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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McDyer v Celtic Football & Athletic Co Ltd & Ors [2000] ScotCS 55 (3 March 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/55.html Cite as: [2000] ScotCS 55, 2000 SCLR 643

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The pursuer, Mr. Colin McDyer, has reclaimed against the interlocutor of the Lord Ordinary dated 18 July 1997, dismissing the action. While the case was in the Inner House, the court allowed the pursuer's pleadings to be amended in certain material respects.

The action concerns an alleged incident which occurred on 21 July 1990 when the pursuer attended the Opening Ceremony of the European Special Olympics at Celtic Park in Glasgow. According to his averments in Article 2 of Condescendence, the pursuer and his family made their way towards the west terrace and joined other spectators sitting on a perimeter wall around the track. In the record as amended in the Inner House the pursuer makes the following averments about the incident, those added by amendment being in italics:

The pursuer's case is made against three defenders, first, The Celtic Football and Athletic Company Limited ("Celtic"), secondly, European Summer Special Olympic Games 1990 (Strathclyde) Limited ("European"), and, thirdly, Zurich Insurance Company. For present purposes the involvement of the third defenders can be set on one side. The pursuer's case is directed in the first place against Celtic as occupiers of Celtic Park and the averments of fault against Celtic are set out in Article 3 of Condescendence. In Article 4 the pursuer sets out his averments of fault against European on an esto basis - the hypothesis being that Celtic are correct in alleging that European, rather than Celtic, had control of the premises at the time of the accident.

The averments of fault against Celtic in Article 3 are in these terms, the amendments being again set out in italics:

In addressing this court counsel for the pursuer explained that by the reference in the last sentence which we have quoted, the pursuer intended to adopt only the following averments of Celtic directed against European in Answer 3:

The pursuer's case against Celtic as first defenders is focused in his first plea-in-law.

The averments of fault against European are contained in Article 4 of Condescendence, those added by amendment being again in italics:

The pursuer's plea against European, as second defenders, is focused in his second plea-in-law.

The sixth plea-in-law for Celtic seeks decree of absolvitor on the ground that the accident was caused by the fault of an independent contractor instructed by European, while in their seventh plea-in-law Celtic argue that, if the pursuer suffered loss, injury and damage through Celtic's fault and negligence, it was also caused by the fault and negligence of European and so any award of damages should be apportioned between the defenders inter se in accordance with the provisions of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1940. The fifth plea-in-law for European mirrors this plea for Celtic and seeks apportionment of any damages between Celtic and European in terms of the 1940 Act. Counsel for neither of the defenders advanced any argument to us to the effect that, even if the pursuer's case against the other defender was relevant, that defender's case seeking contribution was irrelevant. It follows that, even if the pursuer's case against one of the defenders were dismissed as irrelevant, that defender's involvement in the circumstances of the incident would still require to be the subject of proof, so far as forming the basis of the other defender's case for contribution. In this connexion it is worth noting that, in Answer 3, European adopt the pursuer's averments against Celtic.

Both before the Lord Ordinary and before this court counsel for the pursuer relied on the doctrine of res ipsa loquitur. In addition, before us counsel for the pursuer advanced an argument on the basis of strict liability, founded more or less loosely on the actio de posito et suspenso promised by the Roman praetor in his Edict. We find it convenient to begin with the pursuer's case based on res ipsa loquitur.

Counsel cited a number of authorities to us, but as good a place as any to start is with Scott v. London and St. Katherine's Dock (1865) 3 H. & C. 596 which is usually regarded as the origin of the doctrine. The plaintiff was a Customs officer who had occasion, in the course of his duties, to be in the vicinity of the defendants' warehouse on the Spirit Quay of the London Docks. The defendants had a crane for lowering goods from the warehouse and the plaintiff was struck by six bags of sugar which fell on top of him. The majority of the Exchequer Chamber held that there was reasonable evidence of negligence on the defendants' part. Erle C.J. said (3 H. & C. at p. 602):

That approach has been applied repeatedly in Scots law and we doubt whether its essence has been stated more succinctly than in the words of Lord Maxwell in Murray v. Edinburgh District Council 1981 S.L.T. 253 at p. 256:

Where the principle applies, in the words of Lord Guest in Devine v. Colvilles Ltd. 1969 SC (HL) 67 at p. 100, defenders escape liability

In the present action, on the basis of the pursuer's pleadings as they were at the time of the procedure roll debate, the Lord Ordinary held that they did not disclose a relevant case for the application of the principle of res ipsa loquitur against either of the defenders. He observed:

The heart of the Lord Ordinary's reasoning was that the pursuer's pleadings did not raise even a prima facie inference of fault on the part of the defenders. In the absence of any averments indicating how long the wood had been there or why it fell, we consider that the Lord Ordinary's view was indeed correct and was fully supported, for example, by Lord Maxwell's decision in Murray. In that case the pursuer averred that she had been injured when a panel containing a ventilator attached to the wall fell and struck her wrist. Lord Maxwell said (1981 S.L.T. at p. 256):

In response to the Lord Ordinary's criticism, the pursuer added the averments which we have identified above. They disclose that wood is not a material which ordinarily formed part of the stadium canopy but that it had been used in temporary works put up shortly before, in connexion with the opening ceremony of the Games. Those averments, if proved, would tend to show that the piece of wood formed part of a structure which had been put up not long before the accident and that this was therefore not a case where any failure could simply have been due to wear and tear. Moreover the averment that at the relevant time the weather was calm would tend to exclude any suggestion that the wood had been dislodged by any violent wind or other extreme weather condition. In those circumstances, applying the test in Jamieson v. Jamieson 1952 S.C. (H.L.) 44 to the fuller averments for the pursuer, we consider that, if they were proved, a court could hold that the fact that the piece of wood fell from the point where the banner was attached to the stadium canopy above the pursuer suggested negligence on someone's part.

Of course, in itself that would not be sufficient to bring the doctrine of res ipsa loquitur into play against the defenders. But, in the case of the first defenders, Celtic, the pursuer avers that they were the occupiers of the stadium and had exclusive management and control over it. Moreover, he avers that the canopy from which the wood fell was inaccessible to the public. For what it is worth, he adds that the temporary works for the opening ceremony could not have been undertaken unless by or with the concurrence of Celtic and subject to any safety precautions which they might have taken or imposed. In our view, these averments, if proved, would be enough, if the averments inferring negligence were also proved, to bring the principle of res ipsa loquitur into operation against Celtic.

On behalf of Celtic, Mr. Connal challenged that conclusion. He argued that, even in their amended state, the pursuer's averments were insufficient to found a case based on res ipsa loquitur. He drew attention to McQueen v. The Glasgow Garden Festival (1988) Ltd. 1995 S.L.T. 211, where a firework had exploded causing its metal launching tube to fragment. One of the metal fragments struck and injured the pursuer. The accident had occurred in the course of a fireworks display organised by the third defenders for the first defenders. The Lord Ordinary, Lord Cullen, held that the doctrine of res ipsa loquitur did not apply and assoilzied both defenders. This showed, said Mr. Connal, that in the present case the pursuer's averments were not relevant to infer negligence on the part of Celtic. In our view, however, it has to be recalled that in McQueen Lord Cullen was dealing with the situation after a proof in which the facts about the cause of the accident were agreed. In that context Lord Cullen remarked (1995 S.L.T. at p. 214 K - L):

It is clear from this passage, and from Lord Cullen's earlier citation of Milne v. Townsend (1892) 19 R. 830, that he was of the view that, if the cause of the explosion of the firework had been unexplained, then the occurrence of the explosion might have been relevant to infer negligence on the part of the defenders. However, in the light of the proof, the cause of the incident could be identified and in those circumstances the question of the defenders' liability fell to be decided on the known facts rather than by reference to the principle of res ipsa loquitur.

In the present case it appears to us that proof of the pursuer's averments would bring res ipsa loquitur into play, leaving it to Celtic to rebut the inference of negligence on their part. Celtic do not make any specific averments as to the actual cause of the piece of wood falling on to the pursuer, but they do make averments about the involvement of an independent contractor instructed by European to erect the temporary works. Mr. Connal sought to persuade us that this alleged involvement of the independent contractor in carrying out the work was somehow sufficient in itself to undermine the relevancy of the pursuer's case based on res ipsa loquitur. But the pursuer's case against Celtic makes no reference to the involvement of the independent contractor and Celtic's averments about the independent contractor do not, and indeed cannot, touch the relevancy of the pursuer's case. They merely set out a basis upon which Celtic may seek to rebut the inference of negligence on their part by showing that the happening of the accident was consistent with no lack of care on their own part.

Mr. Connal also submitted that the pursuer required to aver specific breaches of duty on the part of the defenders and that his averments of fault were too general. In support of this submission, Mr. Connal referred to Wallace v. Glasgow District Council 1985 S.L.T. 23, which concerned the averment of duties in a case brought under the Occupiers' Liability (Scotland) Act 1960 in respect of injuries suffered by the pursuer when she stepped from the common close into a hole in the back court of a block of flats owned by the Council. It is plain that the case raised no issue of res ipsa loquitur and that the court was concerned with the proper form of averment in an ordinary case under the 1960 Act. Cases involving res ipsa loquitur are different. When Devine v. Colvilles was before the Second Division, Lord Wheatley had occasion to observe (1969 S.C. (H.L.) at pp. 83 - 84) that

His Lordship was indicating that, where a pursuer seeks to rely on res ipsa loquitur, it is necessary for him to aver facts which would justify the application of the principle and so give rise to an inference of negligence, but that it is not necessary for him to condescend on particular negligence or breach of duty on the part of the defender. This is consistent, of course, with the fact that res ipsa loquitur applies in situations where the pursuer does not know the cause of the accident and therefore cannot specify a particular breach of duty on the part of the defender. We note that this more general approach was taken in the pursuer's pleadings in Devine (1969 S.C. (H.L.) at pp. 68 - 69), where both sides were represented by counsel having great experience in the field of reparation. For these reasons we do not accept Mr. Connal's criticism of the pursuer's averments in the present case.

We should add that Mr. Connal sought to argue that the pursuer's case was irrelevant because he did not specifically aver that Celtic were in exclusive occupation and control of the area of the canopy from which, according to the pursuer, the piece of wood fell. We reject that argument. The pursuer avers that Celtic had exclusive management and control over the whole of the stadium. That must include the area where the banners were attached to the canopy. In our view nothing more particular is required. We refer to Devine v. Colvilles Ltd. 1969 S.C. (H.L.) at p. 100 per Lord Guest and at p. 102 per Lord Donovan.

For European Miss Carmichael adopted the submissions made by Mr. Connal but supplemented them with certain specific criticisms of the pursuer's case against them. She pointed out that, by contrast with his averments against Celtic, the pursuer's averments against European did not include an averment that Celtic were in exclusive management and control of the premises. The most that he said was that European were the occupiers of the stadium and the organisers of the opening ceremony and that they had possession and control over the stadium. Moreover, the averments by Celtic which the pursuer adopted listed a number of specific matters relating to the opening ceremony which European were said to have controlled. These did not include the temporary structures at the time of the ceremony, although it was said that European had been responsible for the erection of those structures and that they were obliged to repair any defects emerging in any of them. We consider, however, that these averments must be read in the light of the fact that, as we have already explained, the pursuer's case against European is posited on the hypothesis that European rather than Celtic were in control of the stadium at the relevant time. The pursuer does not suggest that any other party was in control of the stadium. In these circumstances, we take the view that, fairly read, the pursuer's case against European can be regarded as one which proceeds on the footing that they were in exclusive management and control of the stadium, including the temporary structures. That being so, we are satisfied that the pursuer's averments are sufficient, when judged by the Jamieson test, to go to proof before answer. It is of some significance also to notice that, in any event, the issue of European's possession and control of the stadium and of the temporary works forms part of Celtic's case for contribution from European and, as we have noted already, if the pursuer's case against Celtic were to go to proof before answer, Celtic's case against European would also require to go to proof.

Miss Carmichael maintained that, even if we were to allow the pursuer a proof of his averments against European we should exclude from probation the averment in Article 4 of Condescendence that "The said temporary works had been undertaken under the control and direction of the second defenders." She submitted that this was in effect a bare averment unsupported by the necessary averments of fact. We note, however, that in the averments by Celtic which the pursuer adopts they say that European were responsible for the erection of certain temporary structures in the stadium in anticipation of the opening ceremony and that they were obliged to repair any defects emerging in these structures. It looks as if these averments were meant to be spelled out in certain further averments by Celtic later in the Answer. For whatever reason, counsel for the pursuer stated that they were not adopting these later averments, despite the generality of the statement at the end of Condescendence 3 that "the first defenders' averments in answer so far as directed against the second defenders are adopted." We have accordingly confined ourselves to the averments adopted by counsel for the pursuer in addressing us. Approaching the matter in that way, we have come to the view that there is a sufficient basis to allow this particular averment in Article 4 to go to proof. In deciding to admit the averment to proof, we have had regard to the fact that the averments in Answer 3 for Celtic, which cover much the same ground, are to go to proof.

We turn now to the pursuer's case based on strict liability which is said to derive from what he refers to as "the actio de positis vel suspensis". In addressing us, Mr. Stewart, Q.C., argued that the rule of Roman law had been assimilated into, and reworked by, Scots law. The Roman law was therefore little more than the background to the modern Scots law. Perhaps for that reason, in his final submission, Mr. Stewart invited the court, if so inclined, to exclude from probation the two references to the actio de positis vel suspensis in his pleadings and to proceed simply on the basis that the pursuer's averments disclosed a relevant case of strict liability on the part of the defenders under our law. For their part Mr. Connal and Miss Carmichael argued that the pursuer's averments, whether considered by reference to Roman law or simply in the context of Scots law, were irrelevant.

It is perhaps unnecessary to recall at the outset that we are concerned to identify the relevant principles of Scots law rather than of Roman law. So, the Roman provisions are significant only for the light which they cast on Scots law. In Digest title 9.3 we find excerpts from book 33 of Ulpian's commentary on the praetor's Edict. In the excerpts to which we were referred, Ulpian narrates and discusses two clauses in the Edict. The first is the edict de his qui deiecerint vel effuderint and the second is the edict ne quis in suggrunda. In D.9.3.5.7 Ulpian says that this second edict formed part of the first. Whatever Ulpian may have meant exactly, this suggests that the two were associated with one another. In the edict de his qui deiecerint vel effuderint the praetor promises an action, commonly known as the actio de effusis et deiectis, against the occupier of premises for double damages in respect of loss caused by anything thrown or poured down on to a place where people pass or congregate (D.9.3.1 pr.). For these purposes, if an object fell while it was being hung up, the better view of the law was to treat the object as being thrown down, while if it fell after it had been hung up, again on the better view, the law deemed it to have been thrown down (D.9.3.1.3). In the second of the two edicts, ne quis in suggrunda, the praetor forbade anyone to keep anything, which could fall and cause injury, on an eave or projecting roof above a place where people pass or congregate. If anyone infringed this edict, the praetor promised to grant an action, commonly referred to as the actio de posito et suspenso, against him for a fixed sum (D.9.3.5.6). The action lay even though no damage had occurred. It was popularis and was available to anyone who was concerned about the situation (D.9.3.5.13). Even in circumstances other than those specified in the edict, a person might be liable. In the first century B.C. Servius Sulpicius Rufus held that an action modelled on the edictal action should be granted where an artist displayed an ornamental shield and a picture on a balcony and they fell and caused loss to a passer-by, or where a jar was suspended in a net and fell and caused loss (D.9.3.5.12). The exact relationship between the edicts and between the actions deriving from them is not entirely clear and, not surprisingly therefore, in addressing us Mr. Stewart tended to move from the one to the other. But, as we understood him, his submission was that, viewed together, the Roman edicts gave rise to a form of strict liability for damage caused by objects which had been hung up on a building and fell down causing injury to those passing or gathered below.

Mr. Stewart accepted that these edicts and actions were more notable by their absence from, than by their presence in, the works of our institutional writers. But he argued that Bankton at least had regarded them as forming part of Scots law. He referred to the section in his Institute where Bankton goes through the various heads of liability quasi ex delicto in Roman law. Having discussed the liability of judges, Bankton says (Institute 1.4.31 and 32):

The side-note to paragraph 31 reads "Another improper crime is that of a landlord from whose house things are thrown over into the common passages, whereby damage is done to persons," while the side-note to paragraph 32 says "A third is where anything is hung over common ways or passages, which may do hurt; how this restrained with us".

In Gray v. Dunlop 1954 S.L.T. (Sh. Ct.) 75 at p. 76, referring to Bankton's account of the four "improper delinquencies", Sheriff Substitute Norman Walker said of paragraph 31:

Miss Carmichael urged us to adopt the Sheriff Substitute's approach in this passage. But on this point we prefer the argument of Mr. Stewart. We are satisfied that the Sheriff Substitute's criticism is misconceived and does less than justice to Bankton. Bankton's view was that the master of the family is liable to make reparation for damage done when something is thrown over or poured out from windows of houses. In paragraph 31 his argument is that, contrary to the position in Roman law, however, in our law the liability is for simple rather than double damages, since even in the case of liability for real delinquencies, as opposed to quasi-delinquencies, only simple damages can be recovered unless statute specifically provides otherwise. On the interpretation of the passage in Bankton we adopt the reasoning of Professor Peter Stein in his article "The Actio de effusis vel dejectis and the concept of quasi-delict in Scots law" (1955) 4 I.C.L.Q. 356 at pp. 357 - 359. On that basis we are satisfied that it was Bankton's view, at least, that liability modelled on this action in Roman law formed part of Scots law. That conclusion is not, perhaps, really very surprising when it can be seen that certain writers recognised that this kind of liability had transmitted to Roman-Dutch law, from where it has entered modern South African law. We were referred to Bowden v. Rudman 1964 (4) S.A. 686 (N), a rather far-fetched attempt to invoke liability modelled on the actio de posito et suspenso where the plaintiff was walking along a footpath at night and collided with a gate which was standing open over the footpath and partly obstructing it.

Mr. Stewart went on to argue that Baron Hume had adopted much the same view as Bankton in his Lectures Vol. 3, Chapter 16. Referring to quasi-delicts, Hume says:

It is certainly possible to detect, in the shop sign and the flower pots, examples of liability which would have been covered by the actions de effusis et deiectis and de posito et suspenso in Roman law. But it equally appears to us that Hume sees them as cases where in Scots law the defender is liable because of negligence or inadvertency rather than on the basis of strict liability.

In addition Mr. Stewart sought to rely on the decision of the Second Division in Cleghorn v. Taylor (1856) 18 D. 664, dealing with the liability of the owner of a building for damage caused when a chimney-can fell through the skylight of an adjoining china shop and damaged the proprietor's stock. The reasoning of the judges is by no means easy to follow, but Mr. Stewart acknowledged that the decision must now be regarded as having been based on fault rather than on any form of strict liability. See Campbell v. Kennedy (1864) 3 M. 121 and Laurent v. Lord Advocate (1869) 7 M. 607 per Lord President Inglis at p. 611. We note that in R.H.M. Bakeries v. Strathclyde Regional Council 1985 SC (HL) 17 at p. 41 Lord Fraser of Tullybelton, with whom the other members of the House of Lords concurred, quoted Campbell v. Kennedy with approval, as part of a tract of authority vouching his conclusion that culpa is the essential basis in Scots law for the liability of the proprietor of land to a neighbour. In the end Mr. Stewart did not really dispute this, but suggested that the law imposed a particularly high standard of care in such cases.

We find it unnecessary in the present case to explore any more fully the questions which Mr. Stewart and Miss Carmichael raised about the nature of the liability under the old Roman law or about the passages in Bankton and Hume. It is noteworthy that both the Roman law provisions and the Scottish authorities upon which Mr. Stewart sought to rely were really concerned with the liability of occupiers and owners of buildings for injury and damage caused to those outside the premises, whether in the streets or in open spaces or on neighbouring properties. In this case, by contrast, we are concerned with the liability of Celtic and European to the pursuer who was actually in some part of the stadium when the piece of wood fell from the canopy area of the stadium. Indeed in each of the alternative cases, the pursuer recognises this and avers that Celtic and European are liable under the Occupiers' Liability (Scotland) Act 1960. In these circumstances it appears to us that the law relating to the liability of the defenders to the pursuer is to be found in the terms of the 1960 Act. In particular, by virtue of Section 1(1) of the Act, the extent of the defenders' duty of care is prescribed by Section 2. Under Section 2(1) an occupier is required to show such care as in all the circumstances of the case is reasonable to see that a person entering his premises will not suffer injury or damage by reason of any danger due to the state of the premises or of anything done or omitted to be done on them. Since Mr. Stewart was unable to point to any authority which suggested that the defenders in this case owed any higher standard of care to persons such as the pursuer entering the stadium, Section 2(2) does not apply and the defenders' liability to the pursuer is governed by Section 2(1) only.

In these circumstances we are satisfied that the pursuer's averments relating to strict liability are irrelevant.

We shall accordingly allow the reclaiming motion and recall the interlocutor of the Lord Ordinary. Thereafter we shall exclude from probation the sentence to be found in both Articles 3 and 4 of Condescendence, beginning "In any event" and ending "congregate", and to that extent sustain the first defenders' first plea in law and the second defenders' second plea in law. Quoad ultra we shall allow a proof before answer.