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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Buchanan (AP) v Miller WS & Ors [1999] ScotCS 69 (5 March 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/69.html Cite as: [1999] ScotCS 69

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In this action the pursuer avers that she sustained an accident at her place of work on or about 20 May 1990 when, as she was sitting in the canteen where she was employed as manageress, a substantial part of a suspended ceiling above her collapsed, striking her about the head and upper body and covering her in debris so that she was trapped and could not move. She was removed from beneath the debris of the fallen ceiling and taken to St John's Hospital, near Livingston, for treatment. She avers that thereby she suffered serious loss, injury and damage. The ceiling comprised tiles and metal framing, and strip lights were attached to it. Although suspended, the ceiling was, it is averred, normally attached to the structure of the canteen building.

Shortly after the accident, in or about July 1990, she avers that she consulted Messrs Drummond Miller, W.S., the defenders in this action, at their Bathgate office. The partner of the defenders whom she consulted there was Mr Alastair Burleigh. He accepted her instructions and advised her that he would proceed with her claim and, if necessary, raise proceedings for damages. She avers that the defenders failed to progress her claim. They did not intimate a claim on her behalf to her employers, Batleys plc, or any other party. They took no steps whatsoever to investigate the circumstances of her accident and in particular to investigate the cause of the collapse of the ceiling. They took no steps to determine the identity of any party, other than her employers, who might be responsible for the erection and/or maintenance of the suspended ceiling. Shortly before the triennium expired in May 1993, the defenders prepared and served on the employers an initial writ in which the pursuer claimed damages from her employers for the injuries she sustained in the accident. The grounds relied on in the pleadings were the employers' alleged breach of their statutory obligations in terms of the Occupiers Liability (Scotland) Act 1960, and also fault at common law. In the defences lodged by her employers it was averred that they had a proper system for the maintenance of their premises involving a defects reporting system and the appointment of maintenance contractors. The pursuer goes on to aver that the defenders took no steps to investigate these averments made by her employers. The Record closed in November 1993 on the unadjusted initial writ and defences, and the action was sent for debate. By June 1994 the defenders still had not carried out any further investigations into the pursuer's case, but they lodged a minute of amendment which resulted in some adjustment of the pleadings and a discharge of the diet of the debate which was re-appointed for a date in February 1995. In December 1994 solicitors acting for the pursuer's employers suggested settlement of the action on the basis of absolvitor in their favour, but with no expenses due to or by either party. The defenders agreed to that proposed settlement without obtaining the pursuer's instructions. In so doing, the pursuer avers, the defenders deprived her of her right to continue her action against her employers and, since more than three years had elapsed since the accident, she was unable to proceed against any other party.

The defenders' answers to these averments are noteworthy. So far as the accident is concerned they admit only that the pursuer was employed by Batleys; that on or about 20 May 1990 at about 10.00am she was in the canteen; and that she was taken to St John's Hospital for treatment. The averments relating to the nature of the ceiling and its construction, and to the other circumstances of the accident are not known and not admitted. This, I regard, as remarkable, if the defenders accepted the pursuer's instructions and carried out any investigations into the accident. The same observations can be made about the averments in Answer 3. There the defenders incredibly only "believe to be true" that Mr Alastair Burleigh was their partner at the material time and that the pursuer consulted him at their Bathgate office. They believe it to be true that he accepted the pursuer's instructions and that she first consulted him in July 1990. Can the defenders really have no documentary evidence in their possession with which to admit these averments, even on the assumption that Mr Alastair Burleigh is no longer a partner of the defenders? Thereafter, all that the defenders aver by way of admission is that the initial writ was served on Batleys in May 1993 and that in it the pursuer claimed damages from Batleys for the injuries she sustained in the accident in May 1990. All the other averments are denied.

I well appreciate that the case for the defenders is being conducted by another firm of solicitors and it is probable that they are acting on the instructions of the defenders' professional indemnity insurers. That, I accept, is the reality. I would, however, have expected more candour and certainly more detail in their pleadings, given the nature of the accident to which I will return shortly, and the fact that they accepted the pursuer's instructions to prosecute her claim in relation to the accident. It is obvious that in their defences the defenders are simply putting the pursuer to her proof, as Mr Williamson expressed it, and it is impossible for me to ignore the quality of these pleadings when I consider the defenders' criticisms of the pursuer's pleadings, even if it be the case that, for whatever reason, the defenders are handicapped in answering the pursuer's averments fully.

There is in any event a certain piquancy in the defenders now criticising the inadequacy of the pursuer's pleadings and encouraging the pursuer to carry out further investigations almost nine years on, when, according to the pursuer's averments, they themselves failed to investigate the circumstances of the accident and presented wholly irrelevant pleadings on her behalf. As Mr Williamson observed wryly, it would mean that the more abject the defenders' failures to investigate and to prosecute the pursuer's claim, the more advantageous was their position as defenders in an action against them for professional negligence based on these failures. Lord Avonside expressed this in characteristically trenchant language in Yeoman's Executrix v Ferries 1967 S.C. 258 at p.264:

With that introduction I turn to consider the defenders' attack on the pursuer's pleadings.

Mr Young, who appeared for the defenders, submitted that there were insufficient factual averments with regard to the original accident, its likely cause or causes, and the parties responsible for it. The onus was on the pursuer in this action to show that she had lost her right to proceed with the action and that it had an ascertainable, measurable and non-negligible value. (See Kyle v P & J Stormonth Darling, W.S. 1993 SC 57 per Lord McCluskey delivering the Opinion of the Court at p.69E). She had to show, he said, that the original claim had a tangible value.

The pursuer did not aver how long the ceiling had been in place or which part of it failed. She did not aver who installed it, or why it fell on 20 May 1990. He pointed out that in their defences the pursuer's employers had averred a system for maintenance. (I note however that the maintenance was not said specifically to extend to the defective ceiling). The pursuer maintained (at p.12C of the Closed Record) that had her claim been intimated, investigated and pursued with the care and skill to be expected of a solicitor of ordinary competence acting with reasonable care, it would have been settled extra-judicially or would have been prosecuted to a successful conclusion either against Batleys or another party. We are not told, said Mr Young, who these other parties might have been. Were they those who installed the ceiling or who maintained it? Were they insured? Could they meet a decree? On what ground of action would these other parties have been sued? That was crucial to the question whether the pursuer's claim had a tangible value and also in assessing the claim against these parties. The Court could not make any assessment that absolvitor was not the right result. As for the case against Batleys, all that was said was that a res ipsa loquitur case should have been pled. Mr Young questioned the basis for that. Was it intended as the cornerstone of the action, or was it to be employed as a tactic? It looked like the former having regard to what was averred at p.11A of the Closed Record. Insufficient facts were pleaded to show that the res ipsa loquitur case had a tangible value. In the first place the pursuer herself averred that there were other possible defenders, namely the maintenance contractors and those who installed the ceiling. In the second place, there required to be a little more averred with regard to when the ceiling was constructed and whether maintenance of the relevant parts was possible. This, in any event, was not a res ipsa loquitur case. If Batleys had maintenance contractors, it could not be said that they had exclusive management and control of the ceiling. What was there to exclude the possibility of a latent defect?

In this connection Mr Young referred me to the case of Murray v Edinburgh District Council 1981 S.L.T. 253. In that case a home help sustained injuries when a wooden panel containing a ventilator attached to the wall of the house tenanted from the Council, fell onto her wrist. The panel was attached to the wall by three metal spring clips. Lord Maxwell at p.256 rejected the case pleaded on the basis of res ipsa loquitur. He concluded that the failure of a fitting of that kind, when it had been in position for an unspecified period, did not clearly point to negligence. Failure due to a latent defect did not necessarily infer negligence. In any event, it was not said that at all relevant times the panel was under the exclusive management or control of the defenders. Indeed, it was clear that it was not, since the property had been let. I see immediate points of distinction between that case and the case which the pursuer maintains should have been advanced on her behalf by the defenders against Batleys. These I will deal with shortly. In conclusion, on this aspect of the case, Mr Young said that the pursuer had to set out the general thrust of a case against Batleys and any other defenders.

It has to be said that Mr Young made his submissions with a degree of skill and ingenuity. They tended to obscure the fact that it was not really very difficult to understand the case which the pursuer avers in this action, ought to have been pleaded by the defenders on her behalf against her employers, Batleys plc. The pursuer was sitting under a ceiling in the canteen where she worked. A substantial part of it suddenly fell down upon her. She was trapped in the debris and had to be released by others. She sustained certain injuries. In this action she avers that, since the ceiling was under the management and control of Batleys, the case against Batleys should have been pleaded as one of res ipsa loquitur. Properly maintained and inspected ceilings do not suddenly collapse. (cf. Devine v Colvilles Limited 1969 SC (HL) 67). The circumstances of the accident therefore gave rise to an inference of negligence on the part of Batleys. In order to avoid liability Batleys would have required to aver by way of response that the accident had occurred without negligence on their part. To do that, they would have had to identify some other party they contended was responsible for the collapse of the ceiling as, for example, those who installed it or were charged with maintaining it. In fact, as I have already said, the averments made in the defences lodged by Batleys were perfectly general with regard to maintenance, and did not relate specifically to the ceiling. They did not cover, for example, inspection. (Arguably, they were irrelevant because they lacked specification). Thus, Batleys did not identify any other party who was responsible for installing, inspecting or maintaining that ceiling. If the case therefore had been pled as a res ipsa loquitur one, Batleys, the pursuer avers, could not have escaped liability. And any other responsible party whom Batleys chose to identify, could then have been convened in the action by the pursuer. The case however was not pled as one of res ipsa loquitur as it should have been, and when the action was compromised without her instructions by the grant of absolvitor in favour of Batleys, she lost her right to pursue that case.

I am perfectly satisfied that the case which the pursuer makes based upon res ipsa loquitur is prima facie relevant. The case of Murray v Edinburgh District Council is materially different in my view. The panel which fell was clearly not at all relevant times within the exclusive control and management of the Council. Its construction and attachment were quite different from the ceiling in the pursuer's case. And if there was a latent defect in the ceiling, Batleys would in my opinion have to aver that. It is easy, therefore, to understand why Lord Maxwell in Murray rejected the case founded on res ipsa loquitur. If the case which the pursuer maintains should have been made is prima facie relevant, it is not difficult to hold that the pursuer has made sufficiently specific averments that her lost right to proceed with the action has an ascertainable, measurable and non-negligible value. Expressed at its crudest, it could be said that when a ceiling suddenly and without warning collapses onto an innocent employee, an explanation is called for from her employees who, it appears, have had exclusive control and management of it. That, as I understand it, lies at the heart of the case which the pursuer maintains she lost the right to pursue.

Mr Young made three further criticisms of the pursuer's pleadings, all with regard to damages. They related to loss of earnings and the pursuer's failure to aver the relevant wage details in three different jobs. They also related to the pursuer's failure to make any averments about the benefits recoverable under the former CRU scheme. Lastly it was submitted that there were no averments with regard to the services which the pursuer maintained she received and provided, and were lost as a result of the accident. Since Mr Williamson accepted the last criticism, I will delete the averments from "together with" to "Act 1962" between lines 10 and 13 of page 16 of the Closed Record. I am satisfied, however, that in other ways than simple pleading, the pursuer can provide the other details requested by Mr Young, and these Mr Williamson undertook to do.

In the whole matter I will therefore allow a proof before answer of all the remaining averments on Record and refuse the defenders' motion for dismissal of the action.