Dale McFarlane v. Barry Thain & James Campbell & The Motor Insurers Bureau [2009] CSIH 64

Reclaiming motion:- On 17 July 1999 the pursuer was riding as a pillion passenger a on a motorcycle which was driven by the first defender. The pursuer was seriously injured when the motorcycle collided with a car driven by the second defender. The pursuer thereafter raised an action against both alleging that each of them had been negligent. The first defender was uninsured, so the Motor Insurers' Bureau entered the process as minuters and disputed liability on the ground that the pursuer knew that he was uninsured. In addition, both the second defender and the MIB pled contributory negligence on the part of the pursuer. The second defender maintained that the pursuer failed in his duty to wear a properly fastened crash helmet. Further, the MIB contended that the pursuer knew that the first defender was unlicensed and had been drinking heavily before the accident also that the pursuer had failed to fasten the straps of his helmet securely. A restricted proof before answer on liability took place in 2007. During the course of the proof, before any evidence was led on behalf of the MIB, senior counsel for the pursuer intimated that the pursuer no longer insisted upon his case against the MIB, who were assoilzied. The first defender did not enter an appearance. Subsequently, the Lord Ordinary assoilzied the second defender. Here the pursuer submitted that the Lord Ordinary erred in sustaining an objection to a line of evidence relating to the sound of the motorcycle. It was submitted on behalf of the pursuer that the Lord Ordinary erred in concluding that fair notice of a case based on the sound of the motorcycle was not given in the pursuer's pleadings and the Lord Ordinary erred in deciding that the objection did not come at too late a stage of the proof. Here the court considered whether the objection by senior counsel for the second defender came too late and whether the second defenders should have been assoilzied.