Fuel company’s contribution claim fails

The action was heard before Sheriff Mundy on 25 June 2023 in All Scotland Personal Injury Court.

The subject of the action involved a fuel tanker driver who was employed by the defender. On 24 November 2015 the pursuer was driving a fuel tanker during the course of his employment when the rear nearside double wheel came off the tanker. The pursuer sought damages for loss, injury and damage suffered by him as a result of the incident. The claim was settled upon the pursuer accepting a tender in the sum of £59,000 which the defender paid to the pursuer in full and final settlement of the claim together with the expenses of the action.

Around one month prior to the accident, a company, (the third party), had serviced the fuel tanker. This service included a removal and refitting of the rear nearside double wheel and the replacement of the rear nearside hub assembly. The issue to be decided by Sheriff Mundy was the defender’s claim against the third party to recover the damages and expenses paid to the pursuer on the basis that the third party was in breach of contract and negligent.

Evidence was given by two witnesses for the defender — James Gray, a former employee of the defender and company director, and John Holland, a forensic mechanical engineer — and by two witnesses for the third party — Hector MacLeay, managing director of the third party and the person who carried out the relevant service, and Danny Pointon of Burgoynes, consulting scientists and engineers. Both Mr Holland and Mr Pointon produced expert reports.

The first witness for the third party was Mr MacLeay, who carried out the service in question. He described in detail how the service was carried out and described the third party’s very strict in-house torquing procedures.

The defender’s expert, Mr Holland, prepared three reports, all of which were “desktop” reports with no physical examination of the vehicle in question. He was of the view that there were only 5 possible causes of the wheels falling off, all of which were attributable to negligence on the part of the third party. Mr Holland’s view was that the procedures which should have been followed by the third party had not been followed correctly. He gave evidence that he would not expect any wheel loosening after only 4 weeks. He also did not accept that it might be likely that there was a reason other than those he had mentioned that might cause wheel detachment.

The third party’s expert, Mr Pointon, also gave evidence in relation to his report. He advised that in his experience, separation of wheels from a vehicle is a rare occurrence and is usually due to loss of tightness of the wheel nuts causing the nuts to either fall off or the studs being damaged by such a loose wheel which resulted in the studs breaking. His view was that, with the evidence that was available, there was no coherent evidential basis to explain the incident. However, it was likely that it began with looseness in the components which was unlikely to be due to any specific defect aside from corrosion, long-term wear and other damage. He further stated that any looseness in the wheel nuts would have been visibly identifiable at least one day prior to the incident and the failure of the pursuer to carry out a daily check would be “a very significant factor” in the accident.

Submissions for the defender

In the parties’ final submissions, the defender submitted that there were “no possible credible causes of the wheel failure which would not be attributable to the third party’s breach of contract” and that the third party’s suggestion that wheels sometimes “just fall off” was not credible. Counsel for the defender requested that the doctrine of res ipsa loquitur be applied, which was said to be a “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”. Counsel referred to the case of Scott v London & St. Katherine Docks (1865) 3 H & C 596, per Erle CJ at 601,  submitting that the three conditions set out in the case were met in that; the wheels coming off after only four weeks could only occur due to negligence; at the relevant time the tanker was under the management and control of the third party; and the precise cause of the wheels coming off was not known. It was submitted that this principle therefore applied and, even if it did not, the general presumption of negligence applied. In the event that the court was satisfied with this, the defender submitted that it was the third party’s duty to demonstrate that the accident occurred without fault on its part, and that it was not enough in this case for the third party to offer a “possible alternative non-negligent explanation”.

With regard to the third party’s allegation of contributory negligence on the part of the pursuer and defender, the defender submitted that this should be rejected on the basis that there was no evidence to support the proposition that a driver would be expected to check the torque of wheels nuts as opposed to carrying out a visual inspection. The defender submitted that it should be accepted that it was not possible to say where any defects would have been identifiable on the morning of the accident. The defender further submitted that there should be no reduction for contributory negligence and the third party should be found liable for 100% of the damages and expenses paid to the pursuer.

Submissions for the third party

The third party submitted that the defender had failed to prove its case on several points; there was no evidence of any defect in the parts used during the service; no evidence of any negligence; and no attempt to adduce evidence to establish what the standard of the common law duty of care was.

The third party submitted that defender had failed to establish in evidence the mileage that the tanker had covered between the service and the incident, nor had Mr Gray, company director of the defender, been able to advise whether other parties had effected tyre repair or replacement between the date of the service and the incident. Further, the defender had not even attempted to prove what had happened to the tanker during the time the tanker was under the exclusive control of the defender between the date of the service and the incident. It was submitted that the burden of proof rested with the party who makes the allegation and the defender had failed to do so.

Finally, it was submitted by the third party that even if the court was not with the third party, the defender bore at least 90% of the responsibility for the incident on the basis that CCTV footage showed that the pursuer did not check the wheels on the morning of the accident and there was no system in place at the defender’s to ensure that the checks were actually carried out.

Decision

Sheriff Mundy agreed wholly with the third party that neither the case for breach of contract nor the case for negligence had been proven.

In relation to the defender’s case for breach of contract, Sheriff Mundy preferred the third party’s expert evidence that the list of potential causes of the wheel falling off should not be restricted in the way in which the defender’s expert had sought to do where the cause was unclear. On the basis that there was no satisfactory evidence to support the exclusion of other factors, he found it unreasonable to restrict the potential causes of the wheel loss to the defender’s expert’s list. He found the evidence of Mr MacLeay, the managing director of the third party, to be reliable and credible. Further, he did not agree that it was improbable that there may have been other third party intervention in relation to the wheel in the period between the service and the incident.

In relation to the defender’s case for negligence, Sheriff Mundy understood the argument to be similar to their case for breach of contract, but with reliance on the doctrine of res ipsa loquitur. He disagreed with the defender’s position that the three conditions had been met. In relation to the first condition, Sheriff Mundy stated that in order to accept it had been met he would have to reject the evidence of the third party’s expert, whom he found to be credible and reliable. He stated that he could not focus all consideration on the service that was carried out and ignore the possibility that there were other factors involved, given that there was no evidence as to what occurred between the date of the service and the date of the incident. 

In relation to the second condition, he rejected the defender’s argument that the tanker had been under the management and control of the third party as it had ceased to be under their management and control four weeks prior to the incident.

On the basis that neither the first nor second condition were met, Sheriff Mundy stated there was neither a prima facie case of negligence, whether by operation of the doctrine of res ipsa loquitur or otherwise, and so the burden of proof remained with the defender in this case. He further stated that even if he was wrong in his conclusion regarding the application of res ipsa loquitur, the third party had used “all reasonable care” in carrying out the service. Therefore, even if the burden of proof had to be placed on the third party he was content that the third party had discharged that burden and negligence had not been proven.

Sheriff Mundy went further and stated that if he was wrong in his decision on liability, he would have made an apportionment of 50% on the basis that he accepted the third party’s expert’s evidence that there was pre-existing wear and tear to the wheels and that the pursuer ought to have checked the vehicle prior to it being driven.