Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] 25
PD2401/09	OPINION OF LORD TYRE in the cause ELIZABETH MCLACHLAN Pursuer; against EARLY LEARNING CENTRE LIMITED Defender: __________

Pursuer: L. Milligan; Digby Brown LLP

Defender: Cowan, Solicitor Advocate; Simpson & Marwick

3 February 2011

Introduction
[1] On 20 October 2007, the pursuer sustained injury in an accident at work while employed by the defenders as a senior sales assistant at their retail premises at Parkhead Forge, Glasgow. The pursuer fell from a ladder while attempting to retrieve a box from a high shelf in the stockroom of the premises. The defenders admit liability to make reparation to the pursuer in respect of their breach of regulation 6(2) of the Work at Height Regulations 2005. The issues at proof were, firstly, whether the pursuer was contributorily negligent and, if so, to what extent; and, secondly, quantification of damages.

Circumstances of the accident
[2] On the day of her accident (which was a Saturday), the pursuer was working at the defenders' shop premises along with two other employees, namely Elizabeth Stewart and Alana McLaughlan. The store manager, Mary Jane Short, was not at work that day and the pursuer was the senior employee on duty. A customer was considering purchasing a toy tractor and wished to see the size of the box in which it was sold in order to ascertain whether it would fit into her car. The box was stored on the top shelf of racking in a stock room. Alana McLaughlan, who was aged 17 at the time of the accident and who gave her height as 5ft 1in, climbed an A- frame ladder set beside the shelving but found that she could not reach the box because it was sitting towards the rear of the shelf. Miss McLaughlan frankly accepted that she did not try very hard to reach the box as she did not think it likely that the customer would buy the toy. Instead she went back to the retail area and reported to the pursuer, who was of a similar height to herself, that she could not reach the box. The pursuer went to the stock room, accompanied by Miss McLaughlan. The pursuer climbed the ladder, which she estimated to be approximately 12 feet in height. According to her account, the top shelf was about 14 or 15 feet from floor level. She climbed to the second top step of the ladder but realised that she could not reach the box. She decided to turn the ladder to approach the box from a different angle and had started to descend the ladder when it collapsed beneath her. The next thing she knew she was lying on the ground with the ladder underneath her.

[3] Miss McLaughlan gave a rather different account of the accident. According to her recollection, the pursuer climbed to the top of the ladder. She then placed her right foot on the shelf containing the box while leaving her left foot on the top step of the ladder. Miss McLaughlan warned the pursuer that this was not safe and that she was going to fall. At that point the ladder began to shake and the pursuer fell. Miss McLaughlan screamed and closed her eyes. When she opened them again the pursuer was lying on the floor. Miss McLaughlan sought assistance from the other member of staff present, Mrs Stewart. Having ascertained that the pursuer did not wish her to call for an ambulance, Mrs Stewart (who gave her height as 4ft 10ins) returned to the shop floor to attend to the customer. Mrs Stewart in turn went up a ladder and retrieved the box without incident. In the meantime, the pursuer went to the staff room and called her manager, Miss Short, to report the accident. Having sought and obtained instructions to pass the keys of the shop to Mrs Stewart, the pursuer telephoned her husband to ask him to come and collect her, which he did. She reported for work on Monday as normal and provided Miss Short with details of the accident which were recorded in the defenders' accident records.

[4] There was conflicting evidence regarding the availability of ladders within the premises and also the characteristics of the ladder which the pursuer was using when she fell. The pursuer stated that there were two ladders available: one long, one short. The long one, which she was using, was an A-frame ladder with no handrail. After the accident the pursuer noticed that the legs of the ladder were splayed and could not be shut neatly as had been possible before. The splaying might have been the consequence of her landing on the ladder when she fell. It was removed from use and replaced by a new ladder about a week later. Miss Short, however, stated that there were three ladders available for use at the time of the accident: two long, one short. The pursuer used one of the long ladders, which was an A-frame ladder with a handrail. The damage caused to the ladder by the accident consisted of an indentation in one of the handrails which Miss Short assumed had resulted from the pursuer landing on it. She confirmed that this ladder had been disposed of and replaced. The other long ladder, which had no handrail, was still at the premises. Mrs Stewart similarly stated that there were two long ladders and one short ladder available at the material time. The ladder which she used to retrieve the box after the pursuer had fallen was probably the longest of the three but she could not remember whether it was the same one as had been used by the pursuer. Mrs Stewart did not notice any damage to the ladder which she used.

[5] I do not find it easy to resolve these inconsistencies in the evidence; nor, ultimately, do I find it necessary to do so, as they are not crucial to the issue of contributory negligence. The presence or absence of a handrail was not a critical aspect of the pursuer's fall. What is more important is that there was no evidence from any witness to indicate that there may have been a latent defect in the ladder used by the pursuer which caused it to collapse. Even if I were to accept the pursuer's description of the damage to the ladder, it seems likely that it occurred as a result of her landing on the ladder as she fell. The pursuer herself gave evidence that equipment within the premises, including ladders, was inspected weekly. This was confirmed by Miss Short who stated that a check on the day before the accident had disclosed no defect. It therefore appears to me that the suggestion by counsel for the pursuer that the collapse of the ladder could be explained by the presence of a latent defect must be rejected.

[6] The pursuer had received training in manual handling techniques, including the safe use of ladders. She was aware of the need to maintain three points of contact which she regarded as common sense. During cross-examination she accepted that it would be unsafe to put a foot on the racking, but maintained that that was not something which she would normally do.

Discussion - contributory negligence

[7] Because liability for breach of statutory duty had been admitted by the defenders, there was little discussion at proof of the basis of that liability. It is worth recalling that the breach admitted by the defenders was of the duty imposed by regulation 6(2) of the Work at Height Regulations 2005 (SI 2005/735), which provides as follows:

"Every employer shall ensure that work is not carried out at height where it is reasonably practicable to carry out the work safely otherwise than at height."

It is therefore a matter of admission by the defenders that the pursuer ought not to have been required, in the course of her employment, to climb a ladder to a height from which she could fall to her injury. In my opinion, the extent, if any, of contributory negligence of the pursuer has to be assessed in this context. The pursuer was injured when attempting to retrieve a box from storage at height. I regard the defenders' admission of breach of regulation 6(2) as an acceptance that she should not have been placed in that situation. The fact that Mrs Stewart was able to retrieve the box without any problem does not, in my view, detract from the conclusion that both the pursuer and Mrs Stewart were being required to do something which they ought not to have had to do.

[8] Having said that, and in the absence of any evidence of latent defect of the ladder, it seems to me that the pursuer must have done something careless when attempting to retrieve the box from the racking. A non-defective A-frame ladder would not simply collapse without some unbalancing force having been applied to it. Such a force could be created if the pursuer, having placed part of her weight on the racking by putting one foot there, then attempted to transfer that part of her weight back to the ladder. The first indication of such imbalance would be that the ladder would begin to wobble. This, of course, is in accordance with Miss McLaughlan's description of the incident. In these circumstances, I accept Miss McLaughlan's account and in particular her evidence that the pursuer put one foot on the racking. I find that the pursuer fell when attempting to return the whole of her weight to the ladder prior to descending. The pursuer could not rule out the possibility that this is what she did and I find, on balance of probabilities, that this was the most likely cause of her fall.

[9] Counsel for the pursuer acknowledged that if I accepted Miss McLaughlan's evidence it would be difficult to argue that the pursuer had not been contributorily negligent. As an example of a case in which a pursuer was injured when acting in a manner contrary to his training, she referred me to Davidson v Lothian and Borders Fire Board 2003 SLT 363, in which a finding of 25% contributory negligence was not challenged on appeal (2003 SLT 939). Reference was also made to Brown v British Coal Corporation 1989 GWD 11-466. The solicitor advocate for the defenders submitted that this was not a case of momentary inattention but rather a deliberate act of admitted foolishness. Under reference to Neil v East Ayrshire Council 2005 Rep LR 18, he suggested that a reduction of 50% would be appropriate where, as here, a risk had been "consciously accepted by an employee" (Sherlock v Chester City Council [2004] EWCA Civ 201, Latham LJ at para 32, cited in Neil at para 32).

[10] In Neil, the pursuer was injured because he chose, with good intentions, to carry out a job using a ladder of inadequate length in preference to abandoning the job and coming back the following day with a longer ladder. He thus put himself in a position where he was in statutory breach. I consider that the present case is distinguishable. The statutory breach which led to the present pursuer's accident was caused by the height of the box above the ground and not by the method which the pursuer chose to employ in order to retrieve the box from the racking. I accept that the pursuer's actions constituted more than momentary inattention, but it should be noted that in some cases involving momentary inattention no reduction at all in damages has been made. In my opinion, having regard to the whole circumstances of the present case, a reduction of 25% in the damages to be awarded to the pursuer in respect of the defenders' breach of regulation 6(2) would be just and equitable. I readily accept that the accident occurred because the pursuer was carrying out the duties of her employment to the best of her ability (in contrast, perhaps, to the attitude demonstrated by Miss McLaughlan) but I do not consider that this should affect the amount of the reduction.

Quantification of damages

[11] As a consequence of her fall, the pursuer suffered soft tissue injuries to her lower back, right calf and left elbow. She attended the Accident and Emergency Department at Wishaw General Hospital where she received treatment in the form of painkillers and a muscle relaxant and was allowed home on the day of attendance. She returned to work as normal on Monday morning. The calf and elbow injuries resolved within a week or two with no continuing symptoms. The pain in her lower back, however, continued.

[12] At the time of the accident, the pursuer was 37 years old. She had a long history of back pain which she had first experienced when aged 11. She explained in her evidence that the pain came and went and was at a level which she learned to live with. Her medical records disclose only one occasion, in 1985, when she had sought treatment for backache. In addition, the records disclose three attendances by the pursuer in 2005, 2006 and 2007 respectively when she complained of neck pain. About a year before the accident the pursuer had taken up playing rugby. She enjoyed the exercise and thought that it had reduced her back pain. After the accident her back pain was severe for two weeks before reducing to a level which was materially higher than it had been before the accident. By about nine months after the accident her symptoms had reached a steady state which continued at the time of the proof. She has had to take painkillers on a more regular basis than previously. In the course of a month the pain will probably flare up three or four times to a level which it had not reached before the accident. She has also suffered referred pain in her right leg. During re-examination she described the difference pre- and post-accident as being between "getting on with it" on the one hand and "can't physically do it" on the other. She had attempted to return to rugby training, though not contact sport, but gave this up in accordance with what she understood (possibly incorrectly) to be the advice of a consultant (not one of the two consultants who gave evidence) who examined her in connection with the present proceedings. She cannot walk or drive as far as previously without having to stop due to back pain.

[13] Evidence was given at the proof by two eminent consultant orthopaedic surgeons: Mr Angus McLean, who had prepared a report for the pursuer, and Mr David Sherlock, who had prepared a report for the defenders. Having regard to the pursuer's pre-accident history of back pain, the consultants were agreed that she would never have become symptom-free after the accident. They were further agreed that, due to her ongoing degenerative mechanical pain, her symptoms would at some time have reached the level which she was experiencing at the time of the proof. There was, however, a sharp disagreement between the consultants as to when the pursuer's symptoms would have been likely to reach that level if the accident had not occurred. Mr McLean estimated that the accident had accelerated her symptomatology by around five years. In contrast, Mr Sherlock's view was that the pursuer's symptoms have been the same as if the accident had not occurred since July 2008, i.e. since about nine months after the accident. Both consultants acknowledged that their opinion was no more than an estimate but each maintained that his estimate was more likely to be in the correct area.

[14] Mr McLean's reasoning may be summarised as follows. The pursuer had had no increasing dependence on treatment by her general practitioner during the decade prior to the accident. She had no evolving condition. Back pain is not progressive; mechanical back pain tends to be intermittent. As one ages, the incidence of episodes of back pain is likely to increase due to degenerative changes. There was no indication that this was about to happen to the pursuer at the time of the accident, but it would probably have happened sooner or later. Five years was a reasonable mid-point of the timescale during which degenerative changes would have caused the pursuer's back pain to become more troublesome. It was well recognised that trauma could cause degenerative changes to become more painful. In this case the pursuer's subjective assessment of the difference in her pain level pre- and post- accident was significant and suggested that the increased incidence of pain which she had been experiencing was, at the time of the proof, still caused by the accident.

[15] Mr Sherlock observed that the pursuer was in the peak age range for developing mechanical neck and low back pain, particularly in view of her past history of such pain. Her previous neck pain was relevant because the neck is part of the spine. Mr Sherlock had asked the pursuer to assess her own pain at various times on a scale of 1 to 10. Before the accident her pain was 2/10. It increased to a maximum of 7 following the accident but had improved to between 4 and 5 by eight to nine months after the accident. During flare ups the pain reached 7. On the basis of this assessment, Mr Sherlock concluded that the pursuer's pain level had now stabilised at a level not significantly different from the pre-accident level and that any difference between the two levels during the period since the pain level stabilised nine months after the accident is attributable to degenerative changes which would have occurred regardless of the occurrence of the accident. It should also be noted that in her evidence the pursuer assessed her pain at the time of the proof as being 2 on normal days and 5 or 6 on days when the pain flared up.

[16] There is no doubt, in my view, that both consultants are well qualified to provide an expert opinion on the issue arising in this case. In order to quantify the pursuer's claim I have to decide whose opinion to prefer. I have not found this easy to do but I have reached the conclusion that I should prefer the opinion of Mr McLean. It respectfully seems to me that by attaching weight to the pursuer's assessment of her pain by reference to the pain scale, Mr Sherlock has understated the difference between her pre- and post- accident symptomatology. It is quite true, as was submitted on behalf of the defenders, that assessment of one's own pain is subjective and that it may sometimes be helpful to have regard to external indicators such as the frequency of GP surgery attendances. In this case, however, I accept that the pursuer is an individual who tolerates a relatively high level of pain without seeking treatment and I am therefore unable to hold that the infrequency of references to back pain in her post-accident medical records is an indication that her symptoms are not materially worse than before. It also appears to me that use of the pain scale may in this case have obscured rather than clarified the picture for the court. In her evidence to the court, which I accept, the pursuer was quite clear that throughout the period since the level stabilised her pain flares up more frequently and more severely than it ever did prior to the accident. I accept Mr McLean's opinion that such a deterioration in the condition of her back, on such a timescale, is more likely to have been caused by trauma than by degenerative change. Having for these reasons chosen not to accept Mr Sherlock's view that the pursuer's symptoms since July 2008 have been those which would have ensued in any case due to degenerative changes, I see no reason to reject Mr McLean's estimate of five years as a mid-point of the period during which such changes would in any event have resulted in the pursuer's current symptomatology.

[17] In the light of these findings, I assess quantum as follows.

Solatium

[18] Both parties referred to the English Judicial Studies Board Guidelines and suggested that if Mr McLean's opinion were preferred the award should be within the range £5,000 to £8,750 for category (ii) of "moderate" back injuries. I was also referred to Urquhart v Fife Primary Care NHS Trust 2007 SCLR 317. The present case is, like Urquhart, a case where an injury has remained symptomatic but where symptoms would in any event have emerged by about five years after the injury. The two cases appear to be broadly similar in severity and I consider that an appropriate figure for solatium is £8,000. Interest on two-thirds of that sum at 4% per annum to date is approximately £700.

Services

[19] In the circumstances of the case, no distinction requires to be drawn between claims under sections 8 and 9 of the Administration of Justice Act 1982. The pursuer has two daughters who were aged 13 and 11 respectively at the time of the accident. As a consequence of the accident both have performed, and continue to perform, household services to a greater degree than would have been the case if the pursuer had not sustained injury. These services, which include dishwashing, laundry and shopping, were at first largely performed by the pursuer's elder daughter, Samantha, who gave evidence, and now to some extent by both daughters. The pursuer estimated their contribution as amounting on average to an additional two hours per week each. Samantha stated that during the first six months after the accident she had to stay in every evening to assist her mother. No claim was made for services performed by the pursuer's husband, who is himself disabled. Counsel for the pursuer submitted that the pursuer's own estimate of four hours per week was unduly low for the period following the accident when she was in greatest pain. I am inclined to agree but I also consider that it is reasonable to proceed upon an assumption that the contribution of each daughter to routine household chores would in any event have increased as they progressed through their teens. I assess damages on the basis that services were performed by the pursuer's daughters for 10 hours per week during the six months following the accident and that thereafter services for an additional two hours per week were performed. I accept the proposal by counsel for the pursuer to quantify services at £5.00 per hour. That produces a figure for past services of £2,730 plus interest (on £1,300 at 8% from a mid point of January 2008, plus £1,430 at 4% from April 2008) amounting to around £470, i.e. £3,200 in total. For future services I allow two hours per week for the remainder of the five-year period since the date of the accident, amounting to approximately £900.

Loss of employability

[20] The pursuer also claimed a lump sum for loss of employability. At the time of the proof she was no longer employed by the defenders but was working as a senior sales assistant in a stationery shop in Larkhall. Her change of employment was unrelated to the accident. Her present employer is accommodating regarding any difficulties which she may have in performing her duties due to back pain. She has never had to take any time off work due to back pain and has no plan to change her employment. Her job security might, however, be affected if one of the major supermarket chains were to move into the area and take business away from her employer. At least one of these has planning permission. It does not, however, appear probable that any such competitor will be operating in the area within the five-year period following the pursuer's accident, and accordingly I do not consider that there is any convincing evidence that her employability will be affected during the period for which additional back pain caused by the accident is likely to persist. I therefore reject the claim for damages for loss of employability.

Total

[21] For these reasons I assess the total value of the claim at £12,800. The balance after deduction of 25% in respect of the pursuer's contributory negligence is £9,600. I shall grant decree for payment by the defenders to the pursuer of the latter sum.