[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Murray (ap) v. Weldex International Offshore Limited & Anor [2002] ScotCS 52 (22nd February, 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/52.html Cite as: [2002] ScotCS 52

[New search] [Help]

Murray (ap) v. Weldex International Offshore Limited & Anor [2002] ScotCS 52 (22nd February, 2002)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LORD EASSIE in the cause JOHN MURRAY (ASSISTED PERSON) Pursuer; against (FIRST) WELDEX INTERNATIONAL OFFSHORE LIMITED AND (SECOND) BARR LIMITED Defenders:   ________________

 

Pursuer: R.W. Dunlop; Drummond Miller, W.S., (for Ross Harper & Murphy, Glasgow)

Second Defenders: Crawford; Dundas & Wilson, C.S.

22 February 2002

1. The pursuer in this action seeks reparation in respect of injuries to his hand which he sustained on 29 October 1997 in an accident at a building site in Garelochhead where a water treatment plant was being constructed. On that date the pursuer was working as a shuttering joiner for Lanarkshire Form Works Limited who were engaged as a labour only sub-contractor to the main contractor, Barr Limited, who are the second defenders.

The accident occurred when the pursuer was engaged in the task of slinging a concrete block of a type known as a "Kelly block" prior to its being lifted and moved by a crane hired by the second defenders from the first defenders. Parties have however agreed that for the purposes of these proceedings, the operator of the crane, a Mr O'Brien, to whom responsibility for the accident is sought to be attributed, was in the employment of the second defenders and that the first defenders should be assoilzied. References hereinafter to "the defenders" should be taken as references to the second defenders.

2. Kelly blocks are cubed shaped blocks of concrete used, particularly on soft ground, as a base for the erection of shuttering for the construction of poured concrete walls or structures. In very approximate terms each of the three dimensions of a Kelly block measures 1 metre and the block weighs approximately 2 tonnes. On the upper surface of the cube is inserted, into the concrete of the cube, a metal loop which enables the Kelly block to be slung to a crane by means of chains passed from the suspended lifting tackle of the crane downwards to the loop on the Kelly block and up again to the lifting tackle of the crane. The crane in use on the occasion of the accident to the pursuer was a mobile crawler crane with a cab for the operator situated directly above the tracks and roughly 2 metres from ground level.
3. In his evidence the pursuer deponed that having started work at about 0800 hours, on what was a reasonably bright clear morning, shortly after 0900 he was engaged in assisting in moving a Kelly block to enable the erection of shuttering for the next stage of the works. His particular task at the time in question was to pass the double chain from the lifting tackle of the crane through the loop on the Kelly block and back up to the lifting tackle, prior to the Kelly block's being hoisted by the crane and re-positioned in the desired location for it to serve as a base for the erection of shuttering for the next stage of the construction of the water treatment plant. The pursuer described his being in the process of feeding the double chains through the loop on the Kelly block, with his left hand on the chains as they descended from the crane's lifting block, at a point some 12 to 18 inches prior to the chains' passing through the loop and with his right hand on the more distant part of the chains. As he was thus pulling the chains through the loop he heard the crane "rev up" and suddenly set in motion a tensioning or lifting of the chains. As the chains moved they became fouled in the loop of the Kelly block and his left hand, which was more proximal to the crane's lifting tackle, was then trapped and crushed between the two chains as they came under tension. With the lifting movement of the chains, between which his left hand was caught, he was pulled slightly upwards onto the Kelly block. Because of the pain of the injury to his hand, he screamed and thereupon the operator immediately released the tension on the chains.
4. There is no dispute that the pursuer's left hand was injured in the general manner thus described. The essential area of factual dispute, in so far as relating to the merits of the claim, concerns the question whether prior to his being injured the pursuer signalled to the operator, Mr O'Brien, to lift the load.
5. Evidence was led on behalf of the pursuer as to the customary or conventional signals to be given by a slinger. That evidence came from the pursuer himself, the two eye-witnesses tendered on his behalf, namely Mr Raymond Cunningham and Mr Thomas Jeffrey, and also from a former inspector of factories, Mr Stewart, who was tendered as a skilled witness in safety matters. Among those witnesses there was general agreement that the process of lifting a load involved two stages for which there are two different signals. The first stage is the slow taking up of tension or "bite" so that the slinger may check the security of the slinging when it is under tension. That stage is normally signalled by the slinger standing free from the load, facing the operator and raising his arm, whereupon he executes a repeated clenching motion of his hand. On the assumption that the slinging is then judged by him to be satisfactory, the slinger will thereafter give the signal to hoist or lift the load. That signal consists of the slinger fully extending upwards his right hand arm and then executing a giratory movement of his hand, the index finger being pointed upwards. In the course of his cross-examination Mr O'Brien, the only witness tendered for the defenders, accepted that those were the normal conventional signals.
6. As was implicit in his account of what had occurred, the pursuer confirmed in his evidence that he had given neither such a signal, nor had he given any equivalent. Evidence was led from the two fellow employees, namely Mr Cunningham and Mr Jeffrey, who had observed the accident. Both deponed that they were standing a little distance from the pursuer awaiting the re-positioning of the Kelly blocks to enable them to proceed with their work of erecting the shuttering. They were to that extent essentially idle spectators. In their testimony each was clear that they had not seen the pursuer give any signal and Mr Jeffrey in particular described his utter disbelief at seeing the crane-man proceeding to lift at the stage in the slinging operation reached by the pursuer.
7. Mr O' Brien's evidence was to the effect that, as a crane operator of many years experience, it was inconceivable that he could have acted without a signal from the slinger to lift the load. He maintained, contrary to what was said by the pursuer, Mr Cunningham and Mr Jeffrey and what is recorded in the contemporary notes taken that day by the members of the second defenders who investigated the incident, that the accident had occurred not in the earlier part of the forenoon but late in the afternoon. Mr O' Brien stated that he had been given a signal to lift which he demonstrated as a horizontal extension of his right arm with an upward movement of the forearm, articulated from the elbow, with the palm outstretched. Mr O'Brien stated that he had responded to such signals in the past. While adamant that he would not have operated the crane unless he had received a signal, Mr O'Brien accepted however that at the time at which he put the crane in motion, the pursuer was not standing clear of the load; that the pursuer's back was towards him; that he could not see what the pursuer was doing or, in particular, where the pursuer's hands were.
8. By way of roughly contemporaneous reaction both Mr Cunningham and Mr Jeffrey agreed that, having seen the accident and left his cab to come to the actual scene of the lift, Mr O' Brien said - "I thought you'd signalled", an expression also used by Mr O' Brien in his written report made later that day. Equally, in their written accounts given later that day, both Mr Cunningham and Mr Jeffrey were clear that no signal had been given by the pursuer.
9. Miss Crawford, who appeared as counsel for the defenders, advanced five grounds upon which she invited me to prefer Mr O' Brien's evidence that a signal to lift had been given (with an implicit gloss that a clear signal had been given) and to reject as unreliable the contrary evidence of and for the pursuer.
10. The first ground stemmed from a difference in the accounts given by Mr Cunningham and Mr Jeffrey respectively as to the particular stage in the operation which had been reached by the pursuer at the moment of his injury. Mr Cunningham deponed to his belief that the pursuer had not only passed the chains through the loop on the Kelly block, but had also attached the chains to the lifting tackle. He added that if the chains had not been so attached, he thought the chain would simply have run out through the loop. Mr Jeffrey however said that the pursuer had not reached that stage of hooking up, but was still in the process of feeding the chains through the loop. As respects this difference of testimony my preference is for the account given by Mr Jeffrey, which coincides with the account given by the pursuer. My impression of his evidence was that Mr Cunningham was influenced by a belief that the chains would simply run out of the loop and accordingly concluded that the pursuer must have hooked up the chains. However, no evidence was led of the dimensions of the loop, or the size of the chains and I am unable to discount the chains having become sufficiently fouled in the loop to reject as improbable the evidence given by the pursuer and Mr Jeffrey both of whom struck me as credible and essentially reliable witnesses. But in any event, the discrepancy is not of vital significance since Mr Cunningham, as to whose honesty I have also no reservations, was clear that he had not only seen no conventional signal, but that he had not observed any upward raising by the pursuer of his hand and forearm.
11. The second ground advanced by Miss Crawford again focused on differences in the testimony given by Mr Cunningham and Mr Jeffrey respectively. Although both were clear that they were on a scaffold, some short distance from the Kelly block in question, watching the re-positioning of that Kelly block, there were differences in their accounts of where each was placed on the scaffold relative to the other. Further, Mr Cunningham had said that he was having a blether with Mr Jeffrey, but Mr Jeffrey could not recollect such a blether. Mr Cunningham said his line of vision placed the pursuer in a straight line with the crane, the pursuer having his back to the crane and facing towards the witness, whereas Mr Jeffrey described a triangular configuration with the pursuer presenting a view of his back and right hand side. I have to say that I do not find surprising that Mr Cunningham and Mr Jeffrey - neither of whom maintained that they were standing side by side - should now not recollect with identical precision their respective locations on the scaffold. If anything, such differences are to be expected and I tend to see them as confirmatory of their credibility. Moreover, given that they were standing in different locations and thus viewing events from a different perspective - by which I mean perspective in a technical sense - I find nothing surprising in the one man's perspective of the two subjects of his observation being of alignment in a straight line whereas the other recollects some triangularity.
12. The third point raised by counsel for the defenders focused on a remark by the pursuer in his evidence to the effect that at one point in the course of the operation on which he was engaged, his left hand was on the chain but his right hand and arm were at shoulder height. I understood the significance of this in the eyes of counsel for the defenders to be that it was a possible recognition by the pursuer that he had performed an arm movement consistent with that described by Mr O' Brien and interpreted by Mr O' Brien as a signal.
13. The fourth point invoked by Miss Crawford as a ground for preferring Mr O'Brien was that he had immediately reacted by saying that the pursuer had signalled. By contrast, counsel for the pursuer also pointed to the approximately contemporaneous denials of the pursuer having given a signal by both Mr  Cunningham and Mr Jeffrey.
14. The final ground advanced by Miss Crawford was what she, put shortly, described as the inherent improbability of an experienced crane operator's putting the lifting mechanism into operation in the absence of any clear signal from the slinger or banksman to do so.
15. In approaching the central issue identified by counsel of whether the pursuer signalled to the crane operator to lift, it has to be noted that, whatever might be inferred from the pleadings, in light of the evidence given by Mr O' Brien there is no question of the pursuer's having ever allegedly given a conventional signal to take up the tension, or "bite", or a signal to lift the load thereafter by his raising his arm vertically and making a giratory motion of his index finger. In short, it is apparent that the pursuer never gave any such conventional signal.
16. It was canvassed in evidence and to an extent in submission for the defenders that those conventional signals did not have universal, exclusive validity and that in practice individual crane operators and slingers might, in individual accustomed usage, develop their own system of signalling. I have no particular difficulty with that proposition in principle but as to its application to the circumstances of the present case, it lacks not only a proper foundation in the pleadings, but also any evidential foundation that there had been any history or practice of some individual, aberrant system of signalling agreed upon either expressly or implicitly between the pursuer and Mr O' Brien.
17. Whereas counsel for the defenders sought to support her submission that the pursuer had signalled by what had been said by Mr O'Brien immediately afterwards, as Mr Dunlop, who appeared for the pursuer pointed out, the words recollected by Mr Cunningham and Mr Jeffrey as used by Mr O' Brien and the words employed by Mr O'Brien in his written statement were that he had "thought" the pursuer to have signalled. In his evidence Mr O' Brien sought to exclude the possibility of his being at fault in any respect by reference to his previous long experience of operating cranes without accident, a view adopted by counsel for the defenders as her fifth point, supra. Even setting aside the riposte from the pursuer's counsel that it is also improbable that a slinger would give a signal to lift when his hand was in a position of danger, I am not much persuaded of the force of this particular point. However lengthy, previous experience does not exclude the making of mistakes with unfortunate consequences. Even the best may yet make such a mistake. As the poet Horace observed even Homer nods - "Quandoque bonus dormitat Homerus". It appears to me as a matter of probability that Mr O' Brien wrongly interpreted some movement of the pursuer's arm, ill-observed by him, as being some informal signal to lift the load consistent with which he had some past experience and in consequence of that he set the lifting mechanism in operation.
18. On my assessment of the evidence, my factual findings may pertinent to the essential issues be summarised thus;-

(1) I am satisfied that the pursuer did not give any of the conventional lifting signals.

(2) I am satisfied that the pursuer did not make any movement of his right arm intended as any signal to the crane operator, Mr O' Brien.

(3) In so far as Mr O' Brien may have believed he saw a signal, his interpretation of the pursuer's body movements was erroneous.

(4) At all events, what Mr O' Brien may have conceived as being a signal was not, even to him, a normal conventional signal either to take up the tension or to proceed to lift the load.

(5) It was not established that there was any practice whereby Mr O'Brien and the pursuer had previously operated by express or implicit agreement, a non-conventional system of signalling.

(6) At the time at which Mr O'Brien set the lifting motion of the crane in operation, the pursuer was not standing clear of the load and his hands were yet in contact with the chains.

(7) At that time Mr O'Brien had no basis whereon he could properly have judged that the pursuer was clear of the load and, in particular, that the pursuer's hands were remote from the load and the lifting chains.

19. In light of my having reached those factual conclusions the result, in terms of the pursuer's case of "common law" negligence is fairly evident and may be shortly stated. Firstly, in light of findings 1 and 2, I am unable to detect any fault or blame on the part of the pursuer. The defenders' pleas of sole fault and contributory negligence therefore fall to be repelled. Secondly, while always conscious of Mr O'Brien's concern that, shortly before retirement, he should be held responsible for a serious accident, I am satisfied that in acting, at best, on a body movement of the pursuer which was not a clear, conventional signal he committed a negligent error of judgment. I have also to say that I consider Mr O'Brien to have been further at fault in proceeding to lift at a time at which he was not, or could not reasonably have been, satisfied that the pursuer was standing clear of the load. The importance of the slinger's being clear of the load before the operator of the crane proceeds to set the crane's lifting motion in operation was underscored by, among others, Mr Stewart. The temptation to take shortcuts will always be present in any field of human activity, but in the present case it appears to me clear that Mr O' Brien proceeded with the lift without being satisfied that the pursuer was in a position of safety.
20. In these circumstances I conclude that the pursuer succeeds in his case of fault pled as delictual breach of duty in the shape of negligence and that he does so without any finding of contributory fault upon his part.
21. Given that conclusion, it is not necessary for me to examine in detail the case pled by the pursuer under Regulation 27(2) of the Construction (Health, Safety and Welfare) Regulations 1996 which provides as follows:-

"All plant and equipment used for the purposes of carrying out construction work shall be used in such a manner ... that, so far as is reasonably practicable, it remains safe and without risk to health at all times when it is being used."

22. The short submission for the pursuer was that since the crane operator set in motion the lifting mechanism of the crane at a time at which the pursuer's left hand was in a position in which it was injured, the crane, as an item of "plant and equipment used for the purposes of carrying out construction work" was not used in such a manner that it remained safe and without risk to health at all times when it was being used. The equally short submission of counsel for the defenders was to the effect that the intent of the provision was that the plant and equipment itself should remain in a safe condition while being used and the provision did not apply to the facts of this case in which nothing was alleged regarding the unsafeness of the plant and equipment itself. Given that consideration of this point is superseded by earlier conclusion and particularly in light of the brevity of the submissions advanced to me, I am not minded to express a concluded view on the matter. I would simply mention that my prima facie impression is that the provision is not intended to encompass casual negligence by an operator of equipment safe in itself and being used for its intended safe purpose.
23. I turn now to the question of damages.
24. Parties are agreed on the figures to be awarded in respect of solatium and past loss of earnings, including interest to the eve of the proof. The heads of loss remaining for assessment by the court are the pursuer's claim for future loss of earnings and the claims for services in terms of Sections 8 and 9 of the Administration of Justice Act 1982.
25. There is no dispute concerning the nature of the injuries suffered by the pursuer which are more fully described in the agreed medical reports. In short, the pursuer's left hand, which has been the subject of some nine surgical operations, is deformed and has significant functional deficiencies. The fingers will not straighten properly and the pursuer cannot form a fist. His pinch is significantly restricted. He is plainly unable to work as a joiner or to do any work involving climbing ladders or scaffolding or indeed any work which requires him to have a firm grip of objects with his left hand. Although not the subject of any psychiatric report, it appears that for at least some months now, the pursuer has been suffering from depression and receiving some anti-depressant medication from his general medical practitioner. The pursuer himself indicated that an important component in the grounds of his depression was the protracted nature of the litigation process, a view which was also confirmed by his wife.
26. The pursuer gave evidence regarding his employment history, details of which are largely recorded in the report (No. 6/7 of process) of his interview by Peter Davies, an employment and vocational rehabilitation consultant. Mr Jeffrey and Mr Cunningham also testified to the pursuer's skill and industry as a joiner and expressed the view that but for the accident, he should not have had difficulty in continuing to work as a joiner. The pursuer explained that having worked for some time as an "SC60" he had been approved by the Inland Revenue for "714 certificate" status enabling him to engage others as part of a squad for which he would be responsible. It had been his general intention to work in that way or as an SC60, or at any event, in joinery until aged 65. It was ultimately not in real dispute that the pursuer had an extensive history of steady employment (subject to the usual intervals between contracts) in the building and construction trades as a joiner, he having begun that career shortly after leaving school. Parties are agreed that had the pursuer continued working as a joiner, his net annual earnings would now amount to £14,000.
27. So far as the future is concerned the pursuer indicated both to Mr Davies and in his evidence a wish to retrain to do work using computer technology, particularly as a software technician. On testing by Mr Davies, it appeared that in principle the pursuer has the intellectual capacity to undergo such training. As I understood it, a first requirement would be for the pursuer to complete a "SQA" course as an entry requirement for any subsequent course. A full time HND computing/software development or/support course at an institution such as Clydebank College would take 3 years. Another option might be for the pursuer to do a part-time HNC course lasting some 2 years. To become an accredited Microsoft engineer, courses were available - at the fees indicated by Mr Davies in his report - at Paisley University.
28. While those retraining possibilities existed, the import of Mr Davies evidence was to the effect that there was keen competition for the posts in computer engineering or technology envisaged by the courses in question. A possible, though less attractive alternative, might be employment as a salesman in the retailing of computer equipment in shops such as the retailer known as "PC World". In his reports, Mr Davies gives various tables setting out net earnings available in those varying positions in computer technology and retailing.
29. However, given the difficulty, even after re-qualification, of obtaining posts as a software technician or the like, and moreover having regard to the onset of the pursuer's depressive state, Mr Davies reached the view in his supplementary report (No. 6/11 of process, para. 3.5) that it was perhaps more likely that the pursuer would, after some training in the shape of an SQA qualification, take up clerical work. His supplementary report sets out in its Table 5 information relating to earnings in such clerical work.
30. Against that background, which I have summarised shortly, Mr Dunlop contended that the appropriate figure for future loss of earnings was in the region of £90,000. He referred me to the approaches adopted by the Lord Ordinary in Young &c v Fraser Symington McDowell 2001 SCLR 155 and Duthie v MacFish Limited 2001 SLT 833. With the view to assessing the future earnings of the pursuer as a joiner, had he not been injured, counsel for the pursuer referred to Table 25 of the Ogden Tables and selected a discount rate of 2.5% in view of the fact that subsequently to the decision of the House of Lords in Wells v Wells [1999] 1 AC 345, the Lord Chancellor had prescribed that rate in the Damages (Personal Injury) Order 2001 [SI 2001/2301]. (I would add that, subsequently to counsel's submissions, with effect from 8 February 2002, the Scottish Ministers have prescribed a similar rate in The Damages (Personal Injuries) Scotland Order 2002 - SSI 2002/46). After the adjustment for contingencies, occupational risks and geographical factors envisaged in the Tables, the initial 2.5% discount rate multiplier reduced to 13.01. Applying that multiplier to the multiplicand constituted by the agreed pursuer's earnings of £14,000 per annum gave a capital sum of £182,165. Adopting the approach followed in Young, one would award one half of that amount, namely £90,000.
31. As a cross-check, said counsel, one could take the view that it might take three years for the pursuer to re-qualify and gain employment. Applying the Ogden Table 21 with appropriate contingency adjustments for those three years, indicated a multiplier of 2.87 which, when applied to the multiplicand of £14,000 (the agreed net joiner's wage), gave a product of approximately £40,000 for those 3 years. Thereafter, assuming the pursuer to be in clerical employment and that he reach the mid-level for clerical employment indicated in Mr Davies' tables, there would be a continuing differential of a little over £3,000 per annum (and a greater differential while working up to that mid-level). Applying then the Ogden multiplier for a 49 year old male duly adjusted, which was 11.32, to that differential produced a figure of £33,960. The resulting total was £73,960 [namely £ (40,000 + 33,960)] but that overlooked the need for the pursuer to spend some five years or so working up to mid clerical level and the uncertainty of the pursuer's obtaining and retaining employment of a clerical nature. Alternatively, adopting the approach that the pursuer's likely future level of annual earnings was some £10,900 but applying a reduced multiplier of 8 to reflect both the need for retraining and the increased difficulty of obtaining and retaining such employment, gave a figure for future earnings of £87,200 - say £90,000 - which when compared with the capitalised projected joiner's earnings of £182,165 previously described, again gave a shortfall of approximately £90,000.
32. At the outset of her submissions, Miss Crawford for the defenders observed that there were a number of other forms of employment which the pursuer could perform. Since his physical condition had effectively been static since the latter part of 1999 the pursuer had already had time to seek employment and his current depressive state was, she said, apparently attributable to the continuance of these legal proceedings. Having made those introductory observations, counsel then disclaimed any assistance from the Ogden Tables in the circumstances of the present case. She submitted that there were two models appropriate for consideration. The first was that the pursuer undertake retraining for, and obtain work in, the computer sector. The second was that he enter into clerical employment.
33. On the first of those models, it was accepted that retraining would take some three years. However, said counsel, since the pursuer had not been actively looking for work when, she said, he could have been, only two years' loss of his earnings as a joiner should be allowed. The tuition fees of £5,144, detailed in Mr Davies' report, when added to that two year loss (£28,000) gave a total of £33,144. It might thereafter take the pursuer some five years to achieve the mid-point in Mr Davies' computer earnings table, at which stage he would then be at an income level equivalent to the agreed joiner's earnings of £14,000. For those five years the average annual income differential was approximately £3,000. Multiplying that differential by five produced the result of £15,000. Accordingly, on this scenario, the pursuer's future loss of earnings amounted to the sum of £15,000 plus £33,144 namely a total of £48,144.
34. The second model advanced by counsel for the defenders envisaged the pursuer obtaining ordinary clerical work. Miss Crawford discounted the need for the pursuer to undertake any retraining for that purpose with, she said, the consequence that he could obtain employment this year (2002). On that view, it was largely a matter of applying a multiplier to the difference between clerical earnings and joiner earnings. Counsel stated that, to take account of the inherent features of the pursuer's occupation as a joiner, a fair multiplier would be 11, rather than the multiplier of 13 indicated by counsel for the pursuer under his reference to the Ogden Tables. It was to be assumed that the projected earnings of the pursuer in clerical employment would increase from the starting point indicated in Mr Davies' report. Counsel for the defenders therefore proposed that one should allow, from the 11 year multiplier (a) 5 years applied to the greater multiplicand of £5,500 at the start of a clerical career and (b) 6 years applied at mid-point in the clerical career at which point the differential was some £3,000 per annum. The arithmetical result is:- £(5 x 5500) + (6 x 3000) = £45,500.
35. The appropriate level of award for future loss of earnings was accordingly, in the submission of counsel for the defenders, around £45,000-£50,000.
36. While counsel on each side respectively advanced the submissions and calculations which I have summarised, it was naturally recognised that assessing the pursuer's future patrimonial loss was not a precise science but a process which involved the appreciation of many uncertain elements. It was accepted that the results of one approach might serve as a means of cross-checking the indications resulting from another or others, but since all of the approaches involved the forming of a judgment or assessment of uncertainties, it was recognised that none could be set down as being the precise and only applicable calculation. To an extent, each approach was perhaps inevitably open to criticism.
37. Thus Mr Dunlop's first approach involved in its initial stage the application of an Ogden multiplier to the agreed joiner's earnings, producing a figure with seeming scientific precision but next involved a reduction of that figure by one half as a broad assessment of the loss, reflecting the likely lower amount of annual earnings and periods of unemployment, including retraining. While in Young v McDowell the Lord Ordinary effectively halved the Ogden Multiplier, the facts of that case were of course different and in the circumstances of the present case, I consider that a simple halving of the product of the Ogden Multiplier applied to joiner's earnings, is at best a very broad axe approach.
38. The second approach of counsel for the pursuer employed an axe of less breadth. However it is, I think, open to the possible criticism that it assumes a three year retraining period, which I understood to be the period necessary were the pursuer to qualify for a post in the computer sector, but thereafter proceeds on the view that his earnings would be those of a clerical worker. That said, I recognise that the pursuer may, quite properly, endeavour to re-qualify for the computer sector but ultimately, because of the more competitive employment market in that sector, have to settle for clerical employment. The third approach, again employing the broad axe, assumes only mid-point clerical earnings and above those earnings a multiplier of 8 which again is a matter of largely subjective assessment.
39. On the other hand, the first model or approach suggested by counsel for the defenders is open to the criticism that while it proceeds on the basis of a three year period for retraining, it disallows one year of that retraining period on the basis that the pursuer, notwithstanding his depression and evident lack of funds, should have taken up retraining a year ago. Particularly in light of the terms of the agreement reached in relation to past loss of earnings and the evidence tendered, I am not sympathetic to that contention, with the result that whatever else might be said about this first model, which perhaps more importantly assumes retraining actually to result in employment in the computer sector, one would reach a figure of £62,000.
40. Miss Crawford's second model involved, as I understood it, a reduction in the adjusted Ogden multiplier of 13.01 advanced by Mr Dunlop to 11 in order to take account of the fact that the pursuer was a joiner. Since that adjusted Ogden multiplier takes account of occupational risks and geographical considerations, I think that Miss Crawford's second model may proceed on a questionable opening premise. Having then reduced the multiplier to 11 for risks inherent in the pre-accident employment, the approach apparently makes no allowance for the difficulties presented by the pursuer's disability in his likelihood of obtaining or retaining even clerical work. I conclude that the second model, producing a figure of £45,500 therefore builds into it factors tending to undervalue the amount of the pursuer's loss of future earnings.
41. There are no doubt other criticisms, and counter arguments, which may be made respecting all of the scenarios advanced by counsel on each side. Recognising the arguable imperfections in the models, scenarios or calculations presented by counsel but also appreciating that there is a measure of convergence to the extent that one is talking broadly of a figure between approximately £60,000 and approximately £90,000, rather than say some much larger six figure sum or some much more trifling sum, I have come to the view that as a "broad axe" or "jury" decision, the appropriate award for future loss of earnings should be £80,000.
42. I turn now to the question of assessment of compensation for services. As already indicated, compensation for services is sought under both Section 8 and Section 9 of the Administration of Justice Act 1982.
43. The pursuer and his wife each described the assistance given by Mrs Murray to her husband since the accident and each did so with, in my view, commendable moderation. During the periods after the various operations to his hand, and in particular when his wrist was in a plaster of paris cast, the pursuer required assistance from his wife when bathing, dressing and taking showers. He also required assistance with cutting up his food in order that he could eat it. However once he had recovered from his last operation in July 1999, it appeared that the pursuer was generally able to attend to his own ablutions and to dress himself unaided. He is also able to use cutlery without calling for assistance except for perhaps occasional difficult food stuffs, such as a tough piece of meat.
44. Counsel for the pursuer suggested a broad brush figure of £5,000, including interest, as reasonable remuneration for the past and future services rendered by Mrs Murray to her husband. For her part, counsel for the defenders pointed out that as regards the past, one was in overall terms, talking of care for some 8 months. If one extended that period to one year and took two hours per day at an hourly rate of £3 per hour, the resulting figure would be £2,184, say £2,250 with interest which, to reflect some allowance for the future, might appropriately be increased to £2,500.
45. I agree that a broad brush approach is appropriate. Applying that brush I would largely agree with Miss Crawford's estimation of reasonable remuneration including interest for services which Mrs Murray has rendered until the present time. However my impression is that with the advance of years the pursuer's disability may have the result of his becoming again dependent on his wife for personal care to a significantly greater extent than would otherwise would have been the case. Assessment of that future element is of course speculative, but in the whole circumstances I think that Miss Crawford's estimation of that component is too low. I would therefore fix £4,000, inclusive of interest, as the appropriate figure for the sum ultimately payable to Mrs Murray.
46. So far as Section 9 services are concerned, the evidence disclosed that prior to the accident the pursuer had done some cooking and other domestic tasks around the house, as one might normally expect. He had done the gardening. But since the accident Mr and Mrs Murray's upstairs neighbours had mown the grass, which constituted the major part of the small garden enjoyed by the pursuer and his wife. It appeared that cultivation of the surrounding borders had somewhat fallen into neglect. While the evidence - in itself in small scope - focused largely on cooking and gardening, Mrs Murray did depone that the pursuer also did the normal "DIY" tasks about the house. It is I think evident that as a time served joiner the pursuer could readily attend to such tasks with confidence and facility. For the very reasons which prevent his working as a joiner, his ability to perform those ordinary tasks is impaired.
47. Counsel for the pursuer invited an award of £15,000, based on the view that annual services rendered by the pursuer were worth £750 and that a multiplier of 20 should be applied, that multiplier being justified, said counsel, by the whole life Ogden Multiplier (Table 19) of 22.95. For her part, counsel for the defenders submitted that the figure of £15,000 was manifestly excessive. Were one to assume an average expenditure of time of 3 hours per week on gardening and DIY at £3 an hour, the annual worth was £117. Taking a whole life multiplier ignored the probability that, with ageing, one would become less able to cut the grass or perform DIY tasks. If a multiplier of 15 were applied to the annual worth of £117, the product was £1,755, which might perhaps be rounded to £2,000.
48. In my view Mr Dunlop's approach to this head of the claim entails both an exaggeration of the annual value of the relevant services likely to be performed by the pursuer for which a replacement would have to be procured, and the application of an inappropriate multiplier which does not allow for the increasing inability to perform such services which ordinarily flows from becoming older. In the whole circumstances, and wielding the "broad axe" I consider that £3,500 should be allowed as the present value of future services under this head.
49. In these circumstances I shall:-

(1) Uphold the pursuer's first plea in law so far as directed against the second defenders;

(2) Repel the second defenders fifth and sixth pleas in law;

(3) Grant decree against the second defenders for payment by them to the pursuer of the sum of £175,000 with interest at the judicial rate from the date of decree, that principal sum comprising:-

(a) agreed solatium: £22,500;

(b) agreed past wage loss: £65,000;

(c) future loss of earnings: £80,000;

(d) remuneration for Section 8 services, payable to Mrs Murray, of £4,000: plus

(e) Section 9 services: £3,500.

and

(4) Give effect to the Joint Minute for all parties (No. 28 of process) and accordingly assoilzie the first defenders from the conclusions of the action.