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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ferguson (AP) v Stringfellow [1999] ScotCS 44 (10 February 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/44.html Cite as: [1999] ScotCS 44

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The pursuer is a 28 year old man who suffered serious injuries on Saturday 9 April 1994 at a fairground in Carnoustie when he was flung out of a machine known as a Sizzler Twist while it was in operation. The proof in the case was substantially concerned with how this happened, it being accepted, of course, that the onus lay on the pursuer to show that the accident happened as a result of fault, direct or vicarious, on the part of the defender who owned and operated the machine.

Two experts gave evidence, one for each party to the action. There was no difference in their evidence so far as the description of the machine was concerned. Both experts, Professor Kirkwood for the pursuer and Mr Stephen Grant for the defender, provided reports, respectively Nos. 13/2 and 16/2 of process, each of which provide useful photographs of the machine and, in particular, the cars in which customers sit while the machine is in motion. I draw my summary of the operation of the machine from their reports, as well as from their evidence.

The Sizzler Twist is a fairly long established fairground ride. In essence, it is a carousel type of machine in which the main frame rotates in a clockwise or anti-clockwise direction. At the end of each of the four limbs or arms of the main frame there is a sub-carousel with four cars rotating in an opposite direction to that of the main frame. While the main frame moves in an anti-clockwise direction, the cars proceed in a clockwise direction. The operator - in this case the defender himself on 9 April 1994 - would stop the operation and reverse the phase before reaching full speed over about twenty seconds. A typical journey takes about three to four minutes. It is clear that the person in the operator's cabin has complete mechanical control over the operation of the machine. Each car is capable of containing three adults. Their height presents no problem, but their bulk might lead to the accommodation within the car being somewhat cramped. This is due in part to the nature of the passenger restraint device or cage which is part of the car. An understanding of how it operates is critical to the question of how the accident happened.

The restraining cage is attached to the front of the car where it pivots on two pins, one on either side of the car. It is in upright or open position before passengers enter and are seated in the car. Once they are seated, it is pulled down over the lower body and legs of those travelling in it. Photographs 3, 4, 5 and 6 in Mr Grant's report well illustrate this. The cage is fixed in position by a slotted central bar and spring mounted shaped pin arrangement. As the cage is lowered downwards, so the slotted central bar which is part of the cage, moves until the appropriate slot is engaged by the latch or shaped pin which can be seen in figure 5 of Professor Kirkwood's report and photographs 9 and 10 in Mr Grant's report. Which slot is engaged depends upon the bulk of the person or persons within the car. The bulkier the person, the higher on the central bar will be the slot that is engaged. Once the slot is properly engaged in the latch, it is not possible for the cage to be released without pressure being applied to the small control lever with its round black knob which is at the bottom of the arrangement. To open the cage the control lever is pressed downwards. As can be seen in Mr Grant's report and his photographs 8, 9 and 10, there is a sign on the outside of the car which says: "Press catch down to open the bar". None of the three occupants of the pursuer's car was aware of this sign. Indeed, none of them had been on a Sizzler Twist before.

It can be seen from photographs 13 and 14 in Mr Grant's report that it is possible to depress the control lever by means of a foot. This, however, is extremely difficult to achieve even when the car is stationary. Sergeant McLuckie who attended on the night of the accident along with the then PC Bowles to inspect all the equipment, was unable to do it. Mr Monaghan, the inspecting HSE official, achieved it only with extreme difficulty. With the Sizzler Twist machine in operation it would be much more difficult to do. Indeed, according to the evidence, it had never been known to have been done, and could only be done deliberately, not accidentally. The only evidence that it was ever done came from the defender who said that on some occasions he had seen those who were familiar with the machine operating the lever with their feet from inside the car as it was slowly coming to a halt because they were unwilling to wait for the attendants to do so. I do not accept Mr Grant's evidence that those who were intoxicated with alcohol (as the pursuer and his companions were) would find it easier to achieve.

The attendant's duties included taking the customer's fares and checking that the cage was locked in position. Most customers, according to the evidence, pulled the cage down themselves, but the attendants were instructed to check in each case that it was locked. They did so by pulling it upwards. Obviously, if it did not come upwards, it was locked. Equally, if they themselves placed the cage in position, they would hear a click if the cage was locked before they pulled it upwards to check that that had happened. In the controller's central box there was no means of knowing whether all the cages were locked in position. At the same time, it has to be said that there were no known incidents of a cage opening during the operation of the machine.

The day of the accident was the day of the Grand National. The pursuer, who was in the company of Anthony Goddard, put a bet on the race in the afternoon. Their friend, Grant Purdom, joined them about 4.00pm. By the time they reached the fairground they had each consumed several pints of beer. While affected to some extent by the beer and, as a result, being somewhat boisterous, they were not however drunk. Between 8.30pm and 8.45pm they went on the Sizzler Twist. The pursuer, who was in the centre of the car, had Grant Purdom on his left and Anthony Goddard on his right. Mr Goddard then was about 151/2 stones in weight. He is 6 feet 21/2 inches in height. Mr Purdom was 151/2 stones in weight, and is 6 feet 2 inches in height. All three friends are approximately the same age - between 25 and 28. Given the size of Mr Purdom and Mr Goddard it was a fairly tight fit for all three in the car. None of the three was sure whether an attendant pulled the cage or bar as they referred to it, down, or whether they did it themselves. There were two attendants on the machine that night, only one of whom, Gary Miller, gave evidence. The other attendant, Colin Stewart, could not be traced. Of the three men seated within the car, only Purdom gave evidence that the bar was checked by the attendant. Even he, however, was uncertain about that. The attendants, he said at page 57B of the Notes of Evidence, checked everybody else's bar, but in the end he said that he could not remember his bar being checked (57D). In cross examination he said (at page 66B), that he gave a tug or pull before the machine started and the bar was locked (66C). But in re-examination (at page 67C) he said that it was just a very small shake he gave it.

The point in the cycle of the machine during which the accident happened is important and it is also in dispute. The pursuer and those in the car with him maintained that the machine was beginning to slow down in its first phase when the cage suddenly sprang up and, first Anthony Goddard, and then the pursuer fell out. The defender was clear that the accident happened after the machine had slowed right down to a halt at the end of the first phase and had reached the middle of its second phase. He also remembered that he had to shout to those in the pursuer's car to behave because they were clowning about and one was attempting to stand up. He could not stand up if the cage was properly shut. According to the defender, he was not succeeding in standing up despite his attempts. While those in the pursuer's car accepted that they had waved their hands in the air because they were encouraged to do so by the defender, they denied misbehaving and they were not aware of anyone shouting at them. I should add, for what it is worth in relation to their alleged misbehaviour, that the pursuer and his two companions struck me as fairly responsible individuals. The pursuer is employed as a packer for a firm of potato merchants. Mr Goddard works for a consulting agency, Search, in British Telecom in Dundee. Mr Purdom is an Assistant Branch Manager of a pipeline merchant.

The defender's account of bringing the ride to a halt and changing direction is in line with what is averred on his behalf on Record at page 15, and I note that these averments are admitted on behalf of the pursuer on page 13. Yet none of those in the pursuer's car said the machine had changed phases when the accident happened, and they were not cross examined that they were wrong in their recollection that the accident occurred during the first phase. The attendant, Gary Miller, could not remember during which phase the accident happened. The matter is of some importance because of the evidence of Professor Kirkwood who said in evidence that in phase 1 of the travel the cars would be travelling forwards and the customers would be forced back in their seats. When, however, the machine slowed down as it approached phase 2, the movement would be forward and slightly outward. That, in Professor Kirkwood's opinion, would have had the result of the cage moving forward of its own volition, depending on the rate of deceleration, if it was not properly secured in the first place. If the car, however, had begun its journey in phase 2 without the cage moving upwards, it would probably follow that the cage was properly locked throughout phase 1.

The defender maintained in evidence that if the central bar of the cage had not engaged in the top or last notch, that would have been very obvious and he would not have started the ride before it was checked. Visually, he said, he always checked all the cars before starting the ride, notwithstanding that the attendants should have checked the security of all the cages by the time the ride was due to start. There must, I suppose, remain the possibility that the cage looked as if it was in a normal, secure position, but it in fact was not. If this were the case, it follows that the attendant could not have checked that it was in a locked position. The defender said in his evidence that he remembered the night quite clearly. The bar on the cage was past the last notch. It was definitely not above it. It was submitted by Mr Smith who appeared for the defenders, that because Mr Goddard could feel the weight of the bar on his knees when it was put down, that clearly indicated that the cage was in a locked, secure position. The answers which Mr Goddard gave on this topic in the Notes of Evidence are not entirely clear. Part of his answer at page 46E appears to be missing and at page 47D he said that he just felt the weight on his legs when he was standing up. He could only be standing up if the cage was not locked. In light of these answers by Mr Goddard I am not disposed to draw any inference that the cage was in a locked position. What Mr Purdom, however, said in evidence, if correct, about testing to see if the bar was locked and finding that it was, is in altogether a different position, and I shall deal with that later. Perhaps I may be permitted to state the obvious by saying that the object of the attendants pulling on the cage or bar must have been to determine whether the cage was locked, even if it looked as if it were. In other words, the cage might appear to be secure or locked when in fact it was not.

I turn now to look at the evidence given by William Bowles, then a police constable and now a detective constable, to see if it sheds any light upon what happened and in particular upon what, if anything, Anthony Goddard did to cause the accident, bearing in mind that he, too, was injured. Mr Bowles and Sergeant McLuckie checked every car for defects and they found none. In the case of each car the locking devices all worked as well as could be expected. So, there appeared to be no defect in the equipment to account for the accident. That, I may say, was confirmed by the HSE inspection later. Mr Bowles saw Anthony Goddard at the scene. After the accident he had run off, despite being injured, and was found 200 or 300 yards away by a witness who then led him back to the scene where Mr Bowles took his name and address and allowed him to travel in the ambulance with the pursuer. He was, said Mr Bowles, very confused as to what had happened. He knew that there had been an accident but did not appreciate its extent.

Two days later Mr Bowles interviewed him at his home. The only signs of injury he bore were cuts and bruises, and he appeared to have calmed down. The interview took the form of a question and answer session which Mr Bowles wrote into his notebook in the form of a statement. The statement which he took is as follows:

Mr Bowles said that, if he followed his usual practice, he would have given his notebook to Mr Goddard to read the statement before Mr Goddard signed it, which he did. Mr Bowles said in evidence that he asked Mr Goddard how he thought the accident happened and how he came to be thrown out, and he replied that he did not know: it was an accident. Mr Bowles asked him if it was possible that he might have kicked the lever and he said:

inquired Mr Bowles. To that Mr Goddard said: "I accept that". Mr Bowles agreed in cross examination that it would have been very difficult to have done that accidentally. In his own evidence Mr Goddard denied ever having his feet outside the car. When he was asked if he ever blamed himself for the accident, he replied:

(See pages 35-36 of the Notes of Evidence). He also explained that following the accident he was off work for two weeks because of shock. He acknowledged that on a couple of occasions only, when visiting the pursuer in hospital which he did regularly, indeed nearly every day, he discussed with the pursuer how the accident happened, but they could not come up with an answer. According to the pursuer, they discussed what had happened, but Mr Goddard "just could not remember anything". (17C).

I agree with counsel that there were only two possible explanations for the accident. Either the cage was not properly locked in position at the start, or one of those on the ride deliberately released the catch during the ride. As the defender's counsel put it, both explanations were highly improbable. The question is which is the less highly improbable. I confess that I have not found the determination of this question an easy one. I was, however, very impressed with the evidence given by the defender who was clear and convincing in his evidence. He was certain that the accident had happened in the second phase of the machine's operation. That, of course, is in accordance with what is averred on his behalf and what, indeed, is accepted in the pursuer's pleadings. It is surprising, in view of the importance of this evidence which I have already discussed, that the pursuer and his two companions were not cross examined thoroughly on this aspect of the case. The defender conceded that it was possible that he might have failed to spot that the bar was not in proper position. Everything was possible, he said, but he was very, very doubtful that he would have missed it. If the accident happened during the second phase, as I accept it did, following the defender's evidence, it is most improbable that the cage was not secured because, according to Professor Kirkwood's evidence, it would have begun to rise up during the deceleration of the car towards the end of the first phase if it had not been locked. In any event, there is no reason I can see not to accept Mr Purdom's evidence that he checked the bar and it was locked (66C). Even if it was a very small shake he gave the bar (67C), he did not alter his evidence in re-examination that the bar was locked before the machine started.

I also find it strange that Mr Goddard should ever have accepted that he might have been responsible for the accidental release of the catch. Why should he be responsible rather than anyone else in the car? Was it because he was dizzy and wished he had never got on the ride? And why did he run away from the scene of the accident? Although the defender's counsel did not make anything of this, I do find that conduct strange. It may, of course, be the result of shock which can affect different people in different ways. Having accepted the defender's evidence for the reasons I have given, I am driven to the conclusion that, however difficult it may have been, Mr Goddard deliberately put his foot outside the car, that his foot came in contact with the lever and that, as a result, the lever was operated, thereby releasing the catch. From what I have found, it follows that he did this during the second phase of the machine's operation. It also follows from what I have concluded, that the case of Inglis v LMS Railway Company 1941 S.C.551 to which I was referred, is not in point because in that case the sheriff found that no one in the compartment had interfered with the door which opened during the journey, causing the pursuer's child to fall out of the carriage to his death.

In the course of the evidence of Professor Kirkwood the pursuer's counsel attempted to make a case based upon Annex 2 in Mr Grant's report, to the effect that the locks on the car should have been so constructed or positioned that they could not be readily operated by customers in the car; and that, for example, there should have been double feature catches, suitably shrouded catches, or catches so positioned that only the ride attendant or operator could open them. Mr Smith for the defender immediately objected to this line of evidence. The pursuer's counsel conceded in his speech that there was no Record for this case. I therefore uphold the defender's objection which I had reserved during the proof. Since the pursuer's cases against the defender are based upon a failure properly to secure the cage on the car in which the pursuer was travelling, these cases in my judgement fail.

I will therefore repel the pursuer's first three pleas. I will sustain the defender's third, fourth and sixth pleas; and I will grant decree of absolvitor in favour of the defender.

Act: Hajducki, Q.C., Boyd

Erskine MacAskill & Co

(for W G Boyle & Co,

Solicitors, Dundee)

Alt: A Smith

Simpson & Marwick,W.S.,

10 February 1999