Description
The reclaimer, McGlinchey, challenged a decision that she had failed, on a balance of probabilities, to prove that her injury was caused by an allegedly defective handbrake. The issue was whether the Lord Ordinary erred in deciding the case purely on the basis of a failure to overcome the onus of proving that the cause of the accident was the defect.
Reclaiming motion refused. Held; The Court of Session may intervene in a decision of a primary assessor of fact if it contains material inconsistencies or inaccuracies, fails to appreciate properly the weight or bearing of facts admitted or proved, or is otherwise plainly wrong (per
Thomas v Thomas 1947 SC (HL) 45); Where the burden of proving the cause of an event is on a pursuer, although it is open to defenders to advance an alternative cause, there is no obligation on them to do so or to prove it (per
The Popi M [1985] 1 WLR 948); Where the evidence is of a crucial nature, the judge is bound to give a reason for its rejection and, when it is unchallenged or uncontradicted, the reason ought to be correspondingly clear. The appellate court will not, however, reverse a decision on the reliability of a particular piece of testimony where the judge has given cogent reasons for its rejection; Under
s. 2, Consumer Protection Act 1987 a pursuer must prove the presence of a defect and damage caused by that defect. The word 'defect' is given its ordinary English meaning that the product lacked something. Given the terms of s. 3(1), the defect must be a lack relative to the safety of the product. Whether such a lack of safety exists is determined according to what the court considers the public would expect. There will be cases in which the failure of the product to act in a particular way will lead inevitably to the inference that a defect of some sort must have existed. In such cases, a pursuer may not have to prove the precise mechanism of how the defect led to the failure; The court found no fault in the Lord Ordinary's reasoning. The pursuer set to prove that it was a defect in the car's handbrake which prompted the movement, relying on expert evidence which was rejected by the Lord Ordinary for cogent reasons. First, no such defect was discoverable on normal application of the handbrake in the car. Secondly, it was only created when deliberately attempted. Thirdly, the recreation was only achieved on 2 or 3 occasions over a period of at least an afternoon. As such, the Lord Ordinary was not bound to hold that all possible explanations, other than a defect in the handbrake or even the car, had been eliminated at the proof but only that the alleged defect was not a plausible explanation for the cause of the accident.
