Fuel company unable to inspect faulty tank before removal by insurers successfully challenges evidence in damages claim

About this case:

• Citation:
  [2022] SC ABE 12
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Philip Mann

An objection to the evidence was lodged by the defender, Highland Fuels Ltd, on the basis that their case had been prejudiced by the actions of the pursuers. The pursuers, Andrew and Gloria Tollerton, sought to lead an expert report prepared by their insurers as secondary evidence of the tank’s condition.

The case was heard by Sheriff Philip Mann in Aberdeen Sheriff Court. The pursuers were represented by Miss Grosvenor, solicitor, and the defender by Miss Brown, solicitor.

Removed from the property

On 5 November 2019, the second pursuer discovered oil leaking from the bottom of the couple’s oil tank, which had been filled with 1,400 litres of kerosene oil the previous day by the defender. She contacted her insurers, who in turn instructed another company, RSK Ltd, to carry out spill response and remediation works at the property.

At the instruction of RSK, the tank was fully drained of remaining oil on 7 November 2019. It was later moved to another location on the property and then removed entirely in February 2020. The tank was scrapped before an investigator appointed by the defender had an opportunity to examine it. A report on the tank’s condition, including photographs, was prepared by the experts instructed by the insurer.

The pursuers’ case was that the defender had been negligent in delivering oil to the tank when the delivery driver ought to have known that the tank was in an unfit state to contain oil. In the absence of the tank itself, they sought to lead the expert report as secondary evidence of its condition. The defender objected to this on the basis that they had been prejudiced by their inability to inspect the tank, and this prejudice was not removed by the availability of the report.

Counsel for the defender submitted that the pursuers had a duty to preserve the tank and ought to have known that the defender would be prejudiced by its inability to inspect the tank. The best evidence had now been lost, and the defender had been deprived of any basis for challenging the pursuers’ contentions as to the condition of the tank.

Real objects

In his decision, Sheriff Mann said of the best evidence in this case: “I do not accept the pursuers’ assertion that they would be free to lead secondary evidence about the condition of the oil tank because the tank had been disposed of by the time that this action was raised and that secondary evidence is, therefore, the best attainable evidence that the pursuers can produce.”

He continued: “In the case of photocopied documents nothing turns on the look and feel of the words and figures. So long as the photocopies represent the actual words and figures and their layout that is all that is required. Not so with real objects such as the oil tank in this case where the look, feel and texture of the item could be of critical importance in determining its condition and whether a delivery driver ought to have observed that the tank was not in a fit condition to receive a delivery of oil.”

Addressing whether the pursuers were in breach of a duty to retain the tank, the sheriff said: “The insurers, for whose actings the pursuers must take responsibility, knew the importance of being able to establish the condition of the tank, otherwise they would not have instructed their own expert to examine it and to provide a report. That report can only have been commissioned with a view to the raising of these proceedings. The insurers had a duty to preserve the tank so that it would be available as evidence in these proceedings. They failed in that duty.”

Sheriff Mann concluded: “The real nub of this case is whether the delivery driver ought to have observed the unsatisfactory condition of the oil tank. That is why the observable condition of the oil tank is so critical. That is why the defender ought to have had the opportunity to have the oil tank inspected so that it could assess its observable condition for itself and, depending on its conclusions, to be in a position to counter the pursuers’ evidence on the issue. That is why the best evidence of the condition of the oil tank is the oil tank itself. That is why the defender was and is prejudiced by its inability to have the oil tank inspected.”

The defender’s objection as to the admissibility of the report was therefore sustained.