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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McFarlane v. Scottish Borders Council [2003] ScotCS 319 (19 December 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/319.html Cite as: [2003] ScotCS 319 |
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OUTER HOUSE, COURT OF SESSION |
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A4945/01
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OPINION OF T G COUTTS Q.C. (Sitting as Temporary Judge) in the cause STEVEN MCFARLANE Pursuer; against SCOTTISH BORDERS COUNCIL Defender:
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Act: McEachran Q.C., Lloyd; Thompsons
Alt: Stacey Q.C., Milligan; Simpson & Marwick, W.S.
19 December 2003
Introductory
[1] In this action the pursuer seeks damages on account of injuries he sustained on 19 March 1999 while working for the defender in the construction of a passing place on Laverlaw Road, Peebles. The pursuer tumbled down a bank at the passing place and sustained certain injuries to his back. For the reasons hereafter mentioned I formed the view that the pursuer, as a witness, could not be relied upon on any matter on which he was not supported by independent evidence.[2] The site at which the pursuer was working ran along the side of a hill. The passing place in question was constructed by placing material on the downhill side of the road at a location where there was an existing field access, by then compacting that material and thereafter by placing a layer of tarmac on top of deposited hard core. The pursuer's task was to roll a surface on the tarmac by means of a Bomag 80 sit-on roller. While so doing he drove the roller so close to the edge of the passing place that it toppled. The pursuer leapt clear and finished up at the bottom of the bank against the wall. He sustained some injury, the nature and extent of which was in dispute.
The Pursuer's Pleadings
[3] The pursuer came into Court with pleadings which firmly indicated that his case was based on the assertion that the ground beneath the roller gave way due to inadequate construction of the passing place, and that this when coupled with the weight of, and (as averred at 7B) the use of a vibrating plate on the machine, caused the soil to give way and the accident to happen. The pursuer, when faced with a case by the defender that the roller fell over the embankment because he drove it too close to the edge, made a specific denial thereof and then constructed a case based upon various alleged duties he said were incumbent upon the defender to prevent him so doing. Thus the pursuer pled that the use of a Bomag 120 roller was risky, that he did not have a "ticket" to drive that machine and that it weighed 4 tonnes. At the proof, but not before, the pursuer adopted the defender's averment that the roller in use was in fact a Bomag 80 which weighed 1.5 tonnes. Furthermore the pursuer did have a "ticket" to drive a Bomag 120 machine.[4] The pursuer set out cases at common law and under statute. It is difficult to disentangle the case at common law insofar as the pursuer's principal case
was pled on the basis that the construction of the passing place was such that it was liable to give way. There was also an esto case to deal with the denied averment that the pursuer drove too close to the edge. Various matters was suggested as inferring fault but the pleader did not, except for his case based upon inadequate construction, suggest that his other averred precautions would do other than reduce the risk of driver error. Thus, for example, the alleged duties to construct a passing place with a verge, to provide a banksman, or an edge protection in the form of a barrier, were only said to obviate or reduce the risk of driver error. The pursuer does not, at common law, state that if these provisions had been made the accident would not have happened, he simply, on the weaker alternative, states that the risk of driver error would have been reduced. The common law case if properly pled would have been on the basis that it was specific failure in duty by the defender which caused the accident namely an alleged inadequate shoring of the passing place, failure to use a hand roller instead of the machine roller and an alleged failure to train the driver.
[5] The statutory cases, the consideration of which involves the concept of risk to health, were pled under the Construction (Health, Safety and Welfare) Regulations and in particular Regulation 5, 6, 19, (1) and 28 and the Provision and Use of Work Equipment Regulations 1998, in respect of the Bomag roller, alleging breaches of paragraphs 4(1), 7(1) and 9(1).[6] The defender pled a case of contributory negligence averring that the pursuer caused the accident by driving over the edge of the embankment. It was no doubt as a result of that, that the pursuer felt it necessary to have an esto case averring that if he was wrong in relation to the embankment giving way then the defender had some duty to prevent him from driving over the edge.
The Accident
[7] The pursuer in his evidence maintained that the ground at the edge of the passing place gave way, that the roller toppled over, that he jumped clear, that the roller did not fall over the embankment but that he ended up at the foot of it. He maintained that material from the top of the passing place "rained down" upon him while he was there and that he had been worried lest the roller itself would fall over on him. The pursuer was supported in relation to the roller toppling over and his ending up at the foot of the embankment by other evidence, but in no other aspect of his assertions. There was evidence that the only matter requiring attention after the event was that a shovel full of tarmac had to be put at the spot where the roller turned over. Thereafter the work continued until completed. The evidence of Mr Davidson, the Foreman, was categoric to that effect and as to all that had to be done after the accident. I believed Mr Davidson. It was not established that the sub-surface of the passing place was unstable or gave way.[8] Accordingly, the accident happened because the pursuer drove his roller over the edge of the embankment. Toppling would be achieved when he had driven so far that the centre of gravity of the roller was in such a position in relation to the embankment as to be unstable and this meant that half of the roller must have been off the edge of the tarmac at the passing place when it fell.
[9] The pursuer climbed back up the embankment and remained at work for the rest of the day, although not, on the balance of probability, driving the roller again.
[10] Since it is not fact that the passing place gave way, the speculation of the pursuer's skilled witness Mr Ritch about its construction and possible failures thereanent is wholly irrelevant.
The Pursuer's Reliability
[11] Although the circumstances of the accident as above found, lead to the inevitable conclusion that the pursuer is not wholly reliable, his credibility was completely undermined by an event which occurred on 12 June 2002. The pursuer had been maintaining from a time shortly after the accident that he was virtually incapable of various activities. In particular on 28 August 2001 he had maintained to Miss McQueen, a consultant orthopaedic surgeon who was called as an expert witness for the pursuer, that he could only walk between 300 yards and half a mile, that he could only carry light shopping bags and that he avoided any activity involving lifting and bending. In much the same words he gave a similar account of his disability to her on 12 May 2003. To Mr McMaster the consultant surgeon led by the defender he had stated on 18 January 2002 that he could only walk for 200 yards, that he could bend "a wee bit" but that he was not able to perform heavy lifting. He said he could do light cleaning work at home and was able to go shopping, but could not lift. He repeated that to Mr McMaster on 11 March 2003 i.e. that he had great difficulty when bending and could not lift anything heavier than a very light shopping bag, and he could only walk 200 yards. By that time Mr McMaster had seen a video recording of activities undertaken by the pursuer. Mr McMaster also at the latter date found inappropriate behavioural findings, and active restriction of movement which was not apparent on disguised testing.[12] On 12 June 2002 a surveillance video was taken of the pursuer which he admitted indicated that he was able to drive a van from Peebles to Portobello and thereafter walk for a prolonged period on the beach. He was seen to be able to crouch, dig sandcastles, load several large plastic bags of stones from the beach, carry them up a slope and load them into the van without difficulty. He was also shown lifting his child, an activity which he had claimed he was unable to perform.
[13] Faced with that incontrovertible evidence the pursuer attempted to explain it by saying that he was at that time taking stronger pain killers. His GP records showed that he had last visited his GP on 3 May 2002, his back having allegedly seized up, and that he then was given an additional item of medication. However, it was not until 22 June that he again went back to his GP claiming an acute exacerbation of his back problems, a pattern repeated throughout the GP records.
[14] I reject that explanation. The effect of the video recording when shown to the pursuer's expert witnesses was to make them revise sharply downwards their estimation of any disability suffered by the pursuer. He plainly could do a number of things he claimed he was unable to do. They had accepted him as a reliable historian. Moreover he sat through a substantial part of the Court proceedings, when he attended, without exhibiting any marked discomfort.
The Pursuer's Esto Case
[15] The pursuer's difficulty in relation to his cases based on the proposition that the defender should have done more to prevent his driving over the edge of the passing place begins with an inherent difficulty. He could provide no explanation of why he had done so. Since his case was based on the erroneous assertion that the side of the passing place had collapsed because of its instability it would follow that had it not collapsed he was driving properly and was in reasonable control. His own evidence was that he was quite comfortable driving the Bomag 80 machine. He had been trained and had a certificate for driving the larger machine the Bomag 120 and I accepted the evidence from the witnesses that there was little material difference between the two except that the 80 probably had even better all round visibility. I reject, as he did himself, that he was not adequately trained and compatibly able to use the machine. Various suggestions were put forward in order to deal with what was said to be a recognised risk in the operation.
The Defence
[16] Since the pursuer had sustained an accident at his working place, counsel for the defender did not dispute, on her understanding of the opinion of the Inner House in Mains v Uniloyal Englebert Tyres Limited, 1955 SC 518, that the fact of the accident itself, without more, would entitle the pursuer to decree. In view of that concession it is unnecessary to attempt to determine in this case whether the fact of an accident occasioned by someone falling at a place where he happened to work is sufficient to bring paragraph 5 of the Construction, Health Safety and Welfare Regulations 1996 into play. Since any person working must be working in some place it is also by concession unnecessary to determine whether the fact that an accident had occurred there alone renders that place unsafe.[17] On the basis that it has to be demonstrated by the defender on the whole evidence that either reasonably practicable measures were taken to make the work place safe or that no reasonably practicable measures could be taken, various matters were canvassed in the course of the proof. The onus of establishing a defence in relation to reasonable practicability initially lies upon the defender - Nimmo v Cowan 1967 SC(H.L) 79 - but questions of onus, as has been frequently said, seldom arise after evidence has been led. In this case the pursuer led a body of evidence with a view to showing that various steps could have been taken by the defender which were practicable and I now consider each of these.
[18] Counsel for the pursuer approached the matter thus. The first step he said was to carry out a risk assessment. There were carried out and produced certain proforma risk assessments. He argued that any reasonable risk assessment would have identified the risk of a roller rolling too close to the edge and falling over. It would have identified, he said, the need for a trained driver and edge protection, a banksman or a barrier, the use of a hand held roller and the need for a verge. Examining each of these in turn I find, in relation to the identification of a risk of a roller going too close to the edge and falling over, that identification of such a risk is a matter of ordinary common sense and requires no special procedure. The risk of a roller falling over if it is driven too close to the edge is self evident. Everybody including the pursuer, knew that, and accordingly such content of a risk assessment is otiose. The pursuer stated in evidence that he had thought the edge was "dodgy" and whether or not he communicated that to Mr Davidson, which is open to doubt, it is plain from that observation that he knew that he would not be safe if he went so close to the edge that his machine toppled. He must have encroached over the edge to a significant extent.
[19] In relation to training, the pursuer's averment was that he was operating a Bomag 120 and had no training. However a certificate dated May 1995 was among the productions and that indicated that the pursuer had been trained on a Bomag 120. By amendment on the morning of the proof, the pursuer accepted that, along with the defender's averment that he had in fact been operating a Bomag 80. However, his expert witness Mr Ritch said in his evidence at 20 E-F that anyone who could operate a 120 would certainly be able to operate an 80. Furthermore, the pursuer himself said in evidence that he did know what he was doing and that, one might have thought, would have been the end of that matter. Pursuer's counsel however, sought to invoke passages in the Bomag Training Manual and to create a case based upon a failure to communicate the precise detail in that Manual about how the machine should be operated. While that may be all very well in theory, the fact was that the pursuer knew what he was doing, had been trained on a similar machine and did know that he required to roll the tarmac from the inside out. That was all that was required.
[20] In relation to a hand-held roller, no witness considered that this was a sensible machine to use at the locus. It would appear to have dangers. It would require to be pushed and pulled about which might have involved a contravention of the manual handling regulations according to the evidence in Mr Perryman's report 7/11. Mr Ritch at 47 F stated that the biggest problem was not that the operator was walking on what he had allegedly compacted but that it was difficult for him to steer. None of the practical men would agree that this would be the better way to compact the tarmac at this location and although it was possible, it was not, I find, reasonably practicable to use or instruct the use of a hand operated roller at that location. It would create more difficulties than it might have avoided. The only rationale for the hand roller given by Mr Ritch was, "if it was a hand machine and the bank goes or the machine goes then you are not sitting on the machine". However, I find that the bank did not "go" nor was there any evidence of Mr Ritch's postulation at 49 A that a vibrator was in operation and might have added instability.
[21] A banksman or a barrier were also suggested. In relation to a banksman, Mr Ritch said that their presence was not very common and in relation to a barrier, referring to railway sleepers, he said that would be unusual. While it is true that banksmen were identified in the generic risk assessments for certain operations, the operation with which the pursuer was concerned did not as a matter of reasonable practicability require a banksman. Although it might have been possible to have somebody standing about, his utility would have been zero and it is not a matter of reasonable practicability to provide such an attendant for this operation. Railway sleepers, it was suggested, could have been imported onto the site. It was suggested that they should have been there not to provide a barrier, but to mark the edge of the tarmac. As a matter of fact they would not have prevented the roller going over the edge. They would only have provided a variant of a warning notice, not a barrier and, since the pursuer was well aware of what was required to control his roller, sleepers were not shown as being likely to have prevented the accident nor would their presence have made the working place any safer.
[22] Mr Ritch said in relation to the verge that the biggest problem in this site was the lack of a decent verge. That is a matter of the construction of the passing place. He postulated a verge of about a metre and a half to two metres. If that had been there, he said, there would have been no danger. The same criticism applies. A wider verge, no doubt at considerably greater cost, would not necessarily have prevented the pursuer driving the roller over the edge of the tarmac it merely would put the edge of the passing place further away from the tarmac. Mr Ritch's view about the verge was based on the assertion that the passing place was a potential hazard to persons who might be getting out of a vehicle. Why they should do that in a passing place as opposed to a lay-by was not made clear. The edge of the passing place is no different from the edge of the road.
[23] I find that none of the matters canvassed indicate that the defenders' did not act in the construction of the passing place in a way other than providing a safe place of work so far as was reasonably practicable.
[24] Accordingly the pursuer has failed not only to establish any breach of common law duty by the defenders' but also on the evidence the pursuer's working place was, as far as was reasonably practicable made and kept safe for him. There is equally, on the facts noted above no breach of the Provision and use of Work Equipment Regulations 1998. Suitable training on a suitable roller was given. These Regulations were however not enthusiastically founded upon by counsel in submission.
Contributory Negligence
[25] Had I found the pursuer entitled to reparation the matter of contributory negligence would have arisen. It was quite clear from the evidence that the pursuer knew that he should not go too near the edge. He failed to exercise reasonable care in controlling a machine which he was sufficiently trained to operate and on the view that I have taken which was that he did drive over the edge, his contribution to the accident would have been assessed by me at 75%. There was no doubt that the major responsibility for this accident was his.
Damages
[26] I require to make a finding as to the damages in total which the pursuer would have been entitled to had he obtained decree. Since I did not and do not regard the pursuer as a credible or reliable witness he is in considerable difficulties in relation to the fact of and effects of an injury, the provable consequences of which depend upon his being a reliable historian.[27] The medical evidence was that as a result of his tumble down the bank the pursuer could have sustained some injury. Miss McQueen's opinion, given in August 2001, was that he had sustained an injury to the lumbar spine following the accident. She went on;-
"in view of the normal MRI scan it is likely that Mr McFarlane has sustained injury to the facet joints in the lumbar spine. This is supported by his inability to extend the lumbar spine and the lack of neurological problems in the lower limbs"
She went on to note that he had two previous episodes of back pain which gave the implication that he was "somewhat vulnerable" to the onset of recurrent back pain. She said the type of injury which he sustained would be sufficient to cause problems with his back even if he had had a normal lumbar spine prior to the accident. In her report of 12 May 2003 she said that as a result of the accident the pursuer sustained an injury to his lumbar spine which "has caused an exacerbation of his back condition resulting in his current disability".
[28] In contrast Mr McMaster, Consultant Orthopaedic Spine Surgeon forcefully expressed a contrary view. He stated that the pursuer did not sustain a facet joint injury. That suggestion he said was wrong. The normal MRI scan indicated no such injury which in any event could occur only if there was a major fracture. There was no fracture. Restriction of extension is not indicative of injury to the facet joints.[29] Mr McMaster was criticised by counsel for being so dogmatic but I do not see why, if he thought the contrary opinion was wrong, he should not say so. Further the medical evidence in any event leaves the Court in the position of being unable to hold that there was any injury to the facet joints. A soft tissue injury to the lower back was sustained at the time of the accident. Mr McMaster also agreed that the previous history noted by Miss McQueen was a predisposing factor.
[30] The pursuer was also thought to suffer from ankylosing spondylitis. That condition, it would appear, has progressed slowly, but according to Mr McMaster, the spondylitis would not account for his current symptoms. Mr McMaster thought that if he had not sustained the injury he would have had to give up his heavy manual work within two years of the time of the accident. That, he said, in view of the history and condition of the pursuer, was an educated guess based on his opinion and based on his experience. Miss McQueen thought that ten years would have been the likely span. Both consultants agreed that the pursuer was not a person who would have been able to continue in heavy manual work until retirement age.
[31] Both consultants thought that the pursuer, when they originally saw him, was fit for light to moderate work but after viewing the video Mr McMaster said that the pursuer is fit for moderately heavy work and Miss McQueen said that he is fit for some form of light manual work. I noted in her evidence in cross-examination, after the video was brought to her attention she said that she now thought he was fit for moderately heavy work although in re-examination she qualified that by saying that he was not capable of day in day out heavy work.
[32] From the medical evidence I conclude that the pursuer sustained a muscular injury to his lower back which caused him mild to moderate discomfort and occasional incapacity. Certainly he was a frequent visitor to his General Practitioner and has been referred to orthopaedic departments, pain clinics and rheumatologists. A TENS machine and a back support have been prescribed for him and he has been given and has taken pain killers of varying strengths. Nevertheless proof of disability was not entirely convincing. On the whole matter I think it would reasonable to assume that the pursuer, but for the accident, might have continued in his pre-accident employment for a further five years taking into account the slow progress of his ankylosing spondylitis, a condition unconnected with the accident. However I find that by at least the end of the year 2000 he was fit for moderately heavy work.
[33] Mr McEachran contended that the pursuer should receive £25,000 as solatium, partly on the footing that back patients are he said badly compensated in the Courts but also on the view that the pursuer had not exaggerated his condition. The pursuer had some support from his partner who possessed some physiotherapy experience. She had noticed spasm in the pursuer's back which had not been induced by any form of activity. While Miss McQueen did note some muscle spasm during examination, she observed that in relation to his exhibited limitation on forward flexion, lateral flexion and extension he was holding himself rigid.
[34] The video as seen by the Court did not indicate any disability or discomfort or any limitation in activity. On the day that video was taken the pursuer was perfectly capable of moderately heavy work, nor was he disabled as a result of his exertion, his next visit to his General Practitioner being some 10 days later.
[35] Such discomfort as the pursuer has suffered and may suffer in the future on the evidence must be described as moderate in its early stages and slight after 2002. His disabilities come nowhere near the severity which would attract an award of the sum contended for by Mr McEachran. Mrs Stacey said that the value of the claim was lower than the suggested Judicial Studies Board figure of up to £4,000. The appropriate solatium for the proved disabilities sustained by the pursuer I find to be reasonably stated at £4,000 of which three quarters is attributable to the past.
[36] The pursuer would be entitled to such wage loss as he has sustained up until two years from the accident i.e. 19 March 2001, in order to allow some time to find work. The loss is £18,867 according to the Joint Minute. Interest on that sum would run at 4% for the new year to March 2001 and 8% thereafter. Thereafter he has failed to obtain work. He did not give the Court any convincing reason for this other than the asserted extent of his disabilities. He might but for the accident have continued for a further five years after the accident in his pre-accident employment at his pre-accident wage. Thereafter he would be fit for such work as he could get. He has no wage loss attributable to the accident after 19 March 2004. Until that date he has suffered and will suffer a loss of the difference between his pre-accident wage and the wage he might reasonably have obtained had he presented himself for work. The differential was said to be £4,785 per year but that was on the basis that he was only fit for light work. He was and is capable of more, and, for the period between March 2001 and March 2004. I would assess the value of his loss of earnings claim at £9,000 inclusive of interest.
His medical records also indicate unconnected disabilities which might well have kept him from work after March 1999 for periods of time.
Pension loss was claimed, and in terms of the Joint Minute would have been £8,000.
Claims Under Section 8 and Section 9 of the Administration of Justice Scotland Act 1982
[37] Mr McEachran suggested £2000 in total for these sometimes overlapping claims; Mrs Stacey suggested £250. In my estimation the pursuer may have required certain minor services at some stage in the course of his disability but the video evidence indicated that he can still do for his family all that he ever did. His own evidence was that he engaged in gardening and the like. £500 in total would be ample in recognition of these minor claims.[38] On the whole matter however I sustain the defender's second and third pleas in law repel the pursuer's pleas, and grant decree of absolvitor.
