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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McGilviray v. John Neiklem Drainage Contractors Ltd [2005] ScotCS CSOH_11 (21 January 2005) URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSOH_11.html Cite as: [2005] ScotCS CSOH_11, [2005] CSOH 11 |
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McGilviray v. John Neiklem Drainage Contractors Ltd [2005] ScotCS CSOH_11 (21 January 2005)
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OUTER HOUSE, COURT OF SESSION [2005] CSOH 11 |
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A3879/01
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OPINION OF LORD REED in the cause LEE McGILVIRAY Pursuer; against JOHN MEIKLEM DRAINAGE CONTRACTORS LIMITED Defender:
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Pursuer: Coutts; Blacklock Thorley
Defenders: Thomson; Morison Bishop, W.S.
21 January 2005
Introduction
[1] On 4 July 1998 the pursuer was injured as the result of an accident at work. He was employed at that time by the defenders, who are drainage contractors. The pursuer was standing, talking to other workmen, when he was struck on the side of the head by the bucket of a JCB being driven by a fellow employee. The defenders admit liability. The only issue is the assessment of damages. [2] The pursuer was 23 years of age at the time of the accident. He was wearing a safety helmet when he was struck. The helmet was cracked by the force of the impact, and the pursuer was knocked to the ground. He was unconscious for a number of minutes. By the time an ambulance arrived, he had regained consciousness, and was complaining of head and neck pain. He was fitted with a cervical collar, and his head was immobilised. He was taken to hospital, where he continued to complain of head and neck pain. There were no abnormal neurological signs, and an X-ray of the skull and cervical spine revealed no abnormality. He was discharged home with a cervical collar. [3] On 6 July 1998 the pursuer attended his GP, complaining of pains in his head and neck. He was prescribed analgesics. He attended his GP again on 14 and 22 July. On the latter date it was noted that his pains were improving, but that he was experiencing migraine-like headaches. During July and August 1998 he attended a chiropractor for treatment on his cervical spine on about eighteen occasions. He returned to work on about 20 August, after an absence of about seven weeks. [4] Those are the basic facts about the pursuer's accident and its immediate aftermath. The principal issues between the parties can be summarised as follows:(1) Whether back problems from which the pursuer has suffered subsequent to the accident were caused by the accident.
(2) The nature of the pursuer's employment prior to the accident, and the nature of the employment which he would subsequently have had but for the accident, bearing in mind the decision on issue (1).
(3) The implications of the accident for the pursuer's employment and earnings thereafter, bearing in mind the decisions on issues (1) and (2).
I shall discuss each of these issues in turn, before considering the quantification of damages in the light of my decision on these issues.
(1) The Back Problems
[5] The most important issue between the parties was whether problems which the pursuer suffered in his lower back were caused by the accident. It was common ground that this issue was, in particular, critical to the pursuer's claim for future loss of earnings, which formed much the largest part of his claim for damages. It also had a significant effect on his claims for solatium and for past loss of earnings. It was a matter of agreement that if the back problem was unrelated to the accident, and had in itself produced similar results to those produced at an earlier stage by the accident itself, then the loss for which the defenders were liable stopped at that point: Jobling v Associated Dairies Ltd [1982] AC 794; Rahman v Arearose Ltd [2001] QB 351. [6] I have already summarised the contents of the medical records from July and August 1998. They contain no reference to pain in the lower back. The pursuer's next visit to his GP was in May 1999, when he attended with a sinus infection. During October and November 1999 he was off work for about five weeks, when he was treated by the chiropractor. The statutory sick pay forms, completed by the chiropractor, refer to "acute exacerbation of a chronic moderate cervico-thoracic posterior joint dysfunction". They make no reference to any problem affecting the lower back. The pursuer's next visit to his GP was in May 2000, when he attended with a problem of no relevance to this case. He next attended his GP on 31 January 2001, with discomfort in the right side of his neck, and discomfort and numbness down the lateral aspect of his right leg. The GP diagnosed torticollis in respect of the neck pain, and possible nerve root irritation in respect of the leg symptoms. On 6 June 2001 the pursuer was examined for the purposes of the present proceedings by Dr Colin O'Leary, a consultant neurosurgeon. The pursuer made no mention of lumbar pain or of leg symptoms, although Dr O'Leary said in evidence that he would have asked about such symptoms. On 10 June 2002 the pursuer attended his GP, who recorded:"Pain right leg, numbness in back of thigh and all down, low back pain".
The GP also recorded a complaint of frontal headaches. The GP saw the pursuer again on 21 June, and recorded "Much better now". On 24 June 2002 the pursuer was examined for the purposes of the present proceedings by Mr Michael McMaster, a consultant orthopaedic and spine surgeon. Mr McMaster recorded the pursuer as giving the following history, so far as relevant to back pain:
"Two months ago he developed, for no apparent reason, pain in his lower back radiating down the right leg to the foot accompanied by a feeling of numbness. He has been off work for two weeks and feels that his symptoms are improving."
On examination, Mr McMaster found that the lumbar spine was held normally and that there was no pain on palpation. Straight leg raising was normal, and there were no abnormal neurological findings in the lower limbs. In his report, Mr McMaster expressed the opinion that the pursuer's back and leg symptoms had developed spontaneously and were suggestive of a minor disc prolapse. He observed that the pursuer was 6 foot 5 inches in height and weighed 22 stones, and that his lower back symptoms would benefit if he were to lose 7 stones in weight. On 10 December 2002 the pursuer again attended his GP, complaining of pain in his lower back and right leg, with pins and needles in his toes. He attended his GP again on 3 January 2003, complaining of back pain. He next attended his GP on 21 January 2004, with a complaint of lower back pain. He was noted as saying that he had had only a couple of flare-ups of his back pain since last seen. The pursuer was seen again by Mr McMaster on 8 March 2004, when he said that the discomfort in his lower back had deteriorated since Mr McMaster had last seen him. There was constant discomfort in the right lower lumbar region, radiating down the right leg and accompanied by a feeling of numbness. On examination, the spine was held stiffly. There was no pain on palpation. Movements of the lumbar spine were restricted. Straight leg raising was normal, and there were no abnormal neurological findings in the lower limbs. In his report, Mr McMaster expressed the opinion that the pursuer continued to have mechanical discomfort in his lower back, and that his movements were moderately restricted. Mr McMaster could find no good evidence of lumbar nerve root irritation or compression to suggest a disc prolapse. The pursuer's low back discomfort however interfered with his ability to bend and perform heavy lifting from a low level, and he found it uncomfortable to be in one position for prolonged periods without being given the opportunity to move around. Mr McMaster remained of the view that these symptoms were unrelated to the accident.
[7] The pursuer, who appeared to me to be a credible witness but not entirely reliable in his recollection, said in evidence that he had first noticed pain in his lower back quite soon after the accident. He estimated that the pain had started about two months after the accident. It had continued to the present day. It came and went: when it came back, it was generally worse than before. At the start, it had been a nagging pain. It had been getting worse. The first occasion when he had taken time off work because of it had been in June 2002. He had not mentioned it to Mr O'Leary in June 2001 because it had not been too bad then. He had not mentioned it to his GP for essentially the same reason He had mentioned it to the chiropractor on an occasion (apparently in 1998) when he had had pain in his back and numbness in his leg. The chiropractor had done some manipulation on the pursuer's leg. The pursuer did not regard his back pain as a major problem, but it restricting his bending, and stopped him from heavy lifting. It had not been a major problem in 1998, and had not caused him much concern in 2002, but by 2003 he would not have attempted heavy lifting because of concern about his back, as well as because of concern about his neck. [8] The chiropractor, Dr Ross McDonald, was included in the pursuer's list of witnesses, but was not led in evidence. His reports on his treatment of the pursuer, dated 14 September 1998 and 21 January 1999, contained a detailed account of the pursuer's symptoms and treatment. They made no mention of any pain or numbness in the lower back or leg, or of any manipulation of the leg, and were concerned solely with "whiplash-like" damage to the pursuer's neck and shoulders. [9] In his evidence, Dr O'Leary said that he assumed that the back pain had arisen after 2001. It would have to be due to a separate reason from the injury to the neck. [10] Ms Margaret McQueen, a consultant orthopaedic surgeon who had examined the pursuer, considered that whether the back pain was related to the accident depended on its timing: if it first appeared within a week of the accident, then it might be related to the accident, whereas that possibility could be discounted if the pain first appeared two months or more after the accident. Mr McMaster, whom I found to be an impressive witness, accepted that back pain might be related to the accident if it was experienced two months afterwards, but he considered that unlikely. A connection could be ruled out if the back pain first appeared years after the accident. [11] The onus is on the pursuer to establish a causal link between the accident and the back pain, on a balance of probabilities. I am not satisfied that such a link has been established. Having regard to the absence of any evidence from the chiropractor's records, or from the chiropractor himself, to support the pursuer's evidence that the back pain was reported to him in 1998, the failure to report the back pain to Dr O'Leary, and above all the history given by the pursuer to Mr McMaster, I consider it more likely that the back pain emerged so long after the accident that a causal connection can be discounted.
(2) The Pursuer's Employment
[12] In his evidence, the person said that at the time of the accident he was employed by the defenders as a shuttering joiner. He had worked for the defenders for about four years before the accident, following three years of training in joinery. The pursuer's evidence was supported by a letter addressed to a mortgage lender and signed by the defenders' managing director, Mr John Meiklem, dated 17 March 1997, in which the pursuer's employment was described as "shuttering joiner"; by time sheets relating to a contract carried out by the defenders at Dalmeny during February and March 1998, in which the pursuer's time was recorded as having been spent almost entirely on shuttering work; by photographs taken on a contract carried out by the defenders at Edinburgh Park during April 1998, showing the pursuer involved in the construction of shuttering; by a report submitted by the defenders to the Health and Safety Executive concerning the pursuer's accident, dated 6 July 1998, in which the pursuer's occupation was stated to be "shuttering joiner"; and by a form submitted by the defenders to the Benefits Agency, relating to the pursuer's accident, and signed by Mr Meiklem in February 2000, in which the pursuer's job was stated to be "joiner". At the same time, the pursuer said that the defenders did not employ fully-trained shuttering joiners, and were not paying him the rate which a fully-trained shuttering joiner could normally expect to earn. [13] In relation to the last point, the evidence relating to the pursuer's pre-accident earnings is not entirely straightforward. He said in evidence that he was earning £7 per hour for a 39 hour week, with a further 11 hours or so per week at overtime rates. That is consistent with a letter provided by the defenders to a bank, dated 14 March 1997, which stated that the pursuer earned a basic wage of £273 for a 39 hour week (i.e £7 per hour), with overtime of approximately 11 to 16 hours per week. On the other hand, the defenders' internal records described the pursuer's position at the time of the accident as "labourer joiner", and his hourly rate of pay as £5.22 (as from 29 June 1998, the previous rate having been £5.05). A schedule of the pursuer's earnings from 6 April 1998, prepared by the defenders for the purposes of the present proceedings, showed his hourly rate as being £5.05 as at the date of the accident (the increase to £5.22 apparently taking effect some weeks later). [14] In relation to his future plans, the pursuer said that at the time of the accident he had intended to remain with the defenders for about another year, building up his experience in shuttering, before moving to a better paid job elsewhere or becoming self-employed. He believed that he could then have expected to earn between £11 and £14 per hour as a basic rate. [15] In the event, when the pursuer returned to work after the accident he reduced the amount of time he spent working as a shuttering joiner, then stopped altogether. That work involved heavy lifting and working in confined spaces, bent over for prolonged periods of time. He found it uncomfortable, because of the pain in his neck. Instead, he worked as a plant operator, principally driving a JCB. In June 2000 however he left the defenders' employment, in order to attempt working as a finishing joiner, doing joinery work inside houses. After three months he had to stop, because of the discomfort. He then obtained employment with another firm as a JCB driver. He remained in that employment as at the date of the proof. [16] The pursuer's evidence about his work prior to the accident, and about his expectations for the future, was supported by that of a number of witnesses, all of whom appeared to me to be straightforward and credible. The first of these, Francis Scott, was a very experienced shuttering joiner, currently working as a foreman. He had experience of the pursuer's work as a shuttering joiner prior to the accident. It was his impression that the pursuer was working for part of the time as a shuttering joiner and for part of the time as a plant operator. The pursuer's work as a shuttering joiner was good. He was better than most, and could read plans. Mr Scott would have taken him on. A shuttering joiner could expert to earn, as an employee, £11 per hour basic, plus overtime and bonuses. He would charge a higher rate if he were self-employed. [17] The second of these witnesses was Neil Harris, who had worked with the pursuer after the accident, when they were both employed by the defenders. Mr Harris had been taught by the pursuer how to do shuttering joinery. He had left the defenders after a year and had set up his own business as a self-employed joiner. He worked on the renovation of flats, charging £14 or £15 per hour. On his current contract he was earning £1000 net each week. [18] The third of these witnesses was Douglas McGilviray, the pursuer's father. He was at the time of the accident the defenders' contract manager. He had been guiding the pursuer down the career path of shuttering joinery. The pursuer had been working mainly on that activity, with a small proportion of his time being spent on other activities. The pursuer had intended to progress at shuttering. He had been concerned that he was not being paid the proper rate for a shuttering joiner. That had been a matter of contention between the pursuer and the defenders before the accident. The defenders were supplying the pursuer to customers as a joiner for shuttering work, and charging out his time at rates of £11 to £15 per hour. The pursuer would have had no difficulty getting a job elsewhere as a shuttering joiner. He was quite intelligent in reading plans. Typical overtime, averaged over the year, was about 11 to 16 hours per week. It fluctuated greatly between summer and winter. The defenders' employees were required to sign an agreement purporting to exclude the time limits imposed by the Working Time Regulations. [19] The final witness in this group was the pursuer's younger brother, Kerry McGilviray. He was working as a shuttering joiner, earning £12.50 per hour, and working between 40 and 45 hours per week. [20] Contrary evidence was given by the defenders' managing director, John Meiklem. According to his evidence, the pursuer was primarily a plant operator, and spent only a small proportion of his time doing joinery. Mr Meiklem had signed documents describing the pursuer as a shuttering joiner without reading them properly. The pursuer was hired out as a joiner, but he was not employed by the defenders as a joiner. How the defenders charged out a contract, and who they employed, were two different things. They charged for a joiner, but the person who did the work was not a joiner. Mr Meiklem accepted that he required his employees to work longer hours than the statutory maximum, and to sign a waiver of their statutory rights before they started work: that was common in the industry. He also accepted that, after the pursuer went to work for another firm, the pursuer had been put off a site where the defenders were also working, at Mr Meiklem's request. He denied that this had been, as the pursuer's employers' records stated, because of a "problem due to on-going claim against Meiklem by Lee McGilviray": he claimed that the pursuer had been going about sites "trashing" the defenders. I did not find Mr Meiklem a credible witness. [21] The pursuer's evidence about the difficulties he had experienced at work after the accident was consistent with the evidence of Ms McQueen that the injury to the pursuer's neck had rendered him unable to sustain a job which involved a lot of bending or heavy lifting, such as shuttering joinery. Her evidence was however also to the effect that work as a shuttering joiner would be equally unsuitable for a person with back pain, due to the strain placed on the back. As Ms McQueen put it, either the neck problem or the back problem would prevent the pursuer from being a shuttering joiner. [22] Mr McMaster regarded the back problem as the more serious of the two: he considered that the neck problem would not in itself prevent the pursuer from working as a joiner if he were sufficiently motivated, although the work would cause him intermittent aching and discomfort in his neck. Mr McMaster also accepted however that the pursuer was a genuine individual rather than a malingerer, and that it was reasonable for him not to persist in work which he found painful. In his opinion, by March 2004 the pursuer would have found it difficult to do heavy work (such as shuttering joinery), because of his back pain. [23] In the light of this evidence, I accept that the pursuer was working primarily as a shuttering joiner at the time of the accident. I also accept, on a balance of probabilities, that he would, but for the accident, have left the defenders about a year after the date of the accident in order to work full-time as a shuttering joiner, and would then have earned the going rate for work of that nature. It is apparent that he was concerned, before the accident, that he was being paid less by the defenders than he could earn elsewhere; and for him to progress to full-time work as a joiner would be broadly consistent with the type of career followed by his less experienced workmate, Mr Harris, and by his own younger brother. On the other hand, I am persuaded by the medical evidence that the pursuer's back pain would at some point have rendered him unable to continue working as a shuttering joiner. The date at which that point would have been reached was not explored in detail in the evidence. It had evidently been reached, at latest, by March 2004; but the back pain was an increasingly serious problem, intermittently, from April 2002 onwards. Bearing in mind the amount of stooping involved in shuttering joinery and the element of heavy lifting, and bearing in mind also the pursuer's evidence that by 2003 he would not have attempted heavy lifting because of concern about his back, I infer, on a balance of probabilities, that he would have had to stop working as a shuttering joiner, as a result of back pain, by about January 2003.(3) The Implications of the Accident for the Pursuer's Employment and Earnings
[24] As a result of the accident, and the consequent pain in his neck and shoulders, the pursuer did less and less shuttering work, and more work as a JCB operator. Instead of leaving the defenders a year after the accident to work as a shuttering joiner at the normal rates of pay for that occupation, he remained with the defenders until June 2000, then attempted to work as a joiner but found that he was unable to do so, and thereafter became a JCB operator with a different employer. By about January 2003 he would however have been unable to work as a shuttering joiner in any event, as a result of a back problem unrelated to the accident. [25] In these circumstances, the pursuer's loss of earnings as a result of the accident is the difference between what he actually earned during the period from July 1999 to January 2003 (when, but for the accident, he would have been paid the going rate for a shuttering joiner) and the earnings he would have received if he had been working during that period as a shuttering joiner. The evidence of Mr Scott indicated that a shuttering joiner would earn £11 per hour plus overtime. It appeared that overtime would typically be between 11 and 16 hours per week. Taking a midpoint of 13.5 hours overtime, that would produce annual gross earnings of about £30,030. The evidence of Kerry McGilviray, that he worked 40 to 45 hours per week at £12.50 per hour, would produce annual gross earnings of about £25,500. The evidence of Keith Carter, an employment consultant who had carried out research into the earnings of shuttering joiners, and whom I found to be an impressive witness, also indicated that a figure in the region of £25,500 would be realistic. I accept the submission of counsel for the pursuer that that figure can appropriately be adopted. The pursuer's actual gross earnings were £18,973 in 1999/2000, and £14,875 in 2002/2003. The difference can be estimated, on a very broad basis, at about £8500 gross per annum, or about £6375 net.(4) The Quantification of Damages
[26] It was a matter of agreement that solatium was appropriately assessed at £12,000 if the back pain was not related to the accident, and that 75 per cent of that figure should be allocated to the past. That produces interest of £2354. [27] The past loss of earnings has two elements. The first is a loss of wages of £873 while the pursuer was off work following the accident. Interest on that figure is about £457. The second element is the loss of earnings between July 1999 and January 2003 due to inability to work as a shuttering joiner. That can be estimated at £22,313. Interest is approximately £6765. [28] I am not persuaded that an award for future loss of earnings, or for loss of employment prospects, is appropriate. Given the evidence concerning the pursuer's back condition, which in itself renders him unsuitable for any heavy work, it is not apparent on the evidence that the sequelae of the accident have in themselves rendered the pursuer at a material disadvantage on the labour market. [29] In these circumstances, I assess damages, inclusive of interest, at a total of £44,762.
