Fuel company that settled lorry accident claim fails in claim for contribution from company that serviced lorry a month earlier

About this case:

• Citation:
  [2023] SC EDIN 17
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff John Mundy

Andrew Gray & Co (Fuels) Ltd settled a claim by pursuer Paul Gulliford for the sum of £59,000. It then sought a contribution from Macleay Motor Engineering Ltd, whose managing director Hector Macleay had serviced the vehicle a month prior to the accident, on the basis that it was in breach of contract et seperatim negligent in the performance of that task.

The case was heard by Sheriff John Mundy in the All-Scotland Sheriff Personal Injury Court. Cowan, advocate, appeared for the defender and Thomson, advocate, for the third party.

In accordance with practice

On 24 November 2015, the pursuer was driving a fuel tanker in the course of his employment when the rear nearside double wheel came off at a point on the B473 near Muirkirk in Ayrshire. The root cause of the loss of the wheel was not known, although it was likely due to a loosening of the wheel nuts. In settlement of the action, the pursuer accepted a tender of £59,000 in full and final settlement of the claim, plus expenses assessed as reasonable up to the date of tender of £28,000.

At the material time, the tanker was the subject of a safety inspection and service carried out by the third party at six-week intervals. Between 26 and 28 October 2015, the tanker had been serviced by Mr Macleay, who had replaced the brake discs and hubs of both rear wheels after he found excessive wear in the discs and pads. The third party’s position was that Mr Macleay had tightened the wheel nuts in accordance with industry practice. The pursuer had not performed a walk round of the vehicle on the morning of the accident and thus would not have known if any of the nuts were out of alignment.

For the defender it was submitted that on balance of probabilities the accident was caused by a breach of contract on the part of the third party. Of five possible causes of the wheels falling off as spoken for by the defender’s expert witness, all of them were attributable to the implied term of the third party’s contract with the defender to exercise reasonable skill and care or not to provide defective components.

Counsel for the third party submitted that the defender had failed to prove its case. CCTV evidence showed the pursuer had not carried out any vehicle checks on the day of the accident and no documents were produced by the defender regarding a system of inspection. The evidence of Mr Macleay and the third party’s expert Mr Pointon ought to be treated as credible and reliable, and thus the court should accept that he had used proper parts and not made any errors.

Thorough and careful

In his judgment, Sheriff Mundy said of the evidence: “The evidence of Mr MacLeay, which I have accepted as credible and reliable, is that he performed his task in a way, which conformed with good industry guidance. I accept his evidence that he adopted all reasonable care in ensuring that there was no pre-existing damage to components used in the replacement hub assembly, that he did not cause any damage during the assembly and that he adopted all reasonable measures required of him to ensure that there was adequate clamping force, tightening of the wheels and appropriate torqueing.”

He continued: “I got the impression that he was a man who was both thorough and careful in his job. I did not get the impression that he was anything other than truthful in his account, and that, notwithstanding the passage of time, his account was reliable. My conclusions as regards his evidence clearly have a bearing on both the cases in contract and delict.”

Noting the time gap between the service and the accident, the sheriff said: “During [this] time it is not known whether there was another third party intervention in relation to the wheel. I am unclear as to why this might be regarded as improbable, even if a new wheel or tyre was relatively recently fitted. Those conclusions effectively put an end to the case under breach of contract including that on the 1982 Act and it will be appreciated that they will have a bearing on the case based on negligence, there being a considerable overlap between the two cases.”

Turning to the case for negligence he went on to say: “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 the evidence of Mr Pointon 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. I am not prepared to reject that evidence.”

Sheriff Mundy concluded: “If I am wrong on my conclusion on the application of res ipsa loquitur I have in any event come to the conclusion that the third party in his person used ‘all reasonable care’ in the carrying out of his task of removing and refitting the rear nearside double wheel and the replacement of the rear nearside hub assembly. Accordingly, even if the maximum applies or because there is otherwise a prima facie case which shifts the evidential burden to the third party, I am persuaded that the third party has discharged that burden and that in the whole circumstances of this case negligence has not been proved.”

Decree of absolvitor was therefore pronounced in favour of the third party.