MG CONSTRUCTION LTD AGAINST AGD EQUIPMENT LTD [2020] ScotCS CSOH

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[1] The pursuer, a construction company, purchased a pile driving hammer from the

defender. The hammer failed while in use on a construction site. The manufacturer

replaced the hammer. The pursuer raised an action against the supplier for recovery of the

amount paid in settlement of breach of the construction contract, loss of profit on the

remaining work due to be carried out, legal costs, consultancy fees and lost director’s time,

on the ground that the hammer was not of satisfactory quality under section 14 of the Sale of

[2] The case called before me for proof before answer on liability. I heard the evidence

prior to the COVID-19 outbreak, with closing submissions being made by telephone due to

[3] A piling hammer (also known as a rig) is a hydraulic impact hammer used for pile

driving. It is attached to a leader which acts as a guide for the hammer so that verticality

may be easily maintained resulting in the piles being driven into the ground plum. The

leader is attached to the base excavator. The base excavator is a vehicle which is separate

from the hammer, but to which the hammer is attached. The base excavator provides the

necessary hydraulic power and ability to travel the machine from pile position to pile

position. The ram box, which is also known as a swivel arm, is part of the leader assembly.

[4] There was an incident with the hammer on 17 May 2015. The pursuer had been

contracted by Barhale Limited to drive piles on a site in Portobello. The ram box failed,

[5] On inspection of the failed hammer, it became apparent that it had sheared along the

line of a pre-existing crack. The crack had gone all the way round. The crack had been

repaired by a weld. That weld will be referred to in this opinion as the “casualty weld”.

Metal plates had also been inserted within the box. There was also another weld, on the

surface of the ram box. That other weld will be referred to in this opinion as the “check

[6] The pursuer’s position was that the casualty weld had not been made by the pursuer

and so must have been made prior to delivery. The defender’s position was that it had not

been made before delivery. The defender drew attention to a scenario (the “Defender’s

Scenario”) which might explain the making of the casualty weld after delivery. The

Defender’s Scenario was that after taking delivery of the hammer the pursuer’s staff had

misused it by pushing it against piles which had not been inserted into the ground straight

in order to straighten them. The misuse caused the swivel arm to fail due to fatigue, and

that failure was repaired by the casualty weld shortly before the incident.

[7] The key issues at proof were whether the pursuer had proved that the casualty weld

had been made before delivery, and if so whether the pursuer had failed to mitigate or had

(1) Except as provided by this section and section 15 below and subject to any

other enactment, there is no implied [term] about the quality or fitness for

any particular purpose of goods supplied under a contract of sale.

(2) Where the seller sells goods in the course of a business, there is an implied

term that the goods supplied under the contract are of satisfactory quality.

(2A) For the purposes of this Act, goods are of satisfactory quality if they meet the

standard that a reasonable person would regard as satisfactory, taking

account of any description of the goods, the price (if relevant) and all the

(2B) For the purposes of this Act, the quality of goods includes their state and

condition and the following (among others) are in appropriate cases aspects

(a) fitness for all the purposes for which goods of the kind in question are

[9] Mr Milloy was the managing director of the pursuer. He holds a BSc in civil

engineering and in the past was a chartered civil engineer. He had in excess of 28 years of

[10] Mr Milloy’s evidence was that in around 2014 the pursuer decided to approach the

defender for procurement of a new top drive hydraulic hammer. They selected the hammer

manufactured by FAMBO because they already had FAMBO hammers. They were

informed by Gordon Law of the defender that the defender had a hammer in stock available

for immediate delivery, avoiding the normal fabrication lead time of around 6 months. The

defender advised him that the hammer was in stock as it was the last rig manufactured in

Sweden by FAMBO, who were terminating their manufacture process. Bauer, who had

acquired FAMBO sometime prior to this, were taking control of manufacture in Germany.

[11] The defender fitted the hammer to the pursuer’s base crawler excavator. During the

commissioning process, there were a number of difficulties with the hammer. The

difficulties were referred to in emails from the pursuer to the defender on 20 September,

23 September, 30 September 2014 and letter of 24 October 2014. The problems included

hammer rams not retracting, hydraulic output, hammer guides and cage, hammer not

giving full stroke, tyre rods breaking, hammer hitting mass ten plate and electrical cables

[12] Mr Milloy said that if an operator had damaged the arm as suggested by the

Defender’s Scenario, the operator would have had to report it to the pursuer’s plant

department and it would have appeared within their report. There was no possibility that

the plant manager Morris Crane would not have been aware of damage or major repair

work. The pursuer was a relatively small company with under 20 employees. It has eight

hammers, which are the basis of its operation. The pursuer’s operational records of using

these hammers over 50 years show no such damage. In any event, the pursuer’s plant

department would not attempt a repair like this, but would subcontract it to a coded welder.

In any event they would have not made the repair which was done, but would have

replaced the part. It was a relatively small part and could have been replaced for £200 or so.

The workshop was next to Mr Milloy’s office and he would have been aware if a hammer

was taken in for repair. The pursuer’s staff were fully trained and did not have a practice of

misusing hammers. There was no evidence of misuse of hammers in the 28 year history of

the company. On being asked in cross-examination whether it could be that an employee

did try to use it to straighten a pile, Mr Milloy responded that there was always the

possibility but he found it unlikely. His employees did not have the skill to conceal the

casualty weld with paint. The weld was very poor quality but the concealment was

[13] He gave evidence that the pursuer had an inspection regime whereby there are

regular inspections by the company’s plant department staff and in addition the hammer

was inspected on a daily basis by the operator for general maintenance purposes. It was

also inspected on a 6 monthly or annual basis by insurance inspectors.

[14] Mr Milloy was not on site on the day in question so did not see the hammer

[15] Barhale raised an action against the pursuer for breach of contract which Mr Milloy

[16] The pursuer returned the hammer to the defender retaining the smaller part of the

section of the Ram Box containing the failed weld. It did so in order to retain some evidence

in case they sued the defender. That part had since become lost. It was a mistake to lose it.

In this opinion I shall refer to the lost part as the Smaller Ram Box Section and the other part

of the section of the Ram Box containing the failed weld as the Larger Ram Box Section.

[17] On cross-examination he explained that a fault in the hammer did not have potential

to cause delay in the Barhale contract: the pursuer would just have used another hammer.

He accepted that the pursuer’s records might not record everything that had been done to a

machine in its history, but in re-examination agreed with his counsel’s suggestion that if the

pursuer had undertaken a significant repair to the machine he would expect to see that

[18] I found Mr Milloy generally to be a credible and reliable witness on factual matters

on which he had direct personal knowledge. However I did not accept his inference from

such facts that the casualty weld was not made by the pursuer’s staff. The pursuer’s

procedures and inspections and the location of Mr Crane’s office do not exclude the

possibility of an employee carrying out the casualty weld outwith the proper procedures

and not making the pursuer or Mr Crane aware of what he had done. A further difficulty

with Mr Milloy’s evidence is that Mr Milloy was not on site at East Kilbride on 12 May and

[19] Mr Jeffrey has been employed by the pursuer since 2008 and is the leading foreman.

He was on site at East Kilbride on Tuesday 12 May 2015, prior to the failure of the hammer

at Portobello on Sunday 17 May. He saw something on the paintwork on the hammer arm.

It looked like a blemish in the paint but he had not noticed it before and wanted to get it

checked. It did not look like a crack, just a mark. He put out a call to the fitter, Scott Jack

and pointed out the blemish in the paint to him. Mr Jack was not sure what the mark on the

paint was either. Mr Jack ground off the paint. Mr Jeffrey could not recall whether or not he

saw the metal when the paint had been ground off, but as far as he knew there was nothing

to see as Mr Jack continued to investigate. Mr Jeffrey went off to do other things and did not

witness what Mr Jack did. Mr Jack told Mr Jeffrey that he applied a weld to see if the heat

showed up a crack or movement, but it did not. They proceeded on the basis there was no

crack there and the rig was not taken out of service. Mr Jack did not have paint with him.

[20] In assessing Mr Jeffrey’s evidence, two difficulties present themselves. The first is

that there is a stark difference of fact between Mr Jeffrey and Mr Jack on the state of the

hammer on 12 May 2015. Mr Jeffrey’s evidence was that there was a blemish in the paint.

Mr Jack’s daily report, set out in below, states there was a crack. There is a material

difference between these accounts as a blemish is a less serious defect than a crack. A crack

might support the Defender’s Scenario, whereas a blemish might not. Without hearing

evidence from Mr Jack, it is impossible to decide whether Mr Jeffrey’s account or Mr Jack’s

account is to be preferred. Further, Mr Jeffrey has no direct knowledge of what Mr Jack did,

as Mr Jeffrey was elsewhere on site at the time. On account of these difficulties, little weight

can be placed on Mr Jeffrey’s evidence in considering whether the pursuer has proved its

[21] Mr Crane is the pursuer’s plant manager, a post which he has held for around

[22] During the commissioning process a number of problems came to light. There was

excessive welding on the hammer which prevented it from sliding on the guides: the

excessive welding had to be ground off. The hammer would not flow to its proper weight.

The defender had fitted an improper hydraulic valve and had not calibrated the gauge

properly. The main hydraulic rams for the hammer were overheating. The hammer was

travelling too far on the slides and damaging the top of the hammer and guides when it got

to its maximum height. After commissioning, there was an instance when the machine was

being used in Newcastle when hydraulic control valves became faulty. There was then a

period of normal operation until the incident. Mr Crane was not on site at the time of the

[23] After the incident, he received Scott Jack’s daily report sheet for Tuesday 12 May

[24] After the incident, the defender replaced the hammer and took the old hammer

away. Mr Crane’s recollection was that all parts of the hammer were taken away, but he

was not certain about that. He was sure that they took the larger part of the arm away and

that it had not been cut, broken up, or touched in any way before they took it away.

Whether or not they took the smaller section, he could not be sure.

[25] He said that his photograph showed rust on the casualty weld which would not have

been there had the casualty weld been done a few days before the incident.

[26] I found Mr Crane generally to be a credible and reliable witness on matters of which

he had direct factual knowledge. However he was not on site at East Kilbride on 12 May

and had no direct knowledge of what Mr Jack did that day. I do not accept his inference

drawn from the rust, as it was based on colouring in a photograph and I was not satisfied

that colour reproduction in a photograph is sufficiently accurate to allow a diagnosis of rust.

[27] Thomas Gibson is a former director of the defender. He had a telephone

conversation with Francis McCauley following the incident. He was driving home. There

were two people on the call, Mr McCauley and one other. They were very aggressive on the

call. They were putting hypothetical situations to him. He agreed with their suggestion that

if the pursuer had carried out the repair it should have been tested. He did not say that the

pursuer had carried out the repair to the arm. Everything was hypothetical at that stage as

the investigations had not been completed and it was not clear exactly what had happened.

[28] In cross-examination there was put to him the account of the conversation given by

Mr McCauley in his investigation report. Two different versions of Mr McCauley’s report

had been lodged in process and the witness was referred to the version of the report forming

part 4 of the Appendix to Ms Wasserman’s report (Production 7/8). The account of the

“Regarding the (failed) weld on the Ram Anchorage point [Mr Gibson]

acknowledged that there was a crack and that an attempt had been made to

undertake a repair, which was unsatisfactory. [Mr McCauley] questioned

Tom Gibson regarding the attempted repair asking if it should have been

test/certificated? Tom Gibson’s reply was that it should have been sent for testing

Mr Gibson’s response was that Mr McCauley asked a similar question which was if you had

carried out a repair would it have certification to which Mr Gibson had replied yes if they

had carried out a repair. Mr McCauley asked if it would be good practice to have it tested

and Mr Gibson said yes. Mr McCauley said did you and Mr Gibson said no.

[29] Mr Probst is the director of quality management at Bauer. He is based in Germany

and has held that position for 7 years. With reference to a photograph of the actual hammer

which failed, which had been taken prior to delivery, it could be seen that there were no

visible signs of welding. If the weld had been ground flat and painted over it would be

[30] The quality control information which the FAMBO provided Bauer with would have

suggested that the hammer was in good working condition. The quality control procedure

for the hammer would have been carried out by FAMBO. The ram box was designed to be

made out of a single sheet of steel. The design did not include a weld at the point of the

[31] When asked on cross-examination whether the hammer which failed was the last

FAMBO hammer made in Sweden he replied he was not sure and he could not answer that.

The parts were manufactured individually by different companies and assembled in Sweden

[32] I found Mr Probst to be generally a credible and reliable witness. However I do not

accept his inference that the hammer was in good working condition: he has not excluded

the possibility that the casualty weld was concealed in such a manner that it was not picked

up by the quality control procedures. The question of the state of the hammer prior to

delivery is a matter for the court having heard all the evidence.

[33] Mr Lämmle has worked for Bauer Maschinen GmbH as a technical specialist

customer service advisor and has worked for them since 1997. He has worked within Bauer

as a welder in steel construction, assembly of drilling rigs and mechanical repairs. From

April 2014 until August 2015, he worked in customer service for FAMBO. He had a

[34] He inspected the failed hammer on 27 May 2015, after the incident, and produced a

[35] The Bauer report found that the damage to the leader was caused by the failure of

the swing arm on the pivoting device. It was found on the swivel arm that two pieces of

steel were joined together by a welded joint. The weld was not carried out correctly

according to the specifications of BMA. The square tube at this weld weakened which led to

failure of the components. After the detection of a crack at the swivel arm, welding repairs

were performed. This incident should have been reported to Bauer Maschinen to be

expertly repaired. Even a half penetration weld would have withstood the normal stresses

occurring. Impermissible form forces have been possibly initiated. With an expert repair

[36] I found the Bauer report to be useful on factual matters in that it set out in detail,

including photographs, the results of an inspection of the failed hammer by Mr Lämmle

shortly after the incident. However it was not an expert report but an internal report by

Bauer and does not constitute opinion evidence. In particular, there is a finding in the report

that after the detection of a crack at the swivel arm, welding repairs were performed. That

finding was based on no evidence and is a matter for the court. Accordingly, I do not accept

[37] Mr Law is the managing director of the defender. He has worked for the defender

since 1983, beginning work as a trainee and having been the managing director since 2002.

[38] The defender purchased the hammer from FAMBO in July 2014. He had bought all

of FAMBO’s stock. The hammer supplied to the defender was the last one ever made by

FAMBO in Sweden. It was then supplied by the defender to the pursuer about 11 August

2014. The hammer was subject to quality testing prior to delivery. This was carried out by

FAMBO at the factory. No defects were noted on inspection by the defender.

[39] Mr Law had sold FAMBO equipment since 2002 and had always found their

equipment to be well designed, well-built and safe and had never known of a weld to fail in

[40] The hammer was supplied with the warranty valid for 12 months from the date of

purchase. From delivery of the hammer in 2014 until the incident in May 2015, there were

several occasions when the pursuer contacted the defender about the warranty. These were

minor issues and the defender repaired the machine. This showed that the pursuer was

aware of the warranty, but they chose not to follow the warranty procedure when the crack

[41] After the incident, Mr Law made an offer of replacing that hammer as it seemed to

him the only way that litigation would be avoided. He did not accept liability. In an email

dated 9 June 2015 he stated “This is an ex gratia offer of settlement and is offered in the spirit

of maintaining a good relationship with you”. After sundry correspondence and

discussions, it was agreed that the hammer would be replaced and the pursuer would

pay £7,500 plus VAT as the new hammer was better than the damaged one. This was set out

in an email from the defender to the pursuer dated 17 June 2015 which stated “This is not an

[42] There was no inventory taken when the parts of the hammer arrived at the

defender’s yard. Mr Law decided that they should be put into storage in case they were

required at some point in the future and they were put in stillages, that is steel pallets with

sides used to store equipment. It was only in September 2018, when the defender was asked

to make the parts available for examination by its experts that Mr Law realised that all of the

swivel arm (ram box) had not been returned. The Smaller Ram Box Section had not been

returned. The other half of the ram box had been cut off from the main frame and cut away

on three sides. That meant that they had only one edge of the casualty weld. The missing

part and the parts cut away had been cut with angle grinders. The defender does not

generally use angle grinders to cut items in its workshop. Grinders are regularly used on

construction sites. In his view, the pursuer must have failed to return the part of the swivel

arm (ram box) which would have been attached to the piling rig. He further believed that

they had cut away the part which was attached to the mounting plate.

[43] Mr Law explained the Defender’s Scenario. He was aware from experience that it

was common practice for some piling contractors to use the base excavator to push against

the leader to straighten up piles that are already embedded in the ground. The FAMBO

hammer and the leader are not designed to be used in that way. Using it in that way will

result in the hammer being exposed to a greater degree of force than it is designed to take.

The swivel arm (ram box) is not designed to withstand the force of the base excavator

pushing against it when it is locked on a pile which is already embedded in the ground. An

overload failure or a fracture caused by excessive force being applied to the equipment is

most likely to occur in the swivel arm (ram box) at the weakest point, in this case the

casualty weld. Employing this practice with a 40 tonne excavator would have imparted

[44] Mr Law commented on a document entitled “M G Construction Plant Management

System”. The purpose of that document was to act as a record of maintenance work. It

shows the hours worked by the base machine or excavator on which the pursuer had

mounted the FAMBO. They show a total of 655 working hours from 18 September 2014 to

8 March 2015. He assumed that given that the hammer was used in conjunction with the

excavator, it had been used for approximately the same number of hours. He would expect

[45] I found Mr Law to be generally a truthful and reliable witness on matters of fact. I

did not accept his evidence about the number of hours the hammer worked. That evidence

was based on documentation showing the hours the excavator worked, but he had no basis

of knowing whether the hammer had been attached to that particular excavator for all of

these hours. I accept his explanation as to the effect on a hammer of misuse in straightening

piles, but note that this was a general explanation of what might hypothetically happen and

was not direct evidence as to what actually happened in this case.

[46] Mr Woodfull is currently employed as the plant manager for the BCS group. The

BCS group includes Barhale. He has over 30 years’ experience in the construction industry

and has worked for various companies over that period. He has engaged in several internal

[47] He was asked by Barhale to attend at the site after the incident and did so on 18 May

[48] On his inspection of the box section he noticed a hairline crack. The hairline crack

had been welded over and it was a fresh weld. In order to carry out a weld competently

there required to be the grinding back of the surface. From his experience it looked like a

very amateur job in an attempt to patch up the crack. He prepared a report for Barhale.

[49] In his view, the fracture could have been caused by the Defender’s Scenario. A piling

on of the mass would have caused repeated damage to the box section. The crack could

have been caused by the treatment of the machinery. The crack on the box looked like it had

been a fresh weld albeit that there was rust present in the inside. He would expect to see

rust on the inside of the crack if this had happened over a period of time and had been left

rather than the crack occurring immediately before his inspection. The crack on the box

section was too large to attempt to repair by simply welding and the proper procedure

should have been followed in respect of any attempts to weld it, or the machine should have

[50] The welding specification procedure did not appear to have been undertaken. Check

welds should be carried out on site and when a crack appears must be carried out by a

competent welder. There must be certificates to ensure that the proper materials are being

used. Good practice would suggest that the machinery should have been taken out of

service immediately in the interests of safety. The hammer should have received a fresh

weld and been replaced due to the weight bearing on it rather than simply patched up in a

[51] On cross-examination it became apparent that Mr Woodfull’s evidence was

predicated on his understanding that there was only one weld. When the evidence of there

being a casualty weld and a check weld was pointed out to him, he accepted that his original

[52] I did not find Mr Woodfull’s evidence to be of assistance. He is not an independent

expert, but an employee of a Barhale group company who investigated the incident as it

occurred on a Barhale site. His evidence was predicated upon there only being one weld,

whereas the evidence as a whole establishes that there was a casualty weld and a check

[53] Mr McCauley works for Barhale Limited, which was the company that had

contracted the pursuer to work on the site at the date of the incident. He is the Health and

Safety advisor for the Scotland region. On 21 May 2015 he had a conversation with

Mr Gibson. Mr Gibson acknowledged that there was a crack and a repair was attempted.

Mr McCauley asked him should this have been tested or certified and he replied it should

[54] On cross-examination Mr McCauley agreed that on 21 May 2015 he thought that the

check weld was a repair. At that time he had not seen Mr Jack’s report in which Mr Jack

stated that he had applied a weld for a visual check. If he had he would have factored that

in. He agreed that the conversation was more nuanced than appeared in his report, and that

Mr Gibson’s position was not as stark as presented in that report.

[55] Mr Lindermair was currently the managing director and CEO of RTG Rammtachnik

GmbH which is a fully owned subsidiary of Bauer Maschinen. He had been the executive

director of the business unit of piling technology of Bauer since 2005, including the FAMBO

products. He was the managing director of FAMBO from approximately 2010 to 2015. He

had worked with Bauer Maschinen for 27 years and had an engineering degree from a

[56] Bauer acquired FAMBO on or around 2003 – 2004 and it became a fully owned

subsidiary of Bauer. The FAMBO production facility in Sweden was closed in 2015 and

production of FAMBO products was moved from Sweden to Bauer in Germany. Since 2015,

production of FAMBO products had been in Germany in the Bauer factory, although the

[57] The quality control information which FAMBO provided to Bauer in relation to the

hammer would have suggested that the FAMBO hammer was in good working condition.

There is no specific quality inspection of the ram box and as FAMBO carried out quality

control procedure for the hammer, Bauer did not have any further information to provide.

The inspection of the ram box had been carried out by FAMBO and Sweden. The FAMBO

hammer was not an uncommon piece of machinery and about 180 units had been supplied

throughout the world. If there was a design flaw it would have presented a massive

[58] I found Mr Lindermair to be a credible and reliable witness in so far as his evidence

went. However, he was unable to assist on FAMBO’s quality control procedures.

[59] Mr Prince was a technician working for SOCOTEC UK Limited.

Sample 1, labelled “Red Layer, metal section near weld. Position 1.”

Sample 2, labelled “White Layer, metal section near weld. Position 1.”

Sample 3, labelled “Red Layer, metal section away from weld. Position 2.”

Sample 4, labelled “White Layer, metal section away from weld. Position 2.”

[61] Samples 1 and 3 produced a spectrum consistent with urethane/acrylic paint.

[62] Analysis of samples 2 and 4 produced a spectrum consistent with epoxy paint.

Epoxy paints are very commonly used in industrial coating application.

[63] There was a 98.5% correlation between samples 1 and 3, of which would suggest that

they were the same product. There was a 99.6% correlation between samples 2 and 4 of

[65] He examined two samples, a red sample and a white sample. He compared the red

sample with the red welded piece and found that under FTIR spectra comparison, the match

between the red coats was almost exact. He also compared the white sample against the

white welded piece and found that the match between the white coats was almost exact.

[66] Ms Wassermann is a chartered mechanical and metallurgical engineer with over

40 years experience. She holds a first class MA degree in natural sciences (metallurgy) and

an MSc in the mechanics of materials. In addition to her career as an engineer with various

companies, she also has extensive experience as an expert witness, both in the UK and

[67] In Ms Wassermann’s opinion, the failed box section was manufactured in two parts.

It was unlikely that the hammer could have been overloaded if it had been used within the

manufacturer’s guidance. The casualty weld was not carried out effectively. There was lack

of fusion, lack of penetration, slag inclusions and pores and porosity. In Ms Wassermann’s

view, had the casualty weld been examined at manufacture this would have been noticed.

Had it been made from one piece then there would have been no weld to fail.

[68] She would not expect a section manufactured in two parts and welded to operate

within the same parameters as a part manufactured from a single section of the material.

She could see no reason why the component should have been in two parts in this case: it

[69] The casualty weld was very poor with a number of defects. It was not executed

correctly. In her opinion, the incorrect execution of the weld was the cause of the failure.

[70] In her opinion, the hammer with the casualty weld would have failed under normal

use. The stresses calculated by Bauer, when combined with the weld defects and the

repeated impact loading, would be sufficient to cause failure of the faulty weld.

[71] The section that failed was short and the pursuer could not have anticipated that

there was a weld in that location. The weld had been ground flat and painted over so that

[72] Her understanding of the evidence was that Mr Jack noticed some cracking of the

paint and applied a small weld to monitor whether there was a crack in the metal causing

the paint to crack. She would not recommend that action to determine whether a crack was

present. Dye penetrant or alternatively magnetic particle inspection should have been

carried out to check for the presence of a crack. However, in her opinion, the application of

the check weld by Mr Jack did not have any effect on the failure of the hammer. If Mr Jack

had not noticed the crack in the paintwork and had taken no action the hammer could still

[73] Prior to the proof, Ms Wassermann had met with the defender’s metallurgy expert,

Mr Dalton, as directed by the court. At the joint meeting of experts, agreement was reached

on the following. The weld would not be visible under the paint if it were a good weld.

There was however disagreement as to the situation where there was a poor weld. There

was agreement that a check weld was not an ideal way to monitor cracking or yielding, but

that the check weld was unlikely to have had a significant influence on the failure. There

was agreement that the strength of the casualty weld was low and it was not fit for purpose.

The poor quality of the casualty weld was the cause of failure. It was agreed that the check

weld was not good practice but there was disagreement as to the extent to which this was

[74] At their meeting the experts also considered whether the investigation had been

prejudiced by the lack of availability of the missing Smaller Ram Box Section. There was

agreement that the check weld was located on the side of the component which would have

been under compression during use. The remaining part of the fracture was at the side and

was unlikely to have been the initiation point of the fracture. It was therefore impossible to

tell whether the fracture was gradual, by fatigue or sudden. In addition, study of the paint

near the weld and further away could have indicated whether all the paintwork was carried

out at the same time or whether the weld was overpainted at a later stage. It was not

possible to examine the swivel arm for any evidence of damage which could have led to it

[75] As a result of the experts’ comment about what could be discovered from study of

the paint, the paint was analysed by Mr Prince and Mr Bate as set out above.

[76] In Ms Wassermann’s opinion as set out in her Supplementary Report dealing with

the paint analysis, the results of the paint testing demonstrated that the same paint was used

for the whole component. Therefore unless the whole component was repainted at some

stage, it was likely that the hammer was supplied with the casualty weld in place.

[77] She noted that there was a statement in Mr Woodfull’s report which stated that the

surface showed signs of rust. This implied that rust had been growing in the weld for some

time. She was referred to the brown colouration in Mr Crane’s photographs but said it was

[78] On cross-examination, it transpired from an examination of the part from which the

paint samples were taken, that the samples were taken further away from the weld than

Ms Wasserman had thought when she wrote her Supplementary Report. Ms Wasserman

was asked whether that changed her view in her report that unless the whole component

was repainted at some time it was likely that the hammer was supplied with the casualty

weld in place. She said that she thought that was unclear now. When asked if she was

withdrawing her conclusion she said she was casting some doubt on it.

[79] She also commented on not having examined the Smaller Ram Box Section. She said

that without the full specimen we cannot see where the crack initiation was and what the

exact failure mechanism was: we only have a little strip of the weld not the full

circumference of the weld but just one side of it. Without seeing the whole section she did

not know if it was a gradual crack (which was most likely) or sudden failure. Further, in

respect of rust she commented that we have not had the full cross section to see where

initiation started and which part corroded more. In respect of the check weld, she said that

[80] Mr Carter is a graduate of the Royal Institute of Chemistry. He is currently a

business development manager for coating and polymer for SGS (UK). Prior to joining SGS

he worked for 24 years within the coating industry, working his way up from the laboratory

bench through to operations director within various paint manufacturing companies prior to

14 years in independent coating testing. He currently chairs two working committees of the

National Association of Corrosion Engineers and is an active member of numerous NACE

working groups developing and updating test methods and specifications for coatings used

[81] Mr Carter examined the hammer, which was found to have sections missing,

although additional sections (but not the Smaller Ram Box Section) were furnished to him at

a later date. The overall surface finish of the coating system was in a generally acceptable

condition. The coating system was found to be uniform in appearance across the primary

submitted hammer piece and the off-cuts received later. The material showed material

degradation and localised damage of coating which could be attributable to heat damage.

As the heat damage was on top of the coating, it could only be presumed that this occurred

[82] Sample chippings were removed from the body of the hammer. The applied coating

was determined to be a two coat system. The initial layer was white and the top coat was

red. The white layer was epoxy and the material of the red layer was not known. Mr Carter

conducted examination by FTIR spectrometer, a film thickness tester and microscope.

[83] His conclusion was that the coating system was uniformly coated with a white

epoxy-based primer and a red top coat, forming a two-coat system. There was no evidence

of further touch ups or repairs that indicate later coating activity. On the contrary there

were observable defects that would potentially be a source of corrosion in the long term.

The spot film thickness measurements suggested that there was a variance that would not

generally be of satisfactory quality. Additional data evaluated on the sample in proximity to

the weld defects showed no indication of additional overcoating. The film thickness

measurement, both non-destructive and cross-sectional were consistent with the spread of

measurements across the body of the hammer. In the limited area of coated material in

proximity to the weld, there were signs of coating degradation that were consistent with

[84] Mr Dalton is currently employed by RCA Laboratories Limited as senior

metallurgist. He has been employed as a metallurgist in various roles since 1977 and

graduated from Manchester Polytechnic in 1988 with a Masters degree in metallurgy. He is

a fellow of the Institute of Materials, Minerals and Mining, and a chartered engineer.

[85] His understanding was that a crack had previously appeared at the same position as

the failure, and that the pursuer’s operators had performed a check weld. The check weld

was made either directly on top of, or very close to the casualty weld. The absence of

corrosion on the surface of the unprotected steel suggested that the check weld was likely to

have at least been made only a short time before the catastrophic failures. Paint had been

ground away but it was not known whether this was to make the casualty weld or the check

[86] Mr Dalton inspected the hammer however the ram side of the swivel arm was not

included with the other items. In addition three of the four sides of the fracture on the

mounting plate side had previously been removed using a disc cutter and the parts removed

[87] Close visual examination of the only remaining section of the fracture confirmed the

presence of a partial penetration weld (the casualty weld). A partial penetration weld is one

which does not extend through the full thickness of the plate and is therefore considerably

weaker than a full penetration weld. The casualty weld was of very poor quality with an

uneven profile, little penetration and large areas of lack of fusion. Mr Dalton removed and

examined a small section. He also examined a similar FAMBO hammer and found that in

the other FAMBO hammer the box section was a single piece of steel with no weld being

[88] In his opinion, the failure had occurred at the position which coincided with a point

of maximum stress, that is the natural position at which an overload failure would be

expected to develop. A section of plate had been inserted into the joint, presumably to

increase the strength. This was not good industry practice and could have acted to intensify

the stresses. The absence of any corrosion on the unprotected steel suggested that the

casualty weld was carried out only a short time before the catastrophic failure. Although it

was unlikely that the check weld played a significant role in the failure, the manner in which

it was carried out was not in line with good industry practice. Having discovered a crack

the correct course of action would have been to inform the defender. An appropriate repair

procedure would have involved complete removal of the crack by grinding following which

the excavated area would have been replaced by a fully penetrating weld. All of this would

have been controlled by an appropriate welding procedure specification (“WPS”) and

carried out by a qualified welder. Had the check weld been carried out in a controlled

manner it is likely that the underlying substandard weld would have been identified and

[89] Although he accepted that a good quality weld could have been hidden by careful

grinding and painting, the casualty weld was of such a poor quality that it would be

expected that some indication of its existence would have been visible through the paint

[90] He gave the following reasons why in his opinion the casualty weld was not part of

(1) The fabrication drawing for the swivel arm did not show a weld at the

(2) The casualty weld was located precisely where an overload failure would be

(3) The casualty weld was made by a welder of poor skill and experience and

was not consistent with the high quality of another weld within the swivel

(4) The insertion of a section of steel plate into the joint was not a standard

procedure and was unlikely to have been carried out by a reputable

(5) The only portion of the fracture which was available for examination

possessed a flame-cut edge whereas disc-cutting or saw-cutting would

(6) No edge preparation had been applied to the joint whereas the design

drawing showed this to be a requirement for all other welds in the swivel

arm. It would be reasonable to assume that had this weld been made during

the original fabrication it too would have incorporated an edge preparation.

(7) The casualty weld was a partial penetration type whereas the design drawing

showed fully penetrating welds to be a requirement for all other welds within

(8) A similar FAMBO Hammer which was fabricated around the same time as

(9) Whilst the casualty weld had been ground flush, all other welds within the

(10) There is no logical reason why the swivel arm would be made in two pieces

[91] In Mr Dalton’s opinion, the metallurgical investigation was severely compromised

by the fact that only one eighth of the fracture was available for examination. The Smaller

Ram Box Section was missing and could not be examined. Accordingly it was impossible to

conclusively establish the reason for the existence of the casualty weld. Had the whole of

the fracture been available, the investigation would almost certainly have been more

conclusive and it may have been possible to explain how the casualty weld came to exist.

Had the whole of the fracture been available it would have been possible to establish if the

catastrophic failure was the result of the application of a single load which was in excess of

the strength of the joint, or was the consequence of a slowly developing defect which had

been present for a significant period of time. That information may have been helpful in

[92] The Defender’s Scenario would account for the presence of the casualty weld. The

failure scenario was that the arm became deformed, possibly by misuse or being damaged

during handling or transportation. Since the swivel arm is too strong to be straightened, the

only course of action is to remove it by flame cutting. The front edge would then be dressed

by grinding to remove the deformed region. Because the flame cutting process had melted

away a few millimetres of steel, the arm would now be shorter than it originally was so to

correct the length, a piece of steel would be inserted into the joint to act as a spacer. A repair

weld would be made to join the two pieces of the arm, but since the gap between the two

halves was excessive, the weld would be of poor quality. To disguise its presence the weld

[93] On cross-examination he stated that rust can occur almost instantaneously, giving as

an example rust which appears on brake discs after washing a car.

[94] I heard Mr Dalton’s evidence under reservation of competency and relevancy as

counsel for the pursuer objected to his evidence on the ground that he had failed in his duties

as to impartiality as set out in Kennedy v Cordia (Services) LLP 2016 SC (UKSC) 59. His opinion

was not an objective unbiased opinion and he had assumed the role of advocate. He had

omitted to consider material facts and blurred the distinction between areas that truly fell

within his expertise and those which fell outside. For these reasons, counsel submitted that

Mr Dalton’s evidence should be excluded as inadmissible. In my opinion, Mr Dalton’s

evidence should not be excluded as inadmissible. Although he took into account the

Defender’s Scenario, he did so objectively. His opinion was based on the full facts as

presented to him in the witness box. His evidence fell within his area of expertise.

Accordingly, I find that his evidence is admissible. It will however of course have to be tested

in accordance with the rest of the evidence and assessed as appropriate.

[95] Mr Dimelow is a loss adjuster and director and head of engineering at Sedgwick. He

began his career in 1975 as an engineering apprentice at Rolls-Royce Plc. After completing

his engineering qualifications he moved into loss adjusting in 1988 and has worked as a loss

adjuster since. His qualifications are BEng (Hons), CEng, MIMechE, MBA. In his view the

poor quality of the casualty weld would have given rise to failure within 1 or 2 weeks.

[96] His report was based on the assumption that on 12 May 2015 the defect with the

[97] In his opinion the swivel arm was originally manufactured from one piece of square

tubular steel as detailed on the manufacturing drawing. It was not known when the swivel

arm was welded and a piece of steel inserted to strengthen the welded joint. As there was

no weld preparation as detailed on the FAMBO manufacturing drawing the failed weld was

not undertaken by FAMBO. The damage to the FAMBO leader and hammer was due to

misuse and abuse caused by excessive loads being transmitted through the equipment

whilst driving or straightening piles. The swivel arm initially failed due to fatigue and was

repaired shortly before the incident using a poor quality and poorly prepared weld which

was unable to withstand the excessive load being imposed due to misuse and abuse. Had

the pursuer reported the defect with the swivel arm when it was first noticed, the incident

would not have occurred. If the hammer had been supplied from new with a poor quality

weld the swivel arm would have failed within 1 or 2 weeks not after 9 months of use.

[98] The pursuer submitted that Mr Dimelow was not adequately and appropriately

qualified to give opinion evidence to the court. He was a loss adjuster with limited

engineering qualifications and had never done the type of work which Mr Jack was

undertaking. He offered opinions as to welding with no relevant qualifications. He did not

take into account factual material which might have affected his opinion. He admitted he

[99] In my opinion, Mr Dimelow’s evidence consisted of little more than a summary of

the defender’s case. It offered no new original insights based on particular areas of

expertise. It came to conclusions based on limited evidence which are the preserve of the

court having heard all the evidence. His report was a perfectly proper and appropriate

report for a loss adjuster who was investigating an incident. However, it was not the report

of an expert witness for purposes of court proceedings, and accordingly was of no assistance

[100] The defender objected to the admissibility of any evidence to be led by the pursuer

on whether the ram box was manufactured in two parts and the quality of the casualty weld

in the ram box, and the expert evidence of Ms Wassermann which was based on these

matters. The ground of the objection was that the pursuer failed to return all of the ram box

and that there was prejudice to the defender as a result of all of it not being available for

[101] Counsel for the defender submitted that the Smaller Ram Box Section and the section

which was cut away were of vital importance in the proper investigation of the case. The

defender’s investigation of the origin of the weld was prejudiced as a result of not being able

to carry out physical investigations on the missing parts. The circumstances in which the

sections came to be lost were attended with suspicion and the court should be hesitant about

admitting the secondary evidence. The defender cannot be considered to have been at fault

for not having the ram box examined by experts before the hammer was returned.

Reference was made to Dickson - A Treatise on the Law of Evidence in Scotland – Chapter IV,

paragraphs 236, 237 and 241; Scottish and Universal Newspapers Limited v Gherson’s Trustees

1987 SC 27; Belling v McGowan 1983 SLT (Notes) 77; Stirling Aquatic Technology Limited v

Farmocean AB (No 2) Limited 1996 SLT 456; Peacock Group plc v Railston 2007 SLT 269; Haddow

v Glasgow City Council 2005 SLT 1219; Scottish Water Business Stream Limited v Automatic

[102] Counsel for the pursuer submitted that the evidence was admissible. The missing

Ram Box section had been lost prior to litigation. Both parties had been prejudiced by its

absence. The lack of the Smaller Ram Box Section was a neutral fact. No case was ever

perfect or had every possible item of evidence. This case would require to be decided on

[103] I note that this objection is wide in scope and seeks to exclude as inadmissible any

evidence led by the pursuer on whether the ram box was manufactured in two parts and the

quality of the casualty weld in the ram box. In seeking to exclude such a broad range of

evidence, in my opinion the defender goes too far. It seeks to exclude evidence pertaining to

the timing of the casualty weld which is not derived from the ram box, such as for example

evidence from Mr Milloy about the records not disclosing the making of a casualty weld

after delivery, or evidence from Mr Jeffrey as to the state of the hammer on 12 May. It seeks

to exclude evidence as to the quality of the casualty weld, notwithstanding that there is no

dispute between the parties or their experts that the casualty weld is of poor quality. The

defender also specifically seeks to exclude the expert evidence of Ms Wassermann,

notwithstanding that Ms Wasserman’s evidence took into account that she had not been able

to examine the missing part. The lack of the missing part prejudiced the pursuer as well as

the defender. In these circumstances, I find that the evidence led by the pursuer on whether

the ram box was manufactured in two parts and the quality of the casualty weld in the ram

box, and the expert evidence of Ms Wassermann, is admissible. However, the absence of the

information which would have been available had the missing parts been available for

inspection by the defender’s expert and the pursuer’s expert must be taken into account in

[104] Counsel for the pursuer invited me to sustain the pursuer’s fourth plea in law and

repel the first, second and third pleas in law for the defender, and put the case out by order

[105] Counsel submitted that the hammer was supplied with the casualty weld. It

followed that it was not of satisfactory quality. He submitted that his case rested on the

witness evidence from Mr Milloy, Mr Crane and Mr Jeffrey. They had no knowledge that

anything was wrong with the hammer and no indication of any intervention by the pursuer.

Had some failure occurred requiring the casualty weld to be made they would have known

[106] Counsel further submitted that the actions of Mr Jack did not break the chain of

causation (Borealis AB v Geogas Trading SA [2010] EWHC 2789 (Comm); Lester Stacey t/a the

New Gailey Caravan/Motorhome Centre v Autosleeper Group [2014] EWCA Civ 1551; County

Limited v Girozentrale [1996] 3 All ER 834; Compania Naviera Maropan v Bowaters (The “Stork”)

[1955] 2 QB 68; The Polyglory [1977] 2 Lloyd’s Rep 353; The “Spontaneity” [1962] 1 Lloyd’s

Rep 460; Barings Plc v Coopers and Lybrand [2003] EWHC 1319 (Ch)).

[107] He further submitted that as the pursuer had been placed in a difficult situation by

the defender’s breach of duty and acted reasonably in the adoption of remedial measures,

there was no failure to mitigate his loss (Borealis v Geogas Trading; Banco de Portugal v

[108] He further submitted that as the present case proceeded by way of breach of

contract, there was no requirements to prove fault on the part of the defender

(Forsikringaktieselskapet Vesta v Butcher 1989 AC 852; MacGregor on Damages 20th Ed at 7-011

[109] Counsel for the defender submitted that it was for the pursuer to satisfy the court

that the hammer was not of satisfactory quality under section 14(2) of the Sale of Goods

Act 1979 (Watters v The Masters Golf Co Limited [2013] CSOH 126; Tayside Contracts v

D Geddes (Contractors Limited) 2017 CSOH 108). Having regard to the absence of evidence

from Mr Jack, the fact that the part was not available for inspection and other factors, the

pursuer had failed to discharge the onus to prove the hammer was not of satisfactory

[110] Counsel submitted that the casualty weld was not made by the manufacturer. The

casualty weld must have been formed at some point after the supply of the hammer. The

circumstances in which it came to be formed could only be known to the pursuer. However,

an inference could be drawn that the casualty weld was formed following damage being

caused to the ram box through misuse. It is known that contractors can and do misuse the

excavator to manipulate a pile of which was not embedded straight. As a result of operating

the equipment in that way, the ram box was subjected to forces which it was not designed to

withstand, the result being it is likely to deform. The Defender’s Scenario was a plausible

explanation for the repair of such deformation. This explanation accounts for features of

which Mr Dalton would not have expected to see in a manufacturer’s weld namely the flame

cut edge and the spacer plate standing proud on the inside surface of the smaller section of

the ram box. The defenders position was that both the casualty weld and the check weld

[111] The defender further submitted that it was possible to carry out the weld remotely

shortly before the incident occurred without Mr Milloy or Mr Crane knowing that it had

been done. The absence of flash rusting around the weld was an indicator that the weld had

been made shortly before the rig failed. The ram box failed on Sunday 17 May, shortly after

Mr Jack’s involvement on Tuesday 12 May. It was not clear whether there had been piling

between these days. The same equipment could be used to make the casualty weld and the

check weld. The casualty weld could have been carried out in the field. The evidence was

consistent with the casualty weld being made shortly before the failure and had been

possible to use the hammer for a period before it failed. It could have been possible to make

the casualty weld without affecting the paintwork. The replacement of the hammer was not

[112] Counsel further submitted that rather than apply a weld, Mr Jack should have

arranged to have had a more detailed inspection carried out and that the hammer should

have been taken out of service pending that being done. If those steps had been taken that

would have led to the ram box being replaced or properly repaired and the incident would

have been avoided. In failing to take the hammer out of service for proper investigations

and continuing to use it, the pursuer failed to take reasonable steps to mitigate its loss.

Alternatively, the pursuer’s decision to continue to use the hammer amounted to a break in

the chain of causation (Lexmead (Basingstoke) Limited v Lewis and others (also known as

Lambert v Lewis) 1982 AC 225; Schering Agrochemicals Limited v Resibel NV SA Court of

First issue: whether the pursuer has proved on the balance of probabilities that the casualty

[113] In order to succeed, the pursuer must satisfy the onus of proving on the balance of

probabilities that the casualty weld was undertaken prior to the delivery of the hammer to

[114] There was no dispute between the parties that the failure was caused by the poor

quality of the casualty weld. The dispute between them centred on the question of when the

[115] The pursuer’s position was that the casualty weld was not undertaken by or on

behalf of the pursuer and that therefore it must have been undertaken prior to delivery of

[116] The defender’s position was that the casualty weld was not undertaken during the

manufacturing process, so must have been done after delivery. The defender suggested the

Defender’s Scenario as plausible explanation. The defender’s position was that the casualty

[117] It is important to note at the outset that there is no onus on the defender to prove the

Defender’s Scenario. The onus is on the pursuer to prove its case.

[118] The fundamental difficulty which the pursuer faces in this case is that it has not led

Mr Jack in evidence. All we have is what he wrote in his report. He has not been made

available for cross-examination on whether what he wrote in his report was true. We do not

have his evidence on the state of the ram box when he first saw it. Without hearing from

Mr Jack we cannot resolve the conflict of evidence between his report that there was a crack

and Mr Jeffrey’s evidence that there was merely a blemish. We do not have Mr Jack’s

evidence on the nature or extent of the crack. We do not have Mr Jack’s evidence on

[119] The pursuer’s explanation for not leading Mr Jack is that it was not possible to do so

as Mr Jack was working offshore in Africa at the time of the proof and had refused to give

evidence. The absence of a key and essential witness abroad does not necessarily mean that

his evidence cannot be led. There are a number of mechanisms that can be used to ensure

that the evidence of a key witness is before the court. The proof can be discharged and

refixed for a time when the essential witness is available. The evidence of the essential

witness can be taken by remote video link during the course of the proof. The evidence of

the essential witness can be taken in advance of the proof on commission, either with the

witness physically present or by video link abroad. Steps can be taken to compel the

attendance of a reluctant witness, either for a proof diet or commission. The pursuer did not

seek any of these solutions but instead proceeded with the proof in the absence of the

essential witness. In these circumstances, the pursuer has taken the risk that he will be

[120] There was no direct evidence that the casualty weld was undertaken during the

manufacturing process. In the absence of any direct evidence that the casualty weld was

made prior to delivery, the pursuer founded its case on the evidence of Mr Milloy, Mr Crane

and Mr Jeffrey. I am not satisfied that pursuer’s case can be proved by the evidence of

Mr Milloy, Mr Crane and Mr Jeffrey in the absence of evidence from Mr Jack. None of

Mr Milloy, Mr Crane nor Mr Jeffrey was present when Mr Jack worked on the hammer on

12 May. The evidence of Mr Milloy, Mr Crane and Mr Jeffrey does not prove on the balance

[121] The pursuer also led various items of circumstantial evidence. However, in my

opinion, the circumstantial evidence does not prove on the balance of probabilities that the

[122] It is clear that the casualty weld should not have been made. It should not have been

made as part of the manufacturing process: the design was for an unwelded, single

component. It should not have been made by the pursuer after delivery: any repair should

have been properly undertaken to an appropriate technical specification.

[123] Neither the pursuer’s records nor the defender’s records document the casualty weld

having been made. That does not take us any further forward in deciding whether it was

made before or after delivery. All it tells us is that whoever made it, whether before delivery

[124] The casualty weld was of very poor quality. That does not take us any further

forward either. All it tells us is that whoever made it, either before or after delivery, made a

very poor job of it. It is no more likely that a person making and concealing an unauthorised

undocumented weld during the production process would make a poor quality weld than it

is that a person making and concealing an unauthorised undocumented weld after delivery

[125] The particular hammer in question had not been made to order. It was one of the

last hammers made by FAMBO in Sweden and had been bought by the defender for stock. I

do not accept that in some way an inference could be drawn from this that the casualty weld

had been made as part of the manufacturing process. There was no evidence or logical

reason why a hammer in stock, or the last ones made in a particular factory, should differ in

[126] Nor can any inferences been drawn from the defects which require to be dealt with

during the commissioning period. These were separate defects and bore no relation to any

[127] Mr Jeffrey’s evidence was that there was a “blemish” in the paintwork. However,

absent evidence from Mr Jack, a blemish cannot be accepted as circumstantial evidence

pointing towards the casualty weld having been made prior to delivery. It is contradicted

by Mr Jack’s report that there was a “crack”, and without Mr Jack’s evidence the court

[128] There was also circumstantial evidence about whether there was rust present in the

casualty weld. The pursuer said that there was, and an inference from this could be drawn

that the casualty weld was undertaken during manufacture. However, in my opinion, this

evidence cannot be relied upon as pointing to the casualty weld having been made before

delivery. I am not satisfied that the colour reproduction in the photograph was adequate

basis for Mr Crane to conclude that rust existed. In any event, I did not find the existence or

absence of rust useful in dating the casualty weld. The evidence of the pursuer’s expert

Ms Wasserman on rust was inconclusive as she had not been able to inspect the Smaller Ram

Box Section. I have no reason not to accept the evidence of the defender’s expert Mr Dalton

[129] Further, the replacement of the hammer by the defender free of charge (other than

betterment cost) is not an admission by the defender that the casualty weld was made prior

to delivery. It is not unreasonable or uncommon for a supplier of goods to replace goods

which are not defective as a goodwill gesture to enhance its reputation as a good company

with which to do business. This is particularly the case in situations such as this one where

the customer buys an upgraded item and pays for the difference between the original item

and the upgraded one. In any event, the supply of the replacement hammer was expressly

[130] The defender sought to found upon the conversation between Mr Gibson and

Mr McCauley on 21 May 2015. I accept Mr Gibson’s account of that conversation. I find that

Mr Gibson was discussing a hypothetical situation rather than making an admission that the

casualty weld had been made by the pursuer. The conversation was shortly after the

incident and there was no evidence on which it could be said that by that time Mr Gibson

had become aware of sufficient information upon which to make such an admission. I did

not find Mr McCauley to be a reliable witness in respect of the conversation: he was under a

misapprehension that the check weld was a repair and in cross he stepped back from the

[131] Turning now to the expert evidence, in my opinion in the absence of Mr Jack’s

evidence and the absence of an examination of the missing part of the ram box, the evidence

of Ms Wasserman does not establish that the casualty weld was made before delivery. The

pursuer’s position was that the failure of the hammer was caused by stresses applied after

delivery, in the course of normal operation of the hammer, to a casualty weld which had

been made prior to delivery. This position was undermined by Ms Wasserman’s

acknowledgment that she could not see what the failure mechanism was because she had

only been able to examine a small strip of the weld and had not been able to examine the

Smaller Ram Box Section. The pursuer’s argument that the paint samples establish that the

casualty weld was painted over as part of the manufacturing process was fatally

undermined by the doubts expressed by Ms Wasserman when she realised that the paint

[132] In Watters v The Master Golf Co Ltd at para [14], Lord Tyre quoted with approval the

"...The judge is not bound always to make a finding one way or the other with regard

to the facts averred by the parties. He has open to him the third alternative of saying

that the party on whom the burden of proof lies in relation to any averment made by

him has failed to discharge that burden. No judge likes to decide cases on burden of

proof if he can legitimately avoid having to do so. There are cases, however, in

which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the

burden of proof is the only just course for him to take."(Rhesa Shipping Co SA v

[133] In my opinion, this is such a case. There was an absence of evidence from Mr Jack

which was essential to the fulfilment of the onus on the pursuer. The circumstantial

evidence led was not sufficient, on its own, to satisfy the onus. The pursuer’s expert

evidence did not satisfy the onus as it was limited by the lack of opportunity for the

pursuer’s expert to examine the Smaller Ram Box Section and by the location from which

paint samples were taken. In these circumstances the pursuer has failed to prove its case.

Second issue: effect of Mr Jack’s actions on mitigation and causation

[134] In view of my decision on the first issue, the second issue does not arise.

[135] As the pursuer has not satisfied the onus on it to prove its case on the balance of

probabilities, I shall uphold the defender’s second plea of law and grant decree of absolvitor.

I reserve all questions of expenses in the meantime.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MG CONSTRUCTION LTD AGAINST AGD EQUIPMENT LTD [2020] ScotCS CSOH_72 (14 July 2020) URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSOH_72.html Cite as: [2020] ScotCS CSOH_72, 2020 GWD 24-318, [2020] CSOH 72

Scottish Court of Session Decisions