Kerr v William Morrison Supermarket Plc & Anor

A mechanical defect should be specifically pleaded in a negligence claim. Broad allegations of unsafe equipment or systems require particularisation. Reliance on res ipsa loquitur should be signalled by pleading the facts said to engage the principle. A defendant who considers a new issue unfair should object to the evidence or ask the trial judge not to determine it. If the defendant instead addresses the issue on its merits and cannot show actual prejudice, the trial judge may determine it. On the evidence, a court may find that equipment was defective on the balance of probabilities even though the precise defect cannot be identified, where circumstantial evidence supports that conclusion and alternative causes lack evidential support.

The claimant suffered cold-burn injuries while disconnecting an LPG refuelling nozzle at the first defendant’s filling station. The Cardiff County Court found the operator liable, concluding that an unidentified mechanical defect in the nozzle caused the escape of gas, and awarded £17,000. The operator appealed, arguing that the claimant had departed from his pleaded case, that the finding of defect was against the weight of the evidence, and that the judge had wrongly applied res ipsa loquitur.

Dyson LJ delivered the leading judgment. Arden LJ and Thorpe LJ agreed with his reasons. The appeal was dismissed.

1. Pleading and procedural fairness. The allegation of negligence based on mechanical defect should have been specifically pleaded. The broad allegations that the equipment was unsafe and that an unsafe system of work had been operated called for particularisation. The pleading should also have stated facts putting the defendants on notice that res ipsa loquitur was relied upon and that the burden of showing absence of negligence was in issue.
2. By the claimant’s skeleton argument served before trial, the defendant knew that the claimant relied on an unidentified defect in the nozzle and on res ipsa loquitur. If the defendant considered that the issues had been introduced unfairly, it should have objected to the relevant evidence or asked the judge not to determine them. It did neither, dealt with the mechanical-defect issue on its merits, and identified no actual prejudice. The judge was therefore entitled to determine those issues.
3. Finding of defect. The trial judge was entitled to conclude on the balance of probabilities that the nozzle had an unidentified mechanical defect. The experts identified a defect in the vehicle only as a possibility and there was no evidence that the vehicle was defective. The judge was entitled to attach weight to the claimant’s lack of previous problems and to similar problems experienced by two other users of the same pump. The precise defect could not be identified because the original nozzle had been replaced, but that did not prevent the inference of defect. The finding was not against the weight of the evidence.
4. The finding of defect provided a sufficient basis for dismissing the appeal. The court therefore did not decide whether res ipsa loquitur applied.

The order of the Cardiff County Court was upheld and the appeal dismissed.

1. Court of Appeal (Civil Division): In [2010] EWCA Civ 271, the appeal by the first defendant was dismissed.
2. Cardiff County Court: HHJ Curran QC dismissed the claim against the second defendant, found the first defendant liable, and awarded the claimant £17,000.