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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Paton v Tube Developments Ltd [2001] ScotCS 132 (30 May 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/132.html Cite as: [2001] ScotCS 132

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[1] The defenders admit that the pursuer sustained an accident while changing a lorry wheel on 11 February 1996 at their premises at the Industrial Estate, Gavell Road, Queenzieburn. The pursuer as the senior of only two mechanics was in charge of the defenders' garage maintenance facility. He was responsible for its day-to-day running. That responsibility included arranging the acquisition of any necessary tools and equipment so that the work in the garage could be carried out. The defenders were stockholders of steel tubing. They owned two articulated units and several trailers for distribution of the tubes to purchasers.

[2] The pursuer claims that the defenders are responsible for the consequences of his accident which resulted in a broken metatarsal bone in his right foot.

[3] The pursuer averred in a record which he amended shortly before the proof that he required routinely to change the wheels of lorries. He averred (Record p.6);

[4] The ground of fault ultimately pled involved the assertion that it was the defenders' duty in the circumstances to provide him with a torque spanner. He pled a common law case and a statutory case under the Provision and Use of Work Equipment Regulations 1992 in that regard.

[5] In evidence, however, the pursuer said that when putting nuts onto a wheel he ran them up with an airgun to the limit of the airgun and then stood on the L-bar attached to the nuts and bounced upon it. He thought he had tightened several nuts and that he had been working on one at an eight o'clock position. There was no evidence about what was done about the wheel after the claimed accident. He was clear in his evidence that he did not slip from the L-bar. He said that the L-bar came off the nut thus causing him to fall to the ground. His colleague, Mr Kelly, did not see the accident although he gave evidence to the fact that he found the pursuer and the L-bar on the ground.

[6] In the accident report in the defenders' records which the pursuer said at proof that he had not seen before but accepted as relating to him, it is said that on a date given as 11 February 1996 Mr Paton "slipped when tightening wheelnuts, hurt ankle" and that he "went to hospital for x-ray - broken bone". Mr Kelly said at proof that he took Mr Paton to hospital "right away".

[7] Other accounts of the accident have been given. At Stobhill Hospital it was recorded on 13 February 1996 that the pursuer "fell awkwardly at work, 2/7 ago". On 2 September 1999 the pursuer said to Mr Annan, FRCS that he was tightening wheelnuts on a lorry trailer by jumping up and down on the L-bar which slipped off the wheelnut. He is recorded as having said in June 2000 to Mr Allan Sheel, a safety consultant who gave evidence for the pursuer, that when he was standing on the bar to exert extra force he slipped from the bar about 18 inches. He told Mr Kumar, surgeon, and Mr Peter Davies, a vocational rehabilitation consultant, two other witnesses, that the bar had slipped from the nut. Moreover, although Mr Kelly said he had taken Mr Paton to hospital on the day of the accident the hospital records do not bear that out. They record the pursuer's having gone to hospital two days after his accident, a matter agreed by Mrs Paton.

Credibility and Reliability of the Pursuer.

[8] Had the above been the only discrepancies in the pursuer's story they might have been disregarded as mere variations upon a general theme. However, the pursuer emerged as a dishonest and wholly unreliable witness in relation to other subsequent matters. His solicitors wrote to the defenders on 17 December 1996 stating that they understood he had been certified as fit for work. He had not and has not until recently been so certified, but that was due principally to other medical conditions according to the evidence of his G.P., Dr Dove. However, whatever conditions he was suffering from, that did not deter him from obtaining work while claiming Benefits for at least 14 days in April 2000. Unfortunately for the pursuer he was observed and photographed by video camera driving a vehicle to and from work. He was eventually constrained to admit to having been employed for three weeks with Direct Slating (Supplies) Limited; for this he was paid £20 per shift in cash. He sought to explain that episode of employment in his pleadings as being due to difficulties with his Legal Aid contribution. That however had been paid many months earlier. In Court he departed from that and said he had been getting pocket money for a holiday which had been booked.

[9] The accounts he gave to the various consultants who saw him about his abilities to walk and work were equally varied. To Mr Adam on 2 September 1999 he said that he could walk for 200 yards with the aid of a stick. On 14 April 2000 he told Mr Kumar that he had not driven a car, that he needed a stick and that he could only walk 20 to 30 yards before he had considerable pain. The video taken in April 2000, however, shows him walking freely without a stick. When it was put to him that the video demonstrated that he was walking very well without a limp and ran up steps, he said "That's what it appears to show". At the interview with Mr Peter Davies on 2 May 2000 he said he continued to have pain, had difficulty walking and standing and could walk for 300 to 400 yards maximum. To Mr Kumar on 1 December 2000 he said he could walk 100 to 150 yards without pain and without a stick.

[10] The pursuer was not an impressive witness. His demeanour was shifty. He frequently contradicted himself or attempted to evade answering simple questions. I am not prepared to rely on anything he said either in evidence or to his consultants, be they medical or vocational. He does not have any corroboration. The recollection of the only witness on the merits, Mr Kelly, was also inaccurate in relation to his attendance at hospital with the pursuer. Mrs Paton spoke to a different person altogether taking the pursuer to hospital on 13 February 1996, the date when he was first recorded as attending. The pursuer did not recall Mr Kelly's taking him to hospital.

[11] Mr Annan's impression was that the pursuer had been jumping on the L-bar, and sustained injury when his foot slipped and hit the ground in a pointed position. The type of injury sustained by the pursuer cannot occur without the foot pointing toe down and there had to be a twist as well. Mr Annan envisaged the matter as having perhaps occurred when the pursuer slipped off the bar but was not caused by the bar coming off the nut. If the latter had been the case, the pursuer's foot would have tended to land in a flat position and the pursuer's type of injury could not have occurred in that position. Mr Annan discounted the injury as having been sustained by merely stepping down when the foot achieved the disorder position. He described the pursuer's account of events to him, however, as "hazy".

[12] Even although Mr Annan thought the pursuer's account of the accident plausible as given to him, I am not prepared to hold as established that the pursuer sustained injury to his foot in the manner he averred i.e. by slipping from an L-bar while bouncing up and down upon it to tighten a nut, because that was not his account when giving evidence.

[13] Since the pursuer has not proved that his accident happened the way he said in evidence that it did, I shall assoilzie the defenders.

The Pursuer's Common Law Case of Fault
[14] Should it be thought that, contrary to my view, there was sufficient evidence to demonstrate that the pursuer did sustain his injury in the way he averred, it is necessary to consider the grounds of fault pled against the defenders. The pursuer was in charge of the garage and I am satisfied from the evidence of Douglas Kay, the company secretary and the considerable quantity of documents produced showing actual orders by the pursuer, that he had ample power and responsibility to entitle him to acquire any necessary tools. His case was that he should have been supplied with a torque spanner for wheel nuts and have been forbidden to use the L-bar to tighten wheel nuts in the garage. That, he claimed, would have prevented the accident. I have no hesitation in holding on the evidence available that as a matter judged at common law the only reason there was not a torque spanner for that purpose, should one be necessary, was because the pursuer did not order one. In any event a torque spanner does nothing other than provide a means of knowing when a particular pressure is applied. It provides no mechanical advantage over an L-bar when tightening. It is and can be used in the same way as an L-bar of sufficient length by exerting force manually. There is no necessity to stand on either of these pieces of equipment and accordingly the pursuer's averments that he "required" to stand on the L-bar to tighten the nuts is not established. He may have done so and with previous employers he may even have been, as he said, "trained" to do so elsewhere for many years prior to the event in question but that says nothing to the point about a torque spanner as a safety device for the mechanic. In the garage the L-bar is used to loosen nuts and the air compressor may also be utilised. The pursuer's pleadings were silent about the use of the compressor save to say that it could be used, 7B, for the initial stages of tightening nuts. The pursuer's own evidence was that he tightened the nuts with the air compressor as far as he could go thereby contradicting the reasoning at page 7 of the record about the unsuitability of the air compressor.

[15] Should a wheel require to be changed on the road, there can be no doubt that only an L-bar would be used to loosen and thereafter to tighten wheelnuts and pressure would be applied to it by any convenient means, one of which might include utilising the whole weight of the operator by standing on it. No suggestion was or could have been made that a torque spanner to tighten wheelnuts ought to be part of the equipment of a vehicle on the road. If the evidence of Mr Sheel (whose report is No 6/4 of process) were to be accepted, however, it would follow logically that provision of a torque spanner on the road would be essential in the interest of safety. Mr Sheel did not go as far as that. A torque spanner is a device which establishes a required torque on the nut on which it is used. It is not a safety, but a measuring device in the tightening process. It cannot be used as a device for loosening wheelnuts.

[16] The pursuer claimed that the defenders were in breach of Regulation 5(3) of the Provision and Use of Work Equipment Regulations 1992. That paragraph provides: "Every employer shall ensure that work equipment is used only for operations for which and under conditions for which it is suitable". The defenders attacked the relevance of the statutory case. The L-bar provided to the pursuer was work equipment and it was conceded that it was suitable equipment for the operation of slackening and tightening nuts on wheels. The statutory case as pled depended upon the pursuer "requiring" to balance upon the bar and bounce up and down upon it (Record 17c). The bar was one which could be extended in length. There was no proved requirement to balance upon or bounce up and down upon it. If it could be used without bouncing upon it, which the pursuer virtually conceded in cross-examination, it was not unsuitable equipment for the operation of tightening nuts. He agreed in re-examination that if an L-bar was the same length as a torque spanner the effects would be the same. I therefore agree with the defenders' submission.

[17] Had the matter arisen I would have found the pursuer guilty of contributory negligence. He, it was, who was entrusted with the operation of the garage facilities. I was satisfied that he had sufficient authority to acquire a torque spanner if it was necessary to do so, and to use it if he thought fit. He did not require to bounce up and down on the L-bar but even if he did choose to do so, as his evidence emerged, the cause of the accident was not his slipping but the spanner coming off the nut. This, (on his evidence) rarely, if ever, happened. That can only mean it was not properly applied to the nut by the pursuer. His contribution would have been assessed at 75%.

[18] The pursuer also had a somewhat complex medical history. At the date of the injury sustained while at work he was not in good health. He was diabetic. He had been subject to fits. He was not, according to his GP, taking his medication sufficiently regularly and he was suffering from problems of alcoholism. He had been to his doctor a few days before the accident in connection with fits and hypoglycaemic attacks as well as being referred for specialist advice about alcohol. He was advised against driving. His drug levels were noted on 14 February 1996 when he reported his fracture to his doctor and further advice was given about alcohol on 22 February 1996. By that time he had been made redundant because the defenders closed down their garage premises.

[19] For his orthopaedic injury he was under the care, ultimately, of Mr Kumar, a consultant orthopaedic surgeon then at Stobhill, and now at Paisley Royal Infirmary, who gave reports and evidence. Mr Kumar's initial view as disclosed in his report of 7 November 1996 was that the pursuer's walking ability should be restored to a more normal level and that any degenerative process which might take place as a result of the fracture would not be severe. That would be the normal, expected progression.

[20] Very little attention was paid thereafter to the condition of the foot since the pursuer had many other problems. A letter was sent to the defenders' insurers by the pursuer's solicitor on 17 December 1996 indicating that the pursuer had been certified as fit for work. Nonetheless the pursuer maintained to Mr Kumar in 2000 that he had not worked since February 1996. In a report from Mr Kumar said to have been prepared on 18 April 2000, the pursuer stated that he suffered considerable pain on walking about 20 to 30 yards. He required to take painkillers if he was to be on his feet for any length of time. He did not drive a car. However, it was recorded that there were no unusual wear patterns on his shoes, a circumstance tending to contraindicate any limp, or weight bearing problem in one foot.

[21] Mr Kumar in a further report dated 1 December 2000 stated that walking beyond 150 yards gave the pursuer pain and that he still had significant problems in terms of walking and mobilisation.

[22] The information which was not before Mr Kumar was firstly that the pursuer had been referred by his GP for orthopaedic advice because of discomfort in his left knee. That followed an x-ray taken by the GP on 27 March 2000. The reference was reported upon on 5 July 2000 with the narration that stairs were difficult but uneven ground presented no particular problems. Secondly Mr Kumar did not know of the matters revealed by the video recording produced in court which demonstrated that the pursuer was in fact working at the time of the consultation in April 2000. The video showed no limp or other discomfort. Mr Kumar however, when this matter was disclosed, prior to the proof, and when giving evidence, professed the view that the video did not alter his opinion. I could not regard that as satisfactory given the visible evidence and the fact of working. I am therefore not prepared to regard Mr Kumar's evidence as establishing what disability the pursuer has. In the first place he had been lied to by the pursuer and had accordingly proceeded on an erroneous view of the history of the matters with which he was dealing and in the second place the video recording did not indicate a man with any difficulty in walking, going up steps or driving a vehicle. In the third place the pursuer had in fact been working in April 2000. So much was admitted by the pursuer in court and it was incomprehensible to me why Mr Kumar did not in any way revise or modify his opinions and in particular the opinion he had given in April 2000.

[23] There was also evidence that the pursuer might in fact have been working between the date of the accident and April 2000. On 14 April 1997 he was recorded by his general practitioner, who gave evidence, as having had an epileptic fit "at work". The explanation he gave at the time and to the Court was that he was helping out and wasn't being paid. There was a further incident in July 1999 when he is noted in the hospital records as having been seen "at work" (7/18 page 198). Again he said he was helping out and unpaid.

[24] The only medical evidence upon which the Court can place reliance was given by Mr Annan, the consultant surgeon who saw the pursuer on 2 September 1999 and 16 November 2000. Even as late as 16 November 2000 the pursuer was asserting to Mr Annan that he had not worked since the original accident to his right foot. Mr Annan however noted that there were no references to the pursuer's right foot injury in any of the medical records available after 1996. He noted that he walked well with no detectable limp when wearing shoes and that there was no sign of any inflammation of the foot and no evidence of any significant muscle wasting or weakness in the right leg. He found evidence of post-traumatic degenerative change in the midfoot on the right side and said that it is likely that that would give rise to symptoms of aching discomfort after prolonged standing or walking. That could be improved to some extent by the wearing of moulded insoles. He was fit for a wide-range of employment involving mixed activities.

[25] On the whole evidence in relation to the pursuer's foot I accept that for some period or so after the accident he experienced discomfort and some limitation of his movements when walking. However, that had been substantially resolved by November 1996. The pursuer has and will continue to have some discomfort but only after prolonged walking or standing. That discomfort is not disabling. In these circumstances the defenders' counsel suggested that an award of solatium of between £4,000 to £4,500 was appropriate and I am prepared to accept that £4,000 is appropriate with 80% of that award being attributable to the past.

[26] The pursuer also claimed a sum for loss of employability. It is plain from Mr Annan's report that he is not as fit as he was before his accident in relation to his foot. His employability however is in any event restricted in relation to his other illnesses and disabilities. He was made redundant. So was Mr Kelly. In contrast with the pursuer Mr Kelly did obtain employment. Although I had evidence from Mr Davies, the employment consultant, I was not assisted by it because that entire evidence was again coloured by the account given by the pursuer of his abilities and disabilities. The pursuer's counsel recognised that he was unable to provide a figure for loss of earnings but invited the Court to take account of the fact that in his employment with the defenders before redundancy, he earned about £10,400 per annum. He invited the Court to award £15,000 for past loss of employability and £5,000 for future. The defender's counsel submitted that the pursuer had not established any loss in the past period and had provided no evidence to warrant any sum for the future. There was much force in those submissions but, viewing the matter broadly I accept that there would be some marginal restriction in the kind of work that the pursuer can do now as opposed to that prior to the accident. It is impossible precisely to quantify that in terms of actual or potential loss of earnings but the effects of the injury on employability would be adequately represented by an award of £5,000 in relation to the past. So far as the future is concerned it is impossible to arrive at any figure on the evidence available. The award of £5,000 would have carried interest at 4% per annum from the date of the accident.

[27] On the whole matter however, I sustain the defenders' third plea-in-law, repel the pursuer's first plea-on-law and grant decree of absolvitor.