McDyer v Celtic Football & Athletic Co Ltd & Ors [2000] ScotCS 55 (3 March 2000)

McDyer v Celtic Football & Athletic Co Ltd & Ors [2000] ScotCS 55 (3 March 2000)

The pursuer's amended averments, if proved, are sufficient to raise an inference of negligence and bring res ipsa loquitur into play against the defenders, allowing proof before answer. Strict liability under Roman law is irrelevant; liability is governed by the Occupiers' Liability (Scotland) Act 1960.

Citation
[2000] ScotCS 55
Parties
Pursuer: Colin McDyer; First Defender: The Celtic Football and Athletic Company Limited; Second Defender: European Summer Special Olympic Games 1990 (Strathclyde) Limited; Third Defender: Zurich Insurance Company
Jurisdiction
Scotland
Judgment Date
03 March 2000
Procedural Posture
Reclaiming Motion / Appeal From Interlocutor Dismissing Action; Inner House, Court of Session
Outcome
Reclaiming motion allowed; interlocutor of Lord Ordinary recalled; proof before answer allowed except for strict liability averments excluded.
Legal Topics
Res Ipsa Loquitur, Strict Liability, Occupiers' Liability (scotland) Act 1960, Contribution Between Defenders
Tort Personal Injury Occupiers' Liability Res Ipsa Loquitur Strict Liability Occupiers' Liability (scotland) Act 1960 Contribution Between Defenders

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Parties

Colin McDyer

Pursuer

The Celtic Football and Athletic Company Limited

First Defender

European Summer Special Olympic Games 1990 (Strathclyde) Limited

Second Defender

Zurich Insurance Company

Third Defender

Procedural Posture

Reclaiming Motion / Appeal From Interlocutor Dismissing Action; Inner House, Court of Session

Legal Issues

  1. 1 Whether pursuer's pleadings disclose a relevant case for application of res ipsa loquitur against defenders
  2. 2 Whether strict liability applies under actio de positis vel suspensis
  3. 3 Whether averments are sufficient to go to proof before answer

Ratio Decidendi

The pursuer's amended averments, if proved, are sufficient to raise an inference of negligence and bring res ipsa loquitur into play against the defenders, allowing proof before answer. Strict liability under Roman law is irrelevant; liability is governed by the Occupiers' Liability (Scotland) Act 1960.

Court Disposition

Reclaiming motion allowed; interlocutor of Lord Ordinary recalled; proof before answer allowed except for strict liability averments excluded.

Orders

  • Exclude from probation the sentences in Articles 3 and 4 of Condescendence beginning 'In any event' and ending 'congregate'.
  • Sustain first defenders' first plea in law and second defenders' second plea in law to that extent.