small claims
case digest

North of Scotland Hydro Electric Board -v- Braeside Builders Trustees 1990 SLT (Sh.Ct.) 84









 

Issue - Disputed issues at a full hearing; application of rule 13(5).

At a proof the issues in dispute in terms of rule 13(5) were: when P's cable was damaged by a digger, the digger and operator were under the control and hire of a third party and not D.

However, at the proof it became apparent that the operator of the digger was not under the instruction of the third party at the relevant time. At the conclusion of the proof the Sheriff ex proprio motu (by his own accord) stated that there was no evidence to persuade him that the digger driver had been warned that damage might be caused; if the damage was not reasonably foreeable then there could be no liability. These issues did not form part of the pleadings. The Sheriff absolved D, and P appealed.

The Sheriff Principal held that the problem giving rise to the appeal was the failure on the part of both parties (both represented by solicitors) to identify the issues properly. The equitable course of action was to allow the appeal and permit both parties to adjust the disputed issues and thereafter lead the appropriate evidence.

Observed, while the courts should be prepared to adopt a liberal approach to small claims procedure, that should not be applied to excuse insufficient identification of the disputed issues by solicitors or other skilled advisers.