David Pearce v. Steven Ferguson and Another [2009] CSOH 39

Procedure Roll:- On 6 March 2009 the judge here issued an oral decision following a debate on the pursuer's pleadings. At the behest of the first defenders a written opinion was issued. The debate only proceeded in relation to the first preliminary plea of the first defenders. The case was raised under Chapter 43 procedure and was subsequently remitted to the ordinary roll. It was submitted on behalf of the first defenders that the pursuer's pleadings were irrelevant and the case must fail at proof. It was submitted that there were no averments which would enable the pursuer to establish a case of fault on the part of the first defender as the case involved motor racing, and the inherent dangers attached, all of which the pursuer did voluntarily. Here the court considered whether the pursuer's case would necessarily fail in determining the issue at debate, in particular, whether it could be properly inferred from the pursuer's pleadings that the risks and dangers described by counsel for the first defender were part of the facts and circumstances accepted or averred by the pursuer.