LEIGH FENWICK AND OTHERS AGAINST LEON DUNDAS AND OTHERS SD AGAINST GRAMPIAN HEALTH BOARD [2022] ScotCS CSOH_62 (07 September 2022) (07 September 2022)

LEIGH FENWICK AND OTHERS AGAINST LEON DUNDAS AND OTHERS SD AGAINST GRAMPIAN HEALTH BOARD [2022] ScotCS CSOH_62 (07 September 2022) (07 September 2022)

The pursuers' pleadings, though brief and with some gaps, are sufficient under chapter 43 procedure to proceed to proof against the second and third defenders; the action is not bound to fail on relevancy. However, averments regarding res ipsa loquitur and repairs to a neighbouring property are irrelevant and are excluded from probation.

Citation
[2022] ScotCS CSOH_62
Parties
Pursuer: Leigh Fenwick; Pursuer: Paul Fenwick; First Defender: Leon Dundas; Second Defender: Nicholas Faulkner; Third Defender: Calum Paton
Jurisdiction
Scotland
Judgment Date
07 September 2022
Procedural Posture
Personal Injury Action / Debate on Relevancy and Specification Prior to Proof
Outcome
Motions to dismiss by the second and third defenders refused; certain averments excluded from probation; proof allowed to proceed against all defenders.
Legal Topics
Occupiers' Liability, Personal Injury, Duty of Care, Landlord's Obligations, Pleadings, Res Ipsa Loquitur
Tort Occupiers' Liability Landlord and Tenant Personal Injury Duty of Care Landlord's Obligations Pleadings Res Ipsa Loquitur

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Parties

Leigh Fenwick

Pursuer

Paul Fenwick

Pursuer

Leon Dundas

First Defender

Nicholas Faulkner

Second Defender

Calum Paton

Third Defender

Procedural Posture

Personal Injury Action / Debate on Relevancy and Specification Prior to Proof

Legal Issues

  1. 1 Whether the second and third defenders owed a duty of care to the pursuers under the Occupiers' Liability (Scotland) Act 1960 and/or at common law; Whether the pleadings of the pursuers are sufficiently relevant and specific to proceed to proof; Whether the maxim res ipsa loquitur applies; Whether certain averments should be excluded from probation

Ratio Decidendi

The pursuers' pleadings, though brief and with some gaps, are sufficient under chapter 43 procedure to proceed to proof against the second and third defenders; the action is not bound to fail on relevancy. However, averments regarding res ipsa loquitur and repairs to a neighbouring property are irrelevant and are excluded from probation.

Court Disposition

Motions to dismiss by the second and third defenders refused; certain averments excluded from probation; proof allowed to proceed against all defenders.

Orders

  • Exclude from probation the sentence at page 9A/B of the Record concerning res ipsa loquitur.
  • Exclude from probation two sentences at page 8D/E of the Record referring to repairs at 32 Union Street.