Case name

Dundee City Council, Angus Council and Perth and Kinross Council, carrying on business together under the name and style of Tayside Contracts v D Geddes (Contractors) Limited [2017] CSOH 108

What are the practical implications of this case?

It is well-established that, in civil proceedings, the burden is on a claimant to prove its case on the balance of probabilities. This decision acts as a reminder that, where failures have occurred and a claimant seeks to prove what it considers to be the cause of those failures, it may not be enough for it to do so by process of elimination. Ultimately, the court will step back and ask itself whether the alleged cause is more likely than not to be the true cause of the failures. For another recent example of this, in relation to allegedly negligent works, see News Analysis: Pest control work not carried out negligently (Palmer v Nightingale).

Coupled with this, the case also highlights the importance of collecting and preserving evidence. In particular, the contractor had done little to record the nature and extent of the failures which had occurred, which meant that the court was unwilling to rely on a process of elimination to prove the cause of the failures.

Although this is a Scottish case, these points apply equally to proceedings brought in England and Wales.

What was the background?

Tayside purchased aggregate chippings from D Geddes for use in road surfacing works in eastern Scotland. Many of the works failed and Tayside attributed the failings to the chippings, alleging that they were not of satisfactory quality or fit for purpose.

Tayside identified two particular characteristics of the chippings that it said were the effective causes of the failures. It also argued that, if neither was found to be an effective cause, the court should nonetheless conclude that some unidentified attribute of the chippings was an effective cause of the failures as the chippings were the only possible common factor which might explain the failures.

What did the court decide?

It was agreed by the parties that there was an implied term that the materials would be of satisfactory quality (pursuant to s 14(2) of the Sale of Goods Act 1979, and the court held that there was an implied term that they would be fit for purpose (pursuant to s 14(3)) as D Geddes was made aware of the purpose for which they would be used.

However, on the expert evidence before it, the court was not satisfied that, on the balance of probabilities, the failures were caused by either of the two characteristics put forward by Tayside.

It also rejected Tayside’s argument that some unidentified attribute of the chippings was an effective cause of the failures. In the court’s view, the cause of the failures had simply not been established. The evidence was unsatisfactory, and responsibility for this fell on Tayside:

• there was a lack of evidence as to the failures that occurred, the only document in evidence being a single photograph
• there were no records of the nature and extent of the failures
• the only physical evidence was two samples taken from one site

In such circumstances, the court considered that the only course for it to take was to decide the evidence on the burden of proof, which had not been discharged. It was not appropriate to undertake a process of elimination (per The Popi M [1985] 2 All ER 712 and Palmer v Nightingale [2016] EWHC 2800 (TCC)).

Case details

• Court: Scottish Court of Session, Outer House
• Judge: Lord Doherty
• Date of judgment: 18 August 2017