The Dekagram: 17th July 2023

Articles, News | Mon 17th Jul, 2023

This edition of the Dekagram is a globetrotting one. First, we travel to Scotland, where we immerse ourselves in the joy of both Scottish and Latin legalese. Then, we examine the Australian courts’ approach to Ward v Tesco Stores type cases, also raising the doctrine of res ipsa loquitur, although the Australian courts don’t seem to embrace Latin legalese in quite the same way as the courts of Scotland.

When the Wheels Come Off Your Defence of res ipsa loquitur

This week’s Dekagram takes us to Muirkirk, Ayrshire, and is a treat for enthusiasts of lorry wheel nut specification and design, or beautiful (and arcane to many an English practitioner) Scottish judicial legalese.  Strap yourself in for Gulliford v Gray and Macleay Motor Engineering Ltd (Third) Party) [2023] SC EDIN 17 – no doubt something the poor and unfortunate Mr Gulliford wished he did a little better himself!

If I may set the scene: The 24 November 2015 was a day unlike any other for Mr Gulliford.  Disaster struck when he was driving along the B473, in his handsome 6 wheeled DAF Fuel Tanker, transporting kerosene for the good people of Andrew Gray & Co (Fuels) Ltd, admiring the wild and bucolic approach to Greenock Mains Farm.  With a sudden shudder and metallic crunch he lost control of his trusty tanker leading it to crash into an slate stone wall.  The cause? Entirely unbeknownst to him until too late, the rear nearside double wheel had divorced itself from its partner without a bye nor leave.

Injured, Mr Gulliford pursued a claim against the Defender, his employer, Andrew Gray & Co who duly issued their own claim against the Third Party, Macleay Motor Engineering Ltd, who 4 weeks prior had inspected, serviced and repaired the tanker, including replacing the relevant wheel, and who now stood accused of having done so negligently for the simple reason that the wheel fell off.

Shortly before battle in front of Sheriff John K Mundy sitting at the Sheriffdom of Lothian and Borders at Edinburgh in the All-Scotland Sheriff Personal Injury Court, the Defender decided to offer full and final tender and expenses to the pursuer, which was accepted.  At the same time the Third Party sought an interlocuter decree to assoilzie itself of responsibility by obtaining a decree of absolvitor arguing the principle of res ipsa loquitor did not apply in this claim (translation for our English friends:  The defendant settled the claim with the claimant (inc. costs), and the third party sought an interlocutory hearing denying it should be held liable simply because the wheel fell off). 

On 23 June 2023, the Sheriff called the case before him hearing evidence including from engineering experts about the correct methods and tools used to lubricate and tighten nuts.  Counsel for the Defender, then stood before him and argued that whilst the exact failure of the wheel could not be known that was not an essential prerequisite for res ipsa argument.  Instead, Sheriff’s approach should be by “special application of the rule principle that there is evidence of negligence if the facts proved are more consistent with negligence on the part of the defendant than with other causes”.   He prayed the Sheriff that the three conditions to prove res ipsa were met in that a) wheels do not generally fall off lorries without negligence, b) the Third Party had replaced the wheel only recently, and c) the Third Party could not prove that the accident did not occur without fault on it part (they must do more than simply posit alternative non-negligent explanations).

The Sheriff rejected the argument:

“[45] … reliance was placed on the maxim res ipsa loquitur. In this context it is perhaps useful to quote from Clerk and Linsdell at paragraph 7-203 where it is stated inter alia: “A further circumstance in which the court may infer carelessness on the part of the defendant is where the claimant can show that the nature of the accident suggests both negligence and the defender’s responsibility. Drawing the inference in such a circumstance is often described as an application of res ipsa loquitur. However, it is important to note that this label represents a rule of evidence and states no principle of law… It is only a convenient label to apply to a set of circumstances in which a claimant proves a case so as to call for a rebuttal from the defendant, without having to allege and prove any specific act or omission on the part of the defendant. He merely proves a result, not any particular act or omission producing the result. Res ipsa loquitur, which stems from the judgment of Erle CJ in Scot v London and St 34 Katherine Docks applies where: (1) the occurrence is such that it would not have happened without negligence and; (2) the thing that inflicted the damage was under the sole management and control of the defendant, or of someone for whom he is responsible or whom he has a right to control. If these two conditions are satisfied it follows on a balance of probability, that the defendant, or the person for whom he is responsible, must have been negligent. There is however, a further negative condition: (3) there must be no evidence as to why or how the occurrence took place. If there is, then appeal to res ipsa loquitur is inappropriate for the question of the defendant’s negligence must be determined on that evidence.”

[46] It was said on behalf of the defender in this case that those three conditions were met. I disagree. As regards the first condition, the proposition was that wheels coming off a tanker only four weeks after they were fitted is an occurrence which would not happen without negligence. In order to agree with that proposition I would require to reject… that there can be causes of wheel loss which are not identified and that a period of around four weeks is a significant period of time in the context of a wheel on a tanker lorry, which of course necessitates that the wheels are checked on a daily basis…  It ignores the possibility that there were other factors involved including the intervention of other third parties in relation to the rear nearside double wheel for example for the purpose of changing or repairing tyres. The fact is that in this case there is no evidence as to what occurred between the service and the date of the accident…

[47] That brings me to the second requirement, which is related to the first, that the thing that inflicted the damage was under the sole management and control of the third party. The thing namely the tanker was clearly under its control at the time of the service. However, it ceased to be under the control of the third party after it was released to the defender following upon the service and there was an interval of some four weeks prior to the accident. It was said of course on behalf of the defender that the relevant time for management and control was the time of the negligence but that begs the question of what the negligence was. I do not consider that the second requirement is satisfied in these circumstances.

[48] As to the third condition it was submitted that the “precise cause” of the wheels coming off the tanker was not known. I think that that is self-evident in this case.

[49] However, I am not persuaded that the first two conditions apply in this particular case. It seems to me that this is a case where there is neither a prima facie case of negligence whether by operation of the maxim res ipsa loquitur or otherwise so that the burden of proof remains with the defender in this case to establish negligence on the part of the third party.

[50] Before I leave this topic I think it is useful in the present context to refer to the judgment of Lord Hodge in David T Morrison v ICL Plastics supra at paragraph [98] who in turn referred to the judgment of Toulson LJ in Smith v Fordyce [2013] EWCA Civ 320 who (at paragraph 61) stated: “The doctrine expressed in the maximum res ipsa loquitur is a rule of evidence based on fairness and common sense. It should not be applied mechanistically but in a way, which reflects its underlying purpose. The maximum encapsulates the 36 principal that in order for a claimant to show that an event was caused by the negligence of the defendant, he need not necessarily be able to show precisely how it happened. He may be able to point to a combination of facts, which are sufficient, without more, to give rise to a proper inference that the defendant was negligent. A car going off the road is an obvious example. A driver owes a duty to keep his vehicle under proper control. Unexplained failure to do so will justify the inference that the incident was the driver’s fault. In other words, the Latin tag, the matter speaks for itself. In such circumstances the burden rests on the defendant to establish facts from which it is no longer proper for the court to draw the initial inference. To show merely that the car skidded is not sufficient, because a car should not go into a skid without a good explanation. In Barkway v South Wales Transport Co Ltd [[1949] 1 KB 54] the court took the same view about a tyre burst. A properly maintained vehicle ought not to suffer a tyre burst. It is therefore not surprising that the court held in such circumstances: ‘… the defendants must go further and prove (or it must emerge from the evidence as a whole) either (a) that the burst itself was due to specific cause which does not connote negligence on their part but points to its absence as more probable, or (b) if they can point to no specific cause, that they used all reasonable care in and about the management of their tyres’”

Gulliford was not perhaps the best case to run the res ipsa loquitur argument.  The proximity in time between the inspection and the accident was always going to be a difficult hurdle for the Defender to overcome, even though the wheel falling off was a particularly unusual event. 

About the Author

James Byrne was called in 2006. He acts for claimants and defendants across a broad range of personal injury work, though he specialises in complex and high value catastrophic injury cases, particularly those relating to brain injuries, and fatal accidents. He acted as a junior for the claimants in the claims arising out of the Tunisia terrorist attack, and is ranked in the Legal 500 2023, where he is said to be ‘very hardworking, and on his feet he is an impressive advocate’.

Ward v Tesco Stores with a Fruity Twist

In a recent Australian case, Gomez v Woolworths Group Limited [2023] NSWDC 221, the District Court of New South Wales was called upon to determine whether off-duty employees of a supermarket owed a duty to maintain vigilance in inspecting their employers’ premises.

The facts are all too familiar to the personal injury practitioner; the plaintiff slipped on a piece of mango located at the entrance to the Defendant’s supermarket, and sued the defendant in negligence for failing to identify the presence of the rogue fruit and remove it prior to the accident. History (in the form of CCTV footage) showed that another customer had dropped the mango at 5.02pm and that the accident had occurred at 5.11pm, a nine minute window of opportunity within which, so the plaintiff said, the supermarket ought to have removed the hazard.

The defendant asserted that it operated a ‘clean as you go’ policy, supplemented by hourly inspections, the last of which prior to the accident had occurred at 4.05pm, meaning that another was due between the dropping and the squashing of the mango. Furthermore, a member of staff had left the store at 5.03pm at the end of his shift, but had left the fruit untroubled notwithstanding that he had passed within a metre of it. He explained in examination in chief that this was because he was off duty and thus (I paraphrase) footloose and fancy free, and in no mood to palter with stone fruit.

The plaintiff submitted that the employee, who was an assistant manager, ought to have been cleaning as he went, even though off duty, and should have removed the mango – had he done so, the accident would not have occurred. Alternatively, the store’s failure to undertake an hourly inspection between 4.05pm and 5.11pm was a breach of duty which also led to the accident.

The court accepted that the failure to undertake the hourly inspections adequately or at all was a breach of duty on the part of the supermarket. However, since the accident took place during a nine minute interval, the failure to inspect once an hour was not causative of the accident. Even had the supermarket operated a system of inspection every 15 minutes, the accident would have occurred between the 5pm and the 5.15pm inspections, and thus even such an onerous system would not have prevented the accident. Furthermore, the failure of the assistant manager to remove the mango did not amount to a breach, given that he was no longer on duty at the time he would (had he been looking) have seen it. The claim was therefore dismissed.

Comment

The decision of the NSWDC must surely be right; Sydney does not operate a feudal system so as to impose on an employee a duty always to undertake his duties, whether within the hours of his employment or not, and conversely an employer cannot be said to be liable for his failure to do so. It is suggested that if the same facts were to come before an English court the same result would eventuate, for similar reasons.

About the Author

Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases. She was appointed a KC in March 2023.