Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION

[2014] CSOH 171

PD49/14

OPINION OF LORD GLENNIE

In the cause

DEREK SMITH

Pursuer;

against

MUIR CONSTRUCTION LTD

Defenders:

Pursuer:  MacMillan;  Thompsons

Defender:  Moll; Simpson & Marwick

28 November 2014

[Note:   This is a corrected version of an ex tempore judgment delivered on 31 October 2014]

[1]        The pursuer is a joiner.  At all relevant times he was employed by the defenders.  He was injured in an accident at work on the 6 June 2012.  He was concussed.  He suffered a head injury which is classified as moderate head injury on the three-point scale of mild, moderate and severe.  He also broke his left wrist.  In addition, he was badly bruised on his right cheek, lost a front tooth and suffered a laceration under his chin which will result in permanent scarring. 

[2]        He sues his employers, the defenders, for damages alleging common law negligence and breaches of various Workplace Regulations. 

[3]        The accident happened when no one else was present.  Mr Steve Stuart, another joiner who was working with the pursuer, was out of sight, though he heard the crash and came to his help within seconds.  No one else was around.  A feature of the pursuer’s head injury is that he suffered, and continues to suffer, from pre- and post-traumatic amnesia.  In particular, he has no recollection of events during a period of about 36 hours prior to the accident and no recollection of the accident itself.  Since the pursuer himself has no memory of how the accident happened, or of anything occurring either that day or the previous day, there is no direct evidence of what took place. 

[4]        Mr Moll, who appeared for the defenders, submitted that in those circumstances the pursuer could prove neither the mechanism of the accident nor its cause and that therefore his claim must fail.  He reminded me that it was for the pursuer to prove his case on balance of probabilities.  While the court could draw inferences from the evidence laid before it, it could not speculate in the absence of evidence.  In this case the evidence was simply insufficient to enable the Court to draw any inferences as to mechanism or cause. 

[5]        I agree with that approach but disagree with the conclusion.  I accept, of course, that it is for the pursuer to prove his case on balance of probabilities.  He must prove, to that standard, both what happened (the mechanism), how it happened (the cause), and, insofar as not already covered by those, that what happened resulted from the actionable fault on the part of the defenders.  Or, if he can only show a range of possible mechanisms but cannot narrow it down to one, then he must show in relation to each, both the cause and the defender’s actionable fault. 

[6]        I accept too that there is little in the way of direct evidence.  Despite that, however, I think it possible to piece together with some confidence what probably happened and how it happened. 

[7]        My findings on the circumstances of the accident are based primarily upon the evidence given by the pursuer and Mr Stuart, supplemented by that of other witnesses and in particular by medical evidence called by the pursuer.  No issues of credibility arise.  None of the witnesses were cross-examined on the basis that they were not endeavouring to tell the truth.  Nor were there any clearly focussed issues of recollection.  In so far as the witnesses were able to speak about the relevant matters at all, there was in general no reason to doubt the accuracy of their recollections.  But I should just say a word about the two principal witnesses as to the events surrounding the accident, namely the pursuer himself and Mr Stuart.  They were both very experienced in the trade.  They had worked together for many years.  Both were impressive witnesses.  The pursuer gave evidence clearly and calmly, without any attempt at exaggeration.  He tended, if anything, to underplay the effect of his injuries.  Mr Stuart too gave evidence in a down-to-earth manner and without exaggeration.  Although he clearly found company policy about the issuing of door handles difficult to understand - an issue to which I shall return later - he was not exaggerated in his criticisms.  I accept them both as reliable witnesses. 

[8]        The pursuer and Mr Stuart were employed by the defenders on a construction site at the former St Bernard’s school in Stockbridge, Edinburgh.  The job involved the conversion of the old school building into residential units and the new build of garages, flats and a three storey townhouse.  The pursuer and Mr Stuart were working on the townhouse.  This was a timber framed construction which they had been involved in putting up.  They had moved on from erection of the structure to the stage of “roughing out” the interior - including fixing plasterboard to walls and ceilings and laying the woodchip under floor - starting at the top floor and working down the building.  At the time of the accident they were working on the ground floor, the first and second floors having been made wind and watertight and finished to the” roughing out” or “first fix” stage. 

[9]        There was scaffolding on the outside of the building.  Until shortly before the accident there had also been scaffolding within the building, with a ladder to provide access from the ground floor to the first floor (and possibly from the first floor to the second).  This internal scaffolding had been removed in order to clear the ground floor area and allow the chipboard floor to be laid.  For some reason the ladder was not removed with the rest of the scaffolding.  It was left lying within the building on the ground floor.  So Mr Stuart pushed it up to the first floor, through the opening which was to be the stairwell when the stairs were put in.  He did that simply to get it out of the way, not so as to make it available as a means of access to the first floor.  The work of laying the floor could not be carried out otherwise.  The ladder would have been in the way.  He left it lying horizontally on the first floor, with the end of the ladder protruding over the stairwell opening; and with a substantial piece of plastic attached to the rung at the end of the ladder protruding over the opening, so as to provide a means of reaching it from the ground floor and pulling it down as and if necessary.  Although Mr Stuart did not put it there in order for it to be used for access to the first floor, the fact was that it could be used for access should the need arise. 

[10]      I should mention that there was some uncertainty as to whether that ladder was the same ladder as had been previously incorporated within the internal scaffolding.  On balance I agree with Mr Rowe, the project manager, that it probably was the same one, but nothing turns on this. 

[11]      While they were both working on the ground floor, Mr Stuart was engaged on work to the ceiling while the pursuer was laying the chipboard floor.  In order to get the flooring to fit properly under or close to the French doors to the exterior of the building, the pursuer required to open the French doors.  To do this he needed to get the door or window handle (“the handle”).  He and Mr Stuart had been issued with one handle capable of opening most of the doors and windows - they were given a separate handle for opening another type of door or window with a different lock - and they had last used it when working on the first floor of the house.  They had left it there when they had finished working on that floor. The pursuer decided to go up the ladder to get it.  He shouted to Mr Stuart that that was what he was going to do.  Mr Stuart was working in another part of the ground floor, within earshot but out of sight.  Shortly after the pursuer had told him that he was going to go upstairs to get the handle, Mr Stuart heard a crash.  He ran through to find the pursuer lying face down under the stairwell opening with the ladder beside him.  He was badly injured in the manner indicated.  There was blood on the floor.  Mr Stuart got help and the pursuer was taken to hospital in an ambulance. 

[12]      Precisely what happened is, at first glance, something of a mystery.  The pursuer avers on record that he has no memory of how the accident happened and that it was “most likely” that he either fell off the ladder or that the ladder struck him as he pulled it down from the floor above.  No other possible explanation is mentioned in the pleadings by either party.  In the course of his submissions at the end of the proof, Mr MacMillan, who appeared for the pursuer, opted for the former explanation and disclaimed reliance upon the possibility that the ladder struck the pursuer as it was pulled down.  Mr Moll, for the defenders, submitted that there were a number of other possibilities.  The pursuer might have climbed the ladder, got to the first floor and then fallen in a manner unconnected with the ladder.  Or he may simply have fallen from standing at ground level, possibly because he tripped or slipped while pulling the ladder down from the first floor.  In addition, he submitted that the pursuer’s case should be judged by the weaker alternative, i.e. the one disclaimed by Mr MacMillan.  I did not understand this last submission which while possibly relevant to a debate on relevancy on the procedure roll, is inapposite at this stage where evidence has been led at proof.  As to the other explanations canvassed by Mr Moll, it seems to me that they are vulnerable to the same criticism that Mr Moll himself sought to advance.  Namely that they depend to a large extent on speculation. 

[13]      It is, of course, possible that the pursuer was struck by the ladder as he pulled it down by the piece of plastic attached to it or that he fell over as a result of tripping or slipping while pulling the ladder down and that he landed face down on the floor with the ladder beside him.  It is also possible that having gained the first floor the pursuer simply lost his balance or tripped and fell down through the opening, dislodging the ladder as he fell, and landing again face down on the floor with the ladder beside him.  But I do not regard these as the most probable mechanisms of the accident.  There was no mark on the pursuer to suggest that he had been struck by the ladder.  Further, his injuries were such that it was unlikely, though possible, that they were sustained by him falling forwards from a standing position as opposed to falling from height. 

[14]      None of these possible alternative mechanisms can be discounted altogether.  But, as I have said, I do not regard them as probable.  In my view the evidence points clearly to a more simple explanation consistent with that adopted by Mr MacMillan in his final submissions.  There is direct evidence that the pursuer said that he was going to go up the ladder to get the handle.  There is direct evidence that it was shortly after this that Mr Stuart heard the crash and came running to find the pursuer lying face down on the floor.  There is direct evidence that the pursuer was immediately under the stairwell opening.  And there is direct evidence that the ladder was lying beside him.  Clearly, therefore, having indicated that he was going to go up the ladder, the pursuer got at least some of the way there.  He clearly got as far as pulling the ladder down.  So the incident involved the ladder and an intention to climb it.  Without more, as Mr Moll submitted, it is not possible to say whether he had begun to climb the ladder.  But then there is the medical evidence from Dr Mumford and Professor McQueen which, both because of the comminuted nature of the wrist fracture and the pre-traumatic amnesia, suggested that the injuries were more likely to have been sustained as a result of a fall from height.  They could not rule out a fall from a standing position at ground floor level but the more probable explanation, according to their evidence, is that the pursuer had at least begun to climb the ladder before he fell.  For that reason, I do not accept the theory that he fell from standing, whether because he was hit by the ladder or tripped or slipped while pulling it or for some other reason.  He had gone at least some way up the ladder.  It is possible, I suppose, that he had reached the first floor and stepped off the ladder onto the first floor before slipping, tripping, losing his balance or suffering some other problem which made him fall back down through the opening onto the floor knocking the ladder as he went.  But no evidence was led as to any reason why he might have tripped or slipped on the first floor, and if he had tripped on the top of the ladder protruding from the open stairwell, then that would not assist the defenders in their attempts to avoid liability.  There was evidence from Mr Roe, the project manager, that a new chipboard floor was “slidy” and that a metal ladder on a slidy floor like this was not safe.  Faced with the alternatives of, on the one hand, an explanation involving the pursuer successfully climbing the ladder and then, for no apparent reason, falling down from the first floor through the open and unprotected stairwell, and, on the other, an explanation involving the ladder slipping on a slidy new floor while he was attempting to climb it, I unhesitatingly prefer the latter. 

[16]      On balance of probabilities, therefore, I find that the pursuer fell when climbing the ladder to the first floor, and that the cause of this fall was probably that the ladder, being unsecured and placed on the new slidy chipboard floor, simply slipped. 

[17]      That is my finding against which I turn to consider the question of liability. 

[18]      Mr MacMillan advanced a common law case of negligence based on the system put in place on the site for the distribution of handles for the windows and doors.  The evidence was that the site manager, Mr Ian Martin, had authorised the release to the pursuer and Mr Stuart of only one handle per type of window or door.  Accordingly, instead of fitting handles to each of the doors and windows as they installed them through the building, they installed the doors and windows without handles and simply had the one handle to use if they wished to open or close them.  It was in these circumstances that when the pursuer wished to open the ground floor French doors he decided to go up the ladder to get the handle which he had inadvertently left on the first floor.  Mr MacMillan suggested that there was something inherently risky or dangerous in this system in that it required the joiners (and no doubt others who were subjected to the same regime) to move around the site more often than should have been necessary to locate the one handle which they had been allocated in order to use it in different parts of the building.  I do not agree.  There was nothing inherently risky or dangerous about that system.  It might have been inconvenient and time-consuming - possibly more inconvenient and time-consuming than the alternative of getting the joiners to fit the handles to the doors and windows when they installed them - but not dangerous.  I see no reason why a risk assessment should have been undertaken before deciding to use this system.  I also reject the suggestion that it required the joiners to move around the site more often and therefore expose themselves to the risks inherent in such movement.  The reason why the pursuer decided that he had to go to get the handle from the first floor was simply that he had left it there when he had finished working on that floor.  It was not a necessary feature of the system that that should be the case.  That is not to say that there was any particular blame to be attached to the pursuer for leaving the handle there.  It is simply something which he did for his own reasons.  He was not compelled to do it. 

[19]      Though I reject the common law case based upon criticism of the system for allocation of handles, it does have some relevance, for two reasons.  First, it provided the immediate context in which the pursuer made the decision to go up to the first floor to retrieve the one handle that he had.  Had the system been different the French doors would have had a handle fitted already and he would not have found it necessary to go anywhere or get anything in order to open them.  Secondly, the evidence of the pursuer and of Mr Stuart satisfied me that the system instigated by Mr Martin was intended to be fairly rigid.  They both said, and I accept their evidence on this point, that they raised with Mr Martin the question of being given more handles on more than one occasion but were told that that was the system he was using and they should just get on with it.  That is not to say that if they had approached Mr Martin, or Mr Roe when he took over from Mr Martin, if they had had a particular difficulty, having mislaid their only handle or having left it somewhere inaccessible, that they would not have been allowed to take another one if they had signed for it.  But the impression they were given was that they were meant to complete the job using only the handle they had signed for.  This is relevant to the criticism made of the pursuer by Mr Moll, when he suggested that rather than go up the ladder to get a handle the pursuer ought to have gone to the office to ask for another one.  I regard that criticism as unjustified.  Quite apart from the fact that this would have involved a trip of one or two hundred metres and back on each occasion, the pursuer was entitled, in my view, to assume that when he got there and asked for another handle because he had left his on the first floor he would have got a fairly dusty answer.  The pursuer was entitled to think that the obvious thing to do was to go up the ladder to retrieve the handle he had left there. 

[20]      The statutory case advanced by Mr MacMillan on behalf of the pursuer is, to my mind, much more substantial.  He relied upon The Work at Height Regulations 2005, regulation 2(1) (for the definition of “work at height”), regulations 4, 6, 7 and 8 (particularly 8(e)) and Schedules 1 and 6; The Construction (Design and Management) Regulations 2007, (“the Construction Regulations”), regulations 25 and 26; The Provision and Use of Work Equipment Regulations 1998 (“PUWER”), regulations 1, 4, 8, 9 and 20; and The Management of Health and Safety at Work Regulations 1999 (“the Management Regulations”), regulation 3.  He also referred me to the analysis of the various regulations in Robb v Salamis (M&I) Ltd 2007 SC (HL) 71 at paragraphs 23, 25, 26, and 36.  It is not necessary to set out the detailed provisions relied upon.  They overlap to a considerable extent.  In brief, and without any attempt of precise analysis, they have this effect so far as concerns the issues in the present case.  Regulation 3 of the Management Regulations requires a risk assessment to be carried out of the risks of health and safety to which employees are exposed while at work.  PUWER (i.e. Provision and Use of Work Equipment Regulations 1998) require that any work equipment to be used, and that includes a ladder in use at work, requires to be suitable for its purpose and to be stable when that is necessary for the purpose of health and safety.  It also requires that the employer shall ensure that all persons using such work equipment should have information and instruction as to its use or non-use.  The Construction Regulations require there to be suitable and safe access to and from every place of work and to and from every other place provided for the use of a person whilst at work, and that every place at work shall, so far as reasonably practicable, be made and kept safe for any person working there.  And, finally, the Work at Height Regulations, which cover work at any level where a person could fall a distance liable to cause personal injury, require work at height to be properly supervised and carried out in a manner which is safe, so far as reasonably practicable; require measures to be taken in accordance with a risk assessment conducted under the Management Regulations, including in relation to means of access, require means of access to be stable and to possess suitable and sufficient means for preventing a fall, and to be used, so far as reasonably practicable, to avoid the risk of slipping.  And there is a specific requirement that any surface on which a ladder rests must be suitable to support a ladder safely.  Put short, the regulations require that measures be taken to guard against known or foreseeable or identifiable risks.  In making an assessment of what is a foreseeable or identifiable risk, the employer must take account of the contingency of carelessness, as it is being called, without too narrow a focus on any one particular mechanism by which accidents may happen.  The employer must anticipate that it may not be possible to predict the precise ways in which situations of risk may arise, especially where the risk is created by carelessness.  The very fact that the employer is required to guard against unexpected carelessness means that he cannot simply do nothing and rely on the experience and good sense of his workforce.  He is required to guard them against their own mistakes. 

[21]      Mr MacMillan submitted that the regulations imposed liability on the defenders in the circumstances which I have found to be proved.  The pursuer and Mr Stuart were working on a three-storey building.  When they had completed one floor they moved down to the next.  But they were not told, either orally or in writing, that they were not to go back up to the floor above if they needed to for some reason, whether to fetch the handle or because they had left some tools up there.  Once the scaffolding had been removed, the stairwell was left open and the ladder was placed on the first floor in such a way that it could be reached from the ground floor.  The ladder was placed by Mr Stuart, but there was dispute that the company was responsible for his actions.  The stairs were to be built after the floor had been laid and the walls and ceiling panelled.  During this “limbo period”, as Mr MacMillan described it, the only access to the first floor - or at least the most obvious access to the first floor - was by the ladder through the opening left of the stairwell.  The ladder may not have been put there for that purpose but there was nothing to say that it should not be used if necessary.  Indeed, Mr Roe saw the ladder in that position, either on the morning before the accident or the day before, and said nothing.  His evidence was that he remembered thinking: “why had they left the ladder up there?”  But he said nothing either to the pursuer or to Mr Stuart by way of advice or instruction to them about not using the ladder to access the first floor.  “Retrospectively”, he said, he understood why they needed to do that, that is to say to leave the ladder there, and was annoyed with himself for not having said anything.  But on his own evidence he thought that the ladder would have to be used for access at some stage, even if only to allow one of the joiners to get onto the first floor to help with the erection of the staircase; and he recognised that workmen, being human, make mistakes.  Specifically, he recognised that they might have left something on the floor above and have needed to get it.  Although he said in evidence they should not have gone up the ladder to obtain access, he did not make this clear to them.  In those circumstances the opening and the ladder should be regarded as part of the workplace and means of access from one level to another.  The existence of an unsecured ladder on a slippery floor as a means of access was a clear breach of the regulations. 

[22]      Mr Moll argued that the ladder had only been put up there to get it out of the way.  It was not intended for use to gain access to the first floor.  The defenders had provided no access to the first floor and there was no requirement or need on the part of the joiners to get access to it.  The first floor was effectively “out of bounds”.  The only reason the pursuer wanted to go there was that he had left the handle there, which was a matter for him.  If he had needed a handle he should have gone to the office.  It was not right to categorise the position as being one where access was provided by the ladder.  In reality the defenders had not allowed access at all for the period between the removal of the scaffolding and the installation of the staircase.  So there was no breach of the regulations and, even if there was, that breach had not caused the accident.  The accident was caused solely by the fault of the pursuer who had gone up the ladder for his own purposes on a frolic of his own. 

[23]      I reject that argument.  The risk of someone using the ladder to gain access to the first floor was clearly foreseeable, as was the risk of an unsecured ladder slipping.  Yet there was no evidence that any risk assessment had been carried out.  There was no attempt to prevent the ladder being used, either by removing it, blocking up the opening or issuing written or oral warnings or instructions.  The first floor remained part of the workplace, despite the work there being for a time complete, and the opening and the ladder provided a means of access from one level to another.  If it were the case that a part of the site used to be part of the workplace simply because no work was going on there at any particular moment and a door, ladder or other means of access ceased to be a means of access simply because there was no need to use it at any particular time, that would deprive the workforce of a large part of the protection intended to be given to them by the regulations.  If the defenders had not wanted access to be taken in this way they should have closed it off or, at least, since there were only two people working there, have given clear oral or written instructions to them that they were not to use it.  They did not do that.  It is not sufficient simply to rely upon the experience of the workforce to know not to do something.  That line of argument, if accepted, would emasculate the regulations. 

[24]      Accordingly, I find liability established. 

[25]      I should add that if, contrary to my findings, the mechanism of the accident was one of the other ways canvassed, that would still lead to a finding of liability.  If the pursuer was injured in pulling the ladder down whether because it hit him or because he tripped or slipped while doing so, that would be the result of an unsecured ladder being used for access.  If, on the other hand, he had reached the first floor and then fallen through an unguarded opening that would bring other aspects of the regulations into play.  But I need not go into those possibilities in any further detail.

[26]      The defenders raised a plea of contributory negligence.  Their averment on record so far as relevant to my findings as to the mechanism of the accident is that:

“It was his duty to take reasonable care of his own safety.  Esto he fell from the ladder, he had a duty to take reasonable care not to do so.” 

 

That is wholly unspecific.  In the course of the proof Mr Moll attempted to cross-examine the pursuer to suggest that he was at fault for not footing or otherwise securing the ladder.  I sustained an objection to that line on the basis that there was no record for it.  Even in Chapter 43 actions, fair notice has to be given.  After all the evidence had been led, Mr Moll sought leave to amend to introduce averments to that effect.  I refused this as coming too late.  None of the witnesses had been asked the relevant questions and the pursuer had no doubt prepared his case and been given advice on the basis of the pleadings as they stood.  I appreciate the difficulties faced by parties when there is no certainty as to what happened, but a contributory negligence case can easily be pled on an esto basis more specifically than was done here.

[27]      On the evidence there is no basis for a finding of contributory negligence.  The defender’s pleadings do not say what the pursuer should have done differently.  The pursuer was not warned not to use the ladder and there was no evidence that he was warned about the danger of using it.  Although Mr Roe acknowledged that a metal ladder on a new floor was unsafe, he gave no instruction that it was not to be used.  The pursuer needed a handle, and there was no reason for him to believe that his employers expected him to get another one from the store rather than from the first floor. 

[28]      I turn, finally, to deal with quantum.  Parties have helpfully agreed a large number of items.  They have agreed a figure for past loss of income and interest thereon, for past section 8 and 9 services for the first eight weeks after the accident, for miscellaneous costs and loss of enjoyment of holiday, together with interest thereon, and for dental costs and interest on that.  That leaves two heads of claim unresolved. 

[29]      The first matter is solatium.  As I have said at the beginning, the pursuer suffered a moderate head injury together with an injury to his cheek, a comminuted fracture of his left wrist, the loss of a front tooth and laceration under his chin which has resulted in permanent scarring and is sometimes painful, for example when shaving. 

[30]      I was helpfully provided with the relevant JSC Guidelines and with some reported cases.  To my mind the Guidelines provide the best guidance on these matters, each reported case being so fact specific that it is difficult to use them as more than a cross-check on the figure arrived at by reference to the Guidelines. 

[31]      Dealing first with the head injury, it was agreed that this was to be classified as moderate as opposed to either mild or severe.  It may be, as Mr Moll argued, that it was only brought into the moderate category (as opposed to mild) by reason of the period of pre-traumatic amnesia; but, be that as it may, it seems to me right to treat it as moderate.  The pursuer has made a good recovery and is able to take part in normal social life and to return to work.  He occasionally suffers a recurrence of headaches to which he was prone as a child.  And his wife described him as not yet being the man he was before the accident, though it is anticipated he will continue to improve.  There is a small, perhaps very small, increase in the chances of epilepsy but this will fall away to nothing within a few years.  In those circumstances it seems to me that Mr MacMillan is correct in taking a figure somewhere below the midpoint in a range given by the Guidelines.  The appropriate figure here in principle is £15,000.  With respect to his careful arguments I regard Mr Moll’s suggestion of £4,000 for this injury as wholly unrealistic. 

[32]      The injury to the pursuer’s wrist was agreed to fall within paragraph JSC7(H)(c) of the Guidelines, which covers “less severe injuries where they still result in some permanent disability as, for example, a degree of persisting pain and stiffness”.  The evidence was that there was still a restriction on extension of the wrist though an earlier restriction on flection has now disappeared.  More importantly, the pursuer feels pain in the wrist, particularly when engaged on heavy lifting.  Although the pursuer is a joiner and not a labourer, his work involves moving and holding heavy loads such as plasterboard, having to carry it to the particular installation site and manoeuvring it into position in order to fix it.  He has learned to adapt his technique to enable him to do this but it still causes pain.  In those circumstances I am satisfied that I should award more than the £10,000 proposed by Mr Moll.  I agree with Mr MacMillan that the appropriate figure is £15,000, which is just above the midway point suggested for this category of wrist injury. 

[33]      Had they stood alone I would have been prepared to award some damages by way of solatium for the loss of the tooth and the scarring to which I have referred.  An appropriate figure for each would have been in the region of £2,000. 

[34]      If I were to add all those figures together I would come to a figure of solatium of £34,000.  The four categories of injury are, to some extent, quite distinct and I would be justified in taking that approach.  However, the matter has to be assessed in the round and it is possible to regard the loss of the front tooth and the scarring on the neck, together with the injury to the cheek, as part and parcel of the damage to the head.  In my judgment the proper figure to take is a figure of solatium, having regard to all the various injuries to which I’ve referred, is £30,000. 

[35]      The other head of claim is for loss of employability.  This is more difficult.  The possibility of such a claim is well established: see Smith v Manchester Corporation (1974) 17 KIR 1 and Paterson v Paterson 2013 Rep LR 14 per Lord Woolman at paragraph [32] onwards.  Lord Woolman identifies three relevant questions: what is the likelihood of the pursuer finding himself on the labour market before the end of his working life?  When is that risk likely to materialise?  And what are his chances of obtaining a job if that occurs (would he be at a disadvantage compared with an able-bodied contemporary)? 

[36]      Dealing with each of these in turn I’ve come to the following conclusions.  As to the first question I agree with Lord Woolman that before an award can be made there must be a “substantial” or “real” risk that the claimant will lose his job.  I have no doubt that the pursuer will be well treated by the defenders.  He has worked with them for a very long time and is clearly well regarded.  He has been told, informally, that he is in line for promotion to a job as Foreman which will involve light work, or lighter work, of a supervisory nature and, one assumes, an increase in pay.  The problem is not to do with the attitude of the company but to do with the nature of the business.  It is common knowledge that during the economic and financial crisis of the last few years a number of construction companies have either gone out of business or cut down their workforce.  Without knowing anything about the defenders, and therefore without making any adverse comment about the defenders ability to cope with the difficult economic climate, the nature of their business must mean that there is a real, albeit slight, risk that the pursuer will lose his job with them.  At any rate the risk is not merely speculative or fanciful. 

[37]      The second question is almost impossible to answer.  Given the present state of the economy it may well be that the risk is unlikely to occur in the near future so the contemplation must be that if the risk does materialise it is likely to materialise some years hence. 

[38]      The third question looks to see what disadvantage the pursuer would be at in obtaining a new job if he was on the labour market at that time, i.e. some years hence.  By that time it is expected that he will be a Foreman with the defenders.  That does not mean, however, that he would automatically be taken on as a Foreman with new employers.  It is difficult to predict where vacancies will arise, but it must be reasonably likely that he might have to apply for work as a joiner, for which he is well-equipped.  If he was applying to be taken on as a joiner then he would be exposed to the pain in his wrist which he is now suffering.  He would be at a disadvantage compared with a different joiner of similar skills but without a wrist injury. 

[39]      In those circumstances I consider that an award under this head is justified.  Mr MacMillan invited me to make an award of £26,000 which is, in effect, one year’s net income based on the pursuer’s present earnings.  As a matter of methodology this is, I suppose, as good a way as any of assessing the potential loss, in that it assumes that the pursuer might enjoy a period when he was not employed because of his disadvantage.  But I do not regard it as the only way of arriving at the appropriate figure.  An alternative approach is to assume that he obtains employment on a piece rate and, because of his injury, he is able to work less rapidly than others, thereby losing a relatively small amount each week.  However one approaches the question, it is not a precise science and any calculation is likely to lead to a spurious pretence at certainty.  Having regard to the evidence, I consider that an award of £26,000 would be too high.  In my judgment, the appropriate award under this head is £10,000. 

[40]      In consequence of my decision on solatium and on the loss of employability, and having regard to the other agreed figures, I propose to make an award in favour of the pursuer of £45,344.  Counsel will no doubt be able to tell me if I have miscalculated. 

 

[After discussion about quantum, expenses and certification]

 

[41]      I shall grant decree in favour of the pursuer in the sum of £45,344.  I shall award the pursuer the expenses of the action.  I shall certify Professor McQueen and Dr Mumford as expert witnesses.  I am grateful to counsel for their assistance.