BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?

No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!



BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McCalman Rankin (AP) v John Jack (t/a Lochill Equestrian Centre) [2008] ScotCS CSOH_167 (05 December 2008)
URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSOH_167.html
Cite as: [2008] CSOH 167, [2008] ScotCS CSOH_167

[New search] [Help]

 

OUTER HOUSE, COURT OF SESSION

 

[2008] CSOH 167

 

     

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD MALCOLM

 

in the cause

 

IAN McCALMAN RANKIN (AP)

 

Pursuer;

 

against

 

JOHN JACK, trading as LOCHILL EQUESTRIAN CENTRE

 

Defender:

 

 

­­­­­­­­­­­­­­­­­________________

 

 

 

Pursuer: Hajducki, Q.C., McMillan; Thompsons

Defender: R Macpherson, Solicitor Advocate, Simpson & Marwick, W.S.

 

5 December 2008


[1] The defender, Mr John Jack, owns and operates a farm and horse riding centre, known as Lochill Equestrian Centre, at Ringford, near Castle Douglas. In September 2005 the pursuer, Mr Ian Rankin, commenced employment at the centre as a handyman and labourer. Part of his duties involved driving a Massey Ferguson 35X tractor plus trailer. On 27 September 2005 the pursuer sustained serious injuries when he fell under and was run over by the wheels of the tractor and trailer. In this action, in which I heard a proof, he seeks substantial damages from Mr Jack in respect of that accident.

 

The evidence


[2] That day the pursuer was instructed by the defender to assist in the removal of building rubble and general debris from a shed at the riding centre. The defender and another employee, Mr McIlwraith, were knocking through an opening in the wall of the shed. The rubble was to be taken to a tip on the farm. The pursuer used the Massey Ferguson tractor and its trailer. In his evidence he stated that prior to his employment with the defender, he had never had much to do with tractors. This was the first day he had driven the Massey Ferguson. The defender used the bucket of the tractor to fill the first load in the trailer. According to the pursuer the defender then showed him the way to the dump. The route involved opening and closing a gate into a field containing horses and sheep. The gate required to be kept shut. The defender opened the gate and the pursuer closed it. The defender accompanied the pursuer until the last load, which was the fourth or fifth trip. The pursuer made this trip on his own.


[3] The pursuer stated that all of the breeze blocks removed from the wall in the shed were in this last load. The trailer was "full to the gunwales". The steering and general response of the tractor was completely different with this last load. The pursuer reached the gate where he waited, expecting the defender to appear. However he did not appear. The pursuer explained that he opened the gate and drove through into the field. He then pulled off the track onto the right hand side with the front right wheels off the track. The ground there was softer, which would prevent the tractor sliding. He dropped the tractor bucket onto the ground and turned the tractor's front wheels to the right. He applied the parking brake with as much pressure as he could. Earlier in his evidence the pursuer stated that he always put as much pressure as he could on the parking brake. Later in this opinion I will explain what was involved in the operation of the parking brake.


[4] The pursuer stated that he dismounted from the tractor and walked up towards the gate while looking to see if the defender was coming. He closed the gate. The tractor and trailer began to move down the hill. The pursuer ran after them. When alongside he placed his hand on the steering wheel. He tried to get onto the tractor but was struck by the tractor wheel. Next he was run over by the tractor wheel and by the trailer. He stated that he thought he was going to die. In due course people came to his assistance and an ambulance was summoned. He was taken to hospital where he remained in intensive care for about ten days. Both Mr and Mrs Rankin spoke to a comment made by Mr McIlwraith when he visited Mr Rankin in hospital which they understood to be an acceptance by him that the trailer was overloaded.


[5] In cross examination Mr Rankin said that he had previously worked on his father's farm. He had driven tractors since he held a driving licence. He knew how to drive tractors. If the advertisement had mentioned tractors he would probably not have applied for the position. When interviewed for the job he was not told that he would be driving a tractor. If that had been mentioned he would have had to say that he did not have experience of tractors. When pressed on this, the pursuer stated that he would have had to say that he had limited experience of tractors. He specifically denied having driven the Massey Ferguson tractor at Lochill before the day of the accident.


[6] The pursuer explained the operation of the brakes and the parking brake. He applied the parking brake every time he stopped, including immediately before the accident. He used the foot brake and then applied the parking brake with as much force as he could. After stopping the tractor on the verge, he waited some minutes for Mr Jack, though he immediately qualified this to perhaps no more than twenty seconds. He waited on the tractor. He denied that he had not applied the parking brake. He agreed that if the parking brake was applied then it would hold the brake pedals in the on position. The pursuer said "I did put the parking brake on - it sticks in my mind - 100% sure - till the day I die". He denied that blocks from the wall were spread through the various loads.


[7] The first person to notice that the pursuer was in difficulties was Dawn Miller who was visiting the riding centre. She saw the tractor stopped in a soft part of the field with its trailer at an angle and its engine running. She then heard the pursuer calling from further up the field. He said that he needed an ambulance. Ms Miller ran back to the centre and found a member of staff, Helen Maxwell. She told her what had happened, then returned to Mr Rankin with blankets. Mr McIlwraith then arrived, followed by Mr Jack.


[8] Helen Maxwell, the manageress of the farm and riding centre gave evidence. She interviewed Mr Rankin. He told her that he had had his own farm and that he knew all the duties. She told him that he would require to muck out the horses every morning along with herself, then help Mr Jack with whatever else needed to be done. Nothing was said at the interview about tractors. Once employed Mr Rankin was very obliging. The muck from the stables was taken to the trailer. The pursuer emptied the trailer when required, using the tractor. He drove the Massey Ferguson tractor on a daily basis before the accident. Ms Maxwell was brought up on a farm. She could see that the pursuer was competent in driving the tractor. Only the Massey Ferguson tractor was used for taking muck to the muck heap. Ms Maxwell worked alongside Mr Rankin in the stables. She was certain that she could not be mistaken on the question of his regular use of the tractor.


[9] So far as the day of the accident is concerned she was informed by a visitor that there had been an accident. She took a blanket and found Mr Rankin on the ground. She put the blanket over him. She went to summon Mr Jack and Mr McIlwraith. They attended with boards to provide shelter for the pursuer. The tractor was down at the bottom of the field, however Ms Maxwell did not pay much attention to it. She was positive that she had gone to see Mr Rankin, taking with her a phone and blankets. She could not recall how long Mr Rankin had been employed at the centre before the accident, but she was certain that he had driven the tractor before the day of the accident.


[10] Mr Jack explained that Mr Rankin had come to do general work about the farm and the riding centre. Mr Rankin drove the tractor nearly every day before the accident when clearing out the bottom stables. There were two tractors on the farm, a Renault and the Massey Ferguson. The pursuer used the Massey Ferguson. He did not require any training or instruction. He had no problems with the tractor. He was a good worker. On the day in question they were knocking a passageway through the wall of a barn. The debris and other material on the floor of the barn required to be loaded and taken away. The pursuer was present along with Mr McIlwraith. The wall consisted of 18 x 5 inch hollow blocks. They were cemented in, but not reinforced. Mr Jack was there all day. He thought there were three trips to the dump. There was other general rubbish loaded on the trailer along with the blocks. Some blocks would be knocked out and taken away. By the time Mr Rankin returned more blocks were ready for removal. Mr Jack did not think that there was as much in the last load as in the previous loads


[11] The Massey Ferguson is a fair age. Mr Jack explained that Mr McIlwraith looks after it along with other vehicles on the farm. Mr McIlwraith has his own garage business but also helps out at the centre. Mr Jack spoke to the vehicle service records. When asked about the condition of the tractor he replied that it did all that was asked of it.


[12] Mr Jack did not see the accident. He heard someone screaming and he ran to the field. He saw Mr Rankin in the field. The tractor was at the soft ground at the bottom of the field. Helen Maxwell had alerted him to the accident. They tried to make Mr Rankin as comfortable as possible and an ambulance was summoned. They stayed with Mr Rankin until the ambulance arrived some 15 to 20 minutes later. Afterwards, Mr McIlwraith and Mr Jack went to see the tractor. It was ticking over. There was not a mark on it. The brake was not on. There was nothing wrong with the tractor. Further up the field tyre marks showed that it had been parked to the right beyond the gate. If the parking brake had been clipped on then the tractor would not have run down the field. Mr Jack specifically looked at the brake in order to find out what had happened. The tractor ran away because the brakes were not applied. If the brakes had been applied, as suggested by the pursuer, it would have been "impossible" for the tractor to run away. According to Mr Jack the tractor was never overloaded. The tractor was fit for its purpose. He could not give the exact weight of the load in the trailer at the time, but it would cause no problem whatsoever. He had had no difficulties in holding the tractor and trailer on the parking brake. If the clip is put on, the tractor will never move.


[13] Under cross-examination, Mr Jack stated that everything on the tractor worked. The trailer was in good condition. Mr Rankin drove the tractor regularly when mucking out the stables. Mr Jack saw him use the trailer every day. The accident occurred on the last load when he was transporting the sweepings up - "just clearing up." Mr Jack had not gone to the dump with Mr Rankin on any of the earlier trips. Mr Rankin had been at the dump before. After Mr Rankin was attended to, Mr Jack went to the tractor with Mr McIlwraith. Mr Rankin had never made any complaints about the tractor. Mr Jack had seen him operating the clip on the parking brake. The last load was the lightest load. All of the blocks and rubbish could have been taken in one trip. He would not put 21/2 tonnes onto the trailer. That was simply common sense, given that the tractor would be going downhill. Mr Jack would not overload the trailer. It was put to Mr Jack that he was mistaken about the brake not being on when he examined the tractor in the field. Mr Jack replied that he was not mistaken, otherwise the tractor and trailer would not have run down the hill.


[14] Mr Eric McIlwraith gave evidence. He is an agricultural and mechanical engineer. He has his own garage and repair business. He helped out at Lochill Riding Centre. His work included repairs to the tractors and other machinery. Before the accident he had been working at the centre for about a year. On the day of the accident he had been helping out with the operation spoken to by Mr Jack. The hollow breeze block wall was easily knocked down. The blocks should have been filled with cement, but were hollow. With the exception of one corner there were no reinforcing rods. He thought that about 27 blocks were removed to the dump. A complete block would weigh about 20 kilograms, but few of them remained intact. The blocks were spread amongst the three loads. None of the loads were particularly heavy. The third load was the lightest. Mr McIlwraith specifically denied that all the blocks were in the final load.


[15] Mr McIlwraith said that Mr Rankin seemed to be a competent operator of the tractor. When the alarm was sounded, he ran to Mr Rankin to provide aid. Initially he was on his own with Mr Rankin. No one else was with him when he reached Mr Rankin. The gate was closed. Mr Rankin was lying to the right of the road about 7-8 metres off the road, and 8-10 metres down from the fence. The tractor was sitting at the bottom of the field with its engine still running. Its wheels had sunk into soft ground. The tractor had travelled some 50-100 metres. He did not go to it at first. He was more concerned about Mr Rankin. After Mr Rankin was taken away, he went to the tractor. He was the first to go to it. The parking brake was "most definitely not on". Had it been applied, the tractor and trailer would have remained up at the gate. The mechanism used to apply the brake would not jump off. The spring or clip used to fix the parking brake was off and the pedals were up. He specifically looked at this because he wondered what had happened. To Mr McIlwraith it was clear that the tractor had been parked at the side of the road without the brakes being applied. When it moved off, Mr Rankin conscientiously tried to stop it and then the accident occurred.


[16] Mr McIlwraith serviced the vehicles, including the tractor. He had driven it. It was in excellent working order. He spoke to the service records. He was self-employed and submitted invoices to the defender for this work. The brakes were in good order at the time of the accident.


[17] Under cross-examination Mr McIlwraith agreed that there might have been 29 blocks. He denied that when he visited Mr Rankin in hospital, he said that the trailer was overloaded. He might have said that Mr Rankin had been run over by a substantial weight, meaning the tractor and trailer together. The trailer was not loaded with 3 tons of rubble. 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. Subsequently in his cross-examination, Mr McIlwraith appeared to indicate that many of the blocks were contained in the last load. He insisted that the service records were genuine and were not made up after the event.


[18] Mr Stanley Johnston, a consultant engineer, gave evidence for the pursuer. He spoke to his report. He had examined the tractor and trailer. He found no defects in the braking system. He did identify a number of examples of disrepair, none of which were said to be directly relevant to the accident. He offered views on the cause of the accident based upon certain hypotheses and assumptions. He described these views as speculation. Notable assumptions in his report were that Mr Rankin did apply the parking brake and that the trailer was substantially overloaded.


[19] During his evidence Mr Johnston outlined the faults which he found, though he described the tractor as "generally OK". If the tractor was pulling a load of 3 tons it was "questionable" if the brakes would cope with a downhill gradient. If an emergency stop was required, the tractor would take longer to come to a halt. There was bound to be wear and tear on the brakes and brake linkages. Given its age he would be cautious about using the tractor near its operating limit. The maximum gradient at the scene of the accident was 1:12. 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". Mr Johnston offered what he described as a conjecture, albeit a likely conjecture, as to how the accident happened. He assumed that the parking brake was on and that there was an excessive load. 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.


[20] Both Mr Johnston and Mr Robinson, an expert instructed on behalf of the defender, offered differing hypotheses as to how the accident occurred, but in my view they are each so dependent on their respective assumptions as to render this evidence of little assistance to me in determining the issue of liability. As I explain below, the correct answer on the question of liability depends on whether the pursuer has proved that he applied the parking brake. For obvious reasons that is an issue on which neither expert can assist. In cross examination Mr Johnston stated that the circumstances of the accident were not known to him. However he could not accept that the non-application of the brakes was a possible explanation. He could not believe that the pursuer would have forgotten to put the brakes on. That would be against common sense. Here I consider that Mr Johnston was being asked to go beyond the proper role of an expert witness and resolve the key issues of fact in the case, as opposed to offering skilled advice on matters within his specialist knowledge and experience. There was an issue between Mr Johnston and Mr Robinson as to the potential effect of a defect in the hydraulic rams operating the front bucket, but I do not consider this to be critical to a proper resolution of the issues in the case. In any event, as explained below, I prefer the evidence of Mr Robinson on this matter.


[21] Mr Simon Robinson, a consulting engineer instructed on behalf of the defender, spoke to his report. In it he provided a helpful description of the tractor braking system. He explained that the tractor was fitted with brakes to its rear axle only, which were mechanically operated drum brakes. There was no power assisted braking system. Two brake pedals fitted to the offside of the tractor provided the driver with independent control of the nearside and offside brakes. An interconnecting latch provided a means of linking the pedals such that both brakes operated simultaneously. There was no handbrake lever. There was however a spring loaded park brake latch fitted to the brake pedal assembly which, when engaged via a ratchet, allowed the driver to park the tractor using its drum brakes. Photographs 7 to 11 appended to his report show the above system. Mr Robinson noted that the brake pedals could be manually lifted up through some 35mm of free travel. There was no free play when depressed and the brake pedals returned to the same position when released. The park brake possessed nine ratchet positions. When the spring loaded latch was engaged and no braking applied, the latch engaged on the fourth ratchet position. When the brake pedal was depressed the latch could be engaged on the fifth, sixth or seventh ratchet position depending upon the degree of brake pressure applied. The park brake latch had to be pushed forward either prior to or whilst the brake pedal was depressed, such that it engaged with the ratchet wheel. In order to release the park mechanism, the spring lever had to be manually released, and then the brake pedal had to be depressed to release the forces acting on the latch.


[22] Later in his report Mr Robinson indicated that he had traced the route taken by Mr Rankin to the gate at the mouth of the field. The road through the field leading from the gate was about 3.3mm wide and had a significant downhill slope of around 9.5 to 10 degrees. There was an area of visually level land at a position through the gate to the right hand side extending into the field, and perpendicular to the road. Measurements indicated that this area possessed only a slight downhill slope of around 1 to 1.5 degrees, though the crossfall was some 5 to 6 degrees. The surrounding land to the left of this position formed a raised half bowl shape such that the land followed the down slope of the hill to the right hand side of the road. Again this topography is shown in photographs appended to the report.

 

The submissions on liability for the pursuer

[23] Mr Hajducki submitted that if the court accepts the pursuer's evidence then he has proved his case. He accepted that the exact weight of the load on the trailer is unknown. However it was in excess of the maximum weight the tractor was designed to pull. The pursuer's knowledge of tractors was basic. The pursuer's case based upon a failure of instruction did not arise, given the way in which the areas in dispute had evolved during the proof. It was submitted that all of the concrete blocks, all 29 of them, were placed in the last load. That would mean a load of at least close to 700 kilos. The pursuer said that he was 100% sure that he had applied the parking brake, along with other precautions. It was submitted that the pursuer was a credible and reliable witness.


[24] It was submitted that Ms Maxwell's evidence was vague and unsatisfactory. She was not a credible witness. Mr Jack's evidence was contradictory. He was neither credible nor reliable. He was "cavalier" on health and safety issues. Mr McIlwraith contradicted himself in relation to whether the last load was or was not the lightest. On a balance of probabilities the service records were not genuine records. At the least the evidence suggested that Mr McIlwraith was not as punctilious as he claimed. Only Mr McIlwraith and Mr Jack spoke to the parking brake being applied when the tractor was found at the bottom of the field. Mr Hajducki submitted that the court should hold that this had not been proved.


[25] So far as the evidence from the experts was concerned, Mr Hajducki submitted that it was of lesser importance than the witnesses as to fact. Neither expert examined the tractor until a considerable period after the accident. Mr Hajducki accepted that there was no evidence that the brakes were defective. The pursuer's case is that the brakes were overcome by an overloaded trailer. The pursuer's case based upon a lack of training did not arise and was not insisted in. What it all came down to was that if the pursuer's evidence was accepted, and in particular that he put the parking brake on, it followed that the tractor was hauling an excessive load. The pursuer spoke to the load behaving differently and to taking extra precautions when he stopped the tractor before going to close the gate. If he was worried about the load, it is likely that he would put the brake on. It was accepted that the absence of braking on the trailer did not contribute to the accident.


[26] If the pursuer's evidence was accepted, then it followed that the defender had instructed him to transport an unsafe load which exposed the pursuer to the risk of injury. In the end of the day the pursuer relied on the common law case as set out in article 7 of the condescendence, in that an overloaded trailer exposed the pursuer to the risk of the tractor's brake system being overcome when he parked it on a muddy slope for the purpose of closing the gate. The statutory cases were either a restatement of the common law case or did not arise on the evidence.

 

The submissions on behalf of the defender on liability

[27] Mr McPherson for the defender submitted that there is a stark dispute or conflict in the evidence regarding whether the pursuer applied the parking brake immediately prior to the accident. It was not necessary to submit that the pursuer was being deliberately misleading. He has suffered post-traumatic stress disorder which has caused him to relive the events. It may well be that he does not accurately recall all the details. However, so far as Mr McIlwraith and Mr Jack's evidence is concerned, if they are rejected on the critical issue, it can only be on the basis that they are not telling the truth. It has to be the case for the pursuer that they are deliberately lying. Whatever motive Mr Jack as the defender might have for that, Mr McIlwraith has no axe to grind. The inconsistency in their evidence as to whether they went to the tractor together or separately, militates against a concocted story. It was natural that the position of the brake would be one of the first things they would investigate. They were trying to work out what had happened. It is difficult to see how they could both be confused on that crucial matter. The submission was not that the pursuer's evidence was untruthful, but that it is unreliable.


[28] If it was necessary to choose between the expert witnesses, then the court should prefer Mr Robinson in that he has the more appropriate qualifications and was the more measured and objective witness. The overloading of the trailer is a crucial part of the pursuer's case, yet it has not been proven. Reference was made to Robb v Salamis (M & D) Ltd 2007 SC (HL) 71. The evidence did not prove that a risk assessment would have revealed a foreseeable risk of injury to the pursuer. There was no clear evidence as to how much material was loaded onto the trailer for the last trip. There is nothing upon which to decide that the weight was in excess of any safe load. It is difficult to see how the last load could have been as much as 500 kilograms, which would be well within any reasonable safety limit.


[29] There was no evidence of any defect in the brake. The case was not presented on the basis that the fact of the accident demonstrates such a defect. Another explanation for the incident was that the brake had not been applied when the tractor was parked by the pursuer. The tractor was parked on a slope, though how steep a slope was unknown. The pursuer's position was that he applied the parking brake with as much pressure as he could. The key question is whether the court accepts that evidence. There was no evidence as to what weight would have overcome the parking brake.  This was a large gap in the pursuer's evidence. The contributory negligence case did not arise. If the pursuer did not set the brake then he would be wholly responsible for what happened.


Discussion and decision on liability


[30] There is much which is not in dispute. The pursuer was asked to transfer rubble and general debris from a shed to the farm dump using the elderly Massey Ferguson tractor and trailer. Its parking brake system was of a basic mechanical nature. There was no evidence that it was defective. The pursuer had to pass through a gate which required to be kept shut. When transporting the last load of the day he opened the gate, drove through it and stopped the tractor and trailer half on the verge on a slightly downhill slope. After he left the tractor to close the gate, the tractor and trailer began to move down the slope. In attempting to gain control of the vehicle the pursuer fell under the wheels of the tractor and trailer and suffered serious injuries.


[31] The pursuer's case is that the accident happened because the trailer was overloaded and thus the parking brake on the tractor was overcome. This was the fault of the defender who was responsible for the load in the trailer. The load was so excessive that it should have been obvious that the pursuer was being asked to undertake a risky journey. The defender's case is that the trailer was not overloaded and that the accident was caused by the pursuer's failure to apply the parking brake when he stopped the tractor on the verge.


[32] The general effect of the evidence was that the brakes would cope with anything but a clearly excessive load. It follows that if I am satisfied that the pursuer has proved that he applied the parking brake, then he has proved his case that the trailer was overloaded. There would be no other reasonable explanation for the accident. Thus the key issue is whether the pursuer has proved that he applied the parking brake before he left the vehicle to close the gate.


[33] This means that the numerous other matters in dispute at the proof fall into the background. There were issues as to the pursuer's awareness that part of his duties would involve driving tractors; whether he had driven the Massey Ferguson tractor before the day of the accident; the general condition of the tractor and trailer and a variety of alleged defects, none of which were said to be directly causative of the accident; and the weight and nature of the final load (by the end of the proof it was accepted that there was no clear evidence on this). The experts speculated as to how the accident might have happened, but their evidence on that matter never went beyond speculation. It is for me in the light of the evidence led at the proof to decide whether the pursuer's case has or has not been made out.


[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 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.

 

Quantum of damages


[41] Although I have absolved the defender of liability, in case this matter goes further it is right that I should outline my views on damages. As a result of the accident the pursuer sustained a fracture of the distal third shaft of the left humerus; fractures of both lower ribs; extensive subcutaneous emphysema in the chest; a large right sided hydropneumothorax and a small left sided hydropneumothorax; an oblique fracture of the upper body of the sternum with slight displacement of the inferior fragment posteriorly; and numerous fractures and displacement of his ribs. Mr Rankin was treated in a high dependency unit for pain relief. Chest drains were placed on either side of his chest. Open reduction and internal fixation of the humerus with a plate was carried out. The radial nerve was found to be intact but bruised. He suffered a lower respiratory tract infection secondary to lung contusions. Mr Rankin was discharged on 15 October 2005. When examined in July the following year he was found to suffer from constant crushing chest pain. His walking distance was limited to 100 yards. Morphine and paramol had been used for pain relief. His left arm was improving, but there was a numb feeling in the radial aspect of his forearm and wrist. He had difficulty in gripping. He suffered pain in his thighs. When examined in April 2007 the pursuer continued to complain of constant pain.


[42] During his evidence the pursuer explained that after his discharge from hospital he required extensive daily care from his wife. For several months she provided help with basic everyday activities such as dressing and washing. She still helps him at night, for example with showering his back. His wife gave up her work to look after him and has not gone back to work. He has remained unemployed since the accident. He spends much of his day sitting in the house. He has become very dependent upon his wife and has had panic attacks in her absence. He constantly worries about harm coming to his children. In recent times the panic attacks are better than they were, and his nightmares about the accident not as severe. He sees a psychologist once a week, which helps. He can get out and about if someone is with him. He used to do the garden, some painting and plumbing etc. He does not know what the future will bring. If he could go back to work he would want to do so. However the constant pain gives him a feeling of helplessness.


[43] The medical evidence was agreed. It confirms that the pursuer remains substantially incapacitated. Pain, pins and needles, and altered sensation in both thighs makes walking difficult. His right leg is weaker than the left. A left partial nerve palsy causes pins and needles and discomfort in the left forearm and hand. It restricts the mobility of the left arm. He has pins and needles in the right thumb and index finger. He can no longer play golf nor play with his grandchildren. It is unlikely that he will be able to return to his pre-accident form of employment. While his condition has improved over time, in physical terms he remains markedly incapacitated.


[44] While his reports were agreed, evidence was led from Dr Derek Chiswick, a consultant forensic psychiatrist. In his first report Dr Chiswick explained that after the accident the pursuer became anxious and withdrawn. He suffered occasional panic attacks. He was able to drive a car. He worried excessively about his wife and children. He dreamed of the accident. He would panic if a tractor passed by on the road. He was a completely different person since the accident. Sexual relations were on "hold". Mr Rankin had suffered a terrifying accident and he was unable to rid his mind of it. In Dr Chiswick's opinion he suffered from post traumatic stress disorder on a moderate to severe degree. There was associated low mood and anxiety. His confidence and motivation had been affected and he was overly dependent upon his wife. His mental symptoms prevented him from working. The condition was perpetuated by ongoing pain related to the accident. It was possible that treatment might help the psychological symptoms. Mr Rankin was unlikely to be able to carry out farm work or heavy machinery work in the future. He may be able to carry out indoor work, for example warehouse duties. This would require a gradual introduction and ongoing reviews.


[45] In his supplementary report dated 28 March 2008 Dr Chiswick explained that at that stage the PTSD was now moderate in degree. However a generalised anxiety disorder had developed to a severe degree. This was a complication of the PTSD, and aggravated Mr Rankin's perception of pain. All of this was caused by the accident. The combination of mental and physical symptoms rendered him unfit for employment. The predominant mental symptoms were now a constant fear of harm to his children, general anxiety, and a major increase in emotional dependency upon his wife. The nightmares were not as severe. In Dr Chiswick's opinion Mr Rankin was receiving an excess of medication, especially opiate medication. The prognosis was uncertain. The manner in which the family had adjusted their lives was a poor prognostic feature.


[46] In his evidence in court Dr Chiswick confirmed that the pursuer presents a complex picture and that the prognosis is difficult. His mental health will not improve until pain management is improved. Mr Rankin's life revolves around coping with the pain. The opiate analgesics may be having a harmful effect on his mood and libido, and deprive him of motivation.


[47] In her evidence Mrs Rankin described herself as her husband's "crutch". He required a lot of daily care until about the spring of 2006. She needs to be with him in the morning and at night. He may need help to wash his back and with buttons etc. She has seen a huge change in his mental condition as compared with before the accident.


[48] The parties agreed past loss of income at £35,000 with interest from the date of the agreement. Future loss of income was agreed at £125,000. So far as solatium is concerned the pursuer submitted that a sum of £80,000 would be appropriate. Reference was made to Penman v RGC plc 1994 SLT 805 and to Middleton v CPS 2000 Ltd 24 February 2006 (OH). For the defender Mr Macpherson suggested an award of £50,000. Reference was made to Carling v WP Bruce Ltd 2007 SLT 743. Having regard to the serious physical injuries sustained and the severe psychological consequences of the accident, all as set out in the agreed medical evidence, I consider that a reasonable award for solatium would have been £60,000. Interest at one-half of the judicial rate would have run on one-third of that figure.


[49] The main issue between the parties on quantum related to an appropriate figure for the services provided by Mrs Rankin to her husband under and in terms of section 8 of the Administration of Justice Act 1982. A schedule of damages was produced on behalf of the pursuer which suggested figures of £31,700 for services to the date of the proof, and £226,800 for the future, based on £10,000 per year and a multiplier of 22.68. Mr Hadjucki observed that the pursuer had given up two jobs to care for Mr Rankin. She had been earning about £10,000 net per annum. For the first year of care he suggested £15,000 based on £5 per hour, eight hours a day. Thereafter the appropriate figure should be £10,000 per annum. The multiplier was taken from Table 1 of the Ogden Tables. Mrs Rankin is younger than Mr Rankin and is likely to outlive him. His need for care will continue until his death. Mr Hajducki submitted that a broad approach was justified, but this was not a case where a lump sum award would be appropriate. It was in a sense a jury question. The multiplier might be reduced if it was thought that there was a reasonable chance of improvement in the pursuer's condition. Reference was made to the cases of Farrelly v Yarrow Shipbuilders Ltd 1994 SLT 1349 and McManus' Executrix v Babcock Energy Ltd 1999 SC 569.


[50] In response Mr Macpherson submitted that the pursuer's claim in respect of section 8 services was excessive. There had been no detailed evidence of hours spent in caring for the pursuer. It was accepted that after the accident the pursuer required a considerable amount of physical and emotional support. However one cannot assess the future with any confidence, particularly on any hourly rate. A reasonable interpretation of the evidence is that while Mr Rankin is emotionally dependent on his wife, support of that nature is provided simply by her being his wife. A useful cross check is the agreed wage loss for the pursuer. On any view this is an unusual services claim. The evidence does not suggest that Mrs Rankin will be rendering services to Mr Rankin for the rest of his life. Mr Macpherson suggested past services to date at £10,000, and another £10,000 for the future.


[51] In my view Mr Macpherson is correct to observe that there are unusual features to this section 8 services claim. The evidence is clear that in the first six months or so after the accident the pursuer required considerable assistance from Mrs Rankin on a daily basis. However since then he has become much less dependent, at least in physical terms. He still requires occasional assistance with showering his back, troublesome buttons and the like, but in general his reliance on his wife is emotional in nature and is part of the psychological consequences of the accident. A need for this kind of support can support a section 8 claim, albeit the services are likely to be less defined and more sporadic. Improved pain management is critical to improvement in Mr Rankin's overall well-being, including reduced dependence on opiates. Dr Chiswick considers the prognosis to be difficult and uncertain. I consider that it is likely that there will be a degree of emotional dependence upon Mrs Rankin for some time to come and that this will continue to place additional pressures and requirements upon her. However I see no basis upon which all of this can be sensibly calculated on an hourly rate and a multiplicand/multiplier approach. There is scope for improvement in Mr Rankin's condition. The services rendered by Mrs Rankin are much reduced as compared with those provided in the aftermath of the accident. I do consider the pursuer's claim to be excessive. Given all the uncertainties, not least as to prognosis, in my view this is an appropriate case for a broad lump sum approach. Had I been awarding damages, in all the circumstances I consider that it would have been reasonable to allow £25,000 inclusive of interest to the past, and a further £40,000 for the future.


[52] So far as the section 9 services claim is concerned there was no dispute regarding a suggested figure of £1,000 per annum. However Mr Macpherson did consider the future multiplier of 22.68 in the schedule of damages to be excessive. I agree with that. If awarding damages I would have allowed £3,000 for past section 9 services, inclusive of interest, and £7,000 for the future.

 

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSOH_167.html