Graham v. Richard Lawson Autologistics Ltd [2006] ScotCS CSOH

[19 ] I was referred to a number of authorities in the course of the oral argument. The following cases were cited directly to me and discussed. Viz: Banco de Portugal v Waterlow & Sons Ltd [1932] AC 452; Callaghan v Southern General Hospital NHS Trust, 2000 SLT 1058; Caswell v Powell Duffryn Collieries [1940] A.C.152; Davey v Thurroch (2001) cited in Kemp and Kemp 96-004; Edwards v Hozelock (2002) cited in Kemp and Kemp G6-002; McDyer v Celtic Football Etc Ltd (No 2) 2002 SLT 1387; McKenzie v H D Fraser & Sons 2002 SLT 116; McMenamy v Argyll Stores Ltd 1992 SLT 971; McNeill v Roche Products Ltd 1989 SLT 498; Melia v Key Terrain (1969) cited in Kemp and Kemp 6-023; Neil v East Ayrshire Council, 25 January 2005, Lord Brodie. Some further cases are noted in the written arguments.

[20] Having increased the sum sued for Mr Milligan first addressed me on the evidence. He invited me to find the pursuer wholly credible and stressed how important that was. Liability was admitted apart from contributory negligence. Here there ought to be none. The pursuer's view was obscured and the offending tube was small. It should not have been there at all. At worst for the pursuer it was momentary inadvertence as he had to step over cables. (McNeill v Roche was referred to). Here, the statutory duties imposed either strict or absolute liability with a very limited defence under Regulation 12(3). Where the statutory duty guards against a danger, then the Courts should be slow to find contributory negligence on the part of a pursuer who suffers injury as a result of the very danger the statute specifically guards against. The whole purpose of Regulations 12 and 17 was to protect a worker, during his daily duty, from this type of accident. The tube caused the fall and it was never put to the pursuer that he should have seen it. There was no evidence that it was an obvious danger due for example to its size or colour. The pursuer had not disobeyed any instructions or shown any reckless disregard. The case of Neil showed a deliberate foolish act. That was absent here.

[21 ] In respect of quantum he said that there was no difference between the experts except whether the surgery could contribute to osteo-arthritis. That was really irrelevant. It was rendered symptomatic by the accident and caused by it. Although the pain was said to be "surprising" it was not unreasonable for the pursuer not to want to take pills.

[22 ] For awards of solatium he referred me to the ranges in the Judicial Studies literature and urged an award in the "severely disabling" bracket, one half to the past. The past wages loss was covered by the Joint Minute at a wage of £15,000. Though redundant, would he have got a new job? He was a good employee on the evidence. The chances are that he would as others had. (He referred me to his written valuation and interest).

[23 ] A question was raised as to whether he could or should have found better paid work. He did look and was well motivated. He signed on and looked at the papers. However, he either got no responses or referrals. The practical problems were greater than the experts thought. As a matter of detail, the specific vacancies mentioned by Mr Frost were never put to the pursuer. Some of those were not permanent jobs and in any case he might lose his present job or become unfit. The proper question was to ask whether what he had done up till now was reasonable. There were no negative factors about the pursuer. He was a hard worker, a skilled worker and had intended to work on to 65. The other jobs mentioned were ones paying minimum wage, were intermittent, had no care or pension. The multipliers and percentage discounts could take account of his getting a different or better job and his growing older.

[24 ] Counsel then referred me to the services claim, interest and pension loss. Callaghan was referred to and the evidence of Mr Pollock. Also because of the interim payment the draft judgment should be put out By Order for a hearing on interest.

[25 ] In his reply speech Mr Milligan made a number of other points. He renewed and repeated his argument against contributory negligence. The Court should not speculate as to why he did not see what was a transient hazard. It was wholly wrong in principle and inappropriate on the facts of this case to say that the pursuer had made any "lifestyle" choice. He was the innocent party and his injury remained to affect any job he did of whatever nature. His lowest paid work means a continuing loss. The Court should not be unduly critical of the innocent pursuer, and such criticism came ill from the defenders who admitted breach of duty. There was no proof that he had refused any better paid job or been offered any. Counsel referred to a case cited in Kemp and Kemp on The Quantum of Damages, Vol.1 6-023 Melia v Key in the Court of Appeal. There was also no reason to expect the pursuer to stop work at 60. No poorer paid or part time job was likely to pay him any pension.

[26 ] Counsel had, of course, also adopted his written note of argument.

[27 ] Mr Brodie replied for the defenders. He referred in detail to his written note of argument in which he invited me to make a number of findings in fact. (The pursuer did not accept numbers 12, 15, 18/21, 23/4). More generally he asked the question whether the loss was due to the accident or to lifestyle choices. He had chosen to accept his present level of low earnings and the defenders were not liable beyond pain, disability and loss of earnings due to that pain. He only had a sore elbow with good range of movement. His other arm was not injured. Was he only capable of doing the job he does?

[28 ] Renewing his argument on how damages ought to be assessed, counsel asked the question whether he would have stopped one job and begun another at once. He was a conservative man and was already scaling down his overtime and, with his wife working, his earnings were enough. The date selected in finding 12 was arbitrary, but he had been out of work before for periods between jobs. A broad axe reduction was appropriate. His losses were not truly attributable to the accident but to a lifestyle choice. By July 2003 he was physically capable of doing a more highly paid job than he now did. The defenders should not have to fund his early retiral. The question also had to be asked whether he would have worked until he was 65. Though the matter was not put to him, it could not be assumed. Counsel referred to the evidence of Mr Frost about these matters. Had the pursuer made any serious attempt to find work other than his present job? He should have had a better job paying more, even a job full time involving light work. In that he could work until 65. Differential wage figures were then looked at in relation to certain of the proposed findings.

[29 ] Turning to pension loss, Mr Brodie said there could be no pension loss and in the alternative a low arbitrary figure should be given. What would have been determinative was what contribution another welder employer would make, and when the pursuer would retire. It was possibly a jury question.

[30 ] Moving to solatium counsel read out page 5 of his written note of argument. In essence this suggests much lower figures than Mr Milligan wished.

[31 ] Past wage loss produced a complex argument based on many assumptions and reliance on Mr Frost's evidence. I refer to page 6 of the written agreement. The same complication is seen in the note of argument on future wage loss and again proceeds on the hypothesis of what the pursuer "should have" been able to do. Many alternative figures are suggested depending on when he would retire.

[32 ] The defenders accepted they were in breach of duty. However, the stricter the duty on them the more understandable the breach might be. The tube was a transient hazard. It was not known how long it had been there or even what it was. This red route had given no prior trouble. The accident was unwitnessed. He had to take reasonable care for his own safety. He knew of the "tidy up" and had seen and avoided the cables. He should not have moved forward if he could not see clearly where he was going. It was not momentary inadvertence, it was significant fault, and the Court should make a substantial reduction.

[33 ] In earlier paragraphs I have indicated what the evidence was on the facts of the accident and how I have found it established as the pursuer described it.

[34 ] I want to look now at the argument about contributory negligence. There are a number of matters of importance. In the first place the defenders led no evidence at all on the merits. I am unable to say who left the tubing on the pathway or how long it had been there. For this reason alone it seems to me to be very difficult to be critical of the pursuer's actions. There is simply no evidential basis for finding directly or by inference that he saw it, knew it was there or ought to have done either. Indeed the pursuer himself was never asked any such question.

[35 ] Secondly the Regulations are couched in strict terms with the possibility of the limited defence of "reasonable practicability". No attempt has been made to rely on this.

[36 ] Thirdly, it has never been suggested that the pursuer himself put the tubing there thus creating a breach of the Regulations.

[37 ] Lastly, it is important to note that the pursuer described how he carried the steel sheet in front of him. It was never suggested to him that he should have carried it in any other way. He was walking on a designated area and in my view ought not to have expected or anticipated obstructions of this nature. It seems to me that what happened does not even amount to inadvertence or momentary inattention.

[38 ] The case of McNeill v Roche Products Ltd was referred to at some length on the issue of contributory negligence. The pursuer there was a security fireman who had worked for the defenders for a number of years. It was part of his duties to carry out routine maintenance on various appliances. One such appliance was a fire pump. It was checked and tested by running it then turning it off. Turning it off could be done by pressing a button or by cutting the petrol supply at the cock lever. It was practice to use the latter method. However, near the lever was a fan fenced by a wire mesh. When reaching for the lever the pursuer inadvertently put his hand into the mesh. Inter alia the defenders argued that the pursuer had been contributorily negligent.

[39 ] The Lord Ordinary (504) held that this was a routine operation on a piece of familiar equipment. The dangerous fan was behind a guard. The pursuer was doing the job in the normal accepted way. On the whole evidence he had no duty to look precisely where he was putting his hand. There was thus no basis for any finding against the pursuer. In reaching his carefully reasoned view on the evidence, the Lord Ordinary relied on the speech of Lord Wright in Caswell v Powell Duffryn etc Collieries about inadvertence and real negligence in relation to the actual conditions under which men work. He also relied upon an earlier case he decided where the workman had taken a deliberate risk in an unknown situation.

[40 ] On the facts here and having regard to these cases there is no room to make any deduction for contributory negligence. To do so would simply be on some contingent basis. Accordingly on the facts and in law there is no room for any case on contributory negligence and I reject the defenders' argument on the point.

[41 ] Neil v East Ayrshire Council was referred to as an example of a substantial finding of contributory negligence in a case involving statutory breach. The facts there were, however, very different from the present. The pursuer took a very deliberate calculated risk when entering and leaving a loft space. It is plain from the description of the evidence (paragraphs 5 and 6) that the ladder he used was too short to be safe. What he did was conscious acceptance of a risk by an experienced plumber. His choice and actions put him and his employer in statutory breach.

[42 ] I want to look now at the issue of mitigation of loss; I have already indicated my findings on the evidence and reasons for preferring the pursuer and Mr Keith. However, the matter is not solely one of fact. Whether there is in law any strict duty laid on a pursuer to mitigate his loss, in practice if he does not act reasonably he may not make full recovery from a defender in breach of duty. What is or is not reasonable has to be judged on the facts proved. In my view it is for the defenders to show that the actings were unreasonable.

[43 ] There are, however a number of other rules which are derived mainly from English cases and which I consider to be applicable in Scotland. They make eminent commonsense. Banco de Portugal v Waterlow & Sons Ltd was a contract case but the principle stated by Lord McMillan at page 506 in my view applies equally in delict. The case involved an action of damages for breach of contract and negligence arising out of the printing of banknotes. A spectacular fraud by a Dutch criminal and others had been practised on the bank involving the printing of forged notes delivered to the dishonest parties in London. When discovered, it caused a run on the funds of the bank. The bank were criticised for honouring all of the forged notes between certain dates after the crime was discovered. Dealing with the civil consequences of this crime Lord McMillan said this:

"Where the sufferer from a breach ... finds himself in consequence of that breach placed in a position of embarrassment the measures which he may be driven to adopt in order to extricate himself ought not to be weighed in nice scales at the instance of the party whose breach ..... has occasioned the difficulty .... such criticism does not come well from those who have themselves created the emergency...."

[44 ] The rule has been much discussed in relation to medical treatment but has also been looked at in claims for loss of earnings when alternative employment has been sought. There are a number of differing cases discussed in Chapter 6 of Kemp and Kemp (loc cit). The basic principle remains what could a pursuer reasonably do to mitigate his losses. It also has to be remembered that if the injuries are permanent they will always result in him being at a disadvantage on the job market whatever steps he takes. In a case where the plaintiff (aged 59) had declined to do a less attractive job, (Melia v Key Terrain Ltd), Sachs, L.J. said this in relation to mitigation of damages ".... a claimant .... is not to be unduly pressed at the instance of the tort-feaser ...". He went on to adopt Lord McMillan's test quoted supra. He added that a claimant is not normally called upon to change his way of life to one which is distasteful to him in order to save the wrongdoer small sums of money in percentage figures. I propose to adopt and follow what was said in Melia. The pursuer has been badly injured at his employment with the defenders. No doubt in an ideal world, in a different area with a younger man a pursuer might have found more profitable work. That is not this case. The pursuer is older. It is a rural area and work is not plentiful. In these circumstances when weighed in the scales the pursuer has not been found wanting. He has not chosen willingly to "retire" as the defenders put it. His choice of work is in my view entirely reasonable. Accordingly on the mitigation point the defender's case not only fails on the facts but also in law.

[45 ] The pursuer is thus entitled to recover damages and suffer no diminution for any contributory negligence. I was asked by both parties not to make any precise interest calculations as there had been an interim payment. I agree with the suggestion that the case with the draft judgement should be put out By Order for a final hearing because of all these matters. That will be done. I trust and hope interest figures will be agreed.

[46 ] What then is the case worth. As far as solatium is concerned, I value that in round figures at £24,000. This was and is a severely disabling injury with continuing disability. I need not repeat the details of it. I attribute one half of that award to the past and it should have interest at 4% to the date of the proof. That is a figure of £1,680. I should note that some of the cases put before me by the defenders only referred to wrist injuries and I did not find them helpful.

[47 ] As to past wages loss, I have held that the pursuer would on the balance of probabilities have secured work as a welder soon after redundancy and that in the circumstances he now reasonably works at his garage job which produces a much smaller wage. He is accordingly entitled to recover from the date of the accident to the proof a period of about 46 months. I am going to take the agreed figure of £215 as a weekly rate (Joint Minute Para.1(1)) rather than the suggested rate of £229. That produces a figure of 46 months x a rough monthly salary of £860, a total of £39,560 less his actual wages received to that date £10,800 (See Joint Minute plus two extra months). That produces a figure of £28,760 which I will reduce to £26,000 to take account of the fact that he may have had to wait after redundancy before securing welding work and may not in the interim have taken on any other work. That sum will bear interest to the date of the proof. The figure is £3,966.

[48 ] I have held that the pursuer will continue to lose wages for the future appropriate to the job of a welder until he is 65. The agreed multiplier is 9 and the agreed figure for wages loss less actual annual wage is £7,771.00 giving a figure of £69,939.

[49 ] Past services are agreed at £620 inclusive of interest to the date of proof.

[50 ] Future services are agreed at £2,500. All that remains is to consider pension loss. Mr Pollock has produced two separate figures upon somewhat complex calculations. These reflect a current loss of S2P Pension rights and a loss of employer contribution. As I have stated I consider he is behaving reasonably in doing his present job which has no occupational pension. Even if he got a better paid job (e.g. car park attendant) there is no evidence that such would produce any occupational pension. The defenders made suggested figures from nil to a lesser figure in Mr Pollock's report.

[51 ] I want to look now at the case of Callaghan v Southern General Hospital NHS Trust, a case involving a back injury to a nurse. Before me the case was referred to as an example of how to quantify a pension loss. I agree that it is only an example. On an agreed pension loss of £23,000 the Lord Ordinary discounted by almost 70%. He gave no reason for selecting this figure other than the possibility that the pursuer would return to some form of pensionable work and that he had to take a "broad axe" approach. (It is worth noting in that case that even the pursuer's counsel was suggesting 50% discount on future wage loss. The blade of the axe was indeed very broad!).

[52 ] I have to treat this as a jury question and wield a broad axe. Mr Brodie was, I think, correct when he said that none of the fellow employees who were re-employed as welders said they had an occupational pension or what was their employer's contribution to such. I will, upon a somewhat arbitrary basis, make an award for loss of pension of £8,000.

[53 ] By my arithmetic the addition of these sums is £136,705

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Graham v. Richard Lawson Autologistics Ltd [2006] ScotCS CSOH_89 (06 June 2006) URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSOH_89.html Cite as: [2006] ScotCS CSOH_89, [2006] CSOH 89

Scottish Court of Session Decisions