Lord Ordinary refuses motion to dismiss personal injury action by father and son window cleaners

Defenders Nicholas Faulkner and Calum Paton argued that the averments of Leigh and Paul Fenwick were being irrelevant and lacking in specification and sought either dismissal of the action or failing that deletion of sure averments. The initially defender, Leon Dundas, built no physical appearance or representations relating to the motion.

The scenario was read by Lord Menzies in the Outer Dwelling of the Courtroom of Session. Galbraith QC and Thorley, advocate, appeared for the pursuer, Enjoy QC for the second defender and Davie QC for the 3rd defender.

Mend obligations

On 13 March 2018 the pursuers were doing work at residential premises at 22 Union Avenue, Montrose, having been instructed by the initial defender to cleanse out the guttering and clean the windows of his top rated floor flat. The flats of the next and third defenders were being positioned on the flooring under. All three flats ended up available from a set of stone measures main to a amount balcony spot, referred to as a platt, with a few individual doorways. The platt was cantilevered and unsupported from down below.

In the system of the early morning, the pursuers positioned a ladder on the platt in get to climb up and evaluate the state of the guttering. As the initial pursuer was descending the ladder, the platt collapsed beneath the pair and prompted them to tumble about 15 ft to the floor and sustain critical injuries. The pursuers’ situation was that it would have been sensible for the defenders to have carried out strengthening repairs or substitution of the platt, and experienced this been carried out it would not have collapsed.

It was averred by the pursuers that the platt was typical property jointly owned by the defenders, who have been entirely and solely responsible for its inspection, routine maintenance, and mend. Even more, the 2nd defender had entered into a brief confident tenancy in June 2017, the phrases of which obliged him to maintain in repair service the construction and exterior of the home. With regard to the 3rd defender it was averred that a Household Report ready prior to his acquiring of the flat had determined the platt as remaining a Repair Category 2.

Counsel for the 2nd defender submitted that a suitable in prevalent to the platt was inadequate in regulation to establish that he was an occupier of the assets of the content time. Neither the next defender nor his spouse had at any time resided in the flat and he did not keep a ideal to possession and control of the platt. For the third defender it was submitted that the pursuers experienced not presented to verify how or why the platt experienced collapsed, which did not give fair observe to the defenders and would trigger insuperable problems at any evidence.

Modify in tradition

In his decision, Lord Menzies observed: “It has extended been established that an action will not be dismissed as irrelevant unless of course it must essentially are unsuccessful even if all the pursuer’s averments are proved. Of study course, that does not necessarily mean that actions for damages for negligence can never be disposed of on factors of relevancy and dismissed just after discussion on the procedural roll – this kind of an event is a rather normal occurrence. Nevertheless, a defender must persuade the courtroom that the pursuers’ situation should essentially fall short to achieve this consequence.”

Addressing the arguments of the next defender, he reported: “The pursuers make averments about the phrases of the lease, and in unique clauses 10 and 13 thereof. It will be necessary for evidence to be led as to the instances in which the lease operated and how the framework and exterior of the house was held taken care of and in good mend, prior to a definitive answer can be specified to the dilemma no matter if the next defender was an occupier for the uses of the 1960 Act, and if so, what was the extent of his obligation to all those on the platt.”

He continued: “It is fair to say that the pursuers’ averments in this regard are briefly mentioned and could possibly not have contented a courtroom before the arrival of the ‘new’ chapter 43 but that chapter encourages – without a doubt, necessitates – brevity. I look at that the pursuers have enough averments about the second defender getting an occupier in phrases of the Occupiers’ Legal responsibility (Scotland) Act 1960 to permit this facet of the case to progress to evidence.”

On the arguments on specificity, Lord Menzies concluded: “The extent of the modify in lifestyle which chapter 43 has brought about might be viewed by the truth that inHiggins v DHL International (Uk) Limited (2003) Woman Paton could not discover any factual averments to aid foreseeability, but nonetheless authorized the case to move forward to proof. The pursuers are necessary by Rule of Court docket 43.2 to annex to the summons a brief statement made up of averments in numbered paragraphs relating only to individuals details vital to set up the declare. I have achieved the conclusion that they have complied with this need, and that the problems raised can only be appropriately resolved immediately after evidence has been led.”

Lord Menzies therefore allowed a evidence to continue on the currently appointed dates.