Wednesday, June 28th, 2017

John Lang v Torrent Trackside Ltd & Carillion Construction Ltd (ASPIC, 15 June 2017)

Sanction for Junior Counsel was granted in the All Scotland Sheriff Court in light of difficulties and complexities with establishing liability in a case in which two defenders put forward arguments that the other defender was to blame.

The Pursuer sustained a fracture of the medial process of the talus of the left ankle when he exited from a van which he had parked in his employer’s car park. He required to step onto a main access road which was owned by Network Rail and which served the premises of both the First defenders (his employers, Torrent Trackside) and the Second defenders (Carillion Construction). The case settled shortly before proof. The Pursuer sought sanction for the employment of Junior Counsel having regard to the difficulties and complexities with the liability aspect of the case.  The motion was opposed by both defenders. At the court’s suggestion, the opposed motion proceeded by way of written submissions.

The pursuer submitted inter alia that there were complexities as to the extent to which either of the defenders were in control of the access road and had responsibility for its maintenance and repair. The road was owned by Network Rail, who had granted a right of access over the road to Carillion but they had not imposed a requirement to maintain the road upon Carillion. Torrent Trackside claimed that they had complained to Carillion about the potholes prior to the pursuer’s accident but they didn’t specify to whom they had complained nor why they had done so, when the road was owned by another.

Sheriff McGowan opined that “the existence of an ongoing dispute between the defenders and evidential uncertainties…. introduced difficulties to the case which would not otherwise have existed had there been a single defender or if there had been a clear admission of liability - or in the second defenders case, candour in relation to certain factual issues.”

Sheriff McGowan also considered that “it is easy to suggest that the pursuer would have won against somebody. But with two defenders who appeared to be putting forward arguments that the other was to blame, the pursuer could not be sure that he would succeed against both. In that case, he risked an award of expenses which would have had very significant consequences in relation to his net recovery of damages.”

In the circumstances, Sheriff McGowan considered that it was reasonable to instruct Junior Counsel.

Steve Laing of Compass Chambers represented the pursuer.

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