Description
The pursuers here were the stepson and the youngest son of the deceased, Gerald James Toms, who died on 12 October 2000, as a result of falling asleep at the wheel of a lorry which he was driving for the Post Office, then trading as Parcelforce Worldwide. and were, or should have been, aware of the danger to him and to other road users caused by his driving when he was too tired to drive safely. It was not disputed that the tiredness which caused him to fall asleep at the wheel was directly caused by the fact that he was, at the material time, working by day for R H Young as well as continuing his night work driving for the defenders. A number of questions arose inter alia whether the deceased was employed by the defenders at the material time? Whether the Defenders knew of the Deceased's additional employment? Whether the Defender's owed the Deceased a duty of care? If so, whether ex turpi causa non oritur actio may apply the courts denying any civil recovery to a party whose claim was founded on his own illegal or immoral conduct?and that the deceased's death was caused by their fault or that of Alan Graham, for whom they were vicariously liable. They averred that the defenders permitted the deceased to continue to drive for them at night at a time when they were aware that he was working for another employer by dayThe claim was based on fault at common law. The pursuers averred that the defenders failed to take reasonable care for the deceased by devising, maintaining and enforcing a safe system of work
