Reclaiming Motion by Roderick Finlayson and others against Alban Wine LTD and another (Court of Session) [2024] CSIH 32 (09 October 2024)

Reclaiming Motion by Roderick Finlayson and others against Alban Wine LTD and another (Court of Session) [2024] CSIH 32 (09 October 2024)

The pleadings disclose sufficient averments of foreseeability and positive act to warrant inquiry; the tripartite Caparo test is not applicable as the case fits established negligence principles; dismissal on relevancy grounds is inappropriate.

Citation
[2024] CSIH 32
Parties
Pursuer and Reclaimer: Roderick Finlayson; Pursuer and Reclaimer: Ingrid Sieglinde Merrettig; Pursuer and Reclaimer: Stephan Martenka; Defender and Respondent: Alban Wine Limited; Defender and Respondent: Andrew Scott Johnstone
Jurisdiction
Scotland
Judgment Date
09 October 2024
Procedural Posture
Reclaiming Motion (appeal) / Post Dismissal, Remitted for Proof
Outcome
reclaiming motion allowed
Legal Topics
Duty of Care, Foreseeability, Omission Vs Positive Act, Relevancy, Assumption of Risk
Personal Injury Negligence Duty of Care Foreseeability Omission Vs Positive Act Relevancy Assumption of Risk

Case Brief

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Parties

Roderick Finlayson

Pursuer and Reclaimer

Ingrid Sieglinde Merrettig

Pursuer and Reclaimer

Stephan Martenka

Pursuer and Reclaimer

Alban Wine Limited

Defender and Respondent

Andrew Scott Johnstone

Defender and Respondent

Procedural Posture

Reclaiming Motion (appeal) / Post Dismissal, Remitted for Proof

Legal Issues

  1. 1 Whether the second respondent owed a duty of care to the deceased
  2. 2 Whether the pleadings disclosed a relevant case for negligence
  3. 3 Whether the claim should be dismissed on relevancy grounds

Ratio Decidendi

The pleadings disclose sufficient averments of foreseeability and positive act to warrant inquiry; the tripartite Caparo test is not applicable as the case fits established negligence principles; dismissal on relevancy grounds is inappropriate.

Court Disposition

reclaiming motion allowed

Orders

  • Case remitted for proof against the second respondent