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Cite as: [1999] ScotCS 199

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OUTER HOUSE, COURT OF SESSION

0/1200/5/97

OPINION OF LORD REED

in the cause

WILLIAM WILSON

Pursuer;

against

PYEROY LIMITED

Defenders:

________________

Pursuer: Cullen, Q.C., Haldane; Digby Brown

Defenders: R. N. Thomson; Simpson & Marwick, W.S.

20 August 1999

On 7 February 1995 the pursuer fell from a height and suffered a serious head injury while working on scaffolding at H. M. Royal Dockyard, Rosyth. He was working at the time in the course of his employment with the defenders. In this action he seeks to recover damages from them. The case came before me for proof. Liability was admitted. The only issue was the assessment of damages.

I heard evidence from a small number of witnesses, all of whom I considered to be honest and generally reliable. Their evidence can be summarised as follows.

The evidence
The pursuer is a married man aged 48, his date of birth being 26 June 1951. He left school at 15 and worked for a firm of paper makers for about two years before joining a firm of food processors where he worked on the construction of buildings. He then joined the Army, serving in the Royal Engineers from 1970 to 1979. It was there that he first worked as a scaffolder. On leaving the Army he obtained a qualification as an advanced scaffolder, and worked in that capacity more or less continuously until the date of the accident. He also continued to serve in H. M. Forces as a reservist until about 1990. He worked principally on large projects, mostly concerning the maintenance of petrochemical plants. Examples of places where he had worked were Grangemouth, Mossmorran, Sullom Voe and Sizewell B. As is usual in his line of work, he moved from one employer to another, and from one part of the country to another, as one project ended and another began.

In December 1994 he had began employment with the defenders, who were the scaffolding sub-contractors on a project at Rosyth concerning the vessel Sir Bedivere. He joined the defenders because the turn of the year was a difficult time to get work, as very few companies take people on at that time (due to statutory holidays). The job with the defenders was intended to tide him over temporarily. The defenders were regarded as poor payers in the industry. There was a big difference between the pay offered by the defenders and the pay available on his usual contracts. On those contracts, pay was regulated by a national agreement, known as the "Blue Book", which covered basic rates of pay, overtime rates, weekend rates and holiday rates. The defenders did not apply the national agreement. He had expected to remain with the defenders until March 1995, when he was starting a contract at Mossmorran.

On the date of the accident the bow doors of the ship were in a dry dock and were to be shot-blasted. The pursuer and other scaffolders were erecting a containment from scaffolding around the doors, in order to confine the shot-blasting. The pursuer fell from the top of the containment when a scaffolding board, on which he was standing, cracked. He fell about 20 feet and hit the concrete surface on the ground. He was knocked unconscious. He was taken by ambulance to hospital in Dunfermline, and was then transferred to a hospital in Edinburgh, where he required intensive care. He suffered injuries to his head and face and to his right hand. He was detained in hospital for about one week. After his discharge from hospital, he underwent physiotherapy treatment on his hand as an out-patient for about six months. He also underwent out-patient treatment in connection with numbness of the right cheek due to nerve damage, and in connection with stiffness of his fingers. He was off work until December 1995. He had no memory of the accident. His first clear memory was from three days later.

In relation to the consequences of the accident upon his health and personal life, the pursuer stated that his head injury had caused a lot of migraine headaches, which he still suffered occasionally. He had a slight hearing difficulty in his left ear. If he was watching television he had to turn up the volume. This caused arguments with his wife. A lot of friction between them was also caused by his failure to hear her requests. At work, he had to ask people to repeat a lot of what they said, particularly instructions. He did not remember things as well as he used to. If he started to do something, and did not complete it right away, he would sometimes forget about it. His current work did not require him to memorise much. A scaffolder however had to have a good memory, because other people's safety was involved: if a scaffolder went for a break, for example, he had to resume where he left off and be sure not to miss anything. Similarly at home he would forget what his wife had asked him to do, she would get angry and they would end up shouting.

The injury to the pursuer's face had caused nerve damage, resulting in numbness of the right side of his nose, the area below his right eye, the right half of his upper lip and the teeth and gums on the right side of his upper jaw. He had no feeling in the top right side of his mouth, and had burnt it quite badly when taking hot drinks or hot food. He found it difficult to kiss his wife, as he could not pucker his lips. His face became painful in winter. His sense of smell was not as strong as before the accident.

The injury to his right (dominant) hand had caused his middle and ring fingers to become swollen and painful. There remained a constant niggling pain. It became more painful in winter. He could no longer grip things tightly. He could not, for example, use a spanner at work. He tended to drop things. He would not be able to work at a height with scaffolder's tools.

He did not feel that he was the same person in himself. He used to enjoy scaffolding and the company of his fellow scaffolders, and working on different projects in different parts of the country. He got on well with his colleagues. He was now more reserved and did not go out much. He could not work at height. He did not want to go up high. He had nightmares for a year or so after the accident, when he had a dizzy feeling as if he was falling and tumbling through the air. That had got better with time and he had no nightmares now.

He returned to work with the defenders in December 1995 and worked for them as a labourer, sorting out scaffolding equipment in the stock-yard. He earned the same as before the accident. In September 1996 he got a job with Cape Scaffolding at Grangemouth. He was able to get that job because he knew the manager on that contract, Mr Mick Paterson, with whom he had worked in the past. He worked there on labouring and mess duties. He was paid scaffolding rates. That was due to Mr Paterson, who tended to look after the older people. There were two mess jobs. Mr Paterson offered one of them to the pursuer, because the pursuer had had the accident. The other job went to a man in his sixties. Both were paid scaffolding rates. In the summer of 1997 Mr Paterson moved to a contract at Longannet, and the new manager at Grangemouth made the pursuer redundant. He was unemployed for six months until January 1998, when he began work as an assistant data engineer with PDI Datacom, involved in installing cabling for computer equipment in offices. His job involved handling the drums of cabling and fitting it into the walls.

In relation to loss of earnings, the pursuer stated that, but for the accident, he would have gone to Mossmorran. Take-home pay there would have been between £300 and £500 per week more than his pay with the defenders, depending on whether weekends and back-shifts were being worked. After Mossmorran, he would probably have worked at Grangemouth and Nigg Bay. There had been opportunities, and he would have been able to get work in those sorts of projects. Once you started on a contract, you were paid off on the basis "last in first out". He had expected to work as a scaffolder until he was nearly 65. There were scaffolders of that age. Older people were looked after. They were given snagging jobs, modifying the scaffolding when it had been erected, for example to let pipe-work through. They were also given other small tasks, and were paid scaffolders' rates including overtime and unsociable hours.

In cross-examination, the pursuer was asked about previous injuries to his right hand, under reference to medical records (production 9/2) whose accuracy was neither proved nor agreed. He could not recollect an accident in 1983 described in one such record (production 9/2, page 28) as having caused "small lacerations and tenderness in the index and middle fingers". He did however recollect an accident in 1992 described in another record (production 9/2, page 20) as follows:

"This man injured his right middle finger yesterday when it was crushed at his work.

On examination he has got swelling mainly over the proximal phalanx with a small bruise of the joint between the proximal and middle phalanx. X-ray shows no fracture.

I have discharged him with garter strapping".

The pursuer was asked about other aspects of his pre-accident history. He agreed that he had suffered migraine headaches in 1978 and in 1988. His headaches since the accident had been very occasional. He agreed that he had worked in noisy environments when doing his basic Army training and when working for Highland Fabricators. He agreed that he had told the senior safety officer at Rosyth that he had been a bit wild in the Army, had drunk a lot and got into fights and had left after being demoted. He agreed that his wife had probably got on at him for forgetting things before the accident. He agreed that that was a common experience.

The pursuer was asked a number of questions about pre-accident problems with his back. He agreed that he occasionally got a sore back, saying that if he was on a large job with a lot of heavy lifting he would feel the strain of it. Medical records - none of which were either proved or agreed, and most of which were only partially legible - were put to him which appeared to show that he had been signed off work for two weeks in 1980 due to pain in his back after lifting (production 9/2, page 38); that he had been signed off work for another two weeks in 1985, again due to pain in his back after lifting (production 9/2, page 37); that he had been signed off work again in 1989 with pain involving his back (production 9/2, page 33); that he had been signed off work for a period in 1990 with back pain (ibid); that the had been signed off work for two periods of a fortnight each in 1992 after hurting his back (production 9/2, pages 33 and 33B); that he had been signed off work for three periods of a fortnight each in 1993 with back pain (production 9/2, page 33B); and that he had been signed off work for two periods of a fortnight each in 1994 after hurting his lower back at work (production 9/2, page 32). On the last of these occasions he had, according to the document, been referred for an X-ray examination. He assented to the suggestion that he had more and more back trouble as time went on, but explained that the pain did not get any worse: he would get painkillers and have some time off work, and then would be all right again.

The pursuer stated that, when working for Cape after the accident, he had been paid scaffolders' rates, but that his earnings there had not been representative of his pre-accident earnings as not a lot of overtime had been involved.

The pursuer explained that normally more than one contract would be going on at a time, and the "last in first out" practice meant that those who were in early on one contract would tend to see it through to the end, but then go on to the next contract at a relatively late stage and leave it prior to completion. Earnings were generally highest towards the end of a contract, as the employer would then make some people redundant and the remainder would work overtime.

The pursuer explained that he was confident that, but for the accident, he would have obtained work at Mossmorran. A "local labour" policy operated on that project, and he came from Fife. He had also worked there previously, and had had been "vetted" to work on the site. The same circle of people acted as managers and foremen on contracts of that type. They took on teams of scaffolders, rather than individuals. Scaffolders normally worked in teams. The pursuer had teamed up with Tom Ward for about two and a half years prior to the accident. Ward had been taken on at Mossmorran. There would have been some scaffolding work at Mossmorran while the plant was operational, then the entire plant would be shut down. There would be a time-limit in the contract to get the plant up and running again. Since Mossmorran was the link between the North Sea oil platforms and Grangemouth, and there was a limited storage capacity in the system, an over-run on the shut down period at Mossmorran could necessitate the shut down of off-shore production. As a result, scaffolders worked seven 12 hour shifts during the shut down. At Sizewell B, by way of illustration, for the last nine months of the contract he had earned £900 per week, but the average had probably been £600 to £700 per week.

The pursuer explained that there was a big difference between earnings in his type of scaffolding and the earnings of "street scaffolders", whose rates of pay were not governed by the "Blue Book".

The pursuer did not consider that scaffolding was hard physical work. There were a lot of older people in the industry. They tended to get snagging jobs. They had the same amount of overtime available to them. There were also a lot of men who gave it up.

In re-examination the pursuer said that he had been reasonably fit before the accident and had gone cross-country running, for about eight miles every evening. He was referred to a document which bore to be the radiology report following the X-ray examination of his back (on 12 December 1994) for which he was referred in 1994 (production 9/2, page 19). It stated:

"Lumbar spine: normal outline.

Only very minor lipping and the individual disc spaces are all well maintained.

No destructive or infiltrative bone lesion.

The margins of the S.I. joints are quite well defined.

No localised erosions."

His G.P. had told him there was nothing wrong with his back: he had pulled a muscle and there was no structural damage. He did not have to lift very heavy loads as a scaffolder: materials were brought by cranes and forklifts.

The pursuer impressed me as a man who did not labour or exaggerate his difficulties. His face was mildly disfigured by a palsied appearance on the right side. He was rather nervous, reticent and deferential. During cross-examination I noted that, after a time, he tended to assent monosyllabically to most of the propositions put to him. He struck me as becoming tired, although he had been giving evidence that morning for less than two hours. I did not interrupt his cross-examination, but after it concluded I adjourned to give the pursuer a rest. In the circumstances, I consider his evidence in cross-examination, where he merely assented to what was put to him, to be less reliable than the remainder of his evidence.

The pursuer's wife described the change in her husband's personality since the accident. He had previously been independent. He had enjoyed his work as a scaffolder. He worked long hours, and at weekends, and travelled all over the country. After the accident he was quite different. He became dependent on her. He was forgetful and at times confused, and he lost track of time. She gave as an example an occasion when the pursuer had gone out with the dog and had left it at the shops. He could take moody turns and become aggressive towards her. His hearing had deteriorated.

Medical evidence was given by Mr Robert Marks, a consultant orthopaedic surgeon who had prepared a report (production 23/1) on the pursuer's hand injury. The report confirmed the pursuer's account of the problems with the fingers of his right hand, stating that he had suffered a dislocation of the middle finger and a contusion to the ring finger. It concluded:

"The stiffness in this man's right middle and ring fingers will of course be permanent. It cannot be improved by any future treatment. I think it is more likely than not that he already has post-traumatic osteoarthritis of the proximal interphalangeal joints of these fingers. Despite the absence of any documented injury at this level, the palpable changes are not present in the opposite hand and it seems inescapable that they are consequences of the accident on 07.02.95. These changes may slowly progress with the years with an increase in stiffness of these two fingers. This may eventually lead to further disability and might even impair Mr Wilson's ability to do light manual work after a further 10 years or so."

In cross-examination, Mr Marks was asked about the earlier hand injuries recorded in the medical records. The laceration in 1983 could be dismissed. The 1992 injury (which had not involved the ring finger) had not required hospital follow-up and appeared to have been relatively minor.

The medical records concerning back pain were also put to Mr Marks in cross-examination. He considered that, but for the accident, the pursuer would probably have continued to have trouble with his back from time to time. He was not aware of any evidence suggesting that the problem was likely to have got worse: such a view could not be formed without knowing more about the events which had given rise to the pain. When Mr Marks' expertise on back problems was then challenged by the cross-examiner, he explained that his M.D. thesis had been on the causation of mechanical back pain. He added that, like other hospital doctors, he only saw patients with a significant problem, whereas a G.P. would have more relevant experience of the general run of patients with backache.

Further medical evidence was given by Dr Bryan Dale, a consultant otolaryngologist who had prepared a report (production 5/4) on the pursuer's hearing loss. There was a degree of hearing loss in both ears, amounting to 15 dB, due to exposure to noise prior to the accident. That was a "slight deficiency". It would not in itself cause a problem. There was an additional hearing loss of 22 dB in the left ear due to the accident. The consequence was that his left ear was approaching the level of deafness at which he would benefit from a hearing aid.

Mrs T. A. Griffiths, a consultant clinical psychologist, had prepared a psychological report (production 27/2) on the pursuer. She found that there was no evidence of a specific memory deficit, but that there was a problem with the registration of information which was interrupted by poor concentration. She also found that he exhibited a moderately high level of anxiety, which might well affect his concentration.

Dr James Hendry, a consultant psychiatrist, had prepared a psychiatric report (production 27/1) on the pursuer, based on an examination in June 1997. It concluded:

"He presents with persisting problems of anxiety manifested mainly by irritability and impaired concentration leading to difficulty in registration of information. In addition he does occasionally find himself ruminating on the accident and its potential consequences and he experiences nightmares relating to it.

In my opinion Mr Wilson is presenting with features of post traumatic stress disorder of moderate severity."

In his evidence Dr Hendry described the pursuer's difficulty in registering information, as measured by standard tests, as "a significant difference from the norm". He had examined the pursuer again in May 1999. The pursuer had made progress. Testing of his ability to register information had shown considerable improvement. He had not experienced nightmares for some time. He remained however afraid of heights (e.g. when travelling in a lift with an external view). That fear was unlikely to diminish, given the time that had passed since the accident. In clarification of the last sentence quoted above from the report, Dr Hendry stated that he considered that the pursuer was suffering from P.T.S.D. of moderate severity.

Mr Mick Paterson (the person mentioned by the pursuer in his evidence as having given him the job with Cape Scaffolding at Grangemouth) gave evidence. I considered him an impressive witness with great experience of the scaffolding industry. He was aged 63, and had been in the scaffolding trade since leaving the Royal Navy in 1962. He had just completed a contract as senior supervisor with Palmers Scaffolding at Ardersier. He was expecting to start a contract at Grangemouth very shortly. He had known the pursuer for 20 years, and described him as an experienced advanced scaffolder and "one of the best, especially up a height". He would rank the pursuer as someone who always did his job and did it well. The pursuer was reliable and trustworthy and could be given responsibility. His work rate was good, he had a good attitude and he got on well with colleagues. Following the accident, Mr Paterson had got work for the pursuer at Grangemouth. He had noticed a definite change in the pursuer. His reactions were not as good as they should be. He was not co-ordinated. He was not capable of working at height. Mr Paterson could not send him up 80 or 100 feet. The pursuer did not have the same confidence. In short, he was "not the same guy". Mr Paterson put him on labouring duties at ground level, but at scaffolders' rates, to do him a good turn. In June 1997, when the contract was ending, he moved to a similar position with Cape at Longannet. There was a lot of work available in the summer of 1997 for experienced scaffolders, but there was no way he would have taken the pursuer on as a scaffolder. He remained at Longannet until the summer of 1998, when that contract finished, then went to a one-year contract with Palmers at Ardesier, which finished in May 1999. If the pursuer had been fit and available, Mr Paterson would have employed him at Ardersier as an advanced scaffolder.

Mr Paterson gave evidence about the pay structure of the scaffolding industry. There were different pay systems for street scaffolding and for scaffolding for petrochemical plants (and other projects on a similar scale). All big contracts were covered by the National Joint Agreement on Construction (the "Blue Book"), which had first been introduced about 40 years ago at Mossmorran. The idea was to put all skilled craftsmen on the same rates of pay, so as to avoid industrial disputes over different rates paid by different contractors. The agreement dealt with basic rates of pay, bonus, travelling, holidays and severance. There was no general pay agreement for street scaffolding. Rates varied, depending on the employer. The pursuer was a Blue Book man. Take-home pay at Ardersier was about £680 to £700 per week, including shift allowances.

Mr Paterson knew Tom Ward, whom the pursuer had mentioned as his team-mate. Mr Paterson would expect the pursuer, if he were fit, to be earning the same sort of pay as Mr Ward. Average net earnings of £600 per week would not be unreasonable. But for the accident, the pursuer would have been able to continue earning that sort of money for quite a few years. There were some men in their sixties. They were not as good as younger men, but there were certain jobs you put them on: you were able to look after people. You knew the men who had done you a good turn. Older men were assigned to snagging work and modifications, after the open steelwork had been done, and to mess duties. They got the same rates as the other advanced scaffolders.

In cross-examination Mr Paterson gave details of numerous projects on which he had been senior supervisor and on which he had worked with the pursuer, including Mosmorran and Sizewell B. He explained that the "last in first out" principle formed part of the Blue Book. Scaffolders looked for their next job before their current contract came to an end, but there were periods when they would not be working. The majority of scaffolders in this line of work - shut down work - were on about £600 net per week. This was because the fact that the plant (such as a petrochemical plant) was shut down meant that the job had to be done as quickly as possible, resulting in 12 hour shifts for six or seven days per week. The Blue Book stipulated 12 hour shifts, and men in that line of work were expected by and large to work 12 hour shifts. When the pursuer was working at Cape, after his accident, he had been on a 39 hour week earning about £300 per week, with an additional £180 if a weekend was worked. If the pursuer had been working there as an advanced scaffolder he would have worked more overtime and possibly more weekends.

In relation to older scaffolders, Mr Paterson maintained that men he had worked with had not dropped out of the industry. They had been kept on so as to pass on their experience and knowledge to the younger men. The work was partly physical, but it had an important mental element as well. A 12 hour shift included breaks. He would not say the work was more tiring for older men. A man of 65 would not do the same work as a 25 year old. He would deal with modifications most of the time. There was a massive amount of work of that kind, and also "gofer" work. He was talking about sites where there would be 200 or 300 scaffolders. They were paid the same rates as the younger men.

Evidence was also given by Tom Ward, the pursuer's former team-mate. He appeared to be a straightforward and reliable witness. He was 44 years old. Like the pursuer, he had been working for the defenders at the time of the accident. It was a stop-gap between major jobs - in other words, shut downs of petrochemical works. The defenders did not pay "Blue Book" rates. He worked for the defenders until May 1995, then went to Mossmorran. But for the accident, he considered that the pursuer would definitely have gone there with him. He was at Mossmorran until October or November 1996, and then at Grangemouth. The pursuer was also at Grangemouth, on labouring duties. Mr Ward noticed a change in him. He would take wrong roads driving from Fife to Grangemouth, which would not have happened before the accident. He would lose track of a conversation. He was forgetful. A scaffolder needed to have good mental facilities. The pursuer was not as fit as he used to be. He used to speak of his fear of heights. After Grangemouth, Mr Ward went back to Mossmorran in May 1997. There was work available. The pursuer had been rated very highly by employers and (but for the accident) would have found work at Mossmorran. Mr Ward himself would expect to earn at least £30,000 net per annum, and had earned £42,000 net per annum when working at Sizewell B. The pursuer could expect to earn a similar amount if he were fit. In cross-examination, Mr Ward stated that the pursuer would not be fit for the type of ground level work given to older scaffolders, since at some point he would be expected to go up a height. He thought that the majority of men in his line of work remained in it to the age of 65. He had never had difficulty finding work, although he accepted that he sometimes had to take lower paid work.

Mr David McNaught, an employment consultant, was led as an expert witness on behalf of the defenders. Mr McNaught was, in effect, a professional expert witness employed by a firm of employment consultants specialising in litigation support services. He spent about 60 per cent of his time on litigation and 40 per cent on managerial and executive matters. He prepared about 100 reports per annum covering the whole range of industries. He had done this work for five years, and had previously been employed in the personnel department of a pharmaceutical company. His evidence was based primarily on the New Earnings Survey, a set of official statistics for all occupations based on information submitted by employers to the Inland Revenue. The most recent edition of the New Earnings Survey was based on information as at April 1998. The New Earnings Survey dealt with scaffolders as a single occupational category, without distinguishing between different types of scaffolder. According to the Survey, average earnings for scaffolders were £350 per week gross in 1994 (equivalent to £260 net), and £460 per week gross in 1998 (equivalent to £370 net). The Survey showed what people in employment were earning at a particular point in time. It did not include people who were out of work at the time in question. Nor did it include the self-employed. Mr McNaught was not sure what was meant by the term "street scaffolder". The typical high street scaffolding firm was a small employer taking on people as required and focussing on the residential market because they were unable to deal with great heights or large contracts. Their employees would include people doing a range of construction work. They would tend not to be people at an advanced skill level. Small employers tended to be flexible in their pay arrangements, whereas large employers in the construction and engineering industry stuck rigidly to the "Blue Book". The basic rate given in the Blue Book in 1998 was £8.50 per hour (this rate was also mentioned by Mr Paterson and Mr Ward). The hourly average given in the New Earnings Survey in 1998 was £8.88. Mr McNaught inferred from this that the scaffolders covered by the New Earnings Survey were representative of the scaffolders covered by the Blue Book.

Mr McNaught had carried out an inquiry into the age profile of scaffolders. Eight per cent of scaffolders were in the age range of 50 to 55. Four per cent were in the range of 55-60. Less than one per cent were in the range of 60 to 65. He did not consider that scaffolders stopped working in the construction industry, but the profile suggested that they moved out of that particular line of work.

In cross-examination, Mr McNaught stated that he had first become involved in the case less than three weeks before the proof. He had not interviewed the pursuer, nor had he listened to any of the evidence. He accepted that the pursuer's employment history was of critical importance. The pursuer had a very fine profile of employment. He had worked for a broad spectrum of major companies. He had access to the top range of employers. He was skilled, highly regarded and had good access to contracts. Mr McNaught had never seen a better working record of an advanced level scaffolder, although he had previously done work on advanced level scaffolders. The pursuer's strong motivation and high level of fitness prior to the accident also suggested that he was likely to remain in that line of work for longer than some others.

Scaffolders' earnings generally were well in excess of other construction trades, and could be extremely high. Advanced level scaffolders working on large projects could earn well above the £8.50 rate because of enhancements. Earnings of £42,000 net per annum (as described by Mr Ward, in relation to Sizewell B) would be in the top one per cent of scaffolders' earnings.

The age profile was based on a 1991 survey. Mr McNaught accepted that trends could fluctuate over time, for example as skill shortages emerged and disappeared. An age profile put to Mr McNaught, to the effect that 34 per cent of advanced level scaffolders were over 50, 20 per cent were over 55, and 9 per cent were over 60, matched his knowledge of the construction industry. Although a lot of people assumed that men in heavy manual jobs were unlikely to continue beyond the age of 55, the position in fact was that the age profile in heavy construction work was not very different from that in industry as a whole. Men could move on to be foremen or supervisors. Advanced level scaffolders might be regarded as valuable up to the age of 65, because of their experience. Mr McNaught stated however that the percentage of men in waged employment beyond the age of 60 was diminishing rapidly. They went into secondary careers. Scaffolders tended to move into secondary careers somewhat sooner than most other workers.

Certain medical evidence was agreed by joint minute. It included medical reports by Mr A. J. W. Steers, a consultant neurosurgeon (productions 5/1 and 5/2); reports by Mr G. E. Lello, a consultant maxillo-facial surgeon (productions 5/3 and 20/1); and certain hospital records (production 27/4). From these documents, it appears that the pursuer's loss of consciousness and other injuries led initially to in-patient treatment in hospital. This included drilling a burrhole in the pursuer's skull to monitor intra-cranial pressure, and treatment in an intensive care unit which included a lumbar puncture. The injuries to the pursuer's head included a skull base fracture and an undisplaced fracture of the right zygomatic arch and the body of the zygoma in the lateral region of the right orbit. There was also an injury to the left ear involving bleeding at the time of the accident and a marked feeling of pressure in it afterwards. There was a period of dizziness lasting for about eight months. The function of the right infra-orbital nerve has been seriously affected. Little improvement is expected. As a consequence the pursuer experiences numbness on the right side of his face, the right side of his nose, his lip and gum. This has led to burning of his mouth, unconscious biting and ulceration of the oral mucosa, and a lack of sensation when kissing his wife. In cold weather he experiences discomfort in the skin. He has suffered from post traumatic migraine, with headaches occurring (in November 1996) three or four days a week. His sense of smell has been reduced. He suffered a laceration on the lateral aspect of his right eyebrow.

Certain matters relating to earnings were also agreed. Mr Ward's average earnings between September 1997 and April 1999 were agreed to be £600 net per week. The pursuer's average pre-accident earnings with the defenders were agreed to be £198 net per week. His earnings while employed by Cape between September 1996 and June 1997 were agreed to be as stated in production 11/7. His current earnings, in his employment with PDI Datacom Networks, were agreed to be £190 net per week.

I turn now to the assessment of damages in the light of this body of evidence.

Solatium
I accept the evidence given by the pursuer, Mrs Wilson, Mr Paterson, Mr Ward and the medical witnesses, as well as that agreed by joint minute, as to the pursuer's injuries and their effects upon him.

I have described above the nature of the injuries to the pursuer's head, and their effects upon his hearing, sensation, sense of smell and appearance, as well as the headaches which they caused. I have also described the nature and consequences of the injuries to the pursuer's right hand. I accept Mr Marks's evidence that the two previous injuries in 1983 and 1992 were of no lasting significance.

It is also clear from the evidence that the accident has had major psychological (and psychiatric) consequences for the purser, which have affected his social life, his family life and his working life. In broad terms, the picture which emerges from the evidence of the pursuer, Mrs Wilson, Mr Paterson and Mr Ward is of a formerly confident and self-assured man who had reached a high level of competence in a skilled line of work which he enjoyed and in which he took pride. As a result of the accident he has become reserved, withdrawn and anxious. He no longer enjoys an active social life and misses the companionship of his former colleagues. His relationship with his wife has been affected. More specifically, he has been diagnosed as suffering from P.T.S.D. of moderate severity. He suffers from anxiety and impaired concentration, with a consequent problem in registering information. He has a permanent fear of heights which is also attributable to the accident.

The cumulative effects of these multiple injuries are in my judgement severe. I an in no doubt that the accident has had a profound and permanent impact upon the pursuer's enjoyment of life. An appropriate amount of solatium in such circumstances must be substantial.

I was referred to awards in a number of cases which were said to be comparable. Wilson v Norman J Stewart & Co (1970) Ltd 1986 S.L.T. 469 appears to me to be broadly comparable but somewhat more serious, the continuing physical injuries being significantly less serious than in the present case but the psychological effects being more severe (and the pursuer in that case being a younger man). The award in that case is equivalent to £35,200 at present values. Johnstone v Hardie 1990 S.L.T. 744 is a less serious case, since there were no continuing physical problems and there was likely to be a substantial improvement in the pursuer's psychological difficulties. The award in that case is equivalent to £21,750 at present values. Having regard to those awards, I consider that solatium in the present case can reasonably be assessed at £28,000. That figure also appears to me to be in line with awards listed in the section of Kemp & Kemp, The Quantum of Damages, dealing with head injuries. Interest at the rate of 4 per cent per annum should be added in respect of one half of that sum.

Loss of earnings to date
I accept the evidence given by Mr Paterson and Mr Ward. I also accept the pursuer's evidence as generally reliable, subject to the comment made earlier concerning his evidence under cross-examination. I also accept most of Mr McNaught's evidence, although it has to be borne in mind that his evidence almost entirely concerned scaffolders as a general category rather than the specialised sub-category, in effect an elite group, to which the pursuer belonged.

I accept in particular that, but for the accident, the pursuer's earnings during the period from the date of the accident to the present date would have been similar to Mr Ward's. Approaching the matter in that way, it is possible to estimate the pursuer's loss of earnings to date as the difference between Mr Ward's earnings during that period and the pursuer's actual earnings. Mr Ward worked for the defenders until May 1995. The pursuer's net earnings while working with the defenders were £198 per week, and Mr Ward's can reasonably be assumed to have been similar. From May 1995 until October or November 1996 Mr Ward worked at Mossmorran, where the pay was better. From his evidence about his average net earnings (which was not challenged), it can reasonably be assumed he was earning at least £30,000 per annum. This is also supported by the pursuer's evidence about earning at Mossmorran. Mr Ward's average net earnings from September 1997 to April 1999 were agreed at £600 per week. I can reasonably assume that his earnings have remained since then at a similar level, particularly given his unchallenged evidence that he could reasonably expect to earn between £30,000 and £42,000 net per annum. On that basis, it is possible to calculate an estimate of Mr Ward's net earnings since the date of the accident (i.e. three months at £198 per week, 28 months at £30,000 per annum and the remainder of the period at £600 per week). The resultant figure is approximately £135,000, although a precise calculation will require to be made as at the date of decree.

As a check on this figure, an alternative approach would be to consider the pursuer's likely employment history if the accident had not happened. The pursuer's evidence was that he had been due to start work on the Mossmorran contract in March 1995. He would have had the opportunity to work there at least as long (given the "last in first out" rule) as Mr Ward. He would therefore have been able to join Mr Paterson's squad at Grangemouth (as he in fact did, at about the same time as Mr Ward), and could have gone with Mr Paterson thereafter to Longannet and Ardersier. The pursuer's own evidence was that he was likely to have gone from Mossmorran to Grangemouth, and then to Nigg Bay (which I take to be the same as Ardersier). On the evidence, I accept that the pursuer was unlikely to have been unemployed at any time since the accident or would have required to take anything other than "Blue Book" work. On that basis, the pursuer's net earnings since the date of the accident could be conservatively estimated (using Mr Ward's minimum figure of £30,000 net per annum) at a figure calculated as one month at £198 per week, and the remainder of the period at £30,000 per annum. That would produce a figure slightly above my preferred figure. If I used Mr Ward's actual net earnings between September 1997 and April 1999 as giving a more realistic rate (i.e. £31,200 net per annum), the figure would be somewhat higher. I also note that Mr Paterson's evidence about rates of pay supports the view that Mr Ward's earnings were not atypical.

Having regard to these checks, my preferred figure is a realistic estimate of the pursuer's net earnings if the accident had not occurred. From this figure it is necessary to deduct the earnings the pursuer has in fact received since the accident. He returned to work with the defenders in December 1995 and remained with them until September 1996. It is reasonable to use the agreed figure for his pre-accident earnings of £198 net per week for that 33 week period, producing a total of £6,534. His total earnings with Cape Industrial Services, as shown by the agreed records, totalled £14,939.94. Since January 1998 the pursuer has earned an agreed average of £190 net per week with PDI Datacom Networks.

There therefore falls to be deducted from my preferred figure the sum of the earnings mentioned in the last paragraph. The resulting loss to the pursuer is the sum to be awarded under this head of damages. Interest thereon (at 4 per cent per annum) has to be added. From that, Disablement Pension must be deducted.

Future loss of earnings
On the evidence of the pursuer, Mr Paterson and Mr Ward, and also on the evidence of Mr Marks (as to the hand injury) and Mr Hendry (as to the pursuer's fear of heights and problems with concentration), I accept that the pursuer has no prospect of returning to scaffolding work in any capacity. He is physically and psychologically unable to work at heights, which I accept is an essential requirement for all persons engaged as scaffolders. I appreciate that the pursuer received scaffolders' rates for labouring duties while working for Cape Industrial Services after the accident, but that was an exceptional occurrence due to Mr Paterson's good offices and there is no evidence to suggest that it will be repeated.

I do not accept that the episodes of back pain which the pursuer had prior to the accident would have been likely to lead to the pursuer having to curtail his career as an advanced scaffolder. I accept in that regard the evidence of Mr Marks and that of the pursuer himself. In particular, I accept that the pursuer was a fit man with an excellent work record who enjoyed his job; that an X-ray of his back shortly before the accident revealed no structural abnormalities or weakness; and that Mr Marks was not aware of any evidence to support the assertion that a history such as the pursuer's indicated that his episodes of back pain were likely to get worse.

Counsel for the defenders however submitted that no continuing loss of earnings (and, for that matter, no past loss of earnings either) had been proved, because of the pursuer's failure to lead his general practitioner in evidence. The basis of this submission was Mr Marks's remark that hospital doctors such as himself only saw patients with a significant problem, whereas a G.P. would have more relevant experience of the general run of patients with backache. Counsel also founded on Mr Marks's evidence that he could not say that the pursuer's back problems were likely to get worse without knowing more (i.e. more than was recorded in the G.P.'s records) about the events which had given rise to the pain. This, it was submitted, was a further reason why the pursuer's G.P. should have been led. I reject these criticisms of the pursuer's case. The entire issue of back pain was one raised by the defenders. When the issue was first raised, during cross-examination of the pursuer, he denied having any serious problem with his back. When the issue was raised again during cross-examination of Mr Marks (somewhat to his surprise, as he indicated), he gave his opinion, based on the G.P.'s records put to him, that the pursuer was likely to have continued to have trouble with his back from time to time, but that it was impossible to say that it would have got worse unless more detailed information about the events giving rise to the back pain suggested such a prognosis. He noted that the pursuer had never been referred to hospital for back pain and that the X-ray report disclosed nothing of any relevance. The records themselves were never proved or agreed to be genuine or accurate. In these circumstances, I do not consider that there was any onus on the pursuer to lead his G.P., or any other medical evidence, in order to refute the suggestion that he might in future have had more serious problems with his back. It was of course for the pursuer to prove the likely duration of his loss of earnings - and I return to that matter below - but I reject the contention that, as a matter of law, he must be regarded as having failed to prove any loss whatsoever.

In these circumstances, an appropriate multiplicand should reflect the difference between Mr Ward's average net earnings of £600 per week and the pursuer's current net earnings of £190 per week. It was accepted on behalf of the pursuer that the figure of £600 should be discounted by 15 per cent to take account of the possibility of periods between jobs and periods of non-"Blue Book" work. I do not consider that any greater discount would be justified, given the evidence as to the availability of "Blue Book" work and as to Mr Ward's actual earnings. On that basis, the continuing loss is £320 per week, giving an annual multiplicand of £16,640.

In considering the pursuer's likely retirement age, it is plain from the evidence that scaffolders in the pursuer's line of work do not invariably continue working as such to the age of 65. When the pursuer was asked about this matter in cross-examination, he described how a lot of older men are kept on in less arduous capacities, but also accepted that a lot of older men give it up. Mr Paterson, who was aged 63, was himself an example of a former scaffolder who had remained in the industry in a different capacity, as a senior supervisor. His evidence was that there were "some" scaffolders in their sixties: you could look after the men who had done you a good turn (as, indeed, he had "looked after" the pursuer following the accident). There was no shortage of work for older men, and men he had dealt with had not "dropped out". Mr Ward considered that the majority of men continued working to the age of 65. Mr McNaught's statistical evidence about age profiles did not appear to me to be of any assistance in itself. The population studied comprised scaffolders generally, rather than the specialised and high-earning elite to which the pursuer belonged. The "snapshot" showed the age breakdown of the population in question at a particular point of time, but not the likelihood of a member of that population in one particular age category remaining in the population until he had progressed to another age category. The profile could plainly fluctuate from time to time according to economic and other factors, such as periods of boom or recession in the construction industry. Most fundamentally, it did not imply that older men left the working population as a whole. Mr McNaught made it clear that he was not suggesting that scaffolders left the construction industry as a whole, or the working population, although the tenor of his evidence was that they were more likely to move into secondary careers than were other construction workers. He accepted that they might move on to be foremen or supervisors, and he also accepted a variety of factors present in the pursuer's case (such as strong motivation and a high level of fitness) would increase the likely duration of a person's working life.

In these circumstances, I am prepared to accept that it is more likely than not that the pursuer would, but for the accident, have continued working as an advanced level scaffolder, albeit on the gentler type of work given to older men, until retirement at 65. There is also a significant possibility that he would have transferred to a secondary career at some point prior to then (but probably after his 60^th birthday), which might well (but need not necessarily) have been less well paid. I do not consider that the evidence, such as it was, of back problems is of any real significance in this context. There is no evidence to suggest that the pursuer ever had anything wrong with his back beyond the occasional strains to which men of his age may be subject from time to time; and there is no evidence to suggest that it would have affected his ability to continue working as a scaffolder.

As well as there being a dispute on the evidence as to the facts relevant to the calculation of future loss of earnings, there was also a dispute between the parties as to the proper approach to the selection of a multiplier. Counsel for the pursuer invited me to follow the decision of the House of Lords in Wells v Wells [1999] A.C. 345, and that of Lord Macfadyen in McNulty v Marshalls Food Group, 1999 S.C. 195, and to select a multiplier on the basis of the Actuarial Tables with explanatory notes for use in Personal Injury and Fatal Accident cases (3^rd Edition) (the Ogden Tables). In particular, I was invited to take as my starting point the multiplier given as appropriate for a man of the pursuer's age, assuming a 3 per cent rate of return and a retirement age of 65. It was suggested that I should then adjust that figure, to allow for contingencies other than mortality, in accordance with Section B and Table A in particular (being the table relevant to men with a retirement age of 65). Counsel for the defenders, on the other hand, argued that the decision in Wells v Wells had not reduced the quantification of damages to the application of a formula and in particular was not authority for applying Section B. Although that Section had been applied in McNulty, the point had not been argued. It was open to a judge to discount the figures given in the Ogden Tables because, for example, of the nature of a particular pursuer's work. That had been accepted by the House of Lords when dealing with the appeal in Page v Sheerness Steel Co plc (see Wells at page 381C per Lord Lloyd of Berwick). A substantial discount should be applied, having regard to the multipliers used in pre-Wells cases on similar facts to the present case.

The approach which I shall follow is that described in Wells v Wells by Lord Lloyd of Berwick at page 379F-G:

"I do not suggest that a judge should be a slave to the tables. There may well be special factors in particular cases. But the tables should now be regarded as the starting-point, rather than a check. A judge should be slow to depart from the relevant actuarial multiplier on impressionistic grounds, or by reference to 'a spread of multipliers in comparable cases', especially when the multipliers were fixed before actuarial tables were widely used".

I therefore take as my starting-point the tables using a 3 per cent discount rate (that being the rate recommended in Wells v Wells, e.g. per Lord Lloyd of Berwick at page 376A). I was referred in particular to Table 3, which produces a figure of 12.66, assuming a retirement age of 65, and taking account of ordinary mortality risks, but not of risks other than mortality (see the introduction to the First Edition). I prefer however to use Table 13, which makes "appropriate prudent allowance for future improvements in mortality", reflecting the trend towards increased longevity (see the introduction to the Third Edition). As is explained in the text (at paragraphs 5-8) Tables 1 to 10 are based on historic mortality rates; and the actuaries on the Working Party which is responsible for the Ogden Tables consider that failure to have regard to reasonable projected improvements in mortality rates will result in pursuers receiving awards of damages which are lower than they should be. Tables 11 to 20 show the multipliers which result from the application of projected mortality rates estimated by the Government Actuary. The Working Party recommends the courts to use Tables 11 to 20 rather than Tables 1 to 10, since the latter almost certainly underestimate future longevity of the population as a whole. Tables 11 to 20 were not used in Wells v Wells, but they had not been published by the time of the decisions under appeal in that case.

Since the purpose of using the tables is to produce as accurate a calculation of loss as possible (Wells v Wells at page 366A, per Lord Lloyd of Berwick), and the projected mortality risk built into Table 13 should prove to be a more reliable guide than the historical mortality risk built into Table 3, the use of Table 13 appears to me to be more appropriate. That produces a figure of 12.84. I also consider it appropriate to have regard to the corresponding figure on the assumption that the retirement age is 60, given that there is a degree of uncertainty as to when the pursuer was in fact likely to have retired. That figure (from Table 15) is 9.86.

Since the publication of the Second Edition, the Ogden Tables have also included Section B, which includes three tables (labelled in the Third Edition as Tables A, B and C), together with explanatory notes. The purpose of Section B is to show how contingencies other than mortality can be taken into account (see the introduction to the Second Edition). Although these tables were not referred to in the speeches of Wells v Wells, it would in my opinion be perverse to ignore them: on the contrary, following the general approach in Wells v Wells, they should in my opinion be regarded as the starting-point for allowing for contingencies other than mortality. That appears to have been the approach adopted by Dyson J. in Page v Sheerness Steel plc 1996 P.I.Q.R. 26 and 36, and also by Lord Macfadyen in McNulty. I note that in Wells v Wells the Appellate Committee heard some argument about the use of Section B (see page 355B-D), although the matter is not discussed in the speeches. It was not suggested to me that judicial notice could not be taken of Section B, and the general approach taken in O'Brien's Curator Bonis v British Steel plc, 1991 S.C. 315, suggests the contrary. It was accepted in that case that judicial notice could be taken of "the report of the working party and of the tables" (at page 326). The effect of Wells v Wells is of course to make it even more important than it was at the time of the decision in O'Brien that the courts should take judicial notice of the Ogden Tables without requiring evidence from accountants, actuaries or investment advisers. As Lord Steyn said in Wells v Wells (at page 388E):

"The effect of the decision of the House on the discount rate, together with the availability of the Ogden Tables, should be to eliminate the need in future to call actuaries, accountants and economists in such cases".

I refer also to what was said by Lord Hope of Craighead and Lord Clyde in the same case at pages 393C-D and 397F-H respectively. Nor was it suggested to me that it would be inappropriate to rely on Section B in the absence of evidence relating the assumptions on which Section B is based to the facts of the present case. It has to be borne in mind however that Section B is "intended only to provide a 'ready reckoner' as opposed to precise figures" (paragraph 30).

The approach recommended in Section B involves making a deduction from the multiplier derived from Tables 1 to 20, the size of the deduction corresponding to the magnitude of the risk of unemployment or illness. The basic deduction to reflect the risk of unemployment is calculated by multiplying the multiplier by the factor shown in Table A. For the reasons explained in paragraphs 32 and 33, I consider that the figures in the "medium" column in that table are appropriate. Interpolating between the figures given for age 50 and for age 45, I estimate 0.94 as being an appropriate factor for age 48. That factor next has to be adjusted in accordance with paragraphs 36 and 38 to reflect the degree of risk of illness, injury and disability associated with the nature of the employment. Interpolating between the maximum figures for "more risky occupations", I estimate 0.04 as being an appropriate adjustment for a 48 year old manual worker in the construction industry. The factor next has to be further adjusted to take account of geographical variations. Interpolating between the figures given for Scotland, I estimate 0.04 as being an appropriate adjustment for a 48 year old man resident in Scotland. Assuming a retirement age of 65, the factor which has to be applied to the Table 13 figure of 12.84 is therefore (0.94 - 0.04 - 0.04) producing a multiplier of 11.04. Assuming a retirement age of 60, the factor to be applied to the Table 15 figure of 9.86 is (0.95 - 0.04 - 0.04) (in accordance with the same paragraphs and Table B), producing a multiplier of 8.58. I do not consider that there is any reason why any further allowance should be made in the present case in respect of the risks of unemployment, illness, injury and disability. In particular, there is no evidence that the pursuer's previous back problems would give rise to a higher risk of future illness than a typical 48 year old manual worker in the construction industry. There is no evidence that the pursuer's occupation was particularly dangerous (beyond the level of risk which I have allowed for, in making the maximum deductions for a manual worker in a "more risky" occupation); and multipliers in older cases, where a discount value of about 4 or 5 per cent was implicitly assumed, are of no real assistance to me. The pursuer's level of physical fitness is a positive factor which would tend to justify a higher than normal multiplier (paragraph 28); but I have taken it into account already in accepting that his most likely retirement age was 65.

If there were no doubt in my mind that the pursuer's loss of earnings at the rate of £16,640 would continue until the age of 65, I would apply a multiplier of 11.04 (I see no reason to "round" the figure, given that the objective is to produce as accurate a calculation as possible, and bearing in mind that "rounding" may render pointless some of the adjustments made in applying Tables A to C, for example). Given my acceptance however that there is a significant possibility that he would have transferred to less well paid work at some point between 60 and 65, I shall reduce the multiplier below that figure. If he were to suffer no loss of earnings beyond the age of 60, the appropriate multiplier would be 8.58 (which is equivalent to a discount of 22 per cent from the figure of 11.04). I note that in an analogous situation in Page v Sheerness Steel Co plc, Dyson J. discounted the figure reflecting mortality risks alone by 8.65 per cent to reflect the substantial risk that the plaintiff would not have worked to normal retirement age (see Wells v Wells at page 381B). Judging the matter as fairly as I can, I shall adopt a multiplier of 10, which represents a discount of about 10 per cent from the figure of 11.04 (which itself discounted by 13 per cent the figure reflecting mortality risks alone). I accordingly estimate the appropriate award in respect of future loss of earnings at £166,400.

Services
These are agreed in the sum of £1,000 inclusive of interest, apportioned as £750 and £250 for Mrs Wilson and Mr Davidson respectively.

Summary
My assessment of damages can be summarised as follows:

Solatium - £28,000, plus interest on £14,000 at 4 per cent per annum from 7 February 1995 to the date of decree.

Loss or earnings to date - three months at £198 per week, 28 months at £30,000 per annum and the remainder of the period to the date of decree at £600 per week; less the total of £21,473.94 and £190 per week from January 1998 to the date of decree; plus interest on the resultant figure at 4 per cent per annum from 7 February 1995 to the date of decree; less disablement pension.

Future loss of earnings - £166,400

Services - £1,000.

I shall accordingly sustain the pursuer's first plea-in-law and repel the defenders' first to fifth pleas-in-law, and put the action out By Order to enable parties to calculate the up-to-date figure for which decree should be granted, and the amount which I require to specify by virtue of section 15 of the Social Security (Recovery of Benefits) Act 1997.