Scottish Court of Session Decisions

[1] In this action the pursuer, who was fortunate to survive the event, sues the defenders for reparation for injuries sustained by him when a shore fell on his head at the defenders' shipyard at 1048 Govan Road, Glasgow. The shipyard is a factory within the meaning of the Factories Act 1961.

[2] The background facts which are not in dispute were that the pursuer, on 5 April 1995, the day of the accident, was working as a shipwright/chargehand erector in the course of his employment with the defenders. He was engaged in the activities in the yard in preparing for the moving of a recently completed section of a ship. That section was due to become part of the total vessel. During construction it was supported by wooden shores. These shores were placed between the floor of the yard and the sides of the ship. They fitted into a shore box welded onto the side of the ship. The shore box was approximately ten inches wide, twelve inches long, open at the bottom and front but enclosed at the top and sides. On the top of the shore box there was a bracket. Prior to movement of the section there were four shores fitting into shore boxes on each side of the ship. The shores were further attached to the shore box by means of wire which was attached to the top of the shore and passed through the bracket at the top of the shore box. Such wire was either knotted or passed through the box more than once. The loose end of the wire was thereafter stapled on to the shore. That wire served to prevent the shore from falling to the ground prior to its removal. The shores, however, rested on flat pieces of wood known as sole pieces which were, if necessary, wedged into place. Once sole pieces had been wedged in position the shore was tightly jammed against the top of the shore box.

[3] On the said date the pursuer was engaged in and in charge of the removal of the shores from the section. He removed the port shore at the aft end of the section assisted by Peter McTeer, a plater. Two other platers also were working at that place at that time. They were to assist with the removal of the starboard shore. They received instructions from the pursuer. The said two other platers, Kerr and Pauley, had available to them a platform on a hoist known as a "cherry picker". Having been hoisted to the level of the top of the shore they removed the staples securing the wire. They loosened the wire and the shore fell. It fell against the cherry picker platform and thereafter to the floor, striking the pursuer who suffered severe injuries. The other matters of fact surrounding the accident were all contested.

[4] The pursuer averred that there was a procedure for the removal of each shore. That involved firstly splitting out the shore, ie. knocking away the wedges from the sole pieces; secondly, removing the staples connecting the loose end of the cable; thirdly, attaching the shore by a wire known as a "strop" to the fall of a crane; fourthly, untying and detaching the cable from the bracket on the shore box and fifthly removing the shore by crane and lowering it to the ground. He said that he had followed that procedure when he removed the port shore at the aft end of the section. Kerr and Pauley had watched the procedure and offered to help with the starboard shore. The pursuer then averred that he had split out the sole pieces and removed them and the wedges and that after the shore had been split out, he instructed Kerr and Pauley specifically to group and remove the staples from the loose end of the cable and then to come back down again. They failed, he said, to follow that instruction but instead untied and detached the cable from the bracket. As a result, the shore fell.

[5] The defenders' averments were that the pursuer had instructed Kerr and Pauley to loosen and remove the wire securing the shore and that they followed those instructions.

[6] The Court heard evidence from the pursuer, from Kerr, Pauley, McTeer beforementioned as well as from Robert Fairley and James McLetchie, all platers, and also from Graham Goodridge Cox, the health and safety inspector who made investigations after the accident on behalf of the Health and Safety Executive. Statements (written on the day of the accident) by Messrs Kerr and Pauley were produced as well as a statement written some months later by the pursuer. The pursuer by reason of his injuries had been removed to hospital and thus could not give a contemporaneous account of events.

[7] None of these witnesses was particularly clear as to the events of the day in question, five years earlier, in their evidence at the date of the proof. The contemporary or near contemporary written accounts were therefore of significance. I did not consider that any of the witnesses set out to give a false picture but there was no witness upon whom complete reliance could be placed as giving an accurate account.

[8] Contrary to the pursuer's averments the evidence was that he did not split out the sole pieces and further the sole pieces had not been completely removed from below the shore. As a result the shore had not fallen to rest on the ground at the time when Kerr and Pauley ascended in the cherry picker. They were of the view, and I find, reasonably of the view, that the shore was still securely held in place by the sole piece.

[9] The major issue in the case was what the precise instructions were that the pursuer gave to Kerr and Pauley. The pursuer's evidence did not come up to his averment of specific instructions. His evidence varied. At page 35 he said that when asked by Kerr and Pauley whether he wanted a hand he had said,

At page 43 he said, "My instructions were plain and simple. Go up, take the staples out and then come down and let me go up to the shore". Commenting upon Pauley's written statement in which Pauley said his instruction, "was to prepare the shore for removal", the pursuer said "Yes to prepare it not to remove it". In cross-examination, it is recorded at page 90 that the pursuer said to [Kerr and Pauley] "Well if you want something to keep you busy just now, just go round, take the staples up (sic) for me and then I will come up and take the shore out." Mr Kerr said at page 8, that he was told by Mr Cameron to take the staples out and take the wire off. He had with him a wire strop to put on the shore once he got the crane. He spoke to the statement 24/7 of process written and signed by him on the day of the accident. The account was, "Myself and T Pauley had been told by Wiggy (Mr Cameron) to go up on the cherry picker to remove staples and wire ready to sling shore". In cross-examination he said that he thought the exact words Mr Cameron used were "Take the staples out and take the wire off".

[10] In Mr Pauley's contemporaneous statement he wrote, "Our instruction from J. Cameron was to prepare the shore for removal". That, he said in evidence, meant taking the staples out and removing the wire. At page 39 he said he thought Mr Cameron had said "remove the staples" and amplified that by saying that if you are removing the staples you are also going to remove the wire.

[11] Mr Cox investigating the accident came to the view that the instruction that appeared to have been given to the other two men was either wrong or had been exceeded and that there was no fault against the company itself (page 65). He would, he said, in cross-examination (page 83) "prefer to have seen a more explicit instruction for the men to know exactly what to do, men who have done it before. He could see little point in sending two men up merely to remove staples and then come down again so that somebody else could go up to put the strop round the shore then untie the wire.

[12] No other witness claimed to have heard the pursuer's instruction although Mr McTeer at page 64 said in relation to the platers Kerr and Pauley that they were already in the cherry picker ready to go up "and supposedly put wire round it and remove the wire and the staples".

[13] The evidence from Mr McTeer about the sole plate was that he was the person who had attempted to split out the shore. He described the situation when Pauley and Kerr were up in the cherry picker as being "all solid" (page 61) "there was a four inch piece stuck in the centre of it underneath and it was rammed up solid and we couldn't get the wedges in to break it so it was solid, it couldn't move anywhere at that time anyway". It was also the evidence of Kerr and Pauley that the shore was solid. The pursuer said that if the shore was solid, one might perhaps untie the wire at the shore box.

[14] Kerr and Pauley were rigorously cross-examined on the basis that it was a matter of common-sense for experienced men not to loosen the wire when the shore might fall. They agreed but said that the shore was solid. They thought it was solid when they went up and so did Mr McTeer. The pursuer's case that he had split out the sole plates and that accordingly the shore had in fact fallen some distance was incorrect.

[15] In the above state of the evidence I was not convinced, even on the balance of probabilities, that the pursuer had given sufficiently precise instructions to Kerr and Pauley as to their task. If he did not wish the wire untied, he should have said so. I conclude that what he actually said was to prepare the shore for removal. That was, in the circumstances, ambiguous. If, as he averred, the sole plate had been split out by him then preparation for removal might have involved merely removing the staples. If however the shore was solid, then something else required to be done to move it and it would not matter whether or not the wire at the top was removed. this at least was Kerr and Pauley's understanding. The shore did not appear to be in a precarious position. The person best able on the spot to judge that was the pursuer. His instruction should in my view have been explicit and if he wanted only the staples removed he should have said so. Why the shore fell at the time it did is uncertain. There was no evidence that anything had been done at the deck end of the shore. One possibility may be that Kerr and Pauley moved it while they were putting the strop round it. They were not aware that they were causing any danger.

[16] The pursuer blamed Kerr and Pauley and the defenders are vicariously liable for their negligence. He also tabled various grounds of fault at common law against the defenders personally. The only one of those which was insisted upon was an alleged failure to ensure that training and instruction of Kerr and Pauley in relation to shoring work was not provided on an ad hoc basis by fellow workers such as the pursuer. Such training, said counsel, would only arise if it was not common-sense to act in a particular way. The third ground of fault was in relation to an alleged statutory duty under Regulations 8 and 9 of the Provision and Use of Work Equipment Regulations 1992. Regulation 8(1) provides that where appropriate, written instructions pertaining to the use of work equipment shall be available to employees and Regulation 9 imposes a duty on the employer to

[17] I consider it significant that Mr Cox did not consider that the situation which had arisen warranted any prosecution under the Health and Safety Act, he having taken the view that what had happened, happened either because a particular instruction which appeared to have been given to Kerr and Pauley was wrong or had been exceeded. In neither of those circumstances would the regulations or the personal duties of the employer arise. In any event I do not hold it to be "appropriate" to make available to Kerr and Pauley written instructions in relation to the simple task of removing a shore from the side of a ship. In my opinion, the case based on training has no bearing upon the present circumstances. The issue is ambiguity of instructions and an erroneous assumption by Kerr and Pauley that the shore was secure. I cannot see what difference training would have made in the circumstances of this action. However good training may be, mistakes can happen.

[18] So far however as the case of fault against Kerr and Pauley as individuals is concerned, the duty which was desiderated was to take reasonable care not to allow the shore to fall to the ground and hit the pursuer, and not to untie and detach the cable from the shore box until the shore was attached by wire to the crane. In my opinion they failed adequately to inform themselves of the stability of the shore. They erred in thinking that it was secure. The danger of a falling shore was obvious and great. Security should be paramount and the wire was the final security. They should not in these circumstances have untied the wire until the crane was attached to the strop.

[19] However, they relied on the instructions they were given as they perceived them and proceeded to prepare the shore for removal by detaching the wire which was fixed to the shore box. The instructions they got were ambiguous. Had they not been certain of the extent of those instructions they should have queried them. They thought they understood them.

[20] The view I have taken of the ambiguity of the instructions given to Kerr and Pauley means that the pursuer must share blame for the accident. The case pled against him was that he had a duty not to instruct Kerr and Pauley to interfere with the securing wire at all until the shore was supported by the crane. If he elected to do so it was his duty specifically to instruct Kerr and Pauley not to loosen the securing wire until the shore was secured by the crane. He did not specifically do so. I do not think it occurred to him that the wire would be wholly detached from the bracket by Kerr or Pauley. For that omission he must in my view take some blame. If, as a result of these activities on the day in question, somebody else altogether been injured, then I have little doubt that Mr Cameron would have shared culpability with Kerr and Pauley.

[21] Since the primary cause of the accident was the shore being loosened completely when it should not have been, I regard the proportion of blame to be attributed to Mr Cameron to be 20% and to Kerr and Pauley 80%.

[22] The pursuer was rendered unconscious. He had post traumatic amnesia lasting about one day (20/12 of process). He had fractures of the petrous bones, his left little finger and a perforation of the tympanic membrane of his right ear. He has lost his sense of smell and, in consequence most of his sense of taste. His sense of hearing which had been affected by his employment in any event, has been further impaired. He has some loss of physical and mental capacity. His neck is stiff and painful when turning and on extension. His memory has deteriorated since the accident. He has been unable to follow any of his previous physical pursuits, football, swimming, running and golf. He has been retired on medical grounds.

[23] It was in these circumstances that counsel for the pursuer suggested that an appropriate award of solatium was £30,000, half for the past and half to the future. Counsel for the defenders did not dissent from that and I award it.

[24] The pursuer was born on 4 May 1947; he was 53 years of age at the date of the proof. It was agreed that at the time of the accident the pursuer earned £228 net per week. He returned to work in September 1995 but only worked for a few weeks before again going on sick leave. He was retired on medical grounds on 23 February 1996 since he was no longer fit to work in any capacity for the defenders, but, according to Dr Ruth Gillham, neuropsychologist, he had no deficits which would prevent him from working. Nevertheless since that date he has not undertaken any employment.

[25] There was an acute difference between parties about the pursuer's overall physical and mental condition and fitness for work. It is therefore necessary to examine in some detail the medical evidence led.

[26] The pursuer's medical evidence consisted of Dr Colin Brown, the pursuer's general practitioner, Dr Ruth Gillham, PhD., Consultant Neuropsychologist and two agreed reports, 25/9 of process, a letter from J Wasserberg, Registrar in Neurosurgery, Southern General Hospital, Glasgow and 25/10 of process, a letter from Mr Brian O'Reilly, Consultant Neuro-otologist, Southern General Hospital, Glasgow, and finally, Mr James Cartledge, Consultant Orthopaedic Surgeon. Dr Gillham referred to and plainly relied upon a report, 9/1 of process, from Sir Kenneth Lindsay, Consultant Neurosurgeon, Southern General Hospital Glasgow.

[27] The defenders led evidence from Mr Philip Barlow, Consultant Neurosurgeon at Southern General Hospital, Glasgow, and Mr T S Mann, Consultant Orthopaedic Surgeon, both of whom had prepared reports which were lodged in process.

[28] The complaints which the pursuer had at the date of the proof which, he said, prevented him from working at all, were neck pain, dizziness with occasional blackouts, deafness, memory loss, loss of sense of smell and taste. He also had some medical deficit in his right knee caused by osteo-arthritis.

[29] It was agreed that the letter from Mr Wasserberg accurately set out the nature and extent of the injuries from which the pursuer was suffering on 3/5/95. These were a fracture of the first phalanx of the left little finger and a basal skull fracture with bleeding from the right ear. The fracture was a fracture of the petrous bone. He made an uneventful recovery on the ward and was discharged home on 16/4/95. Mr O'Reilly discovered that he had had a traumatic perforation of the right tympanic membrane with cerebral spinal fluid coming through the perforation. Mr O'Reilly successfully repaired the perforation. Dr Brown, who gave evidence, and from whom a series of reports were lodged, reported (20/13) that he was first consulted on 26/4/95. The pursuer's complaint then was, "pains in the head and neck, loss of sense of smell". He reported neck problems on 7/7/95 and was referred for physiotherapy. He was certified as fit for work on 9/9/95. On 10/11/95 he complained of increasing neck pain and limitation of movement, worsening deafness and memory lapses. On 20/11/95 Dr Brown supplied a cervical collar. There was no change and by 2/1/96 he re-referred the pursuer for more physiotherapy, which the pursuer discontinued on 26/2/96 regarding it as unhelpful. It was on that date. 26/2/96 that he first reported dizziness to Dr Brown. This became his main complaint later and by 4/6/97 the dizzy spells were said to be worsening. He also reported to Dr Brown that he was having occasional blackouts, usually associated with neck movement. Orthopaedic opinion was sought, both in relation to his neck and his knee which was suspected of being unstable.

[30] I find that it was the combination of all these many factors which, on 23 February 1996, rendered the pursuer no longer fit for work at the defenders' yard in his old employment. The question which remained, however, was whether that total unfitness was the result of the accident.

[31] The balance of medical opinion appears to be to the effect that some, at least, of the neck pain the pursuer suffered from was attributable to the accident. However, by the date of the proof, according to Mr Barlow, the chronicity (sic) of the neck pain was contributed to by pre-existing cervical spondylosis, by the continual wearing of the soft collar which had been prescribed and by lack of exercise. Dr Barlow thought the condition would improve.

[32] So far as the dizziness about which the pursuer complained and complains is concerned, it is my view that he has not established that this was the direct result of his accident. To the non-medical observer it is not a difficult proposition to accept that if a person gets a blow on the head he might suffer from dizziness. However, in the present case the dizziness did not manifest itself until about six months after the accident. In Dr Gillham's report she indicates that the pursuer had said to her that the dizziness occurred some two months after the accident and it may be that that piece of information coloured her views. At the proof however, in cross-examination the pursuer was quite clear that it was about six months after the accident that the dizziness occurred (page 109 and 110) and that is consistent with Dr Brown's evidence that the first complaint to him which was some ten months after the accident. It was in these circumstances that Mr Barlow gave the opinion that a complaint of dizziness following a head injury is virtually always present from the time of the injury. "I can think of no mechanism whereby a head injury could produce dizziness six months later", he said. "Dizziness is a non-specific symptom and the cause is quite often difficult to pinpoint. The cause is unknown in Mr Cameron's case but is highly unlikely to be related to his in injury". There was no clear contrary evidence. Mr Lindsay, to whose report I was referred, but who did not give evidence, expressed a view, accurately summarised by Dr Gillham, that he, Mr Lindsay, was not sure whether the ongoing symptoms of neck pain, hearing impairment and dizzy spells were related to trauma. I accordingly find that the pursuer has not established that the dizziness and occasional blackouts of which he now complains and which he says prevent him from working, were attributable to the injury.

[33] Of the pursuer's other injuries, his memory loss is of some significance in that although Dr Gillham, gave him scores on her measuring scales which were average, but he had some difficulty in retaining and absorbing instructions. The effect of her evidence was that it would be difficult for him to absorb training for any intellectual activity but she was optimistic that it would be possible that re-training might enable him to find some form of employment. Her view of Mr Cameron's neuro-psychological state was that he had no deficits which would prevent him from working but that he would have more difficulty learning new skills now than he would have had before his accident.

[34] The pursuer's deafness is a handicap in obtaining and retaining employment. The medical opinion is clear that otosclerosis is the major problem and that accordingly the accident had little effect on his employability. If his deafness were to prevent him being employed in the shipyard, that would have happened anyway. On the other hand, hearing loss in shipyard workers is common. Mr Cameron has not, he told me, obtained any disablement benefit for deafness, the qualification for which involves having a 50 decibel hearing loss in each ear over the range of 1 to 3 kilohertz. I find that his deafness would probably have prevented him from working until retiring age but that he would have been able to continue working at least until the date of the proof.

[35] His loss of smell and consequent impairment of the sense of taste has no effect on his employability although that serious matter was a result of his accident. It is reflected in the sum awarded by way of solatium.

[36] The knee to which Dr Brown referred was considered by Mr Mann and Mr Cartledge. Mr Cartledge's view, upon which he was not cross-examined, was that the pursuer had a very early degree of osteo-arthritis which did give him occasional pain but would only prevent him from doing the heaviest physical work. He was fit for light or semi-sedentary duties and any disability for work was due to other problems. The head and neck, said Mr Cartledge, was the primary problem. I accordingly find that at least until the date of the proof the condition of the pursuer's knee would not have caused him to cease work.

[37] It is accordingly the matter of dizziness and occasional blackouts which is critical. It is unsatisfactory that a particular cause cannot be pinpointed. The three consultants all suggested that the reason might lie in some other consultant's speciality and the series of suggestions made proved entirely circular. What each consultant was clear about, however, was that it was not a matter in their speciality which was causing the problem. Accordingly it was not the head injury, it was not the ear injury, it was not an orthopaedic injury. In that, admittedly unsatisfactory, state of the evidence the pursuer has failed to establish that the dizzy spells which disabled him from certain work were caused by the injury sustained in the accident.

[38] The defenders contended that the pursuer was, on the evidence, not entitled to any wage loss after he gave up work in February 1996. The pursuer sought a multiplier of his annual wage into the future. The pursuer's loss to the date of the proof was some £58,700. From this sick pay and CRU payments required to be deducted to the relevant date, ie. 5.4.200. The pursuer's full wage loss to date according to his counsel, was £12,387.

[39] I think it would be an inadequate assessment of the pursuer's loss if as ceasing when he left the defenders' employment. Mr Barlow's view, on balance, was that if the accident had not occurred, Mr Cameron would have been able to continue in his employment for perhaps a year or two but I do not think that that would mean that the pursuer was unfit for any employment after that period.

[40] His memory loss and accordingly his ability to re-train are difficult to assess accurately. Those would have taken some time to overcome. The neck pain and the mental incapacity both harm the pursuer's opportunities in the labour market I was not satisfied that his dizziness precluded him from all forms of employment having regard to the evidence of Dr Gillham. Giving the matter the best consideration I can, I think that the pursuer would be entitled to and be adequately compensated by an award of his loss to date of the proof net of CRU ie, £12,387. There is no future loss on the view I have taken.

[41] I think that the pursuer would have been able to continue in employment but for the accident for a further year or two, there is an effect on his pension. In the Joint Minute it was agreed that the difference in present day value between the pension the pursuer would have received had he retired at 65 and the pension he will receive from 65 under the actual arrangements was £25,394. Some reflection of that loss is appropriate but even from the date of proof the pursuer was 12 years away from his 65^th birthday. His date of retirement was just over 4 years before the date of the proof. If Mr Barlow is correct and he could have anticipated working for a year or two more with the defenders but for the accident, I, on a jury basis, award the sum of £1,000 in relation to the loss of pension rights.

[42] On the whole circumstances therefore I shall pronounce decree for the sum of

£39697 with interest at 8% from the date of decree until payment. That comprises solatium of £30,000 plus interest on £15,000 to the date of decree at 4% for 53/4 years, ie. £3402; £15,000 for future solatium, wage loss of £12,387 which is net of CRU repayments due with interest thereon at the rate of 4% from the date of the accident until decree of £2809 and £1,000 in relation to the loss of pension benefit, all less 20% by way of contributory negligence (£49,598 - £9910).