But one ought to be able to detect some signs, in the language used or at least in the general approach which has been taken, that the court had the rule in mind when it was addressing the argument. One would expect it to be said that the Lord Ordinary had gone plainly wrong or that it unmistakably appeared from the evidence that he had not taken proper advantage of the opportunity which he had of seeing and hearing the witnesses. Those indications are absent from Lord Morison's opinion. What one finds instead is a re-examination of the question which was pre-eminently a matter for the Lord Ordinary - namely whether the respondent's account was to be regarded as reliable having regard to the weight of the evidence.

[20] Lord Morison was, of course, right to point out that the respondent's evidence must be approached on the basis which the Lord Ordinary accepted that he was not being deliberately untruthful when he gave his account of the accident. Credibility was not an issue in this case, as it was ultimately seen by the Lord Ordinary. The question to which he addressed his mind was whether the account which the respondent gave was to be rejected as unreliable. But the fact that reliability, not credibility, was the issue does not mean that an appellate court is in as good a position to resolve it as the trial judge. This is because there are various ways of testing a witness's reliability. One way is to see how his account fits in with the other evidence. If that were to be regarded as the only test, it would no doubt be capable of being performed equally well by an appellate court as by the judge who is sitting at first instance. But another way is to examine the witness's demeanour in all its various aspects when he is giving his evidence. If his version of the facts is in conflict with that which is given by another witness whose honesty is not in doubt, the demeanour of that other witness too will also be relevant. The demeanour of the respondent and Mr Cox when they were giving their evidence was part of the material before the Lord Ordinary. An appellate court should be slow to interfere with a decision based on a view of the reliability of witnesses of whom the Lord Ordinary was able to make a personal assessment."

[15] Accordingly the test to be met by the pursuer in this reclaiming motion is a high one. In our view, it has not been met. We have reached that view for several reasons.

[16] First, the Lord Ordinary's comment in paragraph [35] that -

"[h]ad the pursuer's evidence been the only relevant evidence on the key facts [he] would have had no difficulty in accepting his account of events"

did not restrict him in his assessment of the whole evidence in the case, as the pursuer's testimony clearly did not stand alone. On the contrary, there was other evidence relevant to how the accident had occurred, and that evidence had to be taken into account, weighed up, and assessed by the Lord Ordinary along with the pursuer's account of events. In any court case, the assessment and weighing up of all the evidence may result in the judge finding a witness who made a favourable impression in court nevertheless to have been inaccurate in relation to some matters (the issue of reliability), and in some cases to have been lying (the issue of credibility). In this particular case, the Lord Ordinary, having considered and weighed up all the evidence, in effect found the pursuer to be a credible witness, but concluded that his evidence could not be relied upon in every respect. Nothing said in the course of the submissions before us has persuaded us that the Lord Ordinary erred in so doing.

[17] Secondly, questions of credibility, reliability, and weight of the evidence, are pre-eminently for the judge at first instance. The Lord Ordinary had the advantage of seeing and hearing the witnesses give their evidence: Thomas v Thomas 1947 SC (HL) 45, at page 54. The Lord Ordinary's conclusions that the pursuer was credible, but that he might not be wholly reliable, cannot in our view be criticised. The added observations about the possibility that the pursuer might have replayed events over in his mind were perhaps an unnecessary gloss, but those observations do not, in our view, detract from the reasoned conclusion reached on the basis of all the evidence.

[18] Thirdly, while we accept that there were unsatisfactory passages in the evidence of the defender and Mr McIlwraith, it does not follow that the Lord Ordinary was not entitled to accept other parts of their evidence. On the contrary, the Lord Ordinary was entitled to accept parts of their evidence, and to reject (or fail to be satisfied with) other parts. Thus while the evidence of the defender and Mr McIlwraith in relation to, for example, the leather strap and the condition of the trailer was criticised by counsel for the pursuer, their evidence that the tractor brake was found to be off after the accident remained available to the Lord Ordinary for his assessment and acceptance.

[19] Lastly, when assessing whom to believe in respect of the crucial issue, namely whether or not the tractor brake had been applied by the pursuer before he walked to the gate, the Lord Ordinary was entitled to take into account not only the evidence of the defender and Mr McIlwraith, but also the fact that the evidence before him did not explain how the accident could have occurred in the way the pursuer described if the tractor brake had been properly applied. He was entitled to conclude that there was no evidence which could satisfactorily explain the tractor remaining stationary for a time before beginning to move down the slope. In particular, as the Lord Ordinary noted in paragraph [39] of his judgment:

"... 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 and 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 ..."

In this context the Lord Ordinary expressly preferred the evidence of Mr Robinson: cf paragraph 20 of his Opinion. Further, as Lord Reed noted in paragraph [4] of the Opinion of the Inner House dated 2 June 2010, the only explanation which Mr Robinson could offer to explain a period when the tractor remained stationary before moving down the slope was mechanical failure or accidental release of the brakes: yet neither mechanical failure nor accidental release of the brakes had been proved to have occurred. Another hypothesis set out on the last page of the pursuer's Note of Argument suggested that the parking brake might have appeared to hold, but then had been affected by the pursuer dismounting from the tractor. However there was evidence from Mr Robinson (at pages 516D-519B of the transcript) to the effect that such a sequence of events would tend to indicate that the parking brake - which had nine ratchet positions (paragraph [21] of the Lord Ordinary's Opinion] - had not been sufficiently well set. In the result therefore we are of the view that, on the evidence, the Lord Ordinary was entitled to conclude, as he did, that the more likely explanation for the sequence of events was that the parking brake had not been properly applied.

[20] Ultimately we are not persuaded that the Lord Ordinary has "gone plainly wrong" or that "it unmistakeably ... appears from the evidence ... that he has not taken proper advantage of his having seen and heard the witnesses": Thomas v Thomas 1947 SC (HL) 45 at pages 54 and 59; Thomson v Kvaerner Govan Ltd 2004 SC (HL) 1 paragraphs [18]-[19]. It follows that the reclaiming motion cannot succeed.

Decision

[21] For the reasons given above, we refuse the reclaiming motion. We reserve all questions of expenses to enable parties to address us on that matter.