Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 206
PD1987/10	OPINION OF LORD BRAILSFORD in the cause LESLEY ANNE McGLINCHEY Pursuer; against GENERAL MOTORS UK LIMITED Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: Gibson: Drummond Miller

Defender: Milligan, Q.C., Wilson; Paull & Williamson LLP

29 November 2011

[1] In this action the pursuer seeks damages for injuries sustained on 13 August 2007 when a Vauxhall Signum motor car owned by her crushed her against a bollard at an address at 3 Guardwell Crescent, Edinburgh. The defenders are the manufacturers of the vehicle involved in this accident and responsibility therefor is said to arise under Section 2 of the Consumer Protection Act 1987 because of defective design and manufacture. The defenders are also said to be liable at common law because of a breach of duty by them.

[2] The factual circumstances surrounding this accident were in short compass, spoken to only by the pursuer and were not in any material respect challenged by the defenders. In 13 August 2007 at about 12.30 in the afternoon the pursuer drove her Vauxhall Signum motor car to her sister's house at the said address in Edinburgh. She parked the vehicle on the pavement or driveway in front of that house. The house was situated in a cul-de-sac which was itself part of a modern estate development. The place where the pursuer parked the vehicle was a short distance from the cul-de-sac entrance. The pursuer's sister's house was built at a slightly higher level than the access road by which a vehicle would enter the cul-de-sac. There was accordingly a slight gradient between the place where the vehicle was parked and the entrance to the cul-de-sac. A number of metal bollards, each approximately 18 inches in height, were positioned on either side of the carriageway on the road into the cul-de-sac. The gradient between the pursuer's sister's house where the vehicle was parked was, on the evidence of the pursuer's expert mechanical engineer, who had visited the locus and made measurements, 4.4 degrees.

[3] After parking the vehicle the pursuer applied the handbrake. On the particular vehicle in question the handbrake was situated between the two front seats of the car. The visible part of the handbrake, the lever which required to be used by the driver to engage or disengage the brake, emerged from a housing in the centre of the vehicle. It was fixed to the housing by a plastic retaining clip known as a "tang". The pursuer gave evidence that it was her habitual practice to engage the handbrake by pulling it on quite aggressively and without depressing the button thereon. The effect of this was that she would hear the ratchet mechanism of the handbrake being engaged and making a clicking noise as she pulled it on. Although challenged on this matter she was confident in her evidence that she followed this practice on the day in question. After having so engaged the handbrake she switched the car engine off. The car was fitted with a manual gearbox. After switching the engine off the pursuer did not engage a gear and left the gearbox in neutral. She left the wheels of the car in a normal, straight ahead, position. She then exited the car and proceeded to the rear of the vehicle. The vehicle was of hatchback design. Her dog was at that time in the rear part of the vehicle and it was her intention to open the hatchback door and let her dog out. When she got to the rear of the vehicle, and before she could begin to release her dog, the vehicle began to roll backwards towards her. She was asked to estimate the time that had elapsed between her leaving the driver's seat and arriving at the rear of the vehicle. She said the period would be about 10 seconds. When cross-examined as to the accuracy of that estimate she said she was confident she was correct because on a number of occasions since the accident she had repeated the manoeuvre and timed herself. When the vehicle began to roll backwards she lifted her hands and placed them both against the rear hatchback windscreen of the vehicle. She attempted to check the vehicle but, being unable to do so, walked backwards in this position as the vehicle began to roll down the gradient towards the cul-de-sac entrance. She initially estimated that in this position she moved two to three yards but, on being shown various photographs of the locus, accepted that she must have walked further than that. On the evidence of the mechanical engineer the distance between where the car was parked and the first bollard was 12 metres. The incident terminated when the rear calf of her right leg came into contact with one of the bollards situated at the site of the cul-de-sac entrance road. She was pressed against that bollard by the rearward movement of her vehicle. She was trapped in that position and, on her own evidence, was panicking when two persons came to her assistance.

[4] The only other witness of fact in the case was the pursuer's husband, Paul McGlinchey, whose evidence relative to the pursuer's factual narrative was limited to confirming that it was his wife's habitual practice to aggressively engage a car's handbrake without depressing the release button. He indicated that he knew this was his wife's habitual practice because it irritated him and he had remonstrated with her about in the past.

[5] The pursuer engaged the assistance of Mr Alan J. G. Bathgate, a consultant engineer and accident claims assessor, to explain the reason for the failure of the handbrake in the said motor car on the said occasion. Mr Bathgate was a Fellow of the Institute of Motor Industry, a Fellow of the Chartered Institute of Arbitrators, a Member of the Institute of Automotive Engineer Assessors and a Member of the International Federation of Automobile Experts. His principal report was dated 26 September 2011 and is number 6/15 of process. Mr Bathgate had first examined the pursuer's said vehicle on 12 October 2007. His examination on that date found the vehicle to be in generally good condition. He could find no obvious defect with the handbrake lever. On further examination he determined that:

"On the normal application it was possible to pull the lever onto its fourth tooth on the ratchet where it held securely. In this position it was possible to stall the engine in both first and reverse gears, it was also possible to pull the lever upwards by a further three teeth from this position."

The gravamen of this finding was that the handbrake operated normally and with no obvious defect. As a result of this finding Mr Bathgate subsequently arranged for the handbrake lever mechanism to be removed from the vehicle, a task undertaken by a garage, and he thereafter examined it in detail. Essentially this more detailed examination revealed no defect in the handbrake system itself. The examination did however disclose that the plastic grip on the outside of the handbrake lever was not retained in position and had the ability to travel forwards and backwards along part of the length of the handbrake lever. Two possible reasons for this were advanced by Mr Bathgate. First that the tang which was designed to retain the lever to the central console of the vehicle wherein the handbrake lever was housed was worn and had disengaged. Second, that the plastic grip had, presumably with usage, became loose and able to move up and down the handbrake lever. Mr Bathgate was able to demonstrate to himself that it was possible for the detached handbrake cover to slip forward and thereby prevent the release button on the handbrake from operating properly. A consequence of this was that it was possible for the pawl within the handbrake mechanism to be prevented from engaging with the ratchet tooth in the handbrake mechanism. Effectively as a result of the impedance of the handbrake button by the handbrake grip the pawl rested on top of the ratchet and did not engage with the tooth. If this occurred then the handbrake lever itself appeared to be in the engaged, or operative, position so far as the driver of the vehicle was concerned when, in fact, the handbrake was not engaged. Mr Bathgate was very candid in informing the court that he had only been able to achieve this result on two or three occasions despite spending a very considerable amount of time attempting so to do. Mr Bathgate's findings in this regard had been put to an expert instructed by the defender. That person had been shown Mr Bathgate's findings and, whilst conceding the possibility, expressed the opinion that the chances of it occurring in a real life situation were "sufficiently remote as to be implausible". This expression of opinion was put to Mr Bathgate for comment. He was unable to express in language his view of the likelihood of what he had found occurring beyond saying that "it was possible for it to happen". His conclusion was therefore that it was only a rare occurrence. It was however the only means whereby he was able to explain the vehicle running backwards, when the driver, in this case the pursuer, believed that the handbrake had been engaged.

[6] Mr Bathgate was aware that the defenders had issued two Customer Notifications in respect of this type of vehicle. These Customer Notifications related to a different problem which had apparently arisen in relation to the handbrake mechanism on these vehicles. These Customer Notifications were issued in or about September 2007 and in December 2008. They had both come to the attention of the pursuer because they included a recall notice advising of a modification which the defenders were prepared to carry out on the handbrake mechanism of these vehicles. The pursuer had, in fact, not availed herself of these opportunities. That matter is of no consequence so far as this litigation is concerned. The modification proposed by the defenders did, however, involve the insertion of an additional spring in the pawl/ratchet system of the handbrake mechanism. Mr Bathgate expressed the view that had this mechanism been in place then, depending upon the strength of the additional spring, the pawl may have engaged in the ratchet even in circumstances where, as he hypothesised had happened in the present case, the handbrake depress button had been prevented from operating properly because of the slippage of the handbrake grip. Mr Bathgate did however concede that this was conjecture on his part, the reason for that being that he had no knowledge as to the strength of the additional spring added in the recall modification.

[7] The defender elected not to adduce evidence.

[8] On the basis of this evidence the pursuer submitted that liability had been established under Section 2 of the Consumer Protection Act 1987 et separatim by reason of breach of duty at common law. In essence the pursuer's position was that if the court accepted the evidence of the pursuer that she correctly and fully applied the handbrake then the only possible explanation for the accident was the hypothesis advanced by Mr Bathgate. That hypothesis proceeded on the basis of a failure of the handbrake caused by defect in the handbrake mechanism, there being no other reasonable explanation for the failure. "Defect" is defined in section 3(1) of the said Act 1987 in the following terms;

"Subject to the following provisions of this Section, there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes 'safety', in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personable injury."

The criteria for determining what persons are generally entitled to expect is stipulated in section 3(2) of the said Act. It was said that the correct interpretation of this provision meant that it was for the courts to determine what it is that persons were generally entitled to expect (A and Others v The National Blood Authority and Another [2001] 3 All ER 289). Applying this to the circumstances of the present case it was submitted that as far as cars were concerned persons, such as the pursuer, would generally be entitled to expect a handbrake to hold and not fail without warning. In the circumstances it was not necessary for the pursuer to show the exact cause of the defect, albeit in the present case it was submitted that the cause had been established by Mr Bathgate's evidence.

[9] Beyond this there was, as already noted, a case developed of a breach of duty at common law. Again the submission was that the accident was caused by a defect in the handbrake, the defect being that described in Mr Bathgate's evidence. Again it was submitted that there was no obligation upon the pursuer to explain exactly how the accident occurred, in that regard reference was made to Lockhart v Barr 1943 SC(HL)1. Here the handbrake mechanism had failed because of a failure in a plastic tang which failed to secure the plastic grip on the handbrake. Alternatively, the handbrake grip was itself defective because it was loose. Counsel for the pursuer accepted that Mr Bathgate was unable to say whether the tang had been damaged and inoperative prior to the car leaving the defender's factory or had been damaged at some later stage. Equally Mr Bathgate was unable to say whether the plastic grip had come to be in a position where it could move on the handbrake prior to the car leaving the factory or at some later stage. This was, on the pursuer's submissions, of no consequence. It was submitted that the pursuer did not have to prove exactly how or when either the tang or the plastic handbrake grip became dysfunctional. It was simply a defect which was out with the control of the pursuer.

[10] In response to these submissions counsel for the defenders submitted that in order for the pursuer to succeed either under the Consumer Protection Act or at common law she required to show first, that there was a defect in terms of Section 3 of the said Act of 1987. Second, the pursuer required to show that such defect caused the accident, that there was a causal connection between the defect and the accident. In support of this proposition I was referred to the twelfth edition of Clark and Lindsall on Tort where at paragraph 11-55 the learned authors in discussing under reference to the said Act of 1987 when a product is "defective", expressed the following view;

"Although the Act pointedly dispenses with the need to prove fault, the claimant must still prove defectiveness. It is not enough merely to show that the product failed and caused damage."

On the evidence of Mr Bathgate this test, it was submitted, could not be overcome. The "defect" contended for by the pursuer in the present case was the failure of the tang or separately the failure of the handbrake grip by a consequence of that article being insecure and able to move up and down on the handbrake lever. It was, assuming Mr Bathgate's hypothesis was correct, only possible to demonstrate the consequences of that finding, and even then only on a very limited number of occasions, if the handbrake grip was able to move. It was not however, possible, as Mr Bathgate himself accepted, to show when either the tang ceased to operate as it was intended or when the handbrake grip became defective and began to move on the handbrake lever. On the evidence it was not, at least arguably, possible even to show that that state of affairs persisted at the time of the accident. More importantly it could not be said that that circumstance pertained when the vehicle left the defender's factory. Quite simply both these defects could, and as a matter of fact probably, did, emerge as a result of use or wear and tear in the three years or thereby between the car's manufacture and this accident. Contrary to the submission of the pursuer the provision of the Act 1987 did not cover wear and tear. Section 3(2)(c) of the said Act specifically provided that the time when a product was supplied by it's producer to another was one of the criteria which had be to considered when establishing whether or not a defect was present. Wear and tear is patently a consideration to be borne in mind when a court requires to determine whether there is a defect in a product. Put simply the pursuer could not establish that the defects she pointed to had been present when the car left the factory and that position was fatal to her case, both under the statute and at common law.

[11] The defenders had a secondary submission, that, in any event, the pursuer had not established the cause of the accident on the balance of probabilities. Reliance was placed on Mr Bathgate's own evidence that he could demonstrate his explanation for the circumstance in which the handbrake came to rest in an inoperative position on two or at most three occasions, despite having tried over a prolonged period of time to replicate this finding. Against that factual background the defenders submitted, on the authority of Rhesa Shipping Co. v Edmonds and another [1985] 1 WLR 918 that on this evidence the court should not draw the inference that the cause of the accident had been established. Reliance was placed on the speech of Lord Brandon of Oakbrooke in the House of Lords in that case as to the approach which a court at first instance should apply to evaluation of evidence and the burden of proof. It is clear from that case that whilst a court should also try to make a finding one way or other with regard to facts adduced by the parties it is not bound so to do. The court must approach this question using common sense and applying that to the facts of the case. In the present case application of that principal to Mr Bathgate's evidence should persuade the court to the view that causation had not been proven.

[12] I deal firstly with the issue of causation. I considered that Mr Bathgate gave his evidence in a straightforward manner and was attempting to assist the court. I accordingly accept that Mr Bathgate was able to demonstrate to himself on two or three occasions that it was possible to operate the handbrake lever in such a way as to achieve the result where the pawl rested on the ratchet without engaging a tooth. I am not however persuaded, on the facts, that Mr Bathgate proffered an explanation satisfactory to explain the cause of this accident. In reaching this decision I have considered firstly the fact that Mr Bathgate was able to achieve this result only with the handbrake removed from the car and on his own desk. This is, inevitably, an artificial situation and does not necessarily replicate in a precise way the operation of the handbrake in its intended position in a motor car. Effectively, and quite properly, Mr Bathgate was attempting to achieve the result of the pawl resting on a ratchet tooth. That is a situation far removed from the operation of a handbrake in a car where a person, such as the pursuer in the circumstances of the instant case, simply pulled on the handbrake without any intention to reach that rather artificial result. The second circumstance which I have regard to is the straightforward fact that Mr Bathgate was, on his own evidence, only able to achieve this result two or three times. He tried on numerous occasions over an extended period of time to replicate these findings and could not do so. The defender's expert expressed the view that the likelihood of this happening in real life operation was "sufficiently remote as to be implausible". I do not consider that when asked about this Mr Bathgate very seriously sought to rebut it. All he could say about his finding was that it was "possible". When I consider these findings against the approach to be taken to establishing proof on the balance of probability as explained by Lord Branden in Rhesa Shipping Company (supra) I come to the conclusion that the pursuer has failed to prove causation in this case.

[13] The foregoing finding in relation to causation are sufficient to dispose of this case. I should however deal with the case pled under the Consumer Protection Act 1987. In my opinion the approach contended for by the pursuer is misconceived. It is, in my view, plain that in terms in Section 3(2)(c) the time when the manufacturer parted possession with the object in question is of critical relevance. Clearly time is a factor which must be considered by the court determining whether or not there is a defect. This is, in my view, in accordance with common sense. It seems to me wholly implausible that the Act had as its purpose and intention the imposition of what would amount to a life long warranty of goods by a manufacturer. If my construction is correct then it is essential if the pursuer is to succeed in the present case that she establish that the defect she contends for, that is the ability of the handbrake grip to move on the handbrake lever, was present when the motor car in question left the defenderS' factory. On Mr Bathgate's own evidence this clearly cannot be done. For this reason the pursuer's case under the Act of 1987 also fails.

[14] For completeness I should indicate that the defender tendered a plea on contributory negligence which plea would only have come into play if there had been a finding of liability. As the factual evidence developed the only basis for that plea could have been, first, the pursuer's failure to leave her car parked in gear or second, her failure to return to the car once it began to roll backwards down the hill and seek to re-enter it and arrest its halt from the driver's seat. I was not persuaded in the slightest that the second basis of contributory negligence had any merit in it whatsoever. It seems to me wholly unrealistic to expect a lady of the pursuer's age, no doubt as she indicated herself in a state of panic, to seek to run back and enter a moving car. The other ground of contributory fault, that is failing to leave a manual car parked on a slope in gear, is based in guidance in uttered the Highway Code. I accept that the pursuer, as the holder of a driving license should have been cognisant with that guidance. I consider therefore that her failure to leave the vehicle in gear would have resulted in a small finding of contributory negligence evidence had liability been established. It is not necessary for me to be more precise than that given the determination I have made in this case.

[15] In the event I shall assoilzie the defenders from the conclusions of the summons.