Scottish Court of Session Decisions

On 3 March 1996 the pursuer was working in the course of his employment with the defenders as a crane driver at their premises at Nigg. He was instructed to cut up a large steel structure using oxyacetylene burning equipment. While he was doing so, he fell from the part of the structure on which he was standing, and became trapped by the right leg between part of the structure and a section of steel girder which he had cut off. As a result he sustained certain injuries. In this action he concludes for damages in respect of the loss, injury and damage which he suffered as a result.

On the day of the accident the pursuer was working on the backshift. He and another crane operator, William McDonald, and two riggers, Archibald Millar and Cecil Melville, were waiting to take part in the unloading of a ship, but the arrival of the ship was delayed, and the defenders' rigging section manager, Donald Rodger, therefore decided to set them to other work. In the graving dock at the defenders' premises a Clyde gantry crane was in course of being demolished. Its steel structure had been partly dismantled, and the stage had been reached at which a large piece of the structure required to be cut up into smaller pieces which could be recycled. William McDonald was instructed to take a fork lift truck and begin removing cut pieces of steel from the graving dock. The pursuer was instructed by Mr Rodger to carry out the next stage of the process of cutting up the structure of the demolished crane.

The pursuer was employed by the defenders as a heavy duty crane operator. His experience both with the defenders, by whom and whose predecessors he had been employed for a number of separate periods between 1980 and the date of the accident, and with other employers had been almost entirely as a plant or crane operator. For one period in the late 1980s he had been employed by a scrap metal firm called Easter Ross Metals (ERM) as a plant operator, and his evidence was that during that period he had done some burning with oxyacetylene equipment. He described carrying out that work with the metal which was to be cut lying on the ground. That he operated on those occasions in that way offers some insight into the level of his skill and experience in burning, since the expert witnesses led for the pursuer and for the defenders were agreed in regarding that as an inappropriate way of proceeding for a variety of reasons affecting both efficiency and safety. He had never, with ERM or elsewhere, had any training in burning work, or in the safety aspects of such work. He had simply picked up such understanding as he had by watching others. In the self-assessment form which he completed when he was re-engaged by the defenders in July 1994, the pursuer laid no claim to burning skill. Nevertheless, Mr Rodger appears to have gained the impression (correctly) that the pursuer had done some burning, although he thought it was with a firm called W.H. Mackay rather than with ERM. He had, however, no detailed knowledge of the extent of the pursuer's experience, and had never seen him carrying out burning work before. The use of burning equipment, and the precautions to be taken in order to carry out such work safely, were not matters within Mr Rodger's own field of expertise. When shown the section dealing with welding and burning in the defenders' safety handbook, which contained the following passage:

Mr Rodger acknowledged that he had not been familiar with it at the time of the accident. It appeared from Mr Rodger's evidence that the work of cutting up the demolished crane was being undertaken by his section (the rigging section) for no better reason than that the thing being cut up was a crane, and the rigging section was the section which was concerned with the operation of cranes. There would have been no difficulty for the defenders in providing suitably qualified and experienced personnel to undertake the work of cutting up the crane, because they had in their employment at their Nigg premises a large number of fabricators and welders fully qualified in the use of oxyacetylene equipment. In the event, however, the job was allocated by Mr Rodger to the pursuer.

The section of the demolished crane which the pursuer was instructed to cut up had been set up for cutting in the course of an earlier shift by other members of the rigging section. One of them, Leslie Sutherland, was a crane operator, and the other, Steven Swanson, was employed by the defenders as a greaser. He was a mechanic to trade, and regarded burning as within the skills of his trade. He acknowledged, however, that the setting up of such a large scale burning job was beyond his experience. In the event, the way in which the job was set up was as follows. The section of steelwork which the pursuer was to cut was described as a K frame. It comprised principally three sections of 'I' girder, fastened together in roughly the shape of the letter K. The longest section ("the long girder") formed the upright part of the K. For the purposes of description, I shall adopt the convention adopted in the annotations on the photographs in No. 20/1 of process, namely that the long girder was set out in an east and west alignment. The two shorter sections ("the arms" of the K) projected respectively towards the south east and the south west. The points at which the arms were attached to the long girder were some metres apart. The K frame was supported on two separate sections of girder ("the supporting girders"), which lay parallel to each other on the ground, aligned north and south. The supporting girders were set at such a distance apart that each of them was crossed by two parts of the K frame. The western supporting girder was crossed by the western end of the long girder and by the western arm. The eastern supporting girder was crossed by the eastern end of the long girder and by the eastern arm. I have expressed that in terms of the various parts of the K frame "crossing" the supporting girders, because in the course of the evidence there was discussion of the possibility that, as set up, the K frame did not actually rest on the supporting girders at all four points, and in particular that the western arm did not rest on the western supporting girder. I shall have occasion to return to that matter in due course.

Mr Rodger accompanied the pursuer to the graving dock and showed him where the K frame was to be cut. The cut was to sever the western arm from the remainder of the K frame at a point a short distance from where it was joined to the long girder. There was discussion of the way the cut was to be carried out. Mr Rodger and the pursuer were in agreement that the appropriate order to be followed was for the western flange of the arm to be cut through first, then the web joining the two flanges, and finally the eastern flange. They were also in agreement that to make the first of those cuts, the pursuer should stand to the west of the arm, inside the triangle formed by the arm, the long beam and the western support beam; and that he should then cross to the other side of the arm, i.e. so as to stand to the east of it, and cut the web and the eastern flange from that position. In their evidence the pursuer and Mr Rodger were in disagreement about whether their discussion expressly covered the reason for adopting that order of work, in terms of the likely direction of movement of the severed arm once it had been cut free. The pursuer recollected no such discussion, but Mr Rodger had an impression (which he expressed with varying degrees of certainty at various stages in his evidence) that there had been discussion of the direction of movement. I found both the pursuer and Mr Rodger candid witnesses, and I have no doubt that they were both doing their best to recollect the terms of their discussion. I do not consider that it is necessary for me to resolve the conflict, such as it was, because it was clear that they both reached the same conclusion as to the order in which and positions from which the cuts should be made. It seems to me to be clear that they each did so because of the view that they formed about the way in which the arm would move when cut. So far as Mr Rodger was concerned, that view was that, because the centre of gravity of the portion of the arm which was to be cut off lay west of the point at which the arm crossed the western supporting girder, the supporting girder would act as a fulcrum, and the south-western end of the arm would drop onto the ground, while the end nearer to the cut would rise up. Then, because the cut arm would be lying against the supporting girder at an angle, its north-eastern end would tend to slide along the supporting girder towards the north, coming to rest if and when it came in contact with the long girder. The pursuer was less certain about where the centre of gravity of the arm lay, and therefore less certain about how the beam would move, but he appears to have foreseen at least the possibility that it would move in the way Mr Rodger foresaw. He regarded it as unsafe for him to be to the west of the arm once it was cut. It thus seems to me to be reasonably clear that the pursuer and Mr Rodger each came to a similar conclusion about how the arm would or at least might move, and therefore each realised that the proposed order of carrying out the cuts and the proposed positions from which they should be carried out were safest. That was a sound view because it allowed the cut which had to be made from the enclosed triangle formed by the long girder, the western arm and the western supporting girder to be carried out while the arm was still held together by the uncut web and eastern flange, and so could not move so as to catch the pursuer in a nip; whereas at the stage when the cut arm was likely to move in the way predicted, creating a nip, the pursuer would be standing in safety to the east of the arm.

Mr Rodger left the graving dock and the pursuer proceeded with his task. He first cut the west flange of the arm, working from a position to the west of it. He then crossed to the east side of the arm and proceeded to cut first the web, then the east flange. When he thought that he had completed the cuts, the cut portion of the arm remained attached. That might have happened either because the cuts had not in fact been complete, or because molten slag congealed as it cooled and formed a temporary adhesive holding the cut portion of the arm to the stump. The pursuer decided that he needed to examine the cuts he had made to see if he had in fact completed them properly. He could not examine the cut of the west flange from the east side of the arm. He therefore climbed onto the stump of the arm and attempted to examine the cut in the west flange from there. By this time it was dusk and he had to use the flame of the oxyacetylene torch as a light. He did not think there was any danger in standing on the stump, because he thought that the remainder of the K frame, of which the stump formed part, was stable. While he was examining the cut from that position, two things happened. One was that the cut portion of the arm parted from the stump, which tends to suggest that it had not moved initially because of slag adhesion. The other was that the pursuer fell off the stump. He fell to the west. The parting of the cut portion of the arm and the pursuer's fall were more or less simultaneous. The cut portion of the arm behaved exactly as had been expected, and its near end slid to the north. The pursuer's left leg was caught and crushed between the cut portion of the arm and the western supporting girder.

The pursuer was left having to support himself with one arm while his leg was caught between the girders. He was in considerable pain and unable to move or free himself. There was no one in the immediate vicinity. He had to wait for a few minutes until William McDonald returned to the graving dock in the fork lift truck. The pursuer and Mr McDonald sensibly realised that it would be dangerous to attempt to use the fork lift truck to move the cut girder off the pursuer without further assistance. Mr McDonald therefore, after supporting the pursuer for a moment and reassuring him, went back to his truck and radioed for assistance. Mr Rodger came on the scene with others, and with their help the girder was raised and the pursuer freed. The pursuer had been trapped for something of the order of ten minutes.

The pursuer's case on record was that he fell off the stump because it moved suddenly upwards. In evidence he explained that he was wearing goggles which restricted his vision, and that he could not positively say why he fell. In his submissions Mr Sutherland for the pursuer invited me to hold it proved that the stump had in fact moved suddenly upwards and thereby caused the pursuer to fall. The main piece of evidence on which that submission was based was the appearance of the stump in photographs 2, 3 and 4 in No. 20/1 of process. Those photographs appear to show the stump projecting upwards at an angle above the horizontal. All of the witnesses who gave evidence by reference to the photographs accepted that that was what they appeared to show. On the other hand, all of the witnesses who described the set up of the K frame before the pursuer began his operations described it as lying flat on the supporting girders, in the sense that one end of the long girder rested on each of the supporting girders, and each arm rested flat on the corresponding supporting girder. In particular, the evidence was that before the pursuer began work the arm which he was to cut rested on the west supporting girder. (The men who had been involved in setting the job up both thought in addition that the long girder had originally been resting flat on its bottom flange, but it seems to me that they were wrong about that. In the photographs it is clearly resting on the southern edge of its bottom flange. Any rotation of the K frame necessary to bring the stump up above the horizontal would have been in an anti-clockwise direction (when viewed from the west), and so cannot have brought the long girder from a position in which it was lying flat on its bottom flange into the position shown in the photographs. I therefore reject as mistaken the evidence that the long girder was lying flat on its bottom flange before the pursuer began.) The position of the stump as the witnesses thought that it was shown in the photographs was capable of being explained in two ways. One was that the witnesses were right in their evidence about the way in which the K frame lay beforehand, and that the upward projection of the stump was the result of rotation or twisting of the K frame. The other was that the witnesses were wrong about the previous position of the K frame, and that the arm had all along been projecting upwards, and had not been resting of the western supporting girder before or during the cutting operation. The latter explanation can in my opinion be rejected. I accept that on the evidence, particularly of Mr Sutherland, Mr Rodger and the pursuer, the western arm was lying flat on the western support girder before the pursuer began work.

Having gone that far, however, I find it difficult to understand how the K frame came to move so that, despite the arm having originally lain flat on the supporting girder, the stump was left projecting upwards. There are theoretically two ways in which the K frame might have moved so as to leave the stump in that position. One is for the whole K frame (minus the severed western arm) to have rotated bodily in an anti-clockwise direction (as viewed from the west). I am of opinion, however, that one piece of evidence is sufficient to exclude that possibility. That piece of evidence is photograph 1 in No 20/1 of process, which unmistakably shows the eastern arm of the K frame still resting flat on the eastern supporting girder after the accident. If the K frame had rotated bodily (i.e. without one end twisting relative to the other), that arm would necessarily have risen off its supporting girder. The defenders' expert witness, Mr Stuart, gave evidence of calculations which he made to support the proposition that there had been no rotation. Mr Sutherland objected to that evidence on the ground that the point had not been put in cross examination to Mr Johnston, the pursuer's expert witness. The evidence was allowed under reservation of the objection, which Mr Sutherland renewed in his submissions. He referred to Bryce v British Railways Board 1996 SLT 1378, and submitted that it was unfair to admit that evidence when Mr Johnston had not been given an opportunity to comment on it. In the event, I do not find it necessary to rule on the point, because it seems to me that I am able to reach the conclusion that there was no bodily rotation of the K frame without reliance on Mr Stuart's calculations. The subsequent position of the eastern arm is in my opinion by itself enough to rule out such rotation.

That leaves the other theoretical possibility, which is that the western end of the K frame rotated but the eastern end did not; in other words the frame twisted. Mr Johnston accepted that as a possibility, although he found the degree of the twist surprising and more than he would have expected. Mr Stuart strongly rejected the possibility of twisting. As I understood him, he considered that the stiffness of the long girder was more than enough to resist twisting on the severing of the western arm. Although no beam could be perfectly rigid, the long girder was of a construction which would be resistant to twisting. On the basis that it was lying straight and untwisted before the arm was cut off, and that the only change in the rotational forces affecting it was the removal of the clockwise moment applied by the uncut western arm, there was, in his opinion, insufficient to twist the long girder so as to leave the stump angled up as shown on the photographs. Even if there was transitory twisting, it would not be sufficient to leave the girder permanently twisted. On the whole I found Mr Stuart's evidence on this point convincing. It seems to me that, notwithstanding the differences between them, the evidence of both Mr Johnston and Mr Stuart on twisting supports the conclusion that it cannot be held established on the balance of probabilities that the long girder did twist.

If, however, bodily rotation and twisting are both rejected, that leaves the apparent upward angle of the stump unexplained. Mr Sutherland submitted that it was not open to me to hold that the stump was not in fact angled upwards after the accident, in face of the unanimous (and unchallenged) evidence of the witnesses that the photographs showed that it was. The difficulty that I have is that the judgment of angles from photographs is notoriously difficult. I fully understand, from my own viewing of the photographs, why the witnesses thought that they showed the stump projecting upwards. I do not doubt that they each genuinely thought that that was what the photographs showed. Nevertheless it seems to me that the other evidence which I have discussed fails to provide a satisfactory explanation for the stump being angled upwards if, as I have accepted, the K frame was lying flat at the outset of the operation.

In the result I regard as inconclusive the evidence from which Mr Sutherland sought to persuade me to draw the conclusion that the stump moved suddenly upwards into the position apparently shown in the photographs when the western arm became detached. I do not feel able to make a positive finding to that effect.

So far, the type of movement in the stump which I have been discussing is a movement which left the stump in a different position afterwards from that which it had occupied before. Another possibility, however, is that there was a transitory movement, some sort of jerk or tremble which was sufficient to cause the pursuer to lose his balance. As I understood him, the pursuer's expert, Mr Johnston, was of opinion that there would have been movement of that sort when the severed arm detached itself from the K frame. He described it as an "upward jerk". Mr Stuart's opinion was that in this case there had not even been movement of that sort, although not all of the argument which he deployed against permanent movement would equally clearly exclude transitory movement. The fact that the pursuer did in fact fall off the stump might be taken as supporting the inference that there had been at least transitory movement of the stump. In my view, however, there is another equally plausible explanation for the pursuer's fall. He was standing on the web of a girder which was between 10 and 16 inches wide, with the flanges providing an upstand on each side. The base of his stance was thus narrow. He was attempting to inspect the cut which he had made in the western flange. To do that he must have had to lean to his right to some extent. He was using the burning lance to provide light for his inspection. As he was so engaged in that position, the arm which he had attempted to cut off did in fact part from the stump. It would be speculation to suppose that the sudden parting of the arm caused the pursuer to flinch. Whether that happened or not, however, it seems clear to me that his position and the activity in which he was engaged were such that a loss of balance resulting in a fall from the stump was well within the bounds of reasonable foresight. I therefore have no difficulty in accepting that the pursuer lost his balance and fell to his right just as the cut arm parted from the stump. I do not, however, consider that I can hold as a matter of probability that it was movement of the stump, permanent or transitory, that caused that loss of balance.

The common law case of fault which the pursuer makes on record falls into a number of parts. I shall consider these in turn. It is convenient, first, to note that so far as the case is rested on an averment that the defenders were under a duty to instruct the pursuer to use a fork lift truck to test whether the beam was successfully cut, it was not maintained by Mr Sutherland in his submissions.

The main aspect of the case which was maintained was that the defenders were negligent in setting the pursuer to carry out the cutting of the K frame when he was not qualified to do so. The crucial averment is at page 11A of the Closed Record (as further amended):

I have already set out my findings as to the pursuer's lack of training, experience or qualifications in burning. The defenders' own safety manual (No. 22/3 of process, paragraph 18.1) recognises that burning ought to be carried out only by experienced and qualified persons well versed in the relevant safe practices. Both Mr Johnston and Mr Stuart supported that general approach. I have no difficulty in finding that it was in general unsafe for someone with only the minimal experience of burning that the pursuer had, and no formal training in the relevant techniques or safety practices, to be set to carry out burning work, particularly involving the burning of such a large structure. For the pursuer to succeed on that ground, however, he must go a step further and show that the accident was caused by his lack of training and experience. In my view such a causal connection does not essentially depend on the pursuer proving that his accident happened for precisely the reason averred on record. I reject the submission which Mr Brodie made that the pursuer must necessarily fail if he failed to prove that his accident was caused by movement of the stump. The averment that he fell because the stump moved is not in my opinion an essential part of the case based on lack of training and experience. The question which does have to be addressed, in my opinion, is whether it has been proved that a properly experienced burner would not have suffered the accident which the pursuer suffered. Mr Johnston offered a number of bases for finding that a properly qualified burner would have avoided the accident which the pursuer suffered. He expressed the opinion, in the first place, that an experienced burner would probably have succeeded in effecting the cut without slag adhesions, and would therefore not have been faced with the problem of the arm remaining in position after the cut had apparently been completed. Secondly, he said that an experienced burner would have known that the way to cope with slag adhesions, if they did occur, was to stand on the safe side and strike the part of the arm which was supposed to be severed with a heavy hammer. That would probably have been sufficient to release the adhesion. Even if it did not, he expressed the view that an experienced burner would not have climbed onto the stump. To an experienced burner that, he said, was obviously dangerous. Mr Stuart also expressed the view that in no circumstances should the person cutting the beam climb onto the stump. He maintained that position despite his view that in this case the K frame did not move. I therefore infer that his view would be that a properly experienced burner would not have climbed onto the K frame. I accept on the basis of the views expressed by both experts that an experienced burner would not have put himself in the position from which the pursuer fell. That the pursuer did so is simply a reflection of his lack of training and experience. That Steven Swanson was prepared to countenance standing on the frame likewise indicates that his experience was insufficient to qualify him for the job.

The conclusion which I reach is that the defenders were negligent in setting the pursuer to the job of cutting up the K frame, because he was not suitably qualified to do so. I find that an experienced and properly qualified burner (of whom the defenders employed many) would have been able to do the job without placing himself in the position on the stump from which the pursuer fell. I am therefore satisfied that it is proper to find that the pursuer's accident happened because of the defenders' negligence.

That is sufficient to dispose of the merits of the case, but there are two other matters in connection with the merits on which I should express my conclusions. The first relates to the remaining aspect of the common law case. In it attention is directed to the way in which the job was set up. The defenders are said to have been negligent in not devising a system in which the cut part of the frame could not move unexpectedly and trap the pursuer. The point is elaborated by reference to averments about supporting the arm. In the event, I do not consider that this aspect of the case is made out. It depended on the assertion that the arm moved in an unexpected way. It seems to me, however, to be clear that the arm, when it did eventually move, moved in exactly the way that was expected. The evidence did not support the view that the arm should have been supported in position. The scheme for having the cut arm move in the way that was expected was, in conception, perfectly safe, involving as it did measures to ensure that by the time the cut arm parted from the stump the pursuer was standing in safety to the east of the arm. The cause of the accident was that the pursuer ultimately came to be where it was not expected that he would be, rather than that the movement of the arm was in any way unexpected. That was the result of his fall from the stump, which (as I have held) was a consequence of his inexperience.

The second outstanding matter is the case of breach of statutory duty. The pursuer relies on Regulation 6(2) of the Construction (Working Places) Regulations 1966, which provides that:

The pursuer avers that that regulation was applicable because the work on which he was engaged was a work of engineering construction within the meaning of the regulations. The defenders refer to the regulations for their terms, beyond which no admission is made. Quoad ultra the averments of breach of the regulation are denied. There is no averment that the duty under the regulation was fulfilled. In the course of the evidence Mr Brodie elicited evidence that the graving dock in which the work was carried out was within the curtilage of a factory. Mr Sutherland did not object to that evidence. In his submissions, Mr Brodie argued that the statutory case was irrelevant because in terms of the extended definition of "work of engineering construction" contained in the Engineering Construction (Extension of Definition) Regulations 1960 the demolition of a steel structure was within the definition "except where carried on in - (a) a factory". Mr Sutherland submitted that that line of argument was not open to the defenders. If their position was that the regulation did not apply because the work was carried on in a factory, they should have said so in averment. That was particularly so because they were relying on an exception in the definition. Had they made such an averment, the pursuer would have been able to recast the case under other regulations. Mr Sutherland relied on McNaught v British Railways Board 1979 SLT (Notes) 99, in which Lord Stewart said (at 100):

Mr Brodie countered with reference to Ballantyne v John Young & Co (Kelvinhaugh) Ltd 1996 SLT 358 in which, the defenders having made no positive averment of compliance with the statutory duties incumbent on them, Lord Clyde distinguished McNaught, and held that a mere reference to the statute for its terms did not amount to an admission of the applicability of the statutory duty, and that the court should not be bound by an admission on a matter of or involving the law (at 360F). In my opinion the proper pleading practice to be adopted by a party who contends that a particular statutory duty alleged to be incumbent on him was not so incumbent is to make a candid averment of the basis on which he rests his contention on non-applicability. That is, in my view, particularly so where the basis for the contention that the duty is not applicable is reliance on an exception in a statutory definition. Had Mr Sutherland objected when Mr Brodie sought to lead evidence that the work in question was taking place in a factory, I would have been inclined to sustain the objection. In the event, however, the evidence that the work took place in a factory was led without objection, and the situation now is that it is clear on the evidence properly before the court that the work in question was not within the statutory definition. With some hesitation, I have come to the conclusion that I should sustain Mr Brodie's submission that the regulation is not applicable, and that the case made under it is therefore irrelevant. I should indicate further, however, that had I taken a different view on that point, the pursuer's statutory case would have failed on its merits. That is because it is periled on the proposition that the pursuer's place of work was unsafe because the cut portion of the frame could fall unpredictably. As I have indicated, I do not hold it established as matter of fact that the cut arm was likely to move unpredictably, and I therefore would have rejected the contention that the work place was unsafe in the respect founded on.

There remains for consideration the case of contributory negligence. The averment that the pursuer failed in his duty to follow the instructions given by Mr Rodger was not maintained. The evidence was that he did follow such instructions as Mr Rodger gave him. The remaining averment is that it was his duty not to climb onto the beam. I do not consider that the pursuer can be held to have been guilty of contributory negligence in that respect. I accept his evidence that he did not think it was dangerous to climb onto the stump. It was his lack of experience which led him not to realise that it might be dangerous to do so. There was no evidence to support the view that even an inexperienced person would have seen the danger in doing so. That Steven Swanson saw no problem in doing so reinforces the conclusion that, although the danger was one which would be identified by an experienced burner, it would not necessarily be identified by an inexperienced one. I therefore reject the case of contributory negligence.

I turn now to the question of damages. The principal medical evidence in the case was given by Mr Quentin Cox, FRCS, a consultant orthopaedic surgeon who saw the pursuer on three occasions, in August 1996, May 1997 and September 1998, and whose three reports (Nos. 18/9, 18/10 and 18/11 of process) set out a very clear picture of the injuries which the pursuer suffered, and the progress made in his recovery over that period. In the accident the pursuer sustained a soft tissue injury to his right leg just below the knee. That resulted in palsy of the common peroneal nerve, with loss of sensation in the outer side of the leg and an inability to dorsiflex the foot. He was treated with a supportive splint, rest and physiotherapy. The symptoms of nerve palsy have improved, but discomfort and swelling in front of the knee below the kneecap (infrapatellar bursitis) persists. By the date of the third report the pursuer continued to have daily discomfort in the knee, aggravated by walking for over a mile, and associated with feelings of discomfort and instability on stairs, particularly when descending. There is swelling in the knee towards the end of the day. He is unable to kneel on his right knee. Numbness persists on the outer side of the leg, but is not particularly intrusive. There is a feeling of instability in the ankle, but no actual giving way. There is wasting of the right quadriceps. Knee movement is good, and there is no indication of internal derangement of the knee. There is no sign of degenerative changes in the knee. There is some loss of plantarflexion of the ankle, and some loss of movement in the foot. Despite the failure to achieve restoration of the bulk of the right quadriceps so far, Mr Cox expressed the view that with appropriate exercises that might still be achieved. If that is not achieved, friction between the articular surfaces of the patella and the femur may cause persistent discomfort. Surgical intervention to deal with the bursitis is not expected. The feeling of weakness in the ankle is likely to persist, but not to get worse. Degenerative changes are not thought likely to develop in the ankle or knee.

The pursuer impressed me as having done his best to overcome his disability, although there is some doubt in my mind as to why restoration of the quadriceps bulk has not been achieved, despite Mr Cox's repeated view that it should be. He does, however, have continuing difficulties which will persist, both in his ability to work as a crane driver, where the confined space of a cabin, which forces him to keep his knee in flexion, is a problem, and generally in his mobility and agility which impair his enjoyment of life, particularly his family life with his partner and young daughter. His partner, Julia Mackay, gave evidence, which I accept, about the general change which the accident had wrought in the pursuer.

Mr Sutherland suggested that the appropriate award of solatium would be at least £10,000. Although not suggesting that any reported case was particularly helpful, he referred to McIntyre v Strathclyde Regional Council 1994 SLT 933, Lamont v Cameron's Executrix 1997 SLT 1147, and Anderson v Gerrard 1994 SLT 1326. Mr Brodie submitted that £10,000 would be too high an award, and that the appropriate range would be £5000 to £7000. He referred to Hutchison v City of Dundee District Council 1996 SCLR 1131 and Muirhead v Sealink (Scotland) Ltd 1986 SLT 21. In my view in all the circumstances which I have summarised and which are set out more fully in Dr Cox's reports, the appropriate award would be £10,000.

It was a matter of agreement that in the period up to 1 January 1998 the pursuer suffered a loss of earnings of £13,845.

The pursuer is presently back in the employment of the defenders working as a crane driving instructor. He acquired his qualification to do so after the accident. In that employment he earns more than he would have been doing if he had continued in his pre-accident job. There is therefore no continuing loss of earnings. A claim is, however, made for loss of competitiveness in the labour market. The problem is that the pursuer has doubts about his ability, if he lost his present job, of obtaining and holding down a crane driving job, given the remaining weaknesses of his right lower limb. In particular, he has difficulty working a full shift in a crane with friction brakes, a kind particularly common in the defenders' premises. There was clear evidence that his present job may end in redundancy in late summer this year. Such periodic redundancy is, as appears from the evidence both of the pursuer's own employment history and of other employees' experience, common in the industry. The pursuer's position in the labour market is weakened both by his continuing disability, and by his history of injury.

So far as quantification of that element of the claim is concerned, Mr Sutherland suggested that £10,000 would be reasonable. He referred to Gallacher v McDermotts (Scotland) Ltd 1987 SLT 56, in which £4000 was awarded to a crane operator in circumstances similar to those of the present case. There the pursuer was earning £200 per week. Since the pursuer presently earns £460 per week, that case supported the amount proposed, which represented less than six months' loss. Mr Brodie submitted that the sum suggested by Mr Sutherland was too high. Gallacher, he submitted, was a case of more serious disability. Here the pursuer (a) was liable to the risk of periodic redundancy in any event, and (b) has wider options for re-employment than the pursuer in Gallacher had. Under reference to Aitken v Midlothian District Council (No. 2) 1990 SLT 41 he suggested an award of £4000 to £5000. In my view the pursuer is at a material disadvantage in the labour market. The appropriate award to reflect that disadvantage, which involves a number of imponderables, can only be broadly assessed. Giving what I regard as appropriate weight to the reasonably high likelihood of redundancy in the near future, and the pursuer's present relatively high rate of earnings, I consider that it would be appropriate to make an award of £10,000.

Following the accident the pursuer surrendered an endowment life policy. I heard the evidence of an actuary, Mr T. F. Marshall, on the valuation of the loss he suffered as a result, but in the end the valuation to which he spoke, £1720, was not disputed. Mr Brodie submitted, however, that the pursuer had not proved that the surrender had been made necessary by the accident. Mr Marshall's evidence made it clear that surrender was preferable to conversion to a fully paid policy. In my view it was reasonable for the pursuer, faced with a drop in income as a result of the accident, to surrender the policy, thus (i) avoiding the continuing drain on his resources represented by the premiums, and (ii) realising for immediate needs the surrender value. I am of opinion that the pursuer has established that this is a proper item of loss.

The remaining heads of claim are under sections 8 and 9 of the Administration of Justice Act 1982. There was evidence that for a few months after the accident Miss Mackay had to drive the pursuer to medical appointments, and on other occasions. There was also evidence that the pursuer could no longer do certain heavy work around the house, such as changing gas bottles and taking out dustbins. Mr Sutherland suggested £750 under section 8 and £250 under section 9. Mr Brodie's submissions were £250 and £400 respectively. I shall award £400 under section 8, attributing it all to the past, and £500 under section 9, attributing 50% to the past.

My assessment of damages is therefore made up as follows:

I shall accordingly sustain the pursuer's first plea-in-law, sustain the defenders' first plea-in-law so far as laid against the pursuer's averments in Article 4 of the condescendence, repel the defenders' second, third, fourth and fifth pleas-in-law, and grant decree in the sum of £40,065.